Los Angeles Lawyer April 2005 Working Together to Take You Where You Want to Go

Semiannual Guide to Expert Witnesses

April 2005 / $4

EARN MCLE CREDIT The Intersection of Probate and Family Law page 29

Class Wars Los Angeles lawyer Brad W. Seiling explains how successful class action lawsuits can result in malpractice claims page 22

PLUS New Punitive Damages Tax page 14 Solvent Tenants in Bankruptcy page 18 Trademark Infringement Damages page 36 Together We’re Stronger …and better able to fill your insurance needs

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April 2005 Vol. 28, No. 2

FEATURES

22 Class Wars BY BRAD W. SEILING In the wake of a recent appellate decision, class counsel may face a greater likelihood of malpractice claims and attacks on class settlements

29 Tales of Two Courts BY HOWARD S. KLEIN Family court proceedings may give rise to issues that eventually must be settled in probate court

Plus: Earn MCLE credit. MCLE Test No. 136 appears on page 31.

36 Marked Recovery BY ANTONIO R. SARABIA II The new provision for statutory damages in trademark infringement cases has already created a substantial body of case law

41 Special Section Semiannual Guide to Expert Witnesses

The magazine of The Los Angeles County LosAngelesLawyerBar Association DEPARTMENTS

10 Barristers Tips 79 Computer Counselor Invoking the procedure for judicial Technology trends affecting the practice disqualiﬁcation of law BY GAVIN HACHIYA WASSERMAN BY GORDON ENG

14 Practice Tips 84 Closing Argument Assessing the impact of the new law on A Washington fable for our time punitive damages BY KEITH PAUL BISHOP BY JAMES J. FARRELL AND JEREMY G. SUITER 81 Classiﬁeds 18 Practice Tips Filing bankruptcy by solvent tenants to cap 82 Index to Advertisers landlords’ claims Cover photograph by Tom Keller BY DAVID S. KUPETZ 83 CLE Preview LosAngelesLawyer VISIT US ON THE INTERNET AT http://www.lacba.org/lalawyer E-MAIL CAN BE SENT TO [email protected] JudgmentsEnforcedJudgmentsEnforced EDITORIAL BOARD Chair GARY RASKIN Articles Coordinator Law Office of Donald P. Brigham R. J. COMER JERROLD ABELES 23232 Peralta Dr., Suite 204, Laguna Hills, CA 92653 ELAINE R. ABBOTT P: 949.206.1661 DANIEL L. ALEXANDER HONEY KESSLER AMADO F: 949.206.9718 ETHEL W. BENNETT [email protected] AV Rated CHAD C. COOMBS KEITH E. COOPER ANGELA J. DAVIS KERRY A. DOLAN GORDON ENG GENEROUS REFERRAL FEES PAID PER STATE BAR RULES DANIEL A. FIORE JOSEPH S. FOGEL MILLIONS OF $$ RECOVERED FROM EMPLOYERS* STUART R. FRAENKEL MICHAEL A. GEIBELSON NO RECOVERY ¥ NO FEE TED HANDEL Alan Burton Newman DEAN HANSELL • Sexual Harassment JEFFREY A. HARTWICK HARVARD LAW ATTORNEY • Pregnancy Leaves STEVEN HECHT KATHERINE M. HIKIDA FREE PHONE CONSULTATION • Racial & Age Discrimination ROXANNE HUDDLESTON • Family Medical Leave LAWRENCE J. IMEL • Disability Discrimination JOEL T. KORNFELD 800-572.6062 JOHN P. LECRONE www.newmanslaw.com • Wrongful Termination HYACINTH E. LEUS *This does not constitute a guarantee or warranty, or prediction regarding the outcome of your case. PAUL MARKS ELIZABETH MUNISOGLU Mr. Newman will personally handle your referrals. RICHARD H. NAKAMURA JR. DENNIS PEREZ His direct phone number is (310) 578-6229. GERALD F. PHILLIPS THADDEUS M. POPE JACQUELINE M. REAL-SALAS SUE CAROL ROKAW KURT L. SCHMALZ DAVID SCHNIDER GRETCHEN D. STOCKDALE KENNETH W. SWENSON CARMELA TAN BRUCE TEPPER PATRIC VERRONE STAFF Publisher and Editor SAMUEL LIPSMAN Senior Editor LAUREN MILICOV Senior Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA LONERO Account Executive MARK NOCKELS Advertising Coordinator WILMA TRACY NADEAU Administrative Coordinator MATTY JALLOW BABY LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar Association, 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012, (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: ADDRESS SERVICE REQUESTED. Send address changes to Los Angeles Lawyer, P.O. Box 55020, Los Angeles CA 90055. Copyright ©2005 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is pro- hibited. Printed by Banta Publications Group, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer April 2005 Working together to take you where you want to go.

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LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., AL7797 used under license. © 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012-2533 Telephone 213.627.2727 / www.lacba.org ASSOCIATION OFFICERS: President JOHN J. COLLINS President–Elect EDITH R. MATTHAI Senior Vice President CHARLES E. MICHAELS Vice President GRETCHEN M. NELSON Treasurer DON MIKE ANTHONY Assistant Vice President DANETTE E. MEYERS Assistant Vice President MICHAEL E. MEYER Assistant Vice President ALAN K. STEINBRECHER Immediate Past President ROBIN MEADOW Executive Director STUART A. FORSYTH Associate Executive Director/Chief Financial Officer BRUCE BERRA Associate Executive Director/General Counsel W. CLARK BROWN BOARD OF TRUSTEES LINDA D. BARKER JOHN M. BYRNE THOMAS P. CACCIATORE LUCI-ELLEN M. CHUN CLAIRE CIFUENTES KATESSA CHARLES DAVIS KERRY J. DOCKSTADER JEFFREY W. ERDMAN GARY A. FARWELL JAMES R. FELTON RICHARD B. GOETZ LAURENCE R. GOLDMAN TOMAS A. GUTERRES BRUCE G. IWASAKI SAMANTHA PHILLIPS JESSNER MITCHELL A. KAMIN HERBERT KATZ ELISHA FARA LANDMAN LAWRENCE E. LEONE CINDY J. MACHO ELAINE W. MANDEL PATRICK MCNICHOLAS WINSTON A. PETERS MARK L. SHARE DOMINQUE R. SHELTON BRIAN K. STEWART KIM TUNG ROBERT G. VAN SCHOONENBERG GAVIN HACHIYA WASSERMAN SCOTT E. WHEELER JULIE K. XANDERS AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER/MARINA BAR ASSOCIATION EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY GLENDALE BAR ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES IRANIAN AMERICAN LAWYERS ASSOCIATION JOHN M. LANGSTON BAR ASSOCIATION JUVENILE COURTS BAR ASSOCIATION KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA LAWYERS’ CLUB OF LOS ANGELES COUNTY LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES LONG BEACH BAR ASSOCIATION MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

6 Los Angeles Lawyer April 2005 Is A Malpractice Insurance Crisis Looming In Your Horizon? Are You Ready?

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CHARITABLE / RELIGIOUS / EDUCATIONAL ach year we dedicate many pages of Los Angeles Lawyer magazine • 100% success rate for over 33 years. to the business of the practice of law. This month, two articles ad- • Only a 10-day turnaround to dress important issues that are related to this complicated and essen- complete the Federal and State E tial subject. applications. One of the hardest things for a lawyer to swallow is a claim that he or she committed malpractice because the result the lawyer obtained, although • Lower overall cost–no one is better favorable to the client, was not good enough. That is exactly what happened last at getting the job done right the year in a class action lawsuit in which the plaintiffs’ counsel obtained a $90 million first time! judgment for their clients. In this month’s cover story, Brad W. Seiling explores the California Court of Appeal’s decision in Janik v. Rudy, Axelrod & Zieff, in which EXPERIENCE / KNOWLEDGE / CONFIDENCE the appellate court reversed the sustaining of a demurrer and held that a complaint properly states a cause of action for professional negligence when an attorney fails Marshall A. Glick to consider and assert additional claims that could have increased the recovery in an underlying case. attorney at law Although in the Janik case the malpractice claim was asserted by parties who were 6345 Balboa Blvd., Suite I-300 not, but wanted to be, included as members of the class and therefore as clients of Encino, CA 91316 the attorneys who litigated the class action on behalf of the class, it is not difficult (818) 345-2223 to apply the court of appeal’s rationale to many other factual scenarios. Indeed, by [email protected] holding that nonclients may assert a claim for malpractice on the grounds that an www.glicklaw.com attorney failed to consider or pursue claims that may have resulted in a benefit for the nonclients, arguably the appellate court has created an expanded duty for lawyers that is extremely broad in its scope. The question now is whether courts will limit the Janik decision to its specific facts or apply it expansively to other scenarios outside the realm of class actions. Whatever occurs in the future, one of the lessons that should be taken from the Janik case is that even a good result may not satisfy a lawyer’s professional obligations to his or her client. Professional Punitive damages awards have been under attack on many fronts. The clamor for “tort reform” usually includes a desire to restrict severely the availability of puni- Arbitrator tive damages for plaintiffs. In 2003, the U.S. Supreme Court held in State Farm Mutual Automobile Insurance Company v. Campbell that in most cases a punitive damages and Mediator award that exceeds compensatory damages by more than 10 times is unconstitutional. In August 2004, the California Legislature enacted Civil Code Section 3294.5, which requires that 75 percent of all punitive damages awards be paid to the state Steven Richard Sauer, Esq. of California. The state must hold 25 percent of its portion of an award to compensate the plaintiff’s attorney. In their article, James J. Farrell and Jeremy G. Suiter analyze the application and ramifications of Section 3294.5. They explain that the statute explicitly applies only “He is truly a master to judgments and not settlements. In addition, the statute is limited to cases that were filed after August 16, 2004, and that are finally adjudicated (including all appeals) in his art.” before July 1, 2006. As a result of its short life span, the statute may not result in the receipt of any money by the state. However, the California Legislature may elect to extend the sunset provision of the statute. If that occurs, and Section 3294.5 is Settled over 5,000 Federal effective for several more years, its effect will be significant for lawyers and their clients. and State Litigated Cases At the very least, the statute does create interesting wrinkles for cases filed after August 16, 2004. Indeed, the statute affects the analysis a lawyer undertakes in making a business decision even to accept a case that includes a potential for the recovery of punitive damages. 323.933.6833 What does not need to be analyzed is that the business of the practice of law continues to become more complex. In the future, we at the magazine will do our best Fax 323.933.3184 to help explain the changes. ■ E-mail [email protected] Gary S. Raskin is a principal of Garfield Tepper & Raskin, where his primary area of practice 4929 Wilshire Blvd., Suite 740 Los Angeles, CA 90010 is entertainment litigation. He is the chair of the 2004-05 Los Angeles Lawyer Editorial Board.

8 Los Angeles Lawyer April 2005 “I missed the deadline? Aaarrggh!” Don’t get caught with your pants down—DOD your dates first

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Invoking the Procedure for Judicial Disqualiﬁcation

THE STATEMENT OF DISQUALIFICATION under Code of Civil recusal does not result, then a statement of disqualification becomes Procedure Section 170.3(c) is used “when a judge who should dis- necessary. qualify himself or herself refuses or fails to do so.” Described as “out- Nevertheless, a judge may not be aware of facts that require dis- side the usual law and motion…rules,” the section is the basis for a closure, or a judge may simply err. A judge who recently left a law unique procedure for disqualification.1 Every attorney in criminal or firm, for example, may not realize that a party to a current case was civil trial practice should have a basic understanding of judicial dis- once a client of a lawyer with whom the judge was associated in the qualification's numerous grounds and unique procedure. Lawyers may private practice of law within the previous two years.4 Or a judge may inquire on the record in order to elicit facts that can generate a not realize that a lawyer involved in the proceeding is associated in recusal or offer grounds for or against proceeding under the section. the private practice of law with a brother-in-law.5 Disqualification issues arise whenever the facts that support them do. The statement of disqualification must be written and verified, Disqualification is proper even after an adverse summary judgment has been granted.2 Code of Civil Procedure Section 170.1 sets grounds for disqualification under eight sub- The grounds for disqualification and their definitions require sections. Seven of these refer to objective criteria—for example, whether the judge has a financial interest in the case as defined by close reading—and sometimes a passion for genealogy. Different statute. However, Section 170.1(a)(6) includes more subjective language: “[A] person aware of the facts might reasonably entertain a doubt relationships matter for different grounds for disqualification. that the judge would be able to be impartial.” Whatever subsection may apply, the grounds for disqualification and their definitions require close reading—and objecting to the hearing or trial by the judge and setting forth facts sometimes a passion for genealogy. Different relationships matter for constituting grounds for disqualification. The statement “shall be pre- different grounds for disqualification. Under Section 170.1(a)(1), sented at the earliest practicable opportunity after discovery of the for example, a judge shall be deemed to have “personal knowledge facts constituting the ground for disqualification.”6 If investigation of disputed evidentiary facts concerning the proceeding” and thus be and confirmation of preliminary facts take time, the statement should disqualified if a material witness is the judge’s spouse, is related to the clearly show compliance with the timing requirement. Successive judge or the judge’s spouse within the third degree (e.g., a niece or statements of disqualification are restricted to newly discovered nephew), or is married to a third-degree relative. grounds.7 In contrast, Section 170.1(a)(5) does not automatically disqualify a judge if a lawyer in the case is the spouse of a third-degree rel- Service of the Statement ative. On the other hand, subsection (a)(5) automatically disqualifies A copy of the statement of disqualification “shall be personally a judge when a lawyer is in practice with a sibling-in-law of the judge. served on the judge alleged to be disqualified, or on his or her clerk, Furthermore, if none of these specifics correspond with the case at provided that the judge is present in the courthouse or in chambers.”8 hand, the provisions of 170.1(a)(6) may apply.3 The server and the court clerk need to understand that the judge is Important facts often arise during an attorney’s initial research on being served, not merely receiving a courtesy copy. For this reason, a trial judge, so composing a checklist for issue spotting and fact gath- the server should receive detailed instructions from the attorney on ering can be helpful. Newer judges are covered by more subsections effecting the service and a number to call if any problems arise. For of Section 170.1 than longtime bench officers, but the prior recusals example, a temporary court clerk may refuse the statement or direct of more experienced judges may be available online to savvy searchers. the server to the filing window. Calling the courtroom clerk in Whatever research a lawyer may conduct, a judge is in the best advance helps smooth the process, confirming the clerk’s under- position to know personal facts relevant to disqualification. Judges standing of the process and the judge’s presence for service. The are required by Canon 3E of the Code of Judicial Ethics to “disclose server should confirm the judge’s presence and record the clerk’s on the record information that the judge believes the parties or their name. lawyers might consider relevant to the question of disqualification, The judge who is served with a statement of disqualification has even if the judge believes there is no actual basis for disqualification.” 10 days to act. The judge may 1) strike an untimely or legally insuf- Judges should regularly review the grounds for disqualification when considering a case. If counsel becomes aware of facts supporting dis- Gavin Hachiya Wasserman is managing partner of Wasserman & Wasserman, qualification and brings those facts to the judge's attention but LLP and is assistant vice president of the Barristers.

10 Los Angeles Lawyer April 2005 BRIAN RABINOVITZ PAYS ATTENTION ficient statement, 2) consent to or deny the statement by filing a written verified answer admitting or denying any or all of the allegations in the statement and setting forth additional facts, or 3) pass the case on to a judge agreed upon by the parties. Inaction is deemed consent to disqualification.9 If the judge and court counsel file a written verified answer, the issue must be decided by another judge. Generally, a Section 170.3 issue that arises in Los Angeles Superior Court is decided by an Orange County Superior Court judge. Attorneys should know that Section 170.4 limits the actions of a challenged judge and that the underlying action may be stayed. The judge who is assigned a Section 170.3 issue may decide the disqualification on the statement, answer, “and such written arguments as the judge requests, or the judge may set the matter for hearing as promptly as practicable.”10 If the hearing is held, the parties and challenged judge may argue the issues and the court “shall…hear evidence on any disputed issue of fact.” No challenge is per- mitted against the assigned judge, although a recusal by the assigned judge is possible. A polite call to court staff may reveal the assigned court’s policies, if any, on argument, evidence, and hearings. For example, it is the policy of one Orange County court that frequently hears disqualifications not to set hearings but to allow argument and evidence to be submitted without leave of court. This Orange County court also reserves the option of disregarding material it deems irrelevant. SECURE All filings on the disqualification are made in the courtroom in Orange County. The assigned court’s decision on disqualification may be reviewed only by writ of mandate within 10 days’ notice of the decision.11 At the beginning of a case and as it devel- ops, an attorney’s due diligence may uncover EVIDENCE a judge’s family or professional ties to a party involved in a case or simply create a reasonable doubt regarding whether the judge can STORAGE COMPANY, INC. be impartial. Therefore, an attorney may need to effect the filing of a statement of disqualification. ■ Serving Southern California since 1980 1 Urias v. Harris Farms, 234 Cal. App. 3d 415, 422 (1991). Automobiles, trucks, motorcycles, appliances 2 Id. at 421-22. 3 See Johnston v. Brown, 115 Cal. 694 (1897) and CODE CIV. PROC. §170.1(a)(6). and other items of evidence. 4 CODE CIV. PROC. §170.1(a)(2); Urias, 234 Cal. App. 3d 415. 5 See CODE CIV. PROC. §§170.1(a)(5), (a)(8)(b); Visit us at Hartford Casualty Ins. v. Superior Court, 125 Cal. App. 4th 250, 253 (2004). See also 28 U.S.C. §455; Mangini www.secureevidencestorage.com v. United States, 314 F. 3d 1158 (2003). 6 CODE CIV. PROC. §170.3(c)(1). 7 CODE CIV. PROC. §170.4(c)(3). 8 CODE CIV. PROC. §170.3(c)(1). 1-800-924-2883 9 CODE CIV. PROC. §170.4(b). 10 CODE CIV. PROC. §170.3(c)(5). 11 CODE CIV. PROC. §170.3(d).

12 Los Angeles Lawyer April 2005 Practice of law… meet business of law.

Bringing together the actual practice of law and the business aspects of your practice can be a challenge. Your ﬁrm’s success depends on both.

Go Beyond Cases & Codes Today, your ﬁrm’s success is increasingly tied to your ability to accommodate the business aspects of your practice—such as building Manage Your Practice a strong client base and maximizing your efficiency.

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LexisNexis…more than research. Visit www.lexisnexis.com or call 877.810.5324.

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LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. It’s How You Know is a trademark of LexisNexis, a division of Reed Elsevier Inc. AL7616 © 2004 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Practice Tips BY JAMES J. FARRELL AND JEREMY G. SUITER

Assessing the Impact of the New Law on Punitive Damages

TAXATION WITHOUT REPRESENTATION led to a revolution in this country almost 230 years ago. But taxation by litigation in California has gone virtually unnoticed for the past several months. On August 16, 2004, with little public attention, the state enacted new Civil Code Section 3294.5, which mandates that 75 percent of punitive damages awards in California be paid into the state’s coffers. At first glance, this revolutionary new law seems to be consistent with the growing belief that massive punitive damages awards— which inherently exceed actual damages—give plaintiffs an unwar- ranted windfall. But the plaintiffs’ bar supports Section 3294.5—no doubt because its members will receive a guaranteed share of punitive damages awards that nearly equals their clients’ share, in addition to their other fees. The new law may also result in larger punitive damage verdicts if juries learn that the state will receive most of the award. Conversely, because the 75 percent “tax” applies only to final judgments, Section 3294.5 gives defendants facing punitive damages substantially increased settlement leverage. By settling and eliminating the state’s payment, a defendant could pay the plaintiff his or her anticipated 25 percent portion, plus a portion of the 75 percent that would have otherwise gone to the state, and keep the remainder of the 75 percent. These conflicting results are not surprising because Section 3294.5 was not intended to reform the court system. Rather, its sole objective is to generate revenue—as much as $450 million—for cash- starved California.1 Indeed, in the language of the statute, the legis- Public Benefit Trust Fund.3 The state must hold 25 percent of the fund lature notes that “extraordinary and dire budgetary needs have to compensate the plaintiff’s attorney, and the state may use the forced the enactment of this extraordinary measure to allocate tem- remainder of its portion for any purpose that is “consiste[nt] with the porarily for the state’s Public Benefit Trust Fund a substantial por- nature of the award.”4 The plaintiff’s attorney is entitled to receive tion of any punitive damages paid from a judgment during the lim- the 25 percent of the state’s portion on July 1 of the next fiscal year.5 ited time period specified in the statute.”2 This statutory contingency fee is deemed to be the plaintiff’s attor- However, it is unclear whether California will ever collect a dime ney’s income for state and local taxation purposes6 and does not pre- under the new law. Section 3294.5 applies only to cases filed after clude any other fees negotiated with the plaintiff. After paying the August 16, 2004, and “finally adjudicated”—including the resolution state’s 75 percent share, the defendant must notify the plaintiff’s of all appeals—before July 1, 2006. Only a limited number of puni- counsel of the amount of that payment and pay the 25 percent tive damages cases may be resolved within that narrow 22-month win- remainder of the punitive damages award to the plaintiff through his dow. Moreover, Section 3294.5 may generate more legal fees than state or her counsel.7 revenues, because it could be subject to several constitutional chal- Section 3294.5 contains three procedural safeguards. First, to lenges. Plaintiffs will lose most of their punitive damages award prevent the state from taking advantage of the law, California may under the new law, so they may argue that the statute constitutes an not be a party in interest to, intervene in, or participate as amicus curiae unlawful taking or violates equal protection. Defendants may face in “any action in which [the state’s] sole interest is the potential higher punitive damages verdicts as a result of the new law, so they recovery of a portion of a punitive damages award.”8 Second, to avoid may challenge the statute on due process grounds. But no matter how judicial bias, the money deposited into the Public Benefit Trust Fund much revenue Section 3294.5 ultimately generates, every California may not be appropriated to “the courts or judicial programs.”9 litigator should understand this important new law and its strategic Third, to minimize juror misconduct, the jury may not be told that implications, which will affect every case seeking punitive damages a portion of a punitive damages award would go to the state; how- filed in California this year. ever, a juror’s independent knowledge of this fact will not disqualify Section 3294.5 provides a procedure for the allocation of all punitive damages that are awarded in a final judgment. The defen- James J. Farrell is a partner and Jeremy G. Suiter is an associate in the Los dant pays the state’s 75 percent portion of the award to the director Angeles office of Latham & Watkins LLP, where they both specialize in secu- of the Department of Finance for deposit into the newly created

RICHARD EWING rities and professional liability litigation.

14 Los Angeles Lawyer April 2005 that juror or otherwise provide a basis to set would pay $1 million (100 percent) but the statute apportioning punitive damages to the aside the jury’s punitive damages award.10 plaintiff would receive only $250,000 (25 state: By its own terms, Section 3294.5 has a percent). As a result, one likely effect of [A]ny interest the plaintiff has in a narrow window of applicability. The statute Section 3294.5 is that the number of settle- punitive damages award is a creation applies only to actions that are filed on or after ments will increase.17 of state law.…The Indiana legislature August 16, 2004, and are “finally adjudi- The statutory contingency fee provision has chosen to define the plaintiff’s cated” before July 1, 2006.11 The term may create a significant conflict of interest interest in a punitive damages award “finally adjudicated” means truly final, and between client and counsel on the issue of set- as only twenty-five percent of any includes “the resolution of all mandatory or tlement. A plaintiff expecting a punitive dam- award, and the remainder is to go to discretionary appeals, the resolution of any ages award may want to settle for an amount [a state fund]. The award to the Fund motion for attorney’s fees on appeal and any that is smaller than the potential verdict but is not the property of the plaintiff.…As appeals therefrom, and the issue of final greater than the 25 percent share the plain- a result, there is no taking of any prop- remittitur.”12 This short 22-month time period tiff would otherwise receive under Section erty by the statutory directive that the means that the new law may have little 3294.5. The plaintiff’s attorney, on the other clerk transfer a percentage of the puni- impact. Large punitive damages cases can hand, has an incentive not to settle because tive damages award to the Fund.28 take more than 22 months just to get to trial the attorney’s recovery could be far greater if Only one takings challenge has succeeded. and can last even longer if the defendant the statute, and its 25 percent statutory con- The Colorado Supreme Court struck down its exercises its right to bifurcate the liability tingency fee, is applied. state’s punitive damages apportionment and damages phases.13 The median time to In the scenario of the $1 million punitive statute as an unconstitutional taking of the conclude an appeal would be another 16 damages award, consider the consequences if plaintiff’s property.29 Crucial to the court’s months.14 Thus, it is unlikely that a large the plaintiff’s attorney charged a contractual decision was the fact that the state “affir- case will be “finally adjudicated” before the contingency fee of 40 percent. If Section matively disavowed, pursuant to the statute July 1, 2006, sunset deadline. Even relatively 3294.5 is applied to that award, the attorney itself, ‘any interest in the claim for [punitive] smaller punitive damages cases may elude may be entitled to both 25 percent of the damages …at any time prior to the payment the statute’s grasp through continuances or state’s portion and 40 percent of the plaintiff’s becoming due.’”30 Because the statute pro- other procedural delays. portion of the punitive damages award. This vided that the state’s payment did not become Of course, the legislature may extend the means that the attorney would receive due until after the plaintiff obtained judgment limited life of Section 3294.5, bringing more $287,500,18 and the plaintiff would receive and did not require the judgment to name the cases within its scope. The legislature stated $150,000,19 while the state would receive state as a creditor, the court concluded that that this new law “shall not be construed to $562,500.20 But if the parties settle the puni- the plaintiff obtained a protected property establish any policy, precedent, presumption, tive damages component for $300,000, interest in the entire amount of its punitive or inference in any case or any other setting, thereby eliminating California’s portion and damages award upon entry of that judg- including future legislatures, regarding the the 25 percent statutory contingency fee, the ment.31 As the court explained, “The legis- award of punitive damages [or] its alloca- attorney would receive just $120,000,21 and lature may well abate or diminish a pending tion.”15 Nevertheless, if Section 3294.5 suc- the plaintiff would receive $180,000.22 That civil action, but when that claim ripens into cessfully generates revenue, it could become settlement would increase the plaintiff’s recov- judgment ‘the power of the legislature to dis- a permanent addition to the Civil Code. ery by $30,000 but cost his or her counsel turb the rights created thereby ceases.’”32 California’s budget woes may make this $167,500. As a result, a leading legal institute Although other courts have criticized the potential revenue source too tempting to has concluded that “allowing the plaintiff’s Colorado decision, California’s Civil Code relinquish. attorney some contingent share of the state’s Section 3294.5 could face a similar challenge award creates a potential conflict with the because it grants the state punitive damages Settlements and Conflict of Interest interests of the plaintiff.”23 These competing awarded in a “final judgment” without defin- Because Section 3294.5 applies only to puni- financial motivations of plaintiffs and their ing the state’s interest in the award. Further, tive damages that are “awarded pursuant to counsel may create a new ethical dilemma.24 the California Supreme Court has observed a final judgment,”16 parties may wish to enter that the legislature lacks the authority “to take into a settlement agreement prior to the entry Legal Challenges away rights which have been once vested by of final judgment. This approach could ben- Similar punitive damages apportionment a judgment.”33 Nevertheless, the legislature efit both sides, particularly in cases in which statutes in other states have been challenged could easily remedy any constitutional infir- punitive damages have already been awarded on various legal grounds. One of the most mity that exists in Section 3294.5 by amend- in a verdict. The settlement could be struc- common attacks by plaintiffs is that appor- ing the statute to clarify that the plaintiff tured so that the defendant would pay, and tioning punitive damages to the state vio- does not acquire a property right in the state’s the plaintiff would receive, an amount that is lates the takings clause of the U.S. Consti- portion of the punitive damages award, or greater than the 25 percent share that the tution or an equivalent provision of a state that the state has an interest in the punitive plaintiff would receive under the statute but constitution. The takings clause prohibits the damages award upon entry of the verdict. is less than the total amount of punitive dam- government from taking private property for Both provisions have passed constitutional ages that the defendant would have to pay public use without providing just compen- muster in other cases.34 under the judgment. sation.25 Because property rights protected by Plaintiffs have also challenged punitive Consider, for example, a verdict for $1 the takings clause are created by state law,26 damages apportionment statutes under the million in punitive damages. As a purely eco- these challenges have generally been rejected excessive fines clause of the U.S. Consti- nomic matter, both the plaintiff and the defen- on the ground that a plaintiff has no property tution.35 In Browning-Ferris Industries of dant would prefer a settlement that requires right in a punitive damages award if a state Vermont, Inc. v. Kelco Disposal, Inc., the the defendant to pay $300,000 (30 percent) statute assigns a portion of that award to U.S. Supreme Court observed that the exces- to the plaintiff, rather than a judgment sub- the state.27 As the Indiana Supreme Court sive fines clause applies “primarily, and per- ject to the statute, under which the defendant explained in a decision upholding an Indiana haps exclusively, to criminal prosecutions

Los Angeles Lawyer April 2005 15 and punishments.”36 Accordingly, the Court in a final judgment rather than in a settle- provide a basis to disqualify that juror or set held that the clause “does not constrain an ment.44 Similarly, the Georgia Supreme Court aside the jury’s punitive damages award.53 award of money damages in a civil suit when rejected the argument that Georgia’s appor- Thus, the statute acknowledges the risk of the government neither has prosecuted the tionment law violated equal protection prin- improper influence created by the knowledge action nor has any right to receive a share of ciples because it applies only to punitive dam- that the state will take 75 percent of a puni- the damages awarded.”37 ages awarded in product liability actions.45 As tive damages award but prohibits the dis- Seizing on this qualification in Browning- the supreme court explained, “[T]he trial missal of a juror who has that knowledge— Ferris, one federal district court has held that court was correct in its finding that the statute as long as it was gained before the trial. The Georgia’s punitive damages apportionment treats plaintiffs in various tort actions dif- possibility of independent knowledge will statute violated the excessive fines clause ferently. However, all similarly situated plain- likely increase over time, particularly if the leg- because it required the plaintiff to deposit a tiffs and defendants, including those in prod- islature extends the life of Section 3294.5, and portion of his punitive damages award into uct liability actions, are treated equally by the the apportionment process is delineated and the state treasury.38 But other state and fed- statute.”46 In light of these consistent judicial discussed in news reports about punitive eral courts have rejected similar challenges, rejections of equal protection arguments damages verdicts in California. As a result, holding that the statutes in question did not offered by plaintiffs, it is unlikely that Section defendants who already face a median puni- violate the excessive fines clause because the 3294.5 violates the equal protection clause. tive damages verdict in California that is state 1) could not intervene in private litiga- But plaintiffs may not be the only parties three to six times higher than the national tion and thus had no prosecutorial power, and who challenge Section 3294.5. Defendants average54 may soon see punitive damages 2) did not control the amount of punitive also may challenge the statute on due process verdicts increase if juries attempt to increase damages sought or awarded and thus had no grounds. With respect to punitive damages, their awards to provide more money to the interest in the award until it is made.39 Some the due process clause of the U.S. Constitution state or to offset the plaintiff’s share that is courts also drew a distinction for those stat- prohibits the imposition of grossly excessive lost to the state. ues directing that the award must be deposited or arbitrary awards.47 In determining whether Recent court decisions reflect a growing into a state fund with a specified purpose, a punitive damages award is excessive or national trend to reduce the perceived wind- rather than the state’s all-purpose general arbitrary under the due process clause, courts fall that plaintiffs receive from large punitive treasury.40 Given that Section 3294.5 similarly must consider three factors articulated in damages awards. Section 3294.5 may be the prohibits California from intervening in pri- BMW of North America, Inc. v. Gore and next step in that trend, although it was vate litigation seeking punitive damages and reaffirmed in State Farm Mutual Automobile enacted simply to generate revenue for requires that the state’s portion of any puni- Insurance Company v. Campbell: 1) The rep- California. Regardless of how much revenue tive damages award be deposited into a spec- rehensibility of the defendant’s misconduct, it generates, every practitioner should be ified fund, a constitutional challenge based on 2) the disparity between the actual or poten- familiar with this important new law because the excessive fines clause may be difficult. tial harm suffered by the plaintiff and the of its potential impact on litigating punitive A third challenge by plaintiffs is that puni- punitive damages award, and 3) the difference damages cases, including settlement strategy, tive damages apportionment statutes violate between the punitive damages award and conflicts of interest, and the amount of and equal protection requirements. The equal the civil penalties authorized or imposed in frequency of punitive damages awards. ■ protection clause of the U.S. Constitution similar cases.48 If the jury was influenced by provides that no state shall “deny to any per- other arbitrary factors, such as prejudice or 1 See LEGISLATIVE ANALYST OFFICE, CALIFORNIA son within its jurisdiction the equal protection bias, then its punitive damages award violates SPENDING PLAN 2004-05 55 (Sept. 2004), available at of the laws.”41 This “provision creates no sub- due process.49 http://www.lao.ca.gov/2004/spend_plan_04/0904 _spend_plan.pdf. stantive rights,” but instead “embodies a Ostensibly to prevent an arbitrary award, 2 CIV. CODE §3294.5(a). general rule that States must treat like cases Section 3294.5 prohibits a jury from being 3 CIV. CODE §3294.5(c)(1). alike but may treat unlike cases accord- “informed that any portion of a punitive dam- 4 CIV. CODE §3294.5(b)(1). The statute does not explain ingly.”42 Provided that the law in question ages award will be paid to a government what this quoted phrase means. does not burden a fundamental right (such as fund.”50 This prohibition is consistent with 5 CIV. CODE §3294.5(d). 6 the right to vote) or target a suspect class (such appellate court decisions from other jurisdic- CIV. CODE §3294.5(f). The U.S. Supreme Court recently held that for federal taxation purposes, the por- as race), then the law would be upheld if it is tions holding that it is reversible error to tion of a verdict or settlement paid to the plaintiff’s rationally related to a legitimate government inform a jury by way of jury instructions, attorney pursuant to a contingency fee agreement is the purpose.43 verdict forms, or closing arguments that the income of the plaintiff and not the attorney. Comm’r Many courts have rebuffed equal protec- state will receive part of any punitive damages of Internal Revenue v. Banks, ___ U.S. ___, 2005 WL tion challenges to statutes similar to Section award pursuant to an apportionment statute.51 123825 (Jan. 24. 2005). 7 CIV. CODE §3294.5(c)(2), (c)(3). 3294.5. For example, the Missouri Supreme As one of those courts explained, any knowl- 8 CIV. CODE §3294.5(e). Court rejected the argument that Missouri’s edge of the potential apportionment can 9 CIV. CODE §3294.5(b)(1). apportionment statute, which applies only encourage the jury to 1) “award punitive 10 CIV. CODE §3294.5(g). to final judgments, violated the equal pro- damages for an improper reason—to enhance 11 CIV. CODE §3294.5(h) & (i). 12 tection clause because it discriminated against a state’s account,” and 2) “deliberate on the CIV. CODE §3294.5(h). 13 CIV. CODE §3295(d). plaintiffs who do not settle. As the court plaintiff’s share of punitive damages and add 14 See JUDICIAL COUNCIL OF CALIFORNIA, 2004 COURT explained, there were several possible “legit- [an] additional amount to compensate for STATISTICS REPORT 19 (2004), available at imate reasons for the legislature to distin- the portion distributed to [the state.]”52 http://www.courtinfo.ca.gov/reference/documents guish between punitive damages awarded by However, an exception contained in /csr2004.pdf. court judgment and punitive damages recov- Section 3294.5 threatens to undermine its 15 CIV. CODE §3294.5(a). 16 CIV. CODE §3294.5(b). ered through settlement,” including the desire cautious—and constitutional—approach. The 17 Rather than settle for a smaller portion, however, to encourage settlement, and the fact that it exception provides that a juror’s indepen- some plaintiffs may try to recover their entire punitive would be easier for the state to collect its dent knowledge that a portion of a punitive damages award by filing their action in federal court. portion of punitive damages that are awarded damages award goes to the state will not If §3294.5 is “procedural” rather than “substantive”

16 Los Angeles Lawyer April 2005 for purposes of the Erie doctrine, then federal courts 23 2 AMERICAN LAW INSTITUTE, REPORTERS STUDY, 1242 (S.D. Iowa 1991), rev’d on other grounds, 6 F. need not apply the statute, and California will have no ENTERPRISE RESPONSIBILITY FOR PERSONAL INJURY: 3d 497 (8th Cir. 1993); Hoskins v. Business Men’s right to share in the punitive damages award. See gen- APPROACHES TO LEGAL AND INSTITUTIONAL CHANGE Assurance, 79 S.W. 3d 901, 904 (Mo. 2002); Spaur v. erally Snead v. Metropolitan Prop. & Cas. Ins. Co., 237 259 n.49 (Apr. 15, 1991). Owens-Corning Fiberglass Corp., 510 N.W. 2d 854, F. 3d 1080, 1090 (9th Cir. 2001). In fact, California 24 See generally Santa Clara County Counsel Attorneys 868-69 (Iowa 1994). is barred from appearing in any action for the sole pur- Ass’n v. Woodside, 7 Cal. 4th 525, 546 (1994) (dis- 40 See Burke, 780 F. Supp. at 1242; Spaur, 510 N.W. pose of collecting such an award. See CIV. CODE §3294 cussing CAL. RULES OF PROF’L CONDUCT R. 3-310(B)). 2d at 869. (e); see also Finley v. Empiregas, Inc. of Potosi, 28 F. 25 U.S. CONST. amend. V. 41 U.S. CONST. amend. XIV, §1. 3d 782, 784 (8th Cir. 1994) (holding that similar 26 See Logan v. Southern Cal. Rapid Transit Dist., 42 Vacco v. Quill, 521 U.S. 793, 799 (1997). language in Missouri Revised Statutes §537.675 pre- 136 Cal. App. 3d 116, 125 (1982) (citing Board of 43 Silveira v. Lockyer, 312 F. 3d 1052, 1088 (9th Cir. vented state of Missouri from appearing in federal Regents v. Roth, 408 U.S. 546, 577 (1972)). 2003) (internal quotations omitted). diversity case to which it was not a party to request 27 See, e.g., Shepherd Components, Inc v. Brice Petrides- 44 Fust v. Attorney Gen., 947 S.W. 2d 424, 432 (Mo. portion of plaintiff’s punitive damages award). While Donohue & Assocs., Inc., 473 N.W. 2d 612 (Iowa 1997). federal courts have not yet scrutinized §3294.5, they 1991); Cheatham v. Poole, 789 N.E. 2d 467 (Ind. 45 Mack Trucks, Inc. v. Conkle, 436 S.E. 2d 635 (Ga. are likely to hold that §3294.5 is a substantive statute 2003). 1993). that applies to punitive damages awarded in federal 28 Cheatham, 789 N.E. 2d at 473. 46 Id. at 639 (emphasis in original). diversity cases. Cf. Finley, 28 F. 3d at 784 (describing 29 Kirk v. Denver Publ’g Co., 818 P. 2d 262 (Colo. 47 See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 district court’s application of Iowa’s punitive dam- 1991). U.S. 408, 416 (2003). ages apportionment statute to punitive damages award 30 Id. at 272 (quoting COLO. REV. STAT. §13-21-102(4)). 48 BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574- in federal diversity action); Simpson v. Burrows, 90 F. 31 Id. 75 (1996); State Farm, 538 U.S. at 418. Supp. 2d 1108, 1131 (D. Or. 2000) (applying Oregon’s 32 Id. (quoting McCollough v. Virginia, 172 U.S. 102, 49 See State Farm, 538 U.S. at 417-18. punitive damages apportionment statute to punitive 123-24 (1898)). 50 CIV. CODE §3294.5(g). damages award in federal diversity action). 33 People v. Barwick, 7 Cal. 696, 700 (1936) (quoting 51 See, e.g., Burke v. Deere & Co., 6 F. 3d 497, 512- 18 $287,500 = $187,500 (plaintiff attorney’s statutory McCollough, 172 U.S. at 123-24). 13 (8th Cir. 1993); Ford v. Uniroyal Goodrich Tire Co., contingency fee of 25% of state’s $750,000 portion) 34 See Fust v. Attorney Gen., 947 S.W. 2d 424, 431 476 S.E. 2d 565, 570-71 (Ga. 1996); Honeywell v. + $100,000 (plaintiff attorney’s contractual contin- (Mo. 1997) (upholding MO. REV. STAT. §537.675 Sterling Furniture Co., 797 P. 2d 1019, 1022 (Or. gency fee of 40% of plaintiff’s $250,000 portion). (1994)); DeMendoza v. Huffman, 51 P. 3d 1232, 1990). 19 $150,000 = $250,000 (plaintiff’s 25% portion of $1 1247 (Or. 2002) (upholding OR. REV. STAT. §18.540 52 Ford, 476 S.E. 2d at 571-72 (citing Honeywell, 797 million award) - $100,000 (plaintiff attorney’s con- (1996)). P. 2d at 1021-22)). tractual contingency fee of 40% of plaintiff’s $250,000 35 U.S. CONST. amend VIII. 53 CIV. CODE §3294.5(g). portion). 36 Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, 54 See DR. LAWRENCE J. MCQUILLAN & ANTHONY 20 $562,500 = $750,000 (state’s 75% portion of $1 mil- Inc., 492 U.S. 257, 262 (1989). P. ARCHIE, PACIFIC RESEARCH INSTITUTE, CALIFORNIA lion award) - $187,500 (plaintiff attorney’s statutory 37 Id. at 264. 2005, REFORM AGENDA: BUSINESS & ECONOMIC contingency fee of 25% of state’s $750,000 portion). 38 See McBride v. General Motors Corp., 737 F. Supp. STUDIES 1 (Dec. 2004), available at http://www 21 $120,000 = 40% of $300,000. 1563, 1577-78 (M.D. Ga. 1990). .pacificresearch.org/pub/sab/entrep/2004/Reform 22 $180,000 = 60% of $300,000. 39 See, e.g., Burke v. Deere & Co., 780 F. Supp. 1225, _Agenda.pdf.

Los Angeles Lawyer April 2005 17 Practice Tips BY DAVID S. KUPETZ

Filing Bankruptcy by Solvent Tenants to Cap Landlords’ Claims

BANKRUPTCY CODE SECTION 502(b)(6) provides a cap on claims of lion, and 15 percent of this amount is $1.8 million. Since the 15 per- landlords for damages under long-term real property leases. Businesses cent amount is greater than the amount of rent reserved for one year such as retail chain stores often file reorganization cases under chap- and is less than rent for three years, the landlord’s claim would be ter 11 of the Bankruptcy Code in order to take advantage of this cap capped at $1.8 million. when closing unprofitable locations. These cases generally involve insolvent entities that are facing many difficult financial issues and Solvent Chapter 11 Filings challenges. There is no question that insolvent entities may file bankruptcy to take Courts recently have addressed whether a solvent entity may advantage of this cap. However, access to bankruptcy protection is commence a chapter 11 reorganization solely to reject its one and only not conditioned on insolvency.5 A debtor does not have to demon- real estate lease and limit its landlord’s lease termination damages strate insolvency under either a balance sheet test (liabilities in excess claim. While courts uniformly recognize that chapter 11 is available to solvent entities, in two recent decisions—In re Integrated The common thread that runs through the case law is that the question Telecom Express, Inc.1 and In re Liberate Technologies2—the use of chapter 11 by solvent entities solely to apply the Section of good faith is based on the totality of the circumstances. 502(b)(6) cap was limited to situations in which the debtor was facing some level of financial distress. The Section 502(b)(6) cap is designed to limit lease termination of assets) or under a liquidity test (unable to pay its debts as they come claims to prevent landlords from receiving a windfall at the expense due).6 While the Bankruptcy Code does not limit chapter 11 relief to of other creditors. Depending upon the length of a lease, the landlord’s insolvent debtors or those who suffer any particular form of finan- claim for future rent could be enormous and dramatically diminish cial distress, courts have held that this “does not mean that all sol- the return to other unsecured creditors.3 Section 502(b)(6) limits vent firms should have unfettered access to Chapter 11.”7 the claim of a lessor for damages resulting from the termination of The lack of any bankruptcy solvency test is rooted in the reality a lease of real property to: that, at times, solvent entities suffer from financial distress.8 In fact, (A) The rent reserved by such lease, without acceleration, for “[i]t is not uncommon for debtors to be solvent under the balance sheet the greater of one year, or 15 percent, not to exceed three years, test, and yet to have severe financial problems.”9 Congress rightfully of the remaining term of such lease, following the earlier of— believed that entities should be eligible for relief under chapter 11 (i) the date of the filing of the petition; and before becoming insolvent under a balance sheet test: “The prospects (ii) the date on which such lessor repossessed, or the lessee sur- for reorganizing a debtor in financial difficulty are much better when rendered, the leased property; plus the debtor is still solvent than after it becomes insolvent.”10 (B) Any unpaid rent due under such lease, without accelera- Accordingly, the absence of an insolvency requirement allows enti- tion, on the earlier of such dates. ties to enter chapter 11 before facing a financially hopeless situation. The Section 502(b)(6) cap should be a relatively simple calculation. Nevertheless, to safeguard the integrity of the purpose of chap- First, the court calculates the total rent reserved4 under the lease from ter 11, courts have created a good faith doctrine.11 If a chapter 11 the earlier of the date of the tenant’s bankruptcy filing or the date on bankruptcy petition is not filed in good faith, a bankruptcy court may which the landlord repossessed or the lessee surrendered the leased prop- dismiss the petition “for cause” or convert the chapter 11 case to a erty. Second, the court calculates 15 percent of the total due under the chapter 7 liquidation case pursuant to Bankruptcy Code Section lease. Third, the court compares this 15 percent amount to the rent 1112(b).12 The good faith determination is made on a case-by-case reserved under the lease for one year following the earlier of the basis that focuses on the totality of the circumstances and involves bankruptcy filing or repossession or surrender of the leased property. a fact-intensive inquiry.13 The cap is the greater of the two, subject to the 15 percent amount In examining the question of good faith, courts generally address not exceeding the amount of three years of rent. For example, in a sce- two primary areas: 1) whether the bankruptcy petition serves a legit- nario in which the debtor is current on all lease payments and has five years remaining, and the rent reserved under the lease is $100,000 per David S. Kupetz is a partner in Sulmeyer Kupetz, a Los Angeles and Menlo Park month, the total amount of future rent is $6 million, of which 15 per- firm. He specializes in crisis avoidance consultation, troubled transactions, cent is $900,000. The rent reserved for one year is $1.2 million, so the workouts, debt restructurings, business reorganizations, bankruptcies, cap is $1.2 million. If instead of five years there are 10 years remain- receiverships, assignments for the benefit of creditors, and other insolvency ing under the same lease, the total amount of future rent is $12 mil- matters.

18 Los Angeles Lawyer April 2005 imate bankruptcy purpose, such as preserv- proceedings will maximize the value of the claimed to have been insolvent, although this ing a going concern (along with employees’ debtor’s estate for creditors, and solely to depended on whether claims of insiders were jobs) by avoiding the piecemeal liquidation of take advantage of a provision in the allowed. The Third Circuit in PPI held that a the enterprise or otherwise maximizing the Bankruptcy Code that limits claims on long- chapter 11 petition and liquidating chapter 11 value of the debtor’s estate, and 2) whether term leases….”19 The debtor had $105.4 mil- plan filed for the primary purpose of capping the petition was filed simply to create delay, lion in cash and $1.5 million in other assets a landlord’s lease termination damages claim harass or impose hardship on creditors, or at the time it filed its chapter 11 petition. did not contravene the good faith require- otherwise obtain a tactical advantage in liti- The landlord asserted a claim of approxi- ment. In its Integrated Telecom Express deci- gation.14 The Third Circuit Court of Appeals mately $26 million. The debtor listed other sion, the Third Circuit stated that “PPI stands has explained the development of the judi- miscellaneous liabilities of approximately for the proposition that an insolvent debtor cially created good faith requirement: $430,000 and had exposure in connection can file chapter 11 in order to maximize the It is easy to see why courts have with a class action lawsuit of up to $5 million value of its sole asset to satisfy its creditors required Chapter 11 petitioners to act (any liability in excess of that amount was while at the same time availing itself of the within the scope of the bankruptcy covered by insurance). Thus, the debtor was landlord cap under §502(b)(6).”24 laws to further a valid reorganizational not suffering financial distress and was highly Also, in Integrated Telecom Express the purpose. Chapter 11 vests petitioners solvent and cash rich at the time it filed a Third Circuit distinguished Sylmar Plaza as a with considerable power—the auto- chapter 11 petition. Applying the Section case in which solvency was at issue and chap- matic stay, the exclusive right to pro- 502(b)(6) cap, the landlord’s claim would be ter 11 was used to maximize value for cred- pose a reorganization plan, the dis- reduced from $26 million to $4.3 million, and itors. The appeals court stated that “although charge of debts, etc.,—that can impose the shareholders of the debtor would enjoy the the debtors appear to have come out solvent significant hardship on particular cred- benefit of this reduction. In addition, the case in Sylmar Plaza, there is no indication that itors. When financially troubled peti- involved a smoking gun—a board resolution they would have come out solvent had the tioners seek a chance to remain in and letter of counsel composed prior to the bank’s claim not been limited, or that solven- business, the exercise of those powers bankruptcy filing stating that, if the land- cy was a foregone conclusion when the peti- is justified. But this is not so when a lord was unwilling to settle, the debtor would tion was filed.”25 petitioner’s aims lie outside those of the file a chapter 11 petition and cap the land- Although Sylmar Plaza did not involve Bankruptcy Code.15 lord’s claim under Section 502(b)(6). Section 502(b)(6), the Ninth Circuit in that The majority of chapter 11 debtors are The Third Circuit found that the chapter case addressed a plan in which the sole pur- insolvent and, in those cases, the good faith 11 petition was not filed in good faith since the pose was to enable the debtors to “cure and doctrine is generally not implicated. In con- debtor was not in financial distress, and the fil- reinstate” an obligation under Bankruptcy trast, when the debtor is solvent and files a ing would not preserve any value for the Code Section 1124(2). In so doing, the debtor chapter 11 petition in order to use Section debtor’s creditors that would have been lost avoided an approximately $1 million con- 502(b)(6) to cap its sole landlord’s claim, absent the filing. According to the appeals tractual liability for default interest owed to thereby enhancing the recovery of the debtor’s court: the debtor’s secured creditor bank. The Ninth shareholders (as opposed to its creditors), To be filed in good faith, a petitioner Circuit rejected the bank’s argument that a courts have struggled with the application must do more than merely invoke some chapter 11 plan lacked good faith when it left of the good faith doctrine. In chapter 11 distributional mechanism in the the debtors solvent while allowing them to cases involving multiple leases, the issue is less Bankruptcy Code. It must seek to cre- reverse and avoid paying default interest to likely to arise since these cases will involve ate or preserve some value that would the bank, stating that “[g]iven the specific more than just a two-party dispute, and there otherwise be lost—not merely distrib- power to cure defaults, it makes no sense to is a greater likelihood of more complicated uted to a different stakeholder—out- treat a plan invoking that power as lacking financial issues and problems. side of bankruptcy. This threshold good faith.”26 inquiry is particularly sensitive where, The Northern District bankruptcy court’s Recent Case Law as here, the petition seeks to distribute finding in Liberate Technologies27 that fil- Prior to 2004, courts examining whether the value directly from a creditor to a coming bankruptcy solely to use Section 502(b)(6) commencement of a bankruptcy case for the pany’s shareholders.20 did not constitute the requisite good faith purpose of using a particular provision in the The Third Circuit determined that the emerged from a situation in which the debtor Bankruptcy Code constituted bad faith found question of good faith was antecedent to the had ongoing business operations that were that, absent other factors, it did not.16 Against application of Section 502(b)(6), stating: suffering significant losses and faced several that backdrop, it is important to understand “§502(b)(6) and the legislative policy under- pending lawsuits. However, the debtor had the reasoning of Integrated Telecom Express17 lying that provision assume the existence of $212 million of unrestricted cash on hand and Liberate Technologies,18 in which the a valid bankruptcy, which, in turn, assumes and had total liabilities between approximately Third Circuit Court of Appeals and a a debtor in financial distress.”21 Finding that $59 million and $167 million, depending upon Northern District of California bankruptcy the petition was not filed in good faith, the the outcome of the pending litigation. court, respectively, held that filing chapter 11 Third Circuit dismissed it. Accordingly, the debtor’s cash exceeded its solely to use Section 502(b)(6) to cap a single The Third Circuit distinguished Integrated liabilities by between $45 million and $153 landlord’s lease termination damage claim Telecom Express from its earlier decision in million. Further, the debtor had received an does not, by itself, establish good faith. Solow v. PPI Enterprises (U.S.), Inc. (In re PPI offer from an entity willing to purchase the In Integrated Telecom Express, the Third Enterprises (U.S.), Inc.)22 and from the Ninth debtor’s business assets without a bankruptcy Circuit addressed a situation in which “a Circuit’s decision in Platinum Capital, Inc. v. filing. Chapter 11 petition [was] filed by a financially Sylmar Plaza, L.P. (In re Sylmar Plaza, L.P.)23 Facing a motion to dismiss the chapter 11 healthy debtor, with no intention of reorgan- on the grounds that the debtors in those cases petition as a bad faith filing, the debtor izing or liquidating as a going concern, with were in financial distress and may actually asserted that it needed bankruptcy relief no reasonable expectation that Chapter 11 have been insolvent. In PPI, the debtor because of pending litigation, operational

Los Angeles Lawyer April 2005 19 losses, its desire to cap its landlord’s lease ter- were approximately three years remaining had been filed under chapter 7 of the mination damage claim, and problems in before the lease would expire, and the debtor Bankruptcy Code, the landlord’s claim would selling its assets. The bankruptcy court did not want to continue paying the landlord be capped—because bad faith does not con- rejected each of these reasons. The court the monthly rent through the expiration date stitute cause to dismiss a chapter 7 case—and found that the pending litigation did not despite the fact that it had adequate funds to the fact that the debtor was solvent and filed create a present need for bankruptcy relief do so. In its decision, the bankruptcy court under chapter 11 should not change that because 1) it did not threaten the continua- summarized applicable California landlord- result. tion of the debtor’s business, 2) the debtor tenant law: Chameleon Systems suggests that, when a might never incur significant liabilities from Under California law…[the landlord] debtor is liquidating its assets, a potential the lawsuits, and 3) the debtor could pay had the option of accepting the sur- means for completely avoiding the good faith any judgments without liquidating business render of the property and then hav- issue would be for the debtor to file under assets. The court further found that the ing the state court fix the damages for chapter 7 instead of chapter 11. Section debtor’s lack of profitability and the prospect the breach of the lease. This would 502(b) is not tethered to chapter 11. It applies of further losses did not show a present need have adjudicated the total damages equally to chapter 7 cases. The problem, for bankruptcy relief when the debtor had the suffered by…[the landlord] as a result however, is that entities other than individu- present ability to pay all its debts without of the breach of the lease. Rather than als do not receive a discharge in chapter 7 or liquidating business assets. Moreover, the pursue this course of action…[the land- liquidating chapter 11 cases.32 Moreover, debtor’s own evidence showed that the debtor lord] elected its other option, to con- according to one bankruptcy court and did not need chapter 11 protection to effect tinue to consider…[the debtor] its ten- echoed by others, “the Bankruptcy Code sim- a sale of its assets as a going concern, accord- ant and to seek to collect rent on a ply does not contemplate that equity security ing to the court. Also, the court noted that monthly basis…[for approximately holders will share in the distribution of the allowing the chapter 11 case to proceed another three years].29 estate in cases under Chapter 7—any sur- would impose real hardship on the debtor’s After filing its chapter 11 petition, the plus is to be distributed to the debtor.”33 landlord since the debtor sought to reduce the debtor filed a motion seeking to reject the In Liberate Technologies, the court amount of the landlord’s claim from $45 lease and cap the landlord’s claim at $1.816 explained that “Section 502(b)(6) limits dis- million due under state law to the capped million. The landlord responded by filing a tributions in the bankruptcy case; it does not sum of $8 million allowed under Section motion requesting that the bankruptcy court preclude enforcement of the liability outside 502(b)(6). In dismissing the chapter 11 case, dismiss the case as a bad faith filing. While of bankruptcy where there is no discharge.”34 the court found that the debtor’s proposed recognizing that reorganization of an ongo- As a result, in a case in which the debtor does use of Section 502(b)(6) was simply a neu- ing business or the liquidation of assets are not obtain a discharge, capping a landlord’s tral factor that did not establish either good valid purposes for filing chapter 11, the claim in the bankruptcy estate under Section faith or bad faith. Chameleon Systems court noted that, in this 502(b)(6) may not prevent the landlord, after case, there was no ongoing business, and the all creditors have been paid in full, from seek- Chameleon Systems and Chapter 7 liquidation of assets had been completed ing its share of surplus funds returned to the By contrast, in In re Chameleon Systems, prior to the filing of the chapter 11 petition. debtor. This result might be avoided, even in Inc.,28 an earlier decision, another Northern The court focused on whether the debtor’s fil- a liquidating chapter 11 case, if the debtor suf- District bankruptcy court held that a solvent ing was a legitimate use of the Bankruptcy ficiently continues in business under its plan debtor could use chapter 11 to cap lease Code or whether the debtor was attempting in order to obtain a discharge.35 damages. The debtor in that case filed its to unreasonably deter and harass creditors Another problem with the chapter 7 chapter 11 petition for the purpose of reject- simply as a litigation tactic.30 The court approach is that, unlike chapter 11, an inde- ing its sole real estate lease and then cap- acknowledged that: pendent trustee is automatically appointed to ping the landlord’s lease termination damage [T]he resolution of this dispute involves marshal and distribute the debtor’s assets, claim under Section 502(b)(6). The debtor had a possible windfall no matter what and this may not appeal to the board of dir- no ongoing operations, no income, and no the decision. If the court decides in ectors of a debtor of questionable solvency if employees other than a consultant it had favor of the debtor and allows the millions of dollars of cash remain on hand. hired to wind down its affairs, liquidate its bankruptcy to continue the claim will However, chapter 7 is an option that should assets, and settle various obligations owed to be capped and it appears that addi- influence the negotiations between the parties. creditors. The debtor had in excess of $4 tional funds will flow to shareholders A better understanding of the alternatives million in its bank accounts and, other than of the debtor. On the other hand if the might even help the parties avoid any sort of its $4 million-plus obligation to its landlord, case proceeds under California law, excursion into bankruptcy jurisdiction. the debtor’s total outstanding obligations the debtor is presented with a Hobson’s The common thread that runs through amounted to approximately $25,000. Unlike choice. Chameleon must stay in exis- the case law is that the question of good faith Integrated Telecom Express and Liberate tence for another two or three years, or is based on the totality of the circumstances. Technologies, the debtor would have been pay…[the landlord] now whatever it This requires a fact-intensive inquiry on a insolvent if the landlord’s claim was not demands to terminate the lease regard- case-by-case basis. In situations in which 1) capped. However, if the Section 502(b)(6) less of what might happen in terms of a petition is filed solely as a litigation tactic cap were to be applied, the debtor would mitigation later in 2004, 2005 or 2006. in a two-party dispute or 2) the sole intent of have cash substantially in excess of the amount In the latter case, if the property is a solvent debtor that is not suffering from of its debt. rented in the next 2 years for any financial distress is to avail itself of the Section Prior to filing its chapter 11 petition, the amount the landlord will receive a 502(b)(6) cap, the recent decisions suggest debtor attempted to surrender possession of windfall and the debtor will not be in that the court may find the requisite good faith the premises to the landlord and to negotiate existence to complain. Either way there lacking. Accordingly, counsel should advise a termination of the lease, but the parties is the possibility of a windfall.31 debtors to find other bona fide reasons for fil- were not able to reach an agreement. There Ultimately, the court found that if the case ing a chapter 11 petition and to continue to

20 Los Angeles Lawyer April 2005 engage in business pursuant to a chapter 11 plan in order to obtain a discharge. ■ Sick of the Stock Market Roller Coaster?

1 In re Integrated Telecom Express, Inc., 384 F. 3d 108 Invest in Safe 1st Trust Deeds at 10% to 11% Yields (3d Cir. 2004). Investments from $200K to $300K 2 In re Liberate Techs., 314 B.R. 206 (Bankr. N.D. Cal. 60% to 70% Loan to Value 2004). 3 See Solow v. PPI Enters. (U.S.) Inc. (In re PPI Enters. • Profesional Borrowers (U.S.), Inc.), 324 F. 3d 197, 207 (3d Cir. 2003); In re • 1 to 4 Residential Properties Klein Sleep Prods., Inc., 78 F. 3d 18, 28 (2d Cir. 1996). • In Business Since 1977 4 For a charge to constitute “rent reserved,” three requirements must be met. The charge must be 1) designated as “rent” or “additional rent” in the lease or pro- Call 562.439.3344 vided as the tenant’s/lessee’s obligation in the lease, 2) related to the value of the property or the lease, and 3) must be properly classiﬁable as rent because it is ﬁxed, WOODY FINANCIAL REALTY Ask for Dave Woody DRE License #01154109 regular, or periodic. In re McSheridan, 184 B.R. 91, 99- • 100 (Bankr. 9th Cir. 1995). 5 See Integrated Telecom Express, 384 F. 3d at 121 (citing In re SGL Carbon Corp., 200 F. 3d 154, 163-64 Quo Jure Corporation 1-800-843-0660 (3d Cir. 1999)). www.quojure.com 6 In re Marshall, 300 B.R. 507, 510 (Bankr. C.D. Cal. 2003) (citing Platinum Capital, Inc. v. Sylmar Plaza, L.P. LAWYERS’ WRITING & RESEARCH [email protected] (In re Sylmar Plaza, L.P.), 314 F. 3d 1070, 1074-75 (9th Cir. 2002); In re James Wilson Assocs., 965 F. 2d 160, 170 (7th Cir. 1992)). When you can’t do it yourself, but you still need a brief or 7 Integrated Telecom Express, 384 F. 3d at 121-22; see memo done—and done well, by experienced attorneys who also Liberate Techs., 314 B.R. at 211 (citing SGL are skilled writers—turn to Quo Jure Corporation. Carbon Corp., 200 F. 3d at 163). 8 See Marshall, 300 B.R. at 512-13; Integrated Telecom Quo Jure provides premium legal writing and research services Express, 384 F. 3d at 122. to practicing attorneys. Our work has contributed to million- 9 Marshall, 300 B.R. at 512. dollar settlements and judgments. Oppositions to motions for 10 Id. at 513. 11 summary judgment are our specialty. Call for a free analysis See Liberate Techs., 314 B.R. at 211 (citing In re TM The Winning Edge Marsch, 36 F. 3d 825, 828 (9th Cir. 1994)). and estimate. 12 See Integrated Telecom Express, 384 F. 3d at 118 (citing SGL Carbon Corp., 200 F. 3d at 159-62; Solow v. PPI Enters. (U.S.), Inc. (In re PPI Enters. (U.S.), Inc.), 324 F. 3d 197, 211 (3d Cir. 2003)). 13 See Platinum Capital, Inc. v. Sylmar Plaza, L.P. (In re Sylmar Plaza, L.P.), 314 F. 3d 1070, 1074-75 (9th Cir. 2002); Integrated Telecom Express, 384 F. 3d at 118. 14 See Marsch, 36 F. 3d at 828. 15 SGL Carbon Corp., 200 F. 3d at 165-66. 16 Sylmar Plaza, 314 F. 3d at 1075; PPI, 324 F. 3d at 211- 12; Integrated Telecom Express, 384 F. 3d at 128; In re Chameleon Sys., Inc., 306 B.R. 666, 669-71 (Bankr. N.D. Cal. 2004); Liberate Techs., 314 B.R. at 215. 17 Integrated Telecom Express, 384 F. 3d 108. 18 Liberate Techs., 314 B.R. 206. 19 Integrated Telecom Express, 384 F. 3d at 112. 20 Id. at 129. 21 Id. at 128. 22 Solow v. PPI Enters. (U.S.), Inc. (In re PPI Enters. (U.S.), Inc.), 324 F. 3d 197 (3d Cir. 2003). 23 Platinum Capital, Inc. v. Sylmar Plaza, L.P. (In re Sylmar Plaza, L.P.), 314 F. 3d 1070 (9th Cir. 2002). 24 Integrated Telecom Express, 384 F. 3d at 123 (emphasis added). 25 Id. at 123. 26 Sylmar Plaza, 314 F. 3d at 1075. 27 In re Liberate Techs., 314 B.R. 206 (Bankr. N.D. Cal. 2004). 28 In re Chameleon Sys., Inc., 306 B.R. 666 (Bankr. N.D. Cal. 2004). 29 Id. at 669. 30 Id. at 670-71. 31 Id. at 671. 32 See 11 U.S.C. §§727(a)(1), 1141(d)(3). 33 In re Rimsat, Ltd., 229 B.R. 910, 913 (Bankr. N.D. Ind. 1998); see also Georgian Villa, Inc. v. United States (In re Georgian Villa, Inc.), 55 F. 3d 1561, 1563 (11th Cir. 1995), and 11 U.S.C. §726(a)(6).34 In re Liberate Techs., 314 B.R. at 218 n.9. 35 See 11 U.S.C. §1141(d)(3).

Los Angeles Lawyer April 2005 21 CLASS To ward off objectors, class counsel may solicit the guidance of judges and mediators in the settlement process

by Brad W. Seiling WARS

funny thing hap- the class’s recovery, even though those claims Janik poses for class action settlements, it is pened to a law were not part of the trial court’s certifica- useful to understand how the court of appeal firm on the way to tion order. Janik appears to be the first could conclude that seemingly successful class collecting a $90 reported California decision recognizing that counsel potentially breached their duties to the million judgment class counsel can be liable in malpractice class. The underlying litigation in Janik was in favor of its cli- based on its successful representation of a cer- one of the seminal cases in the area of wage ents. One of the tified class. The duties articulated in Janik and hour law in California. The case involved clients—a member extend beyond actions for legal malpractice a class action against Farmers Insurance on of a certified class and potentially raise a new obstacle to class behalf of more than 2,400 claims adjusters to of more than 2,000 insurance claims settlements. recover nonpayment of overtime wages. The Aadjusters—sued the attorneys for malpractice. Class settlements are often criticized and complaint, which was filed in 1996, asserted The California Court of Appeal has allowed challenged as collusive deals between greedy a single cause of action under the Labor the claim to proceed as a second putative class counsel out to line their pockets and Code. In 1998, the trial court certified a class class action. This recent appellate decision unscrupulous defendants trying to buy an of all claims adjusters who worked for raises some obvious questions. Where could inexpensive resolution of claims alleging seri- Farmers from October 1, 1993 (three years these attorneys possibly have gone wrong? ous injury to consumers. The sweeping ratio- prior to the filing of the complaint), to the date When is a $90 million judgment not enough? nale announced in Janik would apply equally of trial. The court of appeal’s answers to these ques- to class counsel that settle class claims, even After notice was sent and class members tions have wide-ranging significance in class if they achieve substantial benefits for the were given the opportunity to opt out of the action litigation. class. Dissatisfied class members (and the In Janik v. Rudy, Axelrod & Zieff,1 the counsel who represent them) now may attack Brad W. Seiling is a partner in Manatt, Phelps & court of appeal held that class counsel owed class counsel for breaching duties to a set- Phillips and is cochair of the firm’s Unfair Comp- its clients (members of the class in the under- tlement class by selling out the class’s claims etition Practice Group. He specializes in the defense lying litigation) a duty to consider and assert too cheaply. of class action lawsuits and lawsuits brought under the Unfair Competition Law. KEN SUSYNSKI additional claims that could have increased Before examining the conundrum that

Los Angeles Lawyer April 2005 23 class, class counsel successfully moved for exclusive forum to challenge the adequacy of issue presented in Ferguson was whether a summary adjudication on the ground that class counsel’s representation. The initial stipulated dismissal of punitive damages alle- the members of the class were not exempt determination of whether counsel were ade- gations as part of an $80 million class set- from overtime regulations. This favorable quate to represent the class—a prerequisite to tlement constituted malpractice. The supreme ruling was affirmed on appeal.2 any certification order—was very different court held that lost punitive damages were not A jury then awarded the class approxi- from the determination of whether class coun- recoverable as compensatory damages in a mately $90 million in unpaid overtime wages, sel actually adequately represented the class legal malpractice action, but the court did not and that judgment was affirmed on appeal.3 throughout the litigation. The trial court in analyze the scope of class counsel’s duty to Class counsel had won a substantial award for the underlying class action never considered members of the class. Janik expressly states the class and in the process had made new law whether class counsel had adequate reason to what may have been implied in Ferguson— in the area of wage and hour class actions. forego asserting a UCL claim.6 class counsel can be held liable for failing to These results would not seem to support a There were many good reasons why the pursue claims on behalf of a class. malpractice case, but that is exactly what attorneys chose not to risk asserting a UCL In addition to recognizing new potential happened next. claim after obtaining favorable rulings on liability for class counsel, Janik also has After the trial, a second putative class certification and summary adjudication on lia- potentially broad implications for class action filed a malpractice suit alleging that class bility. When counsel filed their original com- settlements. Commentators and courts have counsel breached their duties to the class by plaint in 1996, it was not clear whether back expressed concerns that class action settle- failing to assert a claim under California’s wages were recoverable as restitution under ments offer an opportunity for attorneys to Unfair Competition Law, codified at Business the UCL. Cortez v. Purolator Air Filtration generate fees without any effective monitor- and Professions Code Section 17200 et seq., Products Company,7 the California Supreme ing by class members, particularly when the which carries a four-year statute of limitations Court’s decision recognizing that unpaid settlement has been reached prior to class period—one year longer than the limitations wages could be recovered as an item of resti- certification.12 period under the Labor Code. By not amend- tution under the UCL, was decided in 2000, There also is concern that defendants may ing the complaint to assert a UCL claim, after the trial court had certified the class in use the settlements to buy their way out of class counsel allegedly deprived the class of the underlying litigation. Class counsel did not serious situations in a relatively nominal way millions of dollars of additional unpaid wages. believe that it was even possible to amend the or to structure settlements to achieve a The trial court sustained the attorneys’ complaint to assert a claim recognized by “tremendous sales bonanza” for themselves demurrer without leave to amend and dis- the Cortez decision, and counsel certainly while providing little relief to the settlement missed the malpractice action. The demurrer would not have wanted to risk reopening class.13 This criticism applies particularly to contended that the trial court’s certification the issue of certification or to otherwise jeop- coupon settlements, which require class mem- order in the underlying litigation proscribed ardize their favorable rulings on the merits.8 bers to redeem coupons for the defendant’s the bounds of any duty the attorneys owed to Notwithstanding the “sound strategic rea- products in order to realize the benefits of the the class, and unnamed class members had no sons for not seeking to amend the complaint settlement. right to demand that class counsel assert after the Supreme Court decided Cortez,” A new legal subspecialty has developed in additional claims.4 the Janik court held that whether such tacti- recent years: lawyers who make a living rep- The court of appeal reversed, finding that cal decisions amount to a breach of a class resenting class members who challenge the the plaintiff had stated claims for negligence counsel’s duties to the class presents a ques- settlements of their class actions.14 These and breach of fiduciary duty. The court tion of fact that could not be resolved on attorneys insist on modifications to settle- rejected the attorneys’ argument that their demurrer.9 ment terms as well as fees for themselves in duty to the class was limited to competently exchange for their clients’ decision to drop prosecuting the claims that the court certified. Sweeping New Duty their objections to final approval of the set- Class counsel, like all attorneys, have a duty The court’s rationale confirms the central tlement. Clearly, “objecting has become big to at least consider and advise their clients of role that the UCL plays in consumer litigation. business.”15 related matters that could be pursued to UCL claims are common in consumer class Dealing with these objections can be avoid prejudice to the client: action cases, even if the comparatively limited extremely costly, particularly if the trial court In the context of a class action, both remedies available under the UCL (particu- permits discovery into the settlement process the representative plaintiffs and the larly the limited monetary remedies in light and the terms of the settlement.16 Litigating absent class members similarly are of recent California Supreme Court rulings) challenges to settlements delays finality for entitled to assume their attorneys will mean that a UCL claim adds little to a class’s defendants and usually puts a hold on any consider and bring to the attention of potential recovery. That a plaintiff can take award for attorney’s fees. For that reason, at least the class representatives addi- advantage of the four-year statute of limita- defense counsel and class counsel regard tional or greater claims that may exist tions under the UCL in itself would justify objectors and their lawyers as expensive nui- arising out of the circumstances under- asserting a UCL claim in almost every con- sances who threaten to derail settlements lying the certified claims that class sumer case. Indeed, in light of Janik, plaintiff’s that required countless hours to achieve. members will be unable to raise if not lawyers act at their peril if they do not allege In their defense, settlement objectors often asserted in the pending action. The a UCL claim in a class action lawsuit. achieve beneficial modifications to class set- class members are entitled to assume Underscoring the importance of the UCL is tlements or derail settlements that courts ulti- their attorneys are attempting to max- nothing new.10 mately concluded were not in the interests of imize their recovery for the conduct What is new is the sweeping new duty that the class.17 In these cases, the objectors raise they are challenging and that they are the court of appeal imposed on class counsel. issues that may not otherwise have been pre- not, without good reason, failing to The California Supreme Court previously sented to or considered by the trial court in rul- assert those claims that will do so.5 had considered a malpractice case against ing on a stipulated application for settlement The court of appeal also rejected the argu- class counsel in Ferguson v. Lief, Cabraser, approval.18 Regardless of how one regards set- ment that the class action litigation was the Heiman & Bernstein LLP.11 However, the tlement objectors, they are here to stay.

24 Los Angeles Lawyer April 2005 Janik provides a new angle for attorneys the parties submitted the matter to a respected is often very difficult for defendants. Clients seeking to challenge class action settlements. independent mediator in itself is frequently want to know the bottom line, and in class An argument that a proposed settlement is not cited as a factor in favor of approving class action settlements, the plaintiffs’ attorney’s fair and reasonable to the settlement class settlements.22 fees award forms one of the most significant would support a malpractice claim against Negotiate fees after substantive terms. components of the bottom line. Both sides class counsel as well as a direct challenge to Whether the parties negotiate the settlement may be reluctant to engage in protracted set- the settlement. There is no reason to think that between themselves or retain a mediator, the tlement discussions without addressing a future class members—and the counsel who substantive terms of the settlement—class material term. But rushing to deal with fees represent them—will not use Janik’s rationale definition, form and content of class notice, first or tying an agreement to substantive to challenge class settlements. consideration to the class members, proce- terms to a particular fee award may expose the settlement to chal- Protecting Class lenge (or at a mini- Settlements from mum, close scrutiny by Attack the trial court). There are many ways for Submitting the counsel to protect class question of fees to the settlements from collat- trial court eliminates eral attack. Of course, any argument regard- no single step—or even a ing collusion. While the combination of steps— taint of collusion evap- will insulate a settlement orates, plaintiffs’ coun- from collateral attack or sel and defense counsel ensure its approval. often are unwilling to Ultimately, whether a set- place this important tlement survives and issue entirely in the class counsel can avoid hands of a neutral third malpractice liability party. In a settlement, depends on the fairness defendants can cap of the settlement to the their exposure for fees, class.19 Class members but they have no such will have no basis to assurances if they allow complain if the settle- the trial court to decide ment is fair and has not the issue entirely. caused the relinquish- Conversely, class coun- ment of any substantial sel may prefer the cer- legal rights without ade- tainty of knowing that quate justification. The the defendant will not following are effective oppose its fee request ways to enhance the to having to litigate its chances of defeating any entitlement to fees. attack on a class action There are ways to settlement. reduce the risks to both Use a mediator. Using a sides of submitting the mediator to oversee set- fee issue to a third party tlement negotiations adds for resolution. For a layer of protection for the interests of class dures for redeeming consideration, and example, a baseball-style arbitration proce- members and thus undercuts a claim that injunctive relief (for example, requiring dure may be appropriate. In this procedure, the settlement was collusive. The trial judge changes in the defendant’s business prac- each side presents one number for consider- may feel more comfortable approving a set- tices)—should be the first order of business. ation, and the judge or arbitrator must select tlement that has been mediated before a neu- The issue of attorney’s fees should not be one of the two numbers. Alternatively, each tral third party, particularly if the mediator is placed on the table until after the substantive side could propose a number that forms the one whom the trial judge knows and respects. terms have been resolved. range between which the fee award will fall. Courts have cited the parties’ use of a medi- Attorney’s fees often are one of the most If the trial court is unwilling to resolve these ator as a factor in finding that a class settle- controversial components of a class settle- issues, the matter could be referred to a third ment was fair, reasonable, and not collusive.20 ment, and a substantial stipulated fee award party for determination. Regardless of the There are limits to how much mileage the can provide a tempting target for settlement procedure, placing the issue of fees into the parties can get from using a mediator. objectors or malpractice plaintiffs attacking hands of a third party makes it much more Declarations from the mediator describing the the settlement as a sellout of the class by difficult for an objector or malpractice plain- mediation process or opining on the fairness class counsel. The mediator’s presence can tiff to sell the argument that class counsel of the settlement may not be admissible in any undercut these arguments and underscore breached duties to the class in favor of their subsequent proceedings.21 Indeed, the medi- the adversarial nature of the settlement own fees. ator may not even be willing to provide such process. Don’t skimp on class notice. Preparing a a declaration. Even without a statement of Waiting to negotiate class counsel’s fees comprehensive class notice can also protect support from the mediator, the mere fact that until the substantive terms have been resolved the settlement and class counsel from collat-

Los Angeles Lawyer April 2005 25 eral attack. Here is where defense counsel can attorneys may seek guidance from the findings generally recite the requirements for be helpful. Many defendants try to cut cor- court.”28 There is absolutely no reason not to settlement approval without delving into spe- ners on class notice to save potentially sub- heed that advice. cific issues. That is perfectly understandable stantial costs.23 Other defendants hope to Parties should inform the trial court of because most class settlement approval hear- minimize the response rate and thus reduce their settlement negotiations and the para- ings proceed without opposition or objec- the ultimate payout. These are short-sighted meters of the settlement terms they are con- tion. Those general findings may not, how- concerns that could threaten the settlement. sidering. This approach brings the trial court ever, satisfy a subsequent court faced with a The notice is often the first and only time into the settlement process—even if the trial malpractice action against class counsel. the class receives any information about the judge is not actually mediating the case— For that reason, class counsel should put case or the settlement. Courts have adopted and may enhance the likelihood of approval. themselves in the shoes of an objector or flexible standards for determining whether The judge may even spot issues that could pre- potential malpractice plaintiff and consider class notice is adequate. In general, notice sent problems when the settlement is ready for what aspects of the settlement might raise con- must be given in a manner that has “a rea- approval. cerns in a subsequent collateral attack. Those sonable chance of reaching a substantial per- Some trial judges may be reluctant to issues should be presented to the trial court centage of the class members.”24 The notice offer what might be regarded as advisory in the settlement approval papers and at the should be as broad as possible to avoid sub- rulings on matters that are not properly before preliminary and final settlement approval sequent charges that the class did not receive them on a noticed motion or other recognized hearings. Draft final approval orders also adequate notice of the rights they were relin- procedure. The federal Manual for Complex should include specific findings on these issues. quishing. The notice should be sent in a way Litigation suggests that on occasion “a judge Encourage objectors to speak now or forever that is most likely to reach members of the set- might retain a special master or a magistrate hold their peace. Potential objectors often con- tlement class. judge to examine issues regarding the value tact counsel to raise their concerns with a pro- Personal notice, if practicable, is always of nonmonetary benefits to the class and their posed settlement before filing formal objec- the best form of notice—both to satisfy due fairness, reasonableness and adequacy,”29 tions. It may be tempting for the proponents process concerns and to insulate the settlement although such appointments are rare.30 of a class settlement to ignore these objectors from collateral attack. Posting the notice on Trial courts are supposed to act as “fidu- and hope they simply go away. The better a company’s Web site or publishing the notice ciaries” of absent class members.31 Disclosing course is to insist that any objector submit for- in newspapers or magazines have been rec- the reasons why counsel seeks guidance from mal objections to the trial court and appear ognized as valid means of notice and may con- the court and appealing to the court’s unique at the final approval hearing. tribute to insulating a settlement from col- role as protector of the interests of absent class Res judicata and collateral estoppel prin- lateral attack.25 members may dispel some of the reluctance ciples apply to judgments in class action The contents of the notice are also impor- of courts to get involved. Citing Janik also cases,33 including judgments that result from tant in avoiding subsequent challenges. may be compelling. Concerns about the trial class actions settlements.34 Objectors who “[N]otice given to class members must fairly court’s willingness to provide settlement guid- have appeared and had their concerns con- apprise members of the terms of the pro- ance should not, however, dissuade counsel sidered and addressed by the trial court in the posed compromise and of the options open from making the inquiry. Counsel who refrain underlying class action case will have a dif- to dissenting class members.”26 All class from asking for the trial judge’s help may ficult time relitigating the same issues in a sub- notices briefly describe the nature of the never know what the judge is thinking until sequent malpractice case.35 Indeed, the find- action and the settlement terms. In light of it is too late. ings against them should serve as collateral Janik, settlement notices also should describe Request detailed findings from the trial court. estoppel and bar relitigation of those same any claims that are not being pursued or that Counsel should request specific findings from objections in a subsequent action.36 the class could pursue but for the settlement. the trial court concerning the fairness of the If possible, the notice should set forth the settlement, the adequacy of class counsel’s rep- Malpractice and Other Concerns reasons why these claims are not being pur- resentation, the lack of collusion in the set- The appropriate response to a malpractice sued. Providing this detail will make any tlement process, and the decision not to pur- action filed before final approval of a class set- challenge to the settlement more difficult sue certain claims or forms of relief in tlement is to seek an immediate stay or dis- because class members will have been advised exchange for the settlement. These findings missal of that action on the basis of another of the rights and claims that they relinquished could be used in a subsequent action as col- action pending. While such a contempora- under the settlement. lateral estoppel. Indeed, the Janik court sug- neously filed malpractice action likely is pre- Involve the trial court in the process. Trial gested that such rulings could serve as a com- mature, the case will ripen once judgment is courts—particularly judges in the complex plete defense to a subsequent malpractice entered approving the settlement. The trial civil departments throughout the state—take action: “If the issue on which the malpractice court in the malpractice action should be an active role in class litigation to protect complaint is based has been considered and apprised that counsel appears to be engaged the rights of absent class members. Court determined in the class action proceedings, the in forum shopping and should be forced to lit- oversight of settlements protects class mem- rulings of the class action court will be bind- igate the concerns in the context of settlement bers “whose rights may not have been given ing on the members of the class and preclude approval. due regard by the negotiating parties.”27 This reconsideration of those matters in another Most class settlements provide that the action by the court may provide an early line forum.”32 trial court will retain jurisdiction over enforce- of defense to any collateral attack on a class Of course, asserting this defense assumes ment of the settlement. In light of Janik, pro- settlement. In fact, the Janik court encouraged that the class action court made the requisite ponents of a class settlement should ask the class counsel to enlist the trial court to resolve findings. Existing class action procedures— trial court to retain jurisdiction over collat- questions about the scope of its duties to the both at the certification stage and the settle- eral challenges to matters related to the set- class: “If class counsel has any question con- ment stage—require courts to examine the tlement. That would provide a basis to trans- cerning the course that is required by the adequacy of class counsel’s representation of fer any subsequent malpractice case to the duty it owes to absent class members, the the class. More often than not, the trial court’s same judge who approved the settlement in

26 Los Angeles Lawyer April 2005 the first place. The judge who found that class counsel adequately represented a settlement class and approved the settlement may be much less inclined to allow a malpractice action to proceed than a judge considering the matter for the first time. Janik is not merely a problem for the plaintiffs’ bar. It is undoubtedly tempting for the defense bar to savor a case that exposes their adversaries to lawsuits by disgruntled clients. This may seem to be a welcome pay- back for all of the times defense counsel has had to deal with disgruntled clients com- plaining about the costs of class action litigation and settlements. Nonetheless, this view is shortsighted. Any vehicle that opens the door to challenges to class action settlements ultimately will affect defense counsel and the clients they represent in class action settlements. Anita Rae Shapiro Another unintended impact of Janik may SUPERIOR COURT COMMISSIONER, RET. be to increase class settlement demands. RIVATE ISPUTE ESOLUTION Plaintiffs’ counsel may seek to insulate them- P D R selves from subsequent attacks by demanding PROBATE, CIVIL, FAMILY LAW higher amounts in settlements and refusing to PROBATE EXPERT WITNESS enter into settlements that do not provide relief to every class member. Coupon settle- TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 ments, which many defendants like but which E-MAIL: [email protected] have been criticized by courts and commen- http://adr-shapiro.com tators, may fall further out of favor because FEES: $300/hr their low redemption rates may leave large numbers of class members with a reason to complain about the settlement. Settling a class action lawsuit is never easy. Class counsel and defense counsel must Coming this June in Los Angeles Lawyer first deal with each other in contentious negotiations that often follow protracted litigation. They must face the trial court twice, first at Lawyer-to-Lawyer Referral Guide the preliminary approval hearing, then at the final approval hearing. During that process, For listing or advertising information, call 213.896.6507 they also may have to deal with objectors. Deadline: April 25th Now, there is the possibility of contempora- neous or subsequent malpractice lawsuits. Counsel negotiating class settlements owe a duty to each other to make sure that the settlement is not subject to collateral attack. Working together to structure a settlement and a settlement process may ensure approval of the settlement and insulate it from collateral attack. At the end of the day, no one wants to face the $90 million question. ■

1 Janik v. Rudy, Axelrod & Zieff, 119 Cal. App. 4th Office 930 (2004). 2 Bell v. Farmers Ins. Exch., 87 Cal. App. 4th 805 space to (2001). 3 Bell v. Farmers Ins. Exch., 115 Cal. App. 4th 715 share in (2004). 4 Janik, 119 Cal. App. 4th at 936. 5 Id. at 941-42. South 6 Id. at 945-46. 7 Cortez v. Purolator Air Filtration Prods. Co., 23 Bay Cal. 4th 163 (2000). 8 Janik, 119 Cal. App. 4th at 946-47. 9 Id. at 947. 10 Since November 2, 2004, no discussion of the UCL For information, call (310) 540 -1771 • $1,350 without phone or secretary

Los Angeles Lawyer April 2005 27 is complete without referring to Proposition 64—the (Judge Posner observed that class settlements, which are not have the power to sanction an attorney appearing voter initiative that changed the previously broad often presented to the class as a fait accompli, pose sig- on behalf of a client as a vexatious litigant. Id. at standing provisions under the UCL. With the passage nificant problems for abuse because “lawyers for the 1196. See also In re Mexico Money Transfer Litig., 164 of Proposition 64, plaintiffs must have suffered an class, rather than the clients, have all the initiative F. Supp. 2d 1002 (N.D. Ill. 2001), aff’d, 267 F. 3d 743 injury in fact as well as a loss of money or property in and are close to being the real parties in interest….”). (7th Cir. 2001) (Dissident attorney who objected to set- order to sue a defendant for violation of the UCL. 13 In re General Motors Corp. Pick-Up Truck Fuel tlement solicited more than 90% of all opt outs.). Proposition 64 also eliminated the ability of private par- Tank Prods. Liab. Litig., 55 F. 3d 768, 787 (3d Cir. 15 ALBA CONTE & HERBERT NEWBERG, 4 NEWBERG ON ties to represent others unless the parties comply with 1995) (Third Circuit found that district court abused CLASS ACTIONS §11.55, at 168 (4th ed. 2002). class action procedures. Practitioners should note that its discretion in approving the class settlement because, 16 See In re General Motors Corp. Engine Interchange Proposition 64 actually makes Janik even more impor- among other reasons, the coupon settlement did not Litig., 594 F. 2d 1106 (7th Cir. 1979) (holding that trial tant in UCL litigation. Since class action procedures will provide adequate value to class members.). court abused its discretion by not permitting objectors apply to any UCL suit prosecuted on behalf of others, 14 See Weissman v. Quail Lodge Inc., 179 F. 3d 1194 to conduct discovery to show that settlement prejudiced the duties articulated in Janik potentially apply to all (9th Cir. 1999). In Weissman, the Ninth Circuit reversed interests of the class); see also 4 NEWBERG ON CLASS suits brought under the UCL. a district court order prohibiting an attorney from ACTIONS, supra note 15, §11.57 (detailed discussion on 11 Ferguson v. Lief, Cabraser, Heiman & Bernstein LLP, objecting to class action settlements. The district court an objector’s right to independent discovery). 30 Cal. 4th 1037 (2003). characterized the attorney as “something of a class 17 See General Motors Corp. Pick-Up Truck Fuel Tank 12 See Mars Steel Corp. v. Continental Ill. Nat’l Bank action settlement gadfly.” The Ninth Circuit reversed Prods. Liab. Litig., 55 F. 3d 768. & Trust Co., 834 F. 2d 677, 678 (7th Cir. 1987) the restrictive order on the ground that trial courts do 18 See Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 974-75 (E.D. Tex. 2000) (finding by district court that objectors’ counsel had conferred a substantial benefit on the class by extending the coupon redemption period from 180 days to one year). 19 Officers for Justice v. Civil Serv. Comm’n, 688 F. 2d 615, 625 (9th Cir. 1982). In class action litigation, California courts routinely look to federal authority for guidance. Vasquez v. Superior Court, 4 Cal. 3d 800, 821 (1971). 20 Wershba v. Apple Computer, Inc., 91 Cal. App. 4th 224, 245 (2001). 21 See Foxgate Homeowners Ass’n, Inc. v. Bramaela Cal., Inc., 26 Cal. 4th 1 (2001) (holding that statements from a mediator regarding a party’s conduct during mediation proceeding were not admissible in connection with a motion for sanctions). 22 See Rebney v. Wells Fargo Bank, 220 Cal. App. 3d 1117, 1139 (1990); Dunk v. Ford Motor Co., 48 Cal. App. 4th 1794 (1996). 23 See, e.g., In re Lorazapem & Clorazepate Antitrust Litig., 205 F.R.D. 369 (D.D.C. 2002) (The court reported total notice costs of $8.250 million for a class that included more than 1.2 million members.). 24 Cartt v. Superior Court, 50 Cal. App. 3d 960, 974 (1975). 25 Wershba, 91 Cal. App. 4th at 251 (upholding class notice as adequate under circumstances in which defendant mailed or e-mailed notice to class members, published notice in USA Today and MacWorld, and posted notice for more than 30 days on its Internet Web site). 26 Trotsky v. Los Angeles Fed. Sav. & Loan Ass’n, 48 Cal. App. 3d 134, 151-52 (1975). 27 Officers for Justice v. Civil Serv. Comm’n, 688 F. 2d 615, 624 (9th Cir. 1982). 28 Janik v. Rudy, Axelrod & Zieff, 119 Cal. App. 4th 930, 946 (2004). 29 MANUAL FOR COMPLEX LITIGATION, FOURTH 329 (Federal Judicial Center 2004); available at http://www.fjc.gov. 30 THOMAS E. WILLGING ET AL., EMPIRICAL STUDY OF CLASS ACTIONS IN FOUR FEDERAL DISTRICT COURTS 64- 65 (Federal Judicial Center 1996). 31 7-Eleven Owners for Fair Franchising v. Southland Corp., 85 Cal. App. 4th 1135, 1151 (2001). 32 Janik, 119 Cal. App. 4th at 946. 33 Daar v. Yellow Cab Co., 67 Cal. 2d 695, 706 (1967); Payne v. National Collection Sys., Inc., 91 Cal. App. 4th 1037, 1047 (2001). 34 Citizens for Open Access to Sand & Tide, Inc. v. Seadrift Ass’n, 60 Cal. App. 4th 1053, 1065 (1998). 35 See, e.g., Mortimer v. River Oaks Toyota, 278 Ill. App. 3d 597 (1996) (Plaintiffs who objected but did not opt out were subject to the preclusive effect of the judgment in a settled class action.). 36 See In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 333 F. 3d 763 (7th Cir. 2003) (A finding that nationwide class was inappropriate acted as collateral estoppel in state court proceedings.).

28 Los Angeles Lawyer April 2005 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 31.

by Howard S. Klein Tales of Two Courts Legal changes in marital status can have a dramatic impact on existing estate plans

atters that involve a combination of probate law and family law issues are common. Crossover issues can arise when clients require services regarding property ownership, estate planning, incapacity, family court proceedings (including marital dissolution, legal separation, and nullity), and death. The convergence of probate and family law issues can be confusing to the lawyer who practices in one area but not both. TheM Family Code contains the statutory law of marriage, dissolution, separation, and nullity, while the Probate Code addresses the capacity issues relating to those topics. In addition, the effect of marriage or divorce upon an existing estate plan is covered in the Probate Code, while the determination of permissible estate planning during a family court proceeding is set forth in the Family Code. Thus, practitioners must consult both codes for an understanding of many crossover issues. A subsequent marriage, for example, generally has a dramatic effect on existing wills and trusts. The omitted spouse who married the decedent after execution of a “testamentary instrument” (defined to include the decedent’s will or revocable trust) will normally receive the equivalent of an intestate share of the “decedent’s estate” (defined to include a probate estate and all property held in a revocable trust that becomes irrevocable on the death of the settlor).1 However, certain conditions mandate that the omitted spouse will take no share of the estate. These conditions include: a showing that the the decedent’s failure to provide for the omitted spouse was intentional, so long as the intention appears on the face of the testamentary instrument;2 evidence that the decedent provided for the spouse in other ways;3 proof that the surviving spouse made a valid waiver of probate rights;4 or a showing that a valid premarital agreement contains a waiver of probate rights.5 Like subsequent marriages, judgments of marital dissolution and nullity and judgments of legal separation that terminate the marital property rights of a party may alter existing wills and nonprobate transfers, including living trusts. With regard to wills, unless a testator’s will expressly provides to the contrary, dispositions, powers, and nominations favoring the former spouse are revoked by such judgments.6 The revoked will, however, is subject to revival by the testator’s remarriage to the former spouse.7 For estate planning documents other than wills, a change in the spousal status of the beneficiary is

Howard S. Klein is a partner of Feinberg Mindel Brandt Klein & Kline, LLP, where he heads the Probate and Trust Department and handles family law matters. He is a certiﬁed specialist in estate planning, trust, and probate law, and is a commissioner on the State Bar Estate Planning, Trust, and Probate Advisory Commission.

Los Angeles Lawyer April 2005 29 key. For example, a nonprobate transfer to the mentally competent to make a will if the capacity for the proposed action. Second, transferor’s former spouse in an instrument individual suffers from a mental disorder, the court must determine that the proposed executed before or during the marriage fails such as delusions or hallucinations, that inter- action will have no adverse effect on the if, at the time of the transferor’s death, the for- feres with the testamentary act.16 estate, or that the estate remaining after the mer spouse is not the surviving spouse.8 The Further, a court’s determination that a proposed action is taken will be adequate to exceptions to the rule occur when there is person is of unsound mind or lacks the capac- provide for the needs of the conservatee and clear and convincing evidence that the trans- ity to make a decision to do a certain act, such those persons legally entitled to be supported feror intended to preserve the transfer9 or a as the execution of a will or trust, must be by the conservatee.21 The duty to support court order maintaining the transfer exists at supported by evidence of a deﬁcit in at least the conservatee’s spouse and children can the transferor’s death.10 “Nonprobate trans- one of several speciﬁed mental functions— factor heavily into the probate court’s deci- fers” is a term that not only applies to living including alertness and attention, information sion whether to grant substituted judgment trusts but also to Totten trusts (bank accounts processing, thought processes, and the abil- powers.

Incapacity issues arise in estate planning when a person under conservatorship— > the conservatee—wishes to make a will or trust, or when the conservatee’s conservator wishes to make a will or trust for the conservatee.

that designate a beneficiary), Payable-on- ity to modulate mood and affect—and by Another issue involving incapacity arises Death (P.O.D.) accounts, and like accounts evidence of a correlation between any deficits when a conservatee wishes to marry. Like described in Probate Code Section 5000, but and the act in question.17 the right of a conservatee to make a will, the not life insurance policies.11 The term “sur- When the conservatee lacks the capacity capacity to marry is unaffected by conserva- viving spouse” has been defined as a spouse to make estate planning decisions, the Probate torship, absent an order to the contrary.22 An whose marriage has not been dissolved or Code’s “substituted judgment” provisions18 unmarried adult not otherwise disqualified is annulled and whose marital property rights come into play. These provisions enable the capable of consenting to and consummating were not terminated by court order.12 A legal conservator or other interested person to marriage.23 Thus, unless the order establish- separation order not terminating property petition the probate court for an order autho- ing the conservatorship disqualifies the con- rights does not affect a will or nonprobate rizing or requiring the conservator to take servatee from marrying, or there is a subse- transfer.13 action on behalf of the conservatee for one or quent order to that effect,24 the conservatee Incapacity issues arise in estate planning more of the following purposes: 1) the ben- retains the right to marry. Like the determi- when a person under conservatorship—the efit of the conservatee or the estate, 2) the min- nation of a person’s lack of capacity to make conservatee—wishes to make a will or trust, imizing of prospective taxes or expenses of a will, a judicial determination that a person or when the conservatee’s conservator wishes administration upon the conservatee’s death, lacks the capacity to marry must be sup- to make a will or trust for the conservatee. or 3) the making of gifts that the conserva- ported by evidence of a mental function The starting point for analysis is the law stat- tee would have been likely to make.19 In deficit, which by itself or in combination ing that nothing shall be construed to deny a addition, the provisions include a nonexclu- with other mental function deficits signifi- conservatee the right to make a will.14 sive list of 13 possible substituted judgment cantly impairs the person’s ability to under- Furthermore, a person who has a mental dis- acts and activities.20 These involve several stand and appreciate the consequences of his order may still have the legal mental capac- with real implications for the conservatee’s of her actions regarding the marriage, and ity to execute a will or trust.15 However, an spouse and children, such as making gifts to there also must be evidence of a correlation individual is not mentally competent to make the spouse and the children; conveying or between those deficits and the act of mar- a will if the individual did not have suffi- releasing the conservatee’s contingent and riage.25 If, after marriage, the conservator cient mental capacity to 1) be able to under- expectant interests in property, including seeks to establish the validity of the mar- stand the nature of the testamentary act, 2) marital property rights; creating, revoking, or riage, the conservator may initiate a family understand and recollect the nature and sit- modifying trusts; and making a will. court proceeding for this purpose and to have uation of the individual’s property, or 3) The court may make a substituted judg- the marriage declared valid.26 remember or understand the individual’s rela- ment order only if the court determines two tions to his or her living spouse, descendants, pairs of issues. First, the court must find that Restraining Orders and Estate Planning and parents and those whose interests are either the conservatee is not opposed to the Arguably the most frequently encountered affected by the will. Also, an individual is not proposed action or, if opposed to it, lacks legal crossover issue between family law and pro-

30 Los Angeles Lawyer April 2005 MCLE Answer Sheet #136 MCLE Test No. 136 TALES OF TWO COURTS

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

1. An omitted spouse who married the decedent after ceeding occurs after a bifurcated judgment terminat- Address the execution of the decedent’s living trust receives an ing marital status, the family court retains jurisdiction City intestate share unless there is an intentional failure to over division of the community property. State/Zip provide for the spouse—whether or not the intent True. E-mail appears on the face of the trust. False. Phone True. 12. A nullity proceeding does not survive the death of False. the petitioner. State Bar # 2. A judgment of marital dissolution revokes all pow- True. INSTRUCTIONS FOR OBTAINING MCLE CREDITS ers and nominations favoring the former spouse in a False. will unless the will expressly provides to the contrary. 13. Absent entry of a bifurcated judgment terminating 1. Study the MCLE article in this issue. True. marital status, upon the death of one of the parties, the 2. Answer the test questions opposite by marking False. title presumption of right of survivorship is applicable the appropriate boxes below. Each question has only one answer. Photocopies of this 3. A nonprobate transfer to the transferor’s former to the joint tenancy property of the parties. answer sheet may be submitted; however, this spouse, in an instrument executed before or during the True. form should not be enlarged or reduced. marriage, always fails if at the time of the transferor’s False. 3. Mail the answer sheet and the $15 testing fee death, the former spouse is not the surviving spouse. 14. The death of either party to a marital dissolution ($20 for non-LACBA members) to: True. proceeding terminates an existing spousal support Los Angeles Lawyer False. order unless the parties have otherwise agreed, whether MCLE Test 4. A paranoid schizophrenic may have the capacity to orally or in writing. P.O. Box 55020 execute a will or trust. True. Los Angeles, CA 90055 True. False. Make checks payable to Los Angeles Lawyer. False. 15. The right of the obligee parent to collect child sup- 4. Within six weeks, Los Angeles Lawyer will 5. The court’s determination of incapacity to make a will port from the estate of the deceased obligor parent con- return your test with the correct answers, a or trust must be supported by evidence of a mental func- tinues as long as a valid child support order is in place. rationale for the correct answers, and a certificate verifying the MCLE credit you earned tion deficit. True. through this self-assessment activity. True. False. 5. For future reference, please retain the MCLE False. 16. An order for payment of child support is modifiable test materials returned to you. 6. The probate court may make a substituted judg- following the death of the obligor parent. ment order only if the court determines that the pro- True. ANSWERS posed action will have no adverse effect on the con- False. Mark your answers to the test by checking the appropriate boxes below. Each question has only servatee’s estate. 17. The conservator of a person’s estate may file a one answer. True. marital dissolution proceeding on behalf of the con- False. servatee if the conservatee is capable of expressing a 1. ■ True ■ False 7. A judicial determination of a person’s lack of capac- wish to dissolve the marriage on grounds of irrecon- ■ ■ ity to marry need not be supported by evidence of a cilable differences, whether or not the conservatee 2. True False mental function deficit. has expressed that wish. 3. ■ True ■ False True. True. 4. ■ True ■ False False. False. 5. ■ True ■ False 8. Standard (or Automatic) Temporary Restraining 18. If a conservator who is the conservatee’s spouse 6. ■ True ■ False Orders—Family Law (ATROs) are binding on both par- files a nullity proceeding, the conservator must file ■ ■ ties to a family court proceeding upon the filing of the and serve a notice with the probate court within 30 days 7. True False petition. of filing the nullity. 8. ■ True ■ False True. True. 9. ■ True ■ False False. False. 10. ■ True ■ False 9. The preparation of a new will during the pendency 19. A conservator has the power to manage and con- 11. ■ True ■ False of a family court proceeding is not a violation of the trol the conservatee’s share of community property, and 12. ■ True ■ False ATROs. the conservatee’s spouse has the right to manage and ■ ■ True. control his or her own share of community property. 13. True False False. True. 14. ■ True ■ False 10. A party to a legal separation proceeding who serves False. 15. ■ True ■ False his or her spouse with a notice of immediate revoca- 20. If an incapacitated spouse is under conservator- 16. ■ True ■ False tion of the parties’ revocable living trust is not in vio- ship and the well spouse refuses to comply with a pro- 17. ■ True ■ False lation of the ATROS. bate court support order, the probate court has the ■ ■ True. authority to divide the community property. 18. True False False. True. 19. ■ True ■ False 11. If death of a party to a marital dissolution pro- False. 20. ■ True ■ False

Los Angeles Lawyer April 2005 31 bate is the effect of the filing of a family law (after giving the required notice), so that the probate homestead, and other purely pro- proceeding on the right of a party to that former joint tenancy assets will be held by the bate matters. proceeding to initiate estate planning or to parties as tenants in common, with each The impact of the death of a party to a dis- revise existing estate planning documents. party having testamentary power over his or solution proceeding absent entry of a status This is because of the Standard (or Automatic) her one-half share. judgment is not the same as the death of a Temporary Restraining Orders—Family Law • Terminating P.O.D. and similar accounts, party during a nullity proceeding. This pro- (called ATROs) that appear on the back of the so that the client’s spouse is not the beneficiary ceeding involves a completely different issue: Judicial Council form Family Law Summons. in the event of the client’s death during the dis- whether a valid marriage existed in the first The ATROs are binding upon the petitioner solution proceedings, and the client has tes- place. Thus, the nullity proceeding survives when an action for dissolution, legal separa- tamentary power over those assets. the party’s death.34 tion, or nullity is filed and are binding upon • Withdrawing half of the contents of jointly An issue related to these jurisdictional the respondent upon service of the petition and held bank accounts, while leaving the other considerations is the effect of the death of a summons.27 One ATRO precludes any trans- half to the control of the other spouse. party to a family court proceeding upon the fer, encumbrance, or disposal of community • Preparing a new unfunded revocable trust characterization of marital property, partic- or separate property without the written con- together with a pour-over will to add the ularly property held in joint tenancy by the sent of the other party or an order of the client’s assets to the new trust at the client’s spouses. Absent entry of a bifurcated status court, except in the usual course of business death. With the unfunded trust and pour- judgment of dissolution or a judgment of or for necessities of life. It further requires the over will, no transfers will be made to the new legal separation, the right of survivorship is parties to give each other five business days’ trust during the family court proceedings, applicable to joint tenancy property unless a prior notification of proposed extraordinary thus preserving the status quo. However, if the party rebuts the title presumption or estab- expenditures and to account to the court for client dies during the proceedings, his or her lishes a transmutation of the property into all extraordinary expenditures made after the will adds to the new trust all assets belong- some other form of ownership.35 By con- ATROs are in effect. Another ATRO pre- ing to the client that were formerly in the trast, when death follows a judgment on sta- cludes cashing, borrowing against, canceling, revoked trust, together with the client’s share tus, the community property presumption transferring, or changing beneficiaries of any of the joint tenancy, P.O.D., and similar assets continues to apply to property held in joint insurance policies. Thus, if certain estate plan- over which he or she acquired the right of tes- form.36 Further, the deceased spouse’s com- ning activities occur after the effective date of tamentary disposition. While those assets munity share passes through the probate the ATROs and without the consent of the would have to be administered in the dece- estate to his or her devisees and heirs, and not spouse or court approval—such as, for exam- dent’s estate—that is, a probate estate—at to the surviving spouse, absent rebuttal of the ple, creating and funding a living trust for least they would pass to the client’s desired community property presumption or estab- the benefit of persons other than the spouse, beneficiaries and would be under the stew- lishment of a transmutation.37 or replacing the spouse with another bene- ardship of the client’s desired fiduciaries. The The death of a party to a family court ficiary on a life insurance policy—the party family court will likely scrutinize any and all proceeding has varying effects upon existing performing those acts is in contempt of court. of these transactions for compliance with the orders for spousal support and child support. Under Family Code Section 2040, some interspousal fiduciary duties of Family Code According to the Family Code, death of either activities are expressly not restrained by the Section 721. But they are permissible within the supporting or supported party terminates ATROs: 1) the creation, modification, or the language of Family Code Section 2040 an existing spousal support order unless the revocation of a will, 2) the revocation of a and, more critically, they do not affect the sta- parties have “otherwise agreed” in writing.38 nonprobate transfer, including a revocable tus quo of the marital assets during the pen- Some court decisions, however, make it unclear trust, pursuant to the instrument—provided dency of the family court proceedings. what “otherwise agreed” really means. For that notice of the change is filed and served example, a court held that the failure to list on the other party before the change takes Death and Family Court Proceedings death or remarriage of the supported spouse effect, 3) the elimination of a right of sur- A marriage is dissolved by death as a matter as terminating events meant that the parties vivorship to property—provided that notice of law. Moreover, if there is no entry of a had “otherwise agreed” that death or remar- of the change is filed and served on the other bifurcated judgment terminating marital sta- riage should not be terminating events— party before the change takes effect, 4) the tus before death, any pending action abates although one might argue that the parties’ creation of an unfunded revocable or irrev- upon the death of a party, and the family failure should not rise to the level of agree- ocable trust, and 5) the execution and filing court is divested of jurisdiction regarding sta- ment.39 Similarly, a court held that the failure of a disclaimer pursuant to Probate Code tus or anything else.29 Judgment, however, to list death as a terminating event along with Sections 260 et seq.28 may be entered on any issues already decided a requirement in the lower court’s judgment The ATROs, along with these unrestrained by the family court.30 Except for those issues, that the supporting spouse maintain life insur- activities, suggest some estate planning strate- no further order is possible regarding property ance in the amount of the present value of the gies to consider when divorce is imminent or rights, support, attorney’s fees, or costs.31 support obligation meant that death and the even after a dissolution petition has been A wholly different result occurs if death life insurance requirement were “otherwise filed. For lawyers representing a client who is follows entry of the judgment terminating agreed” to as nonterminating events.40 about to be involved in a dissolution or is marital status. Under this circumstance, the Practitioners should be aware that, even already a party to one, these strategies include: family court’s jurisdiction to decide any if spousal support terminates due to the death • Preparing a new will that revokes the for- remaining issues, most importantly the divi- of the payor spouse, a family court order for mer will and designates a different executor sion of community property, is unaffected.32 the purchase of an annuity or life insurance and new beneficiaries. The deceased spouse’s estate will be substi- policy or establishment of a trust to provide • Revoking an existing living trust (after giv- tuted as a party to the dissolution proceed- for the supported spouse remains enforce- ing the requisite notice) and then returning the ing.33 However, the status judgment does not able.41 However, the obligation to pay med- revoked trust’s assets to the parties. divest the probate court of its jurisdiction ical insurance premiums to provide proper • Severing any joint tenancies of the spouses over issues of succession, family allowance, healthcare for a supported spouse has been

32 Los Angeles Lawyer April 2005 WESTCOAST 2005

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In Association With: held to be in the nature of spousal support and already expressed that wish. In Higgason, proof can be met or if the matter is already terminates by operation of law upon the sup- Mrs. Higgason signed and verified the dis- before the family court. ported spouse’s death.42 solution petition and the two order-to-show- The Probate Code provides a panoply of The death of a party paying court-ordered cause declarations and gave her deposition relief to the incapacitated spouse under con- child support usually has an opposite effect expressing her desire to divorce. The court servatorship.59 Some of these forms of relief— to the death of a spousal support payor. held that her actions met the test. Family and their Family Code analogs if the conser- Unless otherwise provided in the support lawyers may ponder, what else could consti- vator files an action in family court—include: order, child support does not terminate at tute expressing a wish? For example, what if • The probate court can issue an order that the death of either the supporting spouse or the impaired spouse left the other spouse for the well spouse who has management and the supported spouse, since the order is based protracted periods, or consulted a family control of the community property must apply on the child’s support needs during minority.43 lawyer about commencing a dissolution, or that property to the other spouse’s support.60 Child support is chargeable against the estate set up a residence separate and apart from the • The probate court can issue an order that of the deceased obligor parent. The enforce- other spouse, or unequivocally stated orally the well spouse must pay pendente lite sup- ment of this right following the death of the or in writing that he or she wanted a divorce port to the other spouse.61 obligor parent requires that the party receiv- but took no further steps? • Income and expense declarations and prop- ing the child support timely file a creditor’s Higgason is a marital dissolution opinion, erty declarations must be filed by the well claim in the decedent’s estate of the obligor.44 but its reasoning should apply equally to spouse when petitions under the appropriate In addition, and perhaps counter intuitively, legal separation proceedings. The Durable Probate Code sections are filed.62 the child support payment is modifiable fol- Power of Attorney Act provides a formal • The probate court has the power to deter- lowing the death of the payor spouse.45 measure to nominate a conservator and mine the character of the property of the Securing future child support payments thereby creates a rebuttable presumption in parties if that issue is raised63—a power com- after the death of the obligor parent may favor of the designated attorney in fact or con- parable to that in Family Code Sections 2550 pose a challenge. Several potentially helpful servator nominee for appointment as guardian and 2551. Probate Code procedures can be used to ad litem.51 The conservator may commence • The six circumstances for support and secure the future payment of a debt that is not a nullity of marriage proceeding for a party maintenance in conservatorship proceedings yet due, such as future child support pay- of unsound mind.52 under the Probate Code64 are comparable to ments. These include a court-approved agree- Note that if the conservator is the conser- the 14 Family Code circumstances,65 since the ment of the parties, the deposit of an amount vatee’s spouse, and the conservator files a sixth circumstance of the Probate Code is in a financial institution, the distribution of proceeding for marital dissolution, legal sep- “any other relevant factors which [the court] an amount to a distributee who assumes per- aration, or nullity, the conservator must file a considers just and equitable.” sonal liability, the appointment of a trustee to notice with the probate court and serve it • If the well spouse refuses to comply with receive payment of the debt, and the distrib- within 10 days of filing the action. The court any support order under an appropriate ution of estate property to a distributee sub- may then issue an order to show cause why Probate Code section or in a separate support ject to a bond conditioned on payment of the the spouse should not be removed and action, the probate court may divide the com- debt.46 The child support obligation is en- replaced as conservator.53 munity property equally so that the conser- forceable against the deceased obligor’s share vatee’s community share can be administered of community property held with a subse- Community Property in his or her conservatorship proceeding and quent spouse.47 Further, property that was put The issue of the management and control of not by the well spouse.66 into a supporting parent’s living trust before community property when one spouse retains • The probate court’s orders are enforceable his or her death is properly chargeable for that legal capacity but the other spouse lacks legal by execution, contempt, and any other order parent’s child support obligation.48 capacity or is under conservatorship is of deemed appropriate by the court.67 significant interest to the family court and the Assuming that issues involving the rights of Incapacity in Family Court Proceedings probate court. An analysis of this issue begins the spouse with legal capacity and the inca- When an incompetent person or a person with the Probate Code’s provision that the pacitated spouse can properly be before the for whom a conservator has been appointed spouse with capacity has the power to man- family court, is the family court or the probate is a party to a family court proceeding, either age and control the community property, court the preferable forum for the determina- a conservator of the estate or a guardian ad and the community property is not part of the tion of these matters? In In re Marriage of litem must appear in court on behalf of the conservatorship estate unless the spouse with Caballero,68 the court of appeal, without dis- person.49 Thus, if an incapacitated person is capacity consents to its inclusion in the con- cussing the provisions of Probate Code Sections already a party to a family court proceeding, servatorship estate.54 However, a tension 3000 et seq., held that a determination of the his or her attorney should either petition the exists between the well spouse’s management property and support rights of a person under probate court for the appointment of a con- of the community property and the duty of conservatorship is more properly resolved servator of the estate or make a motion to the a spouse to support his or her spouse.55 That under the Family Law Act than under con- family court for the appointment of a statutory duty of support is nonwaivable and servatorship law. The court’s conclusion was guardian ad litem. cannot be limited or rescinded by contract.56 based on the fact that 1) the incapacitated The California Supreme Court held in the Matters become complicated if the spouse spouse may obtain immediate temporary landmark case of In re Marriage of Higgason50 with capacity fails or refuses to apply the spousal support consistent with the parties’ that a dissolution may be brought on behalf community income, which he or she manages standard of living during marriage, and sup- of a spouse under conservatorship by the and controls, for the support of the incapac- port orders may be effective as of the date of spouse’s guardian ad litem, provided there is itated spouse. Under any circumstances, these filing, and 2) support payments must first be a showing that the spouse is capable of exer- matters can be handled in probate court, paid from postseparation earnings (the sup- cising a judgment and expressing a wish that since conservatorships are a creature of the porting spouse’s separate property), then from the marriage be dissolved on account of irrec- Probate Code.57 They may also be resolved community and quasi-community property, oncilable differences, and the spouse has in family court if the Higgason58 burden of and only lastly from the supported spouse’s sep-

34 Los Angeles Lawyer April 2005 arate property. The Caballero court also rea- 20 PROB. CODE §2580(b). soned that the supported spouse has the right 21 PROB. CODE §2582. 22 to recover fees and costs incurred in seeking his PROB. CODE §1900. 23 FAM. CODE §301. or her family law rights. Also, the court noted 24 PROB. CODE §1901. that the family court may issue immediate ex 25 PROB. CODE §§810(c), 811(a). parte restraining orders to preclude conduct 26 FAM. CODE §309. contrary to the incapacitated spouse’s property 27 FAM. CODE §§231 et seq., 2040. 28 rights—and in fact family law summonses FAM. CODE §2040. 29 Bevelle v. Bank of Am., 80 Cal. App. 2d 333 (1947); contain ATROs regarding property transfers In re Marriage of Shayman, 35 Cal. App. 3d 648 and related matters. Moreover, the family (1973). court has the authority to provide appropriate 30 CODE CIV. PROC. §669. compensation for the well spouse’s exclusive 31 Kinsler v. Superior Court, 121 Cal. App. 3d 808 possession and use of the family residence (1981). 32 In re Marriage of Hilke, 4 Cal. App. 4th 215 (1992); while the other spouse receives care elsewhere. In re Marriage of Allen, 8 Cal. App. 4th 1225 (1992); Finally, Caballero asserts that family court Kinsler, 121 Cal. App. 3d 808; FAM. CODE §2337(c). provides the only satisfactory forum to obtain 33 CODE CIV. PROC. §§375, 377.31, 377.41. an accounting of property and obligations— 34 In re Marriage of Goldberg, 22 Cal. App. 4th 265 including full financial disclosure and coop- (1994). 35 Swan v. Walden, 156 Cal. 195 (1909); Estate of eration with complete discovery within a Blair, 199 Cal. App. 3d 161 (1988); FAM. CODE §§850 short period of time—and the family court’s et seq. “power and experience in the determination 36 FAM. CODE §2581. of community property rights after fully- 37 Hilke, 4 Cal. App. 4th 215; Allen, 8 Cal. App. 4th developed adversarial proceedings” are of 1225; FAM. CODE §§850 et seq. Cf. Estate of Layton, “substantial importance.” Still, parties should 44 Cal. App. 4th 1337 (1996). 38 FAM. CODE §4337. consider the extensive experience of probate 39 In re Marriage of Nicolaides, 39 Cal. App. 3d 192 court judges in protecting conservatees, who (1974). are generally unable to protect themselves. 40 Lucas v. Elliott, 3 Cal. App. 4th 888 (1992). When family law issues collide with pro- 41 FAM. CODE §4360. 42 bate issues, the probate lawyer must look to In re Marriage of Benjamins, 26 Cal. App. 4th 423 (1994). the Probate Code, the Family Code, and case 43 In re Marriage of Gregory, 230 Cal. App. 3d 112 law, or must seek to associate counsel who (1991). are familiar with California family law. The 44 In re Marriage of O’Connell, 8 Cal. App. 4th 565 prudent family lawyer must realize the pos- (1992). sible effects of family court proceedings upon 45 Stein v. Hubbard, 25 Cal. App. 3d 603 (1972). 46 PROB. CODE §§11460 et seq. Legislative Intent. the client’s existing estate plan and should 47 PROB. CODE §§13550, 13551, 13553. either consult with the client to modify that 48 In re Marriage of Perry, 58 Cal. App. 4th 1104 You probably seldom plan or refer the client to a qualified probate (1997). need it. lawyer, with instructions about the possible 49 CODE CIV. PROC. §372. effect of the ATROs. Of course, serious eth- 50 In re Marriage of Higgason, 10 Cal. App. 3d 476 But when the need does arise, (1973). it can be crucial to winning ical considerations confront the probate 51 Caballero v. Caballero, 27 Cal. App. 4th 1139 your case. lawyer who has represented both spouses (1994). in family estate planning and then is asked 52 FAM. CODE §§2210(c), 2211(c). Tracking down sources of information can be to represent either party against the other in 53 PROB. CODE §1813(b). a frustrating and time consuming process. 69 ■ 54 PROB. CODE §3051. family court proceedings. When legislative history is important to your 55 FAM. CODE §§720, 4300. 56 In re Marriage of Higgason, 10 Cal. App. 3d 476 case it can be very cost effective to engage our 1 PROB. CODE §§21600-21630. (1973); In re Marriage of Pendleton & Fireman, 24 Cal. professional expertise to research the history 2 PROB. CODE §21611(a). 4th 39 (2000). and intent of the statutes or administrative 3 PROB. CODE §21611(b). 57 PROB. CODE div. 4, §§1400 et seq. enactments at issue in your case. 4 PROB. CODE §21611(c). See PROB. CODE §§140-147 58 Higgason, 10 Cal. App. 3d 476. When you call, you can explain what (waivers). 59 PROB. CODE §§3000 et seq. you need, or tell me your situation and I can 5 See the Uniform Premarital Agreement Act, FAM. 60 PROB. CODE §3080 (analogous to spousal support make suggestions on possible approaches. CODE §§1610-1617. under FAM. CODE §§4300 et seq.). You can draw on my years of experience, so 6 PROB. CODE §§6122(a), (c). 61 PROB. CODE §3083 (analogous to temporary spousal 7 PROB. CODE §6122(b). you will know what is likely to be available support under FAM. CODE §3600). 8 PROB. CODE §5600(a). on your topic. You will get a precise quote 62 PROB. CODE §3084 (similar to family law requirement 9 PROB. CODE §5600(b)(2). for the cost of the project. When you of CAL. R. OF CT. 1243 that both spouses file income 10 PROB. CODE §5600(b)(3). and expense declarations in all proceedings involving authorize us to proceed, the report will be in 11 PROB. CODE §5600(e). financial issues). your office on the date you specify. 12 PROB. CODE §78. See also Estate of Lahey, 76 Cal. 63 PROB. CODE §3087. App. 4th 1056 (2000). 64 PROB. CODE §3088(b). JAN RAYMOND 13 PROB. CODE §§6122(d), 5600(a). 65 FAM. CODE §4320. LEGISLATIVE HISTORY & INTENT 14 PROB. CODE §1871(c). 66 PROB. CODE §3089 (comparable to FAM. CODE 15 PROB. CODE §810(b). §2550). Toll Free (888) 676-1947 16 PROB. CODE §6100.5. Fax (530) 750-0190 ■ E-mail: [email protected]. 67 PROB. CODE §3090. 17 PROB. CODE §811. 68 Caballero v. Caballero, 27 Cal. App. 4th 1139 (1994). www.naj.net 18 PROB. CODE §§2580 et seq. 69 See, e.g., CAL. RULES OF PROF’L CONDUCT R. 3-310, State Bar #88703 19 PROB. CODE §2580(a). Avoiding the Representation of Adverse Interests.

Los Angeles Lawyer April 2005 35 by Antonio R. Sarabia II

Marked RECOVERY The calculation of statutory damages for trademark infringement could be simpliﬁed by using the “class system” to determine goods and services

EIGHT YEARS AGO Congress decided that the existing damages. This put pressure on plaintiffs—particularly privately held means for awarding damages for trademark infringement were not companies—either to reveal confidential information about their deterring this illegal practice and decided to supplement these mea- sales practices and profits or forgo damages. Moreover, this infor- sures with statutory damages—a specific range that a court could mation was to be revealed to the very persons who already had a track award even in the absence of proof of a plaintiff’s losses or the record of taking the plaintiff’s intellectual property. To plaintiffs, it defendant’s profits. Despite the fact that almost a decade has passed seemed like they were being asked to give the key to the safe to the since Congress passed this statute, most courts that award trademark person who had just broken into their house. The choice between dis- infringement damages continue to cite as their authority copyright law closing trade secrets or forgoing damages added insult to injury to a on statutory damages. While it is true that there is a much longer com- company that had already suffered a serious trademark infringe- mon law history for copyright statutory damages, the assumption of ment. Congress enacted statutory damages to provide an alternative: most courts, practitioners, and even trademark treatises, that there The creation of this alternative to the more traditional reme- is little jurisprudence on trademark statutory damages is not correct. dies of recovery of the plaintiff’s damages or the defendant’s In fact, a solid body of trademark cases awarding statutory damages profits reflected a harsh reality—counterfeiters often do not keep exists. At least 25 reported cases in which statutory damages were or secrete records of their unlawful activities, thus making proof awarded for counterfeiting can be found.1 of the extent of the plaintiff’s injury or the counterfeiter’s Before statutory damages provided an alternative, courts awarded profits impossible as a practical matter.2 damages based on a plaintiff’s actual damages or a defendant’s profits from the sales of counterfeit goods. Because the records of defen- Antonio R. Sarabia II is an attorney with IP Business Law Group, Inc., special- dants were often poor or nonexistent, plaintiffs were forced to reveal izing in trademarks, copyrights, licensing, the apparel industry, business

important information about their businesses in order to recover transactions, and victim restitution. KEN CORRAL

36 Los Angeles Lawyer April 2005

There are three prerequisites to an award of statutory damages in as state punitive damages, may also be important.11 It seems that the trademark cases. First, there must be a trademark registration.3 greater the recovery on other counts, the less likely a court was to Second, the infringing mark must be nearly identical to the authen- award large statutory damages. None of the courts said this explic- tic mark.4 The third requirement is that the infringing product or ser- itly, but because discretion is so wide, it is probably considered. vice is listed in the federal trademark registration.5 Courts have a wide range of discretion in setting statutory dam- Determining Statutory Damages ages. A court may award $500 to $100,000 per counterfeit mark per In almost all the decisions, the court considered the statutory factors type of goods or services. If the infringement is willful the range of willfulness and the number of marks counterfeited. Because the increases to $1 million.6 In practice, courts have employed the full statute requires a determination of damages “per mark,” many range of statutory damages. In one case, a court awarded only $500 courts (more than 40 percent) reported that they first determined a per mark,7 and several courts have made awards of the full $1 mil- damage amount and then multiplied it by the number of marks lion per mark.8 counterfeited.12 Although these decisions explicitly stated that the court In most counterfeiting cases liability can be quickly established followed the statute by first determining the damage amount and then without trial. A plaintiff proves that it owns the trademark by offer- multiplying by the number of trademarks counterfeited, one wonders ing its federal registration. A plaintiff offers samples of the products if the real process was somewhat different. Did the courts tend to determine what a just total award was and work backwards by dividing it by the number of marks counterfeited? Or did courts determine the amount without regard to the number of marks? Since the courts are under a statutory mandate to multiply the damages by the number of marks counterfeited, it is surprising that a number of courts admitted that they did the opposite, that they determined a reasonable total statutory damage award and then divided it by the number of marks to reach the award per mark.13 In other words if the “right” award were $5,000 and there was one mark, the damages were set at $5,000 per mark. If there were l0 marks, the award would be pegged at $500 per mark. One way to view this is that it converts the statutory mandate to multiply times the number of marks into a meaningless exercise. Another way to view it is as the determination of or services that the defendant offered that bore the mark and proves courts to award what they view as fair. This highlights a critical point that this use was without authorization. Because counterfeiting cases about statutory awards: Because they are discretionary, the compu- involve only infringing uses in which the mark the infringer used is tation a court uses may not be the cause of the award as much as a virtually identical to the registration, there is less room for litigation reflection of what the court deems correct. over issues such as similarity. Relatively simple counterfeiting cases While the number of trademarks infringed—despite the statutory thus lend themselves to resolution before trial. mandate—may not be important, there are a number of factors that In fact, in the vast majority of trademark statutory damage cases did play an important role when courts have determined statutory there were insufficient contested facts for a trial on the merits. Almost damages. When a defendant’s profits could be determined, most half involved default judgments.9 Another third of the statutory courts considered that factor in awarding statutory damages. Some damage awards were made during or after a motion for summary judg- cases used a multiplier of defendant’s profits.14 In other cases the statu- ment.10 To a defendant the message is that you may be at greatest risk tory award bore some relation to the defendant’s profits.15 Although for a statutory damage award in a case that can be quickly resolved. lack of information about a defendant’s profits was a main reason that To a plaintiff, these quick cases look like the ideal setting in which Congress authorized statutory damages, when courts could obtain this to seek statutory damages. information they used it in determining statutory damages. This Consistent with the summary stage in which most statutory dam- makes sense because it is the best indicator of the extent to which an ages are awarded—and with a defendant having insufficient contested infringer has profited from the infringement, and therefore makes a issues to get to trial—the average award per mark is substantial: good basis upon which to calculate an award. $219,739. This figure must be considered in view of not only the rel- A factor that three courts considered in calculating statutory atively uncontested state of most of the cases but also in view of the damages was whether infringing sales were made over the Internet.16 factors that the various courts considered, such as defendant’s prof- The rationale was that sales over the Internet increased the amount its or sales. of an award because use of the Internet made the infringement widely The amount of damages a plaintiff recovered on other claims, such available. These cases did not provide proof that the plaintiff’s Web

38 Los Angeles Lawyer April 2005 site sales of legitimate product were actually reduced. The logic of this encompasses profit made by the defendants. The Second Circuit’s approach is not strong. Without information about an infringer’s sales “whether the conduct was innocent or willful” is already mandated volume (or the reduction in the plaintiff’s Internet sales) the fact that by the statute. The Ninth Circuit’s “what is just” includes the Second the infringer marketed in a particular way does not make the infringe- Circuit’s “whether a defendant has cooperated in providing records.” ment more or less harmful. However, it is a broader term that has the benefit of allowing a court The Second Circuit provided the most rigorous analysis of statu- to consider many other factors. tory damages by analogizing to copyright law. Although many cases referred to precedent in copyright statutory damage cases, Judge Determining Goods and Services Motley in New York most thoughtfully applied this analysis.17 Citing A feature of the trademark statute that differs from its copyright coun- Second Circuit copyright cases, Judge Motley identified the factors terpart is the inclusion of the language “per type of goods or services a court should consider in determining an award of statutory dam- sold” after “per counterfeit mark.”23 This language suggested to ages. Her analysis was later refined into seven factors: 1) the profits two courts that the award should be multiplied by both the number made by the defendant, 2) the revenues lost by the plaintiff, 3) the value of marks and the number of types of goods or services sold.24 Under of the mark, 4) the deterrent effect on others, 5) whether the conduct the “per type” analysis damages are computed differently. This analy- was innocent or willful, 6) whether the defendant has cooperated in sis was first used in Nike, Inc. v. Variety Wholesalers.25 The courts Did the courts tend to determine what a just total award was and work backwards by dividing it by the number of marks counterfeited? Or did the courts determine the amount without regard to the number of marks?

providing records, and 7) the deterrent effect on the defendant.18 These using this approach read the statute to mean that there are two mul- factors were used in three other cases in the Southern District of New tipliers: the number of trademark registrations and the number of dif- York.19 ferent goods counterfeited. For example, if bracelets, earrings, and rings The value of Motley’s reasoning is that it identifies the factors a (all in the description of goods in the registration) are counterfeited court should consider in making the discretionary award. It increases using two different trademarks, the statutory damage amount is the likelihood that a range of factors are considered and reduces the multiplied by three because there are three different types of goods, likelihood that a court reacts merely on the basis of a feeling about then by two because there are two trademarks. This analysis turns the case. This approach also encourages placing the case in a larger “type of goods or services” into key terms, which might be the sub- perspective—its deterrence effect on others. ject of expert testimony (to determine whether particular goods are If the same approach were used in the Ninth Circuit—closely fol- of one or more types) and must be considered by the court in its com- lowing copyright precedent—the guiding case would probably be Los putation. Angeles News Service v. Reuters TV International,20 which lists these None of the courts that used the Nike analysis referred to the class factors: of the trademark registrations. There is no indication in the statute The district court has wide discretion in determining the or its legislative history that the phrase “type of goods or services” amount of statutory damages to be awarded, constrained only is meant to refer to the different classes on a registration. But there by the specified maxima and minima. The court is guided by are a number of important advantages to using the class system as a what is just in the particular case, considering the nature of the multiplier on damage awards under the phrase “type of goods or ser- copyright, the circumstances of the infringement and the like. vices”—especially when compared to using “type of goods” as a mul- Because awards of statutory damages serve both compen- tiplier without reference to class. satory and punitive purposes, a plaintiff may recover statutory First, as the Nike analysis shows, this creates the separate issue of damages whether or not there is adequate evidence of the determining what are the “type of goods or service.” This results in actual damages suffered by plaintiff or of the profits reaped by another issue upon which courts must hear testimony, a process at defendant in order to sanction and vindicate the statutory odds with one feature of statutory damages: allowing courts to more policy of discouraging infringement.21 readily award damages without extensive proof on a party’s income This description may be distilled into six criteria to be used when or losses. Thus, while the concept of statutory damages allows sim- determining statutory damages: 1) what is just, 2) the nature of the plification of the awards process, determining the type of goods adds trademark, 3) the circumstances of the infringement, 4) compensa- a complication. However, if the class system were used, courts would tion to the plaintiff, 5) deterrence of the defendant, and 6) deterrence not have to make an independent finding; the answer would lie in the of other infringers. None of the three district court cases within the registration. This would better serve the purpose of a simplified Ninth Circuit identified or used these factors.22 damage calculation process. These factors are similar, but not identical, to those used in the Second, the Nike analysis hinges on the exact description chosen Second Circuit. Both include the factors of deterrence of the defen- by the registrant. For example, if a registration specifies “boys’ dant and deterrence of other infringers. The Ninth Circuit’s “nature underwear” and “girls’ underwear,” that registrant is in a much bet- of the trademark” and “compensation to plaintiff” are similar to the ter position to argue that it has two types of goods (assuming the Second Circuit’s “the value of the mark” and “revenues lost by infringer sold boys’ and girls’ underwear) than a registrant with a plaintiff.” The Ninth Circuit’s “circumstances of the infringement” description of “children’s underwear.” Under the analysis of Nike, a

Los Angeles Lawyer April 2005 39 registrant of boys’ underwear and girls’ under- mining damages and is depriving the court of Polo Ralph Lauren, 1999 U.S. Dist. LEXIS 7913; Sara wear would receive double the damages of a this information after representing in its ex- Lee Corp. v. Bags of New York, Inc., 36 F. Supp. 2d 161 (S.D. N.Y. 1999); Gucci America, Inc. v. Gold registrant of children’s underwear. It makes parte motion that it needed the information. Center Jewelry, 997 F. Supp. 399 (S.D. N.Y. 1998); little sense to reward such an arbitrary dif- If a Ninth Circuit district court were faced Guess?, Inc. v. Gold Center Jewelry, 997 F. Supp. 409 ference. with this situation and it chose to use the cri- (S.D. N.Y. 1998); Playboy Enters., Inc. v. Asiafocus Third, the class system is established and teria of Los Angeles News, it could consider Int’l, Inc., 1998 U.S. Dist. Lexis 10359 (E.D. Va. allocated by the agency with expertise—the the plaintiff’s conduct under the “what is 1998). 10 U.S. Patent and Trademark Office. It is just” prong of the analysis. However, in the Philip Morris USA, Inc. v. Felizardo, 2004 U.S. Dist. LEXIS 11154 (S.D. N.Y. 2004); Rolex Watch arguably better to rely on its determination, Second Circuit, the plaintiff’s conduct is not U.S.A., Inc. v. Zeotec Diamonds, 2003 U.S. Dist. which is likely to be more consistent, than to one of the factors considered. LEXIS 5595 (C.D. Cal. 2003); Microsoft Corp. v. V3 rely on determinations by individual courts Statutory damage trademark cases have Solutions, Inc., 2003 U.S. Dist. LEXIS 15008; Copyright and witnesses. already covered a fair amount of ground. L. Rep. (CCH) ¶28, 661 (N.D. Ill. 2003); Rolex Watch Fourth, using a class system (awarding The Second Circuit decisions reflect the most U.S.A., Inc. v. Jones, 2002 U.S. Dist. LEXIS 6657 (S.D. N.Y. 2002); Microsoft Corp. v. Logical Choice, thorough analysis. Ninth Circuit cases have damages per mark per class) is better than Inc., 2001 U.S. Dist. LEXIS 479, Copyright L. Rep. using the system most courts have followed— not been as carefully reasoned. None of the (CCH) ¶28, 211 (E.D. Ill. 2001); Microsoft Corp. v. awarding damages per registration. For exam- cases has read the statute in light of the exist- Software Wholesale Club, Inc., 129 F. Supp. 2d 995 ple, if a registration covers clothes in class 25 ing trademark classification system. This is (S.D. Tex. 2000); Microsoft Corp. v. Compusource and fragrance in class 3, and a counterfeiter particularly unfortunate because using the Distribs., Inc., 115 F. Supp. 2d 800 (E.D. Mi. 2000); Altadis U.S.A., Inc. v. Monte Cristo de Tabacos, 2001 sold both, it would stand to reason that there classification system in computing damages U.S. Dist. LEXIS 6892 (S.D. N.Y. 2001). should be a greater measure of damages. But would more evenly reward plaintiffs and 11 E.g., Altadis U.S.A., Inc., 2001 U.S. Dist. LEXIS since most courts use only the number of would encourage efficient use of the trade- 6892. registrations, there would only be one unit of mark application system. ■ 12 Gucci v. Duty Free Apparel, 315 F. Supp. 2d 511; damages. However, if the same mark were Rolex v. Zeotec, 2003 U.S. Dist. LEXIS 5595; Microsoft v. V3, 2003 U.S. Dist. LEXIS 15008; Tommy covered by two registrations—one in class 3 1 There are actually two types of trademark statutory Hilfiger Licensing, Inc. v. Goody’s Family Clothing, damages, one type for counterfeiting, 15 U.S.C. and one in class 25—most courts would Inc., 2003 U.S. Dist. LEXIS 8788 (N.D. Ga. 2003); §1117(c), and one for cybersquatting, 15 U.S.C. award two measures of damages. There seems Microsoft v. Logical Choice, 2001 U.S. Dist. LEXIS §1117(d). Only statutory damages for counterfeiting no reason why a trademark owner of one 479; Microsoft v. Tierra, 184 F. Supp. 2d 1329 (N.D. are discussed in this article. Ga. 2001); Microsoft v. Software Wholesale, 129 F. multiclass registration should be treated dif- 2 Guess?, Inc. v. Gold Center Jewelry, 997 F. Supp. 409, Supp. 2d 995; Microsoft v. Compusource, 115 F. ferently than the owner of two registrations, 411 (S.D. N.Y. 1998) (citing Senate report). Supp. 2d 800; Polo Ralph Lauren, 1999 U.S. Dist. 3 15 U.S.C. §1116(d)(1)(B)(i); Momentum Luggage each in a different class. LEXIS 7913; Gucci v. Gold Center, 997 F. Supp. 399. & Leisure Bags v. Jansport, Inc., 2001 U.S. Dist. LEXIS To reward multiple, single-class registra- 13 Tommy Hilfiger v. Goody’s, 2003 U.S. Dist. LEXIS 1517 (S.D. N.Y. 2001) (no counterfeit goods without tions encourages inefficient trademark appli- 8788; Louis Vuitton Malletier v. Veit, 211 F. Supp. 2d a registration). 567 (E.D. Pa. 2002). cations—numerous applications in individual 4 15 U.S.C. §1116(d)(1)(B)(ii); Tommy Hilfiger 14 Philip Morris v. Felizardo, 2004 U.S. Dist. LEXIS classes, instead of a single multiple class appli- Licensing, Inc. v. Goody’s Family Clothing, Inc., 2003 11154; Altadis, 2001 U.S. Dist. LEXIS 6892; Guess? cation. Allowing a multiplier based on class U.S. Dist. LEXIS 8788 n.8 (N.D. Ga. 2003) (no statu- v. Gold Center, 997 F. Supp. 409. tory damages for trim package that does not include would make better public policy by encour- 15 Rolex Inc. v. Zeotec, 2003 U.S. Dist. LEXIS 5595; a nearly identical mark). aging efficient registrations. Microsoft v. Software Wholesale, 129 F. Supp. 2d 5 Carroll Shelby Licensing, Inc. v. Superperformance 995. One issue not addressed by any of the Int’l, Inc., 251 F. Supp. 2d 983 (D. Mass. 2002) (sum- 16 Petmed Express, Inc. v. Medpets.com, Inc., 2004 U.S. courts awarding statutory damages is how to mary judgment granted for defendants because the Dist. LEXIS 19176 (S.D. Fla. 2004); Louis Vuitton, 211 deal with the lazy plaintiff. For example, infringing goods were not listed in the registration F. Supp. 2d 567; Rolex Watch U.S.A., Inc. v. Jones, and therefore were not counterfeit). See also 15 U.S.C. consider a plaintiff that seeks ex parte relief. 2002 U.S. Dist. LEXIS 6657 (S.D. N.Y. 2002). §1115(a) (registration establishes exclusive rights to In its application for ex parte relief it argues 17 Sara Lee Corp. v. Bags of New York, Inc., 36 F. Supp. goods listed in the registration); 15 U.S.C. §1057(b) that it needs to seize the defendant’s records 2d 161 (S.D. N.Y. 1999). (registration is evidence of exclusive right to use the 18 Polo Ralph Lauren, L.P. v. 3M Trading Co., 1999 so that it will have information about the listed goods). U.S. Dist. LEXIS 7913 (S.D. N.Y. 1999). extent of counterfeiting. The application is 6 15 U.S.C. §§1117(c)(1), (2). 19 Gucci America, Inc. v. Duty Free Apparel, 315 F. 7 Polo Ralph Lauren, LP. v. 3M Trading Co., 1999 U.S. granted and defendant’s records of its sales Supp. 2d 511 (S.D. N.Y. 2004), amended by, injunc- Dist. LEXIS 7913 (S.D. N.Y. 1999) (statutory damages and profits are seized. tion granted at Gucci America, Inc. v. Duty Free of $500 per mark for some counterfeits where only basis In litigation the plaintiff claims that it is Apparel, 328 F. Supp. 2d 439 (S.D. N.Y. 2004); Polo was that allegations of complaint were true by virtue Ralph Lauren, 1999 U.S. Dist. LEXIS 7913; Sara Lee, not seeking its lost profits, so that it does of default). 36 F. Supp. 2d 161. not have to respond to the defendant’s dis- 8 Gucci America, Inc. v. Duty Free Apparel, 315 F. 20 Los Angeles News Serv. v. Reuters TV Int’l, 149 F. covery requests about its financial informa- Supp. 2d 511 (S.D. N.Y. 2004), amended by, injunc- 3d 987 (9th Cir. 1998), cert. denied, 525 U.S. 1141 tion granted at Gucci America, Inc. v. Duty Free tion. In another economizing move, the plain- (1999). Apparel, 328 F. Supp. 2d 439 (S.D. N.Y. 2004); Philip tiff decides not to hire a damage expert. At 21 Id. at 996 (Citations and quotations omitted.). Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 22 Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 trial, the plaintiff simply asks the court to 494 (C.D. Cal. 2003); Rolex Watch U.S.A., Inc. v. F.R.D. 494 (C.D. Cal. 2003); Rolex Watch U.S.A., Inc. award statutory damages. Brown, 2002 U.S. Dist. LEXIS 10054 (S.D. N.Y. v. Zeotec Diamonds, 2003 U.S. Dist. LEXIS 5595 While this is within the scope of the 2002). (C.D. Cal. 2003); Microsoft Corp. v. Wen, 2001 U.S. 9 Petmed Express, Inc. v. Medpets.com, Inc., 2004 statute, it was enacted for those situations in Dist. LEXIS 18777 (N.D. Cal. 2001). U.S. Dist. LEXIS 19176 (S.D. Fla. 2004); Philip Morris which accurate information about the defen- 23 Cf. 17 U.S.C. §504(c) (copyright damages statute). v. Castworld, 219 F.R.D. 494; Rolex Watch v. Brown, 24 Nike, Inc. v. Variety Wholesalers, 274 F. Supp. dant’s conduct is not available. In this case, 2002 U.S. Dist. LEXIS 10054; Louis Vuitton Malletier 1352, 1374 (S.D. Ga. 2003); Playboy Enters., Inc. v. however, the plaintiff has that information in v. Veit, 211 F. Supp. 2d 567 (E.D. Pa. 2002); Microsoft Asiafocus Int’l, Inc., 1998 U.S. Dist. Lexis 10359 (E.D. the records it seized but does not want to be Corp. v. Wen, 2001 U.S. Dist. LEXIS 18777 (N.D. Cal. Va. 1998). A third case recognized this approach, but 2001); Rolex Watch U.S.A., Inc. v. Voiers, 2000 U.S. bothered to analyze it and present it to the elected not to use it. See Gucci America, Inc. v. Duty Dist. LEXIS 22127 (S.D. N.Y. 2000), adopted by, court. The plaintiff is depriving the court of Free Apparel, 315 F. Supp. 2d 511 (S.D. N.Y. 2004). judgment entered by Rolex Watch U.S.A., Inc. v. information that would be useful in deter- 25 Nike, 274 F. Supp. 1352, 1374. Voiers, 2000 U.S. Dist. LEXIS 22128 (S.D. N.Y. 2000);

40 Los Angeles Lawyer April 2005 The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

Improving Cross-Examination of Expert Witnesses by David Nolte

IN MANY RESPECTS, the cross-examination of an expert witness is the same as question’s exceptions or subtleties to avoid answering in the desired way. that of other witnesses. Some basics include: Be brief, do not quarrel with the Most questions should be leading, meaning the question can be answered witness, never ask a question to which you do not already know the answer, avoid with a yes or a no. This has the practical effect of having the attorney serve as a asking one question too many, and so on. However, there are some important dif- witness, with the real witness ratifying the attorney’s testimony. However, as long ferences. as you have a good deposition transcript to support you, some questions are bet- First, preparation is even more important when dealing with an expert wit- ter left open for the expert to complete. Some examples, all of which ask for spe- ness. Your research should include: cific objective data, include: • Has this witness written or testified previously with inconsistent conclusions • How much money did you make last year testifying for other plaintiffs? to those being taken in your case? • Of the thousands of medical journals published around the world, how many • Does the expert always testify for the same side? An impartial expert can con- of them have asked you to publish the opinions you are expressing in this case? sistently apply his or her trade on behalf of plaintiffs and defendants. • When is the last time you treated a real patient? Attacking the opposing expert’s theory or conclusions is much more difficult Lawyers often try to impeach an expert with the fact that he or she has been than attacking their qualifications. To prepare for the substance of the opinions, paid for his work. This backfires as often as it works. For example, if the expert you should be schooled by your (equally competent) expert. Your expert can edu- has put significant time and cost into the matter, does this indicate thorough- cate you as to weaknesses and flaws in the opposing position as well as the jar- ness rather than bias? If the expert has a high hourly rate, does this mean that gon necessary to understand what is being said. Your expert may also know infor- he or she is a liar, or rather that he or she is eminently qualified and in high mation about your opposing expert that you would otherwise have difficulty demand? The impeachment from fee-related questions is minor compared to the learning. witness’s confidence and preparation on other matters and the effectiveness of Your cross-examination plan should emphasize quality over quantity. The more the rest of your cross-examination. qualified and/or experienced the expert, the less likely that you will gain much Some experts attempt to demonstrate their superiority by using technical jar- from a more lengthy cross. The reason is that the expert has years of training and gon. When dealing with a pompous expert, you must know the expert’s lingo. Get experience from which to draw in answering your questions. A wide-ranging the expert to agree with your alternative explanation that uses everyday language. cross is more likely to give the witness a new chance to demonstrate his exper- Doing this will demonstrate the expert’s arrogance and will raise your credibil- tise or explain his views. Particularly with complex subjects, focus on the big prob- ity with the jury. lems that you know you can demonstrate. The Order of Questions What Questions to Ask You should generally begin and end your cross-examination with your strongest Your deposition should have uncovered the assumptions upon which your oppos- points. Otherwise, use the following sequence: ing expert relies. These assumptions often control the result the expert reaches • Practically every opposing expert will have opinions that support your case. This and will likely be the centerpiece of your examination. Your ultimate goal is to pro- corroborating testimony will have a stronger impact than the same testimony from vide the jurors with the basis to argue against the expert’s conclusions by show- your side. Therefore, start your examination with the areas or themes that will ing that they are based on assumptions that the jury independently rejects. allow you to turn the opposing expert into your witness. At the beginning, your The jury will generally find it much easier to critique the assumptions than to chal- opposing expert will be less hostile. lenge the expert’s science or techniques. • Next, dilute the opposing expert’s opinions by seeking agreement regarding All cross-examination is better when done with short and simple sentences. possible alternative explanations that favor your theories. A jury will often give Add only one new fact or point with each question. This makes it difficult for the credit to a mere possibility, even if this possibility may not be probable. witness to disagree without appearing obstinate. Short questions provide less • After the corroborative portion of the cross-examination, ask the more destruc- room for the witness to squirm away from your control or provide explanations tive and critical questions. However, do not be aggressive, as this might cause that you would rather not hear. the jury to be sympathetic toward the expert. You should attack an expert only The use of questions that do not contain extra details is particularly impor- when you believe the jury will see the witness as being unfair, arrogant, or dis- tant when dealing with the complex subjects that experts address. Experts are respectful of the truth. Even then, you must never cross the lines between tough usually careful and understand the importance of precision. Avoid questions con- and mean or confident and arrogant. taining absolute words (such as “always” or “never”) or unnecessary adjectives Experts often make a huge difference in the trial. Additional attention to the expert (such as “clearly” or “rapidly”). Otherwise, the expert may take advantage of your portion of your case is usually worth the effort.

David Nolte is a principal at Fulcrum Financial Inquiry LLP, with 30 years of experience performing forensic accounting, auditing, business appraisals, and related ﬁnancial consulting. He regularly serves as an expert witness.

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See display ad on page 45. context of commercial litigation and forensic investigations: izing in litigation support and expert witness testimony. accounting/fraud, securities, intellectual property (including Services include valuations for goodwill loss, estate and gift ZIVETZ, SCHWARTZ & SALTSMAN, CPAs damages analyses, licensing and valuation), breach of con- tax planning (family limited partnerships), lost profit analy- 11900 West Olympic Boulevard, Suite 650, Los Angeles, tract, lost profits, royalty audits, corporate governance, sis, mergers and acquisitions, goodwill impairment, fair- CA 90064-1151, (310) 826-1040, fax (310) 826-1065. business valuation, real estate, construction, bankruptcy. ness and solvency opinions, ESOPs, incentive stock op- Web site: www.zsscpa.com. Contact Lester J. Practitioners include former partners at big four accounting tions, capital raises, corporate, partnership, and marital Schwartz, CPA, DABFE, DABFA, Michael D. 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Expert witness testimony prepara- gation support, including forensic accounting, business 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert tion, and settlement negotiations and consultations. See appraisals, family law accounting, business and profes- @schulzehaynes.com. Web site:www.schulzehaynes.com. display ad on page 46. sional valuations, damages, fraud investigations, and lost Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost earnings. Krycler, Ervin, Taubman and Walheim is a full- ADA/DISABILITY DISCRIMINATION service accounting firm serving the legal community for profits, economic damages, expert testimony, discovery more than 20 years. See display ad on page 53. assistance, business and real estate valuations, construc- BIDDLE CONSULTING GROUP, INC. tion claims, corporate recovery, real estate transactions, fi- 2868 Prospect Park Drive, Suite 110, Rancho Cordova, DIANA G. LESGART, CPA, CFE, AN nancial analysis and modeling, major professional organi- CA 95670, (916) 266-6722, ext. 113, fax (916) 266-4170, ACCOUNTANCY CORP. zations, and have experience across a broad spectrum of e-mail: [email protected]. Web site: www.biddle.com. 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, industries and business issues. Degrees/licenses: CPA; Contact Dan Biddle, PhD, president. We specialize in (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 CVA; CFE; PhD-economics. test development, EEO/AA reviews, validation studies @msn.com. Contact Diana G. Lesgart, CPA, CFE. Spe- (content, criterion-related), and adverse impact analyses. STONEFIELD JOSEPHSON, INC. cialized accounting and litigation support services in the We have a special emphasis in the protective service fields. 1620 26th Street, Suite 400 South, Santa Monica, CA areas of family law litigation, tracing of assets, pension plan Over 30 staff. Degrees/licenses: MA, PhD, other staff with 90404, (310) 453-9400, fax (310) 453-1187, e-mail: tracing, forensic accounting, business valuation, goodwill, various degrees. expert testimony, commercial litigation, fraud investiga- [email protected]. Web site: www.sjaccounting tions, economic damages, and real estate litigation. Over .com. Contact Jeffrey Sumpter, director of financial HAIGHT CONSULTING 21 years’ accounting experience with 17 years’ litigation recovery. Stonefield Josephson, Inc., is a California-based 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) support specialization. Assigned as §730 accounting ex- certified public accounting and business advisory firm 454-2988, fax (310) 454-4516. Contact Marcia Haight. pert. Ms. Lesgart’s profile can be found at www.jurispro founded in 1975. Our services include assurance/account- Human resources expert knowledgeable in both federal .com. using “Lesgart” under Search by Name. Expert is ing, business consulting (profit enhancement, finance and California law. Twenty-five years’ corporate human re- fully English/Spanish bilingual. sourcing, mergers and acquisitions, family-owned busi- sources management experience plus over 15 years as a ness, succession planning, executive incentive compensa- Human Resources Compliance Consultant in California. LEWIS, JOFFE & CO, LLP tion, business plans and budgeting); business valuation, fi- Specializations include sexual harassment, ADA/disability 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA nancial recovery, forensic services, litigation support, pub- discrimination, other Title VII and FEHA discrimination and 90024, (310) 475-5676, fax (310) 475-5268. Contact lic companies services, and tax consulting and compli- harassment, retaliation, FMLA/CFRA, and safety. Court- Brian Lewis, CPA, CVA. Forensic accounting, business ance. Service area: throughout the United States and inter- room testimony and deposition experience. Retained 60% valuations, cash spendable reports, estate, and trust and nationally. See display ad on page 11. by defense, 40% by plaintiff. Audit employer’s actions in

44 Los Angeles Lawyer April 2005 • Expert Witness Testimony White • Forensic Accounting & Economic Analysis Zuckerman • Damage Analysis of Lost Proﬁts and Earnings in Commercial and Personal Litigation Warsavsky • Business Valuation • Fraud Investigation Luna • Marital Dissolution • Accounting and Tax Planning/Preparation Wolf • Client Service Oriented Hunt LLP • Excellent Communication Skills Certiﬁed Public Accountants

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Free In-House MCLE Presentations & Initial Consultations preventing and resolving discrimination, harassment, and retaliation issues. Assess human resources policies and Over 25 years of Experience in the Construction Industry practices for soundness, for comparison to prevailing practices, and for compliance. Evaluate employer responsiveness to complaints and effectiveness of employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination of documents, and expert KENNETH J. FISCHBECK testimony.

CONSTRUCTION EXPERT WITNESS ALCOHOL/DRUG/ADDICTION

ADDICTION FORENSICS GROUP 511 Oak Street, Laguna Beach, California 92651 11301 West Olympic Boulevard, Suite 323, Los Angeles, 714.609.7481 • Fax 949.715.6714 CA 90064, (310) 966-1907, fax (310) 477-0661, e-mail: [email protected]. Web site: www [email protected] .becksonmd.com. Contact Mace Beckson, MD. Board CA Lic #475327 certiﬁed Addiction/Forensic Psychiatry; UCLA full-time faculty; Distinguished Fellow, APA; alcohol, drugs, addictions, sexual compulsions, suicide, posttraumatic stress disorder, stalking, and professional sexual misconduct.

ALLERGY/ASTHMA/IMMUNOLOGY ™ ™ OFS • The Business Doctors ALLERGY ASTHMA RESPIRATORY CARE MEDICAL CENTER, INC. ● Sarbanes-Oxley (SOX) Compliance/COBIT IT Compliance 2600 Redondo Avenue, Suite 400, Long Beach, CA ● Certiﬁed Expert Witness, Expert Counseling, Analysis, Practices and Expert 90806, (562) 997-7888, fax (562) 997-8884, e-mail: [email protected]. Web site: www.allergyasthma Testimony in Business Litigation .info. Contact Andrea Newsom. Specialties include latex ● Business Judgment; Prime-Sub Disputes allergy, asthma, food allergy, drug allergy, anaphylaxis, si- nusitis, hives, sick building syndrome, mold, and environ- ● Supply Chain Implementation & Practices: Procurement & Purchasing Issues/ mental disease. Experience, civil: retained or reviewed Disputes, Supplier/Vendor Disputes; Corporate Supplier Diversity Programs more than 70 latex products liability cases, retained for al- Contact BJ Hawkins PhD Certiﬁed Expert Witness lergy and internal medicine cases in the areas of occupational asthma, mold exposure, civil litigation, sick building 310.821.1893 FAX 310.821.1083 E-MAIL [email protected] syndrome. Multiple chemical sensitivity, smoke inhalation, and toxic exposure.

www.ofs3.com POST OFFICE BOX 4182, INGLEWOOD, CALIFORNIA 90309 ROGER M. KATZ MD 1304 15th Street at Arizona, Suite 102, Santa Monica, CA 90404, (310) 393-1550, fax (310) 576-3601, e-mail: [email protected]. Web site: www.rogermkatzmd.com. Contact Roger M. Katz, MD. IME/expert witness/review. Experienced plaintiff and defense. Expert witness record Zivetz, Schwartz & Saltsman CPA’s review, IME.

With more than thirty years of experience as expert witnesses ANESTHESIOLOGY in testimony, pre-trial preparation, settlement negotiations, ROGER F. DONENFELD, MD consultations and court appointed special master. 10557 Rocca Place, Los Angeles, CA 90077, (310) 471- 3777, fax (323) 209-0010, e-mail: rfdonenfeld@hotmail .com. Contact Roger F. Donenfeld, MD. Chart review and depositions. Expert witness, board certified, 1987. Anesthesiology fellowship-trained. Ivy League, board re- Some of our specialties consist of: view textbook author. Certified medical board of CA expert. Active clinical anesthesia practice. Extensive medical • Forensic Accounting • Marital Dissolutions legal experience. • Business Valuation and Appraisal • Lost Profits APPRAISAL AND VALUATION • Economic Damages • Accounting Malpractice CHARLES RIVER ASSOCIATES INCORPORATED 1055 East Colorado Boulevard, Suite 420, Pasadena, CA • Employee Benefit Plans • Entertainment Entities 91106-2327, (626) 564-2000, fax (626) 564-2099. Web site: www.crai.com.Contact John Hirshleifer, vice • Financial and Economic Analysis • Shareholder Disputes president. CRA provides economic, financial, and business analysis in such areas as antitrust, contracts, dam- • Wrongful Termination ages, energy, environment, entertainment, healthcare, intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valua- Tel: (310) 826-1040 Lester J. Schwartz, CPA, DABFA, DABFE tion. In concert with leading academic and industry ex- Fax: (310) 826-1065 Michael D. Saltsman, CPA, MBA perts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial prepara- E-mail: [email protected] Ron B. Miller, CPA, ABV, CFE tion and testimony) to attorneys, executives, and govern- David L. BASS, CPA www.zsscpa.com ment officials the world over. See display ad on page 51. 11900 W. Olympic Blvd. Dave Dichner, CPA, ABV, CVA COLDWELL BANKER COMMERCIAL, ASG Suite 650 Sandy Green, CPA 2200 Pacific Coast Highway, Suite 318, Hermosa Beach, Los Angeles, CA 90064-1199 CA 90254, (310) 937-7700. Coldwell Banker Commercial ASG, specialties: Real estate, valuations, business valuations, condemnations, and FF & E. As part of the Coldwell

46 Los Angeles Lawyer April 2005 Banker Commercial group, over 450 offices nationwide. Additional services for special purpose mixed use and con- Matthew Lankenau taminated/toxic properties, environmental/civil engineering. 213-996-2549 Right-of-way eminent domain, structural defect reports, [email protected] and construction defect reports. In-house CPA, general contractor, and engineers. Approved for IRS, federal, URS is the nation’s largest engineering, consulting and construction state, and municipal courts. Offices in Orange County, San services firm. URS specializes in the resolution of construction disputes. Diego/Inland Empire, and Northern California. See display ad on page 67. Dispute Resolution & Forensic Analysis Technical Expertise FULCRUM FINANCIAL INQUIRY Design/Construction Claims Architecture 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA Environmental Claims Engineering 90017, (213) 787-4100, fax (213) 787-4141, e-mail: Bid/Cost/Damage Analysis Scheduling [email protected]. Web site: www.fulcruminquiry Construction Defect Analysis Construction Management .com. Contact David Nolte. Our professionals are experi- Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing enced CPAs, MBAs, ASAs, CFAs, affiliated professors and Expert Witness Testimony Environmental industry specialists. Our analysis and research combined Insurance/Bond Claims Geotechnical with unique presentation techniques have resulted in an unequaled record of successful court cases and client re- coveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 2.

HIGGINS, MARCUS & LOVETT, INC. 800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, e-mail: [email protected]. Web site: www.hmlinc .com. Contact Mark C. Higgins, ASA, president. The ﬁrm has over 20 years of litigation support and expert testimony experience in matters involving business valuation, economic damages, intellectual property, loss of business goodwill, and lost proﬁts. Areas of practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 43.

KAPLAN ABRAHAM BURKERT & COMPANY Forensic valuation consultants. 5950 Canoga Avenue, Suite 200, Woodland Hills, CA 91367, (818) 888-0066, fax (818) 888-8860. Contact Michael G. Kaplan, CPA, CVA, CFFA. Expert witness services and preparation in matters involving business disputes, goodwill, economic damages, loss of earnings and proﬁts, fraud and embez- zlement, forensic accounting, business valuation, marital dissolution, legal and accountants’ malpractice, wrongful termination, intellectual property, and bankruptcy. Member of Voir Dire Partners, LLC. Affiliated offices nationwide.

KROLL 660 S. Figueroa St., Suite 900, Los Angeles, CA 90017, (213) 443-6090, fax: (213) 443-6055. Contact Troy Dahlberg, CPA/ABV [email protected] or Christian Tregillis, CPA/ABV ctregillis@krollworldwide .com. Investigations, economic damages, and valuation firm with offices across the country and around the globe. Specialties include accounting, financial, economic and statistical analysis, as well as computer forensics, in the context of commercial litigation and forensic investigations: accounting/fraud, securities, intellectual property (including damages analyses, licensing and valuation), breach of contract, lost profits, royalty audits, corporate governance, business valuation, real estate, construction, bankruptcy. Practitioners include former partners at big four accounting firms, law enforcement/FBI, computer forensics, and appraisers. See display ad on page 49.

Los Angeles Lawyer April 2005 47 sis, mergers and acquisitions, goodwill impairment, fair- escrow, and construction defects/disputes, and title ness and solvency opinions, ESOPs, incentive stock op- insurance. tions, capital raises, corporate, partnership, and marital dissolutions. Comprehensive economic, industry, and mar- ANDELA CONSULTING GROUP, INC. ket research. Extensive experience in expert witness testi- 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA mony, pretrial preparation, and settlement negotiations. 91403, (818) 380-3102, fax (818) 501-5412, e-mail: See display ad on page 47. [email protected]. Contact Thomas A. Tarter, managing director. Former CEO of two banks. Lending, ARCHITECTURAL FORENSICS forgery, endorsements, letters of credit, guarantees, lender liability, checking accounts, credit cards, and SCHWARTZ / ROBERT & ASSOCIATES, INC. bankruptcy. Expert witness, litigation consulting. Expert 42 Faculty Street, Thousand Oaks, CA 91360, (805) referral service escrow, corporate governance, mort- 777-1115, cell (818) 825-3247, fax (805) 777-1172, gage banking, and real estate. Over 500 cases nation- e-mail: [email protected]. Web site: www ally. See display ad on page 76. .schwartzrobert.com. Contact Robert I. Schwartz, AIA. Real property development procedures & practices, all MARK E. BUCHMAN building types, sizes & phases. Professional evaluation 11973 San Vicente Boulevard, Suite 213, Los Angeles, of building design errors & omissions, building code CA 90049, (310) 472-4677, fax (310) 472-5477, e-mail: compliance & professional standards of practice. [email protected]. Contact Mark E. Buchman. Retired Forensic investigation of construction defects. Repair CEO of two publicly held banks. GNMA president under cost estimates. Construction contract/subcontract per- President Reagan. Forty-three years’ banking experience, formance—project management administration & cost mostly in senior executive positions. Advises on general accounting, CPM scheduling, cost estimating, change management, lending policy, and board of director issues. order administration, quality assurance & building per- Currently director of a national bank. Prefer southern Cali- formance. Evaluation of delay claims. Documentation of fornia cases. Education: BS, University of Pennsylvania, major property/casualty insurance losses. Excellent liti- Wharton School; Advanced Management Program, Har- gation support & trial exhibit preparation. Expert witness vard Business School. testimony. Experienced AAA arbitrator & mediator. BANKRUPTCY/TAX Large & complex cases. Member, Dispute Resolution Boards. ANDELA CONSULTING GROUP, INC. 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA SPIEGEL PROPERTY DAMAGE CONSULTING & 91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter FORENSICS @earthlink.net. Contact Thomas A. Tarter, managing (800) 266-8988, fax (909) 591-7274, e-mail: brispi711@aol director. Former CEO of two banks. Lending, forgery, en- .com. Web site: www.propertydamageinspections.com. dorsements, letters of credit, guarantees, lender liability, Contact Brian Spiegel/David Spiegel. Consultants and checking accounts, credit cards, and bankruptcy. Expert expert witnesses (plaintiff and defense), mold contamina- witness, litigation consulting. Expert referral service es- tion structure and contents, mold remediation standards of crow, corporate governance, mortgage banking, and real care, water damage/water intrusion detection/concrete estate. Over 500 cases nationally. See display ad on moisture testing, sewage backflows, and fire and smoke page 76. damage. Troubleshooting/cause and origin. Invasive and noninvasive testing. Industry standards for construction BALLENGER, CLEVELAND & ISSA, LLC and restoration. Insurance claims experts, determine if COMPUTER EVIDENCE 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA damage is related to claim, flooring forensics, construction 90024, (310) 873-1717, fax (310) 873-6600. Contact defect, and detailed construction cost estimates. Inspec- DataChasers® Inc. Bruce W. Ballenger, CPA, executive managing directions, formal reports and litigation support. Lic. Gen. Con- tor. Services available: assist counsel in determining over- stractors B C15 C33 C61/D-52. Lic. Gen Contractor all strategy. Help evaluate depositions and evidence. Pro- #299472. Degrees/licenses: CRs, CIEs, CMRs, IICRC vide well-prepared, well-documented, and persuasive in- CERTIFIED DATA Masters. See display ad on page 42. court testimony regarding complicated accounting, finan- DISCOVERY ARCHITECTURE cial, and business valuation matters, fairness of interest rates, feasibility of reorganization plans, fraudulent con- Complete Forensic PHILIP KROEZE, AIA, CONSULTING veyances, bankruptcies, mergers and acquisitions, and ARCHITECTURAL SERVICES management misfeasance/malfeasance. More than 100 Examinations 19 Summerside, Coto De Caza, CA 92679, (949) 589- open-court testimonies, federal and state, civil and crimi- 0554, fax (949) 589-4351, e-mail: [email protected]. Con- nal. See display ad on page 48. ¥ Hidden and or/Deleted Files, tact Philip Kroeze, AIA. Expert witness: architectural and Document, Graphics, E-mail, and engineering standard of care, construction defects, mois- GREENBERG GLUSKER FIELDS CLAMAN any Internet Use. ture intrusion, and construction documents. Thirty-five MACHTINGER & KINSELLA LLC years of experience in design and construction, residential, 1900 Avenue of the Stars, Suite 2100, Los Angeles, CA ¥ File Dates Associates with All Files. commercial, and office buildings. Exhibits (photos, models, 90067, (310) 201-7456, fax (310) 553-0687, e-mail: ¥ Intellectual property resolution. charts, renderings). Service area: California and Nevada. kblock@ggfirm.com. Web site: www.ggfirm.com. Contact Karl E. Block. Expert testimony and consulting. ¥ Internet Use & Date Codes BANKING STONEFIELD JOSEPHSON, INC. ¥ Expert Witness and Special Master ADVISORS/EXPERTS @ MCS ASSOCIATES 1620 26th Street, Suite 400 South, Santa Monica, CA ¥ Internet profiling, tracing and 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 90404, (310) 453-9400, fax (310) 453-1187, e-mail: recovery. 263-8700, fax (949) 263-0770, e-mail: info@mcsassociates [email protected]. Web site: www.sjaccounting Contact Contact Jeffrey Sumpter, director of financial ¥ Assessment of Discovery Evidence. .com. Web site: www.mcsassociates.com. .com. Norman Katz, managing partner. Nationally recognized recovery. Stonefield Josephson, Inc., is a California-based ¥ State of the art Laboratory/ banking, finance, insurance, and real estate consulting certified public accounting and business advisory firm Equipment group (established 1973). Experienced litigation consul- founded in 1975. Our services include assurance/account- ¥ Complete CVs and References tants/experts include senior bankers, lenders, consultants, ing, business consulting (profit enhancement, finance economists, accountants, insurance underwriters/brokers. sourcing, mergers and acquisitions, family-owned busi- Available. 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48 Los Angeles Lawyer April 2005 BIOMECHANICS

FRED M. JOHNSON, PHD TRUST DEED FORECLOSURES P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax “Industry Specialists For Over 18 Years” (714) 526-6662. Contact Fred M. Johnson, PhD. For t Witkin & Eisinger we specialize in the Non-Judicial those who seek the most qualified and the highest forensic We try to be the Best–Not the Biggest workmanship. Extensive test facility and equipment avail- A Foreclosure of obligations secured by real property able. Lighting and illuminations: light intensity measure- or real and personal property (mixed collateral). DEPENDABILITY SINCE 1961 ments, visual perception, times of sunset, twilight, moon When your client needs a foreclosure done profession- INTEGRITY ■ COMPETENCE ■ FAIR PRICES ally and at the lowest possible cost, please call us at: rise/set. Product failure analysis: medical devices, glass, ✔ Courthouse Service ✔ Investigative Research chairs (all types), ladders. Slip and fall: scientific testing of 1-800-950-6522 ✔ Process Serving ✔ Court Fax Filing slipperiness on tile, ceramic, walkways, supermarkets and We have always offered free advice to all attorneys. retail industry. Fall from height: stairways, balconies, plat- Agents in major cities throughout the State & Nation form, theatre pit, pole. Biomechanics. Traffic accident re- CALL FOR INFORMATION ¥ NO OBLIGATION construction: cars, trucks, pedestrian, bicycle. Professor of WITKIN physics, fellow Am. Physical Society, consultant to TEL: (213) 483-4900 EISINGER, LLC FAX: (213) 483-7777 ANSI/BIFMA. Member SAE, SATAI, ASTM + ICC. Author & ◆ RICHARD G. WITKIN, ESQ. CAROLE EISINGER of textbook + 60 scientific publications. Over 35 years in 1614 W. TEMPLE STREET, LOS ANGELES CA 90026 research. Extensive expert witness experience. See display ad on page 63.

BUSINESS

ROBERT C. ROSEN 300 South Grand Avenue, Suite 2700, Los Angeles, CA 90071, (213) 362-1000, fax (213) 362-1001, e-mail: [email protected]. Web site: www.rosen-law.com. How do you describe the integrity, Specializing in securities law, federal securities law en- expertise and knowledge of an forcement, securities arbitration and international securities, insider trading, NYSE, AMEX, NASD disciplinary pro- independent advisory firm ceedings, broker-dealer, investment company and investment adviser matters, liability under federal and state secu- such as ours? rities laws, public and private offerings, Internet securities, and law ﬁrm liability. Former chair, LACBA Business & Cor- porations Law Section; LLM, Harvard Law School. More than 30 years practicing securities law, 12 years with the We don't. We demonstrate it. U.S. Securities & Exchange Commission, Washington, DC. Published author/editor of securities regulations, including multivolume treatises. See display ad on page 69.

BUSINESS APPRAISAL/BUSINESS VALUATION

BUSINESS ENTERPRISE APPRAISAL CO., INC. Forensic Accounting & 23801 Calabasas Road, Suite 1016, Calabasas, CA Litigation Consulting 91302, (818) 591-9282, or (800) 928-7463. Contact Larry Grant, ASA or Robert Weinstock, JD, CBA. Ap- praisal of businesses and professional practices for all litigation and nonlitigation purposes, including estate plan- > Forensic & Investigative Accounting ning and taxation, for 706 ﬁlings, FLP and LLC discounts, S corporation elections, corporate dissolutions, economic > Damages Quantification & damages, loss and earnings and condemnation of goodwill. Also real property appraisals. Expert witnesses in all Expert Testimony jurisdictions. Established 1972.

THE CAPANALYSIS GROUP, LLC > Litigation Consulting 550 South Hope Street, Suite 1050, Los Angeles, CA 90071, (213) 892-2568, fax (213) 892-2300, e-mail: > Restatement Investigations [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for > SEC & Corporate Governance Services complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with > Investigative & Security discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of oppos- Technology Consulting ing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and uni- lateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright www.krollworldwide.com infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: For more information, contact: CPAs, CFEs, CVAs, JDs, PhDs economics. Troy Dahlberg • Phone: 213.443.1072 COHEN, MISKEI & MOWREY LLP Chris Tregillis • Phone: 213.443.1091 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail:

Los Angeles Lawyer April 2005 49 Construction Claims [email protected]. Contact Scott Mowrey. Spe- cialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, When you’re handling a business valuations, family law, bankruptcy, and reorgani- construction dispute, you’ll be zation. Degrees/license: CPAs, CFEs, MBAs. See display glad to know who we are. ad on page 57. Pacific Construction DESMOND MARCELLO AND AMSTER Consultants, Inc. will assist in Southern California Office: 6060 Center Drive, Suite 825, Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, uncovering and analyzing facts fax (310) 216-0800. Northern California Office: 228 Bush important to your case. Street, 16th Floor, San Francisco, CA 94104, (415) 439- 8390, fax (415) 439-8391. Web site: www.dmavalue.com. Our highly experienced staff Contact Wes Nutten, Aaron Amster, or Madeleine will provide support from the Mamaux. Litigation consulting, forensic accounting, expert first analysis to the last day in witness testimony, class action claims administration ser- courtÐinvestigating, making the vices, and business valuation services. Staff qualifications include CPA, CMA, ABV, CFA, and ASA designations. complex understandable, and Testimony experience in numerous court jurisdictions. presenting evidence through Established in 1968. See display ad on page 52.

expert testimony and trial FMV OPINIONS, INC. support graphics. 4199 Campus Drive, Suite 210, Irvine, CA 92612, (949) Pacific Construction 759-4499, fax (949) 759-4498, e-mail: pdimeglio@fmv .com. Web site: www.fmv.com. Contact Pamela Consultants, Inc. is responsive, DiMeglio. For over two decades, Mr. Hall has been on the factual, and results-oriented. forefront of valuation of equity interest (common stock, preferred stock, options, carried interests, etc.), Section For more information, call 2000, going-concern value, notes, intangible assets, lack 1-800-655-PCCI. of marketability, and damages. Mr. Hall has testified in hearings, arbitration, and federal and state courts. He has spoken at numerous professional conferences and seminars on various business valuation topics and merger and acquisition issues, and has authored numerous articles on PACIFIC CONSTRUCTION valuation. See fmv.com. CONSULTANTS, INC. FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: [email protected]. Web site: www.fulcruminquiry .com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and industry specialists. Our analysis and research combined THE BEST LEGAL MINDS with unique presentation techniques have resulted in an unequaled record of successful court cases and client re- IN THE COUNTRY coveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, statistics, forensic eco- TALK TO US nomic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAs in accounting, finance, eco- ¥ Metallurgical Failures ¥ Bio-Medical/Orthopedic Implants nomics, and related subjects. See display ad on page 2. ¥ Corrosion & Welding Failures ¥ Plumbing/Piping/ABS Failures GURSEY, SCHNEIDER & CO., LLP ¥ Glass & Ceramic Failures ¥ Complete In-House Laboratory 10351 Santa Monica Boulevard, Suite 300, Los Angeles, ¥ Chairs / Ladders / Tires Testing & Analysis Facilities CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail: [email protected] site: www.gursey.com. ¥ Automobile/Aerospace/ ¥ Expert Witnesses/Jury Verdicts Contact Vanita M. Spaulding, CFA, ASA. Partner quali- Accidents ¥ Licensed Professional Engineers fications include MBA, CFA, ASA, and ABV. GSCO is an accounting firm specializing in forensic accounting, litigation support services, business valuation and appraisal ser- Contact: Dr. Naresh Kar, Fellow ASM, Fellow ACFE vices, for a variety of purposes including marital dissolu- Dr. Ramesh Kar, Fellow ASM, Fellow ACFE tion, gift and estate planning, eminent domain goodwill loss, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments, insurance claims, court accounting, tracing, and entertainment industry litigation. GSCO has over 30 years’ experience as ex- ADVANCED MATERIALS, INC. pert witnesses in litigation support. See display ad on Testing & Research Labs page 55. 2528 W. Woodland Drive HAYNIE & COMPANY, CPAs Anaheim, CA 92801 4910 Campus Drive, Newport Beach, CA 92660, ■ (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson TEL: (714)527-7100 @hayniecpa.com. Web site: www.hayniecpa.com. Con- ■ FAX: (714)527-7169 tact Steven C. Gabrielson. Alter ego, consulting and ex- ■ www.karslab.com ■ email: [email protected] pert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis,

50 Los Angeles Lawyer April 2005 business valuation, lost proﬁts analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Exten- sive public speaking background assists in courtroom presentations.

NANCY A. KEARSON, CPA, ABV, CVA, DABFA 1801 Century Park East, Suite 2400, Los Angeles, CA 90067, (310) 785-9614, fax (310) 277-1278, e-mail: [email protected]. Contact Nancy Kearson. Cost- effective, timely expert witness/consultation services, investigative forensic accounting, asset tracing, shareholder and partner disputes, business valuation, and professional practice appraisal. Frequent lecturer on forensic accounting and business valuation. Director, California Society of CPAs-LA. Past officer, Family Law Section. Certiﬁed Public Accountant; Accredited in Business Valuation, Certiﬁed Valuation Analyst, Diplomate of the American Board of Forensic Accountants.

LEWIS, JOFFE & CO, LLP 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268. Contact Brian Lewis, CPA, CVA. Forensic accounting, business valuations, cash spendable reports, estate, and trust and income tax services.

MIOD AND COMPANY, LLP CPAs 11600 Indian Hills Road, Building B, Suite 300, Mission Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA 92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod @miod-cpa.com. Visit our Web site at www.miodcpa.com. Contact Donald John Miod, CPA, ABV, CVA, CBA. More than 30 years’ experience in litigation support, including computation of income available for support, tracing, business valuations, fraud investigations, earnings loss calculations, and income tax matters. Our ﬁrm is very computer-oriented, involving the use of computer graphics. We are members of the Institute of Business Appraisers, the International Society of CPAs (founding member), the American Institute of CPAs, and California Society of CPAs. See display ad on page 61.

SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom Pastore. Sanli Pastore & Hill, Inc. is a premier provider of business valuation and valuation advisory services, specializing in litigation support and expert witness testimony. Services include valuations for goodwill loss, estate and gift tax planning (family limited partnerships), lost proﬁt analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital dissolutions. Comprehensive economic, industry, and mar-

Los Angeles Lawyer April 2005 51 ket research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. “Mr. Truck” See display ad on page 47. ACCIDENT SCHULZE HAYNES & CO. 660 South Figueroa Street, Suite 1280, Los Angeles, CA INVESTIGATION and RECONSTRUCTION 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert ✔ Court Qualified Expert Witness Regarding @schulzehaynes.com. Web site: www.schulzehaynes .com. Contact Karl J. Schulze or Dana Haynes, prin- Car vs Car, Car vs Bicycle, Truck vs Car Cases cipals. Specialties: forensic business analysis and ac- ✔ Low Speed Accident Analysis counting, lost profits, economic damages, expert testi- ✔ Trucking Industry Safety and Driver Training Issues mony, discovery assistance, business and real estate valu- ✔ Power Point Court Presentations ations, construction claims, corporate recovery, real estate William M. Jones 800 337 4994 transactions, financial analysis and modeling, major profes- P. O. Box 398 sional organizations, and have experience across a broad 925 625 4994 spectrum of industries and business issues. Degrees/li- Brentwood CA 94513-0398 Pager 510 840 4627 censes: CPA; CVA; CFE; PhD-economics. [email protected] www.mrtruckar.com Fax 925 625 4995 SINGLER VALUATION CONSULTING 2127 Lyans Drive, La Cañada, CA 91011, (818) 541-1500, fax (818) 541-1565, e-mail: [email protected]. Contact Noa Singler. Valuation of closely held businesses, eminent domain, goodwill loss analysis, expert witness testimony, litigation consulting, gift and estate tax, damage analysis, and acquisitions.

STONEFIELD JOSEPHSON, INC. 1620 26th Street, Suite 400 South, Santa Monica, CA 90404, (310) 453-9400, fax (310) 453-1187, e-mail: [email protected]. Web site: www.sjaccounting .com. Contact Jeffrey Sumpter, director of financial recovery. Stonefield Josephson, Inc. is a California-based certified public accounting and business advisory firm founded in 1975. Our services include assurance/accounting, business consulting (profit enhancement, finance sourcing, mergers and acquisitions, family-owned business, succession planning, executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax consulting and compliance. Service area: throughout the United States and internationally. See display ad on page 11.

VICENTI, LLOYD & STUTZMAN LLP 2210 East Route 66, Glendora, CA 91740, (626) 857- 7300, fax (626) 857-7302, e-mail: [email protected]. Web site: www.vlsllp.com. Contact Royce Stutzman, CVA, CPA, Chairman. Our certified professionals serve as consultants and experts in business valuations and litigation support. We conduct valuations related to mergers VALUATION AND LITIGATION CONSULTANTS and acquisitions, buy-sell agreements, purchase/sale of Since 1968 closely held businesses, partner disputes, etc. Our forensic accounting experts assess the amount of an economic ▲ BUSINESS VALUATION — Appraisal of tangible and intangible assets; loss, whether it be business interruption from casualty, unfair competition, condemnation, damage caused by oth- mergers. acquisitions, divestitures; public and private financings; litigation ers, or loss of earnings from various events. Our fraud in- involving partnership or corporate disputes; estate planning vestigation team reviews documentation, interviews wit- ▲ LITIGATION CONSULTING — Expert testimony on damage issues; nesses and suspects, and assesses evidence to resolve allegations. We provide expert witness testimony and im- breach of contract; business interruption; partnership or shareholder disputes; plement fraud prevention programs. VLS Celebrates 52 fraud investigations; personal injury matters Years of Quality Service! ▲ EMINENT DOMAIN — Specialty practice in the appraisal of fixtures and WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT equipment and goodwill loss 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA ▲ CLASS-ACTION CLAIMS ADMINISTRATION — Claimant database 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) management and settlement distribution services 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, COMMITMENT, INGENUITY, INTEGRITY Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Ex- Contact: Aaron Amster, Wes Nutten pert witness testimony for business, real estate, personal 6060 Center Drive, Suite 825 225 Bush Street, 16th Floor injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and un- Los Angeles, California 90045 San Francisco, California 94104 just enrichment, fraud investigation, business valuation, tax Tel (310) 216-1400 Tel (415) 439-8390 planning and preparation and mergers and acquisitions. Fax (310) 216-0800 Fax (415) 439-8391 Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties include ac- Toll-free (888) 240-5184 counting, antitrust, breach of contract, business interrup- www.dmavalue.com tion, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trade-

52 Los Angeles Lawyer April 2005 mark and copyright infringement and trade secrets), per- CFAs, ASAs, PhDs and MBAs in accounting, finance, eco- sonal injury, product liability, professional malpractice, real nomics, and related subjects. See display ad on page 2. One Source. estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termina- COMPUTER SIMULATIONS/GRAPHIC Expert Witness Directory tion. See display ad on page 45. VISUAL FORENSICS CHEMISTRY (800) 426-6872, 130 Ryan Industrial Court, Suite 105, San Ramon, CA 94583. Web site: www.visualforensics.com. CHEMICAL ACCIDENT RECONSTRUCTION 3D computer simulations for all aspects of accident recon- SERVICES, INC. struction, vision related malpractice, criminal reenactment, 9121 East Tanque Verde Road, Suite 105, Tucson, AZ and more. Vision perception, site visibility, and human fac- 85749, (800) 645-3369, fax (520) 749-0861, e-mail: tors analysis. Opposing demonstrative evidence analysis. [email protected]. Web site: www.chemaxx.com. In-house scientific and engineering experts. Led by interna- Contact Dr. Michael Fox. Comprehensive chemical tionally recognized vision scientist, Dr. Arthur P. Ginsburg, accident investigation—specializing in complex industrial who has over 16 years of experience as a vision and visibil- chemical accidents and chemical-related consumer prod- ity expert consultant for the legal industry and government uct injuries, chemical fires and explosions, chemical label- agencies. Plaintiff and defense. Seen on CBS’s 60 Minutes ing, chemical packaging, chemical handling and shipping, and Court TV. See display ad on page 78. chemical burns, chemical warnings, chemical disposal, chemical safety, EPA, DOT, OSHA, propane, natural gas, COMPUTERS/INFORMATION SCIENCES flammable liquids, hazardous chemicals, aerosols, metallurgy, corrosion, failure analysis, water contamination, COSGROVE COMPUTER SYSTEMS, INC. water testing, plastics, acids, alkalis, and MSDSs. State-of- 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) the-art equipment available, including natural SEM/EDAX, 823-9448, fax (310) 821-4021, e-mail: jcosgrove GC/MS, FTIR, etc. PhD physical chemistry, certified fire @computer.org. Web site: www.cosgrovecomputer.com. Over 200 qualified expert witnesses, and explosion investigator, NACE accredited in corrosion, Contact John Cosgrove. John Cosgrove, PE, has over in one reliable source. Contact ASM accredited metallurgy and failure analysis, OSHA cer- 40 years’ experience in computer systems and has been a Forensic Expert Witness Association tified (hazardous chemicals and processes), DOT certified self-employed, consulting software engineer since 1970. (shipment of hazardous materials), accredited in aerosol He is a part-time lecturer in the UCLA School of Engineer- today for your FREE desktop copy: technology. ing and LMU graduate school. He recently completed an invited article, “Software Engineering & Litigation,” for the 949.640.9903 COMPUTER FORENSICS Encyclopedia of Software Engineering. He holds the CDP, [email protected] is a member of ACM, NSPE, a senior member of IEEE DATACHASERS, INC. www.forensic.org Computer Society, and a professional engineer in Califor- P.O. Box 2861, Riverside, CA 92516-2861, (877) Data nia. Formal education includes a BSEE from Loyola Univer- Exam, (877) 328-2392, (951) 780-7892, fax (951) 780- sity and a master of engineering from UCLA. 9199, e-mail: [email protected]. Web site: www .datachasers.com. Contact Rick Albee. Hard drive imag- GREAT SCOTT ENTERPRISES ing; use assessment and auditing; intellectual property and P.O. Box 42047, Tucson, AZ 85733, (866) 795-7166, Los Angeles • Orange County • Sacramento/Sierra • San Diego • San Francisco trade secret disputes; restore hidden, deleted, or lost files (520) 722-6796, e-mail: [email protected]. Web site: and images; file dates when created, modified, or deleted,; www.great-scott.com. Contact Scott Greene, CEO/ Internet history and e-mail recovery; computer use auditing CIO. The professional computer consulting and computer and evaluations; human resources; employer/employee forensics firm with 20+ years’ experience. Deposition and exams, experienced expert witness and special master trial experience. Computer forensics consulting specializing and full computer laboratory. Many years of public sector in recovery, acquisition, preservation, and analysis of data experience. Multiple certifications. Prior law enforcement. as evidence, including data purposefully destroyed. Proper See display ad on page 48. handling techniques can save data from Web sites, files, fax machines, all types of media and e-mails. Expert wit- EURISKO CORPORATION ness testimony for both plaintiffs and defendants in court 18375 Ventura Boulevard, Suite 144, Tarzana, CA 91356, and arbitration cases. Skilled at databases, source code (818) 774-0043, (818) 430-6705, e-mail: monique@ copyright, documents, e-mails, images, accounting sys- euriskocorp.com. Web site: www.euriskocorp.com. tems, hacking events, tracking down perpetrators, and ✒ Contact Monique Bryher, MSPH, CFCE, CCE. Com- Litigation support password cracking. puter forensics/electronic evidence discovery. 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We can provide site, structure, BALL CM and mitigation; construction administration; construction de- and geotechnical investigations; industry expert services; 24405 Chestnut Street, Suite 201, Newhall, CA 91321, fects; contract compliance; cost estimating; customs and foundation floor level surveys; repair plans; accurate docu- (661) 254-3357, fax (661) 254-2127, e-mail: chris@ballcm practices; design and implementation; earthquake hazard; mentation; estimates; emergency stabilization; and envi- .com. Web site: www.ballcm.com. Contact Chris Ball. flooring and floor covering; framing (wood and steel); geot- ronmental remediation. Industry expert services for founda- Contract claims, disputed change orders, schedule analy- echnical and hydrological; personal injury; quality of work- tion and construction problems. Remedial foundation, sis, delay claims, labor impact claims, construction defect manship; reinforced concrete; reinforced masonry; roofing slope pool, ground stabilization, re-leveling and repairs; investigations and analysis, cost estimating, destructive and waterproofing; safety and OSHA standards; scaffolding; forensic documentation, estimates, and repair plans; emer- testing, builders risk claims, commercial, residential, and scheduling and delays; slips, trips and falls; steps, stairs and gency stabilization services; hillside, and waterfront exper- public works. railings; Standards of Care; Standards of Practice; structural tise, and repair techniques; environmental remediation ser- CHEMAXX CONSTRUCTION ASSOCIATES failure; structural steel and welding; water intrusion and vices; geotechnical investigations; authorized installer of 9121 East Tanque Verde Road, Suite 105, Tucson, AZ mold. See display ad on page 35. Atlas and Chance foundation underpinning. See display ad on page 57. 85749, (800) 645-3369, fax (520) 749-0861, e-mail: PACIFIC CONSTRUCTION CONSULTANTS, INC. [email protected]. Web site: www.chemaxx.com. (800) 655-PCCI. Contact marketing director. Construc- URS Contact Dr. Michael Fox. An associate of Chemaxx has tion contract disputes (claims) analysis, prep and presenta- 915 Wilshire Boulevard, Suite 1800, Los Angeles, CA twenty years’ experience in construction project manage- tion, delay and monetary impact evaluation, including CPM 90017, (213) 996-2549, fax (213) 996-2521, e-mail: ment, estimating, scheduling, and contract writing, and schedules. Architectural, civil, structural, mechanical, and [email protected]. Expert witness for enti- four years’ experience as a government building inspector. electrical specialties. Full in-house courtroom visual exhibit tlement, causation damages on design, construction, and ICBO certifications include: residential building inspector, preparation. 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See display ad on 42 Faculty Street, Thousand Oaks, CA 91360, (805) 777- CONSTRUCTION & ENGINEERING page 43. 1115, cell (818) 825-3247, fax (805) 777-1172, e-mail: COMA CONSULTANTS, INC. [email protected]. Web site: www.schwartzrobert.com. 2220 Waterfront Drive, Corona Del Mar, CA 92625-1935, GLENN M. GELMAN & ASSOCIATES, Contact Robert I. Schwartz, AIA. Real property devel- (949) 673-7273, cell (949) 246-4385, fax (949) 673-2104, CERTIFIED PUBLIC ACCOUNTANTS AND opment procedures & practices, all building types, sizes & e-mail: [email protected]. Contact D. Gordon BUSINESS CONSULTANTS phases. Professional evaluation of building design errors & Follett, PE, president. Contractor/subcontractor/owner 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- omissions, building code compliance & professional stan- contract disputes, construction quality control and stan- 2600, fax (714) 667-2636. Web site: www.gmgcpa.com. dards of practice. 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MPGROUP CONSTRUCTION CONSULTANTS • major property/casualty insurance losses. Excellent litiga- FORENSIC EXPERT WITNESSES • MEDIATION tion support & trial exhibit preparation. Expert witness testi- CORPORATE INVESTIGATIONS 1202 Greenacre Avenue, West Hollywood, CA 90046- mony. Experienced AAA arbitrator & mediator. Large & 5708, (323) 874-8973, toll free (800) 684-9100, fax (323) complex cases. Member, Dispute Resolution Boards. THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA 874-8948, email: [email protected]. Web site: www ULTIMO ORGANIZATION, INC. .mpgroup.com. Contact Michael S. Poles, GC, CM, 90071, (213) 892-2568, fax (213) 892-2300, e-mail: GEOTECHNICAL CONSTRUCTION & ENGINEERING [email protected]. Web site: www.capanalysis RCI, DABFET, ACFE. MPGroup is a collaboration of archi- 1411 East Borchard Avenue, Santa Ana, CA 92705, (714) tects, engineers, contractors and other technical experts .com. Contact Laura Robinson, PhD. Specialties: eco- 560-8999, fax (714) 560-8998, e-mail: fran@geotechnical nomic, financial, accounting, and statistical analysis for

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GEORG FINDER 2501 East Chapman Avenue, Suite 100, Fullerton, CA 92831, (714) 441-0900, e-mail: gﬁ[email protected]. Web site: www.creditdamageexpert.com. Contact Georg Finder. Defense/plaintiff. Consultant/expert witness testimony plus credit damage report reveals, change of credit- worthiness, loss of capacity, loss of expectancy, in cases of fraud, breach of contract, bad faith insurance, negligence, wrongful termination, identity theft, malpractice, PI, divorce, creditor or credit bureau error. Very different than the service of an economist, or CPA. Often increases plaintiff case value by 400% plus. May reduce defense liability by 90%. CV: Director of Curr Financial Education Acad- emy: Author of 3 MCLE seminars; credit reports: miscon- ceptions and realities; credit reports: compliance and opportunity; credit damage: evaluation and compensation. Numerous publications. See display ad on page 55.

Los Angeles Lawyer April 2005 55 CRIMINOLOGY/GANGS rates, feasibility of reorganization plans, fraudulent con- include energy, biotechnology, computer hardware and veyances, bankruptcies, mergers and acquisitions, and software, manufacturing, telecommunications, and finan- DR. LEWIS YABLONSKY management misfeasance/malfeasance. More than 100 cial services. 2311 Fourth Street, Suite 312, Santa Monica, CA 90405, open-court testimonies, federal and state, civil and crimi- phone and fax (310) 450-3697, e-mail: expertwitness nal. See display ad on page 48. ECONOMIC CONSULTANTS & ASSOCIATES @lewyablonsky.com. Web site: www.lewyablonsky.com. 2030 Main Street, Suite 1300, Irvine, CA 92614, (714) Contact Dr. Lewis Yablonsky, PhD-NYU. Emeritus pro- BUSINESS ENTERPRISE APPRAISAL CO., INC. 547-6588, (310) 246-9993, fax (714) 547-9916, e-mail: fessor criminology, California State University Northridge. 23801 Calabasas Road, Suite 1016, Calabasas, CA [email protected]. Contact Stephen T. 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Degrees/licenses: CPAs, cyber fraud and crime, computer and network forensics, ing experts, and expert testimony in federal and state CFAs, ASAs, PhDs and MBAs in accounting, finance, eco- multinational intellectual property, and economic courts, and before the FTC and DOJ. Areas of expertise in- nomics, and related subjects. See display ad on page 2. espionage. clude antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and uni- DISPUTE ANALYSIS HIGGINS, MARCUS & LOVETT, INC. lateral effects), economic damages, business valuation, in- 800 South Figueroa Street, Suite 710, Los Angeles, CA THE CAPANALYSIS GROUP, LLC vestigative and forensic accounting and auditing, intellec- 90017, e-mail: [email protected]. Web site: www.hmlinc 550 South Hope Street, Suite 1050, Los Angeles, CA tual property (including patent, trademark, and copyright .com. Contact Mark C. Higgins, ASA, president. 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Contact Troy DESMOND MARCELLO AND AMSTER CONLEY FORENSICS Dahlberg, CPA/ABV [email protected] or Southern California Office: 6060 Center Drive, Suite 825, 15436 Albright Street, Pacific Palisades, CA 90272, (310) Christian Tregillis, CPA/ABV ctregillis@krollworldwide Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, 454-7390, fax (310) 459-6386, e-mail: [email protected]. .com. Investigations, economic damages, and valuation fax (310) 216-0800. Northern California Office: 228 Bush Contact Bryan C. Conley, PhD, principal. Specializing firm with offices across the country and around the globe. Street, 16th Floor, San Francisco, CA 94104, (415) 439- in personal injury, wrongful death, wrongful termination and Specialties include accounting, financial, economic and 8390, fax (415) 439-8391. Web site: www.dmavalue.com. breach of contract damages. Published in forensic eco- statistical analysis, as well as computer forensics, in the Contact Wes Nutten, Aaron Amster, or Madeleine nomic and leading academic journals. Testifying since context of commercial litigation and forensic investigations: Mamaux. Litigation consulting, forensic accounting, expert 1977. accounting/fraud, securities, intellectual property (including witness testimony, class action claims administration ser- damages analyses, licensing and valuation), breach of con- vices, and business valuation services. Staff qualifications ECON ONE RESEARCH, INC. tract, lost profits, royalty audits, corporate governance, include CPA, CMA, ABV, CFA, and ASA designations. 601 West 5th Street, 5th Floor, Los Angeles, CA 90071, business valuation, real estate, construction, bankruptcy. Testimony experience in numerous court jurisdictions. Es- (213) 624-9600, fax (213) 624-6994, e-mail:lskylar Practitioners include former partners at big four accounting tablished in 1968. 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Los Angeles Lawyer April 2005 57 definition, market power, coordinated interactions, and uni- trical (power, lighting), energy systems, residential and Your lateral effects), economic damages, business valuation, in- nonresidential buildings, construction defects, construction vestigative and forensic accounting and auditing, intellec- claims, and mold. tual property (including patent, trademark, and copyright Single Source infringement, and valuation of intellectual property), insur- ELECTRONIC DISCOVERY ance coverage, contract disputes and tort claims, mergers FULCRUM FINANCIAL INQUIRY for construction-related and acquisitions, and securities fraud. Degrees/licenses: 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA CPAs, CFEs, CVAs, JDs, PhDs economics. investigations and litigation support. 90017, (213) 787-4100, fax (213) 787-4141, e-mail: CHARLES RIVER ASSOCIATES INCORPORATED [email protected]. Web site: www.fulcruminquiry 1055 East Colorado Boulevard, Suite 420, Pasadena, CA .com. Contact David Nolte. Our professionals are experi- 91106-2327, (626) 564-2000, fax (626) 564-2099. Web enced CPAs, MBAs, ASAs, CFAs, affiliated professors and site: www.crai.com. Contact John Hirshleifer, vice industry specialists. Our analysis and research combined president. CRA provides economic, financial, and busi- with unique presentation techniques have resulted in an ness analysis in such areas as antitrust, contracts, dam- unequaled record of successful court cases and client re- ages, energy, environment, entertainment, healthcare, in- coveries. Our expertise encompasses damages analysis, tellectual property, international trade, mergers & acquisi- lost profit studies, business and intangible asset valuations, tions, professional sports, regulation, securities fraud, taxa- appraisals, fraud investigations, statistics, forensic eco- tion and transfer pricing, telecommunications, and valua- nomic analysis, royalty audits, strategic and market as- tion. In concert with leading academic and industry ex- sessments, computer forensics, electronic discovery, and perts, CRA multidisciplinary staff offers wide-ranging con- analysis of computerized data. Degrees/licenses: CPAs, sulting assistance (from modeling projects to trial prepara- CFAs, ASAs, PhDs and MBAs in accounting, finance, eco- tion and testimony) to attorneys, executives, and govern- nomics, and related subjects. See display ad on page 2. ment officials the world over. See display ad on page 51. Consulting Services EMPLOYMENT COHEN, MISKEI & MOWREY LLP Our experienced experts/consultants BIDDLE CONSULTING GROUP, INC. 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, 2868 Prospect Park Drive, Suite 110, Rancho Cordova, ensure a coordinated, cost-effective, multi- CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: CA 95670, (916) 266-6722, ext. 113, fax (916) 266-4170, disciplined approach to visual and intrusive [email protected]. Contact Scott Mowrey. Spe- e-mail: [email protected]. Web site: www.biddle.com. site investigations, document review, cialties: consultants who provide extensive experience, liti- Contact Dan Biddle, PhD, president. We specialize in gation support, and expert testimony regarding forensic test development, EEO/AA reviews, validation studies research and analysis of code and industry accountants, fraud investigations, economic damages, standards issues, cost estimates, (content, criterion-related), and adverse impact analyses. business valuations, family law, bankruptcy, and reorgani- We have a special emphasis in the protective service fields. arbitration, mediation, and courtroom zation. Degrees/license: CPAs, CFEs, MBAs. See display Over 30 staff. Degrees/licenses: MA, PhD, other staff with testimony involving: ad on page 57. various degrees.

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58 Los Angeles Lawyer April 2005 able care, progressive discipline, conducting third-party workplace investigations, retaliation, RIFs, statistics, negligent hiring, promotion selections, CFRA/FMLA, compen- REAL ESTATE, BANKING, MALPRACTICE sation, wage and hours, ERISA, workplace violence, and OSHA. Consultant to over 100 organizations. Over 500 EXPERT WITNESS – SAMUEL K. FRESHMAN, B.A., J.D. publications. Five-time winner of CSUF Meritorious Perfor- mance Award. Extensive experience giving testimony Attorney and Real Estate Broker since 1956 • Banker • Professor • Legal effectively. Malpractice • Arbitration • Brokerage • Malpractice • Leases ENGINEERING • Syndication • Construction • Property Management • Finance • Due Diligence • Conflict of Interest • Title Insurance • Banking • Escrow ACORN CONSULTING SERVICES, LLC 2830 North Swan Road, Suite 140, Tucson, AZ 85712, • Expert Witness • 48 Years Experience - 25 years State & Federal Courts (520) 322-6150, fax (520) 327-0062, e-mail: bill@acs-eng • 29 articles • Arbitrator • Mediator • $300,000,000+ Property .com. Web site: www.acs-eng.com. Contact William R. Acorn. PE. Over 30 years’ experience as a consulting en- 6151 W. Century Blvd., Suite 300, Los Angeles, CA 90045 gineer providing value added technical consultation, foren- Tel (310) 410-2300 ext. 306 ■ Fax (310) 410-2919 sic analysis, and expert testimony. Specializing in HVAC systems, cleanrooms, piping and refrigeration systems, building and fire codes, design and construction issues, and hazardous occupancies. Successfully represent plaintiffs, defendants and insurers in court, arbitration and mediation settings with claims up to $250 million. ACS pro- — DRIVER ERROR ANALYSIS — vides a unique combination of practical, theoretical, and teaching experience to support your litigation needs. Human Factors Forensic Science FORENSISGROUP Driver error • Inattention • Fatigue • Sensory, 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA Internationally perceptual, mental, and physical factors • Car, truck and 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- bus driver skill and knowledge requirements • Driver 1950, e-mail: [email protected]. Web site: Recognized and motor carrier standards of care • Hours of service www.forensisgroup.com. Contact Mercy Steenwyk. violations • Circadian rhythms • Sleep debt • Human Thousands of our clients have gained the technical advan- Expert factors traffic accident analysis tage and the competitive edge in their cases from our resource group of high-quality experts in construction, engi- www.drivingfatigue.com neering, product liability, safety, environmental, accident DENNIS WYLIE ■ D. WYLIE ASSOCIATES reconstruction, automotive, failure analysis, fires, explo- P O Box 60836, Santa Barbara, CA 93160 sions, slip and fall, real estate, economics, appraisal, employment, computers, and other technical and scientific VOICE (805) 681•9289 ■ FAX (805) 681•9299 disciplines. We provide you with a select group of high- quality experts as expeditiously as possible. Unsurpassed recruitment standards. Excellent client service. See display ad on page 43.

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Los Angeles Lawyer April 2005 59 ENGINEERING/GEOTECHNICAL PCR SERVICES CORPORATION 233 Wilshire Boulevard, Suite 130, Santa Monica, CA COTTON, SHIRES AND ASSOCIATES, INC. 90401, (310) 451-4488, fax (310) 451-5279, e-mail: 330 Village Lane, Los Gatos, CA 95030-7218, (408) 354- [email protected]. Web site: www.pcrnet.com. 5542, fax (408) 354-1852, e-mail: pshires@cottonshires Contact Gregory J. Broughton. PCR Services Corpora- .com. Web site: www.cottonshires.com. Contact Patrick tion provides authoritative and experienced expert testi- G. GOVINE CONSULTING O. Shires. Full-service geotechnical engineering consult- mony related to matters subject to the California Environ- ing firm specializing in investigation, design, arbitration, mental Quality Act (CEQA) and National Environmental Pol- Developing the Workforce for the 21st Century and expert witness testimony with offices in Los Gatos icy Act (NEPA), in general, and regarding technical aspects and San Andreas, California. Earth movement (settlement, of biological resources, archaeological, palentological or LITIGATION CONSULTANT soil creep, landslides, tunneling and expansive soil), foun- historic resources, air quality, human health risk, meterol- AND EXPERT WITNESS: dation distress (movement and cracking of structures), ogy, noise, public utility and service systems, land use pol- drainage and grading (seeping slabs and ponding water in icy, and scenic and aesthetics resources, in particular. EMPLOYMENT crawlspace), pavement and slabs (cracking and separating), retaining walls (movement, cracking and failures), ESCROW SPECIALIZES IN: pipelines, flooding and hydrology, design and construction deficiencies, expert testimony at over 70 trials (municipal, ✔ ADVISORS/EXPERTS @ MCS ASSOCIATES SEXUAL HARASSMENT, INCLUDING superior and federal); 100+ depositions; 200+ settlement 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) AB 1825 TRAINING conferences in southern and northern California and 263-8700, fax (949) 263-0770, e-mail: info@mcsassociates Hawaii. .com. Web site: www.mcsassociates.com. Contact ✔ EMPLOYMENT DISCRIMINATION: Norman Katz, managing partner. Nationally recognized GE ACE EX ENVIRONMENTAL A , R , S banking, finance, insurance, and real estate consulting ✔ HUMAN RESOURCES AND THE CAPANALYSIS GROUP, LLC group (established 1973). 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Forensic accounting and clude accounting, antitrust, breach of contract, business litigation support services in the areas of marital dissolu- interruption, business dissolution, construction, fraud in- tion, business valuation and appraisal, goodwill, business vestigation, asset tracing analysis, intellectual property MEDICAL PRACTICE IN disputes, malpractice, tax matters, bankruptcy, damage (patent, trademark and copyright infringement and trade and cost-profit assessments, insurance claims, court ac- PULMONARY/CHEST MEDICINE secrets), personal injury, product liability, professional mal- counting, tracing, and entertainment industry litigation. See practice, real estate, spousal support, tax, valuation of AND INTERNAL MEDICINE display ad on page 55. SINCE 1983 businesses, unfair advertising, unfair competition, and DIANA G. LESGART, CPA, CFE, AN wrongful termination. See display ad on page 45. Degrees: MS, MD, FCCP ACCOUNTANCY CORP. 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, FEE DISPUTE Board Certified, Internal Medicine (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 EDWARD LEAR (CENTURY LAW GROUP) Board Certified, Pulmonary Medicine @msn.com. Contact Diana G. Lesgart, CPA, CFE. Spe- 5200 West Century Boulevard, Suite 940, Los Angeles, Fellow Am. College of Chest Physicians cialized accounting and litigation support services in the CA 90045, (310) 642-6900, fax (310) 642-6910, e-mail: areas of family law litigation, tracing of assets, pension plan [email protected]. Contact Edward Lear. For- tracing, forensic accounting, business valuation, goodwill, mer State Bar prosecutor; expert testimony and declara- Associate Clinical Professor Medicine expert testimony, commercial litigation, fraud investigations regarding breach of standard care, breach of fidu- USC College of Medicine tions, economic damages, and real estate litigation. Over ciary duties, especially in context of California Rules of 21 years’ accounting experience with 17 years’ litigation Associate Clinical Professor of Medicine Professional Conduct. Expert testimony and declarations support specialization. Assigned as §730 accounting ex- regarding legal fees and billing practices. Qualified in fed- UC Irvine College of Medicine pert. Ms. Lesgart’s profile can be found at www.jurispro eral and state courts. Lecturer in Physiology .com. using “Lesgart” under Search by Name. Expert is fully English/Spanish bilingual. UC Riverside College of Medicine FINANCIAL LEWIS, JOFFE & CO, LLP ADVISORS/EXPERTS @ MCS ASSOCIATES 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 90024, (310) 475-5676, fax (310) 475-5268. Contact 263-8700, fax (949) 263-0770, e-mail: info@mcsassociates JAMES F. LINEBACK, M.D. Brian Lewis, CPA, CVA. Forensic accounting, business .com. Web site: www.mcsassociates.com. 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LEGAL MALPRACTICE, ETHICS AND FINANCE FEE DISPUTE EXPERT WITNESS SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- BOYD S. LEMON, ESQ. dress: www.sphvalue.com. Contact Nevin Sanli or Tom Pastore. Sanli Pastore & Hill, Inc. is a premier provider of 38 YEARS TRIAL EXPERIENCE; RETAINED EXPERT business valuation and valuation advisory services, special- IN MORE THAN 600 CASES; FORMER MAJOR LAW izing in litigation support and expert witness testimony. Services include valuations for goodwill loss, estate and gift FIRM LITIGATION DEPARTMENT CHAIR; STATE BAR tax planning (family limited partnerships), lost proﬁt analy- DISCIPLINARY COMMITTEE; ATTORNEY FEE DISPUTE sis, mergers and acquisitions, goodwill impairment, fair- ARBITRATOR; COURT APPOINTED MEDIATOR. ness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital dissolutions. Comprehensive economic, industry, and mar- 310/827-0840 • www.legalmalexpert.com ket research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 47.

FIRE/EXPLOSIONS

BOARD CERTIFIED ORTHOPEDIC SURGEON THE MCMULLEN COMPANY, INC. 1260 Lake Boulevard, Suite 250, Davis, CA 95616, (530) 757-1291, fax (530) 757-1293, e-mail: [email protected]. MARC J. FRIEDMAN, M.D. Web site: www.themcmullencompany.com. Contact James F. McMullen. Former California state fire marshal. 6815 Noble Avenue, Van Nuys, California 91405 Fire/building code analysis, code compliance inspections, Tel. 818.901.6600 ext. 2810 ¥ Fax: 818.901.6685 ¥ Email: [email protected] fire cause and origin investigation, fire services manage- Web Site: www.scoi.com ment review, emergency management planning and training, hazardous materials programs, and fire safety-related product analysis. Forensic fire expert and litigation Education: Princeton University and Cornell Medical School consultation. Certificate: Board Certified Orthopedic Surgeon RIMKUS CONSULTING GROUP, INC. 333 City Boulevard West, Suite 1805, Orange, CA 92868, Memberships: Fellowship Sports Medicine (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski Fellow American Academy of Orthopedic Surgeons @rimkus.com. Web site: www.rimkus.com. Contact Curt Fellow in the Arthroscopy Association of North America Yaworski. Rimkus Consulting Group is a full-service foren- Fellow in the International Arthroscopy Association sic consulting firm. Since 1983, we have provided reliable Fellow in the International Knee Society investigations, reports and expert witness testimony Fellow in the American Orthopedic Society of Sports Medicine around the world. Our engineers and consultants analyze ACL Study Group the facts from origin and cause through extent of loss. Ser- Certified QME, IME, AME vices: construction defect and dispute analysis, vehicle accident reconstruction, fire cause and origin, property evalu- Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of ation, mold evaluations, indoor air quality assessments, the Knee and Shoulder, and Knee Replacement biomechanical analysis, product failure analysis, foundation investigations, industrial accidents and explosions, water Appointments: Assistant Clinical Professor, Division of Orthopedics, intrusion analysis, geotechnical evaluations, construction UCLA School of Medicine, Chairman, Education Committee accidents, construction disputes, financial analysis and as- Arthroscopy Association of North America 1997-1999 sessments, forensic accounting, HVAC analysis, electrical World Cup Soccer Team Physician, 1985 failure analysis, and video/graphics computer animation. Physician Specialist XXIII Olympiad 1984 See display ad on page 65. Orthopedic Consultant–New York Knicks and Jets 1978-1985 FOOD SAFETY/HACCP Publications: 60 Publications including handbook for Orthopedic Surgeons on Prosthetic Ligament Reconstruction of the Knee JEFF NELKEN, MA, RD 20938 De Mina Street, Woodland Hills, CA 91364, (818) Presentations: Lectures extensively with over 375 presentations worldwide 703-7147, e-mail: [email protected]. Web site: www .foodsafetycoach.com. Contact Jeff Nelken, MA, RD. Food safety expert knowledgeable in both food safety and

64 Los Angeles Lawyer April 2005 hazard analysis critical control point program development. Specializes in expert witness testimony and litigation consultant in matters regarding food safety, HACCP, crisis Insurance Bad Faith Expert management, food-borne illness, health department representation, and customer complaints. Performs inspections, vendor audits, and training. Hands-on food safety consultant for restaurants, manufacturers, distributors, country Clinton E. Miller, J.D., BCFE clubs, schools, nursing homes, and casinos. NRA and NSF Author: How Insurance Companies Settle Cases HACCP certiﬁed instructor. Thirty years of food and hospi- tality experience. Registered as a food handler instructor 39 YEARS EXPERIENCE with the Los Angeles County Health Department. Provider # 015. Qualiﬁed Trial Insurance Expert in Civil & Criminal Cases Nationwide

FORENSIC ACCOUNTING • Coverage Disputes • Customs and Practices in the Claims Industry • Good Faith/Bad Faith Issues BALLENGER, CLEVELAND & ISSA, LLC 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA ■ 90024, (310) 873-1717, fax (310) 873-6600. Contact (408) 279-1034 FAX (408) 279-3562 Bruce W. Ballenger, CPA, executive managing director. Services available: assist counsel in determining overall strategy. Help evaluate depositions and evidence. Pro- vide well-prepared, well-documented, and persuasive in- court testimony regarding complicated accounting, ﬁnan- cial, and business valuation matters, fairness of interest rates, feasibility of reorganization plans, fraudulent conveyances, bankruptcies, mergers and acquisitions, and management misfeasance/malfeasance. More than 100 open-court testimonies, federal and state, civil and criminal. See display ad on page 48.

DESMOND MARCELLO AND AMSTER Southern California Office: 6060 Center Drive, Suite 825, Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, fax (310) 216-0800. Northern California Office: 228 Bush Street, 16th Floor, San Francisco, CA 94104, (415) 439- 8390, fax (415) 439-8391. Web site: www.dmavalue.com. Contact Wes Nutten, Aaron Amster, or Madeleine Mamaux. Litigation consulting, forensic accounting, expert witness testimony, class action claims administration services, and business valuation services. Staff qualiﬁcations include CPA, CMA, ABV, CFA, and ASA designations. Testimony experience in numerous court jurisdictions. Es- tablished in 1968. See display ad on page 52.

Los Angeles Lawyer April 2005 65 ing and business valuation. Director, California Society of R. Cotton. Full-service engineering geologic and geotech- HOTEL CPAs-LA. Past officer, Family Law Section. Certified Public nical engineering consulting firm specializing in investiga- Accountant; Accredited in Business Valuation, Certified tion, design, arbitration, and expert witness testimony with MAURICE ROBINSON & ASSOCIATES LLC Valuation Analyst, Diplomate of the American Board of offices in Los Gatos and San Andreas, California. Earth 880 Apollo Street, Suite 125, El Segundo, CA 90245, Forensic Accountants. movement (settlement, soil creep, landslides, tunneling and (310) 640-9656, fax (310) 640-9276, e-mail: maurice expansive soil), foundation distress (movement and crack- @mauricerobinson.com. Web site: www.mauricerobinson VICENTI, LLOYD & STUTZMAN LLP ing of structures) drainage and grading (seeping slabs and .com. Contact R. Maurice Robinson, president. 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Sinaiko’s litiga- of Assisted Reproductive Technologies, former Medical Di- [email protected]. Web site: www.sjaccounting tion support practice includes, among others, industry stan- rector IVF (In Vitro Fertilization) at Northridge Hospital, for- .com. Contact Jeffrey Sumpter, director of financial dard practices evaluations: Medicare/Medicaid fraud; mer Chairman Laser and Safety Committee at Northridge recovery. Stonefield Josephson, Inc. is a California-based provider/payor payment disputes; business valuation; trans- Hospital and member of the Los Angeles County Medical certified public accounting and business advisory firm action disputes; and facility and professional fee billing. Association. Author, numerous scientific papers and arti- founded in 1975. Our services include assurance/account- cles published in peer review journals. Former clinical in- ing, business consulting (profit enhancement, finance HEIR SEARCH SERVICE structor at USC. 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66 Los Angeles Lawyer April 2005 tices, policies, in all types of lending (real estate, business/commercial, construction, consumer/credit card), — EXPERT WITNESS IN — banking operations/administration, trusts and investments, economic analysis and valuations/damages assessment, INFERTILITY, GYNECOLOGY & OBSTETRICS insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/dis- IVF (In Vitro Fertilization) • LASER SURGERY • putes, and title insurance. LAPAROSCOPY • REPRODUCTIVE ENDOCRINOLOGY BERINGER & ASSOCIATES, INC. 2182 Dupont Drive, Suite 202, Irvine, CA 92612, (949) GIL N. MILEIKOWSKY, M.D., FACOG 752-0270, fax (949) 752-0503, e-mail: jmberinger @beringerassociates.com. Contact John M. Beringer, OFFICES: Encino and Beverly Hills Jr. LPCS, RPA. B&A assists with insurance litigation, in- 2934 1/2 Beverly Glen Circle #373, Bel Air, CA 90077 cluding both bad faith and Code of Reg 2695; analysis of TEL (310) 858-1300 • FAX (310) 858-1303 claims control systems and insurance carrier management and business claim management systems. B&A assists TEL (818) 981-1888 • FAX (818) 981-1994 with the creation of risk management plans. B&A is a con- Web site: www.baby4you.net sultant to Creative Solutions, SPC, a Captive reinsurance Please see listing under INFERTILITY, OBSTETRICS AND GYNECOLOGY, and PEER REVIEW for information. carrier. He consults for IMMS, IRMA. Credentials include an LPCS and RPA. He is a member of SCLA, The National Association of Insurance Litigation Managers (NAILM) and published in Litigation Matters, the Property and Casualty Newsletter and Close Up. Mr. Beringer’s carrier employ- CCREDITED SYCHIATRY EDICINE ment includes SRS (Hartford), Great American, ACSC and A P & M WIIC, spanning approximately 30 years. Distinguished Harvard Faculty and Alumni THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1050, Los Angeles, CA Expert Testimony and Multi-Specialty Consulting Teams 90071, (213) 892-2568, fax (213) 892-2300, e-mail: Active Clinicians, P/D, Qualified to testify in state and federal courts [email protected]. Web site: www.capanalysis .com. Contact Laura Robinson, PhD. Specialties: eco- CA References nomic, financial, accounting, and statistical analysis for complex litigation, arbitration, regulatory proceedings, and strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial issues, preparation of analytical models, critique of oppos- voice (617) 492-8366 fax (617) 441-3195 ing experts, and expert testimony in federal and state courts, and before the FTC and DOJ. Areas of expertise in- [email protected] • www.forensic-psych.com clude antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and uni- lateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics.

E.L. EVANS ASSOCIATES 3310 Airport Avenue, Box # 2, Santa Monica, CA 90405, (310) 559-4005, fax (310) 390-9669, e-mail: elevans66 @yahoo.com. Contact Gene Evans. Good faith/bad faith. Over 45 years’ experienceclaims adjuster. Standards and practices in the industry, litigation support, claims consultation, case review and evaluation, property/casualty claims, construction claims, uninsured/underinsured motorist claims, general liability, ﬁre/water/mold claims, damage assessment, professional liability claims, appraisal under policy, arbitration, duty to defend, advertising claims, coverage applications, and suspected fraud claims. CV available on request. See display ad on page 63.

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CLINTON E. MILLER, JD, BCFE 502 Park Avenue, San Jose, CA 95110, (408) 279-1034, fax (408) 279-3562, e-mail: [email protected]. Contact Clint Miller. Insurance expert regarding claims, underwriting, agent and brokers errors and omissions, coverage disputes, customs and practices, and bad faith. See display ad on page 65.

Los Angeles Lawyer April 2005 67 THOMAS & ELLIOTT INTELLECTUAL PROPERTY/PATENTS vices. In business since 1982. Spanish investigators. 12400 Wilshire Boulevard, Suite 400, Los Angeles, CA 90025, (310) 571-2727, fax (310) 207-0900, e-mail: JOHN R. GRINDON ASSOCIATES LAW ENFORCEMENT/SECURITY [email protected]. Web site: www.thomasandelliott.com. P.O. Box 4067, Hazelwood, MO 63042, (314) 895-4747, DANIEL R. SULLIVAN, DEPUTY CHIEF, Contact Deborah Stone. Coverage analysis of liability, fax (314) 895-0830, e-mail: [email protected]. Web site: LAPD, RET. property, auto, malpractice, health, disability, life, title, and www.jrgrindon.com. Contact John R. Grindon, DSc. Dr. 76766 Daffodil Drive, Palm Desert, CA 92211, (818) 590- fidelity insurance. Duty to defend, reservation of rights, Grindon is a court-qualified expert witness and consultant 2486, e-mail: [email protected]. Web site: www Cumis, bodily injury, property damage, business torts, pri- with experience in patent litigation cases. 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Web site: www Claims, Insurance Claims—A Comprehensive Guide and 435 North Roxbury Drive, Suite 311, Beverly Hills, CA .legalmalpracticeexperts.com. Contact Phillip Feldman, Mold: A Comprehensive Claims Guide. 90210, (310) 274-7303, fax (775) 249-8082, e-mail: simon BS, MBA, JD. Board certified in professional negligence- legal et al by CA, ABA, ABPLA. Former Judge Pro Tem, INSURANCE BAD FAITH @cshs.edu. Web site: www.simonsmd.com. Pulmonary diseases, critical care, internal medicine. Twenty years’ ex- State Bar Prosecutor, Fee Dispute Arbitrator. Thirty-seven DAVID F. PETERSON perience—defense and plaintiff. Particular interests include years as litigator/transactional attorney, supervising part- 10681 Encino Drive, Oak View, CA 93022, (805) 649- asthma, pulmonary embolism, and deep venous thrombo- ner. Never failed to qualify or disqualified, and 23 years as 8557, fax (805) 649-5957, e-mail [email protected]. sis pneumonia. Clinical professor, UCLA, former chief of expert. Any standard of care, conduct, causation, fiduciary Contact David F. Peterson. Fourteen years of claim ex- staff, chief of pulmonary, chief of medicine—Cedars-Sinai. duty or fee dispute issues. Any transaction. Any litigation. perience. Twenty-five years as a bad faith and coverage Any underlying case. (Also defends lawyers before the attorney. Qualified and testified in over 57 trials on bad INVESTIGATIONS State Bar). faith (first and third party), underwriting, legal malpractice, BENCHMARK INVESTIGATIONS BOYD S. LEMON coverage, and advice of counsel. Testimony in federal and 32158 Camino Capistrano, # A-415, San Juan 330 Washington Boulevard, Suite 420, Marina del Rey, CA state courts in California, Arizona, Nebraska, Nevada, Saint Capistrano, CA 92675, (800) 248-7721, fax (949) 90292, (310) 827-0840, fax (310) 827-7890. Contact Lucia, West Indies, and U.S. Virgin Islands for insureds and 248-0208, e-mail: [email protected]. Web site: www Boyd S. Lemon. 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Sanli Pastore & Hill, Inc. is a premier provider of agents. Fully insured. LIFE CARE PLANNING/CRITIQUE business valuation and valuation advisory services, special- ROUGHAN & ASSOCIATES AT LINC. izing in litigation support and expert witness testimony. FULCRUM FINANCIAL INQUIRY 41 East Foothill Boulevard, Suite 102, Arcadia, CA 91006, Services include valuations for goodwill loss, estate and gift 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA (626) 462-9675, fax (626) 462-9679, e-mail: [email protected] tax planning (family limited partnerships), lost profit analy- 90017, (213) 787-4100, fax (213) 787-4141, e-mail: Contact Jan Roughan. Specialties: Roughan & Associ- sis, mergers and acquisitions, goodwill impairment, fair- [email protected]. Web site: www.fulcruminquiry ates at LINC is a case management and medical/legal ness and solvency opinions, ESOPs, incentive stock op- .com. Contact David Nolte. Our professionals are experi- consulting firm. 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Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, LITIGATION WHITE, ZUCKERMAN, WARSAVSKY, LUNA, appraisals, fraud investigations, statistics, forensic eco- WOLF & HUNT nomic analysis, royalty audits, strategic and market as- THE CAPANALYSIS GROUP, LLC 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA sessments, computer forensics, electronic discovery, and 550 South Hope Street, Suite 1050, Los Angeles, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San analysis of computerized data. Degrees/licenses: CPAs, 90071, (213) 892-2568, fax (213) 892-2300, e-mail: Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) CFAs, ASAs, PhDs and MBAs in accounting, finance, eco- [email protected]. Web site: www.capanalysis 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw nomics, and related subjects. See display ad on page 2. .com. Contact Laura Robinson, PhD. Specialties: eco- .com. Contact Barbara Luna, Drew Hunt, Paul White, nomic, financial, accounting, and statistical analysis for Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Ex- ROBERT D. JONES INVESTIGATIONS complex litigation, arbitration, regulatory proceedings, and pert witness testimony for business, real estate, personal 263 West Olive, Suite 330, Burbank, CA 91502, (818) 558- strategic corporate decision making. Assist attorneys with injury, and marital dissolution. Investigative analysis of lia- 5045, fax (818) 558-6976, e-mail: bjonespi2002@yahoo discovery, identification of relevant economic and financial bility, damage analysis of lost profits, lost earnings, and un- .com. Web site: www.burbankinvestigators.com. Contact issues, preparation of analytical models, critique of oppos- just enrichment, fraud investigation, business valuation, tax Bob Jones. Investigative services for attorneys, insurance ing experts, and expert testimony in federal and state planning and preparation and mergers and acquisitions. companies, corporations, and individuals. Services include courts, and before the FTC and DOJ. Areas of expertise in- Testified hundreds of times as expert witnesses. Prior Big witness locates, pre-trial preparation, evidence collection, clude antitrust (including cutting-edge analyses of market Four accounting firm experience. Specialties include ac- background checks, asset search, and fraud. 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68 Los Angeles Lawyer April 2005 CHARLES RIVER ASSOCIATES INCORPORATED NATIONWIDE 1055 East Colorado Boulevard, Suite 420, Pasadena, CA TASAmed Has 91106-2327, (626) 564-2000, fax (626) 564-2099. Web COMPUTER EXAMINATIONS SM site: www.crai.com. Contact John Hirshleifer, vice Your Medical Expert. president. CRA provides economic, financial, and business analysis in such areas as antitrust, contracts, dam- EURISKO CORPORATION ages, energy, environment, entertainment, healthcare, in- “Nothing Disappears without a Trace”® tellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valua- CAN YOU PROVE INTENT? tion. In concert with leading academic and industry ex- ✔ perts, CRA multidisciplinary staff offers wide-ranging con- Document tracing sulting assistance (from modeling projects to trial prepara- ✔ Internet activity tion and testimony) to attorneys, executives, and govern- ✔ Establish date/timeline sequence ment officials the world over. See display ad on page 51. ✔ Recover deleted and hidden files • Outstanding local and national Experts including e-mail ECON ONE RESEARCH, INC. in more than 900 healthcare categories – 601 West 5th Street, 5th Floor, Los Angeles, CA 90071, ✔ Asset tracing–$millions$ recovered even hard-to-find specialties (213) 624-9600, fax (213) 624-6994, e-mail: lskylar ✔ Certified/degreed examiners @econone.com. Web site: www.econone.com. Contact • Services include prompt, customized Lisa Skylar, general manager. Econ One is an eco- searches, referrals, resumes, and your nomic research and consulting firm of over 40 profession- Referrals for criminal defense cases initial interview calls with experts als with extensive experience with the litigation process. We understand the need for clear, accurate, persuasive EURISKO CORPORATION • 44 years of incomparable service answers to complex problems. We work with our clients to keep our efforts focused on necessary tasks, with close at- (818) 774-0043 or (866) 774-0046 tention to costs. We provide economic analysis and expert www.euriskocorp.com testimony in many areas, including: antitrust, contract dis- 18375 VENTURA BLVD. #144, TARZANA, CA 91356 putes, damages analysis/calculations, intellectual property [email protected] and patent infringement, market analysis, regulation, stock price analysis and unfair competition. Industry specialties THEFT OF INTELLECTUAL PROPERTY • EMPLOYMENT include energy, biotechnology, computer hardware and HARASSMENT • BUSINESS DISPUTES software, manufacturing, telecommunications, and finan- DISCRIMINATION • WHISTLEBLOWER • CLASS ACTION cial services. HEALTHCARE FRAUD • FAMILY LAW 800-659-8464 – ALSO – SANLI PASTORE & HILL, INC. www.tasanet.com NETWORK INTRUSION & STATISTICAL ANALYSIS 1990 South Bundy Drive, Suite 800, Los Angeles, CA 213-625-0828 • [email protected] 90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom Pastore. Sanli Pastore & Hill, Inc. is a premier provider of business valuation and valuation advisory services, specializing in litigation support and expert witness testimony. Services include valuations for goodwill loss, estate and gift tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 47.

MECHANICAL ENGINEERING

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MEDICAL

AMFS, INC. (AMERICAN MEDICAL FORENSIC SPECIALIST) 2640 Telegraph Avenue, Berkeley, CA 94704, (800) 275-8903, (510) 549-1693, fax (510) 486-1255, e-mail: [email protected], Web page: www.amfs.com. Contact Barry Gustin, MD, MPH, FACEP. AMFS is a physician and attorney managed company that provides initial in-house case screenings by 72 multidisciplinary physician partners. Medical experts are matched to meet case requirements by AMFS Physician Partners from our panel of over 3,500 carefully prescreened board-certiﬁed practicing specialists in California. All recognized medical specialties. Plaintiff and defense. Fast, thorough, objective,

Los Angeles Lawyer April 2005 69 and cost-effective. Medical negligence, hospital and man- MEDICAL/EMERGENCY MEDICINE Young Investigator (1997), UCLA Neurology Teaching aged care, personal injury, product liability, and toxic torts. Awards (1994, 1996), American Academy Neurology Re- “A 92 percent win record” –California Lawyer magazine. BERNARD T. MCNAMARA, MD search (1991), Brown University Sigma XI (1989), and re- See display ad on page 77. 409 North Pacific Coast Highway, Suite 923, Redondo search/publications (14), lectures (180). Beach, CA 90277, (310) 480-4770, fax (310) 943-3274, GUNTHER RENE BAUER, MD, JD e-mail: [email protected]. Contact Bernard MEDICAL/PATHOLOGY 4030 Palos Verdes Drive North, Suite 207, Rolling Hills T. McNamara, MD. Current practice, full time emergency Estates, CA 90274, (310) 377-5557, fax (310) 541-9415, medicine, and assistant clinical Professor of Medicine. LESTHER WINKLER, MD cell (310) 251-0106, e-mail: [email protected]. Web Over 20 years experience in the practice of emergency Encino-Tarzana Regional Medicine Center Pathologist. site: www.bauermdmedmallaw.com. Contact Gunther medicine, infectious diseases, and HIV/AIDS. Experience (consulting emeritus status) 10155 Topeka Drive, North- R. Bauer, MD, JD. Diplomate, American Board of OB- in medical malpractice for both plaintiff and defense. ridge, CA 91324, (818) 349-8568, fax (818) 993-9701. Gyn, quality assurance/utilization review and forensic ex- Board certified, emergence medicine since 1987; Board Contact Lesther Winkler, MD. Specialties: surgical and aminers/medicine. Member, California Bar, Health certified, infectious disease since 1984; Board certified, in- autopsy pathology, clinical pathology. Forty years of expe- Lawyers Association, and American College of Legal Med- ternational medicine since 1980. Degrees/licenses: MD; rience in reviewing medical records (hospital records, office icine, 25 plus years in Clinical OB-Gyn, clinical teaching Fellow, American College of Physicians; Fellow, American records) with emphasis on pathology aspects, gross and background, consultant-medical legal issues, hospital College of Emergency Medicine; Member, American microscopic, and relationships to general medical and hos- care, evaluation of cases for merit (CCP128.7), in-depth Academy of Emergency Medicine; and member, Infec- pital care. Experience with hospital bylaws, rules, and reg- discussion of cases after review of medical records and tious Disease Society of America; LACMA & CMA; Lic: ulations, consent issues, and medical staff privileges. Also discovery material, complete medical research of cases, (CA, WA); CA Lic-G36838 since 1978, WA Lic- experienced in hospital healthcare law, medical, hospital, litigation support/deposition, and trial preparation. Experi- MD00041205 since 2002. and “outside” ethical medical issues. Helped establish con- enced. References available. See display ad on cepts and chaired hospital ethics committees for more page 64. BRUCE WAPEN, MD than 10 years. Represented physicians before California EMERGENCY MEDICINE EXPERT Medical Board when requested by attorneys. Degrees/li- BEHROOZ (BRUCE) BROUKHIM, MD 969-G Edgewater Boulevard, Suite 807, Foster City, CA censes: MD. See display ad on page 72. 10640 Riverside Drive, North Hollywood, CA, 9763 West 94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail: Pico Boulevard, Los Angeles, CA, (818) 755-6500, (310) [email protected]. Web site: www.DrWapen MEDICAL/PLASTIC AND COSMETIC 552-1488 (LA), fax (818) 980-7144. Contact Angelina .com. Contact Bruce Wapen, MD. Board-certified RECONSTRUCTIVE SURGERY Urquhart, MD. Board-certified orthopedic surgeon. emergency physician and experienced public speaker of- JOHN M. SHAMOUN, MD, FACS, INC. Shoulder, knee, and hip surgery, arthroscopic surgery, fers consultation, chart review, and testimony as an expert 360 San Miguel, Suite 406, Newport Beach, CA 92660, neck and back injury evaluation and treatment, personal witness for defense or plaintiff involving litigation arising (949) 759-3077, fax (949) 759-5458, e-mail: jmshamoun injury, workers’ compensation, QME, IME, and AME. from the emergency department. See display ad on @aol.com. Web site: www.ideallook.com. Contact Member: American Academy of Orthopedic Surgeons, page 71. Yvonne. Specialties: only plastic surgeon in the United American Board of Ortho Surgeons, Arthroscopic Associ- States board certified by the 1) American Board of ation of North America, International Society of MEDICAL/ENDOCRINOLOGY Surgery, 2) American Board of Plastic Surgery, 3) Ameri- Arthroscopy, Knee Surgery and Ortho Sports Medicine. RICHARD D. HORNICHTER MD can Board of Facial Plastic and Reconstructive Surgery, Twenty-five years of experience in orthopedic medical 450 North Bedford Drive, Suite 209, Beverly Hills, CA and 4) American Board of Forensic Medicine. Extensive ex- legal work and expert testimony. See display ad on 90210, (310) 274-7336, fax (310) 858-6972, e-mail: perience in all aspects of cosmetic, plastic, and recon- page 61. docdick.hornichter@prodigy.net. Web site: www structive surgery of the breast, nose, face, eye, and body. ROUGHAN & ASSOCIATES AT LINC. .diabetesdoc.com. Contact Richard D. Hornichter, Well-published author of several textbook chapters and 41 East Foothill Boulevard, Suite 102, Arcadia, CA 91006, MD. Diabetes and endocrinology. Diabetes and associ- journal articles related to above topics. Extensive experi- (626) 462-9675, fax (626) 462-9679, e-mail: [email protected] ated complications: amputation, retinopathy, vascular etc. ence in medical malpractice case review, consultation, Contact Jan Roughan. Specialties: Roughan & Associ- Experienced in medical record review, opinion, and expert written evaluation and testimony in depositions and trial for ates at LINC is a case management and medical/legal witness testimony. CV and prior medical/legal experience plaintiff and defense. Articulate subspecialty consultant consulting firm. Services/products offered include 1) Life data available. Clinical Assoc. Prof. UCLA. Degrees/li- with up-to-date knowledge and expertise of plastic surgery care planning/future medical costs, 2) Expert testimony, 3) censes: MD (CA & TX). literature and standards of care. Opinions supported by Independent medical evaluation (IME) specialists identifi- extensive subspecialty education, training, and experience. cation, merit analysis. Medical chronologies, attendance MEDICAL/NEUROLOGY MEDICAL/RHEUMATOLOGY at IMEs/mediation/arbitrations, and settlement conferences. ROGER V. BERTOLDI, MD JEFF SARKOZI, MD, FRCPC, FACR 8610 South Sepulveda Boulevard, Suite 200, Los Ange- THE CALIFORNIA INSTITUTE FOR FIBROMYALGIA, TASAMED les, CA 90045-4810, (310) 670-5555, fax (310) 670-9222. ARTHRITIS AND RHEUMATOLOGY Customized referrals in all practice areas. 1166 DeKalb Web site: www.bol.ucla.edu/~rbertold. Contact Leslie. 801 North Tustin Avenue, Suite 503, Santa Ana, CA Pike, Blue Bell, PA 19422 (800) 659-8464; fax (800) 850- Traumatic brain injury (TBI): Neuro behavior-anatomical- 92705, (714) 973-4636, fax (714) 973-4776. Contact Jeff 8272. FIND JUST THE MEDICAL EXPERT YOU NEED. functional (PET, brain-mapping, neuropsychological) Sarkozi, MD, FRCPC, FACR. Fibromyalgia, arthritis, oc- Access local, national, and global experts for case review, workup and treatment. 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Consulting/expert experience: consultation, case oncology, orthopedics, pediatrics, psychiatry, sports med- pain, somatoform disorders, epilepsy, dementia, review, analysis, IME/AME, deposition, and trial experi- icine, surgery, toxicology, many more. Plaintiff, defense. headache, assistant clinical professor of neurology, UCLA, ence. On behalf of manufacturers and physicians involved Exceptional personal service for over 44 years. NO AME, QME, IME. in silicone implant litigation, plaintiff for 1-tryptophan EMS, CHARGE FOR REFERRALS until you designate or engage industry/defendant and selected plaintiffs for industrial/oc- an expert. Please see our insert in this issue and dis- MEDICAL/NEUROLOGY/PERSONAL cupational/environmental/post-traumatic claims of fi- play ad on page 69. INJURY bromyalgia and syndromes of chronic fatigue and pain, MEDICAL/DERMATOLOGY ANDREW WOO, MD, PHD arthritis, connective tissue, and other rheumatologic dis- 2021 Santa Monica Boulevard, Suite 525-E, Santa Mon- eases. Physician/plaintiff in rheumatology medical malprac- STANLEY M. BIERMAN, MD, FACP ica, CA 90404, (310) 829-2126, fax (310) 998-8887, e- tice issues. 2080 Century Park East, #1008, Los Angeles, CA 90067, mail: [email protected]. Contact Gail. Board-certified (310) 553-3567, fax (310) 553-4538, e-mail: sbiermanmd neurology, clinical assistant professor UCLA, personal in- MEDICAL/TOXICOLOGY @aol.com. Contact Stanley Bierman, MD. Dr. Bierman jury, pain, carpal tunnel, spine, memory, seizure, sleep, JONATHAN S. RUTCHICK, MD, MPH, QME is an expert witness in matters relating to diagnosis and and clinical protocols. Multiple sclerosis, migraine, and 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941, treatment of skin cancers as well as matters relating to stroke. Education: AB Cornell University, MD and PhD (415) 381-3133, fax (415) 381-3131, e-mail: jsrutch sexually transmitted diseases. Dr. Bierman is Honorary Brown University; residency + EMG/EEG fellowship UCLA; @neoma.com. Web site: www.neoma.com. Jonathan S. Associate professor of medicine and past president of Los Advisory Boards: L.A. Neurologic Society, St. John’s Rutchik, MD, MPH is a physician who is board certified in Angeles Dermatologic Society. Sleep Lab; honors: Who’s Who in Medicine (2001) and sci- both Neurology and Occupational and Environmental Med- ence/engineering (1993), international electrophysiology

70 Los Angeles Lawyer April 2005 icine. He provides clinical evaluations and treatment, in- putations, pulmonary embolus, and phlebitis. Special certi- MEDICINE cluding electromyography, of individuals and populations fication in vascular surgery. Member of Southern California with suspected neurological illness secondary to work- Vascular Surgery Society, Society for Vascular Surgery, LINEBACK, INC. place injuries or chemical exposure. Services include Society for Clinical Vascular Surgery and Peripheral Vascu- 2100 North Main Street, Suite 202, Santa Ana, CA 92706, medical record and utilization review and consulting to in- lar Surgery Society. Extensive experience, numerous cases (714) 565-1012, e-mail: [email protected]. Contact dustrial, legal, government, pharmaceutical, and acade- each year, depositions, expert witness; court appearance James F. Lineback, MD. Internal medicine, chest medi- mic institutions on topics such as metals and solvents, as required. Birth date: May 16, 1949. MD, Tufts Medical cine, occupational medicine, toxic exposure, death cases, mold illness, Baychol issues, Persian Gulf War syndrome, School, 1974. diagnostic dilemmas, patient management, causation, and musicians’ injuries, and others. See display ad on chart review. Twenty years of consulting/expert witness page 77 . BRUCE WAPEN, MD experience in medical malpractice, personal injury, workers EMERGENCY MEDICINE EXPERT compensation (QME, AMA). Degrees/license: MD, MS, MEDICAL MALPRACTICE 969-G Edgewater Boulevard, Suite 807, Foster City, CA FCCP, Board Certified Internal Medicine/Pulmonary Medi- 94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail: cine. See display ad on page 62. JEFFREY KAUFMAN, MD [email protected]. Web site: www.DrWapen 720 North Tustin Avenue, Suite 101, Santa Ana, CA .com. Contact Bruce Wapen, MD. Board-certified emer- METALLURGICAL AND CORROSION 92705, (714) 973-4600, fax (714) 547-1259. Web site: gency physician and experienced public speaker offers ENGINEER www.urodocs.net. Contact Jeffrey Kaufman, MD. Uro- consultation, chart review, and testimony as an expert wit- KARS ADVANCED MATERIALS, INC. logic surgery. Extensive experience in urologic case review ness for defense or plaintiff involving litigation arising from Testing and Research Labs, 2528 West Woodland Drive, and testimony. Numerous articles published and presenta- the emergency department. See display ad on Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- tions made. Sterilization and vasectomy, impotency, penile this page. implants, urologic cancer treatment, urologic trauma, and 7169, e-mail: [email protected]. Web site: www.karslab urinary incontinence. Member and officer in numerous LESTHER WINKLER, MD .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. medical associations. Detailed C.V. available. Encino-Tarzana Regional Medicine Center Pathologist. Southern California’s premier materials/mechanical/metal- (consulting emeritus status) 10155 Topeka Drive, North- lurgical/structural/forensics laboratory. Registered profes- J. CARLOS MAGGI, MD ridge, CA 91324, (818) 349-8568, fax (818) 993-9701. sional engineers with 20-plus years in metallurgical/foren- Memorial/Miller Children’s Hospital. 2801 Atlantic Avenue, Contact Lesther Winkler, MD. Specialties: surgical and sic/structural failure analysis. Experienced with automotive, Long Beach, CA 90815, (562) 933-8743, fax (562) 933- autopsy pathology, clinical pathology. Forty years of expe- bicycles, tires, fire, paint, plumbing, corrosion, and struc- 8744, e-mail: [email protected]. Contact April rience in reviewing medical records (hospital records, office tural failures. We work on both plaintiff and defendant Johnson. Pediatric pulmonary, pediatric critical care, pedi- records) with emphasis on pathology aspects, gross and cases. Complete in-house capabilities for tests. Extensive atric hospital care, pediatric emergencies and resuscita- microscopic, and relationships to general medical and hos- deposition and courtroom experience (civil and criminal in- tion, pediatric trauma and burns, and intoxications. pital care. Experience with hospital bylaws, rules, and reg- vestigations). Principals are fellows of American Society for ulations, consent issues, medical staff privileges. Also ex- Metals and board-certified diplomates, American Board of ROBERT WAGMEISTER, MD, FACS perienced in hospital healthcare law, medical, hospital and Forensic Examiners. See display ad on page 50. 2001 Santa Monica Boulevard, #1170-W, Santa Monica, “outside” ethical medical issues. Helped establish con- CA 90404, (310) 828-5626, fax (310) 828-2826, e-mail: METALLURGY cepts and chaired hospital ethics committees for more [email protected]. Contact Robert Wagmeister, MD, than 10 years. Represented physicians before California FACS. Vascular surgery: diseases, trauma, and surgery of KARS ADVANCED MATERIALS, INC. Medical Board when requested by attorneys. Degrees/li- the circulation, both arterial and venous. Includes carotid Testing and Research Labs, 2528 West Woodland Drive, censes: MD. See display ad on page 72. surgery, aneurysms, bypass surgery, dialysis surgery, am- Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527-

— EMERGENCY MEDICINE EXPERT —

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• 29 years in Emergency Medicine • Experience with cases for both defense and plaintiff • Accomplished at deposition and trial testimony • Teaching experience with Stanford, U.C. Davis, and Letterman Army Medical Center

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We work on both plaintiff and defendant cles published in peer review journals. Former clinical in- cases. Complete in-house capabilities for tests. Extensive structor at USC. Former clinical assistant professor, Lease & Purchase Contracts deposition and courtroom experience (civil and criminal in- OB/GYN at UCLA. See display ad on page 67. Condition of Premises vestigations). Principals are fellows of American Society for OPHTHALMOLOGY 42 Years of Experience Metals and board-certified diplomates, American Board of Forensic Examiners. See display ad on page 50. ANDREW F. CALMAN, MD, PHD. METEOROLOGY 3201 Mission Street, San Francisco, CA 94110, (415) 648- JACK KARP 3600, fax (415) 648-7544, e-mail: [email protected]. Web AIR, WEATHER, & SEA CONDITIONS, INC. site: www.premier-eyecare.com. Contact Dr. Calman. (310) 377-6349 FAX: (310) 868-2880 P.O. Box 119, Agoura Hills, CA 91376-0119, (818) 645- Expert witness for eye diseases and surgery including 8632, fax (818) 991-1424, e-mail: [email protected]. cataract, glaucoma, retinal disease, and other ocular prob- Web site: [email protected]. Contact Jay Rosenthal. lems. Board certified in ophthalmology, UCSF faculty, Experienced and authoritative expert testimony, reports Medical Board of California Medical Expert, Associate Ex- and analyses of wind, rain, flooding, waves; specialist in aminer for American Board of Ophthalmology, leadership Win More Motions! auto/boat/ship/aircraft accident reconstruction, property positions in national and state ophthalmology societies. CA Law & Motion Authorities...... $119.95 damage, slip and falls, construction, homeland security ap- Plaintiffs and defendants welcome. plications, air pollution, transport, and risk identification. (Over 1,000 pages of pre-researched citations) Movie industry applications, cinematography, and visual ef- ORTHOPEDIC SURGEON CA Motions in Limine...... $119.95 fects. Determining unusualness, normalcy, and foreseeabil- MARC J. FRIEDMAN, MD ity. Official data, site visits, clear and convincing testimony. (Supporting & opposition citations & samples) 6815 Noble Avenue, Van Nuys, CA 91405, (818) 901- See display ad on page 78. CA Motions to Terminate...... $99.95 6600, fax (818) 901-6688, e-mail: [email protected]. Web (Summary judgment “bible” with samples) GOLDEN GATE WEATHER site: www.scoi.com. Contact Lonna Collier. Orthopedic CA Interrogatory Index...... $89.95 781 McDuff Avenue, Fremont, CA 94539, (510) 657-2246, shoulder and knee, consulting, and expert witness testimony. IME, AME, QME and workers’ compensation evalu- (Support for objections, motions, privileges, etc.) fax (510) 315-3015, e-mail: [email protected]. Web site: http://ggweather.com. Contact Jan Null. Certified ations. See display ad on page 64. 888.577.3771 consulting meteorologist experienced at trial and deposi- GRAHAM A. PURCELL, MD, INC. www.litigationone.com tions. Weather event reconstruction and expert analysis for Assistant Clinical Professor Orthopaedic Surgery, UCLA rain, storms, wind, snow, flooding, ice, fog, and other 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985- weather events. Twenty-three years’ experience with Na- LAL6 3051, fax (818) 985-3049, e-mail: expert@gpurcellmd tional Weather Service. Degrees: BS, MA, CCM. .com. Web site: gpurcellmd.com. Contact Graham A. MORTGAGE LENDING Purcell, MD. Dr. Purcell is a board certified orthopedic surgeon, sub-specialty in spinal disorders affecting adults EXPERT – PATHOLOGIST JOFFREY LONG, CMC and children. Examples of spinal disorders treated by Dr. 17045 Chatsworth Street, Suite 100, Granada Hills, CA Purcell include disc diseases, stenosis, infections, tumors, 91344-5845, (818) 366-5200, fax (818) 368-8932, e-mail: injuries, and deformities including scoliosis. He possesses LESTHER WINKLER, MD [email protected]. Contact Joffrey Long. Mortgage 24 years of orthopedic and 15 years of med-legal experi- lender and broker, with 25 years experience, 22 years as ence, including defense, plaintiff, insurance carriers, CA At- president of a mortgage company. Experienced in residen- torney General’s office and Public Defender’s office. Expert Specialties: tial, construction, and commercial lending, institutional loan testimony pertains to med-mal, personal injury, and work- brokerage, private money (hard money) loan brokerage, ers’ compensation cases. As qualified medical evaluator, Surgical and Autopsy Pathology loan escrow, trust deed investment, loan servicing, and Dr. Purcell has extensive experience in performing QMEs, Clinical Pathology foreclosure. Member, Board of Directors, of the California AMEs, IMEs, WC evals. See display ad on page 73. Mortgage Association. Designated as a Certified Mortgage Consultant by the National Association of Mortgage RICHARD C. ROSENBERG, MD Brokers. 18370 Burbank Boulevard, Suite 614, Tarzana, CA 91356, (818) 996-6800, fax (818) 996-2929, e-mail: rcrnsx@aol 40 YEARS EXPERIENCE NURSING .com. Web site: www.drrosenberg.com. Contact Sheri Medical record reviewing (hospital records, Roberts. Orthopedic surgery, sports medicine, and physi- MED-LINK office records) with emphasis on pathology cal therapy. Experienced in IME, QME, agreed medical 3362 Budleigh Drive, Hacienda Heights, CA 91745, (626) exams, med/legal reports, and expert witness testimony. aspects, gross and microscopic, and relation- 333-5110, fax (626) 968-0064, e-mail: dorothypollock Personal injury and workers’ compensation. Additional of- ship to general medical and hospital care. @adelphia.net. Contact Dorothy Pollock, LNCC. Regis- fice in Oxnard, California. tered nurse with 36 years’ clinical experience. Non-testify- Experience with hospital bylaws, rules, and ing services include case analysis/for merit, chronology, JERROLD M. SHERMAN, MD regulations, consent issues, and medical staff translation, written reports, medical record organization. 1260 15th Street, Suite 614, Santa Monica, CA 90404, privileges; as well as, hospital healthcare law, DME/IME accompaniment including tape recording and (310) 393-9829, fax (310) 476-8438. Contact Jan Lind- medical, hospital, and “outside” ethical written report. Expert witness and testifying services, in- sey. Orthopedic surgeon who is board certified as an inde- medical issues. cluding affidavit, arbitration, declaration, deposition, and pendent medical examiner and chief executive officer of trial. Courtroom experienced both plaintiff and defense. Outpatient Surgery Center. Licensed in California and Helped establish concepts and chaired Nevada. hospital ethics committees for more than 10 OBSTETRICS AND GYNECOLOGY PEER REVIEW years. Represented physicians before Calif- GIL N. MILEIKOWSKY, MD, FACOG 1 ornia Medical Board when requested by Offices in Encino and Beverly Hills, 2934 ⁄2 Beverly Glen Cir- GIL N. MILEIKOWSKY, MD, FACOG 1 attorneys. cle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or (818) Offices in Encino and Beverly Hills, 2934 ⁄2 Beverly Glen 981-1888, fax (310) 858-1303 or (818) 981-1994. Web Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or site: www.baby4you.net. Contact Gil N. 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72 Los Angeles Lawyer April 2005 eligible, American Board of Reproductive Endocrinology Division. Fellow, American College of OB/GYN (FACOG). Member of the American Society for Reproductive Medi- cine, Society of Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at North- ridge Hospital, former Chairman Laser and Safety Com- mittee at Northridge Hospital and member of the Los An- geles County Medical Association. Author, numerous sci- ’ entiﬁc papers and articles published in peer review journals. Former clinical instructor at USC. Former clinical assistant professor, OB/GYN at UCLA. See display ad on page 67. ’ PERSONAL INJURY

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Experienced litigation PRODUCT FAILURES Medicine, a professional corporation, 9915 Santa Monica consultants/experts include senior bankers, lenders, con- Boulevard, Suite 101, Beverly Hills, CA 90212, (310) 274- sultants, economists, accountants, insurance underwriters/ FRED M. JOHNSON, PHD 2304, fax (310) 203-0783. Contact Arnold L. Gilberg. brokers. Specialties: lending customs, practices, policies, P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax Board certified and appointed by three governors to Med- in all types of lending (real estate, business/commercial, (714) 526-6662. Contact Fred M. Johnson, PhD. For ical Board of California 11th District MQRC 1982-1991. construction, consumer/credit card), banking operations/ those who seek the most qualified and the highest forensic Certified in psychiatry and psychoanalysis. All civil matters, administration, trusts and investments, economic analysis workmanship. Extensive test facility and equipment avail- and experienced as expert witness. Degrees/licenses: and valuations/damages assessment, insurance claims, able. Lighting and illuminations: light intensity measure- M.D., PhD. Licensed in California and Hawaii. See display coverages and bad faith, real estate brokerage, appraisal, ments, visual perception, times of sunset, twilight, moon ad on page 55. escrow, and construction defects/disputes, and title insur- rise/set. Product failure analysis: medical devices, glass, ance. chairs (all types), ladders. Slip and fall: scientific testing of slipperiness on tile, ceramic, walkways, supermarkets and LAWRENCE R. MOSS, MD COLDWELL BANKER COMMERCIAL, ASG retail industry. Fall from height: stairways, balconies, plat- 2999 Overland Avenue, Suite 201, Los Angeles, CA 2200 Pacific Coast Highway, Suite 318, Hermosa Beach, form, theatre pit, pole. Biomechanics. 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FAINSBERT, ESQ., FAINSBERT experience. Traffic accidents (all motor vehicle types, bicy- adolescent, and adult psychiatrist. Associate clinical pro- MASE & SNYDER, LLP cles, pedestrians), collisions, rollovers, skid marks, visibility, fessor, UCLA. A practicing psychiatrist for 15 years, he is 11835 West Olympic Boulevard, Suite 1100, Los Angeles, signal phasing, time-motion, low-speed impact. Industrial board certified in child and general psychiatry. He is past CA 90064, (310) 473-6400, fax (310) 473-8702, e-mail: and construction accidents: OSHA issues. Automotive, in- president of the Southern California Society of Child and [email protected]. Contact Stephen B. Fains- dustrial, consumer products: brakes, seat belts, forklifts, Adolescent Psychiatry. As founding director of research at bert. Expert testimony in real property exchanges (coau- machinery, tools, protective equipment, lawn mowers, Hathaway Children and Family Services, he led a study of thor CEB publication Real Property Exchanges, 2nd ed.), heaters, chairs, fixtures, ladders, scaffolds, fasteners. the long-term effects of trauma. Currently in private prac- real estate transactions, standard of care and practice for Premises liability: code analysis, stairways, ramps, doors, tice-general and child psychiatry. Dr. Sugar’s reports real estate brokers, escrow, and real estate attorneys, dis- gates, windows, guardrails, pools, and lighting. Slip-and- and/or testimony have had an impact in cases (both child closures in purchase and sale agreements, real estate fi- fall. Trip-and-fall. Biomechanics. Safety. Human factors. and adult) involving: trauma: sexual and physical abuse nancing, and secured real property transactions. See display ad on page 42. (with or without PTSD), personal injury and workers compensation, psychiatric medication issue, diagnosis and ap- FINESTONE & RICHTER PSYCHIATRY/PSYCHOLOGY propriate treatment, ethical issues and stress in legal prac- 11601 Wilshire Boulevard, Suite 1900, Los Angeles, CA tice, battered woman’s syndrome, child custody. Free ini- 90025, (310) 575-0800, fax (310) 575-0170, e-mail: ACCREDITED PSYCHIATRY & MEDICINE tial telephone consultation with attorney. Attorney refer- [email protected]. Contact Howard N. Gould. At- 96 Larchwood Drive, Cambridge, MA 02138, (617) 492- ences and/or redacted past reports available on request. torney malpractice in residential real estate, residential bro- 8366, fax (617) 441-3195, e-mail: harold_bursztajn@hms See display ad on page 76. kerage issues, and broker and finder issues. .harvard.edu. Web site: www.forensic-psych.com. Con- tact Harold J. Bursztajn. Harold J. Bursztajn, MD, Har- PUBLISHING SAMUEL K. FRESHMAN, BA, JD vard Medical School co-director of the program of psychi- 6151 West Century Boulevard, Suite 300, Los Angeles, CA atry and the Law and associate professor of psychiatry, is BAY SHERMAN CRAIG & GOLDSTEIN, LLP 90045, (310) 410-2300, fax (310) 410-2919. Contact active in direct patient care, teaching, and research. He 11845 West Olympic Boulevard, Suite 845, Los Angeles, Samuel K. Freshman. Attorney and real estate broker consults to plaintiff and defense counsel, insurance firms, CA 90064, (310) 477-1400, fax (310) 479-0720, e-mail: since 1956, banker, professor legal malpractice, arbitra- state and federal agencies as an expert in general and [email protected]. Web site: www.baysherman.com. tion, brokerage malpractice, leases, syndication, construc- forensic psychiatry, medical malpractice decision analysis, Contact Peter Craig or Hal Jaffe. Many legal disputes tion, property management, finance, due diligence, conflict and organizational ethics. Dr. Bursztajn has nationwide ex- involve financial, accounting, and income tax considera- of interest, title insurance, banking, escrow, and develop- perience as a distinguished expert qualified to testify in tions. Bay Sherman Craig & Goldstein, LLP, work together ment. Expert witness 20-plus years in state and federal state and federal courts. See display ad on page 67. with counsel to resolve these conflicts. We specialize in in- courts. Twenty-one published articles, arbitrator and medi- tellectual property publishing. In addition to expert witness ator, general partner $300,000 plus, shopping centers, ADDICTION FORENSICS GROUP testimony, we provide the following: services prior to trial, apartments, and industrial property. JD Stanford (1956). 11301 West Olympic Boulevard, Suite 323, Los Angeles, financial, accounting and income tax issues defined, See display ad on page 59. CA 90064, (310) 966-1907, fax (310) 477-0661, e-mail: record analysis, economic fact-finding and analysis, depo- [email protected]. Web site: www.becsonmd sition preparation assistance, and settlement negotiations. DAVID GRIBIN, MAI, CPM .com. Contact Mace Beckson, MD. Board certified Ad- 22551 Ventura Boulevard, Suite 200, Woodland Hills, CA diction/Forensic Psychiatry; UCLA full-time faculty; Distin- QUESTIONED DOCUMENTS 91364, (818) 225-0097, fax (818) 225-0098, e-mail: guished Fellow, APA; alcohol, drugs, addictions, sexual [email protected]. Contact David Gribin. David Gribin compulsions, suicide, posttraumatic stress disorder, stalk- ANNE SILVER has been involved in real estate for over 25 years. His ing, and professional sexual misconduct. 520 Washington Boulevard, Suite 417, Marina del Rey, CA background includes brokerage, appraisals, property man- 90292, (310) 313-3997, fax (310) 313-4066, e-mail: agement, and expert witness in standard of care and ap-

74 Los Angeles Lawyer April 2005

praisal cases. Gribin is one of only 59 people nationwide ALAN D. WALLACE, ESQ. EXPERT WITNESS who have achieved both the MAI and CPM designations. 14011 Ventura Boulevard, Suite 406, Sherman Oaks, CA He was 1994 president of the Institute for Real Estate 91423, (818) 501-0133, fax (818) 905-6091, e-mail: SERVICES Management, Los Angeles Chapter, and is 2005 President [email protected]. Contact Alan D. Wallace, Esq. of the Southern California Chapter of the Appraisal Institute. Expert witness and litigation consulting for general real estate matters, including law, custom and practice, agency, • Bankruptcy - Interest Rates LAW OFFICE OF LORE HILBURG disclosure, broker malpractice, standards of care for bro- • Banking - Lending & Operations 1651 Virginia Road, Los Angeles, CA 90019, (323) 737- kers, buyers and sellers. Broker and attorney. Involved as 4444, fax (323) 737-4411, e-mail: [email protected]. broker in more that 7,500 real estate transactions. Depart- • Lender Liability, Letters of Contact Lore Hilburg. Recognized expert witness on ment of Real Estate master instructor and author, former Credit, Guarantees title, escrow, and foreclosure issues as well as legal mal- CAR hotline attorney, university law professor in real es- practice regarding title and title insurance matters. Testiﬁed tate. Successfully testiﬁed in dozens of cases. See • Forgery, Credit Cards in superior and federal courts and arbitrations. display ad on page 60.

Checking Account Disputes LAWRENCE H. JACOBSON, ESQ. REAL ESTATE APPRAISAL 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA • Consumer, Commercial, Real 90212, (310) 271-0747, fax (310) 271-0757, e-mail: ADELMAN APPRAISALS, INC. Estate, Construction Loans [email protected]. Web site: www.lawrencejacobson 14431 Ventura Boulevard, Suite 288, Sherman Oaks, CA & Regulatory Issues .com. Practicing real estate law in California since 1968; 91423, (818) 995-0648, fax (818) 990-0326, e-mail: Real estate broker since 1978; Former VP-Legal Affairs, [email protected]. Web site: www • Credit Damages California Association of Realtors; broker. Witness/consul- .adelmanappraisals.com. Contact Chris Adelman. Spe- tant expertise in standard of care; brokerage; lawyer mal- cialties: 10+ years’ experience in residential real estate ap- • Appraisal and Expert referrals practice, transactions, custom, and usage. praisals, high-end residential appraisals, divorces, separation, trust, and retroactive appraisals, expert witness, de- JACK KARP/NATIONAL PROPERTIES GROUP positions for residential evaluations and litigation, vacant 31115 Ganado Drive, Rancho Palos Verdes, CA 90275, –35 years experience – land evaluations, extensive experience in dealing with law (310) 377-6349, fax (310) 868-2880, e-mail: jlkarp@cox CEO, Director, Sr. Loan Officer, offices, business managers, and accounting firms for vari- .net. Industrial and commercial broker’s care and duties, ous appraisal related business. Quoted 11/05 in the L.A. State & Federal Court professional obligations to clients. Mediation and arbitra- Daily Journal, expert witness cover story. tion between brokers and clients regarding disputes, ethical questions, and fee division. Deal structuring and site lo- COLDWELL BANKER COMMERCIAL, ASG THOMAS TARTER cation analysis. Real estate leases and purchase contracts 2200 Pacific Coast Highway, Suite 318, Hermosa Beach, ANDELA CONSULTING GROUP and their interpretations. Author AIR Net and Gross Leases CA 90254, (310) 937-7700. Coldwell Banker Commercial 818-380-3102 or 818-884-2525 and AIR Standard Offer and Agreement and Escrow In- ASG, specialties: Real estate, valuations, business valua- struction for Purchase of Real Estate. See display ad on tions, condemnations, and FF & E. As part of the Coldwell E-Mail: [email protected] page 72. Banker Commercial group, over 450 offices nationwide. Additional services for special purpose mixed use and con- www.commercepartners.org R.A. SNYDER PROPERTIES, INC. taminated/toxic properties, environmental/civil engineering. 2399 Camino Del Rio south, Suite 102, San Diego, CA Right-of-way eminent domain, structural defect reports, 92108, (619) 297-0274, fax (619) 297-0779, e-mail: and construction defect reports. In-house CPA, general [email protected]. Web site: www.rasnyde.com. contractor, and engineers. Approved for IRS, federal, Contact Richard A. Snyder. Specialties: real estate pro- state, and municipal courts. Offices in Orange County, San EXPERT – PSYCHIATRY fessional for over 25 years. Experienced in a broad range Diego/Inland Empire, and Northern California. See display of agency representations, sale and exchange of residen- ad on page 67. JEFF SUGAR, MD tial and commercial properties, management of over 4,000 Child, Adolescent & apartment units and 400,000 sq. ft. comml/indust. Serves CURTIS-ROSENTHAL, INC. as a court-appointed receiver and as litigation consultants Adult Psychiatrist 5959 West Century Boulevard, Suite 1010, Los Angeles, in real estate custom and practice, ethics, and agency. Associate Clinical CA 90045, (310) 215-0482, fax (310) 215-3089, e-mail: Past president, California Association of Realtors-1996; [email protected]. Web site: www Professor, UCLA S.D. Chapter IREM-1991; Resident Relations Foundations- .curtisrosenthal.com. Contact David Rosenthal, MAI. A practicing psychiatrist 1991; County Council of R.E. Boards-1988; San Diego Appraisal of commercial and residential real estate for for 15 years, he is board Assoc. of Realtors-1985. Vice president, National Assoc. eminent domain, bankruptcy, estate planning, divorce, certified in child and of Realtors-1999-2000. and general litigation. Accepted in local, state, and fed- general psychiatry. He is eral courts. Past President of the SCHULZE HAYNES & CO. 660 South Figueroa Street, Suite 1280, Los Angeles, CA Southern California Society DAVID GRIBIN, MAI, CPM of Child and Adolescent Psychiatry and Associate 90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert 22551 Ventura Boulevard, Suite 200, Woodland Hills, CA Clinical Professor at UCLA. As founding director of @schulzehaynes.com. Web site: www.schulzehaynes 91364, (818) 225-0097, fax (818) 225-0098, e-mail: research at Hathaway Children and Family Services .com. Contact Karl J. Schulze or Dana Haynes, prin- [email protected]. Contact David Gribin. David Gribin he led a study of the long-term effects of trauma. cipals. Specialties: forensic business analysis and ac- has been involved in real estate for over 25 years. His Currently Chief of Child Inpatient at Kedren Com- counting, lost profits, economic damages, expert testi- background includes brokerage, appraisals, property munity Health Center and in private practice-general mony, discovery assistance, business and real estate valu- management, and expert witness in standard of care and and child psychiatry. ations, construction claims, corporate recovery, real estate appraisal cases. Gribin is one of only 59 people nationwide Dr. Sugar’s reports and/or testimony have had transactions, financial analysis and modeling, major profes- who have achieved both the MAI and CPM designations. an impact in cases (both child and adult) involving: sional organizations, and have experience across a broad He was 1994 president of the Institute for Real Estate •Trauma: Sexual and Physical Abuse (with spectrum of industries and business issues. Degrees/li- Management, Los Angeles Chapter, and is 2005 President or without PTSD) censes: CPA; CVA; CFE; PhD-economics. •Personal Injury and Workers’ Compensation of the Southern California Chapter of the Appraisal •Psychiatric Medication Issues TEMMY WALKER, INC. Institute. 5026 Veloz Avenue, Tarzana, CA 91356, (818) 760-3355, •Diagnosis and Appropriate Treatment MAURICE ROBINSON & ASSOCIATES LLC fax (818) 999-0826, e-mail: [email protected]. Contact •Ethical issues and Stress in Legal Practice 880 Apollo Street, Suite 125, El Segundo, CA 90245, Temmy Walker. Specializes in expert witness testimony •Battered Woman’s Syndrome (310) 640-9656, fax (310) 640-9276, e-mail: maurice and litigation consultant in matters regarding residential •Child Custody @mauricerobinson.com. Web site: www.mauricerobinson real estate, with emphasis on the customs and practice, .com. Contact R. Maurice Robinson, president. Hotel –FREE Initial Telephone Consultation with Attorney– standards of care, disclosure requirements, agency rela- and real estate industry business issues, including market, ATTORNEY REFERENCES AND/OR REDACTED PAST tionships, and broker supervision. Complete assistance. economic and financial feasibility, valuation, and disputes REPORTS AVAILABLE ON REQUEST. Extensive transaction and court experience. Director Cali- between owner-operator, borrower-lender, and franchisor- TEL: (310) 322-6933 | E-MAIL: [email protected] fornia Association of Realtors, master faculty instructor for franchisee. Fluent in management contracts, license agree- continuing education C.A.R. Excellent credentials and ref- ments, ground and building leases, partnership and JV 312 E SYCAMORE AVE, EL SEGUNDO, CA 90245 erences. See display ad on page 73. agreement, concession contracts, development agree-

76 Los Angeles Lawyer April 2005 Serving Attorneys Since 1990 ments, and loan docs. Can estimate damages and ap- accounting, CPM scheduling, cost estimating, change praise property values under multiple scenarios. Expert order administration, quality assurance & building perfor- witness testimony, litigation strategy, consultation and sup- mance. Evaluation of delay claims. Documentation of AMFS port, damage calculations, lost proﬁts analysis, real estate major property/casualty insurance losses. Excellent liti- provides the most appraisals, deal structuring, workouts, new development, gation support & trial exhibit preparation. Expert witness experienced strategic planning, market demand assessment, acquisi- testimony. Experienced AAA arbitrator & mediator. MEDICAL tion due diligence, and economic, ﬁnancial, and investment Large & complex cases. Member, Dispute Resolution analysis. Boards. EXPERTS for your case. RECEIVER SHEPHERD CONSULTING SERVICES P.O. 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Experienced staff of consultants specializing in LEON GOTTLIEB EXPERIENCE forensic/expert witness litigation services, plan/docu- ENCE US-INT’L RESTAURANT, HOTEL & FRAN- THE DIFFER ment review, specification preparation, and quality con- Speak to one of our staff physicians with CHISE CONSULTANT just one phone call — at no charge to you. trol/management services. 4601 Sendero Place, Tarzana, CA 91356-4821, (818) 1-800-275-8903 757-1131, fax (818) 757-1816, e-mail: [email protected]. SCHOOL SAFETY & SPECIAL www.amfs.com Web site: http://members.aol.com/lgottlieb/myhomepage EDUCATION [email protected] www.medicalexperts.com /business.html. Specialties: USA/Int’l restaurant/hotel/ franchise experience since 1960. Hands-on consultant NATIONAL EXPERT WITNESS and expert witness, all types of restaurants, franchises, 1451 Quail Street, Suite 108, Newport Beach, CA fast food, training, manuals, safety, security, injury, oper- 92660, (949) 797-0150, fax (949) 635-5910,e-mail: A Consulting Group Managed by Attorneys and Physicians ating standards, and P&L damages. Former VP/Partner [email protected]. Contact Dr. Robert P. Gelhart. De- IHOP, director to USA chains, author, arbitrator, and termine the presence or absence of negligent supervi- expert witness. sion and its relationship with a school safety incident. RETALIATION SECURITIES ■ EVALUATION CONFIDENTIAL BUSINESS HAIGHT CONSULTING ■ 1726 Palisades Drive, Pacific Palisades, CA 90272, CONSULTANTS, LLC TESTING (310) 454-2988, fax (310) 454-4516. Contact Marcia 2275 Huntington Drive, Suite 309, San Marino, CA Haight. Human resources expert knowledgeable in both 91108, (626) 419-0082, fax (626) 799-7960, e-mail: ■ TREATMENT federal and California law. Twenty-five years’ corporate [email protected]. Contact James F. Broder, human resources management experience plus over 15 CFE, CPP, FACFE. Author of “Risk Analysis and Secu- Neurology and Electromyography years as a Human Resources Compliance Consultant in rity Surveys,” premisis liability, adequate vs. inadequate California. Specializations include sexual harassment, security procedures and practices, expert case analysis Neurotoxicology ADA/disability discrimination, other Title VII and FEHA and testimony, corporate procedures, training and oper- Occupational/Environmental discrimination and harassment, retaliation, FMLA/CFRA, ations, kidnap, ransom, extortion, and workplace vio- Medicine safety, and wrongful termination. Courtroom testimony lence issues. Thirty-five years of law enforcement and and deposition experience. Retained 60% by defense, security experience, domestic and international. Listed in 40% by plaintiff. Audit employer’s actions in preventing the Encyclopedia of Security Management as “One of TEL 415.381.3133 / FAX 415.381.3131 the most highly recognized security authorities in the and resolving discrimination, harassment, and retaliation E-MAIL [email protected] issues. Assess human resources policies and practices US.” CA PI Lic. 0021073. for soundness, for comparison to prevailing practices, www.neoma.com ROBERT C. ROSEN and for compliance. Evaluate employer responsiveness 300 South Grand Avenue, Suite 2700, Los Angeles, CA to complaints and effectiveness of employer investiga- 90071, (213) 362-1000, fax (213) 362-1001, e-mail: tions. Assist counsel via preliminary case analysis, dis- [email protected]. Web site: www.rosen-law.com. San Francisco covery strategy, examination of documents, and expert Specializing in securities law, federal securities law en- testimony. forcement, securities arbitration and international securi- Sacramento ROOFING AND WATERPROOFING ties, insider trading, NYSE, AMEX, NASD disciplinary Petaluma proceedings, broker-dealer, investment company and in- SCHWARTZ / ROBERT & ASSOCIATES, INC. vestment adviser matters, liability under federal and state Richmond 42 Faculty Street, Thousand Oaks, CA 91360, (805) securities laws, public and private offerings, internet se- Eureka 777-1115, cell (818) 825-3247, fax (805) 777-1172, curities, and law firm liability. Former chair, LACBA Busi- e-mail: [email protected]. Web site: www ness and Corporations Law Section; LLM, Harvard Law .schwartzrobert.com. Contact Robert I. Schwartz, School. More than 30 years practicing securities law, 12 AIA. Real property development procedures & practices, years with the U.S. Securities and Exchange Commis- all building types, sizes & phases. Professional evalua- sion, Washington, DC. Published author/editor of securi- tion of building design errors & omissions, building code ties regulations, including multivolume treatises. See compliance & professional standards of practice. Foren- display ad on page 69. sic investigation of construction defects. Repair cost JONATHAN S. RUTCHIK, MD, MPH estimates. Construction contract/subcontract performance—project management administration & cost 20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941

Los Angeles Lawyer April 2005 77 SEXUAL HARASSMENT/ traumatic stress disorder, stalking, and professional DISCRIMINATION sexual misconduct. BETH K. WHITTENBURY & ASSOCIATES TAXATION 30213 Via Borica, Rancho Palos Verdes, CA 90275, (310) 612-2102, fax (310) 544-6048, e-mail: KAJAN MATHER & BARISH [email protected]. Web site: www.bkwhittenbury 9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA .com. Contact Beth Whittenbury. Fact-finding investi- 90212, (310) 278-6080, fax (310) 278-4805, e-mail: gations and mediations of employee complaints, AB [email protected]. Web site: www.taxdisputes.com. 1825 sexual harassment training, and expert witness Contact Elliott H. Kajan. The firm’s practice is devoted testimony. Member, Cal. Bar. Practice limited to con- to representation of taxpayers before the Internal Rev- sulting. Since 1992. enue Service, Franchise Tax Board, State Board of Equalization, and California Employment Development HAIGHT CONSULTING Department, involving tax audits, administration appeals 1726 Palisades Drive, Pacific Palisades, CA 90272, proceedings, tax collection matters, complex tax litiga- (310) 454-2988, fax (310) 454-4516. Contact Marcia tion, and criminal tax investigations and trials. The firm Haight. Human resources expert knowledgeable in also represents and advises accountants and attorneys both federal and California law. Twenty-five years’ cor- regarding tax penalties and professional responsibility porate human resources management experience plus matters. over 15 years as a Human Resources Compliance Con- sultant in California. Specializations include sexual ha- TOXICOLOGY rassment, ADA/disability discrimination, other Title VII PRINCETON-SOMERSET GROUP, INC. and FEHA discrimination and harassment, retaliation, 4 Carroll Drive, Hillsborough, NJ 08844, (800) 597- FMLA/CFRA, safety, and wrongful termination. Court- 8836, fax (908) 369-6881. Contact Dr. Dennis room testimony and deposition experience. Retained Stainken. Expert witness, toxicology, health issues, 60% by defense, 40% by plaintiff. Audit employer’s ac- chemical exposure, mold issues, worker exposure, tions in preventing and resolving discrimination, harass- contamination issues, causation assessment, property ment, and retaliation issues. Assess human resources damage/contamination and remediation, sewage, gaso- policies and practices for soundness, for comparison to line and oil issues and age determination, petroleum re- prevailing practices, and for compliance. Evaluate em- leases, chemicals/products, risk assessment, indoor air ployer responsiveness to complaints and effectiveness quality/health effects, toxic tort evaluation, chemistry, of employer investigations. Assist counsel via preliminary site assessment, regulatory issues, environmental toxi- case analysis, discovery strategy, examination of docu- cology, environmental issues, and wetland/ecological. ments, and expert testimony. Services nationwide. Thirty plus years of industrial and STEPHEN J. MOREWITZ, PHD & ASSOCIATES government experience in pollution under NPDES, 5300 Bothwell Road, Tarzana, CA 91356, (818) 594- CERCLA, RCRA, SDWA & CWA. Former federal and 1587, fax (818) 345-9981, e-mail: morewitz@earthlink state regulator, professor, consultant, industrial re- .net. Web site: http//home.earthlink.net/~morewitz/ search. Seventy-five plus publications. Contact Dr. Steve Morewitz. Sexual harassment and disability. Evaluates sexual harassment policies and pro- TRAFFIC ENGINEER cedures, sexual harassment impact, disability, rehabilita- WILLIAM KUNZMAN, PE tion, and quality of life losses. Provides other experts. 1111 Town and Country #34, Orange, CA 92868, Eighteen years of experience. Professor and former (714) 973-8383, fax (714) 973-8821, e-mail: mail dean. Author of four books, including Sexual Harass- @traffic-engineer.com. Web site: www.traffic-engineer ment and Social Change in American Society (1996) and .com. Contact William Kunzman, PE. Traffic expert Chronic Disease and Health Care (2005), and 70 other witness since 1979, both defense and plaintiff. Auto, publications. Two Outstanding Scholar Book Awards pedestrian, bicycle, and motorcycle accidents. Largest and other honors. settlement: $2,000,000 solo vehicle accident case SLIP, TRIP, AND FALL against Caltrans. Before becoming expert witnesses, Air Weather & Sea employed by Los Angeles County Road Department, Conditions, Inc. A R TECH FORENSIC EXPERTS, INC. Riverside County Road Department, City of Irvine, and 18075 Ventura Boulevard, Suite 209, Encino, CA Federal Highway Administration. Knowledge of govern- Clear, plain-language and convincing 91316, (818) 344-2700, fax (818) 344-3777. Engineers: mental agency procedures, design, geometrics, signs, traffic controls, maintenance, and pedestrian protection expert testimony, reports and analyses experienced, registered, advanced degrees, extensive barriers. Hundreds of cases. Undergraduate work— to reconstruct weather, storm, and testimony experience. Traffic accidents (all motor vehicle UCLA; graduate work—Yale University. atmospheric conditions at location and types, bicycles, pedestrians), collisions, rollovers, skid marks, visibility, signal phasing, time-motion, low-speed time of interest. impact. Industrial and construction accidents: OSHA is- WEATHER Wind and rain assessments, and indica- sues. Automotive, industrial, consumer products: GOLDEN GATE WEATHER tions of their normalcy, unusualness brakes, seat belts, forklifts, machinery, tools, protective 781 McDuff Avenue, Fremont, CA 94539, (510) 657- and foreseeability. equipment, lawn mowers, heaters, chairs, fixtures, 2246, fax (510) 315-3015, e-mail: [email protected]. Authoritative, certiﬁed data acquisition, ladders, scaffolds, fasteners. Premises liability: code Web site: http://ggweather.com. Contact Jan Null. preparation of exhibit materials, site analysis, stairways, ramps, doors, gates, windows, Certified consulting meteorologist experienced at trial visits and evaluations of reports for guardrails, pools, and lighting. Slip-and-fall. Trip-and- and depositions. Weather event reconstruction and ex- legal and insurance matters including fall. Biomechanics. Safety. Human factors. See display pert analysis for rain, storms, wind, snow, flooding, ice, building projects and accidents. ad on page 42. fog, and other weather events. Twenty-three years’ ex- Excellent client references provided on SUICIDE perience with National Weather Service. Degrees: BS, MA, CCM. request. ADDICTION FORENSICS GROUP 11301 West Olympic Boulevard, Suite 323, Los Ange- Jay Rosenthal CCM les, CA 90064, (310) 966-1907, fax (310) 477-0661, CERTIFIED CONSULTING METEOROLOGIST e-mail: [email protected]. Web site: www Phone 818.645.8632 or 818.991.0899 .becksonmd.com. Contact Mace Beckson, MD. Fax 818.991.1424 Board certified Addiction/Forensic Psychiatry; UCLA E-mail [email protected] full-time faculty; Distinguished Fellow, APA; alcohol, drugs, addictions, sexual compulsions, suicide, post- P. O. Box 119, Agoura Hills, CA 91376-0119

78 Los Angeles Lawyer April 2005 Computer Counselor BY GORDON ENG

Technology Trends Affecting the Practice of Law

IN THE COMING MONTHS, lawyers can look to electronic technology coming soon to a courtroom near you. In the near future, lawyers may not only to provide devices to improve office productivity but also be called upon to advise their employers on the legalities of RFIDs to provide new arenas for the practice of law. Perhaps most influen- on employee ID cards and the placement of scanners around the office. tial will be handheld devices, which continue to improve the con- Government and criminal defense attorneys may argue about RFIDs nections between traveling attorneys and their office computers. A on driver’s licenses. related fact of life is the ever-growing ubiquity of computers and data. The privacy and security issues raised by RFID technology are not This development will continue to affect such legal issues as privacy, as up-to-date as the technology itself. Appropriately, the Internet is discovery, and intellectual property. the best starting place for information on the conflict between privacy In the handheld world you are free to travel our land while being rights and the facility with which they can be compromised with the able to receive phone calls, e-mail, and music; synchronize with con- help of computers and other electronic devices, including RFIDs. Some tacts and appointments on your desktop; take and send photos; Web sites that cover privacy, RFIDs, and the technical standards for organize your finances; and play video games on what used to be just RFIDs include www.epcglobal.org, www.epic.org, www.ala.org, a cell phone. Take a look at the Handspring Treo 650 (www www.rfidnas.com, www.aimglobal.org/standards/stndrdorgs.asp, and .palmone.com). It can do it all. It uses the Palm OS, so there is a large www.rfidjournal.com. On the Internet, some basic research on pri- number of applications already available. The Sony Ericsson P910a vacy laws can begin at www.privacy.ca.gov, www.epic.org, and (www.sonyericsson.com/p910) is another great all-in-one, but it may www.eff.org. For a general overview of federal security initiatives, start be less suited for law firm applications, because it is designed for the with the Department of Homeland Security at www.dhs.gov and Symbian operating system and several common time, billing, and case Customs and Border Protection at www.cbp.gov. management programs may not be compatible. In the corporate environment, the Blackberry is more common as a result of the rel- Electronic Discovery ative ease in which the e-mail client functions with the handheld unit. Another issue involving privacy and the increasing use of computers Radio frequency identification tags, or RFIDs, can fit into a con- and data-carrying devices is the burden of electronic discovery. tainer about the size of a gelatin-capsule pill. They are no bigger than Electronic discovery in judicial settings and for internal investigations the antitheft tags that many retail products already have and that con- will change the relationships among users, companies, and their tain no data. RFID tags, on the other hand, can be encoded with data— computers. Attorneys in many practice areas may soon need to be bet- for example, the type of product within a container (or, for that matter informed about how many copies of an e-mail message reside in ter, your recent medical records, arrest record, or account and PIN the computer where it originated, each server along its path, and numbers). RFID tags come in two varieties: active and passive. The backup files, not to mention what information is automatically passive type responds to the energy field produced by a reading embedded in that message by the application that generated it. device. Active RFID tags have a battery or other power source and RFIDs do not yet keep track of the movements of office workers, can transmit their data over distances as great as 300 feet. RFID tech- but they have dramatically advanced the amount of information nology has been available since the 1970s, but the costs to produce that can ride along with a product from the manufacturer to the the tags and scanners have now been brought down to a more afford- retailer. Similarly, as computers are ever more widely used and able range. become steadily more capable of storing data, the field of electronic Passive RFIDs and their readers have a range of a few inches to discovery has been dramatically affected. The flood of information a few feet, and one of their functions is that of a more sophisticated that nearly any organization now harbors on its computers, servers, bar code that contains much more information about the product. One and telephone systems may become subject to a discovery request, and clear advantage that they have over bar codes is that an item tagged nothing more than compliance with the request can bring ruin. with a passive RFID can be scanned from any angle and the tag does In 2004 the federal courts issued proposed changes to the Federal not depend on light to be read. Bar codes, on the other hand, can only Rules of Civil Procedure to address some of the concerns over the intru- be read from a very short distance, at or near a right angle and siveness, costs, and use of electronic discovery. (See www within line of sight of the reader. Some major retailers—for which .kenwithers.com/rulemaking/civilrules.) California has also addressed inventory control is always a great concern—are already demanding some of these issues in Code of Civil Procedure Sections 2017 et seq. that their suppliers use RFIDs. In particular, Section 2017.730 provides that in certain cases the court The lack of uniform standards had impeded the implementation must find, or the parties must stipulate, that electronic discovery will of RFID technology, but in December 2004, EPC Global, a standard- be cost-efficient. The court may appoint a third-party service provider setting body for RFID, announced a second generation of specifica- to work on the discovery process in an efficient and cost-effective man- tions that, if implemented, will resolve a number of compatibility issues. A number of vendors have announced that they plan to offer tags that Gordon Eng is a business transactional and real estate lawyer in Torrance and comply with these specifications. In short, RFID technology may be a member of the Los Angeles Lawyer Editorial Board.

Los Angeles Lawyer April 2005 79 ner. In addition, corporate counsel, IT experts, SUNBELT BUSINESS BROKERS OF BEVERLY HILLS and management have been and will be obliged to work together to create policies and procedures for coping with electronic dis- JOHN A. SCHMID covery. BUSINESS BROKER Corporate Compliance 310.678.8606 The burdens of electronic discovery can weigh We discretely sell businesses from one to ten on anyone who relies on a computer, but million in valuation. All fees earned upon they may be especially worrisome for cor- successful conclusion of the transaction. porate counsel, who can also add compliance issues to their list of technological chal- Confidentiality assured. lenges. Before the Sarbanes-Oxley Act, when www.sunbeltbizbrokers.com the CEO of a public company stated that “the buck stops here,” he or she was usually assumed to be speaking figuratively. After the act’s passage, executives and board members must spend an unprecedented amount of time ensuring accountability for how the corporation’s decisions are made and how information is reported. Sarbanes-Oxley is not the only recent leg- islation to focus on compliance issues. Companies involved in healthcare, banking, and the environment have recently faced increased regulation, resulting in more frequent review of their compliance practices, and attorneys in and out of house have had to adjust their roles accordingly. There are no signs that this will change soon. Statutory certifications of compliance are frequently based on a review of the process by which a corporation makes decisions. This review often depends on checklists concerning how information is collected and how it is reviewed. The use of checklists, in turn, is facilitated by computer-based tracking systems that can include all personnel, from rank-and-file employees to the CEO. To JACK TRIMARCO & ASSOCIATES offer effective advice, counsel will need to understand how these computerized checklists POLYGRAPH/INVESTIGATIONS, INC. are created and used. For a taste of the size of this market one need only conduct an Internet search for the term “corporate compliance.” A multitude of 9454 Wilshire Blvd. vendors and software companies are ready to help make it easier for their clients to doc- Sixth Floor ument compliance. In addition, various Beverly Hills, CA 90212 organizations have Web pages to facilitate research. These include complianceresources (310) 247-2637 .org, http://aicpa.org/antifraud/homepage .htm, http://oig.hhs.gov, www.occ.treas.gov, www.fdic.gov, www.hcca-info.org, and www .int-comp.org. Jack Trimarco - President email: [email protected] Lawyers may have mixed feelings about Former Polygraph Unit Chief www.jacktrimarco.com computers, which seem to create as much Los Angeles F.B.I. (1990-1998) drudgery as they prevent. While every com- CA. P.I. #20970 puter-created legal liability is also an employment opportunity, many lawyers may won- Former Polygraph Inspection Team Leader der whether the machine serves them or the Member Society of Former Special Agents Office of Counter Intelligence other way around. In either case, thanks to Federal Bureau of Investigation U.S. Department of Energy handheld devices, attorneys can stay in touch with their office computers from almost any- where at nearly any time. ■

80 Los Angeles Lawyer April 2005 Classiﬁeds

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Los Angeles Lawyer April 2005 81 Index to Advertisers Index to Advertisers

Accredited Psychiatry & Medicine, p. 67 John R. Grindon & Associates, p. 64 Pro/Consul, Inc., p. 75 Tel. 617-492-8366 www.forensic-psych.com Tel. 314-895-4747 www.jrgrindon.com Tel. 800-329-1119 www.expertinfo.com Advisory Services Group, p. 67 Gursey, Schneider & Company, p. 55 Graham A. Purcell, MD, p. 73 Tel. 310-937-7700 Tel. 310-552-0960 www.gursey.com Tel. 818-985-3051 www.gpurcellmd.com Air Weather & Sea Conditions, Inc., p. 78 Hargis & Associates, Inc., p. 59 Quo Jure Corporation, p. 21 Tel. 818-645-8632 www.weatherman.org Tel. 800-554-2744 www.hargis.com Tel. 800-843-0660 www.quojure.com AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 77 Higgins, Marcus & Lovett, Inc., p. 43 Jan Raymond, p. 35 Tel. 800-275-8903 www.amfs.com Tel. 213-617-7775 www.hmlinc.com Tel. 888-676-1947 e-mail: [email protected] The Andela Consulting Group, Inc., p. 76 G. L. Howard CPA, p. 12 Rick Engineering Company, p. 50 Tel. 818-380-3102 Tel. 562-431-9844 e-mail: [email protected] Tel. 909-782-0707 www.rickengineering.com Aon Direct Admin./LACBA Professional Liability, Inside Front Cvr. Jack Trimarco & Associates Polygraph, Inc., p. 80 Rimkus Consulting Group, Inc., p. 65 Tel. 800-634-9177 www.attorneys-advantage.com Tel. 310-247-2637 www.jacktrimarco.com Tel. 877-978-2044 www.rimkus.com A R Tech Forensic Experts, Inc., p. 42 Jeffrey Kichaven, p. 21 ROEL Construction Company, p. 58 Tel. 818-344-2700 e-mail: [email protected] Tel. 310-996-8465 www.jeffkichaven.com Tel. 619-297-4156 www.roel.com AT&T Wireless, Inside Back Cvr. Fred M. Johnson, PhD., p. 63 Rosen & Associates, PC, p. 69 Tel. 800-459-6524 www.attwireless.com Tel. 714-526-6661 e-mail: [email protected] Tel. 213-362-1000 www.rosen-law.com Ballenger, Cleveland & Issa LLC, p. 48 KARS Advanced Materials, Inc., p. 50 Ronsin Legal, p. 12 Tel. 310-873-1717 Tel. 714- 892-8987 www.karslab.com Tel. 323-526-7300 www.rosinlegal.com Gunther R. Bauer, MD, Attorney at Law, p. 64 Kroll, p. 49 Jonathan S. Rutchik, MD, p. 77 Tel. 310-377-5557 www.bauermdmedmallaw.com Tel. 213-443-6090 www.krollworldwide.com Tel. 415-381-3133 www.neoma.com Law Office of Donald P. Brigham, p. 4 Krycler, Ervin, Taubman & Walheim, p. 53 Rutter Hobbs & Davidoff, Incorporated, p. 6 Tel. 949-206-1661 e-mail: [email protected] Tel. 818-995-1040 www.ketw.com Tel. 310-286-1700 www.rutterhobbs.com Bruce Broukhim, MD, p. 61 LACBA Family Law Section, p. 61 Sanli Pastore & Hill, Inc., p. 47 Tel. 818-775-6500 Tel. 213-896-6560 www.lacba.org Tel. 310-571-3400 www.sphvalue.com Charles River Associates, p. 51 Lawyers’ Mutual Insurance Co., p. 7 Secure Evidence Storage Co., Inc., p. 12 Tel. 202-662-3800 www.crai.com Tel. 800-252-2045 www.lawyersmutual.com Tel. 800-924-2883 www.secureevidencestorage.com Cohen Miskei & Mowrey, p. 57 Legal Tech, p. 33 Spiegel Property Damage Consulting and Forensics, p. 42 Tel. 818-986-5070 e-mail:[email protected] Tel. 800-537-2128 www.legaltechshow.com Tel. 800-266-8988 www.propertydamageinspections.com Commerce Escrow Company, p. 28 Law Offices of Boyd S. Lemon, p. 64 Steven R. Sauer APC, p. 8 Tel. 213-484-0855 www.comescrow.com Tel. 310-827-0840 www.legalmalexpert.com Tel. 323-933-6833 e-mail: [email protected] Construction Forensics, p. 52 Lexis Publishing, p. 5, 13 Anita Rae Shapiro, p. 27 Tel. 800-559-0933 e-mail: [email protected] www.lexis.com Tel. 714-529-0415 www.adr-shapiro.com D. Wylie Associates, p. 59 Lineback, Inc., p. 62 Stonefield Josephson, Inc., p. 11 Tel. 866-225-4511 www.sjaccounting.com Tel. 805-681-9289 www.drivingfatigue.com Tel. 714-565-1012 e-mail: [email protected] Jeff Sugar, M.D., p. 76 DataChasers.com, p. 48 Arthur Mazirow, p. 80 Tel. 310-322-6933 e-mail: [email protected] Tel. 951-780-7892 www.datachasers.com Tel. 310-255-6114 e-mail: [email protected] Sunbelt Business Brokers of Beverly Hills, p. 80 Deadlines On Demand, p. 9 MCLE4LAWYERS.COM, p. 6 Tel. 310-678-8606 www.sunbeltbizbrokers.com Tel. 888-363-5522 www.deadlines.com Tel. 310-552-5382 www.MCLEforlawyers.com TASA, Technical Advisory Service for Attorneys, p. 69 Desmond, Marcello & Amster, p. 52 Gil Mileikowsky, MD p. 67 Tel. 800-523-2319 www.tasanet.com Tel. 310-216-1400 www.dmavalue.com Tel. 310-858-1300 www.baby4you.net ULTIMO Organization, Inc., p. 57 Diversified Risk Management, Inc., p. 21 Clinton E. Miller, JD, p. 65 Tel. 714-560-8999 www.geotechnical.com Tel. 800-810-9508 www.diversifiedriskmanagement.com Tel. 408-279-1034 www.millerjd.qpg.com URS, p. 47 E. L. Evans & Associates, p. 63 Miod and Company, LLP, p. 61 Tel. 213-996-2571 www.urscorp.com Tel. 310-559-4005 Tel. 818-898-9911 www.miod-cpa.com Vision Sciences Research Corporation, p. 78 Eurisko Corporation, p. 69 MP Group, p. 35 Tel. 925-837-2083 www.apgvsrc.com Tel. 818-774-0043 www.euriskocorp.com Tel. 323-874-8973 www.mpgroup.com Temmy Walker, Inc., p. 73 Georg Finder, p. 55 Mr. Truck, p. 52 Tel. 818-760-3355 Tel. 714-441-0900 www.creditdamageexpert.com Tel. 925-625-4994 or 800-337-4994 e-mail: [email protected] Law Offices of Alan D. Wallace, p. 60 Kenneth J. Fischbeck, p. 46 National Properties Group, p. 72 Tel. 818-501-0133 www.expertwitnessre.com Tel. 714-609-7481 e-mail: kfi[email protected] Tel. 310-516-0022 Bruce Wapen, MD, p. 71 Forensic Expert Witness Associates, p. 53 Alan Burton Newman, Professional Law Corporation, p. 4 Tel 650-577-8635 www.drwapen.com Tel. 949-640-9903 www.forensic.org Tel. 310-306-4339 www.newmanslaw.com Ward & Credell, Attorneys at Law, p. 27 ForensisGroup Inc., p. 43 Nextel Communications, p.1 Tel. 310-540-1771 Tel. 626-795-5000 www.forensisgroup.com Tel. 866-805-9890 reference MLSAB www.nextel.com/lacba West Group, Back Cover Fragomen, Del Rey, Bernsen & Loewy, LLP, p. 17 Noriega Clinics, p. 81 Tel. 800-762-5272 www.westgroup.com Tel. 310-820-3322 www.fragomen.com Tel. 323-728-8268 White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 45 Samuel K. Freshman, p. 59 OFS, “The Business Doctors”, p. 46 Tel. 818-981-4226 www.wzwlw.com Tel. 310-410-2300 e-mail: [email protected] Tel. 310-821-1893 www.ofs3.com Lesther Winkler, M.D., p. 72 Marc J. Friedman, M.D., p. 64 Oliveri Fashion, p. 27 Tel. 818-349-8568 Tel. 818-901-6600 e-mail: [email protected] Tel. 310-899-1936 www.oliverifashion.com Witkin & Eisinger, LLC, p. 49 FULCRUM Financial Inquiry LLP, p. 2 David Ostrove, Attorney-CPA, p. 43 Tel. 310-670-1500 Tel. 213-787-4100 www.fulcruminquiry.com Tel. 323-939-3400 www.lawyers.com/ok&alaw Woody Financial Realty, p. 21 Arnold L. Gilberg, MD, PhD., A Professional Corporation, p. 55 Pacific Construction Consultants, Inc. (PCCI), p. 50 Tel. 562-439-3344 e-mail: dave@woodyfinancial.com Tel. 310-274-2304 Tel. 916-638-4848 www.pcci.biz Dr. Lewis Yablonsky, PhD., p. 63 Steven L. Gleitman, Esq., p. 4 Pacific Construction Management, Inc., p. 47 Tel. 310-450-3697 Tel. 310-553-5080 Tel. 800-576-7264 www.pcmi.biz e-mail: [email protected] G. Govine Consulting, p. 60 Pacific Health & Safety Consulting, Inc., p. 57 Zivetz, Schwartz & Saltsman, p. 46 Tel. 526-564-0502 www.govineconsults.com Tel. 949-253-4065 www.phsc-web.com Tel. 310-826-1040 www.zsscpa.com

82 Los Angeles Lawyer April 2005 CLE Preview

EXCEL AND WORD Annual Environmental Law Super Symposium FOR ATTORNEYS ON THURSDAY, APRIL 7, the Environmental Law Section will present the 19th Annual Environmental Law Super Symposium. This program ON TUESDAY, APRIL 5, the Los will emphasize creative solutions to the problem of diminishing Angeles County Bar Association will resources in Southern California due to environmental contamination, present a course on how to go population growth, and regulatory control. The symposium will take beyond the basics of Microsoft place at the Omni Los Angeles Hotel, 251 South Olive Street, Word and Excel. Speaker Russell Downtown. On-site registration will begin at 8 A.M., with the program Jackman will demonstrate continuing—with a lunch break—from 8:30 A.M. to 4:30 P.M. The techniques to use these programs registration code number is 008918. The prices below include the to beneﬁt any practice. The meal. program is taught with hands-on $150—CLE+PLUS members techniques that novice users can $275—Environmental Law Section members follow but it is also designed so $325—other LACBA members $375—all others that veteran users can gain useful $400—all at-the-door registrants new skills. Techniques such as 6.75 CLE hours using a pleading wizard; creating templates; using autotext and The 2005 Labor and Employment Law Section Annual Retreat callouts; formatting and effective use of text boxes, columns, and ON FRIDAY, APRIL 15, the Labor and Employment Law Section will sponsor its annual retreat in beautiful Ojai. Share in learning, laughter, and all- page layouts; and using a around good times while earning CLE credits at a very reasonable price. spreadsheet to create budgets, This retreat will take place at the Ojai Valley Inn and Spa (on Country Club graphs, and charts will all be Road in Ojai). On Saturday and Sunday mornings, CLE programs will run discussed in this informative from 8 A.M. until 12:15 P.M. and will feature an ethics segment, an seminar. The program will take opportunity to hear from well-respected judges, a debate between two of place at the LACBA/LexisNexis the most outspoken members of the labor and employment bar, a Conference Center, 281 South commentary on identiﬁcation of liars, an up-to-date presentation on Figueroa Street, Downtown. On-site creative uses of technology, and a program on using yoga to manage registration and the meal will begin stress. The inn’s toll-free number is (800) 422-6524, and its URL is at 5:30 P.M., with the program www.ojairesort.com. Participants must reserve rooms with the inn continuing from 6 to 9:15 P.M. The separately from the program registration. A spouse or guest may attend registration code number is the reception on April 15, dinner on April 16, and breakfast on April 16 008837. The prices below include and 17 for $90. The retreat’s registration code number is 008944. the meal. $120—CLE+PLUS members $45—CLE+PLUS members $240—Labor and Employment Law Section members $75—LACBA members $285—other LACBA members $100—all others $335—all others 3.25 CLE hours 7 CLE hours

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

Los Angeles Lawyer April 2005 83 Closing Argument BY KEITH PAUL BISHOP

A Washington Fable for Our Time

IMAGINE THAT you are the chief executive officer of a growing pub- not even initiate disciplinary proceedings against me if I do.” lic company. You learn that a government agency has begun an This story may seem a farfetched fable, but most of the details are investigation of your industry, and your company is on the list of tar- already reality. In 2001, the Securities and Exchange Commission geted companies. You call your company’s law firm, anxiously antic- issued its “Report of Investigation Pursuant to Section 21(a) of the ipating learning your lawyer’s plans to defend vigorously the company’s Securities Exchange Act of 1934 and SEC Statement on the Relation- position and achieve its ultimate vindication. ship of Cooperation to Agency Enforcement.” That report empha- Your lawyer arrives at your initial meeting exuding experience and sizes the role of cooperation, including self-investigation and the confidence but then tells you that the company must immediately begin disclosure of the results of any internal investigation, as a mitigating to cooperate in the agency’s investigation. “What about a defense?” factor. In January 2003, the Department of Justice issued what is you demand. With studied patience, your lawyer replies that any known as the Thompson Memorandum, which also emphasizes the attempt to defend the company’s position would be futile—indeed, worse than futile. Because the government is investigating your industry, resistance would only paint As a profession, we have in large measure stood by silently as our a bull’s eye on your company and result in harsher penalties for failing to cooperate. You realize that if every company receives historic obligations to our clients have been eroded. and follows this advice, the agency’s position will never be challenged effectively. You ask what it means to cooperate. Your lawyer calmly explains waiver of the attorney-client privilege. Moreover, a California court1 that “cooperation” means “capitulation” but brings no formal assur- has concluded that this disclosure constitutes a waiver of the of the ance of leniency from the agency. Counsel advises that your company attorney-client privilege and the attorney work-product doctrine. hire another, “independent” law firm to conduct a thorough internal The SEC has also made it clear that lawyers who conduct these investigation and report the results of the investigation to the agency. investigations are potential targets. Last fall , the SEC’s director of In other words, the agency wants your company to buy and bring the enforcement stated, “One area of particular focus for us is the role rope for its own hanging. Moreover, the agency may prosecute the of lawyers in internal investigations of their clients or companies.” investigating lawyer if that lawyer’s investigation exonerates your com- Cooperation with the commission can also endanger a target vis-à- pany and the agency does not agree. Thus, the investigating lawyer vis other enforcement agencies. For example, in United States v. will have every reason to err in the direction of finding a violation. DiStefano,2 a registered representative of a broker-dealer submitted Surely, you think, this investigation would be confidential and not to a nine-hour deposition by the SEC. Subsequently, the U.S. attor- available to other litigants. Your lawyer explains that when your com- ney indicted him for conspiracy to commit securities, mail and wire pany turns over the results of the investigation to the agency, the com- fraud, and securities fraud. Finally, the SEC’s recently adopted attor- pany will be waiving the attorney-client privilege and work-product ney conduct rules3 permit lawyers, in some circumstances, to disclose protection—so that other civil and criminal enforcement agencies, or information without the consent of their clients to the commission anyone who wants to sue the company, will have access to the work. and purport to immunize lawyers who take advantage of these rules. Not willing to give up, you protest that surely your lawyer could As a former state securities regulator, I am deeply troubled by secu- mount a spirited defense on behalf of the company. Your attorney rities fraud and corporate malfeasance. However, I also fear the cur- responds, “We have handled scores of these types of investigations. rent regulatory assault upon the attorney-client relationship. In a free We always recommend immediate cooperation and settlement. We society, we must be free to seek the advice and counsel of private attor- would ruin our firm’s reputation with the agency if we did otherwise.” neys who are bound to maintain the trust and confidentiality of the “Isn’t that a conflict of interest?” you ask incredulously. “Well, it would attorney-client relationship. As a profession, we have in large mea- be, but the agency has decided that we are ‘gatekeepers’ and will ignore sure stood by silently as our historic obligations to our clients have the professional obligations that lawyers once owed to clients.” been eroded. We must speak up before it is too late. ■ You end the meeting by observing, “You are my company’s lawyer and I must assume that you are obligated to keep confidential the mat- 1 McKesson HBOC, Inc. v. Superior Court, 115 Cal. App. 4th 1229 (2004). ters that we discussed today.” Without hesitation, your lawyer replies, 2 United States v. DiStefano, Case. No. S2 98 Cr. 1316 (RWS) (S.D. N.Y. 2001). 3 “Once it was true that we lawyers had to maintain the confidential- See 17 C.F.R. §§205 et seq. ity of our client’s secrets ‘at every peril,’ but that era is over. The agency has adopted formal rules that permit me to divulge your company’s Keith Paul Bishop is a shareholder of Buchalter, Nemer, Fields & Younger and secrets without its consent. According to the agency, the State Bar can- former California commissioner of corporations.

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Members of the Los Angeles County Bar Association can save with AT&T Wireless. Choose from a range of already affordable calling plans and get a 5% discount on qualified wireless service charges each month.

TO SIGN UP AND SAVE CALL: 1 800 459-6524

© 2003 AT&T Wireless. All Rights Reserved. General requirements: Requires credit approval, $36 Activation Fee, annual contract, $175 cancellation fee and a compatible phone. Subject to service terms and conditions and the calling plan brochure for the specific plan you choose. Service not available for purchase or use in all areas. May not be available with other offers. 5% Discount: Available only to active members of associations participating in the AT&T Wireless Association Program or its predecessor. Discount is activated only when you call the toll-free membership verification number listed above. Discount is only available on select AT&T Wireless digital calling plans and only applies to qualified charges as defined in your association’s AT&T Wireless Services Wireless Association Agreement. It may take up to 90 days for the discount to appear on your account. Other terms, conditions and restrictions apply—contact your association or your local AT&T Wireless Account Representative. Perspective is everything. Use Witkin.

Witkin is the California perspective. It analyzes every major subject in California law and has

served California lawyers for more than 60 years. Cited more than 20,000 times by the

California Supreme Court and Court of Appeal, it’s the kind of authority that raises the merits

of anyone’s argument. It’s the right environment for your practice.

For more information, call 1-800-762-5272.