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Semiannual Guide to Expert Witnesses

November 2008 /$4

EARN MCLE CREDIT Disclosure of Pending Suits page 25

Los Angeles lawyer Michael R. Sohigian discusses insurance coverage for unintended By damages of intentional acts page 20 Accident

PLUS

Completion Guaranties page 12 Reciprocal Easements page 18 Incorporating in Nevada page 32

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4"/%*&(003"/(&$06/5:-04"/(&-&44"/'3"/$*4$0 888")&3/*/463"/$&$0. FEATURES 20 By Accident BY MICHAEL R. SOHIGIAN In most cases, claims for damages that are the unintended consequences of an intentional act trigger an insurer’s duty to defend 25 Disclose or Dismiss BY CRAIG A. ROEB A debtor who conceals a pending civil action from a bankruptcy court may face dismissal of the claim Plus: Earn MCLE credit. MCLE Test No. 175 appears on page 27. 32 Silver Standard BY KEITH PAUL BISHOP In many situations, California law will prevail even if an entity is incorporated in Nevada

43 Special Section Semiannual Guide to Expert Witnesses

DEPARTMENTS

Los Angeles Lawyer 10 Barristers Tips 76 LACB Foundation 2007-2008 Fund Drive Results the magazine of Distinguishing between similar causes of action the Los Angeles County BY JONATHAN HOWELL 80 Closing Argument Bar Association An ACE for Los Angeles high school 12 Practice Tips students November 2008 The role of completion guaranties in BY JUSTICE ROGER BOREN Volume 31, No. 8 construction lending BY ROBERT E. WILLIAMS 78 Classiﬁeds

18 Practice Tips 79 Index to Advertisers

COVER PHOTO: TOM KELLER Applying reciprocal easement agreements to retail projects 81 CLE Preview 11.08BY GARY A. GLICK AND SCOTT L. GROSSFELD LosAngelesLawyer VISIT US ON THE INTERNET AT www.lacba.org/lalawyer E-MAIL CAN BE SENT TO [email protected] EDITORIAL BOARD Chair ANGELA J. DAVIS Articles Coordinator DAVID SCHNIDER JERROLD ABELES DANIEL L. ALEXANDER ETHEL W. BENNETT R. J. COMER CHAD C. COOMBS ELIZABETH L. CROOKE KERRY A. DOLAN GORDON ENG HELENE J. FARBER ERNESTINE FORREST SERVICES FOR BOTH SIMPLE AND COMPLICATED DISPUTE RESOLUTION STUART R. FRAENKEL MICHAEL A. GEIBELSON TED HANDEL JEFFREY A. HARTWICK REAL ESTATE ARBITRATION STEVEN HECHT LAWRENCE J. IMEL & MEDIATION MEREDITH KARASCH JOHN P. LECRONE tel 818.790.1851 fax 818.790.7671 THANAYI LINDSEY e-mail [email protected] KAREN LUONG web site www.mediationla.com PAUL MARKS ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. DENNIS PEREZ David W. Dresnick, President • ARBITRATOR/MEDIATOR GARY RASKIN JACQUELINE M. REAL-SALAS CAROLIN SHINING HEATHER STERN GRETCHEN D. STOCKDALE TIMOTHY M. STUART KENNETH W. SWENSON CARMELA TAN BRUCE TEPPER R. JOSEPH TROJAN PATRIC VERRONE JEFFREY D. WOLF 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 BEKAS Sales and Marketing Coordinator AARON J. ESTRADA 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 and a special issue in the fall, 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 mail- ing 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 © 2008 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

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6WRQH¿HOG-RVHSKVRQ,QF_3KRWRJUDSK\-RKQ/LY]H\ LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012-1881 Telephone 213.627.2727 / www.lacba.org ASSOCIATION OFFICERS President DANETTE E. MEYERS President-Elect DON MIKE ANTHONY Senior Vice President ALAN K. STEINBRECHER Vice President ERIC A. WEBBER Treasurer LINDA L. CURTIS Assistant Vice President PATRICIA EGAN DAEHNKE Assistant Vice President ANTHONY PAUL DIAZ Assistant Vice President MARGARET P. STEVENS Assistant Vice President JULIE K. XANDERS Immediate Past President GRETCHEN M. NELSON Executive Director STUART A. FORSYTH Associate Executive Director/Chief Financial Officer It’s More than Just a Referral BRUCE BERRA Associate Executive Director/General Counsel It’s Your Reputation W. CLARK BROWN BOARD OF TRUSTEES P. PATRICK ASHOURI Make the Right Choice SUE M. BENDAVID-ARBIV GEORGE F. BIRD JR. KIMBERLY H. CLANCY DUNCAN W. CRABTREE-IRELAND Personal Injury • Products Liability JEFFERY J. DAAR THOMAS J. DALY Medical Malpractice • Insurance Bad Faith TANJA L. DARROW BEATRIZ D. DIERINGER DANA M. DOUGLAS PAMELA E. DUNN Referral Fees per State Bar Rules CAMILLA M. ENG IRA M. FRIEDMAN ALEXANDER S. GAREEB www.cdrb-law.com JACQUELINE J. HARDING LAURIE R. HARROLD 310.277.4857 BRIAN D. HUBEN K. ANNE INOUE LAWRENCE H. JACOBSON HELEN B. KIM The More You Know About Us, RICHARD A. LEWIS ELAINE W. MANDEL The Better Choice You Will Make ELLEN A. PANSKY ANN I. PARK THOMAS H. PETERS LAURA S. SHIN DAVID W. SWIFT LUCY VARPETIAN NORMA J. WILLIAMS ROBIN L. YEAGER 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 GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES 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 10100 Santa Monica Blvd., Suite 2460, Los Angeles, California 90067 SAN GABRIEL VALLEY BAR ASSOCIATION SANTA CLARITA BAR ASSOCIATION 310.277.4857 office ■ 310.277.5254 fax SANTA MONICA BAR ASSOCIATION SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA www.cdrb-law.com 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 November 2008

HONORABLE LAWRENCE W. CRISPO (RETIRED)

n the fictional work Historias de cronopios y de famas, the Argentine writer Julio Cortázar (1914-1984) envisions I a parallel universe inhabited by “cronopios”—fuzzy green creatures who are idealistic, creative, and optimistic—and “famas”—other fuzzies who are methodical and well organized but rigid and unimaginative. Upon encountering a new city, for example, a fama will immediately survey its hospitals and hotels for all indicia of conventional sophisti- cation. A cronopio will find the trains already departed, the hotels fully booked, and the taxi drivers indifferent. The cronopio, however, will spend the night dreaming of the beautiful city he has just discovered, confident that its inconveniences are simply day-to-day realities everyone must endure. As we go to press, I along with a few thousand other lawyers have just returned from the State Bar Annual Meeting in Monterey, an event that more than once has Mediator Arbitrator made me think of Cortázar’s imaginary realm. Only a fama would arrive at one of the most stunning jewels of the California coast to spend the days in windowless conference rooms tethered to a Blackberry and the hope for a sprinkling of “rain” (i.e., client development). Only a cronopio would barely notice the countless hours Referee passed indoors, would keep repeating how gorgeous the weather was, and would 213-926-6665 take inspiration from the humanitarians and scholars who speak for just an hour. www.judgecrispo.com From a distance, the State Bar Annual Meeting looks just as irrelevant to our practices as Cortázar’s fictions. But a closer look at the bar’s recent history reveals the error of this assumption. Thirty years ago, this publication featured a tongue-in-cheek article titled “The Unmaking of a Bar Governor.” Authored by an individual who lost his race for the State Bar Board of Governors, the article advises those aspiring Engineering the to a similar fate to keep “outside the establishment” and be “a minority of any kind.” The essay further explains that no woman had yet been elected, only one African Resolution of American had served, and the “perks” of election included events at the Bohemian the World’s Most and California Clubs. Mind you, this was 1978, not 1958. This year, the five newly elected members of the State Bar board (full disclosure: Intractable I am one of them) include three people of color and one woman. Notwithstanding the contrast this presents to the board described in these pages just a few decades Disputes. ago, the board’s gender and ethnic composition is what I predict most of us will notice last and think about least in evaluating my fellow board members. What is far more striking are the extraordinary levels of professional excellence my board colleagues have attained, their steadfast commitment to the betterment of our profession, and their devotion of countless unbilled hours to the public interest. Indeed, what is remarkable to me in our new president is not so much the message of inclusiveness and diversity in her installation speech but her earlier campaign speech, in which she promised to work very hard to advance all of the bar’s aims and would ask her fellow governors to join her in the rigors of increased commitment. Reginald A. Holmes, ESQ. All of this is consistent with my own conclusion that we are at our best as lawyers Arbitrator - Mediator - Private Judge when we harness both our cronopio and fama proclivities. Like the fama on holi- Intellectual Property • Entertainment day, we know instinctively how to keep to a tightly wrought calendar and catch a International • Employment tiny error buried deep within a dense manuscript. But, given the opportunity, many Business if not most of us relish the opportunity to use our legal abilities for the greater good. THE HOLMES LAW FIRM And, when they are at their best, our bar leaders help us to be the most capable lawyers we can be while also reminding us to listen occasionally to our better angels. ■ 626-432-7222 (Phone) 626-432-7223 (Fax) Rholmes@theholmeslawfirm.com www.TheHolmesLawFirm.com Also available through the Amercian Arbitration Association Angela J. Davis is an assistant U.S. attorney and the 2008-09 chair of the Los Angeles Lawyer Editorial Board. Her views do not necessarily reflect those of the U.S. Department of Justice.

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Distinguishing between Similar Causes of Action

THE DIFFERENCE BETWEEN $12.1 MILLION AND $250,000 can be Specifically, Cobbs v. Grant held that this negligent action occurs one word. For example, in medical malpractice actions, plaintiffs often when an undisclosed complication results, “the occurrence of which allege professional negligence and battery in the same complaint. In was not an integral part of the treatment procedure but merely a an action for professional negligence due to the defendant’s failure known risk.” When an undisclosed complication results from a med- to obtain the patient’s informed consent, the plaintiff’s noneconomic ical procedure, there is no intentional deviation from consent as in damages are limited to $250,000 by the Medical Injury Compensation battery. Rather, the defendant has failed to meet the duty of care to Reform Act, commonly referred to as MICRA.1 On the other hand, disclose pertinent information regarding risks and results. Thus, the a cause of action for medical battery is not subject to the MICRA dam- action is based in negligence.6 Because the negligent failure to obtain age cap and can include punitive damages.2 Although the amount of informed consent was carved out of medical battery, the distinction damages available greatly differ, these two causes of action are actu- between the two actions is easily blurred. ally closely related and can turn on whether the defendant failed to inform the patient of the nature of the treatment or only the risks of the The result was that the $12.1 million in noneconomic damages treatment.3 Thus, understanding the nuances of these two causes of action is critical. To demonstrate the point, in a medical mal- became a target for MICRA’s cap of $250,000. practice case, the plaintiff alleges both professional negligence and battery. The jury returns a verdict awarding the plaintiff $12.1 million in noneconomic damages and over $600,000 in economic damages. The Consulting model jury instructions may also be helpful in distin- defense counsel, however, notices an error in the jury instructions. guishing these causes of action. For example, the Judicial Council of Specifically, the plaintiff did not observe the distinction between med- California Civil Jury Instructions for medical battery and negligent ical battery and negligent failure to obtain informed consent. As a result, failure to obtain informed consent both ask whether the defendant the jury’s verdict is unclear as to whether a battery occurred. If the ver- performed a procedure without the patient’s informed consent.7 The dict is premised on medical battery, the defense counsel cannot cap the difference is that the negligent failure to obtain informed consent damages using MICRA. If the doctor’s conduct constitutes only pro- instruction goes further and asks if a reasonable person would have fessional negligence, then MICRA will limit the noneconomic damages. consented if the defendant had informed the patient of the treatment’s The above fact pattern is based on Saxena v. Goffney. By failing results and risks. Thus, mirroring case law, the model jury instruc- to distinguish the two causes of action in the verdict form, the jury tions draw a distinction between the two causes of action by focus- did not provide a clear finding of fact showing the doctor’s conduct ing on the risks of treatment rather than the nature of the treatment. was not merely negligent failure to obtain informed consent but bat- Admittedly, this distinction in the jury instructions is not clear—as tery. The court of appeal reversed the trial court and granted the defen- the court of appeal in Saxena points out.8 dant’s motion for a judgment notwithstanding the verdict on the bat- The lesson of Saxena is to understand the elements of similar causes tery cause of action. In addition, the court of appeal ordered the lower of action. Reading major cases and consulting model jury instructions court to reconsider the motion to apply the MICRA damages cap. The can help identify elements that are prone to confusion. These steps result was that the $12.1 million in noneconomic damages became will help identify the word choices that can mean the difference a target for MICRA’s cap of $250,000.4 between $250,000 and $12.1 million. ■ Attorneys seeking to understand this result may read the major cases on point to help distinguish between the two closely related 1 See CIV. CODE §3333.2. causes of action. California courts have provided guidance in dis- 2 Perry v. Shaw, 106 Cal. Rptr. 2d 70, 73-4 (2001). 3 tinguishing between the risks and nature of a medical procedure. In Cobbs v. Grant, 8 Cal. 3d 229, 239-40 (1972). 4 Saxena v. Goffney, 159 Cal. App. 4th 316 (2008). Bereky v. Anderson, the court of appeal held that the defendant 5 Bereky v. Anderson, 1 Cal. App. 3d 790, 795-805 (1969). could be liable for battery when the plaintiff was not informed that 6 Cobbs, 8 Cal. 3d at 241. a spinal puncture was part of a proposed treatment. The issue for med- 7 CACI No. 530A, 533. ical battery was not whether the defendant should have told the 8 Saxena, 159 Cal. App. 4th at 325 n.4. plaintiff of the risk of injury but whether the defendant gave the plaintiff sufficient information as to the nature of the treatment so that the Jonathan Howell is an associate at Kamel and Maxwell in Los Angeles spe- plaintiff could intelligently decide whether to undergo such an inva- cializing in medical malpractice and civil litigation defense. He would like to sive procedure.5 After the ruling in Bereky, a new cause of action thank attorneys Karla Pleitez, Edward Howell, and John Maxwell for provid- emerged: negligent failure to obtain informed consent. ing editorial comments for this article.

10 Los Angeles Lawyer November 2008

practice tips BY ROBERT E. WILLIAMS

The Role of Completion Guaranties in Construction Lending

REAL ESTATE DEVELOPMENT in the United States is financed, to a great extent, with borrowed money. When lenders are uncertain about future market conditions, they make fewer loans. When lenders constrict the flow of lending, the resultant lack of liquidity causes a slowdown in transaction volume and drives real estate prices down. The decline in property values makes lenders even more reluctant to lend. As a result, the attention of lenders today is focused less upon making new loans and more upon being repaid for the loans that are presently outstanding. One hedge against the higher risk of nonpayment created in uncertain times is the guaranty. The most basic and popular form of guaranty is the payment guaranty. If a guarantor in California is not the borrower itself,1 an alter ego of the borrower,2 or an entity that has direct personal liability for the obligations of the borrower (such as a general partner of a borrower that is a limited partnership),3 and if the guaranty is properly drafted to include waivers of suretyship and antideficiency-related defenses,4 then the lender will be able to obtain a judgment on the guaranty for amounts owed by the borrower and not realized through foreclosure. If the lender is financing the construction of improvements, an additional guaranty is available: the completion guaranty. In its most rudi- mentary form, a completion guaranty is a promise by the guarantor that the borrower will perform the obligations it undertakes, pursuant to the loan documents, to complete construction of specified improvements on the real property collateral, and that the completion guarantor will perform the borrower’s obligations if the borrower fails to do so. Lenders in California whose loans are secured with real estate have special reasons to use payment and performance recovery guaranties. Unlike lenders in most other states, California real estate-secured lenders cannot sue directly upon a promissory note to recover the debt without jeopardizing their rights with respect to the real property col- who is successful at this stage can obtain a judgment for the deficiency. lateral. If the lender wants to recover a monetary award directly from Next comes the process of actually collecting money, although the borrower, the lender must run the gauntlet of California’s antid- another problem remains. If a deficiency is established, the borrower eficiency and one-form-of-action rules. will have a statutory right to redeem the property from foreclosure The effect of the one-form-of-action rule is that, when a lender’s by tendering the foreclosure sale price within one year after the fore- loan is secured by a deed of trust on real property, the only action a closure sale date.8 The existence of this right of redemption puts a sub- lender can properly bring to collect on the loan from a borrower is stantial chill on the ability of the lender to resell the foreclosed real one for recovery of the debt that includes a count for a court-super- estate. vised foreclosure of the deed of trust.5 Judicial foreclosure involves Thus, the lender who resorts to judicial foreclosure in order to make a full-blown lawsuit, complete with complaint, answer, motions, a full recovery of its defaulted loan must make significant expendi- discovery, and trial. Needless to say, it is time-consuming and expen- tures of time and money that are likely to end with a reduced value sive for a lender to pursue such a lawsuit to completion. of the foreclosed property. As result, California real estate lenders are Following the trial, the antideficiency laws govern the ability of rarely willing to go through the judicial foreclosure process that is nec- the lender to recover a deficiency judgment (i.e., a judgment for essary to establish a deficiency judgment against the borrower. recovery of any balance of the defaulted debt that remains owing after application of foreclosure sale proceeds).6 The deficiency recovery will Robert E. Williams is a partner at Sheppard, Mullin, Richter & Hampton LLP be limited to the lesser of the actual deficiency or the difference in Los Angeles who specializes in real property finance. He gratefully acknowl- between the foreclosure sale price and the fair market value of the fore- edges the research assistance of Allison Twist Underwood, an associate at 7 RICHARD EWING closed property as established through a fair value hearing. A lender Sheppard Mullin, and Roger Steinbeck, a summer associate in 2007.

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* The University of La Verne College of Law has been provisionally approved by the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association since February 13, 2006. The Section of Legal Education may be contacted at 321 North Clark Street, Chicago, IL 60610 or by phone at (312) 988-6738. As a result of the difficulties associated pletion guaranties is that completion guar- by power of sale and sought to recover from with judicial foreclosure, the road to remedies anties are not often enforced. the completion guarantors the cost of the more often traveled by California real estate- unfinished construction work. The court held secured lenders is exercise of the private Marina View that recovery was not allowed: power of sale contained in the deed of trust, The leading California case on completion The proper measure of damages for culminating in a trustee’s sale of the property guaranties, Glendale Federal Savings & Loan breach of a contract to construct collateral. This private, nonjudicial foreclo- Association v. Marina View Heights Develop- improvements on real property where sure process is governed by the California ment Company, Inc.,11 was decided more the work is to be done on plaintiff’s Civil Code.9 It can result in a foreclosure than 30 years ago, and the law established in property is ordinarily the reasonable sale in as little as three months and 21 days, that case has never been substantially revised cost to the plaintiff of completing the and it is inexpensive in comparison to a law- or reconsidered. The case involved two work and not the difference between suit for judicial foreclosure. When the trustee’s loans—one fully disbursed, and one only the value of the property and its value sale takes place, it is final, and there is no partially disbursed, at the time of default— had the improvements been con- statutory right of redemption. But this effi- and two completion guaranties. It is impor- structed.…A different rule applies, ciency and finality come at a cost: the tant for any practitioner who uses completion however, where improvements are to California antideficiency rules10 provide that guaranties to become familiar with the rules be made on property not owned by the the lender has no right, following the trustee’s for their enforcement as announced in Marina injured party.…Glendale’s interest in sale, to obtain a deficiency judgment against View. the land was solely that of a secured the borrower. First (and most significantly, in dealing lender.…The measure of damages, In view of the hurdles placed in the path with the widely held perception of the com- therefore, is the value which the to recovery of money by the one-form-of- pletion guaranty as a device to ensure that improvements, had they been com- action and antideficiency rules, it makes construction of improvements will occur), it pleted, would have added to the secu- sense for California construction lenders to should be noted that the issue before the rity because that is the contractual seek assurance that the improvements that court in Marina View was only the measure benefit of which Glendale was are financed with the proceeds of their loans of damages that could be awarded for breach deprived.12 will actually be built. After all, construc- of a completion guaranty. The court did not Glendale argued that its damages should tion lenders underwrite their loans on the even consider whether the completion guar- not be limited as a result of the fact that it was basis of the value of the real property col- antors could be compelled to complete the a lender with a deed of trust on the property, lateral as improved with the buildings and improvements. Thus, the first lesson that rather than an owner. It pointed out that it other improvements to be financed with the emerges from a consideration of Marina View became an owner as a result of foreclosure of proceeds of the construction loan. The con- is implicit: A court will not specifically enforce its deed of trust. But the Marina View court struction lender sizes its loan in accordance the obligation of a completion guarantor to rejected this argument: with a loan-to-value ratio that compares construct improvements. Courts are, in gen- It is a settled principle that general the amount of the loan to the projected eral, reluctant to become embroiled, through damages that may be awarded for value of the improved real property, as deter- the exercise of equitable powers, in admin- breach of contract are ordinarily con- mined by an appraisal of the prospective istration of a complex business transaction. fined to those which would naturally value of the property in its fully improved This reluctance certainly makes sense in arise from the breach, or which might state. To the extent that the borrower fails the context of a construction financing. It is have been reasonably contemplated to complete the improvements, a gap will be hard to imagine a court supervising the or foreseen by the parties at the time revealed between collateral value and the progress of construction. Monitoring the they contracted, as the probable result amount of the loan. It makes sense to close quality and progress of construction of of the breach.…At the time the loan this gap by obtaining a guaranty of com- improvements is a task for which construc- transaction was entered into, [the bor- pletion of construction. tion lenders depend upon specially trained rower’s agreement to construct the In the minds of most construction lenders, employees or outside contractors. A court improvements and the guarantors’] a completion guaranty operates in just this that sought to engage in such supervision guaranty were intended as additional way and, for this reason, construction lenders would probably need to appoint special security devices only, not a contract to make frequent use of completion guaranties. receivers or other officers and would need to construct improvements on Glendale’s Many construction lenders believe that, in the follow the progress of construction through land.13 unhappy event of a borrower’s failure to a protracted series of hearings. A California Here, the Marina View court’s reasoning complete construction, the lender will be able trial court is unlikely to grant such relief in is very hard to follow. A limitation of dam- to force the guarantor to finish the improve- the context of a defaulted private construc- ages to those that are foreseeable at the time ments. tion financing. Thus, the remedy available of entry into the contract is a solid proposi- However, the seminal case on this issue to a construction lender under a completion tion, but it certainly seems that a completion makes it clear that the remedies provided to guaranty is not the equitable remedy of spe- guarantor should foresee that a deed of trust a construction lender by a completion guar- cific performance of completion of con- on real property may be foreclosed upon anty do not work in the manner envisioned struction but an action for money damages. default in the obligation secured, and that the by most lenders. In fact, the remedies are The second lesson of Marina View is how lender may become the new owner. Why quite complex and difficult to implement. In to measure damages available to a construc- does a construction lender take a deed of view of the widespread use of completion tion lender under a defaulted completion trust to secure the loan obligation, if not to guaranties, it is, at first impression, surpris- guaranty. The Marina View court drew a dis- obtain either ownership of the property, or the ing that there is very little case law in Cali- tinction between damages available to lenders cash paid at foreclosure by a competing bid- fornia with respect to their enforcement. It and to owners. Glendale Federal Savings and der? But the holding in Marina View is clear: seems fair to assume that one reason for the Loan Association, the lender in Marina View, The measure of damages is the loss of value dearth of reported cases dealing with com- foreclosed upon the real property collateral that results from failure to complete con-

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*State National Insurance Company is a licensed admitted carrier in the state of California. *Licensed and Admitted in all 50 States struction, not the lender’s cost of completing expects to fully disburse the proceeds of its on those rights and remedies and, armed construction. loan in exchange for completion of the with that knowledge, reconsider both the use A construction lender seeking to enforce improvements. of completion guaranties and the drafting of a completion guarantee is not home free, In view of the foregoing, the damages completion guaranties when they are used. however, even with a showing that the com- available to a construction lender under a It may not be particularly useful to obtain pletion of improvements that are the subject completion guaranty can be formulated as a completion guaranty from a deep-pocket of the completion guaranty would have made follows: guarantor who is willing to give a full pay- the collateral more valuable. As noted above, The damages available to a lender ment guaranty. A payment guaranty, when the court in Marina View dealt with two under a completion guaranty equal the given by a guarantor who possesses suffi- loans and two completion guaranties. It came value of the project with improve- cient assets, can cause the lender’s loan to be to two different conclusions regarding lia- ments completed minus the sum of (a) fully repaid. The lender who is lucky enough bility, finding the guarantors liable with the value of the project in its current to find such a guarantor needs only a payment respect to one guaranty but not liable with state plus (b) undisbursed loan pro- guaranty for full protection. Where the guar- respect to the other. The distinction drawn by ceeds; provided that no damages will antor’s assets are not sufficient to pay off the the court between the two guaranties focused be available if the lender’s loan is ade- loan, it will still be easier for the lender to upon whether the construction lender was quately secured irrespective of failure obtain a judgment on a payment guaranty fully secured with respect to its loan, irre- to complete improvements.17 than it will be to obtain judgment on a com- spective of whether the obligation to con- This damage formula, derived from pletion guaranty. struct improvements was performed: Marina View, is relatively simple. However, On the other hand, if the guarantor is “Glendale was entitled to damages only to the the formula represents the tip of a rather for- unable or unwilling to provide a payment extent noncompletion of the improvements midable iceberg of judicial procedure. To guaranty, a completion guaranty may make impaired its security interest. If Glendale had understand it, a comparison should be made sense. The construction lender makes its loan been fully secured on the date of foreclosure, of the judicial procedures required for enforce- in reliance upon the increase in collateral it would have suffered no injury by reason of ment of payment guaranties and enforce- value that will be provided by the construc- the failure to construct the improvements ment of completion guaranties. Enforcement tion of improvements, and a risk for the and would not have been entitled to dam- of a payment guaranty is a relatively simple lender is that this increase in value will not ages.”14 As to one of the loans, the court matter: In the typical case of a payment guar- occur because of a failure to complete con- found that the lender did not sustain damage anty executed concurrently with execution of struction. If the lender cannot address its as a result of failure to complete the improve- the loan documents,18 the lender probably loan exposure directly by obtaining a payment ments, because the lender was “fully secured” needs only to prove both the existence of the guaranty, addressing construction risk even without completion of the improve- debt and the existence of the default, and to through a completion guaranty may be the ments.15 The court did not elaborate on the authenticate the guaranty. In order to estab- next best thing. approach to determination of whether the lish a right to damages under a completion If the construction lender chooses to lender is fully secured. Construction lenders guaranty in light of the rules established in obtain a completion guaranty, the lender and typically make loans at less than a 100 per- Marina View, the lender has a lot more work its counsel need to take into account some cent ratio of amount of loan to value of col- to do. The lender must prove the value of the practical issues not considered in the Marina lateral (loan-to-value ratio). But here, the property in its current state and the value View opinion. Specifically, lenders and their Marina View court seems content to merge that the property would have had if it were counsel should consider what rights the com- the roles of the lender as lender and as owner, improved. This latter value is speculative and pletion guarantor should have in any undis- and it seems that the finding of “full security” cannot be derived by simple application of a bursed loan proceeds, and what conditions is based upon a comparison of the lender’s capitalization rate to the results of actual should be imposed to disbursement of those outstanding loan amount with the appraised operations of the property. All of this will proceeds to the completion guarantor in order value of the property in the hands of the require appraisal testimony, and a completion to fund completion. Because the construc- lender, following foreclosure.16 guarantor wishing to defend against liability tion lender’s bargain entails full construction The loan as to which the Marina View will be free to summon its own appraiser. of improvements in exchange for full dis- court found that the construction lender was This is the stuff of a fully contested lawsuit, bursement of loan proceeds, it is fair for the fully secured was not fully disbursed. with qualification of appraisers as expert wit- completion guarantor to require the con- However, because of its finding that the lender nesses, discovery, direct examination, and struction lender to make undisbursed loan was fully secured, the court did not reach cross-examination. Conduct of a lawsuit proceeds available in the event the guarantor the issue of the effect of undisbursed loan pro- involving this level of evidentiary complexity elects to actually construct improvements— ceeds upon the calculation of damages avail- is likely to take a long time and cost a lot of and the lender’s damage remedy will be off- able under the completion guaranty. It seems money. set by the amount of undisbursed loan pro- fair to assume, however, that if a construction ceeds in any event. A well-drafted completion lender had not fully disbursed the proceeds of The Real Benefits of Completion guaranty should incorporate the same con- its loan that were allocated for the funding of Guaranties ditions to disbursement that appear in the the guaranteed works of improvement, and The net results of Marina View are that the construction loan agreement (e.g., periodic if the construction lender is eligible for the remedies available under a completion guar- requisitions, disbursement in accordance with recovery of damages because it is held not to anty are not what they appear to be from the a preapproved line item budget, an obligation be fully secured, then the damages to the face of the completion guaranty document, to keep the loan in balance by depositing lender should be offset by the amount of and that those remedies are not aligned with funds with the lender, retention of some per- loan proceeds not disbursed. This offset is a the expectations of the construction lender. centage of loan proceeds pending comple- reasonable tradeoff, since the construction Does this mean that a completion guaranty tion, maintenance of payment and perfor- lender contracts to fund construction of is useless? Certainly not, but practitioners mance bonds, and so on). improvements; hence, the construction lender should educate themselves as to the limitations In addition, the lender should remember

16 Los Angeles Lawyer November 2008 that disbursements of the loan increase the therefore, to include reimbursement of the 4th 927 (2000). debt of the borrower and the lien upon the costs of such construction activity of the 3 Riddle v. Lushing, 203 Cal. App. 2d 831 (1962); Union Bank v. Dorn, 254 Cal. App. 2d 157 (1967). borrower’s property. Does the lender have lender—whether incurred before or after 4 Union Bank v. Gradsky, 265 Cal. App. 2d 40 (1968); the ability to make such disbursements to foreclosure—among the obligations of the Cathay Bank v. Lee, 14 Cal. App. 4th 1533 (1993); CIV. the completion guarantor absent a request for completion guarantor. Costs for which the CODE §2856. the same by the borrower? What if the bor- completion guarantor could be obligated 5 CODE CIV. PROC. §726. Strictly speaking, the borrower rower is bankrupt? In view of these con- under this approach would include the full can compel the lender to style any collection action as cerns, it is wise to include, among the con- range of items includable as protective a judicial foreclosure upon the real property encumbered by the deed of trust. However, the lender who ditions to the lender’s obligation to disburse, advances, including costs of hiring replace- violates the one-action rule is just as likely not to get receipt by the lender of a requisition from the ment contractors, subcontractors, and design a second chance. Bank of Am. v. Daily, 152 Cal. App. borrower or its legal representative. professionals; costs of obtaining payment, 3d 767 (1984); Security Pac. Nat’l Bank v. Wozab, 51 Because of the gap between likely expec- performance, and lien release bonds; costs of Cal. 3d 991 (1990). 6 tations of the parties and the rule of damages procuring insurance; and costs of appointment CODE CIV. PROC. §§580b, 580d. 7 CODE CIV. PROC. §726. announced in Marina View, it is a good prac- of a receiver. 8 CODE CIV. PROC. §729.030. tice for the completion guaranty to explicitly It would be nice if construction lenders 9 CIV. CODE §§2924 et seq. lay out the remedies available to the lender in could say that when they use a completion 10 CODE CIV. PROC. §580d. the event of default. A concise statement of guaranty, it means just what they “choose it 11 Glendale Fed. Savs. & Loan Ass’n v. Marina View the damage formula would facilitate a meet- to mean—neither more nor less.”19 The prob- Heights Dev. Co., Inc., 66 Cal. App. 3d 101 (1977). 12 Id. at 123-24. ing of the minds as to the obligations under- lem is that, in view of the applicable California 13 Id. at 125. taken by the completion guarantor and would law, a completion guaranty is both less and 14 Id. at 124. enhance certainty of enforcement. Spelling out more than most construction lenders would 15 Id. at 128. the remedies available need not be viewed as choose it to mean. Counsel armed with 16 Id. a concession by the construction lender. After knowledge of the disparity between appear- 17 Id. at 123-25, 127-28. For a thorough analysis of the all, a description of the measure of damages ance and reality may be able to bring more elements of damages under Marina View and a com- pelling critique of the court’s distinction between the will be consistent with applicable law, and will certainty and predictability to the use of this measure of damages applicable to owners and that make it clear to even the most recalcitrant basic construction loan document. ■ applicable to secured lenders, see Timothy O’Brien, completion guarantor that it faces the Completion Guarantees: Misnamed and Misunder- prospect of a complex lawsuit and damages 1 Engelman v. Gordon, 242 Cal. App. 2d 510 (1966); stood, 12 CAL. REAL PROP. J. 1 (Fall 1994). 18 Everts v. Matteson, 21 Cal. 2d 437 (1942). CIV. CODE §2792. if it does not complete the improvements. 19 2 LEWIS CARROLL, THROUGH THE LOOKING GLASS, Another good idea would be to establish Valinda Builders v. Bissner, 230 Cal. App. 2d 106 (1964); Torrey Pines Bank v. Hoffman, 231 Cal. App. available at http://www.literature.org/authors/carroll- a mechanism for the selection of an appraiser 3d 308 (1991); Cadle Co. II v. Harvey, 83 Cal. App. lewis/through-the-looking-glass/chapter-06.html. who will make the determinations of value that are required in order to implement the damages rule from Marina View and to specify the appraisal methodology that is to be used in making those determinations. In order to address the offset for undisbursed loan funds in a precise way, the completion guaranty can specify that only those undisbursed funds that are speciﬁcally allocated to funding of the guaranteed improvements—and not those allocated to other improvements, or to funding of construction-period interest or other reserves—should give rise to an offset.

Specific Amounts Although one cannot be sure of its enforceability, a further drafting solution suggests itself. In stating the elements of damages for which the completion guarantor may be liable, it would be a good idea to include amounts expended by the lender or its agents There is no substitute for experience. in causing construction to be completed. It is true that the Marina View court disallowed Over 1,250 successful mediations the recovery by the lender of the costs of 14 years as a full-time mediator completion, on the basis of the distinction it 92% of cases resolved drew between owners and lenders. But that distinction is the shakiest part of the holding Director, Pepperdine Law School’s in Marina View. It is very much in line with “Mediating the Litigated Case” program the expectations of the parties to a construction financing that the construction LEE JAY BERMAN, Mediator lender, when faced with a default, may need 213.383.0438 •• www.LeeJayBerman.com to step in and cause construction to be completed in order to minimize its loss. It is fair,

Los Angeles Lawyer November 2008 17 practice tips BY GARY A. GLICK AND SCOTT L. GROSSFELD

Applying Reciprocal Easement Agreements to Retail Projects

RECIPROCAL EASEMENT AGREEMENTS (REAs) are commonly used maintenance, and building insurance, 5) use, recapture rights, and in retail development when neighboring property owners want to rights of first offer, 6) covenants running with the land, term, and develop their respective properties as one integrated shopping center. amendments, and 7) mortgagee protection provisions. Often when more than one owner develops a shopping center, one of Parking, access, encroachments, and utilities. The REA should the owners acts as developer and the other is a major retailer (for exam- provide both parties with at least the most basic rights for their ple, Target, Wal-Mart, Home Depot, or Kohl’s). Although the devel- respective properties, so that they may be operated in harmony. oper may lease a portion of the property to the major retailer (in which Each party should have the right to access the other party’s property case an REA will not necessarily be warranted, since the lease will pro- for vehicular parking and pedestrian access. For instance, the customers vide for construction, operation, and management), if the retailer and employees of the major retailer (and operators on the develop- desires to purchase a portion of the property, it will be necessary for er’s property) will need the right to park anywhere they want within the developer and the major retailer to enter into an REA. It is used the shopping center (subject to an agreement by the parties to pro- to detail the parties’ contractual agreement on such things as the con- vide special areas for employee parking) and to walk anywhere they struction of the shopping center, the architectural compatibility of the want within the shopping center. Customers of the occupants of the buildings, the use of the common area, and restrictions on use. shopping center should view the property as being owned by one party Many of the parties’ respective rights, as detailed in the REA, are and operated as a fully integrated shopping center (even though the considered easements,1 since they effectively allow one party nonex- property is owned by two or more different parties). Each party clusive use2 of the property of the other. The REA is usually a may also need the right to connect to the other parties’ utility systems recorded document,3 and the contractual obligations set forth in the (typically the major retailer ties into the developer’s utility systems for REA typically run with the land4 of the property encumbered by it. the shopping center). This enables utilities to be brought to each occu- Without an REA, the major retailer (or developer) could potentially pant’s premises by using another party’s utility mains or conduits and build whatever it desired whenever it desired; prevent the developer avoiding duplication of facilities and work. The parties may also need from using any part of the major retailer’s parcel for parking, access, certain encroachment rights if their canopies or foundations minimally or utility lines;5 or put its space to an incompatible use. encroach upon the other party’s property. In this regard, an REA may be viewed as taking the place of a lease Construction and architectural compatibility. The REA will typ- and the rights and obligations it typically sets forth between a devel- ically require that the developer construct all the on- and off-site oper and a major retailer. However, in most cases the major retailer improvements for the shopping center, as well as the buildings to be will not view the two as being the same. The major retailer may view located on the developer’s property. Similarly, the REA will commonly its ownership of a portion of the shopping center as giving it greater require the major retailer to be responsible for the construction of its rights and fewer obligations than a lease. For example, a major building. The REA will typically provide rights for a party to review retailer may want the unilateral right to lease its property to any other and approve the plans and specifications of the other party’s work, user following its acquisition of a portion of the shopping center, thereby creating a way to ensure architectural compatibility for the whereas if it leased the property, it would most likely allow the construction work. In addition, the REA will often require that each developer landlord the right to consent to certain assignments or sub- party construct its improvements pursuant to a mutually approved lets. However, without an REA that contains many of the same pro- construction schedule. Depending on the nature of the deal, the REA visions normally contained in a lease, the operation of a shopping cen- (or a separate development agreement) will require that the major ter that many parties own may be chaotic and ineffective. retailer reimburse the developer for an equitable share of the costs To avoid the problem of having too many parties running a incurred by the developer to construct the shopping center’s on- and shared property, a typical retail REA sets forth many issues affecting off-site improvements. the developer and retailer. An REA may be a two-party agreement (e.g., Operation of common areas. The REA should require that at between the developer and the major retailer) or involve three or more least one party operates, insures, and maintains the common areas parties (e.g., between the developer and multiple retailers). In addi- of the shopping center.6 The party with this responsibility is usually tion, an REA may be between nonretailer property owners that want the developer or a third-party manager appointed by the developer. to jointly develop their respective properties for retail or other pur- The manager should be obligated to keep the common areas in a neat, poses (e.g., industrial, warehousing, or office). This type of REA is clean, and attractive condition, and then to charge the parties to the less common and deals with some but not all of the same issues that REA for their respective prorated shares of common area costs. If the are usually covered in an REA between a developer and a major retailer. The typical two-party REA between a developer and a Gary A. Glick and Scott L. Grossfeld are partners in the Los Angeles office of retailer addresses, among other things: 1) easements for parking, Cox, Castle & Nicholson LLP and head the firm’s Retail Practice Group. The access, encroachments, and utilities, 2) construction and architectural authors specialize in shopping center development and commercial leasing. compatibility, 3) operation of common areas, 4) taxes, building They thank Gloria J. Lee for her research assistance with this article.

18 Los Angeles Lawyer November 2008 developer does a poor job operating and main- or a right of first offer is contained in the REA, one integrated shopping center so as to max- taining the common area, the major retailer the buying party should be required to pay a imize the success of the shopping center for often has the right to take over the operation price that is agreeable to both parties. In the all parties and to avoid waste and ineffi- and maintenance of the common areas located event that the parties are unable to reach an ciencies. ■ on its property, although sometimes this agreement on price within a short time, the takeover right may apply to the entire common party desiring to sell its property would have 1 An easement is a nonpossessory interest in the land area in the shopping center. Instead of one the right to sell it to the unaffiliated third of another that gives the owner of the easement the right party being responsible for the operation of the party. However, the REA may require the to use the land of the other person or to prevent the other property owner from using the land. Mehdizadeh common areas, sometimes an REA will provide selling party to again offer the property for v. Mincer, 46 Cal. App. 4th 1296, 1306 (1996). The for each party to be responsible for its own por- sale to the other party if it is unable to sell the extent of an easement is determined by the terms of the tion of the shopping center. Again, in this case, property within a specified time for a price grant in the REA. CIV. CODE §806. When an easement the REA should require that such operation equal to or greater than 95 percent of the pur- is founded on a grant, only those interests expressed and maintenance meet certain standards of chase price offered by the other party. therein and necessary for its reasonable and proper quality, failing which the other party will have Covenants running with the land, term, enjoyment pass from the owner of the fee. Pasadena v. California-Michigan Land & Water Co., 17 Cal. 2d certain well-specified remedies. and amendments. The REA should specifi- 576, 579 (1941). Taxes, building maintenance, and build- cally provide that the rights and obligations 2 An easement is nonexclusive unless expressed other- ing insurance. REAs usually require each set forth in the REA run with the land of the wise. An exclusive easement is unusual as it almost property owner to pay the property taxes property subject to the REA.8 In other words, amounts to a conveyance of the fee. Keeler v. Haky, 160 that relate to its respective property. In addi- the entity owning the property that is subject Cal. App. 2d 471, 474-75 (1958). 3 For the contractual obligations (or covenants) con- tion, each party is typically required to main- to the REA will be subject to the terms and tained in an REA to run with the land and be binding tain the appearance of the buildings on its provisions set forth in the REA. In addition, on successive owners, the REA must be recorded in the property in an attractive manner. Each party the REA should specifically provide for the Office of the Recorder of each county in which the land may also be required to maintain first-party term of the REA and the method by which the is situated. CIV. CODE §1468(d). 4 insurance on the buildings located on its REA may be amended.9 The REA should Civil Code §1460 defines covenants running with the land as “certain covenants, contained in grants of property (note, however, that in the event of provide that the easements necessary for a estates in real property, [that] are appurtenant to such a casualty, each party is usually given the party to access the public streets surrounding estates, and pass with them, so as to bind the assigns right to raze the building improvements the shopping center and to use the shopping of the covenantor and to vest in the assigns of the located on its own property or to rebuild center utility systems run in perpetuity. This covenantee, in the same manner as if they had per- them to their former condition). Regardless will most likely be required by the governing sonally entered into them.” 5 Easements expressly created through an REA should of a party’s responsibility for buildings on its body with jurisdiction over the property as a be restricted to the specific, limited, and definable use property, most REAs require that common condition to the recordation of the subdivi- or activity contemplated by the parties because the area improvements located on a party’s prop- sion map creating the parcels that are subject extent of the easements are determined by the terms of erty be rebuilt following a casualty. Although to the REA. In some REAs, the parties agree the grant or the nature of the enjoyment by which it was this obligation is typically the responsibility that the easements for parking will run in per- acquired. CIV. CODE §806. 6 of the developer, in some cases it may be the petuity. Typically, the REA cannot be The owner of the property burdened by the easement has no obligation to maintain or repair the easement responsibility of each property owner. amended without the approval of the devel- unless the parties enter into an agreement that alters Use, recapture rights, and rights of first oper and the major retailer. However, the their legal responsibilities and imposes an obligation of offer. Some REAs may require the major REA should be clear as to which parties have maintenance on the servient tenement owner. Herzog retailer to use its property for a particular use this approval right if one party’s property is v. Grosso, 41 Cal. 2d 219, 228 (1953). The owner of or, in turn, restrict uses on the developer for subsequently subdivided into multiple prop- an easement has the statutory duty to maintain and 7 repair the easement. CIV. CODE §845. the benefit of the major retailer. In the event erties or owned by multiple parties. 7 Also known as an exclusive use provision, this is that the major retailer is required to make a Mortgagee protection provisions. The essentially a covenant not to permit other occupants of particular use of its property and ceases to do REA should contain provisions for the ben- the shopping center to operate a business that would so for a specified period (usually six months, efit of the lender of each party to the REA. In compete with the business of the major retailer. For case but often subject to extension for remodels, the event of a default by one party to the REA, law discussing the legality of such limited constraints on trade, see Great Western Distillery Prods., Inc. v. casualties, or other events outside the control the nondefaulting party should be obligated Wathen Distillery Co., 10 Cal. 2d 442, 448-49 (1937); of the major retailer), the developer may be to notify the defaulting party’s lender (to the Martikian v. Hong, 164 Cal. App. 3d 1130, 1134 given the right to purchase the major retail- extent it has been given notice of the lender) (1985); Borman, Inc. v. Great Scott Super Markets, Inc., er’s property for its fair market value or other and allow the lender to cure the default. In 433 F. Supp. 343, 349-51 (E.D. Mich. 1975); and negotiated price. In theory, this gives the addition, the REA should provide that a Optivision, Inc. v. Syracuse Shopping Center Assocs., developer the right to control its real estate breach of any of the covenants or restric- 472 F. Supp. 665, 674-81 (N.D. N.Y. 1979). See also Jeffrey N. Brown, Use Provisions in Commercial or to lease or sell the major retailer’s property tions contained in the REA will not defeat or Leases, LOS ANGELES LAWYER, Jan. 2006, at 21. to a user that will use its property for a retail render invalid the lien of any lender made in 8 The requirements for the covenants in the REA to run use compatible with the remainder of the good faith and for value as to the shopping with the land are set forth in Civil Code §1468. shopping center. The REA may also provide center or any part thereof.10 9 As a general rule, restrictions on land may be amended that in the event that either party desires to Shopping center REAs are understand- or terminated by the execution of a mutual agreement signed by all the property owners subject to the restric- sell its property to an unaffiliated third party, able when they are viewed as a substitution tions. RESTATEMENT (FIRST) OF PROPERTY §557. the other party will have, for a short time, a for the operational provisions of a lease However, the parties may also agree to an expiration right of first offer to purchase the selling par- between a developer and a major retailer. date or modified procedures in the REA. ty’s property. In other words, the selling party Although an REA will not contain the same 10 For sample mortgagee protection provisions in the has an obligation to undergo good faith nego- types of provisions found in a lease, many of analogous area of landlord-tenant retail leasing, see Gary Glick, Estelle Braaf & Tamar Stein, Default and tiations with the other party to the REA the concepts are the same. As with a lease, the Remedies, in RETAIL LEASING—DRAFTING AND before selling the property to the unaffili- REA ensures that the developer’s property and NEGOTIATING THE LEASE §27.55-27.56, 777-79 (CEB ated third party. If either a right to purchase the major retailer’s property are operated as 2007).

Los Angeles Lawyer November 2008 19 by Michael R. Sohigian

BYACCIDENT Two cases pending before the California Supreme Court will address liability insurance coverage for accidental consequences of intentional acts

t may seem like a truism that liability insurance only covers accidents. But it’s not always true. In certain nonac- cidental circumstances, including alleged assaults and batteries committed in self-defense, California’s courts have consistently held that insurers are duty bound to defend policyholders. Two cases now before the California Supreme Court, Delgado v. Interinsurance Exchange and Jafari v. EMC Insurance Companies, raise a related issue: When a liability policy covers injury arising from an “occurrence,” which is deﬁned as an “accident,” does the insurer Ihave a duty to defend an action for assault if the complaint alleges the insured was acting under an unreasonable and negligent belief that he or she was acting in self-defense?1 The outcome may alter decades-old authority concerning coverage for unexpected and unintended damages of intentional acts. Much litigation over the issue has been and continues to be waged. In fact, after the supreme court granted the insurers’ petitions for review in Delgado and Jafari, the Second District Court of Appeal handed down two decisions addressing insurers’ duty to defend claims for alleged intentional acts. In one, the court of appeal continued to apply a strict standard to intentional acts of a sexual nature and held that the insurer was not obligated to defend the insured against such claims.2 In the other, more recent decision, the court distinguished an alleged intentional act from its accidental consequences, and held the insurer was obligated to defend a suit for consequential damages.3 The standard commercial (formerly comprehensive)4 general liability (CGL) policy provides coverage for “damages because of bodily injury or property damage…caused by an occurrence.” The term “occurrence” is often deﬁned as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy

Michael R. Sohigian, a sole practitioner in Los Angeles, specializes in civil litigation with an emphasis on real estate, employment, pro-

bate, insurance coverage, and public licensing. KEN CORRAL

20 Los Angeles Lawyer November 2008 Los Angeles Lawyer November 2008 21 also typically provides an exclusion of coverage for “bodily injury or dant duty bound to defend its insured, the Mullen court stated, “It property damage neither expected nor intended by the insured.”5 is now settled that injuries resulting from acts committed by an Additionally, Insurance Code Section 533 provides that “[a]n insured in self-defense are not ‘intended’ or ‘expected’ within the mean- insurer is not liable for a loss caused by the wilful act of the insured; ing of those terms as customarily used in an exclusionary clause.”17 but he is not exonerated by the negligence of the insured, or of the The Delgado court also cited David Kleis, Inc. v. Superior Court, insured’s agents or others.” This deceptively simple statute is followed in which the court of appeal observed, “If the insured mistakenly by more than 40 pages of annotations. Indeed, the alleged commis- believed that he had a right to defend himself, or was mistaken with sion of an intentional act is probably the most common ground for regard to the extent with which he could use force, the act would not an insurer’s denial of tender or reservation of rights, and policy- be intentional and coverage would exist” because “the focus [is holders and insurers have been fighting over it for at least 50 years.6 placed] upon the mental state of the insured when undertaking a course Gray v. Zurich Insurance Company is the seminal case in which of conduct.”18 The Delgado court also relied upon Grain Dealers the supreme court recognized that “the carrier must defend a suit which Mutual Insurance Company v. Marino, in which the court held an potentially seeks damages within the coverage of the policy.”7 Dr. insurer obligated to defend claims for acts that were allegedly inten- Vernon Gray, the insured, tendered to Zurich, his insurer, a lawsuit tional and stated, in pertinent part, that “[i]f an insured acted in self- that had been filed against him for assault arising out of a road-rage defense, although he intended the act, he acted by chance and with- altercation between him and another driver.8 Gray advised Zurich that out a preconceived design to inflict injury just as though he were acting he had acted in self-defense, after the plaintiff left his vehicle, intentionally, although negligently, and injured someone.”19 approached Gray’s car, and jerked open the door. Zurich denied ten- About four months after the Second District issued its opinion in der on the ground that the complaint alleged an intentional tort. Delgado, a different division of the same court published Jafari. The The court held Zurich was obligated to defend Gray and to pay plaintiff in Jafari was an individual doing business as an auto repair the judgment awarded against him in the suit Gray tried and lost at shop.20 The plaintiff was sued for damages because his employee his own expense. The opinion rested on a number of legal and fac- allegedly struck a customer.21 The employee admitted he did so but tual grounds. Among them were the court’s finding that Zurich’s pol- contended his action was in self-defense because he feared for his per- icy failed clearly to define the application to the duty to defend of the sonal safety and his life.22 exclusion of coverage “for bodily injury or property damages caused The plaintiff was insured under a garage operations liability pol- intentionally by or at the direction of the insured,” particularly in view icy that provided coverage for “damages because of bodily injury or of coverage language promising to “pay on behalf of the insured all property damage…caused by an accident and resulting from garage sums which the insured shall become legally obligated to pay as operations.”23 The policy did not define “accident.”24 The trial court damages because of bodily injury or property damage.”9 granted the insurer’s summary judgment motion on the grounds that In support of its legal analysis, the Gray court cited multiple there was no coverage and thus no duty to defend.25 The court of cases for the proposition that an act that may be “intentional” or “will- appeal concluded, based on existing case law, that allegedly intentional ful” in legal terms does not necessarily fall outside insurance cover- conduct in self-defense can be deemed accidental within the coverage.10 The court observed that Gray “might have been able to show age provision of the policy because the defensive conduct was pro- that in physically defending himself, even if he exceeded the reason- voked by the unexpected and unintended acts of a third party.26 able bounds of self-defense, he did not commit willful and intended The court of appeal therefore reversed summary judgment for the injury, but engaged only in nonintentional tortious conduct.”11 In the insurer.27 42 years since Gray was decided, courts have repeatedly cited it for As in Delgado, the court in Jafari cited Gray and Mullen. The Jafari the proposition that CGL coverage may be available for intentional court also cited Lowell v. Maryland Casualty Company, in which the acts committed under circumstances of self-defense.12 California Supreme Court repeated its statement in Gray that “even if the insured’s conduct may traditionally be classified as an ‘inten- Delgado and Jafari tional’ or ‘wilful’ tort, many cases have held that such conduct falls The Delgado case currently pending before the supreme court arises within the indemnification coverage.”28 out of allegations somewhat similar to those in Gray. Delgado is an Interestingly, however, the Jafari court appeared to rest its hold- insurance bad faith action under Insurance Code Section 11580. In ing mostly on cases the insurance company had relied on—cases in the underlying action Delgado sued Reid, who was insured by the Auto which no duty to defend or indemnify was found because the con- Club, for damages allegedly resulting from an assault and battery that, duct at issue was intentional. For example, the Jafari court cited and Delgado alleged, Reid had committed, albeit unreasonably, in self- analyzed Merced Mutual Insurance Company v. Mendez,29 in which defense. Reid tendered Delgado’s suit to the Auto Club, which the court of appeal affirmed summary judgment on the ground that rejected it on the grounds that there was no “occurrence” but rather the insurance company had no duty to defend or indemnify its pol- an intentional, unprovoked attack that was not an accident and thus icyholder, Mendez, against allegations of intentional and negligent was excluded under the terms of his policy and Section 533. Reid and assault and battery and intentional and negligent infliction of emo- Delgado stipulated to judgment for Delgado on his claim for negli- tional distress stemming from acts of oral copulation and attempted gence, with a covenant not to execute and an assignment of Reid’s oral copulation.30 claims against the Auto Club for failure to defend.13 In Jafari, the court noted the Mendez court’s rejection of “the notion The trial court sustained the Auto Club’s demurrer to Delgado’s it was enough for the injury to have been unintended to be deemed subsequent bad faith action,14 but the Second District Court of an ‘accident’ within the meaning of the insuring clause,” and approv- Appeal reversed.15 The court cited no fewer than seven cases to sup- ingly quoted language from Mendez: port its conclusion that the facts alleged in the underlying action against “In terms of fortuity and/or foreseeability, both ‘the means as Reid presented the possibility of coverage under the policy.16 Those well as the result must be unforeseen, involuntary, unexpected cases included Gray and Mullen v. Glens Falls Insurance Company. and unusual.’ We agree coverage is not always precluded Mullen was a coverage action arising from a suit against Mullen for merely because the insured acted intentionally and the victim alleged injuries that resulted from a fight that the court viewed as hav- was injured. An accident, however, is never present when the ing been started—for all Mullen’s insurer could have known—by the insured performs a deliberate act unless some additional, plaintiff, whom Mullen struck in self-defense. In holding the defen- unexpected, independent, and unforeseen happening occurs that

22 Los Angeles Lawyer November 2008 produces the damage. Clearly, where the insured acted delib- The Jafari court concluded that “properly viewed, even deliber- erately with the intent to cause injury, the conduct would not ate acts of self-defense in response to unexpected, unforeseen and unin- be deemed an accident. Moreover, where the insured intended tended events by the third party are ‘accidents’ and give rise to the all of the acts that resulted in the victim’s injury, the event may potential for liability under the policy, and hence the obligation to pro- not be deemed an ‘accident’ merely because the insured did vide a defense.”38 not intend to cause injury. Conversely, an ‘accident’ exists when On August 3, 2007, the supreme court granted review of Delgado any aspect in the causal series of events leading to the injury and did the same for Jafari on November 12, 2007, but deferred con- or damage was unintended by the insured and a matter of for- sideration of the case pending the outcome of Delgado. The parties tuity.”31 (and amici) have fully briefed the Delgado case, but as of November The Jafari court also distinguished Quan v. Truck Insurance 2008, oral argument had not been scheduled. Exchange,32 another case involving allegations that the insured committed sexual assault and rape, for the same reasons it found Mendez The Wright Concerns inapposite: “Because the sexual assault was deliberate, the Quan Court Meanwhile, the courts of appeal continue to consider cases involv- concluded there was no ‘accident’ within the meaning of the policy ing allegedly intentional acts and policyholders’ claims that their and thus no coverage.”33 It quoted language from Quan rejecting the insurance companies owe duties to defend or indemnify. In March

possibility that the insurer might be held liable for physical injuries 2008, the court of appeal issued its opinion in Lyons v. Fire Insurance caused by “accidentally” touching, kissing, embracing, or having sex Exchange.39 The court cited Mendez and Quan in echoing the hold- with the claimant and emphasized a part of that language: “nor is there ings of those cases that allegations of false imprisonment in the con- any additional ‘happening’ to combine with these necessarily delib- text of sexual assault raised no potential of coverage under the CGL erate acts so as to produce an ‘accident’ giving rise to bodily injury.”34 policy the defendant had issued to the plaintiff—a former Major Thus the Jafari court found “the definitions provided in [Mendez League Baseball player known to his teammates as “Psycho.” The and Quan] [did] not foreclose the possibility acts in self-defense can claims therefore triggered no duty to defend.40 be an ‘accident’ and thus fall within the coverage provision of the pol- Lyons fits into a long line of cases rejecting a defense or indem- icy.” Indeed, the court read those opinions to “support the finding nity against claims of sexual molestation.41 But in cases involving less [that] acts in self-defense can be an ‘accident’ where the third party’s prurient facts, claims for damages that are unintentional and unex- actions provoking the self-defense response were the unforeseen and pected consequences of an intentional act are held to trigger the unexpected element in the causal chain of events making the insured’s insurer’s duty to defend.42 acts in self-defense unplanned and involuntary. Under these courts’ For example, State Farm Fire and Casualty Company v. Superior definitions,” the court reasoned, “it is the unexpectedness of the Court (Wright) arose from the tender of an action against State third party’s actions which creates the ‘accident’ within the meaning Farm’s insured for personal injuries the plaintiff suffered when the of the coverage clause.”35 insured threw him into a swimming pool, and he landed on the In Jafari, the court understood the Gray decision as a statement pool’s cement step and broke his collarbone.43 State Farm rejected ten- that courts must take the broad view of any incident raising the der on the grounds that the plaintiff’s injuries were not caused by an question of self-defense when determining whether there has been an “occurrence” or “accident” as the policy defined those terms.44 The unexpected and unintended force, or happening, in the causal chain insured settled the underlying action and assigned all rights under his of events creating the “accident.” Therefore, according to Jafari, policy to the plaintiff.45 “the third party’s actions prompting an insured to act in self-defense At the trial of the plaintiff’s action against State Farm, the court are part of the causal chain of events leading to potential injury. In found the insured did not intend to injure the plaintiff but rather sim- the usual case the third party’s actions which prompt the need to pro- ply wanted to get him wet. As recounted by the appellate court, “the tect self or others will be the unintended, unexpected, unplanned and trial court recited the rule that when an injury is an unexpected or unforeseen event constituting the ‘accident.’”36 Further, the court unintended consequence of the insured’s conduct, it may be charac- stated: terized as an accident for which coverage exists.”46 Because the The provoking party’s actions are an integral part of the over- injury was neither expected nor intended, the trial court ruled State all incident. The insured’s response in self-defense often will be Farm owed a duty to defend its insured against the allegations of the intentional when the insured fears serious bodily harm or underlying action.47 death. Other times the insured could be acting purely reflex- The Wright court started its analysis by noting the meaning of the ively in responding to the third party’s real or perceived threat. term “accident” in insurance law is not settled.48 The court reviewed In this sense, the insured’s acts in self-defense are involuntary, a number of cases, including Quan, and arrived at the conclusion that not wrongful, and triggered by the unexpected and unforeseen “an accident can exist when either the cause is unintended or the effect threat presented by the provoking third party.37 is unanticipated.” The court cited with approval the Mendez defin-

Los Angeles Lawyer November 2008 23 ition of “accident” that Jafari, too, had policies would be illusory.55 37 Cal. App. 4th 1035, 1048 (1995); Delgado v. Interinsurance Exch., 152 Cal. App. 4th 671, 684 emphasized, requiring an unintended and The analyses in Wright and Jafari seem (2007); Jafari v. EMC Ins. Cos., 155 Cal. App. 4th 885, fortuitous aspect in the causal series of events intuitively correct. They are also consistent 888 (2007). leading to the injury or damage.49 with the test the California Supreme Court 13 Delgado, 152 Cal. App. 4th at 676-77. The court described a series of illustrative applied in Montrose Chemical Corporation 14 Id. at 678-79. paradigms. In one, a batter hits a baseball dur- v. Superior Court.56 In holding the plaintiff 15 Id. at 676. 16 ing a game with the intention of hitting a had established facts triggering the insurer’s Id. at 681-86. 17 Mullen, 73 Cal. App. 3d at 170. home run but, because of his stance and the duty to defend it against claims arising from 18 David Kleis, Inc. v. Superior Court, 37 Cal. App. 4th angle of contact between bat and ball, sends alleged discharges of toxic chemicals from the 1035, 1048 (1995). it through a window in foul territory instead. plaintiff’s manufacturing plant, the court 19 Grain Dealers Mut. Ins. Co. v. Marino, 200 Cal. App. In another, an intentionally speeding driver recited a “test for ‘expected’ damage[:] 3d 1083, 1088 (1988) (internal quotations omitted). 20 negligently hits another car. Both are acci- whether the insured knew or believed its con- Jafari v. EMC Ins. Cos., 155 Cal. App. 4th 885, 888 (2007). dents, according to Wright. In the baseball duct was substantially certain or highly likely 21 Id. at 889. 57 paradigm, one of the aspects in the causal to result in that kind of damage.” 22 Id. at 889-91. series of events—too much force at an inad- Nobody ever threw someone in a swim- 23 Id. at 889. vertent angle—was unintended by the batter ming pool, or punched a threatening person 24 Id. at 890, 891. 25 and thus fortuitous. The second paradigm in the nose, because he or she had insurance. Id. at 891. 26 Id. at 894. was chosen from the Mendez opinion, in But insurance ought to cover people for the 27 Id. at 902. which the court explained that “the act consequences of things they do that, due to 28 Lowell v. Maryland Cas. Co., 65 Cal. 2d 298, 301- directly responsible for the injury—hitting unforeseen factors (including an unprovoked 02 (1966). the other car—was not intended by the dri- attack), cause damage to others. That is cer- 29 Merced Mut. Ins. Co. v. Mendez, 213 Cal. App. 3d ver and was fortuitous. Accordingly, the tainly what a policyholder would reasonably 41 (1989). 30 Id. at 44. occurrence resulting in injury would be expect.58 31 Jafari, 155 Cal. App. 4th at 898-99 (quoting Mendez, 50 deemed an accident.” In line with these expectations, three courts 213 Cal. App. 3d at 50) (emphasis in original) (citations The Wright court likened the plaintiff’s in the state’s largest appellate district have in omitted)). claim to the paradigms. State Farm’s insured the last year alone found the potential for cov- 32 Quan v. Truck Ins. Exch., 67 Cal. App. 4th 583 deliberately picked up Wright and threw him erage in nominally intentional acts. There (1998). 33 into the pool, but he did not intend or expect are plainly good reasons to provide such cov- Jafari, 155 Cal. App. 4th at 899. 34 Id. (citing Quan, 67 Cal. App. 4th at 601) (empha- the consequence that Wright would land on erage. The supreme court will have the last sis in original). a step and be injured. “[T]he act directly word, of course. It could decide to reject 35 Id. at 899. responsible for [the plaintiff’s] injury, throw- some 50 years of precedent, or it could fol- 36 Id. at 900. ing too softly so as to miss the water, was an low the reasoning of Jafari and the concerns 37 Id. 38 unforeseen or undesigned happening or con- expressed in Wright. ■ Id. 39 Lyons v. Fire Ins. Exch., 161 Cal. App. 4th 880 sequence and was thus fortuitous,” the court (2008). 51 concluded. “The event here was an accident 1 Delgado v. Interinsurance Exch., 152 Cal. App. 4th 40 Id. at 889-90. because not all of the acts, the manner in 671 (2007) (review granted); Jafari v. EMC Ins. Cos., 41 See J.C. Penney Cas. Ins. Co. v. M.K., 52 Cal. 3d which they were done, and the objective 155 Cal. App. 4th 885 (2007) (review granted). 1009 (1991); Coit Drapery Cleaners, Inc. v. Sequoia Ins. 2 Lyons v. Fire Ins. Exch., 161 Cal. App. 4th 880 accomplished transpired exactly as Lint [the Co., 14 Cal. App. 4th 1595 (1993); Merced Mut. Ins. (2008). 52 Co. v. Mendez, 213 Cal. App. 3d 41 (1989); Horace policyholder] intended.” 3 State Farm Fire & Cas. Co. v. Superior Court Mann Ins. Co. v. Barbara B., 61 Cal. App. 4th 158 The Wright court distinguished many of (Wright), 164 Cal. App. 4th 317 (2008). (1998); Quan v. Truck Ins. Exch., 67 Cal. App. 4th 583 the cases on which State Farm relied as involv- 4 Compare Bank of the West v. Superior Court, 2 Cal. (1998); Northland Ins. Co. v. Briones, 81 Cal. App. 4th ing sexual harassment or sexual assault, or 4th 1254, 1258 (1992) (construing advertising injury 796 (2000). claims in which “the insured intended all of coverage under “[c]omprehensive general liability 42 State Farm Fire & Cas. Co. v. Superior Court insurance policies”), with Buss v. Superior Court, 16 the acts in the causal chain, including the (Wright), 164 Cal. App. 4th 317 (2008). Cal. 4th 35, 39 (1997) (resolving “issues relating to 43 Id. at 321. 53 injury.” And it rejected “State Farm’s argu- standard commercial general liability insurance poli- 44 Id. at 321-22. ment that we should apply ‘fortuity’ solely to cies, which were formerly called comprehensive general 45 Id. at 322. the act causing the injury without reference liability insurance policies”). 46 Id. at 323 (citing Interinsurance Exch. v. Flores, 45 5 to the injury, [because it] would result in no See DIMUGNO & GLAD, CALIFORNIA INSURANCE LAW Cal. App. 4th 661, 669 (1996)). HANDBOOK 1095-98 (2008). 47 coverage at all.”54 Id. 6 See Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 273 n.12 48 Id. at 325 (citing Hogan v. Midland Nat’l Ins. Co., The court observed: (1966) (string cite of cases “recogniz[ing] that an act 3 Cal. 3d 553, 559 (1970)). In State Farm’s analysis, there could which under the traditional terminology of the law of 49 Id. at 328 (citing Merced Mut. Ins. Co. v. Mendez, never be a covered event because all torts is denominated ‘intentional’ or ‘wilful’ does not 213 Cal. App. 3d 41, 50 (1989)). batters deliberately seek to hit base- necessarily fall outside insurance coverage,” leading 50 Id. (citing Mendez, 213 Cal. App. 3d at 50). with Firco, Inc. v. Fireman’s Fund Ins. Co., 173 Cal. 51 balls and therefore engage in inten- Id. at 329 (emphasis in original) (citations omit- App. 2d 524 (1959)). ted). tional acts, regardless of whether the 7 Id. at 275. 52 Id. (emphasis in original). property damage, namely, breaking 8 Id. at 267. 53 Id. windows, was intended. Likewise, 9 Id. at 266-67. 54 Id. at 330. there would never be a covered occur- 10 Id. at 273 n.12. 55 Id. 11 Id. at 277. 56 rence when an injury is occasioned Montrose Chem. Corp. v. Superior Court, 6 Cal. 4th 12 See, e.g., Lowell v. Maryland Cas. Co., 65 Cal. 2d 287 (1993). by a negligent driver, who obeys the 298, 301-02 (1966); Mullen v. Glens Falls Ins. Co., 73 57 Id. at 304-05. laws of the road, nevertheless miscal- Cal. App. 3d 163, 171 (1977); Clemmer v. Hartford 58 See Bank of the West v. Superior Court, 2 Cal. 4th culates a lane change and hits another Ins. Co., 22 Cal. 3d 865, 887 (1978); Grain Dealers 1254, 1264-65 (1992) (Ambiguous policy provisions car. Under State Farm’s analysis all Mut. Ins. Co. v. Marino, 200 Cal. App. 3d 1083, should be interpreted to protect the insured’s objectively accident-based automobile insurance 1088 (1988); Jacobs v. Fire Ins. Exch., 36 Cal. App. 4th reasonable expectations.). 1258, 1269 (1995); David Kleis, Inc. v. Superior Court,

24 Los Angeles Lawyer November 2008 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 27.

Disclose or Dismiss

Bankruptcy is often a refuge for individuals commencement of the case.”1 or businesses whose assets are threatened by The scope of Section 541(a)(1) is broad, Part of any litigator’s pending litigation or judgments. While access encompassing both tangible and intangible to the bankruptcy court has been severely property.2 Included within the wide sweep of restricted in recent years by congressional “intangible property” under the section are due diligence should changes to the U.S. Bankruptcy Code, the prepetition causes of action held by the bankruptcy option remains for those defend- debtor.3 The bankruptcy estate encompasses ing civil lawsuits who subsequently require the all property of the debtor, even what is needed benefits and protections afforded under bank- for a fresh start.4 As the U.S. Supreme Court be to determine if the ruptcy law. has recognized, “[A]n estate in bankruptcy But what happens when the debtor is the consists of all the interests in property, legal one prosecuting a civil action, and he or she and equitable, possessed by the debtor at the plaintiff has a pending fails to disclose the pending or even potential time of filing, as well as those interests recov- civil action in the context of the bankruptcy ered or recoverable through transfer and lien proceeding? The result of this oversight or avoidance provisions.”5 deception can be drastic, including the ulti- The Bankruptcy Code affords debtors the bankruptcy action mate sanction: dismissal of the civil action. right to exempt certain property from the When an individual or entity files a petition for bankruptcy protection under chap- Craig A. Roeb is a partner in the Los Angeles office ters 7, 11, or 13 of the Bankruptcy Code, a of Chapman, Glucksman, Dean, Roeb & Barger, bankruptcy estate is created. Pursuant to where he chairs the firm’s business, employment, Section 541(a)(1) of the code, the bankruptcy and product liability practice groups. He acknowl- by Craig A. Roeb estate is composed of “all legal or equitable edges and thanks law clerk Michael Cooper for interests of the debtor in property as of the his assistance with this article.

Los Angeles Lawyer November 2008 25 bankruptcy estate.6 Section 522 of the Trustee. These purposes are fully real- cially if it be to the prejudice of the party who Bankruptcy Code directs what property a ized when a debtor complies with the has acquiesced in the position formerly taken debtor may exempt. In chapter 7 proceedings, requirement that he or she submit by him.”17 The Court further noted that the nonexempt property in a debtor’s bankruptcy accurate and complete information “purpose of the doctrine is to protect the estate is subject to administration by the concerning the identification of cred- integrity of the judicial process by prohibit- trustee for the benefit of creditors—and this itors and assets.12 ing parties from deliberately changing posi- property includes pending lawsuits. As one When an individual files for bankruptcy tions according to the exigencies of the court has explained, pursuant to Section 541, protection but fails to disclose an existing moment.”18 “a trustee in bankruptcy succeeds to all causes cause of action in his or her bankruptcy fil- In New Hampshire, the Court set forth of action held by a debtor at the time a bank- ings, such as the statement of financial affairs, several factors for courts to consider in deter- ruptcy petition is filed.”7 and later receives a discharge, courts have held mining whether to apply judicial estoppel.

On appeal, the Eleventh Circuit held that the doctrine

of judicial estoppel precluded a party from “asserting a

claim in a legal proceeding that is inconsistent with a

claim taken by that party in a previous proceeding.”

Subject to the specific exemption rules, that the debtor possesses no standing to pur- First, the later position must be clearly incon- the Bankruptcy Code seeks to ensure that all sue the civil claim, because it was—and would sistent with the earlier position. Second, if a property of the debtor is included in the have been—the property of the trustee prior party succeeds in persuading a court to accept debtor’s bankruptcy estate for administration to discharge.13 According to decisional law, that party’s earlier position, the judicial accep- by the bankruptcy trustee. To accomplish that a debtor is disallowed to assert title to or tance of an inconsistent position in a later purpose, Bankruptcy Code Section 521(1) pursue an undisclosed claim simply because proceeding would create the perception that requires the debtor to file a schedule of assets a trustee, without knowledge of the claim, either the first or the second court was misled. and liabilities, a schedule of current income took no action regarding it before the bank- Third, the party seeking to assert an incon- and expenditures, and a statement of financial ruptcy proceeding was closed.14 Accordingly, sistent position would derive an unfair advan- affairs.8 A debtor has an “affirmative duty to a debtor/plaintiff will lose the right to pursue tage or impose an unfair detriment on the disclose all of its assets to the bankruptcy a civil claim by either failing to disclose it in opposing party if not estopped from attempt- court.”9 The required documents must be his or her bankruptcy proceeding or inten- ing to assert it.19 Implying greater application executed under penalty of perjury. tionally concealing it from the court, trustee, of the doctrine, the Court noted that these fac- In completing the schedules, debtors have and creditors in the bankruptcy proceeding. tors are not “inflexible prerequisites.”20 an absolute duty to report any and all inter- The doctrine’s specific applicability to est they hold in property, even if they believe Equitable Grounds bankruptcy proceedings is illuminated in Hay their assets are worthless or unavailable to the Judicial estoppel is an equitable doctrine that v. First Interstate Bank.21 The debtor, Hay, bankruptcy estate. Schedules must be com- precludes a party from asserting one position filed a chapter 11 bankruptcy petition in plete, thorough, and accurate so that creditors and then later seeking advantage by taking a 1986. During the course of the proceeding, are able to judge for themselves the nature of clearly inconsistent position.15 In recent years, Hay discovered information leading to poten- the debtor’s estate.10 The disclosure obligations the doctrine of judicial estoppel has been tial claims that he ultimately brought against of debtors are at the very core of the bank- asserted with increasing frequency as a defense First Interstate and others in a federal civil ruptcy process. In fact, courts have said that to various claims. In New Hampshire v. action in 1989. However, Hay never brought meeting these obligations is part of the price Maine,16 the U.S. Supreme Court applied the the information he discovered to the attention that debtors must pay for receiving a bank- doctrine to bar the State of New Hampshire of the bankruptcy court at any time before the ruptcy discharge.11 As one court has noted: from taking a different position from that bankruptcy proceeding was closed in 1988.22 The dual purposes of a Chapter 7 taken by the state during litigation in the First Interstate moved for summary judg- bankruptcy case are to grant the hon- 1970s. It explained that “under the judicial ment in the civil action, contending Hay was est debtor a discharge of his or her estoppel doctrine, where a party assumes a judicially estopped from asserting any claims pre-petition debts, and to provide a certain position in a legal proceeding, and suc- against it because the events that led to his mechanism for the fair and orderly ceeds in maintaining that position, he may not claims arose during the course of Hay’s prior distribution of the debtor’s assets that thereafter, simply because his interests have bankruptcy proceeding. The trial court are subject to administration by the changed, assume a contrary position, espe- granted First Interstate’s summary judgment

26 Los Angeles Lawyer November 2008 MCLE Answer Sheet #175 MCLE Test No. 175 DISCLOSE OR DISMISS

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. A bankruptcy estate consists of the legal interests of D. Statutory estoppel. Address a debtor at the time of the commencement of a bank- 12. Which of the following is not a factor that a court City ruptcy case. will consider when determining whether to apply judi- State/Zip True. cial estoppel? False. A. The subsequent position asserts an E-mail 2. Under U.S. Bankruptcy Code Section 541(a)(1), a unrecognized claim. Phone debtor must identify both tangible and intangible prop- B. The subsequent position is inconsistent with State Bar # erty when filing a petition and supplemental docu- the first. ments, including schedules, with the bankruptcy court. C. A party would gain an unfair advantage if the INSTRUCTIONS FOR OBTAINING MCLE CREDITS True. subsequent position is advanced. 1. Study the MCLE article in this issue. False. D. A party has convinced a previous court of its 2. Answer the test questions opposite by marking 3. Federal law does not include a prebankruptcy peti- position. the appropriate boxes below. Each question tion cause of action as intangible property in the eval- 13. The Ninth Circuit has held that a debtor need not has only one answer. Photocopies of this uation of the debtor’s property. disclose litigation likely to arise in the nonbankruptcy answer sheet may be submitted; however, this True. context. form should not be enlarged or reduced. False. True. 3. Mail the answer sheet and the $15 testing fee 4. All property possessed by the debtor at the time of False. ($20 for non-LACBA members) to: filing a bankruptcy petition must be disclosed under 14. A debtor’s duty to disclose potential claims as Los Angeles Lawyer Section 541(a)(1). assets does not end when the debtor files schedules MCLE Test True. but continues for the duration of the bankruptcy pro- P.O. Box 55020 False. ceeding. Los Angeles, CA 90055 5. A trustee in bankruptcy does not have a right of True. Make checks payable to Los Angeles Lawyer. succession to a cause of action held by a debtor at the False. 4. Within six weeks, Los Angeles Lawyer will time a bankruptcy petition is filed. 15. A debtor’s failure to disclose is inadvertent only return your test with the correct answers, a True. when the debtor either lacks knowledge of the undis- rationale for the correct answers, and a False. closed claims or has a fraudulent motive to conceal. certificate verifying the MCLE credit you earned through this self-assessment activity. 6. A debtor must file schedules with a bankruptcy True. petition, except: False. 5. For future reference, please retain the MCLE test materials returned to you. A. A schedule of assets and liabilities. 16. A debtor may correct a prior nondisclosure of a B. A schedule of current income and pending civil action as long as the bankruptcy pro- ANSWERS expenditures. ceeding is ongoing. Mark your answers to the test by checking the C. A schedule of pending causes of action. True. appropriate boxes below. Each question has only 7. A debtor does not need to disclose assets deemed False. one answer. to be worthless or unavailable when filing a petition for 17. Parties asserting judicial estoppel may raise an bankruptcy. inference of bad faith if they show a motive to conceal 1. ■ True ■ False True. the claim by the debtor. 2. ■ True ■ False False. True. 3. ■ True ■ False 8. Under Section 522(b), an exemption is an interest False. ■ ■ withdrawn from the estate for the benefit of the debtor. 18. If a party asserts judicial estoppel against a debtor, 4. True False True. courts have held that the same party bears the burden 5. ■ True ■ False False. of production indicating that nondisclosure was in 6. ■ A ■ B ■ C 9. good faith. Courts have held that debtors who fail to disclose 7. ■ True ■ False a cause of action at the time of filing their bankruptcy True. ■ ■ petitions lack standing to subsequently bring a civil False. 8. True False claim. 19. Once a party establishes that the debtor had knowl- 9. ■ True ■ False True. edge of the claim and a motive to conceal it, the inquiry 10. ■ True ■ False False. does not end if the debtor comes forward with rebut- 11. ■ A ■ B ■ C ■ D 10. A debtor loses the right to pursue a civil claim if he tal evidence. 12. ■ A ■ B ■ C ■ D or she either fails to disclose the claim or the trustee True. ■ ■ fails to ask about the claim. False. 13. True False True. 20. A debtor who conceals a pending civil action dur- 14. ■ True ■ False False. ing a bankruptcy proceeding may lose both legal and 15. ■ True ■ False 11. A court’s refusal to allow a party to assert a posi- equitable rights to pursue the action as a consequence. 16. ■ True ■ False tion and then later seek advantage by taking a clearly True. ■ ■ inconsistent position is commonly known as: False. 17. True False A. Equitable estoppel. 18. ■ True ■ False B. Judicial estoppel. 19. ■ True ■ False C. Res judicata. 20. ■ True ■ False

Los Angeles Lawyer November 2008 27 motion, which was unanimously affirmed Similarly illustrative is Hamilton v. State to the carrier, Hamilton emphasized the on appeal.23 Farm Fire and Casualty Company,25 in which importance of promptly settling his claim The Ninth Circuit initially recognized that the plaintiff asserted a questionable claim because he was facing a November 10, 1997, while not all of the facts underlying Hay’s with his insurer, State Farm, for water intru- foreclosure deadline on his house due to the claims against First Interstate were known sion at a home Hamilton owned but rented to unremedied property damage and corollary during the pendency of the bankruptcy pro- others. Following an investigation of the claim, absence of income generated by a renter. ceeding, Hay knew enough information to State Farm concluded Hamilton intention- Nevertheless, State Farm denied the claim require him to notify the bankruptcy court of ally caused the water intrusion, that he van- on November 3, 1997.27 the existence of the potential asset. Citing dalized and stole property from the house, and Before receiving State Farm’s denial letter, precedent, the Ninth Circuit noted that a that he violated the antifraud/concealment Hamilton filed for chapter 7 bankruptcy pro- debtor “must disclose any litigation likely to provisions of the insurance policy at issue. tection on October 31, 1997. In the schedules arise in the non-bankruptcy context.” The Consequently, State Farm denied the claim.26 he filed with the bankruptcy court, Hamilton court held that the failure to give this notice Prior to State Farm’s decision, Hamilton listed a $160,000 loss against his estate, but estopped Hay and justified the summary ter- hired lawyers to pressure the insurer to pay he failed to disclose his corresponding claim mination of his civil action.24 the claim. In correspondence from the lawyers against State Farm as an asset of the estate. The bankruptcy trustee noticed the large loss Hamilton listed and inquired on several occa- sions if he was pursuing any insurance claims to recover on the loss. Hamilton’s repeated failure to respond led to a successful motion by the trustee in July 1998 to dismiss the bankruptcy case, which also vacated any impending discharge of Hamilton’s debts.28 Three months later, in October 1998, Hamilton filed a bad faith lawsuit against State Farm based on the denial of his insurance claim. State Farm brought a motion for summary judgment, contending, among other things, that the case was barred by the doctrine of judicial estoppel because Hamilton failed to list his insurance claim (and impending lawsuit) as assets in his chapter 7 bankruptcy schedules. The trial court agreed with State Farm, concluding Hamilton’s contra- dictory positions in the bankruptcy case and his subsequent civil action estopped him from pursuing his lawsuit against State Farm.29 As the court declared: [W]e must invoke judicial estoppel to protect the integrity of the bankruptcy process. The debtor, once he institutes the bankruptcy process, disrupts the flow of commerce and obtains a stay and the benefits derived by listing all his assets. The Bankruptcy Code and Rules “impose upon the bankruptcy debtors an express affirmative duty to disclose all assets, including contin- gent and unliquidated claims.” The debtor’s duty to disclose potential claims as assets does not end when the debtor files schedules, but instead continues for the duration of the bankruptcy proceeding.30 The court of appeal thus concluded that Hamilton’s dishonesty in his bankruptcy case judicially estopped him from asserting claims—which constitute previously undisclosed assets—in his subsequent civil action. A decision in the same vein is Burnes v. Pemco Aeroplex, Inc.31 The debtor in Burnes filed a chapter 13 bankruptcy petition in July 1997. Six months later, the debtor filed a discrimination charge with the Equal Employ-

28 Los Angeles Lawyer November 2008 ment Opportunity Commission against his from deliberately changing positions accord- known about the cause of action. Therefore, employer. Almost a year later, while his banking to the exigencies of the moment.”33 The the court held that the district court did not ruptcy proceeding was pending, the debtor court concluded that the first part of the two- err in determining that the debtor was judi- filed an employment discrimination suit part analysis had been satisfied because the cially estopped from pursuing his discrimi- against his employer in federal district court. debtor had signed his bankruptcy schedules nation lawsuit against his former employer.36 The debtor never amended his bankruptcy and statement of financial affairs under oath.34 schedules or the statement of financial affairs Although the court recognized that judi- When to Notify, Correct, or Attack to include the lawsuit. In October 2000, the cial estoppel should not be applied if the For defendants, the issue of timing in noti- debtor converted his bankruptcy case from inconsistencies are the result of “a good faith fying the court in a civil action of potential chapter 13 to chapter 7. At that time, the mistake rather than…part of a scheme to bankruptcy fraud committed by a debtor/ debtor filed new, updated schedules but again mislead the court,” the court determined plaintiff in a bankruptcy proceeding is cru- did not include the discrimination lawsuit. In that a “debtor’s failure to satisfy [his or her] cial. If the bankruptcy proceeding is still January 2001, the debtor received a “no statutory disclosure duty is inadvertent only ongoing, the debtor/plaintiff still has the asset” discharge of over $38,000 in debt. when, in general, the debtor either lacks opportunity to revise or amend the state- Neither the chapter 7 trustee nor any of the knowledge of the undisclosed claims or has ment of financial affairs that was filed in the debtor’s creditors knew about the lawsuit. no motive for their concealment.”35 In so bankruptcy court to “correct” a prior nondis- The defendant employer moved for sum- holding, the court rejected the debtor’s con- closure of a pending civil action. Once the mary judgment in the district court on the tentions that his failure to place the cause of bankruptcy proceeding is concluded, however, basis of judicial estoppel, and the court action on his schedules was inadvertent error. the opportunity to correct the nondisclosure granted the motion, concluding that judicial The court held that the debtor clearly virtually evaporates, and the plaintiff is estoppel barred the debtor from pursuing demonstrated his knowledge of the undis- exposed to critical scrutiny by the civil court his claims.32 closed cause of action because he had filed the to explain away the objective appearance of On appeal, the Eleventh Circuit held that discrimination lawsuit during the pendency fraud and deception. the doctrine of judicial estoppel precluded a of his chapter 13 bankruptcy proceeding and The recent decision of an Indiana appel- party from “asserting a claim in a legal pro- continued to pursue the claim when he con- late court in Morgan County Hospital v. ceeding that is inconsistent with a claim taken verted the case to a chapter 7 proceeding. The Maria Upham is instructive.37 Maria Upham, by that party in a previous proceeding.” court also determined that the debtor had a the surviving spouse and personal represen- Moreover, the doctrine is “an equitable con- motive to conceal the cause of action because tative of the estate of her decedent husband, cept intended to prevent the perversion of he probably would not have received a “no claimed that her husband died as a result of the judicial process” and “protect the integrity asset” discharge of his debts if the trustee, the malpractice committed by a hospital and its of the judicial process by prohibiting parties bankruptcy court, and his creditors had staff physicians. Before instituting the mal-

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Los Angeles Lawyer November 2008 29 practice action, Upham first brought an administrative claim in 1998 with the Indiana Elder Law & Nursing Home Department of Insurance against the same Abuse & Neglect defendants. During the course of the prelitigation administrative claim, Upham Law Offices of Steven Peck is seeking association or referrals for: responded to interrogatories under oath that 1) Nursing Home Abuse & Neglect (Dehydration, Bedsores, Falls, Death) she had never filed for bankruptcy. 2) Financial Abuse (Real Estate, Theft, Undue Influence) Following an adverse ruling and dismissal 3) Trust & Probate Litigation (Will Contests, Trusts, Beneficiaries) of her prelitigation administrative claim in 4) Catastrophic Injury (Brain, Spinal Cord, Aviation, Auto, etc.) 2001, Upham filed for chapter 13 bankruptcy 27 years of experience protection in June 2002. Five months later, she TOLL FREE 866.999.9085 LOCAL 818.908.0509 initiated the malpractice action. In January www.californiaeldercarelaw.com • www.premierlegal.org • [email protected] 2005, Upham filed an amended declaration in bankruptcy court concerning her finan- WE PAY REFERRAL FEES PURSUANT TO THE RULES OF THE STATE BAR OF CALIFORNIA cial affairs, in which she did not disclose the ongoing malpractice action. In September 2006, during her deposition in the malpractice action, Upham testified about the bankruptcy petition she had filed three years earlier in 2002. At the time of her testimony, the bankruptcy proceeding was still open and ongoing. One month later, Upham was successful in a motion to have the bankruptcy court issue an order specifying that any sums recovered in the malpractice action would be reported to the court and trustee for distribution to Upham’s creditors. Subsequently, the defendants in the malpractice action brought summary judgment motions on the grounds that Upham did not possess standing to sue and that she was judicially estopped from pursuing the action based on her failure to disclose it in her filings with the bankruptcy court. The court granted the motions, agreeing with the defense that Upham was judicially estopped from pursuing her malpractice suit based on the nondisclosure issue. Upham then brought a motion in the trial court for reconsideration and to correct the error. The motion was granted, thereby nul- lifying the summary judgments in favor of the defendants, and the order was affirmed on appeal. Citing Robson v. Texas Eastern,38 the court of appeal in Morgan initially noted the applicability of judicial estoppel when a debtor/plaintiff fails to disclose a cause of action as an asset in bankruptcy proceedings and then pursues the omitted cause of action in a subsequent civil lawsuit.39 The court then noted how an inference of bad faith arises when the party asserting judicial estoppel demonstrates that the plaintiff had knowledge of an unscheduled claim and a motive for concealment, notwithstanding the duty to disclose it. The court recognized that if the party asserting judicial estoppel establishes knowledge of a claim and motive for concealment by the debtor/plaintiff, the plaintiff then has the “burden of coming forth with evidence indicating that the nondisclosure was made in good faith.” However, the court also empha-

30 Los Angeles Lawyer November 2008 sized that while knowledge and motive are a client’s deceptive acts or conduct. 11 In re Colvin, 288 B.R. 477 (Bankr. E.D. Mich. 2003). 12 important in establishing judicial estoppel, Whether by mistake or intention, a debtor/ In re Baskowitz, 194 B.R. 839, 843 (Bankr. E.D. Mo. 1996). “the inquiry does not end there if the plaintiff who conceals a pending civil action 13 First Nat’l Bank v. Lasater, 196 U.S. 115 (1905). debtor/plaintiff comes forward with evidence in the context of a bankruptcy proceeding 14 11 U.S.C. §541(a)(1). indicating that the non-disclosure was made may lose any legal or equitable right to pur- 15 Rissetto v. Plumbers & Steamers Local 343, 94 F. 3d in good faith.”40 sue the civil action as a consequence of the 597, 600-01 (9th Cir. 1996); Russell v. Rolfs, 893 F. Applying these principles to the facts of the nondisclosure. While the timing of an attack 2d 1033, 1037 (9th Cir. 1990). 16 New Hampshire v. Maine, 532 U.S. 742 (2001). case, the appellate court in Morgan con- by the defense can be determinative of success 17 Id. at 749. curred with the trial court that Upham suf- on a dispositive motion brought in the trial 18 Id. at 750. ficiently explained her failure to amend her fil- court, eventually the issue must be addressed 19 Id. at 751. ings with the bankruptcy court to denote the with the court by counsel. ■ 20 Id. existence of the malpractice action prior to her 21 Hay v. First Interstate Bank, 978 F. 2d 555 (9th Cir. 1992). deposition in that action. The explanation, 1 11 U.S.C. §541(a)(1). 22 Id. at 556. 2 United States v. Whiting Pools, Inc., 462 U.S. 198 concomitant with the fact that her bank- 23 Id. at 557. (1983); Chao v. Hospital Staffing Servs., Inc., 270 F. ruptcy proceeding was still open and ongo- 24 Id. 3d 374 (6th Cir. 2002). ing, militated in favor of Upham and against 25 Hamilton v. State Farm Fire & Cas. Co., 270 F. 3d 3 In re Graham Square, Inc., 126 F. 3d 823 (6th Cir. 778 (9th Cir. 2001). the defendants’ judicial estoppel argument. 1997) (“Property of the estate includes the debtor’s 26 Id. at 780-81. The trial court’s order reversing the defen- interest in a cause of action.”) (citing In re Cotrell, 876 27 Id. at 781. F. 2d 540 (6th Cir. 1989)). dants’ summary judgment motions was thus 28 Id. 4 Tignor v. Parkinson, 729 F. 2d 977 (4th Cir. 1984); proper and affirmed on appeal. 29 Id. at 781-82. In re Merlino, 62 B.R. 836, 839 (Bankr. W.D. Wash. Considering the present economic climate, 30 Id. at 785. 1986); In re Linderman, 20 B.R. 826 (Bankr. W.D. 31 Burnes v. Pemco Aeroplex, Inc., 291 F. 3d 1282 (11th it is incumbent on defense lawyers to perform Wash. 1982). Cir. 2002). a bankruptcy background check on plaintiffs. 5 Owen v. Owen, 500 U.S. 305 (1991). 32 Id. at 1284. Arguably more important is the same back- 6 11 U.S.C. §522(b); Owen, 500 U.S. at 308 (“An 33 Id. at 1287. exemption is an interest withdrawn from the estate ground check performed by the attorney rep- 34 Id. at 1285. (and thus, from creditors) for the benefit of the debtor.”). resenting the plaintiff, to ensure that no undis- 35 Id. at 1287. 7 In re Degenaar, 261 B.R. 316 (Bankr. M.D. Fla. 36 Id. at 1288. closed pending or even former bankruptcy 2001). 37 Morgan County Hosp. v. Maria Upham, 884 N.E. proceeding is omitted from the intake history 8 11 U.S.C. §521(1); Browning v. Levy, 283 F. 3d 761 2d 275 (2008). by counsel. This due diligence is critical, con- (6th Cir. 2002). 38 Robson v. Texas E. Corp., 833 N.E. 2d 461 (2005). 9 Id. sidering no plaintiff’s lawyer wants to risk an 39 Morgan, 884 N.E. 2d at 280. 10 In re Coombs, 193 B.R. 557 (Bankr. S.D. Cal. 1996). involuntary dismissal of a civil action due to 40 Id.

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Los Angeles Lawyer November 2008 31 ✤

by Keith Paul Bishop SILVER STANDARD There are many benefits to incorporating in Nevada, but tax avoidance is not one of them

THE FIRST STEP in organizing any rate charters. Much less has been written office.6 The 1879 Constitution also prohib- U.S. corporation is to decide where to incor- about Nevada. Practitioners seeking to assist ited corporations from holding any real estate porate—and with 50 states offering their their corporate clients should be aware of for a period longer than ﬁve years except as charters, any systematic search for the best the key differences between California and necessary for carrying on their business.7 one quickly proves daunting. Lawyers and Nevada corporate law. In 1930, voters approved the removal of their clients most often limit their consider- California’s relationship with the corpo- several of these detailed provisions from the ation to just a handful of states, and if they rate form has been ambivalent at best. The constitution. The following year, California do consider a state other than the one in drafters of the original 1849 Constitution enacted its ﬁrst modern general corporation which they are resident, they most commonly imposed personal liability on stockholders by law. By that time, attitudes toward corpora- choose a Delaware charter.1 More recently, specifying that each stockholder of a corpo- tions had softened. More important, California however, Nevada has waged an aggressive and ration “shall be individually and personally had awakened to the fact that it was com- successful campaign to attract corporate char- liable for his proportion of all its debts and peting with other states for corporate charters. ters. By 1999, Nevada was second only to liabilities.”4 The 1879 Constitution sub- In fact, the draftsmen of the 1931 California Delaware when ranked by the national per- stantially expanded the provisions relating to General Corporation Law stated that their centage of out-of-state, publicly traded cor- corporations.5 In addition to continuing to primary object was to “put California on a porations.2 For publicly traded corporations place personal liability on stockholders for located in California, the order of preference corporate debts, the 1879 Constitution made Keith Paul Bishop is a partner in the Irvine office for charters has been Delaware, California, directors jointly and severally liable to cred- of Allen, Matkins, Leck, Gamble, Mallory & Natsis and Nevada.3 itors and stockholders for all moneys embez- LLP and an adjunct professor of law at Chapman Much has been written about the preem- zled or misappropriated by the officers of the University Law School. He formerly served as

inence of Delaware as an importer of corpo- corporation during the directors’ term of California’s commissioner of corporations. RON OVERMYER

32 Los Angeles Lawyer November 2008 competitive basis as to all legitimate corporate objective standard of conduct will be judicially ment funds), 452.270 (violation of laws per- advantages and facilities with Delaware, read into the Nevada statute. taining to mausoleums, vaults, or crypts), Nevada and other incorporating states….”8 California, on the other hand, requires 668.045 (receiving deposits of insolvent Nevada has been far friendlier to the cor- directors to act with due care in addition to banks), and 698A.030 (insider trading in an porate form. Nevada’s constitution, adopted good faith: insurer). In 2003, the Nevada Legislature in 1864 and still in effect, provides that “cor- A director shall perform the duties of amended Section 78.138(7) to permit a cor- porators in corporations formed under the a director, including duties as a mem- poration to provide for greater liability in laws of this State shall not be individually ber of any committee of the board articles of incorporation or an amendment to liable for the debts or liabilities of such cor- upon which the director may serve, in the articles filed on or after October 1, 2003. poration.”9 In the last few decades, the good faith, and in a manner such direc- Thus, Nevada now takes an opt-out ap- Nevada Legislature has been proactive in its tor believes to be in the best interests proach, while California and Delaware con- efforts to enact statutory provisions that are of the corporation and its sharehold- tinue to take an opt-in approach.16 alluring to those in search of a corporate ers and with such care, including rea- In addition to avoiding the necessity of charter. sonable inquiry, as an ordinarily pru- including an exculpatory provision in the Each organizer of a corporation has spe- dent person in a like position would articles of incorporation, Nevada’s law offers cific priorities and objectives for the corpo- use under similar circumstances.12 broader exculpation than does California’s. ration and for its internal structure and gov- By requiring good faith and imposing an Perhaps most significantly, Nevada’s law ernance. In many instances, lawyers may be “ordinarily prudent person” standard, exculpates directors and officers, whereas inclined to go with what they know—the California imposes both subjective and objec- California and Delaware permit exculpation corporation law of the state in which they and tive components to a director’s standard of only of directors. their clients happen to be located. Indeed, to care that contrasts with Nevada’s overtly California’s General Corporation Law do otherwise would require a lawyer to subjective standard. does not permit liability to be eliminated or expend time and effort in becoming familiar California purports to afford directors limited for acts or omissions that: with the general corporation law of another the protection of the business judgment rule, • Involve intentional misconduct or a know- jurisdiction. Moreover, lawyers are likely to which immunizes disinterested directors from ing and culpable violation of law. believe that there is less risk of error or sur- liability for the decisions that are made by • A director believes to be contrary to the prises due to their greater familiarity with their them in their capacity as directors.13 Nevada, best interests of the corporation or its share- home state’s law. Lawyers may also be con- in contrast, has its statutory good faith pre- holders. cerned about the cost and inconvenience of sumption.14 While the statute does not indi- • Involve the absence of good faith on the part litigation in another jurisdiction. cate whether this presumption can be re- of the director. When lawyers do look out of state, they butted, presumably a plaintiff would be • Show a reckless disregard for the direc- are likely to look for specific provisions such permitted to make a contrary evidentiary tor’s duty to the corporation or its share- as manager liability, voting rights, and anti- showing. holders in circumstances in which the direc- takeover provisions. The extent to which Because of the dearth of decisions apply- tor was aware, or should have been aware, in these provisions will be of interest or even ing Nevada’s unique statutory standard and the ordinary course of performing a director’s available depends upon whether the corpo- presumption, it is not possible to conclude duties, of a risk of serious injury to the cor- ration is publicly traded. with any degree of certainty that directors in poration or its shareholders. Nevada will be held to a lower standard than • Constitute an unexcused pattern of inat- Managerial Conduct directors of California and Delaware corpo- tention that amounts to abdication of the Both California and Nevada establish the rations. However, Nevada’s statute on its director’s duty to the corporation or its share- standard of care for directors by statute.10 face offers the prospect of a lower standard. holders.17 Beyond that similarity, California and Nevada California allows for the inclusion of a In addition, California’s law prohibits share very little in their approaches to man- provision in a corporation’s articles of incor- absolving a director from liability for: agerial conduct. In Nevada Revised Statutes poration that eliminates or limits the liabil- • Any transaction in which the director Section 78.138(1), Nevada expresses a direc- ity of directors. Until 2001, Nevada had also obtained an improper personal benefit. tor’s duty of care simply and succinctly: permitted such an exculpatory provision to be • Contracts in which the director has a mate- “Directors shall exercise their powers in good included in the articles. Thus, both states rial financial interest. faith and with a view to the interests of the had followed an opt-in approach to limiting • Improper distributions to shareholders or corporation.” In 1999, the Nevada Leg- the liability of directors. Now, in a significant improper loans.18 islature, at the behest of the Business Law break with California, Nevada automatically Thus, California’s statute permitting excul- Section of the State Bar of Nevada, amended relieves corporate directors and officers from pation of directors includes far more excep- Section 78.138 so that “directors and officers, liability to the corporation or its stockhold- tions than Nevada’s statute. in deciding upon matters of business, are ers for damages unless it is proven that: 1) the presumed to act in good faith, on an informed act or failure to act constituted a breach of Stockholder Voting Rights basis and with a view to the interests of the fiduciary duty, and 2) the breach involved Cumulative voting rights generally operate by corporation.”11 intentional misconduct, fraud, or a know- giving each stockholder a number of votes On its face, Nevada’s statutory standard ing violation of the law.15 equal to the number of shares multiplied by is subjective—that is, it addresses only a The Nevada law contains a number of the number of directors to be elected. The director’s state of mind rather than whether very specific exceptions. Thus, liability is not stockholder may then distribute these votes the director measures up against some exter- excluded under Nevada Revised Statutes among the directors in any manner in which nal standard. The Nevada Supreme Court Sections 35.230 (liability for judgment of the stockholder sees fit. The debate over the has not had occasion to explicate the mean- ouster), 90.660 (civil liability in connection merits of cumulative voting in the election of ing of “good faith” under Section 78.138. with sales of securities), 91.250 (commodity directors has been longstanding. Proponents Thus, it remains to be seen to what extent an law), 452.200 (unauthorized use of endow- of cumulative voting typically argue that cor-

34 Los Angeles Lawyer November 2008 porate performance is enhanced when minor- directors, the election of directors, and vol- deference to managerial decisions. Second, ity shareholders are able to attain some rep- untary dissolution.31 states can impose structural or procedural resentation on the board of directors.19 California imposes additional restrictions requirements that implicate management Opponents, on the other hand, argue that for widely held corporations that on or after involvement. Control share and business cumulative voting leads to divisiveness and January 1, 1989, filed or file an amendment combination laws are examples of these types special interest directors.20 to their articles or a certificate of determina- of requirements. These laws operate by deny- California has a strong historical bias in tion containing a supermajority vote provi- ing opportunities or rights to those who try favor of cumulative voting in the election of sion. If a corporation has outstanding shares to acquire a corporation without negotiating directors. In fact, California’s 1879 Constit- held of record by 100 or more persons, the with the target’s board of directors. ution enshrined cumulative voting as a consti- supermajority vote requirement cannot exceed Stockholder rights plans or “poison pills” 21 2 tutional right. The 1931 California General 66 ⁄3 percent of the outstanding shares, or are takeover defenses that were first con- Corporation Law continued mandatory cumulative voting.22 When the current Cali- fornia General Corporation Law was intro- duced, it contained a provision allowing a corporation to opt out of cumulative voting, but the bill was amended to include mandatory cumulative voting.23 Nevada does not mandate cumulative voting in the election of directors. Instead, it permits a corporation to confer cumulative voting rights by including a provision in the certificate (articles) of incorporation.24 Because cumulative voting has been strongly disfavored by publicly traded corporations, California relaxed its cumulative voting mandate in 1989 by enacting an exception for “listed corporations.”25 The Corp- orations Code defines a “listed corporation” as a corporation with outstanding shares listed on the New York Stock Exchange, the American Stock Exchange, or the National Market System of the Nasdaq Stock Market (or any successor to that entity).26 These corporations may eliminate cumulative voting by amending their articles of incorporation.27 2 Closely held corporations use superma- 66 ⁄3 percent of the outstanding shares of any ceived over a quarter century ago but still jority voting power to balance the relative class or series of those shares.32 These limi- remain popular.34 They are not creations of voting powers of investors. Supermajority tations do not apply to a corporation that filed statute but arrangements established by a voting requirements have also enjoyed pop- or files an amendment of articles or certificate company’s board of directors—typically with- ularity with publicly traded companies due of determination on or after January 1, 1994, out the affirmative assent of the owners. The to their utility as antitakeover devices. For if, at the time of filing, the corporation has 1) Delaware Chancery Court has provided an example, a supermajority provision may outstanding shares of more than one class or overview of the structure and operation of a require the affirmative vote of at least 90 per- series of stock, 2) no class of equity securities stockholder rights plan: cent of the outstanding shares to approve a registered under Section 12(b) or 12(g) of Under the Plan each shareholder merger.28 Although the individual voting the Securities Exchange Act of 1934, and 3) receives one right for each share of rights of each share remain unchanged under outstanding shares of record held by fewer common outstanding. The right, which a supermajority voting provision, minority than 300 persons.33 has a term of ten years, entitles the stockholders may have significantly increased holder to buy one hundredth of a share power because a higher vote requirement Antitakeover Provisions of a new series of participating pre- will allow them to block certain corporate Takeover defense is an issue that primarily ferred stock. The new preferred would transactions. concerns widely held firms. In closely held be nonredeemable and subordinate to Nevada allows supermajority voting pro- firms there is often little or no separation of other series of the Company’s pre- visions to be included in either the articles of capital and management. Thus, there is less ferred stock. Its dividend right is tied incorporation or the bylaws.29 Further, there likelihood for the interests of the owners and to the dividend for common at the is seemingly no limitation on these provi- the managers to diverge. rate of 100 times the dividend declared sions. States can enhance or diminish the capac- on common stock. Its liquidation pref- California law is much more restrictive. ity of corporate managers to intervene in erence is similarly linked to payment The articles may include a provision requir- corporate control transactions in primarily received by common shareholders. The ing a supermajority vote of any class or series two ways. First, states can adopt legal schemes exercise price for the preferred, $100 of stock for any or all corporation actions.30 that have the effect of validating or invali- for 1/100 of a share, or $10,000 per There are several exceptions, however, to dating managerial actions. Examples of val- share, is conceded to be “out of the this general rule. Thus, a supermajority vote idating schemes include legislative or judicial money” in view of the current $1.75 cannot be imposed regarding the removal of endorsement of stockholder rights plans or dividend yield on Household common

Los Angeles Lawyer November 2008 35 which has traded in recent months in A nearly identical statement is also found exercise of the rights of stockholders to vote a range of $30 to $33. The real impact in Nevada Revised Statutes Section 78.350(4), for or remove directors.44 Thus, the propor- of the rights is to be found in their which governs the voting rights of stock- tionality prong of the Unocal standard does “triggering” and “flip-over” features holders. Further, Section 78.378(3) provides not apply to other antitakeover actions of the which have led to their being labeled that nothing in Nevada’s control share law board of directors. These actions are subject as “poison pills.” prohibits signing plans, arrangements, or to the general standard of care set forth in The rights detach and may be exer- instruments that deny rights, privileges, power, Section 78.138(1) and have the benefit of cised only if certain triggering events, or authority to a holder of a specified num- the business-judgment-rule presumption cod- referred to as the 20% and 30% ber of shares or percentage of share owner- ified in Section 78.138(3). events, occur. Prior to the occurrence ship or voting power. While these provisions In 1987, the Nevada Legislature adopted of any of these events the rights are not provide strong evidence of the Nevada a control share law that was patterned after transferable apart from the common Legislature’s attempt to validate stockholder a similar law adopted the previous year by stock to which they are affixed. Thus rights plans, they do not necessarily fore- Indiana. This action closely followed the U.S. if a person (a) acquires 20% of House- close challenges to director action in adopt- Supreme Court’s decision to uphold the con- hold’s common shares or (b) achieves ing or implementing a plan. Further, Nevada stitutionality of the Indiana statute.45 the right to purchase 20% or (c) is far from the only state to have statutorily Nevada’s control share law operates by pro- achieves the right to vote 20% or (d) endorsed shareholder rights plans.37 viding that an “acquiring person” and its announces the formation of a group of The status of stockholder rights plans is associates obtain voting rights in “control persons holding 20% to act together, far less clear under the California Corpora- shares” only to the extent conferred by a the rights are triggered. The 30% trig- tions Code, which is devoid of any analogue vote of the stockholders. The statute also gering event occurs upon the to the Nevada statutes that are applicable to provides for redemption of control shares in announcement of a tender offer or the plans. A stockholder rights plan could be certain circumstances. exchange offer for 30% of Household’s challenged on the basis of Corporations Code Nevada also has had a business combi- outstanding stock. Section 203, which mandates equality of nation law on the books since 1991. This Once a triggering event has treatment: “Except as specified in the articles law, like the control share law, is patterned occurred the rights may be exchanged or in any shareholders’ agreement, no dis- after Indiana’s statute. Generally, the law for the new preferred upon the pay- tinction shall exist between classes or series operates to prohibit certain combinations ment of the exercise price. Moreover, of shares or the holders thereof.”38 None- between a corporation and an interested if a merger or consolidation occurs theless, this has not prevented California cor- stockholder for a three-year period. After under the terms of which Household’s porations from implementing stockholder this three-year moratorium, combinations common shares are exchanged for rights plans.39 Section 203 as well as the with an interested stockholder are permit- securities of the acquiror, the right absence of any judicial precedent upholding ted if certain qualitative and quantitative “flips-over” and enables the holder, stockholder rights plans cast a significant conditions are met. California is among the at the then exercise price of the right, shadow upon the enforceability of these minority of states that has not adopted either to purchase common stock of the plans.40 a control share or business combination law.46 acquiror at a price reflecting a market In a very influential decision, the Delaware value of twice the exercise price of the Supreme Court in 1985 applied a heightened California’s Extraterritorial Reach right. Thus the right holder would be scrutiny standard to board actions taken in In deciding whether to advise clients to incor- entitled to purchase $200 worth of response to takeover threats. In Unocal porate outside of California, practitioners the acquiror’s common for $100. The Corporation v. Mesa Petroleum Company, the must consider the California statutes that resultant dilution of the acquiror’s cap- court held that a board of directors will be purport to impose various provisions of the ital is immediate and devastating.35 afforded the benefit of the business judgment state’s General Corporation Law on foreign The court’s description makes it clear rule if it can show that it had reasonable corporations. Corporations Code Section that shareholder rights plans are effective grounds for believing that a threat existed and 2115, the most far-reaching of these statutes, because they discriminate against specific that its response was proportional to the has been a part of California’s General shareholders. The discriminatory nature of threat.41 The Nevada Supreme Court has not Corporation Law since the law was enacted a shareholder rights plan constitutes both applied the Unocal standard to boards of more than a quarter century ago. The logic its operative mechanism and its legal vul- Nevada corporations. However, in 1997, a behind Section 2115 is straightforward: If a nerability. U.S. District Court in Nevada applied the foreign corporation has a majority of its con- Nevada has enacted several statutory pro- Unocal standard to actions taken by the tacts with California, then California has an visions that directly address the legal viabil- directors of ITT Corporation in response to interest in applying its corporate laws to the ity of shareholder rights plans. The provisions a hostile tender offer made by Hilton Hotels corporation even if that corporation has been of Nevada Revised Statutes Section 78.195(5), Corporation.42 organized in another state.47 which apply to the issuance of shares of more Shortly after the Hilton decision, the The tests that California has established than one class or series, “do not restrict the Nevada Legislature enacted S.B. 61, which to implement this premise are also straight- directors of a corporation from taking action codified but also limited the Unocal stan- forward. Essentially there are two. The first to protect the interests of the corporation dard.43 Nevada practitioners had been con- test is met when persons having addresses in and its stockholders, including, but not lim- cerned about the possible broad application California hold more than 50 percent of the ited to, adopting or signing plans, arrange- of Unocal to change-in-control situations corporation’s outstanding voting securities. ments or instruments that grant rights to involving Nevada corporations. Under The second test focuses on where a corpora- stockholders or that deny rights, privileges, Nevada Revised Statutes Section 78.139, the tion does most of its business. This test is met power or authority to a holder of a specified second prong of the Unocal standard, which when the average of the corporation’s payroll, number of shares or percentage of share own- requires a proportional response, will be property, and sales factors are more than 50 ership or voting power.”36 applied if, and only if, the action impedes the percent for the latest full income year. These

36 Los Angeles Lawyer November 2008 factors are reported on the corporation’s sion and argues that it is intended not so source of concern for privately held corpo- California franchise tax return.48 much to persuade but “to deter other states, rations, for two reasons. First, a privately If both of these tests are met, then Section such as California and New York, from seek- held corporation located in California will 2115 specifies numerous provisions of the ing to regulate the affairs of Delaware entities, more likely satisfy the criteria for the appli- General Corporation Law that will apply to or, in the alternative, to create the very con- cation of the statute. Second, Section 2115 the corporation “to the exclusion of the law ditions which might convince federal actors to does not apply to corporations that either of the jurisdiction in which it is incorpo- prevent other states from doing so.”54 have outstanding securities listed on the rated.” These include provisions relating to California courts are likely to be more New York Stock Exchange or the American directors (i.e., annual election, removal, fill- deferential to California law. Moreover, it Stock Exchange or are designated as quali- ing of vacancies, standard of care, indemni- remains to be seen whether the courts will fied for trading on the Nasdaq National fication, and liability for improper distribu- conclude that every California corporate Market.56 tions to shareholders); limitations on statute imposed on a foreign corporation Proponents of incorporating in Nevada corporate distributions; shareholders (i.e., involves the corporation’s “internal affairs.”55 often tout the fact that Nevada has no cor- liability for unlawful distributions, annual In the meantime, practitioners should be porate income tax.57 Accordingly, some busi- meeting requirement, cumulative voting, lim- braced for races to the courthouse. ness owners may be led to believe that they itations on supermajority voting); corporate In most cases, Section 2115 will be a can avoid paying California franchise tax transactions (i.e., limitations on sales of assets, mergers and conversions, requirements for conversions, reorganizations, and dissenters’ rights); records and reports; and rights of inspection. In addition, Section 2115 subjects a foreign corporation to the possibility Resident Agents of suit by the California attorney general for violations of specified provisions of the General Corporation Law. of Nevada, Inc. While Section 2115 is the most expansive of California’s outreach statutes, it is not the only provision of the General Corporation www.nevada.org Law that requires the application of California law. Thus, California’s statute governing inspection of the share register is available to Commercial Registered Agents shareholders of a foreign corporation that Member, Nevada Registered Agent Association has its principal executive offices in California or that customarily holds meetings of its Professionals in Forming Corporations & LLCs 49 board of directors in California. California Attorney Owned & Managed Since 1995 extends to directors of the same foreign corporations the absolute right to inspect corporate records.50 In addition, California provides shareholders of a foreign corporation the BASIC FORMATION PACKAGE – $250.00 right to inspect accounting books and records INCLUDES: and corporate minutes if the corporation Secretary of State Article Minimum Filing Fee maintains those records or its principal exec- Review & Handling utive offices in California.51 Finally, Califor- Registered Agent Fee nia’s requirement that a corporation provide an annual report to its shareholders is applicable to a foreign corporation that either main- LAWYER SPECIAL – $225.00 tains its principal executive office in or cus- Annual Registered Agent fee – $100.00 tomarily holds meetings of its board of directors in California.52 To the extent that any of these California outreach statutes applies, a corporation organized in Nevada may be subject to the very TEL 775.882.4641 California law provisions that it is seeking to FAX 775.882.6818 escape—including cumulative voting, for EMAIL [email protected] example. Recently, the Delaware Supreme Court refused to apply Section 2115 based on the “internal affairs doctrine,”53 which requires that the law of the state of incorporation govern the internal affairs of a corporation. While this decision strongly suggests that the Delaware courts will pay little respect

to California’s outreach statutes, it is not the www.nevada.org 711 S. CARSON ST., SUITE 4, CARSON CITY, NEVADA 89701 last word. Indeed, at least one legal scholar criticizes the Delaware Supreme Court’s deci-

Los Angeles Lawyer November 2008 37 simply by incorporating their California busi- 10 California’s General Corporation Law prescribes the ness in Nevada. However, this is pure standard of care for directors but not officers. HAROLD Incorporate in codswallop. A business that has business MARSH, JR., R. ROY FINKLE, & LARRY SONSINI, MARSH’S CALIFORNIA CORPORATION LAW §11.02 (4th ed. 2001) Delaware income from sources both within and outside (“The statute does not purport to specify the duties of California is required to apportion its income officers of a corporation….”). However, some statu- REGISTERED AGENTS SINCE 1978 and pay California tax. The portion of the tory standards applicable to officers can be found in statutes governing the relationships between principal Delaware Corporation or LLC corporation’s total income that has its source in California is determined under Revenue and agent. See, e.g., LAB. CODE §§2850-66 (governing filed in 24 hours. the obligations of employees to employers). and Taxation Code Sections 25120 through 11 1999 Nev. Stat. ch. 357. See Minutes of the Nevada CREDIT CARDS ACCEPTED 25141. In addition, a corporation with a Senate Committee on Judiciary, Feb. 3, 1999, Exhibit California “commercial domicile” is subject D. Global Corporate Services, Inc. to California tax on any income that is not 12 CORP. CODE §309. 13 www.global-inter.net subject to apportionment.58 Thus, a corpo- See Gaillard v. Natomas Co., 208 Cal. App. 3d 1250, 1264 (1989) (incorrectly describing Corporations (877) DELCORP ration that does business in California cannot Code §309 as “codifying California’s business judg- escape California taxation by incorporating ment rule”); MARSH, FINKLE & SONSINI, supra note 10, in another state. The California Franchise at §11.03[A] (“[I]t is highly doubtful that the California Tax Board is well aware of the use of Nevada courts will hold that [Section 309] was intended to abol- corporations to avoid California tax and has ish the business judgment rule….”). See also 1975 even published a form titled “Don’t Gamble Assembly Committee Comment to Section 309: “It is intended that a person who performs his duties as a with Your Taxes: Read the Fine Print about director in accordance with this standard shall have no Incorporating in Nevada.”59 liability by reason of being or having been a director.” California remains a popular chartering 14 NEV. REV. STAT. §78.138(3). state for privately held firms located in 15 NEV. REV. STAT. §78.138(7), added by S.B. 577, 2001 California. However, it has proven remark- Nev. Stat. ch. 601. 16 2003 Nev. Stat. ch. 485. ably ineffectual in retaining the charters of 17 CORP. CODE §§204(a)(10), 309(c). publicly traded corporations located in the 18 CORP. CODE §204(a)(10). state. While Delaware continues to attract 19 Sanjai Bhagat & James A. Brickley, Cumulative an overwhelming percentage of these emi- Voting: The Value of Minority Shareholder Voting grant corporations, Nevada has established Rights, 27 J.L. & ECON. 339 (1984). 20 Ralph E. Axley, The Case against Cumulative Voting, itself as a viable second choice. Because the 1950 WIS. L. REV. 278 (1950). reasons for going out of state will vary from 21 CAL. CONST. of 1879, art. XII, §12 (repealed). firm to firm, there is no single right answer 22 Ballantine, supra note 8, at 484. to the question of where a business should 23 MARSH, FINKLE & SONSINI, supra note 10, at §12.02. incorporate. For those firms looking for a California’s attachment to cumulative voting is so strong that governmental bodies are statutorily obli- significantly different approach to Cali- gated to vote for resolutions authorizing cumulative fornia, a Nevada corporate charter is worth voting. GOV’T CODE §6900. considering. ■ 24 NEV. REV. STAT. §78.360. Delaware takes a similar opt-in approach to cumulative voting. DEL. CODE 1 Lucian Bebchuk & Alma Cohen, Firms Decisions ANN., tit. 8, §214. 25 ORP ODE Where to Incorporate, 46 J. LAW & ECON. 383, 392- 1989 Cal. Stat. ch. 876, §2 (adding C . C 93 (2003). The data produced by these two authors §301.5). 26 show that in the case of California headquartered, CORP. CODE §301.5(d). On January 13, 2006, the publicly traded corporations, Delaware as of the end Securities and Exchange Commission issued an order of 1999 represented over 91 percent of the out-of-state approving the application of the Nasdaq Stock Market, charters. Inc., to register one of its subsidiaries, The Nasdaq 2 Despite achieving second place, Nevada still lags far Stock Market LLC, as a national securities exchange. behind Delaware. Nevada claims only 2.66% of out- SEC Rel. No. 34-53128, 71 FR 3550 (Jan. 13, 2006). Rachel Payeur-Narine As the successor to the Nasdaq Stock Market, NAS- Leukemia Survivor of-state, publicly traded corporations. Yet, this places Nevada significantly ahead of California, which claims DAQ Stock Market LLC has operated as a national a minuscule .19% of out-of-state publicly traded cor- securities exchange since August 1, 2006. In addition, A Legacy From Your Client porations. Id. at 395. During the periods of 1980 to the Nasdaq National Market was renamed the NAS- Can Help Us Find The Cure. 1989 and 1990 to 1999, Nevada also ranked a distant DAQ Global Market effective July 1, 2006. The NAS- DAQ Global Market now contains two tiers: NASDAQ In 1964, 3 percent of children with second behind Delaware (and well ahead of California) in attracting incorporations among a sample of initial Global Market and NASDAQ Global Select Market. acute lymphocytic leukemia lived California has not yet amended the statute to reflect five years. Today, more than 87 public offerings. Robert Daines, The Incorporation Choices of IPO Firms, 77 N.Y.U. L. REV. 1559, 1583 these changes. percent survive. 27 (2002). CORP. CODE §301.5(a). 28 Many research programs that made this 3 Bebchuk & Cohen, supra note 1, at 392-93. For an in-depth discussion of the history and role of supermajority voting rules, see Brett W. King, The possible were funded by people who 4 CAL. CONST. of 1849, art. IV, §36. included the Society in their estate plan. 5 Article XII of the 1879 Constitution devoted 16 sec- Use of Supermajority Voting Rules in Corporate tions specifically to corporations in general and another America: Majority Rule, Corporate Legitimacy, and For information about bequests, seven to railroad and transportation companies. Minority Shareholder Protection, 21 DEL. J. CORP. L. contact us at 888.773.9958 or 6 CAL. CONST. of 1879, art. XII, §3. 895 (1996). 29 [email protected]. 7 Id. at art. XII, §9. NEV. REV. STAT. §78.320(1). However, there is 8 Henry W. Ballantine, Questions of Policy in Drafting some question about the effectiveness of placing super- a Modern Corporation Law: California General majority voting provisions in the bylaws alone. 30 ORP ODE Corporation Law (1931), 19 CAL. L. REV. 465, 466 C . C §204(a)(5). 31 (1931). Id. A supermajority vote requirement (not to exceed 2 9 NEV. CONST. art. 8, §3. 66 ⁄3%) may be imposed for a class or series of preferred

38 Los Angeles Lawyer November 2008 shares designated as “preferred” or “preference” regarding voluntary dissolution. CORP. CODE §402.5. 32 CORP. CODE §710. The determination of the number of persons holding shares of record must be made in accordance with Corporations Code §605. 33 CORP. CODE §710(c). This exception was added at the request of the Business Law Section of the California State Bar for the purpose of allowing supermajority vote provisions in late round venture capital financings. S.B. 497 (Beverly), California Senate Floor Analysis, Apr. 13, 1993, available at http://www.leginfo.ca .gov/pub/93-94/bill/sen/sb_0451-0500/sb_479_cfa _930413_111241_sen_floor. 34 Martin Lipton fathered the stockholder rights plan in 1982 with the publication of a memorandum titled “Warrant Dividend Plan.” Martin Lipton & Paul K. Dan F. Oakes Rowe, Pills, Polls and Professors: A Reply to Professor Bernadette M. Duran Gilson, 27 DEL. J. CORP. L. 1, 9 (2002). 35 Moran v. Household Int’l, Inc., 490 A. 2d 1059, 1066 (Del. Ch. 1985). 36 Over the years, the Nevada Legislature has made minor refinements to the wording of the statute. For example, the phrase “or grants rights” was added in 2001 for the apparent purpose of clarifying that discrimination could be either positive or negative. 2001 Nev. Stat. ch. 296, §10. In 2003, the legislature substituted the word “signing” for “executing,” even though directors do not typically execute or sign stockholder rights plans qua directors. 2003 Stat. ch. 485, §27. 37 See Guhan Subramanian, The Influence of Anti- takeover Statutes on Incorporation Choice: Evidence of the “Race” Debate and Antitakeover Overreaching, 150 U. PENN. L. REV. 1795, 1813-14 (2002) (listing 24 other states with statutory endorsement of shareholder rights plans). 38 The reference in the statute to a “shareholders agreement” is not to any agreement among or with the shareholders. Rather, the term means a written agreement among all the shareholders of a close corporation, or if a close corporation has only one shareholder, between that shareholder and the corporation. CORP. CODE §186. 39 For example, Cisco Systems, Inc., a California corporation, adopted a shareholder rights plan in 1998 that it terminated in 2005. Securities & Exchange Commission Form 8-K (filed Mar. 30, 2005). 40 In 1997 Emeritus Corporation filed an action for injunctive and declaratory relief against ARV Assisted Living, Inc., challenging the validity of its shareholder rights plan. Among other things, the complaint alleged that the rights plan violated Corporations Code §§203 and 400 “in that under the terms of the pill [rights plan] all shares of ARV are not granted the same rights, preferences, privileges and restrictions.” Emeritus Corp. v. ARV Assisted Living, Inc., O.C. Super. Ct. Case No. 787788 (Dec. 9, 1997), filed as an exhibit to Schedule 14d-1 by Emeritus Corporation with the Securities and Exchange Commission, Dec. 19, 1997, available at: http://www.sec.gov/Archives/edgar/data/949322 /0000950103-97-000758.txt. The lawsuit did not result in a reported decision addressing the validity of shareholder rights plans. 41 Unocal Corp. v. Mesa Petroleum Co., 493 A. 2d 946 (Del. 1985). 42 Hilton Hotels Corp. v. ITT Corp., 978 F. Supp. 1342 (D. Nev. 1997). See Keith Paul Bishop, Battle for Control of ITT Corporation Spotlights Nevada (and Delaware) Corporate Law: Did Nevada Law Get Stockholders a Better Deal? 12 INSIGHTS 15 (1998). 43 1999 Nev. Stat. ch. 357, §58. 44 See Minutes of the Nevada Senate Committee on Judiciary, Feb. 3, 1999 (“Both standards are established under Delaware law. Mr. Fowler [chairman, Business Law Section, State Bar of Nevada] stated they wanted to make sure that the directors did not have this higher duty in a take-over situation unless they take an action

Los Angeles Lawyer November 2008 39

that might impede the right of stockholders to vote for or against their staying in office as directors. He said he thought the directors should have the benefit of the business judgment rule until they do something that might impede the right of stockholders to vote for directors.”). 45 CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 107 S. Ct. 1637 (1987). The Indiana statute is often referred to as a “second generation” of takeover statute. The “first generation” antitakeover statutes generally operated by requiring disclosure of specific information and slowing down the process. See Edgar v. MITE Corp., 457 U.S. 634 (1982) (striking down the first generation Illinois antitakeover law). 46 See Subramanian, supra note 37, at 1813-14 (listing 27 states with control share laws). 47 California’s General Corporation Law establishes an elaborate taxonomy of corporations. A “domestic corporation” is a corporation formed under the laws of California. CORP. CODE §162. The term “foreign corporation” generally refers to any corporation other than a domestic corporation. CORP. CODE §171. The term “corporation” is also frequently used and defined to mean only a corporation organized under the California General Corporation Law (as opposed, for example, to corporations organized under California’s nonprofit corporations law) and certain other domestic corporations. CORP. CODE §162. 48 The factors are fractions defined in California’s Revenue and Taxation Code that are used to apportion taxes when a corporation has business activities that are taxable in California as well as outside California. See text, infra. Thus, a corporation’s “property factor” is a fraction, the numerator of which is the average value of the corporation’s real and tangible personal property owned or rented and used in California during the taxable year, and the denominator of which is the average value of all the corporation’s real and tangible personal property owned or rented and used during the taxable year. A corporation’s “payroll factor” is a fraction, the numerator of which is the total amount paid in California during the taxable year by the corporation for compensation, and the denominator of which is the total compensation paid everywhere during the taxable year. REV. & TAX CODE §25132. A corporation’s “sales factor” is a fraction, the numerator of which is the total sales of the corporation in California during the taxable year, and the denominator of which is the total sales of the corporation everywhere during the taxable year. REV. & TAX CODE §25134. 49 CORP. CODE §1600(d). 50 CORP. CODE §1602. (949) 388-0524 51 CORP. CODE §1601(a). 52 CORP. CODE §1501(g). 53 VantagePoint Venture Partners 1996 v. Examen, Inc., 871 A. 2d 1108 (Del. 2005). 54 Timothy Glynn, Delaware’s Vantagepoint: The Empire Strikes Back in the Post-Post-Enron Era, 102 NW. U. L. REV. 91, 95 (2008). Seeking an Experienced Arbitrator/Mediator? 55 See Keith Paul Bishop, The War between the States— Delaware’s Supreme Court Ignores California’s Corporate Outreach Statute, 19 INSIGHTS 19 (July 2005). STEVEN RICHARD SAUER, ESQ. 56 CORP. CODE § 2115(c). See note 26, supra (California COUNSELOR AT LAW • SINCE 1974 has not yet updated the Corporations Code to reflect the conversion of Nasdaq to an exchange.). “He is truly a master in his art.” 57 The Nevada Secretary of State Web site cites the lack of corporate income taxes in response to the ques- 6,000 tion, “Why incorporate in Nevada?” See http://sos Settled over 5,000 Federal and State Litigated Cases .state.nv.us/business/comm_rec/whyinc.asp. 58 “Commercial domicile” means the principal place from which the trade or business of the taxpayer is TELEPHONE ■ E-MAIL 323.933.6833 [email protected] directed or managed. REV. & TAX. CODE §25120(b). 4929 WILSHIRE BOULEVARD, SUITE 740, LOS ANGELES, CALIFORNIA 90010 59 Available at http://www.ftb.ca.gov/forms/misc /689.pdf.

42 Los Angeles Lawyer November 2008 The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

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Profile: Acci- and intangible asset valuations, appraisals, fraud investi- dent reconstruction, failure analysis, traffic, and trans- real estate consulting group (established 1973). Experi- enced litigation consultants/experts include senior gations, statistics, forensic economic analysis, royalty au- portation. Engineering: auto/truck/train/ped/bike/cycle dits, strategic and market assessments, computer foren- accidents. See display ad on page 51. bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending cus- sics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and WILLIAM KUNZMAN, PE toms, practices, policies, in all types of lending (real estate, subprime, business/commercial, construction, con- MBAs in accounting, finance, economics, and related 1111 Town and Country #34, Orange, CA 92868, subjects. See display ad on page 1. (714) 973-8383, fax (714) 973-8821, e-mail: mail sumer/credit card), banking operations/administration, @traffic-engineer.com. Web site: www.traffic-engineer trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages GLENN M. GELMAN & ASSOCIATES .com. Contact William Kunzman, PE. Traffic expert CERTIFIED PUBLIC ACCOUNTANTS AND witness since 1979, both defense and plaintiff. Auto, and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance. BUSINESS CONSULTANTS pedestrian, bicycle, and motorcycle accidents. Largest 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- verdict: $10,300,000 in pedestrian accident case against 2600, fax (714) 667-2636. Web site: www.gmgcpa.com. Los Angeles Unified School District. Largest settlement: THE CAPANALYSIS GROUP, LLC 550 South Hope Street, Suite 1100, Los Angeles, CA Contact Glenn Gelman. Expert witness testimony, $2,000,000 solo vehicle accident case against Caltrans. strategy development, document discovery, deposition Before becoming expert witnesses, employed by Los An- 90071, (213) 892-2500, fax (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis assistance, computation of damages, arbitration consult- geles County Road Department, Riverside County Road ing, forensic accounting, investigative auditing, rebuttal Department, City of Irvine, and Federal Highway Adminis- .com. Contact Evy M. Wild, BS, JD. Specialties: economic, financial, accounting, and statistical analysis for testimony, fiduciary accountings, and trial exhibit tration. Knowledge of governmental agency procedures, preparation. design, geometrics, signs, traffic controls, maintenance, complex litigation, arbitration, regulatory proceedings, and and pedestrian protection barriers. Hundreds of cases. strategic corporate decision making. Assist attorneys with discovery, identification of relevant economic and financial GURSEY, SCHNEIDER & CO., LLP Undergraduate work—UCLA; graduate work—Yale Uni- 1888 Century Park East, Suite 900, Los Angeles, CA versity. issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state 90067, (310) 552-0960, fax (310) 557-3468, e-mail: courts, and before the FTC and DOJ. Handle matters be- [email protected]. Web site: www.gursey.com. MR. TRUCK ACCIDENT INVESTIGATION & Contact Roseanna Purzycki. Forensic accounting and RECONSTRUCTION fore the EC, the ITC, and the U.S. court of International Trade. Areas of expertise include antitrust (including cut- litigation support services in the areas of marital dissolu- P.O. Box 398, Brentwood, CA 94513-0398, (800) 337- tion, civil litigation, business valuation and appraisal, 4994, fax (925) 625-4995, e-mail: william@mrtruckar ting-edge analyses of market definition, market power, coordinated interactions, and unilateral effects), economic goodwill, business disputes, malpractice, tax matters, .com. Contact William M. Jones. Accident analysis and bankruptcy, damage and cost-profit assessments, insur- reconstruction. Court-qualified expert witness regarding damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including ance claims, court accounting, tracing, and entertainment car vs. car, truck vs. car cases, trucking industry safety, industry litigation. See display ad on page 50. and driver training issues, including Power Point court patent, trademark, and copyright infringement, and valua- presentations. See display ad on page 61. tion of intellectual property), insurance coverage, contract

Los Angeles Lawyer November 2008 43 HARGRAVE & HARGRAVE tax controversy/negotiations. Industries include service, CA 90064-1151, (310) 826-1040, fax (310) 826-1065. 520 Broadway, Suite 680, Santa Monica, CA 90401, professionals, medical, manufacturing, distribution, real Web site: www.zsscpa.com. Contact Lester J. (310) 576-1090, fax (310) 576-1080, e-mail: terry estate, construction, escrow, and title. Schwartz, CPA, DABFE, DABFA, Michael D. Salts- @taxwizard.com. Web site: www.taxwizard.com. Con- man, CPA, MBA, David L. Bass, CPA, David Dichner, tact Terry M. Hargrave, CPA/ABV, CFE. Litigation ser- STEINWALD & KAUFMAN, CERTIFIED PUB- CPA, ABV, CVA, Sandy Green, CPA. Accounting ex- vices for family law and civil cases. Past chair of California LIC ACCOUNTANTS perts in forensic accounting, tax issues, business valua- Society of CPAs’ Family Law Section, business valuation Wilshire Bundy Plaza, 12121 Wilshire Boulevard, Suite tions, and appraisals, marital dissolutions, eminent do- instructor for California CPA Foundation. Services include 501, Los Angeles, CA 90025, (310) 207-9980, fax (310) main, insurance losses, business interruption, goodwill, business valuations, income available for support, tracing 207-5179. Contact Eric R. Steinwald, CPA. Forensic economic analysis, investigative auditing, loss of earning, separate property, litigation consulting, real estate litiga- accounting specialists with more than 25 years of experi- commercial damages, and lost profits. Expert witness tion, mediation, fraud investigations, damage calculation, ence. The firm’s emphasis is on expert testimony, litiga- testimony preparation, settlement negotiations, and con- and other forensic accounting work. tion support, forensic accounting, insurance defense, sultations. See display ad on page 49. family law, insurance loss recover, business valuation, KRYCLER, ERVIN, TAUBMAN, & WALHEIM loss of income, and bad faith damage. See display ad ACCOUNTING MALPRACTICE 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, on page 49. CA 91403, (818) 995-1040, fax (818) 995-4124. Web MAYER HOFFMAN MCCAIN PC site: [email protected]. Contact Michael J. Krycler. STONEFIELD JOSEPHSON 11601 Wilshire Boulevard, Suite 2300, Los Angeles, CA Litigation support, including forensic accounting, business Forensic Advisory Services. 2049 Century Park East, 90025, (310) 268-2000, fax (310) 268-2001, e-mail: appraisals, family law accounting, business and profes- Suite 400, Los Angeles, CA 90067. (866) 225-4511 toll [email protected]. Web site: www.MHM-PC.com, sional valuations, damages, fraud investigations, and lost free. Web site: www.sjaccounting.com. The Stonefield www.CBIZ.com. Contact Steve Franklin. Specializes in earnings. Krycler, Ervin, Taubman & Walheim is a full-ser- Josephson Forensic Advisory Services group provides business litigation; business valuation and appraisal, mari- vice accounting firm serving the legal community for more accounting experts to support your litigation, valuation, tal dissolutions, transactional due diligence, financial re- than 20 years. See display ad on page 65. bankruptcy, fraud investigation and risk assessment, third construction, fraud investigation, family limited partner- party audit and other forensic accounting needs. As one ships, commercial damage and lost profits computations DIANA G. LESGART, CPA, CFE, CVA, of the largest CPA firms based in California with six offices and business interruption. Experienced expert testimony AN ACCOUNTANCY CORP. and a global network of affiliated offices, we have the ex- and tax controversy representation. 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, perience and skills you want. We serve all industries with (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 extremely strong expertise in entertainment, intellectual ACOUSTICS & VIBRATION @msn.com. Contact Diana G. Lesgart, CPA, CFE, property, apparel, manufacturing, energy, technology, PCR SERVICES CORPORATION CVA. Specialized accounting and litigation support ser- distribution, retail, partnerships, corporations and service 233 Wilshire Boulevard, Suite 130, Santa Monica, CA vices in the areas of family law litigation including tracing firms. Please contact the Principal in Charge, Sid Blum, at 90401, (310) 451-4488, fax (310) 451-5279, e-mail: of separate and community property assets, pension plan 310-432-7458. See display ad on page 5. [email protected]. Web site: www.pcrnet.com. tracing, forensic accounting, business valuations, goodwill Contact: Amir Yazdanniyaz, P.E. PCR scientists pro- calculation, expert testimony, cash available for support, THOMAS NECHES & COMPANY LLP vide problem solving and analysis with regard to environ- Moore-Marsden calculations, fraud investigations, real es- 609 South Grand Avenue, Suite 1106, Los Angeles, CA mental and architectural noise and vibration (e.g., HVAC, tate analysis, community property balance sheet. Over 24 90017-3848, (213) 624-8150, fax (213) 624-8152, building services, etc.), sound isolation (Title 24), noise years of accounting experience with 20 years of litigation e-mail: [email protected]. Web site: www control, room finishes and geometry, impact assess- support specialization. Appointed as Section 730 account- .thomasneches.com. Contact Thomas M. Neches, ments, and mitigation design. ing expert. Ms. Lesgart’s profile can be found at www.ju- CPA, ABV, CVA, CFE. Accounting, financial, business rispro.com/DianaLesgartCPACFEFCPA. Expert is fully valuation, and statistical analyses to assist attorneys in liti- AIR QUALITY English/Spanish bilingual. See display ad on page 45. gation. Expert testimony in state and federal courts. Cases: Antitrust, breach of contract, fraud, intellectual PCR SERVICES CORPORATION MAYER HOFFMAN MCCAIN PC property, lost business value, lost profits, wrongful death, 55 South Lake Avenue, Suite 215, Pasadena, CA, (626) 11601 Wilshire Boulevard, Suite 2300, Los Angeles, CA and wrongful termination. Industries: banking, construc- 204-6170, fax (626) 204-6171, e-mail: h.rous@pcrnet 90025, (310) 268-2000, fax (310) 268-2001, e-mail: tion, entertainment, insurance, manufacturing, retail, se- .com. Website: www.pcrnet.com. Contact: Heidi Rous, [email protected]. Web site: www.MHM-PC.com, curities, and wholesale. Credentials: certified public ac- CPP. PCR’s air quality scientists provide expert testimony www.CBIZ.com. Contact Steve Franklin. Specializes in countant/accredited in business valuation, certified valua- with regard to air quality impact analysis, health risk as- business litigation; business valuation and appraisal, mari- tion analyst, certified fraud examiner. Education: BA sessments, stationary source permitting, emission inven- tal dissolutions, transactional due diligence, financial re- (Mathematics) UC San Diego, MS (Operations Research) tories, compliance audits, and green house gas (GHG) in- construction, fraud investigation, family limited partner- UCLA. Teaching: Adjunct Professor, Loyola Law School. ventories. ships, commercial damage and lost profits computations See display ad on page 63. and business interruption. Experienced expert testimony ALLERGY/ASTHMA/IMMUNOLOGY and tax controversy representation. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT ROGER M. KATZ MD SCHULZE HAYNES LOEVENGUTH & CO. 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA Allergy Asthma Care Center, Inc. 11500 West Olympic 660 South Figueroa Street, Suite 1280, Los Angeles, CA 91423, (818) 981-4226, fax (818) 981-4278, 363 San Boulevard, Suite 630, Los Angeles, CA 90064, (310) 393- 90017, (213) 627-8280, fax (213) 627-8301, e-mail: Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 1550, fax (310) 478-3601, e-mail: [email protected]. Web [email protected]. Web site: www 219-9816, fax (949) 219-9095, 831 State Street, Suite site: www.rogermkatzmd.com. Contact Roger M. Katz, .schulzehaynes.com. Contact Karl J. Schulze, princi- 291, Santa Barbara, CA 93101, (805) 648-4088, fax (805) MD. IME/expert witness/review. Experienced plaintiff and pal. Specialties: forensic business analysis and account- 963-4088, e-mail: [email protected]. Contact defense. Expert witness record review, IME. ing, lost profits, economic damages, expert testimony, Barbara Luna or Bill Wolf. Expert witness testimony for discovery assistance, business valuations, construction complex litigation involving damage analyses of lost prof- ANESTHESIOLOGY claims, corporate recovery, financial analysis and model- its, unjust enrichment, reasonable royalties, lost earnings, ROGER F. DONENFELD, MD ing, major professional organizations, and have experi- lost value of business, forensic accounting, fraud investi- 10557 Rocca Place, Los Angeles, CA 90077, (310) ence across a broad spectrum of industries and business gation, investigative analysis of liability, marital dissolution, 471-3777, fax (323) 209-0010, e-mail: rfdonenfeld issues. Degrees/licenses: CPA; CVA; CFE; ABV; PhD- and tax planning and preparation. Excellent communica- @hotmail.com. Contact Roger F. Donenfeld, MD. economics. tors with extensive testimony experience. Prior Big Four Chart review and depositions. Expert witness, board accountants. Specialties include accounting, breach of certified, 1987. Anesthesiology fellowship-trained. Ivy SMITH DICKSON, AN ACCOUNTANCY contract, business interruption, business dissolution, con- League, board review textbook author. Certified med- CORPORATION struction defects, delays, and cost overruns, fraud, insur- ical board of CA expertActive clinical anesthesia prac- 18100 Von Karman Avenue, Suite 420, Irvine, CA 92612, ance bad faith, intellectual property including trademark, tice. Extensive medical legal experience. (949) 553-1020, fax (949) 553-0249, e-mail: debbie.dick- patent, and copyright infringement, and trade secrets, [email protected]. Web site: www.smithdickson malpractice, marital dissolution, personal injury, product li- APPRAISAL & VALUATION .com. Contact Deborah Dickson, CPA. CPA 25+ ability, real estate, tax planning and preparation, IRS audit years, testifying 15+ years, audits, reviews, evaluations of defense, tracing, unfair advertising, unfair competition, FULCRUM FINANCIAL INQUIRY companies, financial statement and business profitability valuation of businesses, and wrongful termination. See 888 South Figueroa Street, Suite 2000, Los Angeles, analysis, document review, reconstruction of accounting display ad on page 47. CA 90017, (213) 787-4100, fax (213) 891-1300, records; asset, note, capital, expense, cash flow tracing, e-mail: [email protected]. Web site: www lost revenues, lost profits, economic damages, business ZIVETZ, SCHWARTZ & SALTSMAN, CPAS .fulcruminquiry.com. Contact David Nolte. Our profes- dissolution, business valuations, IRS, FTB, EDD, and SBE 11900 West Olympic Boulevard, Suite 650, Los Angeles, sionals are experienced CPAs, MBAs, ASAs, CFAs, affili-

44 Los Angeles Lawyer November 2008 ated professors, and industry specialists. Our analysis and research combined with unique presentation techniques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, lost proﬁt studies, business and intangible asset valuations, appraisals, fraud investigations, 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 1.

HARGRAVE & HARGRAVE 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) 576-1090, fax (310) 576-1080, e-mail: terry @taxwizard.com. Web site: www.taxwizard.com. Con- tact Terry M. Hargrave, CPA/ABV, CFE. Litigation services for family law and civil cases. Past chair of California Society of CPAs’ Family Law Section, business valuation instructor for California CPA Foundation. Services include business valuations, income available for support, tracing separate property, litigation consulting, real estate litigation, mediation, fraud investigations, damage calculation, DIANA G. LESGART, CPA, CFE, CVA and other forensic accounting work. — AN ACCOUNTING CORPORATION — 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 ✔ Family Law Litigation Consulting firm has over 25 years of litigation support and expert testimony experience in matters involving business valuation, ✔ Certified Public Accountant economic damages, intellectual property, loss of business ✔ Certified Fraud Examiner goodwill, and lost profits. Areas of practice include business disputes, eminent domain, bankruptcy, and corpo- ✔ Certified Valuation Analyst rate and marital dissolution. See display ad on page 53. TEL 818-886-7140 • FAX 818-886-7146 • E-MAIL [email protected] KRYCLER, ERVIN, TAUBMAN, & WALHEIM 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, 22024 LASSEN STREET, SUITE 106, CHATSWORTH, CA 91311 CA 91403, (818) 995-1040, fax (818) 995-4124. Web site: [email protected]. Contact Michael J. Krycler. Litigation support, including forensic accounting, business appraisals, family law accounting, business and professional valuations, damages, fraud investigations, and lost earnings. Krycler, Ervin, Taubman & Walheim is a full-ser- DepoSums vice accounting firm serving the legal community for more than 20 years. See display ad on page 65. DEPOSITION SUMMARIES ARCHAEOLOGICAL RESOURCES ➤ PCR SERVICES CORPORATION Experienced ➤ 3-step proof-reading ➤ E-mailed direct to 233 Wilshire Boulevard, Suite 130, Santa Monica, CA summarizers process your computer 90401, (310) 451-4488, fax (310) 451-5279, e-mail: [email protected]. Website: www.pcrnet.com. Contact: Steve Nelson. PCR’s experienced archaeolo- Los Angeles’ Finest Digesting Service gists provide expert testimony with regards to cultural resource CEQA/NEPA compliance, Section 106 NHPA compliance, NAGPRA issues, National Register of His- FOR MORE INFORMATION: toric Places applications, cultural resource general plan elements and ordinances, impact assessment, and miti- 800.789.DEPO • www.deposums.biz gation measures.

ARCHITECTURE

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Los Angeles Lawyer November 2008 45 SCHWARTZ / ROBERT & ASSOCIATES, INC. AVIATION – EXPERT WITNESS – 42 Faculty Street, Thousand Oaks, CA 91360, (805) 777- 1115, cell (805) 796-9092, fax (805) 777-1172, e-mail: AVIATION CONSULTING SERVICES CONSTRUCTION [email protected]. Contact Robert I. Schwartz, AIA. P.O. Box 1522, San Carlos, CA 94070, (650) 508-1079, Real property development procedures & practices, all fax (650) 508-9005, e-mail: [email protected]. Web site: 41 YEARS building types, sizes & phases. Professional evaluation of www.avconsult.com. Contact Capt. Robert E. Norris. Expertise: general aviation/airline ground/flight operations, CONSTRUCTION EXPERIENCE building design errors & omissions, building code compliance & professional standards of practice. Forensic inves- flight crew hiring, training, evaluation, checking, standard tigation of construction defects. Repair cost estimates. of care dictated by FARs and ICAO, review of aircraft ac- SPECIALTIES: Construction contract/subcontract performance—project cidents attributable to “pilot error,” flight crew employability/earnings model, and wrongful termination/discrimina- Lawsuit Preparation/Residential management administration & cost accounting, CPM tion. Experience: UAL Captain, flight manager, FAA Construction, Single and Multi-family, scheduling, cost estimating, change order administration, Check Airman, Hughes Aircraft—engineering psycholo- Hillside Construction, Foundations, quality assurance & building performance. Evaluation of gist, owner/operator FAA-141 Flight School/FAA Mainte- Vibration Trespass, Concrete, Floors, Tile, delay claims. Documentation of major property/casualty nance repair facility, BS, ATP, Typed B-737,757/767, Stone, Retaining Walls, Waterproofing, insurance losses. Excellent litigation support & trial exhibit DC8/10, flight dispatcher, Author. Water Damages, Roofing, Sheet Metal, preparation. Expert witness testimony. Experienced AAA arbitrator & mediator. Large & complex cases. Member, Carpentry/Rough Framing, Stairs, BANKING Materials/Costs, Building Codes, Dispute Resolution Boards. Construction Contracts. ADVISORS/EXPERTS @ MCS ASSOCIATES ASSET SEARCH 18881 Von Karman, Suite 1175, Irvine, CA 92612, CIVIL EXPERIENCE: BENCHMARK INVESTIGATIONS (949) 263-8700, fax (949) 263-0770, e-mail: experts Construction defect cases for insurance 32158 Camino Capistrano, # A-415, San Juan Capis- @mcsassociates.com. Web site: www.mcsassociates companies and attorneys since 1992 trano, CA 92675, (800) 248-7721, fax (949) 248-0208, .com. Contact Norman Katz, managing partner. Na- e-mail: [email protected]. Web site: www. tionally recognized banking, finance, insurance, and real BenchmarkInvestigations.com. Contact Jim Zimmer, estate consulting group (established 1973). Experienced COOK CPI. National agency. Professional investigations with litigation consultants/experts include senior bankers, CONSTRUCTION COMPANY emphasis upon accuracy, detail, and expedience. lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, prac- STEPHEN M. COOK Asset/financial searches, background investigation, DMV searches, domestic/marital cases, due diligence, process tices, policies, in all types of lending (real estate, sub- California Contractors License B431852 service, surveillance/photograph, witness location, and prime, business/commercial, construction, consumer/ Nevada Contractors License B0070588 statements. LA branch plus correspondents nationwide. credit card), banking operations/administration, trusts and Graduate study in Construction Multilingual agents. Fully insured. investments, economic analysis and valuations/damages L.A. Business College, 1972 assessment, insurance claims, coverages and bad faith, ATTORNEY FEES real estate brokerage, appraisal, escrow, and construc- Tel: 818-438-4535 Fax: 818-595-0028 tion defects/disputes, and title insurance. Email: [email protected] LAW OFFICES OF PHILLIP FELDMAN 15250 Ventura Boulevard, Sherman Oaks, CA 91403, BANKRUPTCY/TAX 7131 Owensmouth Avenue, Canoga Park, CA 91303 (818) 986-9890, fax (818) 986-1757, e-mail: [email protected]; [email protected]; ADVISORS/EXPERTS @ MCS ASSOCIATES [email protected]. Web sites: www 18881 Von Karman, Suite 1175, Irvine, CA 92612, .LegalMalpracticeExperts.com; www.LegalEthicsExperts (949) 263-8700, fax (949) 263-0770, e-mail: experts .com. Contact Phillip Feldman. Certified SPECIALIST @mcsassociates.com. Web site: www.mcsassociates professional liability-legal CA/ABA. Former judge pro .com. Contact Norman Katz, managing partner. tem—25 years. FEE DISPUTE Arbitrator—31 years. Forty Nationally recognized banking, finance, insurance, and years ETHICS, Bar prosecution/defense. Consulting EX- real estate consulting group (established 1973). Experi- PERT. Testifying EXPERT 28 years: standard of care, enced litigation consultants/experts include senior causation, fiduciary duties, professional responsibility and bankers, lenders, consultants, economists, accountants, ethics, and fee disputes. Any underlying case—litigation, insurance underwriters/brokers. Specialties: lending cus- transaction, family, administrative, state or federal. Former toms, practices, policies, in all types of lending (real es- accountant, degree BS, MBA. Former managing partner tate, subprime, business/commercial, construction, con- plaintiff’s and defense’s firms. Also State Bar Defense sumer/credit card), banking operations/administration, Counsel and preventative law. trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages AUDIO/VIDEO FORENSIC and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance. AUDIO ENGINEERING ASSOCIATES 1029 North Allen Avenue, Pasadena, CA 91104, (626) STONEFIELD JOSEPHSON 798-9128, fax (626) 798-2378, e-mail: stereoms@aol Forensic Advisory Services. 2049 Century Park East, .com. Web site: www.wesdooley.com. Contact Wes Suite 400, Los Angeles, CA 90067. (866) 225-4511 toll Dooley. Enhancement and authentication fixed price in- free. Web site: www.sjaccounting.com. The Stonefield telligibility evaluations. Audio and video evidence analysis. Josephson Forensic Advisory Services group provides accounting experts to support your litigation, valuation, AUTOMOTIVE ACCIDENT bankruptcy, fraud investigation and risk assessment, third INVESTIGATION party audit and other forensic accounting needs. As one of the largest CPA firms based in California with six offices DR. WILLIAM D. GUENTZLER and a global network of affiliated offices, we have the ex- FORENSIC INTERNATIONAL perience and skills you want. We serve all industries with 10298 Hawley Road, El Cajon, CA 92021, (619) 390- extremely strong expertise in entertainment, intellectual 9081, cell (619) 823-9081, fax (619) 390-9086, e-mail: property, apparel, manufacturing, energy, technology, [email protected]. Contact William D. Guentzler, distribution, retail, partnerships, corporations, and service PhD. Dr. Guentzler has over 28 years of experience as an firms. Please contact the Principal in Charge, Sid Blum, at expert witness and forensic examiner and 36 years as a 310-432-7458. See display ad on page 5. university professor. He is licensed in the state of Arizona as a private investigator. His expertise includes auto, BIOLOGICAL RESOURCES truck, ATC, ATV, motorcycle, motor homes, and golf carts. He also specializes in braking systems, ignition, fuel PCR SERVICES CORPORATION systems, cooling, electrical and battery explosions, as One Venture, Suite 150, Irvine, CA, (949) 753-7001, fax well as vehicle fire cause and origin. (949) 753-7002, e-mail: [email protected]. Web site: www.pcrnet.com. Contact: Steve Nelson. PCR scientists provide expert testimony with regard to land use and conservation policies (e.g., HCP/NCCP, general plan con-

46 Los Angeles Lawyer November 2008 Expert witnesses and litigation consultants for complex litigation involving analyses of lost profits,lost earnings and lost value of business, forensic accounting and fraud investigation

Other areas include marital dissolution, accounting and tax

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Offices in Los Angeles and Orange County

Call us today. With our litigation consulting, extensive experience and expert testimony, you can focus your efforts where they are needed most.

818-981-4226 or 949-219-9816 www.wzwlw.com [email protected] servation elements, etc.), regulatory permitting, threat- rienced CPAs, MBAs, ASAs, CFAs, affiliated professors, discovery assistance, business valuations, construction ened and endangered species, CEQA compliance, im- and industry specialists. Our analysis and research com- claims, corporate recovery, financial analysis and model- pact assessment, and mitigation measures. bined with unique presentation techniques have resulted ing, major professional organizations, and have experi- in an unequaled record of successful court cases and ence across a broad spectrum of industries and business BIOMECHANICS/ RECONSTRUCTION / client recoveries. Our expertise encompasses damages issues. Degrees/licenses: CPA; CVA; CFE; ABV; PhD- HUMAN FACTORS analysis, lost profit studies, business and intangible asset economics. valuations, appraisals, fraud investigations, statistics, INSTITUTE OF RISK & SAFETY ANALYSES forensic economic analysis, royalty audits, strategic and SINAIKO HEALTHCARE CONSULTING, INC. Kenneth A. Solomon, PhD, PE, Post PhD, Chief Sci- market assessments, computer forensics, electronic dis- 1875 Century Park East, Suite 2100, Los Angeles, CA entist. 5324 Canoga Avenue, Woodland Hills, CA 91364, covery, and analysis of computerized data. Degrees/li- 90067, (310) 551-5252, fax (310) 551-5414, e-mail: (818) 348-1133, fax (818) 348-4484, e-mail: biomech censes: CPAs, CFAs, ASAs, PhDs and MBAs in account- [email protected]. Web site: www.sinaiko.com. @irsa.us. Web site: www.irsa.us. Specialized staff of 23, ing, finance, economics, and related subjects. See dis- Contact Jeff Sinaiko. Sinaiko is a nationally recognized broad range of consulting and expert testimony, 36 years play ad on page 1. healthcare consulting firm. Our professionals are hand- of courtroom experience. Accident reconstruction, biome- picked for their broad understanding of the industry, de- chanics, human factors, safety, accident prevention, ade- GURSEY, SCHNEIDER & CO., LLP tailed expertise and superior communication skills. Clients quacy of warnings, COMPUTER ANIMATION and SIMU- 1888 Century Park East, Suite 900, Los Angeles, CA have found this expertise invaluable in litigation support LATIONS, construction defect, criminal defense, criminal 90067, (310) 552-0960, fax (310) 557-3468, e-mail: where there is no substitute for experience. Sinaiko’s liti- prosecution, premises, product integrity, product liability, [email protected] or [email protected]. Web gation support practice includes, among others, industry product testing, warnings, and lost income calculations. site: www.gursey.com. Contact Robert Watts or standard practices evaluations; Medicare/Medicaid fraud; Auto, bicycle, bus, chair, elevator, escalator, forklift, gate, Stephan Wasserman. Gursey Schneider is an account- provider/payor payment disputes; business valuation; ladder, machinery, motorcycle, press, recreational equip- ing firm specializing in forensic accounting, litigation sup- transaction disputes; and facility and professional fee ment, rollercoaster, slip/trip and fall, stairs, swimming pool, port services, business valuation, and appraisal services billing. and truck. Litigation and claims; defense/plaintiff; educa- for a variety of purposes including marital dissolution, gift tional seminars; and mediation and arbitration services. and estate planning, eminent domain, goodwill loss, busi- STONEFIELD JOSEPHSON ness disputes, malpractice, tax matters, bankruptcy, Forensic Advisory Services. 2049 Century Park East, BUSINESS damage and cost-profit assessments, insurance claims, Suite 400, Los Angeles, CA 90067. (866) 225-4511 toll ROBERT C. ROSEN and entertainment industry litigation. GSCO has over 30 free. Web site: www.sjaccounting.com. The Stonefield Wells Fargo Center, 333 South Grand Avenue, Suite years experience as expert witnesses in litigation support. Josephson Forensic Advisory Services group provides 1925, Los Angeles, CA 90071, (213) 362-1000, fax (213) See display ad on page 50. accounting experts to support your litigation, valuation, 362-1001, e-mail: [email protected]. Web site: bankruptcy, fraud investigation and risk assessment, third www.rosen-law.com. Specializing in securities law, fed- HAYNIE & COMPANY, CPAS party audit and other forensic accounting needs. As one eral securities law enforcement, securities arbitration, and 4910 Campus Drive, Newport Beach, CA 92660, of the largest CPA firms based in California with six offices international securities, insider trading, NYSE, AMEX, (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson and a global network of affiliated offices, we have the ex- NASD disciplinary proceedings, broker-dealer, investment @hayniecpa.com. Web site: www.hayniecpa.com. Con- perience and skills you want. We serve all industries with company and investment adviser matters, liability under tact Steven C. Gabrielson. Alter ego, consulting and extremely strong expertise in entertainment, intellectual federal and state securities laws, public and private offer- expert witness testimony in a variety of practice areas: property, apparel, manufacturing, energy, technology, ings, Internet securities, and law firm liability. AV rated. commercial damages, ownership disputes, economic distribution, retail, partnerships, corporations, and service Former chair, LACBA Business and Corporations Law analysis, business valuation, lost profits analysis, fraud/ firms. Please contact the Principal in Charge, Sid Blum, at Section; LLM, Harvard Law School. More than 35 years forensic investigations, taxation, personal injury, wrongful 310-432-7458. See display ad on page 5. practicing securities law, 12 years with the U.S. Securities termination, professional liability, and expert cross exami- and Exchange Commission, Washington, DC. Published nation. Extensive public speaking background assists in THOMAS NECHES & COMPANY LLP author/editor of securities regulations, including multivol- courtroom presentations. 609 South Grand Avenue, Suite 1106, Los Angeles, CA ume treatises. See display ad on page 73. 90017-3848, (213) 624-8150, fax (213) 624-8152, e-mail: HIGGINS, MARCUS & LOVETT, INC. [email protected]. Web site: www.thomas- BUSINESS APPRAISAL/VALUATION 800 South Figueroa Street, Suite 710, Los Angeles, CA neches.com. Contact Thomas M. Neches, CPA, ABV, 90017, e-mail: [email protected]. Web site: www.hmlinc CVA, CFE. Accounting, financial, business valuation, and ADVISORS/EXPERTS @ MCS ASSOCIATES .com. Contact Mark C. Higgins, ASA, president. The statistical analyses to assist attorneys in litigation. Expert 18881 Von Karman, Suite 1175, Irvine, CA 92612, firm has over 25 years of litigation support and expert tes- testimony in state and federal courts. Cases: Antitrust, (949) 263-8700, fax (949) 263-0770, e-mail: experts timony experience in matters involving business valuation, breach of contract, fraud, intellectual property, lost busi- @mcsassociates.com. Web site: www.mcsassociates economic damages, intellectual property, loss of business ness value, lost profits, wrongful death, and wrongful ter- .com. Contact Norman Katz, managing partner. Na- goodwill, and lost profits. Areas of practice include busi- mination. Industries: banking, construction, entertainment, tionally recognized banking, finance, insurance, and real ness disputes, eminent domain, bankruptcy, and corpo- insurance, manufacturing, retail, securities, and whole- estate consulting group (established 1973). Experienced rate and marital dissolution. See display ad on page 53. sale. Credentials: certified public accountant/accredited in litigation consultants/experts include senior bankers, business valuation, certified valuation analyst, certified lenders, consultants, economists, accountants, insurance LEWIS, JOFFE & CO, LLP fraud examiner. Education: BA (Mathematics) UC San underwriters/brokers. Specialties: lending customs, prac- 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA Diego, MS (Operations Research) UCLA. Teaching: Ad- tices, policies, in all types of lending (real estate, sub- 90024, (310) 475-5676, fax (310) 475-5268. Contact junct Professor, Loyola Law School. See display ad on prime, business/commercial, construction, consumer/ Brian Lewis, CPA, CVA. Forensic accounting, business page 63. credit card), banking operations/administration, trusts and valuations, cash spendable reports, estate, and trust and investments, economic analysis and valuations/damages income tax services. VICENTI, LLOYD & STUTZMAN LLP assessment, insurance claims, coverages and bad faith, 2210 East Route 66, Suite 100, Glendora, CA 91740, real estate brokerage, appraisal, escrow, and construc- MAYER HOFFMAN MCCAIN PC (626) 857-7300, fax (626) 857-7302, e-mail: RStutzman tion defects/disputes, and title insurance. 11601 Wilshire Boulevard, Suite 2300, Los Angeles, CA @vlsllp.com. Web site: www.VLSLLP.com. Contact 90025, (310) 268-2000, fax (310) 268-2001, e-mail: Royce Stutzman, CVA, CPA/ABV, Chairman. At VLS, COHEN, MISKEI & MOWREY LLP [email protected]. Web site: www.MHM-PC.com, we’ve built a team of certified valuation and forensic pro- 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, www.CBIZ.com. Contact Steve Franklin. Specializes in fessionals with rich experiences and dedication to a wide CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: business litigation; business valuation and appraisal, mari- variety of attorneys and business owners. We provide re- [email protected]. Web site: www.cmmcpas tal dissolutions, transactional due diligence, financial responsible and effective litigation support and business .com. Contact Scott Mowrey. Specialties: consultants construction, fraud investigation, family limited partner- valuation services to hundreds of clients in California. We who provide extensive experience, litigation support, and ships, commercial damage and lost profits computations conduct valuations related to mergers and acquisitions, expert testimony regarding forensic accountants, fraud in- and business interruption. Experienced expert testimony buy-sell agreements, purchase/sale of closely held busi- vestigations, economic damages, business valuations, and tax controversy representation. nesses, and partner disputes. Our forensic accounting family law, bankruptcy, and reorganization. Degrees/li- experts assess the amount of an economic loss, whether cense: CPAs, CFEs, MBAs. See display ad on page 57. SCHULZE HAYNES LOEVENGUTH & CO. it be business interruption from casualty, unfair competi- 660 South Figueroa Street, Suite 1280, Los Angeles, tion, condemnation, damage caused by others, or loss of FULCRUM FINANCIAL INQUIRY CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: earnings from various events. Our fraud investigation 888 South Figueroa Street, Suite 2000, Los Angeles, CA [email protected]. Web site: www team reviews documentation, interviews witnesses and 90017, (213) 787-4100, fax (213) 891-1300, e-mail: .schulzehaynes.com. Contact Karl J. Schulze, princi- suspects, and assesses evidence to resolve allegations. [email protected]. Web site: www.fulcruminquiry pal. Specialties: forensic business analysis and account- We provide expert witness testimony and implement .com. Contact David Nolte. Our professionals are expe- ing, lost profits, economic damages, expert testimony, fraud prevention programs. We pride ourselves on the

48 Los Angeles Lawyer November 2008 quality of the relationships we build and the outcomes we achieve for our clients. Call us today for your free consultation at (626) 857-7300. Making A Positive Difference Since 1953.

WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, 831 State Street, Suite 291, Santa Barbara, CA 93101, (805) 648-4088, fax (805) 963-4088, e-mail: [email protected]. Contact Bar- bara Luna or Bill Wolf. Expert witness testimony for complex litigation involving damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting, fraud investigation, investigative analysis of liability, marital dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four accountants. Specialties include accounting, breach of contract, business interruption, business dissolution, construction defects, delays, and cost overruns, fraud, insur- CHARLES PEREYRA-SUAREZ ance bad faith, intellectual property including trademark, patent, and copyright infringement, and trade secrets, MEDIATOR, ARBITRATOR AND EXPERT WITNESS malpractice, marital dissolution, personal injury, product liability, real estate, tax planning and preparation, IRS audit RELEVANT EXPERIENCE: defense, tracing, unfair advertising, unfair competition, • Trial/Appellate Attorney, U.S. Justice Department See valuation of businesses, and wrongful termination. Civil Rights Division display ad on page 47. • Federal Prosecutor in Los Angeles CHEMICALS & HAZARDOUS MATERIALS • Litigation Partner in Two National Law Firms KHB CONSULTING SERVICES • Judge Pro Tem, Los Angeles Superior Court Toll free (866) CHEM-EXPT, (866) 243-6397, e-mail: • Diverse ADR and Expert Witness Practice [email protected]. Web site: www .khbconsulting.com. Contact Dr. Kenneth H. Brown. 445 S. Figueroa St., Suite 3200, Los Angeles CA 90071 Area of expertise: household chemicals, industrial chemi- Tel 213.623.5923 Fax 213.623.1890 http://www.cpslawﬁrm.com cals, hazardous materials, aerosols and spray products, paint and coatings, labels and warnings, and laboratory testing and analysis. We provide research, case ﬁle review, site visit, testing, failure analysis, reports, deposition and courtroom testimony. Types of cases include product liability, premises liability, and toxic test. We translate chemical jargon unto easy-to-understand language. See display ad on page 53.

CIVIL LITIGATION

GURSEY, SCHNEIDER & CO., LLP 1888 Century Park East, Suite 900, Los Angeles, CA 90067, (310) 552-0960, fax (310) 557-3468. 20355 Hawthorne Boulevard, First Floor, Torrance, CA 90503, (310) 370-6122, fax (310) 370-6188, e-mail: rwatts @gursey.com or [email protected]. Web site: www.gursey.com. Contact Robert Watts or Stephan Wasserman. Gursey Schneider specializes in forensic accounting and litigation support services in the areas of civil litigation, business disputes, bankruptcy, damage and cost-proﬁt insurance claims, court accountings, fraud investigations, accounting malpractice, intellectual property, construction, government accounting and entertainment litigation. Gursey Schneider has over 30 years of experience as expert witnesses in accounting related matters. See display ad on page 50.

COMPUTER EVIDENCE DISCOVERY

COSGROVE COMPUTER SYSTEMS, INC. 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823-9448, fax (310) 821-4021, e-mail: jcosgrove @computer.org. Web site: www.cosgrovecomputer.com. Contact John Cosgrove. John Cosgrove, PE, has over 45 years’ experience in computer systems and has been a self-employed, consulting software engineer since 1970. He was a part-time lecturer in the UCLA School of Engineering and LMU graduate school. He provided an invited article, “Software Engineering & Litigation,” for the Encyclopedia of Software Engineering. He is a Certiﬁed Forensic Consultant (CFC), holds the CDP, is a member of ACM, ACFEI, FEWA, a life senior member of IEEE

Los Angeles Lawyer November 2008 49 Computer Society, NSPE, a Fellow of the National Acad- FULCRUM FINANCIAL INQUIRY SETEC INVESTIGATIONS emy of Forensic Engineers (an affiliate of NSPE), and a 888 South Figueroa Street, Suite 2000, Los Angeles, CA 8391 Beverly Boulevard, Suite 167, Los Angeles, CA professional engineer in California. Formal education in- 90017, (213) 787-4100, fax (213) 891-1300, e-mail: 90048, (800) 748-5440, fax (323) 939-5481, e-mail: tste- cludes a BSEE from Loyola University and a master of en- [email protected]. Web site: www.fulcrumin- [email protected]. Web site: www.setecinves- gineering from UCLA. quiry.com. Contact David Nolte. Our professionals are tigations.com. Contact Todd Stefan. Setec Investiga- experienced CPAs, MBAs, ASAs, CFAs, affiliated profes- tions offers unparalleled expertise in computer forensics COMPUTER FORENSICS sors, and industry specialists. Our analysis and research and enterprise investigations providing personalized, combined with unique presentation techniques have re- case-specific forensic analysis and litigation support ser- ROBERT J. ABEND, PE sulted in an unequaled record of successful court cases vices for law firms and corporations. Setec Investigations 1658 Laraine Circle, San Pedro, CA 90732, cell (310) and client recoveries. Our expertise encompasses dam- possesses the necessary combination of technical exper- 346-6543, (310) 221-0716, e-mail: [email protected] ages analysis, lost profit studies, business and intangible tise, understanding of the legal system, and specialized Web site: www.linkline.com/personal/rabend. Specialties: asset valuations, appraisals, fraud investigations, statis- tools and processes enabling the discovery, collection, in- Electrical engineering, computer forensics, data recovery, tics, forensic economic analysis, royalty audits, strategic vestigation, and production of electronic information for electronic discovery, computer engineering, software, and market assessments, computer forensics, electronic investigating and handling computer-related crimes or electronics, microelectronics, electronics manufacturing, discovery, and analysis of computerized data. Degrees/li- misuse. Our expertise includes computer forensics, elec- intellectual property, and trade secret litigation. Technical censes: CPAs, CFAs, ASAs, PhDs and MBAs in account- tronic discovery, litigation support, and expert witness support during case preparation. Practiced at court and ing, finance, economics, and related subjects. See dis- testimony. deposition testimony. Thirty-five years of experience in the play ad on page 1. electronics and computer industry. Fifteen years as a COMPUTERS forensic engineering consultant. References provided on GREAT SCOTT ENTERPRISES, INC. request. Degrees/licenses: BSEE, MS, Registered Profes- P.O. Box 42047, Tucson, AZ 85733, (866) 795-7166, JOHN LEVY, PHD sional Engineer, Certified EnCase Computer Forensic Ex- fax (520) 722-6796, e-mail: [email protected]. P.O. Box 1419, Point Reyes Station, CA 94956, (415) 663- aminer, FCC General Radiotelephone license. Web site: www.great-scott.com. The professional 1818, fax (415) 663-0888, e-mail: info@johnlevyexpert. computer forensics firm with 20+ years experience. com. Web site: http://johnlevyexpert.com. Contact John DATACHASERS, INC. Deposition and trial experience. Computer and Levy. A technical leader in computer, software and data P.O. Box 2861, Riverside, CA 92516-2861, (877) technology forensics consulting specializing in re- storage, Dr. Levy has experience in 30 cases related to DataExam, [877-328-2392], (951) 780-7892, e-mail: covery, acquisition, preservation, and analysis of patent, copyright, trade secret, and other matters. An ad- [email protected]. Web site: www.DataChasers data as evidence, including data purposefully de- visor to two U.S. District court judges. He has testified .com. E-Discovery: Full e-discovery services…you give stroyed or obfuscated. Our team of experts will and been deposed in multiple cases. us the mountain, we give you the mole hill: Tiff production, manage your project to ensure data is properly de-duplication, redaction, bates stamped data, and elec- handled to meet and exceed industry standards COMPUTERS/INFORMATION SCIENCES tronically stored information (ESI) production. Computer and evidentiary requirements are maintained. These ROBERT J. ABEND, PE Forensic: Full forensic computer lab. Recovering deleted techniques can save data from Web sites, files, fax text files (documents), graphics (pictures), date codes on 1658 Laraine Circle, San Pedro, CA 90732, cell (310) machines, all types of media and e-mails. Experi- 346-6543, (310) 221-0716, e-mail: rabend@linkline all files, e-mail, and tracing Internet activity. Intellectual enced expert witness testimony in both court and property cases; family law; employment law; probate res- .com Web site: www.linkline.com/personal/rabend. Spe- arbitration cases. Skilled at databases, source code cialties: Electrical engineering, computer forensics, data olution; asset verification; criminal law (prosecution or de- copyright, documents, e-mails, images, accounting fense); etc. Litigation support, trial preparation, experi- recovery, electronic discovery, computer engineering, systems, hacking events, tracking down perpetra- software, electronics, microelectronics, electronics manu- enced expert witnesses, and professional courtroom dis- tors, and password cracking. plays. See display ad on page 52. facturing, intellectual property, and trade secret litigation.

50 Los Angeles Lawyer November 2008 Technical support during case preparation. Practiced at court and deposition testimony. Thirty-ﬁve years of experience in the electronics and computer industry. Fifteen years as a forensic engineering consultant. References provided on request. Degrees/licenses: BSEE, MS, Reg- istered Professional Engineer, Certiﬁed EnCase Computer Forensic Examiner, FCC General Radiotelephone license.

CORPORATE SCIENCES, INC. 3215 East Foothill Boulevard, Pasadena, CA 91107, (626) 440-7200, fax: (626) 440-1800, e-mail: jsdanton [email protected]. Web site: www.corporatesciences.com. Contact Dr. Joseph S. D’Antoni, managing principal. Corporate Sciences, Inc. provides ﬁnancial analysis and expert testimony in all types of commercial litigation. Extensive experience in a broad range of industries for computing economic damages, lost proﬁts, valuation and appraisal, fraud, breach of contract, partnership disputes, and bankruptcy related matters. Professionals also serve as mediators, arbitrators, special masters, third party administrators as well as consulting and testifying experts.

COSGROVE COMPUTER SYSTEMS, INC. David L. Ray 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823-9448, fax (310) 821-4021, e-mail: jcosgrove Saltzburg, Ray & Bergman, LLP @computer.org. Web site: www.cosgrovecomputer.com. Partnerships and Corporate Dissolutions Contact John Cosgrove. John Cosgrove, PE, has over Government Enforcement Receivership Actions 45 years’ experience in computer systems and has been a self-employed, consulting software engineer since Receivership 1970. He was a part-time lecturer in the UCLA School of Partition Actions/Marital Dissolution Engineering and LMU graduate school. He provided an invited article, “Software Engineering & Litigation,” for the Encyclopedia of Software Engineering. He is a Certiﬁed TEL e-mail: [email protected] • www.srblaw.com Forensic Consultant (CFC), holds the CDP, is a member TEL (310) 481-6700 of ACM, ACFEI, FEWA, a Life Senior member of IEEE FAX (310) 481-6707 12121 Wilshire Boulevard, Suite 600, Los Angeles CA 90025 Computer Society, NSPE, a Fellow of the National Acad- emy of Forensic Engineers (an affiliate of NSPE), and a professional engineer in California. Formal education includes a BSEE from Loyola University and a master of engineering from UCLA.

INFOSCI INC. P.O. Box 7117, Menlo Park, CA 94026-7117, (650) 854- 1567, fax (650) 854-1568. Contact Ned Chapin. SOA— Service-oriented architecture, computer software design, intellectual property, IT (Information Technology) performance and alignment, IT governance, software engineering, IT personnel management, and computer applications. Background: PhD, PE (Professional Engineer), CISA (Certiﬁed Information Systems Auditor), more than 30 years of diversiﬁed experience in IT/IS, and have served as expert witness.

CONSTRUCTION

ABACUS PROJECT MANAGEMENT, INC. 20201 SW Birth Street, Suite 240, Newport Beach, CA 92660, (949) 851-1015, fax (949) 851-0409, e-mail: [email protected]. Web site: www.abacuspm .com. Contact Russell Thompson. Expert witness. Cost estimation, construction management analysis, delay analysis, and professionally trained mediator and arbitrator. Lead expert with over 25 years of experience in construction industry.

ROBERT BERRIGAN MATHENY SEARS LINKERT & LONG LLP P.O. Box 13711, Sacramento, CA 95853, 4711, (916) 978-3434, fax (916) 978-3430, e-mail: rberrigan @mathenysears.com. Web site: www.mathenysears.com. Contact Robert Berrigan. Specialties: Contractor licensing issues; proper license class to perform work; B & P section 7031 issues. Contractor State License Board (CSLB) investigations and disciplinary proceedings; obtaining licenses or documents from CSLB. Also violations of subletting and subcontracting Fair Practice Act. Expert witness at trial/arbitration. Degrees/licenses: BA; JD; Commercial Pilot; SEL; MEL.

Los Angeles Lawyer November 2008 51 CONTRACTORS & COST CONSULTANTS medical, engineering, product liability, safety, environ- One Source. 2700 West Coast Highway, Suite 212, Newport Beach, mental, accident reconstruction, automotive, failure analy- CA 92627, (949) 631-0553, fax (949) 631-0554, e-mail: sis, fires, explosions, slip and fall, real estate, economics, [email protected]. Contact Dennis St. Clair. Exper- appraisal, employment, computers, and other technical tise in cost analysis and estimates, industry standards, and scientific disciplines. We provide you with a select ■ EXPERT WITNESS DIRECTORY building code, construction defects, and general issues. group of high-quality experts as expeditiously as possible. California General Building Contractor #319388; active Unsurpassed recruitment standards. Excellent client ser- ■ MCLE-APPROVED PROGRAMS since 1976, Classification B, HIC. Thirty-five years of pro- vice. See display ad on page 45. gressive, responsible, and diversified hands-on construc- ■ REGIONAL CHAPTER MEETINGS tion experience. Twenty years of expert witness and ap- GLENN M. GELMAN & ASSOCIATES, THROUGHOUT CALIFORNIA, AND praiser experience in construction disputes, property CERTIFIED PUBLIC ACCOUNTANTS TEXAS, MIDWEST & ARIZONA claims, and litigation. Qualified by the state superior AND BUSINESS CONSULTANTS courts of California and Nevada. Affiliations: American 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- ■ ANNUAL EXPERT WITNESS Society of Professional Estimators; Past president, 2600, fax (714) 667-2636. Web site: www.gmgcpa.com. SUMMIT & CONFERENCE Orange County Chapter 3 and Forensic Expert Witness Contact Glenn Gelman. Expert witness testimony, ■ A NATIONAL ASSOCIATION Association. strategy development, document discovery, deposition OF CONSULTANTS PROVIDING assistance, computation of damages, arbitration consult- COOK CONSTRUCTION COMPANY ing, forensic accounting, investigative auditing, rebuttal FORENSIC SERVICES 7131 Owensmouth Avenue, Canoga Park, CA 91303, testimony, fiduciary accountings, and trial exhibit prepara- ■ ONE RELIABLE SOURCE FOR (818) 438-4535, fax (818) 595-0028, e-mail: scook16121 tion. HUNDREDS OF QUALIFIED EXPERTS @aol.com. Contact Stephen M. Cook. Specialties: Lawsuit preparation, residential construction, single and LYNDEHURST, LTD IN ALL DISCIPLINES multifamily, hillsides, foundations, concrete floors, retain- 5535 West 64th Street, Los Angeles, CA 90056 (310) ing walls, waterproofing, water damages, roofing, car- 410-8850, fax (310) 410-8893, e-mail: lyndehurst@aol Visit WWW.FORENSIC.ORG for our pentry/rough framing, tile, stone, materials/costs, and .com. Contact Richard A. Jampol, A.I.A. Specialties: a Expert Witness Directory online or contact building codes. Vibration trespass, expert witness, cred- unique combination of experience encompassing 40 Forensic Expert Witness Association itable, strong, concise testimony in mediation, arbitration years as a real estate broker, architect, general contrac- involving construction defect for insurance companies tor, and real estate consultant. Developer/manager of of- today for your FREE desktop copy: and attorneys, consulting services for construction, docu- fice, industrial, retail, medical and residential projects; ment preparation, construction material lists, costs, build- special experience in leasing, property management, pre- 949.640.9903 ing codes analysis, site inspections, and common con- design planning, investment analysis, lease analysis, and [email protected] struction industry standards of practice and its relation- landlord/tenant disputes. Personally negotiated over ship with the California Building Codes. See display ad 5,000 leases. Representation of lessor/lessees, develop- www.forensic.org on page 46. ers, property owners, attorneys, and architects, including expert witness testimony, litigation support, and standard DIVERSIFIED ENGINEERING OF of care. Experienced in complex matters. Familiar with WESTLAKE, INC. courtroom procedures. Degrees and licenses: Architec- 31157 Lobo Vista Road, Agoura, CA 91301, (818) 865- ture; General Contractor; Real Estate Broker. 8844, fax (818) 865-9944, e-mail: [email protected]. Web site: www.ateco.us. Contact L. Peter Petrovsky, PACIFIC CONSTRUCTION PE. Expert witness and consulting in applied civil and CONSULTANTS, INC. mechanical engineering, engineering, building, and earth- (800) 655-PCCI. Contact marketing director. Con- Computer Evidence work contracting. Our strength and experience is in com- struction contract disputes (claims) analysis, prep and bining engineering and contracting skills. Understanding presentation, delay and monetary impact evaluation, in- ® of the mechanical and civil engineering design and princi- cluding CPM schedules. Architectural, civil, structural, DATACHASERS INC. ples, combined with knowledge of the standards of use, mechanical, and electrical specialties. Full in-house court- is essential to the ability to distill complex technical issue room visual exhibit preparation. Assistance in negotia- to a palatable presentation in the appropriate forum. tions, mediation, arbitration, and litigation. Expert witness TM testimony. Additional phone (310) 337-3131 or (916) CARPE DATUM … FORENSIC CONSTRUCTION DEFECT & 638-4848. See display ad on page 73. ENGINEERING, INC. …SEIZE THE DATA A PROFESSIONAL CORPORATION. PINNACLEONE, AN ARCADIS COMPANY 3540 Wilshire Boulevard, Suite 714, Los Angeles, CA 445 South Figueroa Street, Suite 3650, Los Angeles, CA 90010, (213) 632-1310, (818) 943- 0661, fax (213) 632- 90071, (213) 486-9884, fax (213) 486-9894, e-mail: 5299, e-mail: [email protected]. Web site: [email protected]. PinnacleOne, an ARCADIS COMPUTER FORENSICS www.ConstructionDefect.us. Forensic investigation of Company is a national firm of leading construction con- regulatory compliance, construction, civil, structural, sultants who promote a full range of professional ser- • Recover Critical Data building codes, industrial, environmental engineering is- vices, including dispute avoidance and resolution, claims sues and defects. Massie Munroe M.S. and P.E, licensed analysis and management, litigation support, expert wit- • E-Mail Recovery civil engineer and expert witness with 23 years of engi- ness, project management, financial services, and more. • Dates on All Files neering experience. She is trained and experienced in de- Operating as a wholly owned subsidiary of ARCADIS, positions, discovery, and interrogatories. Ms. Munroe has PinnacleOne’s regional operations are located in Los An- • Websites Visited made extensive courtroom appearances. She has been geles, San Diego, San Francisco, Irvine, and Sacramento. recognized by Cambridge Who’s Who as one of the top E-DISCOVERY women engineers in the United States. She has been SCHWARTZ / ROBERT & ASSOCIATES, INC. recognized by Strathmore Who’s Who for being among 42 Faculty Street, Thousand Oaks, CA 91360, (805) 777- • De-Duplication the outstanding professionals and engineers in the United 1115, cell (805) 796-9092, fax (805) 777-1172, e-mail: • Redaction States. Additionally, this corporation can provide expert [email protected]. Contact Robert I. Schwartz, AIA. witness for malpractice litigation of real estate transac- Real property development procedures & practices, all • Bates Stamped Data tions. See display ad on page 68. building types, sizes & phases. Professional evaluation of building design errors & omissions, building code compli- • Electronic (ESI) Production FORENSISGROUP® ance & professional standards of practice. Forensic in- THE EXPERT OF EXPERTS® vestigation of construction defects. Repair cost esti- 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA mates. Construction contract/subcontract perfor- 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- mance—project management administration & cost ac- TEL. 951-780-7892 1950, e-mail: [email protected]. Web site: counting, CPM scheduling, cost estimating, change order www.forensisgroup.com. Contact Mercy Steenwyk. administration, quality assurance & building performance. Thousands of our clients have gained the technical ad- Evaluation of delay claims. Documentation of major prop- DATACHASERS.COM vantage and the competitive edge in their cases from our erty/casualty insurance losses. Excellent litigation support resource group of high-quality experts in construction, & trial exhibit preparation. Expert witness testimony. Ex-

52 Los Angeles Lawyer November 2008 perienced AAA arbitrator & mediator. Large & complex cases. Member, Dispute Resolution Boards. Matthew Lankenau 213-996-2549 URS 915 Wilshire Boulevard, Suite 800, Los Angeles, CA [email protected] 90017, (213) 996-2549, fax (213) 996-2521, e-mail: [email protected]. Expert witness for URS is the nation’s largest engineering, consulting and construction entitlement, causation damages on design, construction, services ﬁrm. URS specializes in the resolution of construction disputes. and geotechnical environmental disputes. Experienced in all types of construction projects. See display ad on page 53. Dispute Resolution & Forensic Analysis Technical Expertise Design/Construction Claims Architecture CONSTRUCTION DISPUTE ADR SERVICES Environmental Claims Engineering Bid/Cost/Damage Analysis Scheduling COMA CONSULTANTS, INC. Construction Defect Analysis Construction Management 2220 Waterfront Drive, Corona Del Mar, CA 92625-1935, Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing (949) 673-7273, cell (949) 246-4385, fax (949) 673-2104, Expert Witness Testimony Environmental e-mail: [email protected]. Contact D. Gordon Insurance/Bond Claims Geotechnical Follett, MSc, PE, Principal/Owner. Construction dispute arbitrator and mediator. Panel of Neutrals for Ameri- can Arbitration Association since 1996; Certiﬁed Senior Mediator, Orange County Superior Court Mediation Pro- gram since 2003; Los Angeles County Superior Court Panel of Mediators since 2004; Associate Member of both the Orange County and Los Angeles County Bars. CHEMICAL EXPERT WITNESS Have arbitrated or successfully resolved through mediation numerous technically complex construction claims and disputes. Working construction manager with over 40 AREAS OF EXPERTISE: years of construction experience. Pepperdine and Ameri- can Arbitration Association trained. Professional member, ■ HOUSEHOLD CHEMICALS Southern California Mediation Association; Licensed Pro- ■ INDUSTRIAL CHEMICALS fessional Engineer, and General Contractor. Also provides Construction Dispute Prevention Services and litigation ■ HAZARDOUS MATERIALS support. DR. KENNETH H. BROWN ■ PAINT & COATINGS Toll-Free (866) CHEM-EXPT ■ LABELS & WARNINGS CONSTRUCTION DISPUTES—LITIGATION SUPPORT [email protected] ■ LAB TESTING & ANALYSIS

COMA CONSULTANTS, INC. 2220 Waterfront Drive, Corona Del Mar, CA 92625-1935, (949) 673-7273, cell (949) 246-4385, fax (949) 673-2104, e-mail: [email protected]. Contact D. Gordon Follett, MSc, PE, Principal/Owner. Expert litigation support for contractor/subcontractor/owner contract disputes—expert testimony, trial support, and consultation. Working construction manager with over 40 years of construction experience. Has provided litigation support, both as an expert witness and as a consulting expert, on a multitude of technically complex construction claims and litigation matters with values in excess of $10 million. Li- censed professional engineer and general contractor. Also provides construction dispute ADR services such as dispute prevention and resolution, mediation, and arbitration.

CORPORATE INVESTIGATIONS

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We offer in- its, unjust enrichment, reasonable royalties, lost earnings, ECONOMIC ANALYSIS house expertise in applied economic theory, economet- lost value of business, forensic accounting, fraud investi- rics, statistics, and years of experience successfully deal- gation, investigative analysis of liability, marital dissolution, LIPIS CONSULTING, INC. ing with the specific demands of the litigation process. and tax planning and preparation. Excellent communica- 1355 Westwood Boulevard, Suite 208, Los Angeles, CA Econ One experts have testified in state and federal tors with extensive testimony experience. Prior Big Four 90024, (310) 445-4393, fax (310) 445-4395, e-mail: courts; administrative, legislative and regulatory agencies, accountants. Specialties include accounting, breach of [email protected]. Web site: www.lipisconsulting and in arbitrations and mediations. We understand the contract, business interruption, business dissolution, con- .com. Specialties: Twenty-five + years of experience as need for clear, accurate, persuasive answers to complex struction defects, delays, and cost overruns, fraud, insur- plan designer, including 10 years of experience as expert. problems. See display ad on page 65. ance bad faith, intellectual property including trademark, Deposed multiple times, testified in court several times. patent, and copyright infringement, and trade secrets, Degrees/licenses: BS, Wharton School of Finance, Uni- FULCRUM FINANCIAL INQUIRY malpractice, marital dissolution, personal injury, product li- versity of Pennsylvania; MBA, University of Chicago. 888 South Figueroa Street, Suite 2000, Los Angeles, ability, real estate, tax planning and preparation, IRS audit CA 90017, (213) 787-4100, fax (213) 891-1300, defense, tracing, unfair advertising, unfair competition, ECONOMIC DAMAGES e-mail: [email protected]. Web site: www valuation of businesses, and wrongful termination. See .fulcruminquiry.com. Contact David Nolte. Our profes- display ad on page 47. ADVISORS/EXPERTS @ MCS ASSOCIATES sionals are experienced CPAs, MBAs, ASAs, CFAs, affili- 18881 Von Karman, Suite 1175, Irvine, CA 92612, ated professors, and industry specialists. Our analysis DISPUTE ANALYSIS (949) 263-8700, fax (949) 263-0770, e-mail: experts and research combined with unique presentation tech- @mcsassociates.com. Web site: www.mcsassociates niques have resulted in an unequaled record of successful THE CAPANALYSIS GROUP, LLC .com. Contact Norman Katz, managing partner. Na- court cases and client recoveries. Our expertise encom- 550 South Hope Street, Suite 1100, Los Angeles, CA tionally recognized banking, finance, insurance, and real passes damages analysis, lost profit studies, business 90071, (213) 892-2500, fax (213) 892-2300, e-mail: estate consulting group (established 1973). Experienced and intangible asset valuations, appraisals, fraud investi- [email protected]. Web site: www.capanalysis litigation consultants/experts include senior bankers, gations, statistics, forensic economic analysis, royalty au- .com. Contact Evy M. Wild, BS, JD. Specialties: eco- lenders, consultants, economists, accountants, insurance dits, strategic and market assessments, computer foren- nomic, financial, accounting, and statistical analysis for underwriters/brokers. Specialties: lending customs, prac- sics, electronic discovery, and analysis of computerized complex litigation, arbitration, regulatory proceedings, and tices, policies, in all types of lending (real estate, sub- data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and strategic corporate decision making. Assist attorneys with prime, business/commercial, construction, consumer/ MBAs in accounting, finance, economics, and related discovery, identification of relevant economic and financial credit card), banking operations/administration, trusts and subjects. See display ad on page 1. issues, preparation of analytical models, critique of op- investments, economic analysis and valuations/damages posing experts, and expert testimony in federal and state assessment, insurance claims, coverages and bad faith, HIGGINS, MARCUS & LOVETT, INC. courts, and before the FTC and DOJ. Handle matters be- real estate brokerage, appraisal, escrow, and construc- 800 South Figueroa Street, Suite 710, Los Angeles, CA fore the EC, the ITC, and the U.S. court of International tion defects/disputes, and title insurance. 90017, e-mail: [email protected]. Web site: www Trade. Areas of expertise include antitrust (including cut- .hmlinc.com. Contact Mark C. Higgins, ASA, presi- ting-edge analyses of market definition, market power, THE CAPANALYSIS GROUP, LLC dent. The firm has over 25 years of litigation support and coordinated interactions, and unilateral effects), economic 550 South Hope Street, Suite 1100, Los Angeles, CA expert testimony experience in matters involving business damages, business valuation, investigative and forensic 90071, (213) 892-2500, fax (213) 892-2300, e-mail: valuation, economic damages, intellectual property, loss accounting and auditing, intellectual property (including [email protected]. Web site: www.capanalysis of business goodwill, and lost profits. Areas of practice in- patent, trademark, and copyright infringement, and valua- .com. Contact Evy M. Wild, BS, JD. Specialties: eco- clude business disputes, eminent domain, bankruptcy, tion of intellectual property), insurance coverage, contract nomic, financial, accounting, and statistical analysis for and corporate and marital dissolution. See display ad on disputes and tort claims, mergers and acquisitions, secu- complex litigation, arbitration, regulatory proceedings, and page 53.

54 Los Angeles Lawyer November 2008 MAYER HOFFMAN MCCAIN PC countant/accredited in business valuation, certified valua- 963-4088, e-mail: [email protected]. Contact Bar- 11601 Wilshire Boulevard, Suite 2300, Los Angeles, CA tion analyst, certified fraud examiner. Education: BA bara Luna or Bill Wolf. Expert witness testimony for 90025, (310) 268-2000, fax (310) 268-2001, e-mail: (Mathematics) UC San Diego, MS (Operations Research) complex litigation involving damage analyses of lost prof- [email protected]. Web site: www.MHM-PC.com, UCLA. Teaching: Adjunct Professor, Loyola Law School. its, unjust enrichment, reasonable royalties, lost earnings, www.CBIZ.com. Contact Steve Franklin. Specializes in See display ad on page 63. lost value of business, forensic accounting, fraud investi- business litigation; business valuation and appraisal, mari- gation, investigative analysis of liability, marital dissolution, tal dissolutions, transactional due diligence, financial re- VICENTI, LLOYD & STUTZMAN LLP and tax planning and preparation. Excellent communica- construction, fraud investigation, family limited partner- 2210 East Route 66, Suite 100, Glendora, CA 91740, tors with extensive testimony experience. Prior Big Four ships, commercial damage and lost profits computations (626) 857-7300, fax (626) 857-7302, e-mail: RStutzman accountants. Specialties include accounting, breach of and business interruption. Experienced expert testimony @vlsllp.com. Web site: www.VLSLLP.com. Contact contract, business interruption, business dissolution, con- and tax controversy representation. Royce Stutzman, CVA, CPA/ABV, Chairman. At VLS, struction defects, delays, and cost overruns, fraud, insur- we’ve built a team of certified valuation and forensic pro- ance bad faith, intellectual property including trademark, SCHULZE HAYNES LOEVENGUTH & CO. fessionals with rich experiences and dedication to a wide patent, and copyright infringement, and trade secrets, 660 South Figueroa Street, Suite 1280, Los Angeles, variety of attorneys and business owners. We provide re- malpractice, marital dissolution, personal injury, product li- CA 90017, (213) 627-8280, fax (213) 627-8301, sponsible and effective litigation support and business ability, real estate, tax planning and preparation, IRS audit e-mail: [email protected]. Web site: www valuation services to hundreds of clients in California. We defense, tracing, unfair advertising, unfair competition, .schulzehaynes.com. Contact Karl J. Schulze, princi- conduct valuations related to mergers and acquisitions, valuation of businesses, and wrongful termination. See pal. Specialties: forensic business analysis and account- buy-sell agreements, purchase/sale of closely held busi- display ad on page 47. ing, lost profits, economic damages, expert testimony, nesses, and partner disputes. Our forensic accounting discovery assistance, business valuations, construction experts assess the amount of an economic loss, whether ECONOMICS claims, corporate recovery, financial analysis and model- it be business interruption from casualty, unfair competi- ing, major professional organizations, and have experi- tion, condemnation, damage caused by others, or loss of THE CAPANALYSIS GROUP, LLC ence across a broad spectrum of industries and business earnings from various events. Our fraud investigation 550 South Hope Street, Suite 1100, Los Angeles, CA issues. Degrees/licenses: CPA; CVA; CFE; ABV; PhD- team reviews documentation, interviews witnesses and 90071, (213) 892-2500, fax (213) 892-2300, e-mail: economics. suspects, and assesses evidence to resolve allegations. [email protected]. Web site: www.capanalysis. We provide expert witness testimony and implement com. Contact Evy M. Wild, BS, JD. Specialties: eco- THOMAS NECHES & COMPANY LLP fraud prevention programs. We pride ourselves on the nomic, financial, accounting, and statistical analysis for 609 South Grand Avenue, Suite 1106, Los Angeles, CA quality of the relationships we build and the outcomes we complex litigation, arbitration, regulatory proceedings, and 90017-3848, (213) 624-8150, fax (213) 624-8152, achieve for our clients. Call us today for your free consul- strategic corporate decision making. Assist attorneys with e-mail: [email protected]. Web site: www tation at (626) 857-7300. Making A Positive Difference discovery, identification of relevant economic and financial .thomasneches.com. Contact Thomas M. Neches, Since 1953. issues, preparation of analytical models, critique of op- CPA, ABV, CVA, CFE. Accounting, financial, business posing experts, and expert testimony in federal and state valuation, and statistical analyses to assist attorneys in liti- WHITE, ZUCKERMAN, WARSAVSKY, LUNA, courts, and before the FTC and DOJ. Handle matters be- gation. Expert testimony in state and federal courts. WOLF & HUNT fore the EC, the ITC, and the U.S. court of International Cases: Antitrust, breach of contract, fraud, intellectual 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA Trade. Areas of expertise include antitrust (including cut- property, lost business value, lost profits, wrongful death, 91423, (818) 981-4226, fax (818) 981-4278, 363 San ting-edge analyses of market definition, market power, and wrongful termination. Industries: banking, construc- Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) coordinated interactions, and unilateral effects), economic tion, entertainment, insurance, manufacturing, retail, se- 219-9816, fax (949) 219-9095, 831 State Street, Suite damages, business valuation, investigative and forensic curities, and wholesale. Credentials: certified public ac- 291, Santa Barbara, CA 93101, (805) 648-4088, fax (805) accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valua-

Los Angeles Lawyer November 2008 55 tion of intellectual property), insurance coverage, contract 780-9903, fax (951) 789-0783, e-mail: marks@alohasys California. Specializations include sexual harassment, disputes and tort claims, mergers and acquisitions, secu- .com. Web site: www.pwrexpert.com. Contact Dr. Mark ADA/disability discrimination, other Title VII and FEHA dis- rities fraud, and full range of jury consulting services. De- Shirilau. Electricity and electric utility power systems, crimination and harassment, retaliation, FMLA/CFRA, grees/licenses: CPAs, CFEs, CVAs, JDs, PhDs. rates, and billing responsibilities. PhD in power systems— safety, and wrongful termination. Courtroom testimony generation, transmission, distribution, energy use and and deposition experience. Retained 60 percent by de- COHEN, MISKEI & MOWREY LLP conservation. PE and licensed contractor. Former utility fense, 40 percent by plaintiff. Audit employer’s actions in 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, employee. preventing and resolving discrimination, harassment, and CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: retaliation issues. Assess human resources policies and [email protected]. Web site: www.cmmcpas CTG FORENSICS, INC. practices for soundness, for comparison to prevailing .com. Contact Scott Mowrey. Specialties: consultants 16 Technology Drive, Suite 109, Irvine, CA 92618, practices, and for compliance. Evaluate employer respon- who provide extensive experience, litigation support, and (949) 790-0010, fax (949) 790-0020, e-mail: mlewis siveness to complaints and effectiveness of employer in- expert testimony regarding forensic accountants, fraud in- @CTGforensics.com. Web site: www.CTGforensics.com. vestigations. Assist counsel via preliminary case analysis, vestigations, economic damages, business valuations, Contact Dr. Malcolm Lewis, PE. Construction-related discovery strategy, examination of documents, and expert family law, bankruptcy, and reorganization. Degrees/li- engineering, plumbing, mechanical (heating, ventilating, testimony. cense: CPAs, CFEs, MBAs. See display ad on page 57. A/C) and electrical (power, lighting), energy systems, residential and nonresidential buildings, construction defects, BRIAN H. KLEINER, PHD, MBA FULCRUM FINANCIAL INQUIRY construction claims, and mold. Professor of Human Resource Management, California 888 South Figueroa Street, Suite 2000, Los Angeles, CA State University, 800 North State College Boulevard, LH- 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte ELECTRONIC DISCOVERY 640, Fullerton, CA 92834, (714) 879-9705, fax (714) 879- @fulcruminquiry.com. Web site: www.fulcruminquiry.com. 5600. Contact Brian H. Kleiner, PhD. Specializations Contact David Nolte. Our professionals are experienced ROBERT J. ABEND, PE include wrongful termination, discrimination, sexual ha- CPAs, MBAs, ASAs, CFAs, affiliated professors, and in- 1658 Laraine Circle, San Pedro, CA 90732, cell (310) rassment, ADA, evaluation of policies and practices, rea- dustry specialists. Our analysis and research combined 346-6543, (310) 221-0716, e-mail: [email protected]. sonable care, progressive discipline, conducting third- with unique presentation techniques have resulted in an Web site: www.linkline.com/personal/rabend. Specialties: party workplace investigations, retaliation, RIFs, statistics, unequaled record of successful court cases and client re- Electrical engineering, computer forensics, data recovery, negligent hiring, promotion selections, CFRA/FMLA, com- coveries. 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Web site: www tions/labor market research and testimony on employabil- business litigation; business valuation and appraisal, mari- .setecinvestigations.com. Contact Todd Stefan. Setec ity and earning capacity as well as educational options in tal dissolutions, transactional due diligence, financial re- Investigations offers unparalleled expertise in computer divorce, personal injury, and wrongful termination cases. construction, fraud investigation, family limited partner- forensics and enterprise investigations providing personal- ships, commercial damage and lost profits computations ized, case-specific forensic analysis and litigation support ECON ONE RESEARCH, INC. and business interruption. Experienced expert testimony services for law firms and corporations. Setec Investiga- 601 West Fifth Street, 5th Floor, Los Angeles, CA 90071, and tax controversy representation. tions possesses the necessary combination of technical (213) 624-9600, fax (213) 624-6994, e-mail: lskylar expertise, understanding of the legal system, and special- @econone.com. Web site: www.econone.com. Contact ELECTRICAL ized tools and processes enabling the discovery, collec- Lisa Skylar. Econ One provides economic research, tion, investigation, and production of electronic informa- consulting and expert testimony in many areas, including: ROBERT J. ABEND, PE tion for investigating and handling computer-related antitrust, intellectual property and patent infringement, 1658 Laraine Circle, San Pedro, CA 90732, cell (310) crimes or misuse. Our expertise includes computer foren- contract disputes, damages analysis/calculations, em- 346-6543, (310) 221-0716, e-mail: [email protected] sics, electronic discovery, litigation support, and expert ployment issues, and unfair competition. We offer in- Web site: www.linkline.com/personal/rabend. Specialties: witness testimony. house expertise in applied economic theory, economet- Electrical engineering, computer forensics, data recovery, rics, statistics, and years of experience successfully deal- electronic discovery, computer engineering, software, EMPLOYMENT LAW ing with the specific demands of the litigation process. electronics, microelectronics, electronics manufacturing, Econ One experts have testified in state and federal intellectual property, and trade secret litigation. Technical EQUILAW courts; administrative, legislative and regulatory agencies, support during case preparation. Practiced at court and 10061 Riverside Drive, # 536, Toluca Lake, CA 91602, and in arbitrations and mediations. We understand the deposition testimony. Thirty-five years of experience in the (818) 762-7676, fax (818) 762-8003, e-mail: jyanow need for clear, accurate, persuasive answers to complex electronics and computer industry. Fifteen years as a @equilaw.com. Web site: www.equilaw.com. Contact problems. See display ad on page 65. forensic engineering consultant. References provided on Julie B Yanow, Principal. Over two decades of employ- request. Degrees/licenses: BSEE, MS, Registered Profes- ment and labor law experience. EquiLaw assists clients GOLDFARB AND ASSOCIATES sional Engineer, Certified EnCase Computer Forensic Ex- with workplace investigations of harassment, discrimina- 1101 Fremont Avenue, Suite 103, South Pasadena, CA aminer, FCC General Radiotelephone license. tion, retaliation/other misconduct; workplace training in 91030, (626) 441-9687, fax (626) 799-8736, e-mail: harassment/discrimination prevention, HR practices, [email protected]. Contact Howard ELECTRICAL ACCIDENTS management skills, and executive coaching. EquiLaw Goldfarb. Vocational rehabilitation consultant providing also offers expert consulting/testimony regarding the pre- expert witness testimony on employability and wage loss JAMES A. SMITH, CONSULTANT vention, investigation, elimination of unlawful workplace in personal injury, marriage dissolution, ERISA, age dis- 2562 Treasure Drive, Suite 4102, Santa Barbara, CA harassment, discrimination, and retaliation. See display crimination, and sexual harassment. 93105-4177, (805) 687-7911, fax (805) 687-0832, e-mail: ad on page 59. [email protected]. Electrical accidents, electrocution PERSONNEL SYSTEMS ASSOCIATES, INC. and electric shock, analyzing what happened and why, EMPLOYMENT/DISCRIMINATION/ P.O. Box 28597, Anaheim, CA 92809, (714) 281-8337, consulting on case strategy, and being an expert witness, HARASSMENT fax (714) 281-2949, e-mail: mding@personnelsystems National Electric Code compliance, California GO-95 HAIGHT CONSULTING .com. Web site: www.personnelsystems.com. Contact compliance, National Electric Safety Code compliance, Mae Lon Ding, MBA, CCP. Expert witness in employ- protective relaying, and equipment and product testing. 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) 454-2988, fax (310) 454-4516. Contact Marcia Haight, ment, business dispute, disability, and divorce cases involving issues of employee or owner compensation, dis- ELECTRICAL ENGINEERING SPHR. Human resources expert knowledgeable in both federal and California law. Twenty-five years’ corporate crimination, wrongful termination, exemption from over- ALOHA SYSTEMS human resources management experience plus over 19 time, labor market/employability, lost wages/benefits, em- 8539 Barnwood Lane, Riverside, CA 92508-7126, (951) years as a Human Resources Compliance Consultant in ployee performance, and evaluation of personnel policies and practices. Nationally recognized human resource

56 Los Angeles Lawyer November 2008 management and compensation consultant, speaker, author of book and articles, university instructor. Quoted in Los Angeles Times, Orange County Register, Business TRUST DEED FORECLOSURES EXPERT WITNESS Week, Workforce, and Working Woman. Over 16 years of “Industry Specialists For Over 18 Years” testifying in cases involving major national organizations in t Witkin & Eisinger we specialize in the Non-Judicial a large variety of industries involving multiple plaintiffs. INDUSTRIAL/COMMERCIAL MBA, Certified Compensation Professional. A Foreclosure of obligations secured by real property or real and personal property (mixed collateral). REAL ESTATE ENGINEER/ELECTRICAL & MECHANICAL When your client needs a foreclosure done profession- Care, Duty & Broker Responsibility ally and at the lowest possible cost, please call us at: LAWRENCE KAMM Lease & Purchase Contracts 1-800-950-6522 Condition of Premises 1515 Chatsworth Boulevard, San Diego, CA 92107, (619) We have always offered free advice to all attorneys. 224-3494, fax (619) 224-3495, e-mail: ljkamm@ljkamm 44 Years of Experience .com. Web site: www.ljkamm.com/home.htlm. Contact Lawrence Kamm. Accident reconstruction, electrical, WITKIN and mechanical. Patent infringement and validity. EISINGER, LLC JACK KARP ENGINEER/GEOTECHNICAL & ◆ RICHARD G. WITKIN, ESQ. CAROLE EISINGER (310) 377-6349 FAX: (310) 868-2880 COTTON, SHIRES AND ASSOCIATES, INC. 330 Village Lane, Los Gatos, CA 95030-7218, (408) 354- 5542, fax (408) 354-1852, e-mail: pshires@cottonshires .com. Web site: www.cottonshires.com. Contact Patrick O. Shires. Full-service geotechnical engineering As an Expert Witness in Real Estate Litigation, Attorney consulting firm specializing in investigation, design, arbitration, and expert witness testimony with offices in Los LAWRENCE H. JACOBSON Gatos and San Andreas, California. Earth movement (set- has consistently been on the Winning Team tlement, soil creep, landslides, tunneling and expansive soil), foundation distress (movement and cracking of • Real estate and • Lawyer malpractice • Interpretation structures), drainage and grading (seeping slabs and mortgage brokers’ in business and real of real estate ponding water in crawlspace), pavement and slabs (cracking and separating), retaining walls (movement, standard of care estate transactions documents cracking and failures), pipelines, flooding and hydrology, Practicing real estate law in California since 1968. Member, Board of Governors, Beverly Hills Bar Association. design and construction deficiencies, expert testimony at Former Vice President-Legal Affairs, California Association of Realtors. California Real Estate Broker since 1978. over 75 trials (municipal, superior and federal); 100+ depositions; 200+ settlement conference in southern and LAWRENCE H. JACOBSON AB, UCLA 1964, JD UCLA SCHOOL OF LAW 1967 northern California and Hawaii. Tel 310.271.0747 Fax 310.271.0757 email [email protected] www.lawrencejacobson.com ENGINEER/TRAFFIC LAW OFFICES: 9401 WILSHIRE BLVD. SUITE 1250, BEVERLY HILLS, CA 90212 WILLIAM KUNZMAN, PE 1111 Town and Country #34, Orange, CA 92868, (714) 973-8383, fax (714) 973-8821, e-mail: mail @traffic-engineer.com. Web site: www.traffic-engineer .com. Contact William Kunzman, PE. Traffic expert witness since 1979, both defense and plaintiff. Auto, pedestrian, bicycle, and motorcycle accidents. Largest verdict: $10,300,000 in pedestrian accident case against Los Angeles Unified School District. Largest settlement: $2,000,000 solo vehicle accident case against Caltrans. Before becoming expert witnesses, employed by Los An- geles County Road Department, Riverside County Road Department, City of Irvine, and Federal Highway Adminis- tration. Knowledge of governmental agency procedures, design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds of cases. Undergraduate work—UCLA; graduate work—Yale Uni- versity.

ENGINEERING

DIVERSIFIED ENGINEERING OF WESTLAKE, INC. 31157 Lobo Vista Road, Agoura, CA 91301, (818) 865- 8844, fax (818) 865-9944, e-mail: [email protected]. Web site: www.ateco.us. Contact L. Peter Petrovsky, PE. Expert witness and consulting in applied civil and mechanical engineering, engineering, building, and earthwork contracting. Our strength and experience is in combining engineering and contracting skills. Understanding of the mechanical and civil engineering design and principles, combined with knowledge of the standards of use, is essential to the ability to distill complex technical issue to a palatable presentation in the appropriate forum.

FALLBROOK ENGINEERING 355 West Grand Avenue, Suite 4, Escondido, CA 92025, (760) 489-5400, fax (760) 489-5412, e-mail: veronicav @fallbrook-eng.com. Web site: www.fallbrook-eng.com. Contact Richard P. Meyst. Fallbrook Engineering provides expert witness services in the areas of IP (patent infringement, invalidity, claim construction and trade dress),

Los Angeles Lawyer November 2008 57 personal injury, product liability, and product failure analy- HARGIS + ASSOCIATES, INC. Education through monthly meetings, workshops, and sis. Our professionals have represented both plaintiff and 2365 Northside Drive, Suite C-100, San Diego, CA annual conference. Referral service. Eight chapters defendant. We have done analysis, prepared declara- 92108, (800) 554-2744, (619) 521-0165, fax (619) 521- throughout California, Texas, Midwest, and Arizona. See tions, been deposed and testified in court. We have years 8580, e-mail: [email protected]. Web site: www.hargis display ad on page 52. of design and development experience making us effec- .com. Contact David R. Hargis, PhD, PG. Expert wit- tive expert witnesses in all matters involving medical de- ness testimony, technical consultation, and litigation sup- TASA (TECHNICAL ADVISORY SERVICE FOR vices. Visit our website at www.fallbrook-eng.com. port concerning hydrogeologic assessments to evaluate ATTORNEYS) EXPERTS IN ALL CATEGORIES groundwater supply, basin studies, nature/extent of Contact Heather Williamson. (800) 523-2319, fax (800) FORENSISGROUP® soil/groundwater contamination, source identification, 329-8272. The best source for Consulting and Testifying THE EXPERT OF EXPERTS® identification of potentially responsible parties, cost alloca- Experts, TASA provides time-saving, customized referrals 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA tion studies, and negotiations with USEPA and state reg- to outstanding, local, regional, and national specialists, in- 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- ulatory agencies involving cleanup levels and approval of cluding hard-to-find authorities in virtually all professions. 1950, e-mail: [email protected]. Web site: RI/FS/RD/RA documents for various state and federal Su- We offer more than 10,000 categories of expertise, in- www.forensisgroup.com. Contact Mercy Steenwyk. perfund sites. See display ad on page 61. cluding over 900 medical specialties through the Thousands of our clients have gained the technical ad- TASAmed division. Your request receives our prompt, vantage and the competitive edge in their cases from our PACIFIC HEALTH & SAFETY personal attention. TASA targets referrals, forwards re- resource group of high-quality experts in construction, CONSULTING, INC. sumes, and helps arrange your initial expert interview medical, engineering, product liability, safety, environmen- 2192 Martin, Suite 230, Irvine, CA 92612, (949) 253- calls. And if you don’t ultimately designate or engage an tal, accident reconstruction, automotive, failure analysis, 4065, e-mail: [email protected]. Web site: expert we refer, there is NO CHARGE at all. Plaintiff/de- fires, explosions, slip and fall, real estate, economics, ap- www.phsc-web.com. Contact Tim Morrison. Provid- fense, civil/criminal cases. Experts can assist you at any praisal, employment, computers, and other technical and ing quality consultation and expert witness for mold, stage of your case from early case merit assessment to scientific disciplines. We provide you with a select group bacteria, lead, and asbestos. Certified training for health deposition and testimony. Sample expertise categories in- of high-quality experts as expeditiously as possible. Un- and safety, OSHA, and AQMD regulations. See display clude accident reconstruction, banking, computers, con- surpassed recruitment standards. Excellent client service. ad on page 67. struction, economics, electronics, engineering, forensic See display ad on page 45. accounting, healthcare, intellectual property, machine de- PCR SERVICES CORPORATION sign, medical devices, mold, OSHA, personal injury, prod- HICHBORN CONSULTING GROUP 233 Wilshire Boulevard, Suite 130, Santa Monica, CA uct liability, safety, security, and toxicology. Serving Cali- 1040 East Howell Avenue, Anaheim, CA 92805, (714) 90401, (310) 451-4488, fax (310) 451-5279, e-mail: fornia law and insurance firms of all sizes. Benefit from 637-7400, fax (714) 637-7488, e-mail: info@hichborn [email protected]. Web site: www.pcrnet.com. over 50 years of TASA Group experience. Please see in- .com. Web site: www.hichborn.com. Contact Geoffrey Contact Gregory J. Broughton. PCR provides authori- sert in this issue and display ad on page 65. Hichborn Sr, PE. General civil design with specialties tative and experienced expert testimony related to matters featuring forensic investigations of concrete work and subject to the California Environmental Quality Act (CEQA) EXPERT WITNESS concrete products, concrete, cement and related materi- and National Environmental Policy Act (NEPA), and regard- als expertise, construction practices and materials evalua- ing technical aspects of: biological resources, archaeologi- AMFS MEDICAL EXPERTS NATIONWIDE tion, repair recommendations, construction observation, cal or historic resources, air quality, human health risk, me- 2000 Powell Street, Suite 520, Emeryville, CA 94608, public works/residential/commercial/industrial, and spe- teorology, environmental acoustics, vibration, acoustic mit- (800) 275-8903. Web site: www.AMFS.com. Medical ex- cially designed tests of distressed materials. igation, public utility and services systems, land use policy, perts for malpractice and personal injury cases. AMFS is and scenic and aesthetic resources. America’s premier medical expert witness and consulting ROGGENKAMP ERICKSON & ASSOCIATES, PC company. We are a trusted partner with the legal commu- 10000 NE 7th Avenue, Suite 150, Vancouver, WA 98685, THE REYNOLDS GROUP nity and provide a superior method of retaining medical (360) 573-4545, fax (360) 576-7606, e-mail: brandon P.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397, experts. Since 1990, we have provided board-certified @reastructuralengineers.com. Web site: www fax (714) 730-6476, e-mail: edreynolds@reynolds-group experts in over 10,000 malpractice and personal injury .Reastructuralengineers.com. Contact Brandon W. .com. Web site: www.reynolds-group.com. Contact Ed cases with a 92% win-rate compared to the industry av- Erickson. Structural engineering; investigations of exist- Reynolds. Principal of the Reynolds Group, an environ- erage of 28%. • 8,500+ experts in 250+ specialties, • ing buildings’ structural problems due to design errors, mental consulting, contracting, and consulting firm. Expe- Practicing Physicians with Legal Experience, • No cost at- construction defects, age, climate, use, catastrophes, rienced in matters related to environmental contamination, torney consultations, • Record Review & Testimony, • In- and loadings; determine the cause(s) of structural dis- assessment and remediation, reasonable value of con- dependent Medical Examinations (IME) & Autopsies, • Es- tress; forensic evaluations; detailed documentation and struction, and related financial matters. Degrees from sential Affidavits & Reporting. Free Attorney Consulta- reports; litigation support to assist in the equitable resolu- USC, BS, Civil Eng., 1981; University of Houston, MS, tions. Discuss your case at no charge with a physician tion of liability claims; construction means and methods Civil Eng., 1984; and Harvard, MBA, 1986. California reg- who will identify and clarify your case issues to ensure you engineering; design of structural remediation and repairs; istered civil engineer, licensed contractor. Adjunct faculty retain the appropriate specialists. Case Reviews for expert witness services; peer reviews; insurance claims member at the USC School of Engineering and member Merit. Have your case reviewed for merit in round-table investigations. of its Board of Councilors. fashion by a multidisciplinary panel of practicing, board- certified physicians. Review & Select Expert CVs. Our ENVIRONMENTAL ESCROW experience, resources and large proprietary database en- able us to quickly identify and interview a large number of THE CAPANALYSIS GROUP, LLC ADVISORS/EXPERTS @ MCS ASSOCIATES potential medical experts on your behalf and provide you 550 South Hope Street, Suite 1100, Los Angeles, CA 18881 Von Karman, Suite 1175, Irvine, CA 92612, with the CVs of those who are best suited to your case. 90071, (213) 892-2500, fax (213) 892-2300, e-mail: (949) 263-8700, fax (949) 263-0770, e-mail: experts See display ad on page 67. [email protected]. Web site: www.capanalysis @mcsassociates.com. Web site: www.mcsassociates .com. Contact Evy M. Wild, BS, JD. Specialties: eco- .com. Contact Norman Katz, managing partner. Na- EXPERT WITNESS WEB SITES nomic, financial, accounting, and statistical analysis for tionally recognized banking, finance, insurance, and real complex litigation, arbitration, regulatory proceedings, and estate consulting group (established 1973). 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Handle matters be- prime, business/commercial, construction, consumer/ best online directory for finding expert witnesses, legal fore the EC, the ITC, and the U.S. court of International credit card), banking operations/administration, trusts and consultants, litigation support, lawyer-to-lawyer network- Trade. Areas of expertise include antitrust (including cut- investments, economic analysis and valuations/damages ing, dispute resolution professionals, and law office tech- ting-edge analyses of market definition, market power, assessment, insurance claims, coverages and bad faith, nology. This comprehensive directory is the one-stop site coordinated interactions, and unilateral effects), economic real estate brokerage, appraisal, escrow, and construc- for your legal support needs. Available 24/7/365! Brought damages, business valuation, investigative and forensic tion defects/disputes, and title insurance. to you by the Los Angeles County Bar Association. accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valua- EXPERT REFERRAL SERVICE FAILURE ANALYSIS tion of intellectual property), insurance coverage, contract KARS ADVANCED MATERIALS, INC. disputes and tort claims, mergers and acquisitions, secu- FORENSIC EXPERT WITNESS ASSOCIATION Testing and Research Labs, 2528 West Woodland Drive, rities fraud, and full range of jury consulting services. De- 2402 Vista Nobleza, Newport Beach, CA 92660, (949) Anaheim, CA 92801-2636, (714) 527-7100, fax (714) grees/licenses: CPAs, CFEs, CVAs, JDs, PhDs. 640-9903, fax (949) 640-9911, e-mail: [email protected]. Web site: www.forensic.org. Contact Norma S. Fox, 527-7169, e-mail: [email protected]. Web site: www executive director. Nonprofit professional association. .karslab.com. Contact Drs. Ramesh J. Kar or Naresh

58 Los Angeles Lawyer November 2008 J. Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Regis- tered professional engineers with 20-plus years in metal- MOTORCYCLE EXPERT WITNESS lurgical/forensic/structural failure analysis. Experienced with automotive, bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff EXPERIENCE AREAS OF SPECIALITY and defendant cases. Complete in-house capabilities for CA Licensed (#32551) Motorcycle Dynamics tests. Extensive deposition and courtroom experience Professional Mechanical Engineer Motorcycle Performance Analysis (civil and criminal investigations). Principals are fellows of M.S. in Mechanical Engineering Accident Reconstruction American Society for Metals and board-certified diplo- Motorcycle Road Racing Expert Vehicle Testing & Data Acquisition mates, American Board of Forensic Examiners. See dis- Edward P. Milich, P.E. License Holder Finite Element Analysis play ad on page 69. PO Box 5 National Roadracing Champion, Torrance CA 90507 #1 Plate Holder Technical Writing & Communications DR. WILLIAM D. GUENTZLER 310. 710. 4708 voice Member, Society of Automotive FORENSIC INTERNATIONAL 310. 533. 9152 fax Engineers, Motorcycle Technical 10298 Hawley Road, El Cajon, CA 92021, (619) 390- [email protected] Committee WHEN YOUR CASE REQUIRES 9081, cell (619) 823-9081, fax (619) 390-9086, e-mail: www.epmengineering.com 20 Years of Motorcycle Experience A CHAMPION [email protected]. Contact William D. Guentzler, Former NHTSA Associate PhD. Dr. Guentzler has over 28 years of experience as an expert witness and forensic examiner and 36 years as a University Professor. He is licensed in the state of Arizona as a private investigator. His expertise includes auto, MICHAEL R. WEINRAUB, M.D. truck, ATC, ATV, motorcycle, motor homes, and golf carts. He also specializes in braking systems, ignition, fuel BOARD CERTIFIED PEDIATRICIAN systems, cooling, electrical and battery explosions, as well as vehicle fire cause and origin. 30 YEARS PEDIATRIC PRACTICE EXPERIENCE

ROGGENKAMP ERICKSON & Areas of Pediatric Expert Litigation Support: ASSOCIATES, PC • Pediatric Malpractice • Munchausen Syndrome by Proxy 10000 NE 7th Avenue, Suite 150, Vancouver, WA • Injury and Product Liability • Shaken Baby Syndrome (SBS) & 98685, (360) 573-4545, fax (360) 576-7606, e-mail: • Developmental Disabilities (SBIS) [email protected]. Web site: www (Autism) Toxic Lead Exposure .Reastructuralengineers.com. Contact Brandon W. • Custody Evaluation Erickson. Structural engineering; investigations of existing • • Fetal Alcohol Spectrum Disorder (FASD) buildings’ structural problems due to design errors, con- • Child Abuse and Neglect struction defects, age, climate, use, catastrophes, and loadings; determine the cause(s) of structural distress; OFFICE 213.236.3662 FAX 213.236.3663 E-MAIL [email protected] forensic evaluations; detailed documentation and reports; 515 SOUTH FLOWER STREET, #3600, LOS ANGELES, CALIFORNIA 90071 litigation support to assist in the equitable resolution of liability claims; construction means and methods engineering; design of structural remediation and repairs; expert witness services; peer reviews; insurance claims investigations.

FAMILY LAW

CALIFORNIA CAREER SERVICES 6024 Wilshire Boulevard, Los Angeles, CA 90036, (323) 933-2900, fax (323) 933-9929. Web site: www .californiacareerservices.com. Contact Susan W. Miller, ❖ MA, [email protected], or Phillip D. Sidlow, MS, INVESTIGATIONS [email protected]. Vocational examina- Specializing in harassment, discrimination, and other misconduct tions/labor market research and testimony on employabil- issues ity and earning capacity as well as educational options in ❖ TRAINING/EDUCATION divorce, personal injury, and wrongful termination cases. Customized, enjoyable learning experiences — from anti-harassment COHEN, MISKEI & MOWREY LLP and HR practices programs to management skills training and 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, executive coaching CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: ❖ EXPERT SERVICES [email protected]. Web site: www.cmmcpas Concerning the prevention, investigation, and elimination of .com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and unlawful harassment and discrimination in the workplace expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, ◆ UC Berkeley and UCLA School of Law graduate family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 57. ◆ Over two decades of experience in the employment/labor law areas ◆ GURSEY, SCHNEIDER & CO., LLP Superb technical and interpersonal skills 1888 Century Park East, Suite 900, Los Angeles, CA 90067, (310) 552-0960, fax (310) 557-3468. 20355 Hawthorne Boulevard, First Floor, Torrance, CA 90503, (310) 370-6122, fax (310) 370-6188, e-mail: rwatts @gursey.com or [email protected]. Web site: www .gursey.com. Contact Robert Watts or Tracy Katz. Forensic accounting and litigation support services in all 10061 Riverside Dr., #536 areas relating to marital dissolution; including, business Toluca Lake, CA 91602 valuation, tracing and apportionment of real property and assets, net spendable evaluations, determination of gross Office: 818 762 7676 [email protected] Fax: 818 762 8003 cash ﬂow available for support and analysis of reimbursement claims and marital standards of living. See display ad on page 50.

Los Angeles Lawyer November 2008 59 HARGRAVE & HARGRAVE 91602, (818) 790-1851, fax (818) 790-7671, e-mail: dave wrongful termination, professional liability, and expert 520 Broadway, Suite 680, Santa Monica, CA 90401, @mediationla.com. Web site: www.mediationla.com. cross examination. Extensive public speaking background (310) 576-1090, fax (310) 576-1080, e-mail: terry Contact David W. Dresnick, president. All real estate assists in courtroom presentations. @taxwizard.com. Web site: www.taxwizard.com. Con- matters, international trade disputes, accounting and fi- tact Terry M. Hargrave, CPA/ABV, CFE. Litigation ser- nancial statement disputes, corporate and small busi- FORENSIC ACCOUNTING vices for family law and civil cases. Past chair of California ness, and disputes between large corporations and small Society of CPAs’ Family Law Section, business valuation companies, and contract disputes of all kinds. All real es- CORNERSTONE RESEARCH instructor for California CPA Foundation. Services include tate, including evaluations, contracts, zoning, develop- 633 West Fifth Street, 31st Floor, Los Angeles, CA business valuations, income available for support, tracing ment, construction, secondary marketing, 90071-2005, (213) 553-2500, fax (213) 553-2699, e-mail: separate property, litigation consulting, real estate litiga- borrowers/lenders, residential escrows, residential, com- [email protected]. Web site: www.cornerstone tion, mediation, fraud investigations, damage calculation, mercial, apartment, lending, and contracts. See display .com. Contact George G. Strong, Jr. Cornerstone Re- and other forensic accounting work. ad on page 4. search provides attorneys with expert testimony and economic and financial analyses in all phases of commercial KRYCLER, ERVIN, TAUBMAN, & WALHEIM THE CAPANALYSIS GROUP, LLC litigation. We work with faculty and industry experts in a 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, 550 South Hope Street, Suite 1100, Los Angeles, CA distinctive partnership that combines the strengths of the CA 91403, (818) 995-1040, fax (818) 995-4124. Web 90071, (213) 892-2500, fax (213) 892-2300, e-mail wilde business and academic worlds. Our areas of expertise in- site: [email protected]. Contact Michael J. Krycler. @capanalysis.com. Web site: www.capanalysis.com. clude identifying and supporting expert witnesses in intel- Litigation support, including forensic accounting, business Contact Evy M. Wild, BS, JD. 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Handle matters be- e-mail: [email protected]. Web site: www 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA fore the EC, the ITC, and the U.S. court of International .fulcruminquiry.com. Contact David Nolte. Our profes- 90024, (310) 475-5676, fax (310) 475-5268. Contact Trade. Areas of expertise include antitrust (including cut- sionals are experienced CPAs, MBAs, ASAs, CFAs, affili- Brian Lewis, CPA, CVA. Forensic accounting, business ting-edge analyses of market definition, market power, ated professors, and industry specialists. Our analysis valuations, cash spendable reports, estate, and trust and coordinated interactions, and unilateral effects), economic and research combined with unique presentation tech- income tax services. damages, business valuation, investigative and forensic niques have resulted in an unequaled record of successful accounting and auditing, intellectual property (including court cases and client recoveries. Our expertise encom- WHITE, ZUCKERMAN, WARSAVSKY, LUNA, patent, trademark, and copyright infringement, and valua- passes damages analysis, lost profit studies, business WOLF & HUNT tion of intellectual property), insurance coverage, contract and intangible asset valuations, appraisals, fraud investi- 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA disputes and tort claims, mergers and acquisitions, secu- gations, statistics, forensic economic analysis, royalty au- 91423, (818) 981-4226, fax (818) 981-4278, 363 San rities fraud, and full range of jury consulting services. De- dits, strategic and market assessments, computer foren- Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) grees/licenses: CPAs, CFEs, CVAs, JDs, PhDs. sics, electronic discovery, and analysis of computerized 219-9816, fax (949) 219-9095, 831 State Street, Suite data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and 291, Santa Barbara, CA 93101, (805) 648-4088, fax CORNERSTONE RESEARCH MBAs in accounting, finance, economics, and related (805) 963-4088, e-mail: [email protected]. Contact 633 West Fifth Street, 31st Floor, Los Angeles, CA subjects. See display ad on page 1. Barbara Luna or Bill Wolf. Expert witness testimony for 90071-2005, (213) 553-2500, fax (213) 553-2699, e-mail: complex litigation involving damage analyses of lost prof- [email protected]. Web site: www.cornerstone LEWIS, JOFFE & CO, LLP its, unjust enrichment, reasonable royalties, lost earnings, .com. Contact George G. Strong Jr. Cornerstone Re- 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA lost value of business, forensic accounting, fraud investi- search provides attorneys with expert testimony and eco- 90024, (310) 475-5676, fax (310) 475-5268. Contact gation, investigative analysis of liability, marital dissolution, nomic and financial analyses in all phases of commercial Brian Lewis, CPA, CVA. Forensic accounting, business and tax planning and preparation. Excellent communica- litigation. We work with faculty and industry experts in a valuations, cash spendable reports, estate, and trust and tors with extensive testimony experience. Prior Big Four distinctive partnership that combines the strengths of the income tax services. accountants. Specialties include accounting, breach of business and academic worlds. Our areas of expertise in- contract, business interruption, business dissolution, conclude identifying and supporting expert witnesses in intel- VICENTI, LLOYD & STUTZMAN LLP struction defects, delays, and cost overruns, fraud, insur- lectual property, antitrust, securities, entertainment, real 2210 East Route 66, Suite 100, Glendora, CA 91740, ance bad faith, intellectual property including trademark, estate, financial institutions, and general business litiga- (626) 857-7300, fax (626) 857-7302, e-mail: RStutzman patent, and copyright infringement, and trade secrets, tion. @vlsllp.com. Web site: www.VLSLLP.com. Contact malpractice, marital dissolution, personal injury, product li- Royce Stutzman, CVA, CPA/ABV, Chairman. At VLS, ability, real estate, tax planning and preparation, IRS audit FULCRUM FINANCIAL INQUIRY we’ve built a team of certified valuation and forensic pro- defense, tracing, unfair advertising, unfair competition, 888 South Figueroa Street, Suite 2000, Los Angeles, fessionals with rich experiences and dedication to a wide valuation of businesses, and wrongful termination. See CA 90017, (213) 787-4100, fax (213) 891-1300, variety of attorneys and business owners. We provide re- display ad on page 47. e-mail: [email protected]. Web site: www sponsible and effective litigation support and business .fulcruminquiry.com. Contact David Nolte. Our profes- valuation services to hundreds of clients in California. We FINANCIAL sionals are experienced CPAs, MBAs, ASAs, CFAs, affili- conduct valuations related to mergers and acquisitions, ated professors, and industry specialists. Our analysis buy-sell agreements, purchase/sale of closely held busi- ADVISORS/EXPERTS @ MCS ASSOCIATES and research combined with unique presentation tech- nesses, and partner disputes. Our forensic accounting 18881 Von Karman, Suite 1175, Irvine, CA 92612, niques have resulted in an unequaled record of successful experts assess the amount of an economic loss, whether (949) 263-8700, fax (949) 263-0770, e-mail: experts court cases and client recoveries. Our expertise encom- it be business interruption from casualty, unfair competi- @mcsassociates.com. Web site: www.mcsassociates passes damages analysis, lost profit studies, business tion, condemnation, damage caused by others, or loss of .com. Contact Norman Katz, managing partner. Na- and intangible asset valuations, appraisals, fraud investi- earnings from various events. Our fraud investigation tionally recognized banking, finance, insurance, and real gations, statistics, forensic economic analysis, royalty au- team reviews documentation, interviews witnesses and estate consulting group (established 1973). Experienced dits, strategic and market assessments, computer foren- suspects, and assesses evidence to resolve allegations. litigation consultants/experts include senior bankers, sics, electronic discovery, and analysis of computerized We provide expert witness testimony and implement lenders, consultants, economists, accountants, insurance data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and fraud prevention programs. We pride ourselves on the underwriters/brokers. Specialties: lending customs, prac- MBAs in accounting, finance, economics, and related quality of the relationships we build and the outcomes we tices, policies, in all types of lending (real estate, sub- subjects. See display ad on page 1. achieve for our clients. Call us today for your free consul- prime, business/commercial, construction, tation at (626) 857-7300. Making A Positive Difference consumer/credit card), banking operations/administration, HAYNIE & COMPANY, CPAS Since 1953. trusts and investments, economic analysis and valua- 4910 Campus Drive, Newport Beach, CA 92660, (949) tions/damages assessment, insurance claims, coverages 724-1880, fax (949) 724-1889, e-mail: sgabrielson FORENSIC ENGINEERING and bad faith, real estate brokerage, appraisal, escrow, @hayniecpa.com. Web site: www.hayniecpa.com. and construction defects/disputes, and title insurance. ROGGENKAMP ERICKSON & Contact Steven C. Gabrielson. Alter ego, consulting ASSOCIATES, PC and expert witness testimony in a variety of practice ARBITRATION AND MEDIATION GROUP, 10000 NE 7th Avenue, Suite 150, Vancouver, WA 98685, areas: commercial damages, ownership disputes, eco- (360) 573-4545, fax (360) 576-7606, e-mail: brandon EXPERT WITNESS SERVICES nomic analysis, business valuation, lost profits analysis, 4441 Cahuenga Boulevard, Suite D, Toluca Lake, CA @reastructuralengineers.com. Web site: www fraud/forensic investigations, taxation, personal injury, .Reastructuralengineers.com. Contact Brandon W.

60 Los Angeles Lawyer November 2008 Erickson. Structural engineering; investigations of existing buildings’ structural problems due to design errors, construction defects, age, climate, use, catastrophes, and loadings; determine the cause(s) of structural distress; forensic evaluations; detailed documentation and reports; litigation support to assist in the equitable resolution of liability claims; construction means and methods engineering; design of structural remediation and repairs; expert witness services; peer reviews; insurance claims investigations.

FORENSIC SCIENCES

PARK DIETZ & ASSOCIATES 2906 Lafayette, Newport Beach, CA 92663, (949) 723-2211, fax (949) 723-2212, e-mail: expert @parkdietzassociates.com. Web site: www .parkdietzassociates.com. Forensic consultants in medicine and the behavioral science. Forensic experts in psychiatry, neurology, pathology, medicine, surgery, psychology, neuropsychology, social work, criminology, security, suicidology, sociology, and other medical and behavioral specialties. See display ad on page 55. MR. TRUCK, INC. FRAUD INVESTIGATIONS ACCIDENT RECONSTRUCTION & MAYER HOFFMAN MCCAIN PC TRUCK SAFETY 11601 Wilshire Boulevard, Suite 2300, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: • Court Qualified Expert Witness • Low Speed Accident Analysis [email protected]. Web site: www.MHM-PC.com, Regarding Car vs Car, Trucking Industry Safety and www.CBIZ.com. Contact Steve Franklin. Specializes in • business litigation; business valuation and appraisal, mari- Car vs Bicycle, Truck vs Car, Driver Training Issues tal dissolutions, transactional due diligence, financial re- Truck vs. Bicycle Cases • Power Point Court Presentations construction, fraud investigation, family limited partnerships, commercial damage and lost profits computations and business interruption. Experienced expert testimony 800 337 4994 WILLIAM M. JONES 925 625 4994 and tax controversy representation. CELL 925 518 7573 FAX 925 625 4995 www.mrtruckar.com • [email protected] STONEFIELD JOSEPHSON POST OFFICE BOX 398, BRENTWOOD CA 94513-0398 Forensic Advisory Services. 2049 Century Park East, Suite 400, Los Angeles, CA 90067. (866) 225-4511 toll free. Web site: www.sjaccounting.com. The Stonefield Josephson Forensic Advisory Services group provides accounting experts to support your litigation, valuation, bankruptcy, fraud investigation and risk assessment, third party audit and other forensic accounting needs. As one of the largest CPA firms based in California with six offices and a global network of affiliated offices, we have the experience and skills you want. We serve all industries with extremely strong expertise in entertainment, intellectual property, apparel, manufacturing, energy, technology, distribution, retail, partnerships, corporations, and service firms. Please contact the Principal in Charge, Sid Blum, at 310-432-7458. See display ad on page 5.

GEOTECHNICAL ENGINEER

SHEPARDSON ENGINEERING ASSOCIATES, INC. 10035 Prospect Avenue, Suite 101, Santee, CA 92071- 4398, (619) 449-9830, fax (619) 449-5824, e-mail: [email protected]. Contact Don Shepardson. Over 44 years experience as Principal Engineer on projects that varied from high-rise structures to 6,000 of acr- eresidential/commercial projects. Extensive expert witness experience over the last 25 years. Established electronic document delivery systems; Registered Civil Engi- neer in 10 states; Geotechnical Engineer and prior contractors license in California. Current cases in California and Nevada.

HANDWRITING

SANDRA L. HOMEWOOD, FORENSIC DOCU- MENT EXAMINER 1132 San Marino Drive, Suite 216, Lake San Marcos, CA 92078, (760) 931-2529, fax (760) 510-8412, e-mail: [email protected]. Contact Sandra L. Homewood. Highly skilled and experienced document examiner and expert witness in many complex and high proﬁle civil and criminal cases with fully equipped docu-

Los Angeles Lawyer November 2008 61 ment laboratory. Specializing in handwriting and hand- INSURANCE MAYER HOFFMAN MCCAIN PC printing identification, handwriting of the elderly in financial 11601 Wilshire Boulevard, Suite 2300, Los Angeles, CA elder abuse cases and will contests, and examination of ADVISORS/EXPERTS @ MCS ASSOCIATES 90025, (310) 268-2000, fax (310) 268-2001, e-mail: altered medical and corporate records. Trained in govern- 18881 Von Karman, Suite 1175, Irvine, CA 92612, [email protected]. Web site: www.MHM-PC.com, ment laboratory including specialized training by the FBI (949) 263-8700, fax (949) 263-0770, e-mail: experts www.CBIZ.com. Contact Steve Franklin. Specializes in and Secret Service. Former government experience in- @mcsassociates.com. Web site: www.mcsassociates business litigation; business valuation and appraisal, mari- cludes document examiner for the San Diego Police De- .com. Contact Norman Katz, managing partner. tal dissolutions, transactional due diligence, financial re- partment crime lab, Arizona State crime lab and San Nationally recognized banking, finance, insurance, and construction, fraud investigation, family limited partner- Diego County District Attorney’s office. Currently in pri- real estate consulting group (established 1973). Experi- ships, commercial damage and lost profits computations vate, criminal, and civil practice. enced litigation consultants/experts include senior and business interruption. Experienced expert testimony bankers, lenders, consultants, economists, accountants, and tax controversy representation. HEALTHCARE insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real es- CLINTON E. MILLER, JD, BCFE SINAIKO HEALTHCARE CONSULTING, INC. tate, subprime, business/commercial, construction, con- INSURANCE BAD FAITH EXPERT 1875 Century Park East, Suite 2100, Los Angeles, CA sumer/credit card), banking operations/administration, 502 Park Avenue, San Jose, CA 95110, (408) 279-1034, 90067, (310) 551-5252, fax (310) 551-5414, e-mail: Jeff trusts and investments, economic analysis and valua- fax (408) 279-3562, e-mail: [email protected]. Contact [email protected]. Web site: www.sinaiko.com. tions/damages assessment, insurance claims, coverages Clint Miller. Insurance expert regarding claims, under- Contact Jeff Sinaiko. Sinaiko is a nationally recognized and bad faith, real estate brokerage, appraisal, escrow, writing, agent and brokers errors and omissions, cover- healthcare consulting firm. Our professionals are hand- and construction defects/disputes, and title insurance. age disputes, customs and practices, and bad faith. See picked for their broad understanding of the industry, de- display ad on page 45. tailed expertise and superior communication skills. Clients THE CAPANALYSIS GROUP, LLC have found this expertise invaluable in litigation support 550 South Hope Street, Suite 1100, Los Angeles, CA PAUL PAULIN & ASSOCIATES where there is no substitute for experience. Sinaiko’s litiga- 90071, (213) 892-2500, fax (213) 892-2300, e-mail: wilde 567 West Channel Islands Boulevard, Suite 329, Port tion support practice includes, among others, industry @capanalysis.com. Web site: www.capanalysis.com. Hueneme, CA 93041, (805) 985-3917, fax (805) 985- standard practices evaluations; Medicare/Medicaid fraud; Contact Evy M. Wild, BS, JD. Specialties: economic, fi- 6407, e-mail: [email protected]. Contact Paul Paulin. provider/payor payment disputes; business valuation; nancial, accounting, and statistical analysis for complex Property/casualty insurance; surplus lives insurance; transaction disputes; and facility and professional fee billing. litigation, arbitration, regulatory proceedings, and strategic agent/broker; standard of care; bad faith; insurance office corporate decision making. Assist attorneys with discov- procedures practice; 37 years as agent/broker; former HISTORIC RESOURCES ery, identification of relevant economic and financial is- chair Senate advisory commission on Business insurance. sues, preparation of analytical models, critique of oppos- PCR SERVICES CORPORATION Degrees/licenses: CPCU, AMIM, ASLI, broker/agent, life ing experts, and expert testimony in federal and state agent, surplus lives agent. 233 Wilshire Boulevard, Suite 130, Santa Monica, CA courts, and before the FTC and DOJ. Handle matters be- 90401, (310) 451-4488, fax (310) 451-5279, e-mail: fore the EC, the ITC, and the U.S. court of International JANICE A. RAMSAY, ESQ. [email protected]. Web site: www.pcrnet.com. Trade. Areas of expertise include antitrust (including cut- Contact: Margarita J. Wuellner, PhD. PCR’s creden- 5 Savos, Irvine, CA 92603, (949) 854-9375, (949) 400- ting-edge analyses of market definition, market power, 5040 (cell), fax (949) 854-0073, e-mail: [email protected]. tialed historians provide expert testimony with regard to coordinated interactions, and unilateral effects), economic CEQA/NEPA compliance, Section 106/110 NHPA com- Contact Janice A. Ramsay, Esq. Experience in testify- damages, business valuation, investigative and forensic ing in depositions and at trial. Can provide consultation to pliance, historical architecture, National Register of His- accounting and auditing, intellectual property (including toric Places Applications, historic preservation general litigation counsel on property insurance coverage issues patent, trademark, and copyright infringement, and valua- and proper claim handling. Practice law in property insur- plan elements and ordinances, impact assessment, and tion of intellectual property), insurance coverage, contract mitigation measures. ance specialty since 1971. Have acted as appraiser, arbi- disputes and tort claims, mergers and acquisitions, secu- trator, and mediator in coverage disputes. rities fraud, and full range of jury consulting services. De- HOTEL grees/licenses: CPAs, CFEs, CVAs, JDs, PhDs. ROBERT HUGHES ASSOCIATES, INC. MAURICE ROBINSON & ASSOCIATES LLC 508 Twilight Trail, #200, Richardson, TX 75080, (972) 880 Apollo Street, Suite 125, El Segundo, CA 90245, E.L. EVANS ASSOCIATES 980-0088, fax (972) 233-1548, e-mail: joakley (310) 640-9656, fax (310) 640-9276, e-mail: maurice 3310 Airport Avenue, Box # 2, Santa Monica, CA 90405, @roberthughes.com. Web site: www.roberthughes.com. @mauricerobinson.com. Web site: www.mauricerobinson (310) 559-4005, fax (310) 390-9669, e-mail: elevans66 Contact John Oakley. Founded in 1979, RHA is an in- .com. Contact R. Maurice Robinson, president. Hotel @yahoo.com. Contact Gene Evans. Good faith/bad ternational insurance and risk management consulting and real estate industry business issues, including market, faith. Over 45 years’ experienceæclaims adjuster. Stan- company based in Dallas. Our consultants’ experience in economic and financial feasibility, valuation, and disputes dards and practices in the industry, litigation support, the insurance industry allows us to provide highly qualified between owner-operator, borrower-lender, and fran- claims consultation, case review and evaluation, prop- expert witness and litigation support services. Our chisor-franchisee. Fluent in management contracts, li- erty/casualty claims, construction claims, uninsured/un- expertise includes: property/casualty insurance, life/health cense agreements, ground and building leases, partner- derinsured motorist claims, general liability, fire/water/ insurance, Lloyd’s, London Market Research, claims han- ship and JV agreement, concession contracts, develop- mold claims, damage assessment, professional liability dling, bad faith, decision analysis, agency management ment agreements, and loan docs. Can estimate damages claims, appraisal under policy, arbitration, duty to defend, and practices, insurance laws and regulations, statistical and appraise property values under multiple scenarios. advertising claims, coverage applications, and suspected forecasting, insurance sales and marketing practices, insur- Expert witness testimony, litigation strategy, consultation fraud claims. CV available on request. See display ad on ance archaeology and policy interpretation and analysis. and support, damage calculations, lost profits analysis, page 71. real estate appraisals, deal structuring, workouts, new de- SHARP & ASSOCIATES; INSURANCE CON- velopment, strategic planning, market demand assess- HOWARD M. GARFIELD, ESQ SULTANTS & EXPERTS. ment, acquisition due diligence, and economic, financial, 465 California Street, Suite 500, San Francisco, CA West coast office: 21520 Yorba Linda Boulevard, Suite G and investment analysis. 30 years of experience. 94104, (415) 438-4545, fax (415) 397-6392, e-mail: —257, Yorba Linda, CA. 92887, (213) 407-9957, East hgarfi[email protected]. Web site: www.longlevit.com. coast office: 325 East Paces Ferry Road, Suite 1603, INDUSTRIAL HYGIENE Contact Howard M. Garfield, Esq. Consultations and Atlanta, GA 30305, (213) 407-9957, e-mail: rsharp1959 testimony. Qualified as expert in both state and federal @aol.com Web site: www.sharpandassociates.org. RGA ENVIRONMENTAL CIH #1151 courts in California. Contact Robert Sharp. Good faith/bad faith. In regard 18662 MacArthur Boulevard, Suite 330, Irvine, CA 92612, to all insurance related issues and insurance industry (949) 428-7060, fax (949) 428-7089. Web site: www LAUNIE ASSOCIATES, INC. standards. Mr. Sharp has 33 years of experience, and re- .rgaenv.com. Contact Robert E. Gils. Industrial hygiene 1165K Tunnel Road, Santa Barbara, CA 93105, (805) tired as president and CEO of a property-casualty insur- consulting, certified industrial hygienist, engineering, ex- 569-9175, fax (805) 687-8597, e-mail: [email protected]. ance company. He also held the positions of senior vice pert witness, depositions, courtroom experience, indoor Contact Joseph J. Launie, PhD, CPCU, insurance president claims and executive vice president. He is pro- air quality, sick building syndrome, mold, fungus, bacteria, professor, author, and consultant. Over 30 years of viding services to law firms, insurance companies, and allergens, asbestos, lead based paints, solvent, heavy experience as expert witness in state and federal courts. corporations as a consultant and expert. Mr. Sharp has metals, welding, carcinogens, ergonomics, testing and Coauthor of books and articles on underwriting, insurance testified in state and federal court in insurance related monitoring, OSHA compliance, worker health and safety company operations, and punitive damages. Consulting, matters such as property/casualty claims, sales and un- training, specialty training classes, worker exposure moni- expert witness on underwriting, company and agency op- derwriting issues, policy cancellations, coverage denials, toring and testing, construction defects, environmental erations, and bad faith. general liability, uninsured/underinsured claims, and bad controls and testing, system design, smoke damage, in- faith claims. CV upon request. For immediate background surance claims, cleanups, project design and manage- information please see my Web site, as listed above. ment. Over 30 years of experience.

62 Los Angeles Lawyer November 2008 BARRY ZALMA, ZALMA INSURANCE combined with unique presentation techniques have re- accountants. Specialties include accounting, breach of CONSULTANTS sulted in an unequaled record of successful court cases contract, business interruption, business dissolution, con- 4441 Sepulveda Boulevard, Culver City, CA 90230, (310) and client recoveries. Our expertise encompasses dam- struction defects, delays, and cost overruns, fraud, insur- 390-4455, fax (310) 391-5614, e-mail: zalma@zalma ages analysis, lost profit studies, business and intangible ance bad faith, intellectual property including trademark, .com. Web site: www.zalma.com or www.zic.bz. Con- asset valuations, appraisals, fraud investigations, statis- patent, and copyright infringement, and trade secrets, tact Barry Zalma. Insurance bad faith, insurance claims tics, forensic economic analysis, royalty audits, strategic malpractice, marital dissolution, personal injury, product li- handling, insurance coverage, and insurance fraud con- and market assessments, computer forensics, electronic ability, real estate, tax planning and preparation, IRS audit sultant and expert witness. Author of Construction De- discovery, and analysis of computerized data. Degrees/li- defense, tracing, unfair advertising, unfair competition, fects: Litigation and Claims, Insurance Claims—A Com- censes: CPAs, CFAs, ASAs, PhDs and MBAs in account- valuation of businesses, and wrongful termination. See prehensive Guide and Mold: A Comprehensive Claims ing, finance, economics, and related subjects. See dis- display ad on page 47. Guide, Insurance, Cases and Materials on Coverage, play ad on page 1. Claims, and Litigation. California Claims Regulations, and INTELLECTUAL PROPERTY/ACQUISITION IN- the monthly Zalma’s Insurance Fraud Letter. GLENN M. GELMAN & ASSOCIATES, VESTIGATIONS CERTIFIED PUBLIC ACCOUNTANTS AND INTELLECTUAL PROPERTY BUSINESS CONSULTANTS ECON ONE RESEARCH, INC. 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- 601 West Fifth Street, 5th Floor, Los Angeles, CA 90071, CORNERSTONE RESEARCH 2600, fax (714) 667-2636. Web site: www.gmgcpa.com. (213) 624-9600, fax (213) 624-6994, e-mail: lskyla 633 West Fifth Street, 31st Floor, Los Angeles, CA Contact Glenn Gelman. Expert witness testimony, @econone.com. Web site: www.econone.com. Contact 90071-2005, (213) 553-2500, fax (213) 553-2699, strategy development, document discovery, deposition Lisa Skylar. Econ One provides economic research, e-mail: [email protected]. Web site: www assistance, computation of damages, arbitration consult- consulting and expert testimony in many areas, including: .cornerstone.com. Contact George G. Strong, Jr. ing, forensic accounting, investigative auditing, rebuttal tes- antitrust, intellectual property and patent infringement, Cornerstone Research provides attorneys with expert testimony, fiduciary accountings, and trial exhibit preparation. contract disputes, damages analysis/calculations, em- timony and economic and financial analyses in all phases ployment issues, and unfair competition. We offer in- of commercial litigation. We work with faculty and industry WHITE, ZUCKERMAN, WARSAVSKY, LUNA, house expertise in applied economic theory, economet- experts in a distinctive partnership that combines the WOLF & HUNT rics, statistics, and years of experience successfully deal- strengths of the business and academic worlds. Our 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA ing with the specific demands of the litigation process. areas of expertise include identifying and supporting ex- 91423, (818) 981-4226, fax (818) 981-4278, 363 San Econ One experts have testified in state and federal pert witnesses in intellectual property, antitrust, securities, Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) courts; administrative, legislative and regulatory agencies, entertainment, real estate, financial institutions, and gen- 219-9816, fax (949) 219-9095, 831 State Street, Suite and in arbitrations and mediations. We understand the eral business litigation. 291, Santa Barbara, CA 93101, (805) 648-4088, fax (805) need for clear, accurate, persuasive answers to complex 963-4088, e-mail: [email protected]. Contact Bar- problems. See display ad on page 65. FULCRUM FINANCIAL INQUIRY bara Luna or Bill Wolf. Expert witness testimony for 888 South Figueroa Street, Suite 2000, Los Angeles, CA complex litigation involving damage analyses of lost prof- INVESTIGATIONS 90017, (213) 787-4100, fax (213) 891-1300, e-mail: its, unjust enrichment, reasonable royalties, lost earnings, [email protected]. Web site: www.fulcrumin- BENCHMARK INVESTIGATIONS lost value of business, forensic accounting, fraud investi- 32158 Camino Capistrano, # A-415, San Juan Capis- quiry.com. Contact David Nolte. Our professionals are gation, investigative analysis of liability, marital dissolution, experienced CPAs, MBAs, ASAs, CFAs, affiliated profes- trano, CA 92675, (800) 248-7721, fax (949) 248-0208, and tax planning and preparation. Excellent communica- e-mail: [email protected]. Web site: www sors, and industry specialists. Our analysis and research tors with extensive testimony experience. Prior Big Four

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

Certified Public Accountant Thomas Neches & Company LLP Accredited in Business Valuation 609 South Grand Avenue Suite 1106 Certified Valuation Analyst Los Angeles, California 90017-3848 Certified Fraud Examiner (213) 624-8150

www.thomasneches.com

Los Angeles Lawyer November 2008 63 .BenchmarkInvestigations.com. Contact Jim Zimmer, posing experts, and expert testimony in federal and state advertising agencies, clients, trademarks, and global mar- CPI. National agency. Professional investigations with courts, and before the FTC and DOJ. Handle matters be- keting. Also senior lecturer at USC, CSUN, and Pepper- emphasis upon accuracy, detail, and expedience. fore the EC, the ITC, and the U.S. court of International dine Universities. Asset/financial searches, background investigation, DMV Trade. Areas of expertise include antitrust (including cut- searches, domestic/marital cases, due diligence, process ting-edge analyses of market definition, market power, MECHANICAL ENGINEERING service, surveillance/photograph, witness location, and coordinated interactions, and unilateral effects), economic statements. LA branch plus correspondents nationwide. damages, business valuation, investigative and forensic CTG FORENSICS, INC. Multilingual agents. Fully insured. accounting and auditing, intellectual property (including 16 Technology Drive, Suite 109, Irvine, CA 92618, (949) patent, trademark, and copyright infringement, and valua- 790-0010, fax (949) 790-0020, e-mail: mlewis@CTG- LEGAL MALPRACTICE tion of intellectual property), insurance coverage, contract forensics.com. Web site: www.CTGforensics.com. Con- disputes and tort claims, mergers and acquisitions, secu- tact Dr. Malcolm Lewis, PE. Construction-related engi- LAW OFFICES OF PHILLIP FELDMAN rities fraud, and full range of jury consulting services. De- neering, plumbing, mechanical (heating, ventilating, A/C) and electrical (power, lighting), energy systems, residential 15250 Ventura Boulevard, Suite 160, Sherman Oaks, grees/licenses: CPAs, CFEs, CVAs, JDs, PhDs. and nonresidential buildings, construction defects, con- CA 91403, (818) 986-9890, fax (818) 986-1757, e-mail: struction claims, and mold. [email protected]; [email protected]; ECON ONE RESEARCH, INC. [email protected]. Web sites: www 601 West Fifth Street, 5th Floor, Los Angeles, CA 90071, MEDICAL .LegalMalpracticeExperts.com; www.LegalEthicsExperts (213) 624-9600, fax (213) 624-6994, e-mail: lskylar .com. Contact Phillip Feldman. Certified SPECIALIST @econone.com. Web site: www.econone ALLERGY ASTHMA RESPIRATORY CARE professional liability-legal CA/ABA. Former judge pro com. Contact Lisa Skylar. Econ One provides eco- MEDICAL CENTER, INC. tem—25 years. FEE DISPUTE Arbitrator—31 years. Forty nomic research, consulting and expert testimony in many KENNETH T. KIM, MD years ETHICS, Bar prosecution/defense. Consulting EX- areas, including: antitrust, intellectual property and patent 2600 Redondo Avenue, Suite 400, Long Beach, CA PERT. Testifying EXPERT 28 years: standard of care, infringement, contract disputes, damages analysis/calcu- 90806, (562) 997-7888, fax (562) 997-8884, e-mail: sueb causation, fiduciary duties, professional responsibility and lations, employment issues, and unfair competition. We @allergy-asthma.info. Web site: www.allergy-asthma.info. ethics, and fee disputes. Any underlying case-litigation, offer in-house expertise in applied economic theory, Contact Sue Bass. Specialties include latex allergy, transaction, family, administrative, state or federal. Former econometrics, statistics, and years of experience suc- asthma, food allergy, drug allergy, anaphylaxis, sinusitis, accountant, degree BS, MBA. Former managing partner cessfully dealing with the specific demands of the litiga- hives, sick building syndrome, mold, and environmental plaintiff and defense firms. Also State Bar Defense Coun- tion process. Econ One experts have testified in state and disease. Experience, civil: retained or reviewed more than sel and preventative law. federal courts; administrative, legislative and regulatory 70 latex products liability cases, retained for allergy and agencies, and in arbitrations and mediations. We under- internal medicine cases in the areas of occupational LAWRENCE H. JACOBSON, ESQ. stand the need for clear, accurate, persuasive answers to asthma, mold exposure, civil litigation, sick building syn- 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA complex problems. See display ad on page 65. drome, multiple chemical sensitivity, smoke inhalation, 90212, (310) 271-0747, fax (310) 271-0757, e-mail: and toxic exposure. [email protected]. Web site: www.lawrencejacobson SINAIKO HEALTHCARE CONSULTING, INC. .com. Expert witness: lawyer malpractice in business and 1875 Century Park East, Suite 2100, Los Angeles, CA AMFS MEDICAL EXPERTS NATIONWIDE real estate transactions, standard of care for real estate 90067, (310) 551-5252, fax (310) 551-5414, e-mail: 2000 Powell Street, Suite 520, Emeryville, CA 94608, brokers and mortgage brokers, and real estate document [email protected]. Web site: www.sinaiko.com. (800) 275-8903. Web site: www.AMFS.com. Medical ex- custom and usage. Practicing real estate and business Contact Jeff Sinaiko. Sinaiko is a nationally recognized perts for malpractice and personal injury cases. AMFS is law in California since 1968. See display ad on healthcare consulting firm. Our professionals are hand- America’s premier medical expert witness and consulting page 57. picked for their broad understanding of the industry, de- company. We are a trusted partner with the legal commu- tailed expertise and superior communication skills. Clients nity and provide a superior method of retaining medical LAW OFFICES OF CHARLES PEREYRA- have found this expertise invaluable in litigation support experts. Since 1990, we have provided board-certified SUAREZ where there is no substitute for experience. Sinaiko’s liti- experts in over 10,000 malpractice and personal injury 445 South Figueroa Street, Suite 3200, Los Angeles, CA gation support practice includes, among others, industry cases with a 92% win-rate compared to the industry av- 90071, (213) 623-5923, fax (213) 623-1890, e-mail: standard practices evaluations; Medicare/Medicaid fraud; erage of 28%. • 8,500+ experts in 250+ specialties, • cpereyra@cpslawfirm.com. Web site: www.cpslawfirm provider/payor payment disputes; business valuation; Practicing Physicians with Legal Experience, • No cost at- .com. Contact Charles Pereyra-Suarez. Acted as an transaction disputes; and facility and professional fee torney consultations, • Record Review & Testimony, • In- expert witness for the plaintiffs in a legal malpractice case billing. dependent Medical Examinations (IME) & Autopsies, • Es- that resulted in a $38 million jury verdict in favor of the sential Affidavits & Reporting. Free Attorney Consulta- plaintiffs against a prominent international law firm. This LOSS OF PARENTAL SERVICES tions. Discuss your case at no charge with a physician was the fifth largest jury verdict in California in 2005. See who will identify and clarify your case issues to ensure you display ad on page 49. THE PSYCHOLOGICAL TRAUMA CENTER Forensic Child and Adolescent Psychiatry Services. retain the appropriate specialists. Case Reviews for Merit. Have your case reviewed for merit in round-table LAW OFFICES OF CHRISTOPHER ROLIN 2105 Divisadero Street, San Francisco, CA 94115, fashion by a multidisciplinary panel of practicing, board- 5707 Corsa Avenue, Suite 106, Westlake Village, CA (415) 292-7119, fax (415) 749-2802. Web site: www certified physicians. Review & Select Expert C.V.s. Our 91362, (818) 707-7065, fax (818) 735-9992, e-mail: .expertchildpsychiatry.com. Contact Gil Kliman, MD, experience, resources and large proprietary database en- [email protected]. Web site: www.chrisrolin.com. Medical Director. Child psychiatry, institutional negli- able us to quickly identify and interview a large number of Contact Christopher Rolin. Christopher Rolin is a gence, psychological trauma, molestation, vehicular and potential medical experts on your behalf and provide you highly effective trial attorney with over 41 years of trial ac- aviation accidents, wrongful death, loss of parental ser- with the CVs of those who are best suited to your case. tivity in civil litigation. His area of emphasis is attorney mal- vices, malpractice, and product liability involving child- See display ad on page 67. practice, focusing on the applicable community standard hood personal injury. Degrees/license: MD, FAACAP, of care for practicing attorneys in the litigation and busi- LFAPA, and DBFE. See display ad on page 72. PARK DIETZ & ASSOCIATES ness areas. His trial experience has resulted in numerous 2906 Lafayette, Newport Beach, CA 92663, assignments as an expert witness on trial and standards MARKETING/ADVERTISING/MEDIA (949) 723-2211, fax (949) 723-2212, e-mail: expert of care issues. He has been retained as an expert by both GRAYSON ASSOCIATES @parkdietzassociates.com. Web site: www plaintiffs and defendants in legal malpractice cases. He 30728 Paseo Elegancia, San Juan Capistrano, CA .parkdietzassociates.com. Forensic consultants in medi- has spoken before numerous professional groups con- 92675, (949) 487-9970, fax (949) 487-9975, e-mail: bob cine and the behavioral science. Forensic experts in psy- cerning trial practice issues. @graysonassociates.com. Web site: www.marketingex- chiatry, neurology, pathology, medicine, surgery, psychol- pertwitness.com. Contact Robert A. Grayson PhD. ogy, neuropsychology, social work, criminology, security, LITIGATION Specialties: marketing, advertising, promotion, distribu- suicidology, sociology, and other medical and behavioral THE CAPANALYSIS GROUP, LLC tion, sales, damages, channels, trade dress, pricing, com- specialties. See display ad on page 55. 550 South Hope Street, Suite 1100, Los Angeles, CA petition; research, total marketing mix, consulting to attor- 90071, (213) 892-2500, fax (213) 892-2300, e-mail: neys, depositions, and testimony. TASAMED (A DIVISION OF THE TASA [email protected]. Web site: www.capanalysis GROUP, INC.) .com. Contact Evy M. Wild, BS, JD. Specialties: eco- LARRY STEVEN LONDRE/LONDRE MARKET- Customized Expert Referrals in all Medical practice areas. nomic, financial, accounting, and statistical analysis for ING CONSULTANTS, LLC/ USC/ CSUN (800) 659-8464, fax (800) 850-8272. Contact Linda complex litigation, arbitration, regulatory proceedings, and 11072 Cashmere Street, Second Floor, Los Angeles, Bartorillo. FIND THE MEDICAL EXPERT or EXPERT strategic corporate decision making. Assist attorneys with CA 90049, (310) 889-0220, fax (310) 889-0221, e-mail: WITNESS YOU NEED quickly with one call or click to discovery, identification of relevant economic and financial [email protected]. Web site: www TASAmed. We refer top caliber, experienced practition- issues, preparation of analytical models, critique of op- .LondreMarketing.com. Contact Larry Steven Londre. ers—including hard-to-find-specialists—for case merit re- Expert in marketing, advertising, media, communication, views, litigation support, testimony, etc. in over 900 +

64 Los Angeles Lawyer November 2008 medical fields. Save valuable search time. Every request receives personal service from our skilled Referral Advi- TASAmed Has SM sors who target referrals, forward resumes, and help arrange your initial screening telephone interviews with ex- Your Medical Expert. perts. If you don’t ultimately designate or engage an expert we refer, there is NO CHARGE at all. Plaintiff or defense. Local, regional, and national referrals. Exceptional personal service. Sample categories include anesthesiology, cardiology, dentistry, emergency care, forensic pathology, hospital administration, neurology, nursing homes, orthopedics, oncology, pediatrics, pharmacology, ✒ Litigation support psychiatry, radiology, sports medicine, surgery, and more. Please see our insert in this issue and display ad on ✒ Expert witness this page. ✒ Forensic accountants MEDICAL/CARDIO-THORACIC SURGERY • Outstanding local and national Experts ✒ Family law matters HENRY FEE MD in more than 900 healthcare categories – 14911 National Avenue, #6, Los Gatos, CA 95032, even hard-to-find specialties ✒ Business valuations (408) 358-8771, fax (408) 358-8621. Contact Henry Fee, MD. Graduated Harvard Medical School. Residency • Services include prompt, customized ✒ Loss of earnings Johns Hopkins & UCLA. Expert witness in adult heart and searches, referrals, resumes, and your lung surgery for the defendant or the plaintiff. Twenty-five ✒ Damages years of experience in medical legal field. Full-time surgical initial interview calls with experts practice in private hospital. • 5 decades of referral experience When you need more than just MEDICAL/DERMATOLOGY numbers... you can count on us... BIERMAN FORENSIC DERMATOLOGY 2080 Century Park East, #1008, Los Angeles, CA 90067, Contact Michael Krycler (310) 553-3567, fax (310) 553-4538, e-mail: sbiermanmd (818) 995-1040 @aol.com. Web site: www.biermandermatology.com. PHONE Contact Stanley Bierman, MD. Dr. Bierman is an ex- FAX (818) 995-4124 pert witness in matters relating to diagnosis and treatment E-MAIL [email protected] of skin cancers including melanoma. He is an acknowl- www.KETW.COM edged expert in legal matters relating to sexually transmit- 800-659-8464 VISIT US @ ted diseases. Dr. Bierman is Honorary Associate profes- www.tasanet.com sor of medicine and past president of Los Angeles Der- 15303 VENTURA BOULEVARD, SUITE 1040 SHERMAN OAKS, CALIFORNIA 91403 matologic Society. 213-625-0828 • [email protected]

MEDICAL/EMERGENCY MEDICINE

BERNARD T. MCNAMARA, MD 409 North Pacific Coast Highway, # 923, Redondo LK LIKE Beach, CA 90277, (310) 480-4770, fax (310) 943-3274, TA TH e-mail: [email protected]. Contact Bernard 'T IS T. McNamara, MD. Current practice, full time emer- N ALK LIKE . gency medicine, and hospital infection control. Over 25 O T TH W years of experience in the practice of emergency medi- 'T IS D N . E cine, infectious diseases, and HIV/AIDS. Experience in O TALK LIKE T W medical malpractice for both plaintiff and defense. Board E D 'T HI N S. E D certified, emergency medicine since 1987; board certified, E O W W D D O infectious diseases since 1984; board certified, internal E W E O D medicine since 1980. Degrees/licenses: MD; Fellow, N . W . O N American College of Physicians; Fellow, American College . N ' S ' S S

I T ' T

of Emergency Physicians; Fellow, American Academy of I I T

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Emergency Medicine; and member, Infectious Disease T

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Society of America; LACMA (Los Angeles County Medical E

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Association,); and CMA (California Medical Association); E

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CA Lic-G36838 since 1978, WA Lic-MD00041205 since I K

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2002. K

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BRUCE WAPEN, MD I

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EMERGENCY MEDICINE EXPERT K

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O E 969-G Edgewater Boulevard, Suite 807, Foster City, CA D

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94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail: T H

[email protected]. Web site: www.DrWapen '

. N W O E .com. Contact Bruce Wapen, MD. Board-certiﬁed D emergency physician and experienced teacher/public speaker offers consultation, chart review, and testimony as an expert witness for defense or plaintiff involving litigation arising from the emergency department. We prefer to get straight to the point. In fact, it’s our job. We make MEDICAL/INFECTIOUS DISEASE complex economic issues easy to understand. At Econ One, our years BERNARD T. MCNAMARA, MD of hands-on experience applying the science of economics helps us 409 North Paciﬁc Coast Highway, # 923, Redondo take the mystery out of the complicated issues our clients face. Beach, CA 90277, (310) 480-4770, fax (310) 943-3274, www.econone.com e-mail: [email protected]. Contact Bernard T. McNamara, MD. Current practice, full time emergency medicine, and hospital infection control. Over 25 Antitrust • Intellectual Property • Damages Analysis • Employment Issues years of experience in the practice of emergency medi-

Los Angeles Lawyer November 2008 65 cine, infectious diseases, and HIV/AIDS. Experience in vides expert witness services in the areas of IP (patent in- MEDICARE medical malpractice for both plaintiff and defense. Board fringement, invalidity, claim construction and trade dress), certified, emergency medicine since 1987; board certified, personal injury, product liability, and product failure analy- SINAIKO HEALTHCARE CONSULTING, INC. infectious diseases since 1984; board certified, internal sis. Our professionals have represented both plaintiff and 1875 Century Park East, Suite 2100, Los Angeles, CA medicine since 1980. Degrees/licenses: MD; Fellow, defendant. We have done analysis, prepared declara- 90067, (310) 551-5252, fax (310) 551-5414, e-mail: American College of Physicians; Fellow, American College tions, been deposed and testified in court. We have years [email protected]. Web site: www.sinaiko.com. of Emergency Physicians; Fellow, American Academy of of design and development experience making us effec- Contact Jeff Sinaiko. Sinaiko is a nationally recognized Emergency Medicine; and member, Infectious Disease tive expert witnesses in all matters involving medical de- healthcare consulting firm. Our professionals are hand- Society of America; LACMA (Los Angeles County Medical vices. Visit our website at www.fallbrook-eng.com. picked for their broad understanding of the industry, de- Association,); and CMA (California Medical Association); tailed expertise and superior communication skills. Clients CA Lic-G36838 since 1978, WA Lic-MD00041205 since MEDICAL LEGAL have found this expertise invaluable in litigation support 2002. where there is no substitute for experience. Sinaiko’s liti- GRAHAM A. PURCELL, MD, INC. gation support practice includes, among others, industry MEDICAL/PLASTIC AND COSMETIC Assistant Clinical Professor Orthopaedic Surgery, UCLA, standard practices evaluations; Medicare/Medicaid fraud; RECONSTRUCTIVE SURGERY 3600 Wrightwood Drive, Studio City, CA 91604, provider/payor payment disputes; business valuation; (818) 985-3051, fax (818) 985-3049, e-mail: expert transaction disputes; and facility and professional fee JOHN M. SHAMOUN, MD, FACS, INC. @gpurcellmd.com. Web site: gpurcellmd.com. Contact billing. 360 San Miguel, Suite 406, Newport Beach, CA 92660, Graham A. Purcell, MD. Dr. Purcell is a board certified (949) 759-3077, fax (949) 759-5458, e-mail: jmshamoun orthopedic surgeon, sub-specialty in spinal disorders af- METALLURGICAL AND CORROSION @aol.com. Web site: www.ideallook.com. Contact fecting adults and children. Examples of spinal disorders ENGINEER Yvonne. Specialties: only plastic surgeon in the United treated by Dr. Purcell include disc diseases, stenosis, in- States board certified by the 1) American Board of fections, tumors, injuries, and deformities including scolio- KARS ADVANCED MATERIALS, INC. Surgery, 2) American Board of Plastic Surgery, 3) Ameri- sis. He possesses 29 years of orthopedic and 21 years of Testing and Research Labs, 2528 West Woodland Drive, can Board of Facial Plastic and Reconstructive Surgery, med-legal experience, including defense, plaintiff, insur- Anaheim, CA 92801-2636, (714) 527-7100, fax (714) and 4) American Board of Forensic Medicine. Extensive ance carriers, CA Attorney General’s office and Public De- 527-7169, e-mail: [email protected]. Web site: www experience in all aspects of cosmetic, plastic, and recon- fender’s office. Expert testimony pertains to med-mal, .karslab.com. Contact Drs. Ramesh J. Kar or Naresh structive surgery of the breast, nose, face, eye, and body. personal injury, and workers’ compensation cases. As a J. Kar. Southern California’s premier materials/mechani- Well-published author of several textbook chapters and qualified medical evaluator, Dr. Purcell has extensive ex- cal/metallurgical/structural/forensics laboratory. Regis- journal articles related to above topics. Extensive experi- perience in performing QMEs, AMEs, IMEs, WC evals. tered professional engineers with 20-plus years in metal- ence in medical malpractice case review, consultation, See display ad on page 71. lurgical/forensic/structural failure analysis. Experienced written evaluation and testimony in depositions and trial with automotive, bicycles, tires, fire, paint, plumbing, cor- for plaintiff and defense. Articulate subspecialty consultant ROUGHAN & ASSOCIATES AT LINC, INC. rosion, and structural failures. We work on both plaintiff with up-to-date knowledge and expertise of plastic 114 West Colorado Boulevard, Monrovia, CA 91016, and defendant cases. Complete in-house capabilities for surgery literature and standards of care. Opinions sup- (626) 303-6333, fax (626) 303-8080, e-mail: [email protected]. tests. Extensive deposition and courtroom experience ported by extensive subspecialty education, training, and Contact Jan Roughan at ext. 16. Specialties: Roughan (civil and criminal investigations). Principals are fellows of experience. and Associates at LINC is a case management and med- American Society for Metals and board-certified diplo- ical/legal consulting firm. Services/products offered in- mates, American Board of Forensic Examiners. See dis- MEDICAL/UROLOGY clude: 1) Expert Testimony, 2) Life Care Plan (LCP) Con- play ad on page 69. struction/LCP Critique, 3) Medical Record Organization/ DUDLEY SETH DANOFF, MD, FACS Summarization/Analysis, 4) Medical Bill Auditing, 5) Expert METALLURGY Cedars-Sinai Medical Center, 8635 West 3rd Street, Suite Witness Identification, 6) IME Attendance, 7) Video Ser- One West, Los Angeles, CA 90048, (310) 854-9898, fax KARS ADVANCED MATERIALS, INC. vices (e.g., Day In Life, Settlement Brief, IME Evaluation, Testing and Research Labs, 2528 West Woodland Drive, (310) 854-0267, e-mail: [email protected]. Web site: www NDT/PT Evaluation, etc.), 8) Questions for: .towerurology.com. Contact Dudley Seth Danoff, MD, Anaheim, CA 92801-2636, (714) 527-7100, fax (714) Deposition/Cross Examination; 9) Medical/Psychiatric 527-7169, e-mail: [email protected]. Web site: www FACS. Experience in urologic case review and testimony Case Management. See display ad on page 51. for plaintiff and defense, court experience, and strategies. .karslab.com. Contact Drs. Ramesh J. Kar or Naresh Extensive expertise in prostate, bladder, and kidney can- J. Kar. Southern California’s premier materials/mechani- cers; kidney transplantation; pelvic trauma; sexual dys- MEDICAL MALPRACTICE cal/metallurgical/structural/forensics laboratory. Regis- function; penile implants; incontinence; infections; and tered professional engineers with 20-plus years in metal- J. CARLOS MAGGI, MD stone disease. Publishing experience in scientific journals, lurgical/forensic/structural failure analysis. Experienced Memorial/Miller Children’s Hospital. 2801 Atlantic Avenue, books, lectures, training seminars, and course director- with automotive, bicycles, tires, fire, paint, plumbing, cor- Long Beach, CA 90806, (562) 933-8743, fax (562) 933- ships. Princeton University, Summa Cum Laude; Yale rosion, and structural failures. We work on both plaintiff 8764, e-mail: [email protected]. Contact Eve- Medical School; Columbia University urologic training; and defendant cases. Complete in-house capabilities for lyn Rosas. Pediatric pulmonary, pediatric critical care, Major, U.S. Air Force; Who’s Who in America; Academic tests. Extensive deposition and courtroom experience pediatric hospital care, pediatric emergencies and resus- appointment. Detailed CV available. (civil and criminal investigations). Principals are fellows of citation, pediatric trauma and burns, and intoxications. American Society for Metals and board-certified diplo- MEDICAL/VASCULAR SURGERY mates, American Board of Forensic Examiners. See dis- PEDIATRIC CONSULTANTS, INC. play ad on page 69. ROBERT WAGMEISTER, MD, FACS 11232 Kensington Road, Rossmoor, CA 90720, (562) 2001 Santa Monica Boulevard, #690-W, Santa Monica, 964-9644, fax (562) 933-8764, e-mail: drmaggic@aol SEAL LABORATORIES CA 90404, (310) 828-5626, fax (310) 828-2826, e-mail: .com. Contact J. Carlos Maggi, MD. Evaluation of 250 North Nash Street, El Segundo, CA 90245, [email protected]. Contact Robert Wagmeister, MD, cases for medical malpractice in pediatric patient care. (310) 322-2011, fax (310) 322-2243. E-mail: akumar FACS. Vascular surgery: diseases, trauma, and surgery @seallabs.com. Web site: www.seallabs.com. Contact of the circulation, both arterial and venous. Includes ap- GRAHAM A. PURCELL, MD, INC. Arun Kumar, PhD, president. Materials failure analysis, proach for lumbar spine surgery, carotid surgery, Assistant Clinical Professor Orthopaedic Surgery, UCLA, product liability, and patent infringement support. Case aneurysms, bypass surgery, dialysis surgery, amputa- 3600 Wrightwood Drive, Studio City, CA 91604, evaluation and strategy, analytical support, and expert tions, pulmonary embolus, and phlebitis. Special certifica- (818) 985-3051, fax (818) 985-3049, e-mail: expert witness testimony. Metals, composites, plastics, and tion in vascular surgery. Member of Southern California @gpurcellmd.com. Web site: gpurcellmd.com. Contact glass. Airplanes, autos, helicopters, motorcycles, con- Vascular Surgery Society, Society for Vascular Surgery, Graham A. Purcell, MD. Dr. Purcell is a board certified sumer products, medical devices, prostheses and im- Society for Clinical Vascular Surgery and Peripheral Vas- orthopedic surgeon, sub-specialty in spinal disorders plants, and electrical components. Analysis of failure due cular Surgery Society. Extensive experience, numerous affecting adults and children. Examples of spinal disorders to fatigue, overload, corrosion, wear, or cases each year, depositions, expert witness; court ap- treated by Dr. Purcell include disc diseases, stenosis, in- manufacturing/material defect. pearance as required. Birth date: May 16, 1949. MD, fections, tumors, injuries, and deformities including scolio- Tufts Medical School, 1974. sis. He possesses 29 years of orthopedic and 21 years of METEOROLOGY med-legal experience, including defense, plaintiff, insur- MEDICAL DEVICES ance carriers, CA Attorney General’s office and Public De- AIR, WEATHER, & SEA CONDITIONS, INC. fender’s office. Expert testimony pertains to med-mal, P.O. Box 512, Pacific Palisades, CA 90272, (818) 645- FALLBROOK ENGINEERING personal injury, and workers’ compensation cases. As a 8632, fax (310) 454-7569, e-mail: [email protected]. 355 West Grand Avenue, Suite 4, Escondido, CA 92025, qualified medical evaluator, Dr. Purcell has extensive ex- Web site: www.weatherman.org. Contact Jay Rosen- (760) 489-5400, fax (760) 489-5412, e-mail: veronicav perience in performing QMEs, AMEs, IMEs, WC evals. thal, AMS, Certified Consulting Meteorologist @fallbrook-eng.com. Web site: www.fallbrook-eng.com. See display ad on page 71. (CCM). Experienced and authoritative expert testimony, Contact Richard P. Meyst. Fallbrook Engineering pro- reports and analyses of wind, rain, flooding, waves; spe-

66 Los Angeles Lawyer November 2008 cialist in auto/boat/ship/aircraft accident reconstruction, property damage, slip and falls, construction, mold issues, homeland security applications, air pollution, trans- port, and risk identiﬁcation. Movie industry applications, cinematography, and visual effects. Determining unusualness, normalcy, and foreseeability. Official data, site visits, clear and convincing testimony. See display ad on page 68.

NURSING/SURGERY/MEDSURG

MED-LINK CONSULTATION 3362 Budleigh Drive, Hacienda Heights, CA 91745, (626) 333-5110, fax (626) 968-0064, e-mail: dorothypollock @roadrunner.com. Contact Dorothy Pollock, LNCC. Expert witness case review and analysis for plaintiff and defense; DME/IME accompaniment; deposition and courtroom experience. Forty years RN in surgery; pre- and postoperative care. Clinically active and teaching in an RN program.

OBSTETRICS & GYNECOLOGY

HANK STREITFELD, MD 3000 Colby Street, Berkeley, CA 94705, (510) 644-0110, fax (510) 644-0220, e-mail: [email protected]. Contact Cindy Sweet. Over 30 years actively practicing obstetrics and gynecology; extensive hospital peer review experience; medical record review, consultation, and testimony; defense and plaintiff work.

ORTHOPEDIC SURGEON

MARC J. FRIEDMAN, MD 6815 Noble Avenue, Van Nuys, CA 91405, (818) 901- 6600, fax (818) 901-6685, e-mail: [email protected]. Web site: www.scoi.com. Contact Holly Robinson, Ext 2810. Orthopedic shoulder and knee, consulting, and expert witness testimony. IME, AME, QME and workers’ compensation evaluations. See display ad on page 67.

GRAHAM A. PURCELL, MD, INC. Assistant Clinical Professor Orthopaedic Surgery, UCLA, 3600 Wrightwood Drive, Studio City, CA 91604, BOARD CERTIFIED ORTHOPEDIC SURGEON (818) 985-3051, fax (818) 985-3049, e-mail: expert @gpurcellmd.com. Web site: gpurcellmd.com. Contact Graham A. Purcell, MD. Dr. Purcell is a board certified MARC J. FRIEDMAN, M.D. orthopedic surgeon, sub-specialty in spinal disorders affecting adults and children. Examples of spinal disorders 6815 Noble Avenue, Van Nuys, California 91405 treated by Dr. Purcell include disc diseases, stenosis, in- Tel. 818.901.6600 ext. 2810 • Fax: 818.901.6685 • Email: [email protected] fections, tumors, injuries, and deformities including scolio- Web Site: www.scoi.com sis. He possesses 29 years of orthopedic and 21 years of med-legal experience, including defense, plaintiff, insurance carriers, CA Attorney General’s office and Public De- Education: Princeton University and Cornell Medical School fender’s office. Expert testimony pertains to med-mal, personal injury, and workers’ compensation cases. As a Certificate: Board Certified Orthopedic Surgeon qualified medical evaluator, Dr. Purcell has extensive ex- Memberships: perience in performing QMEs, AMEs, IMEs, WC evals. Fellowship Sports Medicine See display ad on page 71. Fellow American Academy of Orthopedic Surgeons Fellow in the Arthroscopy Association of North America RICHARD C. ROSENBERG, MD Fellow in the International Arthroscopy Association 18370 Burbank Boulevard, Suite 614, Tarzana, CA Fellow in the International Knee Society 91356, (818) 996-6800, fax (818) 996-2929, e-mail: Fellow in the American Orthopedic Society of Sports Medicine [email protected]. Web site: www.drrosenberg.com. Or- ACL Study Group thopedic surgery, sports medicine, and physical therapy. Certified QME, IME, AME Experienced in IME, QME, agreed medical exams, med/legal reports, and expert witness testimony. Per- Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of sonal injury and workers’ compensation. Additional office the Knee and Shoulder, and Knee Replacement in Oxnard, California. Appointments: Assistant Clinical Professor, Division of Orthopedics, WILLIAM B. STETSON, MD UCLA School of Medicine, Chairman, Education Committee 201 South Buena Vista Street, Suite 240, Burbank, Arthroscopy Association of North America 1997-1999 CA 91505, (818) 848-3030, fax (818) 848-2228, World Cup Soccer Team Physician, 1985 e-mail: [email protected]. Web site: www Physician Specialist XXIII Olympiad 1984 .sportsmedicinedr.com. Contact W. Stetson, MD. Dr. Orthopedic Consultant–New York Knicks and Jets 1978-1985 William B. Stetson is a board certified orthopedic surgeon who is fellowship trained in sports medicine and Publications: 60 Publications including handbook for Orthopedic Surgeons arthroscopy. He is an Associate Clinical Professor of or- on Prosthetic Ligament Reconstruction of the Knee thopedic surgery at the USC School of Medicine. He specializes in the reconstructive treatment of complex shoul- Presentations: Lectures extensively with over 375 presentations worldwide der, knee, elbow and ankle injuries.

Los Angeles Lawyer November 2008 67 PATENT cluding trademark, patent, and copyright infringement, and trade secrets, malpractice, marital dissolution, per- FALLBROOK ENGINEERING sonal injury, product liability, real estate, tax planning and 355 West Grand Avenue, Suite 4, Escondido, CA 92025, preparation, IRS audit defense, tracing, unfair advertising, (760) 489-5400, fax (760) 489-5412, e-mail: veronicav unfair competition, valuation of businesses, and wrongful @fallbrook-eng.com. Web site: www.fallbrook-eng.com. termination. See display ad on page 47. Contact Richard P. Meyst. Fallbrook Engineering provides expert witness services in the areas of IP (patent in- PLASTIC AND COSMETIC RECONSTRUCTIVE fringement, invalidity, claim construction and trade dress), SURGERY personal injury, product liability, and product failure analy- Air Weather & Sea sis. Our professionals have represented plaintiffs and de- JEFFREY L. ROSENBERG, MD Conditions, Inc. fendants. We have done analysis, prepared declarations, 1245 Wilshire Boulevard, Suite 601, Los Angeles, CA been deposed and testified in court. We have years of 90017, (213) 977-0257, fax (213) 977-0501. Contact Clear, plain-language and convincing design and development experience making us effective Meghan. Plastic and reconstructive surgery, burn spe- expert testimony, reports and analyses expert witnesses in all matters involving medical devices. cialist. Diplomate, American Board of Plastic Surgery. to reconstruct weather, storm, and Visit our web site at www.fallbrook-eng.com. Member, American Burn Association and American Soci- atmospheric conditions at location and ety of Plastic Surgeons. time of interest. PEDIATRIC EXPERT WITNESS PLUMBING Wind and rain assessments, and indica- MICHAEL WEINRAUB, MD tions of their normalcy, unusualness and 515 South Flower Street, Suite 3600, Los Angeles, CA CTG FORENSICS, INC. foreseeability. 90071, (213) 236-3662, fax (213) 236-3663, e-mail: 16 Technology Drive, Suite 109, Irvine, CA 92618, [email protected]. Contact Michael Weinraub, (949) 790-0010, fax (949) 790-0020, e-mail: mlewis Authoritative, certified data acquisition, MD. Consultation, litigation support, and trial testimony @CTGforensics.com. Web site: www.CTGforensics.com. preparation of exhibit materials, site for pediatric cases; malpractice, product liability, personal Contact Dr. Malcolm Lewis, PE. Construction-related visits and evaluations of reports for legal injury, child abuse, developmental disabilities, ADHD, engineering, plumbing, mechanical (heating, ventilating, and insurance matters including building lead exposure, and fetal alcohol spectrum disorder. See A/C) and electrical (power, lighting), energy systems, resi- projects, mold, and accidents. display ad on page 59. dential and nonresidential buildings, construction defects, Excellent client references provided on construction claims, and mold. request. PERSONAL INJURY PLUMBING INSPECTION PIPE EVALUATION Jay Rosenthal CCM THE PSYCHOLOGICAL TRAUMA CENTER SERVICES (PIPES) Forensic Child and Adolescent Psychiatry Services. 43141 Business Center Parkway, Suite 201, Lancaster, CERTIFIED CONSULTING METEOROLOGIST 2105 Divisadero Street, San Francisco, CA 94115, CA 93535, (661) 949-8811, fax (661) 940-7318. Phone 818.645.8632 or 310.454.7549 (415) 292-7119, fax (415) 749-2802. Web site: www Contact Arnold A. Rodio. Specialties include evaluation Fax 310.454.7569 .expertchildpsychiatry.com. Contact Gil Kliman, MD, of plumbing systems and installation in housing, apart- E-mail [email protected] Medical Director. Child psychiatry, institutional negli- ment, condominium, and commercial. Expert on uniform www.weatherman.org gence, psychological trauma, molestation, vehicular and plumbing codes and installation standards. Twenty-eight P. O. Box 512, Pacific Palisades, CA 90272 aviation accidents, wrongful death, loss of parental ser- years’ experience, 8,000+ residential units and assorted vices, malpractice, and product liability involving child- commercial projects. Active plumbing contractor. Call for hood personal injury. Degrees/license: MD, FAACAP, CV. LFAPA, and DBFE. See display ad on page 72. POLICE PRACTICES FORENSIC GRAHAM A. PURCELL, MD, INC. CONSTRUCTION DEFECT Assistant Clinical Professor Orthopaedic Surgery, UCLA, MARTINELLI & ASSOCIATES: JUSTICE & 3600 Wrightwood Drive, Studio City, CA 91604, FORENSIC CONSULTANTS, INC. & ENGINEERING, INC. (818) 985-3051, fax (818) 985-3049, e-mail: expert Criminalist, federal/state court certified, police practices A PROFESSIONAL CORPORATION @gpurcellmd.com. Web site: gpurcellmd.com. Contact expert, criminal and civil investigator. 42143 Avenida Al- Graham A. Purcell, MD. Dr. Purcell is a board certified varado, Suite B2, Temecula, CA 92590, (951) 719-1450, orthopedic surgeon, sub-specialty in spinal disorders fax (334) 460-6175, e-mail: [email protected]. Web Forensic Analysis & affecting adults and children. Examples of spinal disor- site: www.jurispro.com/Ronmartinelli. Contact Ron Investigation of: ders treated by Dr. Purcell include disc diseases, steno- Martinelli, PhD. Law enforcement/police practices, sis, infections, tumors, injuries, and deformities including adult/juvenile corrections, use of force/excessive force (all • Construction scoliosis. He possesses 29 years of orthopedic and 21 levels), in-custody death and officer-involved shootings, Defects years of med-legal experience, including defense, plain- pepper spray, taser, criminal/civil investigations, tiff, insurance carriers, CA Attorney General’s office and arrests/detentions, search and seizure, training, liability • Structural, Civil, Public Defender’s office. Expert testimony pertains to and negligence, gang violence, and self-defense law. Environmental, Industrial Engineering med-mal, personal injury, and workers’ compensation Twenty-eight years police field and investigation experi- cases. As a qualified medical evaluator, Dr. Purcell has ence, former police Academy Director. Nationally recog- & Issues for All Types of Structures extensive experience in performing QMEs, AMEs, IMEs, nized and published authority with significant trial experi- and Buildings WC evals. See display ad on page 71. ence. Federal/state certified. • Regulatory Compliances & Building WHITE, ZUCKERMAN, WARSAVSKY, LUNA, POLICE PROCEDURES/PRACTICES EXPERT Codes WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA TT WILLIAMS JR, INVESTIGATIONS INC. 91423, (818) 981-4226, fax (818) 981-4278, 363 San 445 South Figueroa Street, Suite 2700, Los Angeles, CA This Corporation can also provide Miguel Drive, Suite 130, Newport Beach, CA 92660, 90071, (213) 489-6831, fax (213) 426-2151, e-mail: expert witness in the areas of (949) 219-9816, fax (949) 219-9095, 831 State Street, [email protected]. Web site: www.ttwilliamspi.com. Con- Malpractice Litigation or Real Estate tact Timothy T Williams Jr. CEO. Police procedure, transactions. Suite 291, Santa Barbara, CA 93101, (805) 648-4088, fax (805) 963-4088, e-mail: [email protected]. Con- use of force and domestic violence expert in both state tact Barbara Luna or Bill Wolf. Expert witness testi- and federal courts. Retired LAPD Senior Detective Super- MASSIE MUNROE, M.S., P.E. mony for complex litigation involving damage analyses of visor, from the elite Robbery-Homicide Division. Twenty- nine plus years of active law enforcement experience, PRESIDENT & CEO • EXPERT WITNESS lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting, with 26 years conducting and supervising investigations including homicide, robbery, domestic violence, child Tel: 213-632-1310 fraud investigation, investigative analysis of liability, marital abuse, crimes against person, sexual assault, rape, bur- Fax: 213-632-5299 dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. glary, auto theft, juvenile, and narcotics investigations. Prior Big Four accountants. Specialties include account- Degree/Licenses: P.O.S.T. Supervisory Leadership Insti- E-mail: [email protected] ing, breach of contract, business interruption, business tute; West Point Leadership Program; Basic, Intermedi- www.ConstructionDefect.us dissolution, construction defects, delays, and cost over- ate, Advanced and Supervisor P.O.S.T. Certificates; PI runs, fraud, insurance bad faith, intellectual property in- 23399; PPO 14771.

68 Los Angeles Lawyer November 2008 POLYGRAPH

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Los Angeles Lawyer November 2008 69 unique combination of experience encompassing 40 hood personal injury. Degrees/license: MD, FAACAP, 91602, (818) 790-1851, fax (818) 790-7671, e-mail: dave years as a real estate broker, architect, general contrac- LFAPA, and DBFE. See display ad on page 72. @mediationla.com. Web site: www.mediationla.com. tor, and real estate consultant. Developer/manager of of- Contact David W. Dresnick, president. All real estate fice, industrial, retail, medical and residential projects; PUBLISHING matters, international trade disputes, accounting and fi- special experience in leasing, property management, pre- nancial statement disputes, corporate and small busi- design planning, investment analysis, lease analysis, and BAY SHERMAN & CRAIG, LLP ness, and disputes between large corporations and small landlord/tenant disputes. Personally negotiated over 11845 West Olympic Boulevard, Suite 845, Los Angeles, companies, and contract disputes of all kinds. All real es- 5,000 leases. Representation of lessor/lessees, develop- CA 90064, (310) 477-1400, fax (310) 479-0720, e-mail: tate, including: evaluations, contracts, zoning, develop- ers, property owners, attorneys, and architects, including [email protected]. Web site: www.baysherman ment, construction, secondary marketing, borrowers/ expert witness testimony, litigation support, and standard .com. Contact Peter Craig or Hal Jaffe. Many legal lenders, residential escrows, residential, commercial, of care. Experienced in complex matters. Familiar with disputes involve operational, financial, accounting, and in- apartment, lending, and contracts. See display ad on courtroom procedures. Degrees and licenses: Architec- come tax considerations. Bay Sherman & Craig LLP, page 4. ture; General Contractor; Real Estate Broker. work together with counsel to resolve these conflicts. We specialize in publishing intellectual property. In addition to CASTLELYONS CORP. PSYCHIATRY expert witness testimony, we provide the following: ser- 315 South Coast Highway 101, Suite U-3, Encinitas, CA vices prior to trial, financial, accounting and income tax is- 92024, (619) 787-5988, fax (760) 454-1696, e-mail: MARIA T. LYMBERIS, MD, INC. sues defined, record analysis, economic fact-finding and [email protected]. Web site: www.castlelyons 1500 Montana Avenue, Suite 204, Santa Monica, CA analysis, deposition preparation assistance, and settle- .net. Contact Michael K. Ryan. Thirty-seven years of 90403, (310) 451-3152, fax (310) 454-1039, e-mail: ment negotiations. experience in the residential development industry. Sub- [email protected]. Web site: www.lymberis.com. stantial entitlement, land development and homebuilding Contact Maria T. Lymberis, MD. Clinical Professor of QUESTIONED DOCUMENTS resume. MBA from USC, contractor’s and broker’s li- Psychiatry, UCLA, Board Certified in adult and child-ado- BLANCO & ASSOCIATES, INC.— FORENSIC censes. 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Rodd, PhD. tion (in medical malpractice cases), probate, wills, trusts, brokers and mortgage brokers, and real estate document Comprehensive psychological/psychodiagnostic test- real estate documents, deeds, and contracts. custom and usage. Practicing real estate and business ing and evaluation, medical and records review, expert law in California since 1968. See display ad on witness testimony, and consulting. SANDRA L. HOMEWOOD, FORENSIC page 57. DOCUMENT EXAMINER PARK DIETZ & ASSOCIATES 1132 San Marino Drive, Suite 216, Lake San Marcos, CA JACK KARP/NATIONAL PROPERTIES GROUP 2906 Lafayette, Newport Beach, CA 92663, 92078, (760) 931-2529, fax (760) 510-8412, e-mail: 31115 Ganado Drive, Rancho Palos Verdes, CA 90275, (949) 723-2211, fax (949) 723-2212, e-mail: expert [email protected]. Contact Sandra L. (310) 377-6349, fax (310) 868-2880, e-mail: jlkarp@cox @parkdietzassociates.com. Web site: www Homewood. Highly skilled and experienced document .net. Industrial and commercial broker’s care and duties, .parkdietzassociates.com. Forensic consultants in medi- examiner and expert witness in many complex and high professional obligations to clients. Mediation and arbitra- cine and the behavioral science. Forensic experts in psy- profile civil and criminal cases with fully equipped docu- tion between brokers and clients regarding disputes, ethi- chiatry, neurology, pathology, medicine, surgery, psychol- ment laboratory. Specializing in handwriting and hand- cal questions, and fee division. AAA neutral. Real estate ogy, neuropsychology, social work, criminology, security, printing identification, handwriting of the elderly in financial leases and purchase contracts and their interpretations. suicidology, sociology, and other medical and behavioral elder abuse cases and will contests, and examination of Author AIR Net and Gross Leases and AIR Standard Offer specialties. See display ad on page 55. altered medical and corporate records. Trained in govern- and Agreement and Escrow Instruction for Purchase of ment laboratory including specialized training by the FBI Real Estate. See display ad on page 57. WILLIAMS PSYCHOLOGICAL SERVICES and Secret Service. Former government experience in- 10100 Santa Monica Boulevard, Suite 300, Los Angeles, cludes document examiner for the San Diego Police De- LYNDEHURST, LTD CA 90067, (888) 225-9957, fax (888) 225-9957, e-mail: partment crime lab, Arizona State crime lab and San 5535 West 64th Street, Los Angeles, CA 90056 (310) [email protected]. Web site: www.drmwilliams.com. Diego County District Attorney’s office. Currently in pri- 410-8850, fax (310) 410-8893, e-mail: lyndehurst@aol Contact Martin Williams, PhD. Services available: vate, criminal, and civil practice. .com. Contact Richard A. Jampol, A.I.A. Specialties: a IME’s for emotional damage claims; standard of care tes- unique combination of experience encompassing 40 timony in psychotherapy malpractice; immigration evalua- REAL ESTATE years as a real estate broker, architect, general contrac- tions, law enforcement assessments; competency to tor, and real estate consultant. Developer/manager of of- stand trial; NGRI; and sentence mitigation. Psychological ADVISORS/EXPERTS @ MCS ASSOCIATES fice, industrial, retail, medical and residential projects; assessment using objective measures (MMPI-2, MCMI- 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) special experience in leasing, property management, pre- III). Assessment of borderline and other personality disor- 263-8700, fax (949) 263-0770, e-mail: experts design planning, investment analysis, lease analysis, and ders and PTSD. University of California Psychologist, Fel- @mcsassociates.com. Web site: www.mcsassociates landlord/tenant disputes. Personally negotiated over low of the American Psychological Association. Numer- .com. Contact Norman Katz, managing partner. 5,000 leases. Representation of lessor/lessees, develop- ous peer reviewed publications. Offices in Los Angeles, Nationally recognized banking, finance, insurance, and ers, property owners, attorneys, and architects, including Newport Beach, and San Diego. real estate consulting group (established 1973). Experi- expert witness testimony, litigation support, and standard enced litigation consultants/experts include senior of care. Experienced in complex matters. Familiar with PSYCHIATRY/PSYCHOLOGY—FORENSIC bankers, lenders, consultants, economists, accountants, courtroom procedures. Degrees and licenses: Architec- CHILD & ADOLESCENT insurance underwriters/brokers. 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Contact Gil Kliman, MD, and construction defects/disputes, and title insurance. and real estate industry business issues, including market, Medical Director. Child psychiatry, institutional negli- economic and financial feasibility, valuation, and disputes gence, psychological trauma, molestation, vehicular and ARBITRATION AND MEDIATION GROUP, between owner-operator, borrower-lender, and fran- aviation accidents, wrongful death, loss of parental ser- EXPERT WITNESS SERVICES chisor-franchisee. Fluent in management contracts, li- vices, malpractice, and product liability involving child- 4441 Cahuenga Boulevard, Suite D, Toluca Lake, CA cense agreements, ground and building leases, partner-

70 Los Angeles Lawyer November 2008 ship and JV agreement, concession contracts, development agreements, and loan docs. Can estimate dam- — EXPERT WITNESS — ages and appraise property values under multiple scenar- • Reports, evaluations conclusions on Real Estate Does LACBA have ios. Expert witness testimony, litigation strategy, consul- Transactions. tation and support, damage calculations, lost profits • Appraisals Land value property value-Develop- your current analysis, real estate appraisals, deal structuring, work- ment-process, permits. outs, new development, strategic planning, market de- • Condemnation, governmental zoning, e-mail address? mand assessment, acquisition due diligence, and eco- bureaucratic abuses and takings. nomic, financial, and investment analysis. 30 years of ex- • Real Estate Development and usage in the The Los Angeles County Bar perience. California Coastal Zone. Association is your resource COVERING THE FOLLOWING: Practice, contracts, sales for information delivered via e-mail THE REYNOLDS GROUP agreements, state required D disclosures. Single Family on a number of subjects that Residences, Land Development, Land Use Vested Rights P.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397, Easements, Ingress, Egress, Encroachments. impact your practice. fax (714) 730-6476, e-mail: edreynolds@reynolds-group BATES EXPERT WITNESS Update your records online at .com. Web site: www.reynolds-group.com. Contact Ed – Professional Excellence – Reynolds. Principal of the Reynolds Group, an environ- TEL: 310.739.4886 • FAX: 310.456.1599 www.lacba.org/myaccount or mental consulting, contracting, and consulting firm. Expe- EMAIL: [email protected] call Member Services at 213.896.6560. rienced in matters related to environmental contamina- 29575 Pacific Coast Hwy, Ste A, Malibu, CA 90265 tion, assessment and remediation, reasonable value of construction, and related financial matters. Degrees from USC, BS, Civil Eng., 1981; University of Houston, MS, Civil Eng., 1984; and Harvard, MBA, 1986. California registered civil engineer, licensed contractor. Adjunct faculty EXPERT WITNESS — Claims Consultant member at the USC School of Engineering and member of its Board of Councilors. OVER 45 YEARS EXPERIENCE as a claims adjuster, licensed in three states and TEMMY WALKER, INC. qualified in state and federal courts. Expert in good faith/bad faith, 5026 Veloz Avenue, Tarzana, CA 91356, (818) 760- standards and practices and standard in the industry. Specialties in 3355, fax (818) 999-0826, e-mail: [email protected]. property/casualty construction defect, fire/water, uninsured/underinsured Contact Temmy Walker. Specializes in expert witness motorist, warehouse and cargo claims. Failure to defend and/or indemnify. EXPERIENCE testimony and litigation consultant in matters regarding Litigation support, case review and evaluation claim consultation, coverage residential real estate, with emphasis on the customs and review and valuations. Appraisal, Arbitration and Claims Rep. at MSC & MMC. practice, standards of care, disclosure requirements, INTEGRITY agency relationships, and broker supervision. Complete Contact Gene Evans at E. L. Evans Associates assistance. Extensive transaction and court experience. HONESTY Director California Association of Realtors, master faculty Phone (310) 559-4005 / Fax (310) 390-9669 / E-mail [email protected] instructor for continuing education C.A.R. Excellent credentials and references. 3310 AIRPORT AVENUE, SUITE 2, SANTA MONICA, CALIFORNIA 90405

TOM BATES EXPERT WITNESS 29575 Paciﬁc Coast Highway, Suite A, Malibu, CA 90265, (310) 739-4886, fax (310) 456-1599, e-mail: [email protected]. Contact Tom Bates. Reports, evaluations conclusions on real estate. Covering the following: practice, contracts, sales agreements, state required D Disclosures. Single family residences, land development, land use vested rights easements, ingress, egress, and encroachments. Condemnation, governmen- Twenty-one years plaintiff & defense experience tal zoning, bureaucratic abuses and takings. Appraisals land value property value-development-process, permits, real estate development and usage in the California Coastal Zone. See display ad on this page.

ALAN D. WALLACE, ESQ. ’ 14011 Ventura Boulevard, Suite 406, Sherman Oaks, CA 91423, (818) 501-0133, fax (818) 905-6091, e-mail: ’ [email protected]. Contact Alan D. Wallace, Esq. , CA Attorney Expert witness and litigation consulting for general real General’s Office estate matters, including law, custom and practice, agency, disclosure, broker malpractice, standards of care for brokers, buyers and sellers. Broker and attorney. In- volved as broker in more that 7,500 real estate transactions. Department of Real Estate master instructor and author, former CAR hotline attorney, university law professor in real estate. Successfully testiﬁed in dozens of cases. See display ad on page 73

WARONZOF ASSOCIATES, INC. 2250 East Imperial Highway, Suite 120, El Segundo, CA 90245, (310) 322-7744, fax (310) 322-7755. Web site: www.waronzof.com. Contact Timothy R. Lowe, MAI, CRE. Waronzof Associates provides real estate and land use litigation support services including economic damages, lost profits, financial feasibility, highest and best use, property value, enterprise value, partnership interest and closely-held share value, fair compensation, lender liability and reorganization plan feasibility. Professional staff of four with advanced degrees and training in real estate, finance, urban planning and accounting. See display ad on page 61.

Los Angeles Lawyer November 2008 71 Forensic Experts in Child and Adolescent Psychological Injury

The Psychological Trauma Center provides case consultation for defense or plaintiff attorneys, evaluations and testimony regarding allegedly traumatized children, adolescents and families.

Settlements and awards to child plaintiffs for whom our experts provided evaluations or testimony have totaled over $2,000,000,000. We have also helped many defendants obtain defense verdicts or reasonable settlements in civil actions involving allegations of psychological trauma.

A dedicated professional team in a sophisticated computer environment gives skillful and Staff and associates economical management to your case- even on short notice. Complex/multi-document cases include Board certified readily handled. Institutional and/or multi-victim cases conveniently evaluated regardless of psychiatrists, licensed location. Opinions formed throughout the nation by multi-disciplinary teams. psychologists, social workers, MFTÕs and The Center is directed by Gilbert Kliman, MD, a Harvard Medical School assistants. Expertise Graduate, board certified child psychiatrist and Distinguished Life Fellow of includes emotional the American Psychiatric Association. Dr. Kliman spends more than half of damages resulting from: his time in practice and research and less than half in litigation. ■ Institutional/ International literary prize winner and author of over 50 articles and books, corporate negligence recipient of over 50 grants, he has spent over 35 years founding public health organizations to help children. Diplomate of the American College of ■ Child molestation Forensic Examiners and four psychiatric specialty boards, Dr. Kliman has or abuse served as psychiatric expert in some of the nation’s most important ■ Human services institutional neglect and child psychological trauma cases. Known for appearances on 20/20 and failure The Today Show, listed in ÒBest Doctors in America”, he can provide attorney references from over ■ Personal injury 100 trials and 275 depositions. He has been accepted as psychiatric expert by federal and state courts in Alaska, California, Florida, Mississippi, New York, Michigan, Montana, Ohio, Oregon, ■ Wrongful death of Texas and Washington. Much of his testimony is for defense of municipalities, schools, parent corporations, and individuals, in which attorneys references describe remarkable effectiveness. He ■ Foster care is one of the nation’s most highly credentialed forensic child psychiatrists and has a team of ■ Brain damage distinguished associates. ■ Civil rights violations SOME OF OUR CASES INCLUDE: Smith v OK Boys Ranch • Does v Rudy Kos and Archdiocese of Dallas • Franklin v Anchorage School District ■ Aircraft accidents Heartland Academy v State of MO • Does v Roman Catholic Church and LA Archdiocese • Ramos v Salvation ■ Loss of parental Army • Does v Jubilee Christian Church • Does v S. Dakota School for Deaf services ■ Catastrophes THE PSYCHOLOGICAL TRAUMA CENTER ■ Product liability A DIVISION OF PREVENTIVE PSYCHIATRY ASSOCIATES MEDICAL GROUP, INC. ■ Medical malpractice 2105 Divisadero Street, San Francisco, CA 94115 ■ Vehicular accidents Phone (415) 292-7119 / Fax (415) 749-2802 ■ Fire/explosion Visit our website for more information: www.expertchildpsychiatry.com REAL ESTATE APPRAISAL Expert Witness CURTIS-ROSENTHAL, INC. —Real Estate Matters— 5959 West Century Boulevard, Suite 1010, Los Angeles, CA 90045, (310) 215-0482, fax (310) 215-3089, e-mail: [email protected]. Web site: www SPECIALIST IN: .curtisrosenthal.com. Contact David Rosenthal, MAI. Appraisal of commercial and residential real estate for es- • Broker duties; Standard of Care tate planning, eminent domain, bankruptcy, divorce, and • Disclosure Issues – Buyer/Seller general litigation. Accepted in local, state, and federal • Agency Obligations courts. • Real Estate Malpractice RECEIVER • Mortgage Brokerage Law • Residential & Commercial Transactions SALTZBURG, RAY & BERGMAN, LLP 12121 Wilshire Boulevard, Suite 600, Los Angeles, CA CREDENTIALS: 90025, (310) 481-6700, fax (310) 481-6707, e-mail: DLR Supervising Broker @srblaw.com. Web site: www.srblaw.com. Contact David L. Ray, Esq. Specializes in handling complex re- Responsible for overseeing more than ceivership matters, such as partnership and corporate 7,500 RE transactions in major dissolutions, including law firm dissolutions, and govern- California-based real estate companies. ment enforcement receivership actions, including actions General Counsel brought by the California Department of Corporations, Legal adviser for two of nation’s largest Department of Real Estate, Commodities Future Trading Commission, and Federal Trade Commission. Nationally real estate companies. recognized in both the lender and litigation communities Hotline Attorney as qualified to assist in complicated and commercially so- Supervising Senior Counsel at phisticated liquidations, reorganizations, and ongoing California Association of Realtors (CAR) business operations. See display ad on page 51. DRE Master Instructor ROOFING AND WATERPROOFING Author, DRE Disclosure Course. SHEPHERD CONSULTING SERVICES Alan D. Wallace, Esq. P.O. Box 10010, Torrance, CA 90505, (310) 378-0791, 14011 Ventura Blvd., Suite 406 fax (888) 870-1663, e-mail: [email protected]. Contact John Shepherd, RRC, RRO. Roofing, water- Sherman Oaks, CA 91423 proofing, sheet metal and building envelope consulting 818/501-0133 ■ FAX 818/905-6091 services for construction defect litigation, personal injury www.expertwitnessre.com and water damage loss (standard of care and building e-mail: [email protected] code issues), and property loss claims (wind, fire, earth- quake and hail). Support services includes: visual inspections, invasive testing, leak investigation, water testing, report development, documentation, document review, research, mediation and trial expert witness testimony, and cost estimating.

SECURITIES

CORNERSTONE RESEARCH 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071-2005, (213) 553-2500, fax (213) 553-2699, Securities & Business Law e-mail: [email protected]. Web site: www. SEC Enforcement Defense cornerstone.com. Contact George G. Strong, Jr. International Business & Securities Cornerstone Research provides attorneys with expert testimony and economic and financial analyses in all phases Class & Derivative Actions of commercial litigation. We work with faculty and industry Insider Trading experts in a distinctive partnership that combines the NYSE, AMEX, FINRA Disciplinary Proceedings strengths of the business and academic worlds. Our Broker-Dealer, Investment Company & Investment Adviser Matters areas of expertise include identifying and supporting expert witnesses in intellectual property, antitrust, securities, Liability Under Federal & State Securities Laws entertainment, real estate, financial institutions, and gen- Public & Private Offerings eral business litigation. Internet Securities ROBERT C. ROSEN Securities Arbitration Wells Fargo Center, 333 South Grand Avenue, Suite Law Firm Liability 1925, Los Angeles, CA 90071, (213) 362-1000, fax (213) 362-1001, e-mail: [email protected]. Web site: www.rosen-law.com. Specializing in securities law, federal securities law enforcement, securities arbitration, AV Rated, Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School. and international securities, insider trading, NYSE, 35 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission, AMEX, NASD disciplinary proceedings, broker-dealer, Washington D.C. Published Author of Securities Regulations, including nine volume treatise. investment company and investment adviser matters, liability under federal and state securities laws, public and private offerings, Internet securities, and law firm liability. AV rated. Former chair, LACBA Business and Corpora- tions Law Section; LLM, Harvard Law School. More than 35 years practicing securities law, 12 years with the Wells Fargo Center • 333 S. Grand Avenue, Suite 1925 • Los Angeles, CA 90071 U.S. Securities and Exchange Commission, Washing- ton, DC. Published author/editor of securities regulations, including multivolume treatises. See display ad on this page.

Los Angeles Lawyer November 2008 73 SECURITY SLIP, TRIP, AND FALL design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds of cases. JOHN CASE, CPP-SECURITY EXPERT A R TECH FORENSIC EXPERTS, INC. Undergraduate work—UCLA; graduate work—Yale 2310 Coast Boulevard, Del Mar, CA 92014, (858) 755- 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, University. 2931. Contact John D. Case, CPP. Expertise in secu- (818) 344-2700, fax (818) 344-3777. Engineers: experi- rity standards/practices, crime foreseeability, third party enced, registered, advanced degrees, extensive testi- TRAVEL AND TOURISM crimes, guard performance, use of force, shoplifting, mony experience. Traffic accidents (all motor vehicle parking lots, investigations, theft of trade secrets, negli- types, bicycles, pedestrians), collisions, rollovers, skid ALEXANDER ANOLIK, ESQ. gent hiring/retention, and workplace violence. Over 30 marks, visibility, signal phasing, time-motion, low-speed 2107 Van Ness Boulevard, Suite 200, San Francisco, CA years of security experience in consulting/prior employ- impact. Industrial and construction accidents: OSHA is- 94109, (415) 673-3333, fax (415) 673-3548, e-mail: ment with three Fortune 100 firms. Conducted over 800 sues. Automotive, industrial, consumer products: [email protected]. Web site: www.travellaw.com. security surveys. BS Degree in Security Administration, brakes, seat belts, forklifts, machinery, tools, protective Contact Al Anolik. Consultation and expert testimony Michigan State University. International Association of equipment, lawn mowers, heaters, chairs, fixtures, lad- on custom and practice for airline, cruise line, travel agen- Professional Security Consultants (Founding Member, ders, scaffolds, fasteners. Premises liability: code analy- cies, tour operators, motor coach, tour escorts/guides, in- Past President, Current Board Member), Board Certified sis, stairways, ramps, doors, gates, windows, guardrails, centive/meeting planners, and applicability of travel and Protection Professional (CPP). pools, and lighting. Slip-and-fall. Trip-and-fall. Biome- tourism regulation. Evaluation, computation/valuation of chanics. Safety. Human factors. See display ad on tourism entities for purchase, sale, economic damages, or CONFIDENTIAL BUSINESS page 46. ADR hearings. Tourism security and restraint issues and CONSULTANTS, LLC crisis management implementation and manuals. Author 2275 Huntington Drive, Suite 309, San Marino, CA STATE BAR DEFENSE & PREVENTATIVE and professor with actual consulting experience with 91108, (626) 419-0082, fax (626) 799-7960, e-mail: LAW more tour entities than any other legal/custom and prac- [email protected]. Contact James F. Broder, tice consultant. CFE, CPP, FACFE. Author of “Risk Analysis and Secu- LAW OFFICES OF PHILLIP FELDMAN rity Surveys,” premisis liability, adequate vs. inadequate 15250 Ventura Boulevard, Suite 610, Sherman Oaks, WASTEWATER security procedures and practices, expert case analysis CA 91403, (818) 986-9890, fax (818) 986-1757, and testimony, corporate procedures, training and oper- e-mail: [email protected]. Web sites: www JOHN SHAW CONSULTING, LLC ations, kidnap, ransom, extortion, and workplace vio- .CAStateBarDefense.com. Contact Phillip Feldman. P.O. Box 4259, Truckee, CA 96160, (530) 550-1576, fax lence issues. Thirty-five years of law enforcement and Former: State Bar Examiner, Judge Pro Tem. Attorney (530) 579-3388, e-mail: [email protected]. Web site: security experience, domestic and international. Listed in Client fee Arbitrator 30 years. Ethics author and lecturer. www.shawengr.com. Contact John Shaw, PE. the Encyclopedia of Security Management as “One of Former accountant, BS Accounting, MBA. Trial lawyer Water/wastewater/sewer industry—unique combination the most highly recognized security authorities in the 40 years. of operations and engineering background. Sanitary engi- US.” CA PI Lic. 0021073. neering including water (potable) and wastewater (indus- TAXATION trial and domestic) treatment, conveyance, hydraulics, SERVICE STATIONS storage, reuse, master planning, operations, mainte- KAJAN MATHER AND BARISH nance, and expert witness and forensic (mode of failure THE REYNOLDS GROUP 9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA and standard of care analysis; engineering analysis; prod- P.O. Box 1996, Tustin, CA 92781-1996, (714) 730- 90212, (310) 278-6080, fax (310) 278-4805, e-mail: ehk uct suitability and construction defect issues). Wastewater 5397, fax (714) 730-6476, e-mail: edreynolds @taxdisputes.com. Web site: www.taxdisputes.com. treatment plants, disposal/reuse facilities, sewage lift sta- @reynolds-group.com. Web site: www.reynolds-group Contact Elliott H. Kajan. The firm’s practice is devoted tion design, sewer collection systems and sludge treat- .com. Contact Ed Reynolds. Principal of the Reynolds to representation of taxpayers before the Internal Revenue ment. Water treatment plants, pipelines, and swimming Group, an environmental consulting, contracting, and Service, Franchise Tax Board, State Board of Equaliza- pools. consulting firm. Experienced in matters related to envi- tion, and California Employment Development Depart- ronmental contamination, assessment and remedia- ment, involving tax audits, administrative appeals pro- WORKERS’ COMPENSATION tion, reasonable value of construction, and related fi- ceedings, tax collection matters, complex tax litigation, nancial matters. Degrees from USC, BS, Civil Eng., and criminal tax investigations and trials. The firm also GRAHAM A. PURCELL, MD, INC. 1981; University of Houston, MS, Civil Eng., 1984; represents and advises accountants and attorneys re- Assistant Clinical Professor Orthopaedic Surgery, UCLA. and Harvard, MBA, 1986. California registered civil en- garding tax penalties and professional responsibility 3600 Wrightwood Drive, Studio City, CA 91604, gineer, licensed contractor. Adjunct faculty member at matters. (818) 985-3051, fax (818) 985-3049, e-mail: expert the USC School of Engineering and member of its @gpurcellmd.com. Web site: gpurcellmd.com. Contact Board of Councilors. TRAFFIC ENGINEERING Graham A. Purcell, MD. Dr. Purcell is a board certified orthopedic surgeon, sub-specialty in spinal disorders af- ACCIDENT RECONSTRUCTION SPECIALISTS SEXUAL HARASSMENT/DISCRIMINATION fecting adults and children. Examples of spinal disorders (Field Test Engineering Inc,) 4510 Pacific Coast Highway, treated by Dr. Purcell include disc diseases, stenosis, in- EQUILAW Suite 200, Long Beach, CA 90804, (800) 675-7667, fax fections, tumors, injuries, and deformities including scolio- 10061 Riverside Drive, # 536, Toluca Lake, CA 91602, (562) 494-7667. Also: 11440 Bernardo Court, Suite 300, sis. He possesses 29 years of orthopedic and 21 years of (818) 762-7676, fax (818) 762-8003, e-mail: jyanow San Diego, CA 92127, 8275 South Eastern Avenue, Suite med-legal experience, including defense, plaintiff, insur- @equilaw.com. Web site: www.equilaw.com. Contact 200, Las Vegas, NV 89123; 2900 Adams Street, River- ance carriers, CA Attorney General’s office and Public De- Julie B Yanow, Principal. Over two decades of em- side, CA 92604, 7362 Remcon Circle, El Paso, TX fender’s office. Expert testimony pertains to med-mal, ployment and labor law experience. EquiLaw assists 79912. Web site: www.FieldAndTestEngineering.com. personal injury, and workers’ compensation cases. As a clients with workplace investigations of harassment, Contact Robert F. Douglas, PE – engineering man- qualified medical evaluator, Dr. Purcell has extensive ex- discrimination, retaliation/other misconduct; workplace ager. Registered professional engineer in California and perience in performing QMEs, AMEs, IMEs, WC evals. training in harassment/discrimination prevention, HR Arizona, member – NCUTCD, I.T.F., ASTM, Transp. Re- See display ad on page 71. practices, management skills, and executive coaching. search Board, ASCE, SAE, ATSSA, IEEE. Profile: Acci- EquiLaw also offers expert consulting/testimony regard- dent reconstruction, failure analysis, traffic, and trans- ing the prevention, investigation, elimination of unlawful portation. Engineering: auto/truck/train/ped/bike/cycle workplace harassment, discrimination, and retaliation. accidents. See display ad on page 51. See display ad on page 59. WILLIAM KUNZMAN, PE NINA T. RODD, PHD, QME, DABPS 1111 Town and Country #34, Orange, CA 92868, (714) Los Angeles office: 609 Deep Valley Drive, Suite 200, 973-8383, fax (714) 973-8821, e-mail: mail@traffic-engineer Rolling Hills Estates, CA 90274, Newport Beach .com. Web site: www.traffic-engineer.com. Contact office: 620 Newport Center Drive, Suite 1100, New- William Kunzman, PE. Traffic expert witness since port Beach, CA 92660, (310) 378-7172, fax (310) 1979, both defense and plaintiff. Auto, pedestrian, bicy- 541-9308, e-mail: [email protected]. Web site: www cle, and motorcycle accidents. Largest verdict: .psych-expert.com. Contact Nina T. Rodd, PhD. $10,300,000 in pedestrian accident case against Los Comprehensive psychological/ psychodiagnostic Angeles Unified School District. Largest settlement: testing and evaluation, medical and records review, $2,000,000 solo vehicle accident case against Caltrans. expert witness testimony, and consulting. Before becoming expert witnesses, employed by Los An- geles County Road Department, Riverside County Road Department, City of Irvine, and Federal Highway Adminis- tration. Knowledge of governmental agency procedures,

74 Los Angeles Lawyer November 2008

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!.934!4%!.9.!4)/.!.97(%2%!.934!4%!.9.!4)/.!.97(%2% THE LOS ANGELES COUNTY BAR FOUNDATION’S 2007-2008 Foundation hereby lists all individuals who made contributions of FUND DRIVE raised nearly $351,000 from corporations, individu- $200 or more, and all law firms, corporations, and other organizations als, law firms and others. Direct contributions from law firms totaled that contributed $1,000 or more during the period beginning July 1, $148,900; individuals contributed $109,292; and corporations and 2007, and ending June 30, 2008. If you are not listed below, and you others contributed $20,659. In addition to these direct contributions, made a contribution to the Foundation fitting any of the above criteria, $72,123 was contributed to the Foundation by individuals, corporations please contact the Foundation’s independent certified public and law firms by means of the Association’s annual dues statement vol- accountants, Green, Hasson & Janks LLP, by calling Tom Barry directly untary contribution. at (310) 873-1647. (Note: The Foundation records gifts made by check The Foundation wishes to express sincere thanks to all who 2007-2008 on the date of receipt, not the date written on the check.) contributed during the 2007-2008 campaign. As part of the FUND DRIVE The Foundation regrets that space limitations prevent the listing procedures required in connection with its annual audit, the RESULTS of the names of all contributors.

INDIVIDUAL Kalia C. Petmecky $6,000-$14,999 Wasserman, Comden & JOHN H. BRINSLEY, by CONTRIBUTIONS Patricia D. Phillips Bingham McCutchen LLP Casselman LLP Margaret Levy Dennis D. Resh Manatt, Phelps & Phillips LLP Weissmann, Wolff, Bergman, Ann I. Park $5,000 and above Alice A. Salvo Morrison & Foerster Foundation Coleman, Grodin & Evall LLP KATESSA CHARLES DAVIS, by Thomas V. Girardi Laura A. Seigle Steptoe & Johnson LLP Rosalyn S. Zakheim Ruth J. Lavine Marc M. Seltzer OTHER CONTRIBUTIONS Wayne Simon $5,000-$5,999 PATRICK M. KELLY, by $2,000-$4,999 Dianne Baquet Smith Akin, Gump, Strauss, Hauer & $10,000 and above Judith & Herman Palarz John M. Byrne Jeffrey C. Soza Feld LLP American Corporate Counsel MITCHELL C. REGENSTREIF, by Richard E. Garcia Alan K. Steinbrecher Foley & Lardner LLP Association— Symeon K. Davis Margaret Levy Susan Steinhauser Kaye Scholer LLP Southern California Chapter LAURA A. SEIGLE, by Jill Switzer David R. Stepp Kirkland & Ellis LLP $4,000-$9,999 Joseph M. Lipner $1,000-$1,999 Susan Koehler Sullivan Munger, Tolles & Olson LLP O’Melveny & Myers LLP LACBA Corporate Law Jane Shay Wald Linda Auerbach Allderdice William E. Thomson Paul, Hastings, Janofsky & Departments Section PAUL D. TRIPODI II, by Don Mike Anthony Paul D. Tripodi II Walker LLP Catherine Valerio Barrad John S. Chang Jane Shay Wald $2,500-$3,999 Seyfarth Shaw LLP John J. Collins LACBA Family Law Section $200-$499 Sheppard, Mullin, Richter & The Foundation would also like Glen B. Collyer Merrill Corporation April L. Ammeter Hampton LLP to give special recognition to the Andrew J. Demetriou Mollie F. Benedict Sidley Austin LLP $1,000-$2,499 following individuals whose Robert W. Dickerson Michael K. Brown Skadden, Arps, Slate, Meagher & Ralphs Grocery Co. participation in various pledge Mark Garscia Dylan M. Carson Flom LLP programs (as of 6/30/08) Noah Graff & Audra Mori IN MEMORY OF... Brian K. Condon Trope and Trope LLP reﬂects a ﬁrm commitment to Richard E. Hodge Linda L. Curtis JUNE L. ARDEN, by the Foundation’s goals: Lawrence E. Leone Patricia Egan Daehnke $3,000-$4,999 Lawyers Club of Los Angeles James C. Martin Patrick W. Dennis Arnold & Porter LLP County HONOR ROLL Edith R. Matthai Stephen R. English & Mollie Irell & Manella LLP Eric R. McDonough McKenna, Long & Aldridge LLP JOSEPH A. BALL, by Participants have contributed, or Munger Thomas J. Leanse Theodore N. Miller Morgan, Lewis & Bockius LLP pledged to contribute, the Charles A. Gessler William A. Norris Frederick M. Nicholas Larry M. Golub Reed Smith LLP amounts shown for each cate- Ellen A. Pansky Marcia Z. Gordon White & Case LLP HON. PAUL BOLAND, by gory in annual minimum install- John J. Quinn Ruth J. Lavine Joseph G. Gorman $2,000-$2,999 ments of at least $1,000. (List Mitchell C. Regenstreif Feris M. Greenberger CHARLES R. ENGLISH, by includes participants as of Linda M. Stude Bird, Marella, Boxer, Wolpert, Alan N. Halkett Nessim, Drooks & LeAnne E. Maillian 6/30/08.) Rhonda R. Trotter Brian L. Holman Eric A. Webber & Gerard C. Lincenberg APC ANN EPSTEIN, by Founder ($50,000 or more) Curtiss L. Isler Gibson, Dunn & Crutcher LLP Kraaijeveld Lawyers Club of Los Angeles Hyman J. Bradofsky Ronald L. Johnston & Joan L. Howrey LLP Valerie & Martin Webster County Thomas V. Girardi Lesser Jaffe & Clemens Daniel J. Woods KELLEY J. HAGER, by Hutto Patterson Charitable Walter R. Lancaster Jones Day Donna J. Zenor Melissa A. Dalziel Foundation Ryan S. LeVine Perkins Coie LLP $500-$999 Larry & Bobbie Liebenbaum RODERICK W. LEONARD, by J.W. & Ida M. Jameson Foundation $1,000-$1,999 Teresa A. Beaudet Tomas R. Lopez Don Mike Anthony Hon. Richard A. & Ruth J. Lavine Kappy K. Bristol LeAnne E. Maillian Allen, Matkins, Leck, Gamble & Grace Midori Danziger Donald C. Mitchell Jamie Broder Hon. Michael D. Marcus Mallory LLP Charles A. Gessler Ralph J. Shapiro Carolyn C. Burger Kathleen M. McDowell Bonne, Bridges, Mueller, O’Keefe Robert L. Kehr Benefactor ($25,000-$49,999) Charles E. Michaels & Nichols APC Robert E. Carlson Louisa Lau Roy H. Aaron Hon. Anthony J. Mohr Cotkin & Collins APC Paul S. Chan Hon. Michael D. Marcus Jules & Doris Stein Foundation Ann I. Park Greines, Martin, Stein & Tyrone R. Childress Margaret P. Stevens & Robin Lloyd & Susan Stockel Walter Cochran-Bond Ralph B. Perry III Richland LLP Meadow Lawrence A. Cox & Barbara Bauer Christopher Q. Pham Hahn & Hahn LLP John D. Vandevelde Patron ($15,000-$24,999) Kevin D. Rising Hochman, Salkin, Rettig, Toscher Don Mike Anthony Mark T. Cramer R. GERALD MARKLE, by Melanie Hanson Sartoris & Perez P.C. Joseph R. Austin Hon. Lawrence W. Crispo Ellen A. Pansky Katessa Charles Davis Richard K. Smith, Jr. Holland & Knight LLP William J. Bogaard Alexandra Denman Paul D. Supnik Horvitz & Levy LLP DAVID AND DEBI NEIGER, by Robert E. Carlson Gregory Evans Richard P. Sybert Hughes, Hubbard & Reed LLP Barclay Edmundson Richard Chernick Gregg A. Farley N. Denise Taylor Kaufman, Young, Spiegel, ROBERT M. NEWELL, SR., by Knox M. Cologne III Stuart A. Forsyth Kim Tung Robinson & Kenerson LLP Mary W. Newell Stephen R. English & Molly John D. Vandevelde Lewis, Brisbois, Bisgaard & Munger Seth M. Gerber LINDA E. SALTZMAN, by Caroline C. Vincent Smith LLP Stanley F. Farrar Jo-Ann W. Grace Robert M. Saltzman Amos E. Hartston Hon. Charles S. Vogel Liner, Yankelevitz, Sunshine & Robert K. Johnson Christopher J. Heck Robert S. Warren Regenstreif LLP CLARA G. STEVENSON, by Robin Meadow Peter Hsiao Kenneth P. White Meserve, Mumper & Hughes LLP Karen L. Stevenson Gavin Miller Andres C. Hurwitz Earl P. Willens Mitchell, Silberberg & Knupp LLP VINCENT M. TOWNSEND, JR., by In Honor of David Pascale Linda M. Lawson Suzanne V. Wilson Pillsbury, Winthrop, Shaw, David S. Ettinger John J. Quinn Emma Luevano Julie & Ted Xanders Pittman LLP Ralph B. Perry III In Honor of Richard Walch Kerry Lyon-Grossman Rutter, Hobbs & Davidoff Inc. Robert S. Warren Rick C. Madden LAW FIRM Sedgwick, Detert, Moran & IN HONOR OF... Daniel J. Woods Hon. Nora M. Manella CONTRIBUTIONS Arnold LLP ROY H. AARON, by Sponsor ($10,000-$14,999) Sarretta C. McDonough Stroock & Stroock & Lavan LLP $15,000 and above Hon. Kenji Machida Joseph W. Aidlin Richard H. Nakamura, Jr. Theodora, Oringher, Miller & Latham & Watkins LLP John Carson Gretchen M. Nelson Richman PC MOLLIE F. BENEDICT, by Tucker, Ellis & West LLP Dylan M. Carson Gerald L. Chaleff

76 Los Angeles Lawyer November 2008 John J. Collins Linda J. Smith bution within the last 10 years.) Hon. Andria K. Richey Michael G. Soutar Glen B. Collyer Linda M. Stude James N. Adler David K. Robinson Margaret P. Stevens Charles R. English Jill Switzer Paula Ambrosini Deborah J. Ruosch Courtney L. Stuart-Alban Richard E. Garcia John D. Taylor Hon. Orville A. Armstrong Harvey I. Saferstein David W. Swift Mark Garscia William W. Vaughn Jane H. Barrett Nicholas P. Saggese Paul D. Tripodi II Harry L. Hathaway Hon. Robert Weil Commr. Lori R. Behar Marc L. Sallus Kim Tung Richard E. Hodge John S. Welch Mollie F. Benedict Alice A. Salvo Gavin Hachiya Wasserman Patrick M. Kelly Francis M. Wheat Jennifer A. Bensch Laura A. Seigle Kathleen MacFarlane Waters Joel W. H. Kleinberg Kenneth P. White Ivy Kagan Bierman Marc M. Seltzer Margaret Levy In Memory of Arnold V. Winthrop Michael I. Blaylock Patricia L. Shanks SUPPORTING MEMBERS Larry & Bobbie Liebenbaum Hon. Paul Wyler Jeffrey C. Soza Merrick J. Bobb Individuals who have pledged to James C. Martin Phillip L. Bosl John R. Stahr Neal S. Millard PRESIDENTS CLUB Sheryl E. Stein contribute a minimum of $100 Kappy K. Bristol annually to the Foundation. Theodore N. Miller Jamie Broder Alan K. Steinbrecher Former Bar Association or Bar Those with asterisks have previ- Covert E. Parnell III Thomas M. Brown David R. Stepp Foundation presidents who have ously completed pledges at the Wayne Simon Carolyn C. Burger David W. Steuber contributed or pledged to con- Barristers Fellow*, Life Fellow** Joseph Taback John M. Byrne Susan Koehler Sullivan tribute a minimum of $5,000 to David H. Vena Paul A. Catalano William E. Thomson or Honor Roll*** level and have the Foundation. (List includes Hon. Charles S. Vogel Paul S. Chan Eugene L. Trope chosen to continue supporting participants as of 6/30/08.) Martin H. Webster Tyrone R. Childress Rhonda R. Trotter the Foundation with an annual Donna J. Zenor Roy H. Aaron Jordan S. Cohen Susan J. Troy gift. (List includes participants as David C. Tseng of 6/30/08.) Friend ($5,000-$9,999) Don Mike Anthony Arlene Colman-Schwimmer Joseph R. Austin Mark T. Cramer Patric M. Verrone Linda Auerbach Allderdice Don Mike Anthony*** Donald P. Baker Hon. Lawrence W. Crispo Caroline C. Vincent Steven W. Bacon Hon. Helen I. Bendix Robert E. Carlson Hon. H. Walter Croskey Richard S. Volpert Charles G. Bakaly, Jr. Michael H. Bierman John Carson Patricia Egan Daehnke Richard Walch Donald P. Baker George F. Bird, Jr. Gerald Chaleff Grace M. Danziger Eric A. Webber & Gerard C. Teresa A. Beaudet Maxwell M. Blecher Richard Chernick Albert F. Davis Kraaijeveld Patricia H. Benson Brad D. Brian John J. Collins Alexandra Denman Karen B. Wong & Scott W. Lee John S. Chang Lester O. Brown Glen B. Collyer Pamela Dunn & Maria Louise Kenneth B. Wright Walter Cochran-Bond William Clark Brown Knox M. Cologne III Cousineau Rosalyn S. Zakheim Paul F. & Isabel R. Cohen Elizabeth M. Calciano* Donald A. Daucher Gregory Evans Brian K. Condon John L. Carlton Hon. Lee Smalley Edmon Laura V. Farber 2007-08 FELLOWS Joe D. Crider Alan B. Clark Charles R. English Gregg A. Farley Donald A. Daucher Individuals who contributed a Hon. H. Walter Croskey** Stephen R. English Hon. Macklin Fleming Katessa Charles Davis minimum of $500 between Brian L. Davidoff Larry R. Feldman Stuart A. Forsyth Andrew J. Demetriou 7/1/07 and 6/30/08 and are not Jeffrey W. Erdman David E. Gordon Georgia Franklin-Shutan Robert W. Dickerson Barristers Fellows, Life Fellows or Jack I. Esensten Hon. William P. Gray Jeffrey C. Freedman Lee Edmon & Dick Burdge Honor Roll participants. Amy J. Fink Sarah Heck Griffin James J. Gallagher Larry R. Feldman Michele E. Flurer* Harry L. Hathaway Seth M. Gerber Lawrence A. Cox & Barbara Bauer Albert S. Golbert Thomas A. Freiberg, Jr. Rex S. Heinke Russell T. Ginise Frederick M. Nicholas David E. Gordon & Mary D. Lane Robert S. Gerstein John D. Hussey Richard B. Goetz Dianne Baquet Smith Noah Graff & Audra Mori Ethan P. Greene Joan R. Isaacs Hon. Arnold H. Gold Susan Steinhauser Hon. William P. Gray Brian D. Huben Leonard S. Janofsky Jo-Ann W. Grace Jane Shay Wald Sarah Heck Griffin Shirley M. Hufstedler Vincent W. Jones Jan Charles Gray Rex S. Heinke Joan R. Isaacs*** Patrick M. Kelly Feris M. Greenberger BARRISTERS FELLOWS Hon. William P. Hogoboom Lois M. Jacobs Ruth J. Lavine Alan N. Halkett Maria D. Hummer A Barristers Fellow has con- Samantha Phillips Jessner Fred L. Leydorf Amos E. Hartston John D. Hussey tributed, or pledged to contribute Henry J. Josefsberg Lawrence F. Liebenbaum Christopher J. Heck Joan R. Isaacs over a ﬁve-year period, $500 to Ruth D. Kahn* Edith R. Matthai Hon. Rex Heeseman Leonard S. Janofsky the Foundation. Barristers are Marcia L. Kraft Robin Meadow Grover R. Heyler Vincent W. Jones individuals who are 36 years of Miriam A. Krinsky Neal S. Millard Leonard Horwin Martha B. Jordan age or less or who have been in Hon. Robert N. Kwan Gavin Miller Peter Hsiao James H. Kindel, Jr. practice 10 years or less. (List Elisha Fara Landman Hon. Margaret M. Morrow Andres C. Hurwitz Sandra R. King includes participants as of Edward A. Landry Gretchen M. Nelson Bernard S. Kamine Richard G. LaPorte 6/30/08.) Thomas J. Leanse John F. O’Hara Kelly W. Kay Lawrence E. Leone Tomas R. Lopez Andrea Sheridan Ordin Linda M. Lawson Bernard E. & Joan M. LeSage Randee Barak LeAnne E. Maillian** David J. Pasternak James D. Layden Edith R. Matthai Jonathan L. Brophy Elaine W. Mandel Patricia D. Phillips Michael S. Lurey Malissa Hathaway McKeith Shawn C. Chou Linda Wight Mazur John J. Quinn Kerry Lyon-Grossman Hon. Anthony J. Mohr Luci-Ellen M. Chun Frederick L. McKnight Sheldon H. Sloan Rick C. Madden Hon. Margaret M. Morrow Kimberly H. Clancy Danette E. Meyers Susan R. Stockel LeAnne E. Maillian Hon. Margaret A. Nagle Anthony Paul Diaz Ralph B. Perry John D. Taylor Hon. Nora M. Manella Richard H. Nakamura, Jr. Jacqueline J. Harding John J. Quinn*** Hon. Charles S. Vogel Vicki E. Marmorstein & Seth A. Gretchen M. Nelson Rose A. Hickman Jerrold B. Reilly Robert S. Warren Ribner John F. O’Hara Cindy Johnson Toby J. Rothschild Martin H. Webster Eric R. McDonough Ronald L. Olson Cheryl Johnson-Hartwell Peter Schnaitman John S. Welch Sarretta C. McDonough Andrea Sheridan Ordin Nancy A. Kaiser Michael & Lara Schwartz* Francis M. Wheat Kathleen M. McDowell Ellen A. Pansky Princeton H. Kim Arthur F. Silbergeld Daniel J. Woods Michael E. Meyer David J. & Cynthia F. Pasternak Ryan S. LeVine Paul D. Supnik Donna J. Zenor Charles E. Michaels Aulana L. Peters Seth D. Levy Michael A. Tomasulo Mark A. Neubauer Thomas D. Phelps Emma Luevano Patricia A. Van Dyke LIFE FELLOWS Robert H. Nida Patricia D. Phillips Ritu M. Manjunath John D. Vandevelde Andrew J. Nocas Mitchell C. Regenstreif A Life Fellow has contributed, or Jennifer F. Novak Caroline C. Vincent** Stacey Olliff & Tracy Rich Kenneth O. Rhodes pledged to contribute, $2,500 to Christopher Q. Pham Richard Walch** Commr. Steff Padilla Douglas Ring the Foundation. Annual install- Angela J. Reddock Earl P. Willens Lee R. Petillon Reade H. Ryan, Jr. ments must be at least $500. Andrea Schoor Roxanne M. Wilson Kalia C. Petmecky Harvey L. Silbert (List includes participants as of Michelle Inouye Schultz Rosalyn S. Zakheim** Barbara A. Reeves Neal Sheldon H. Sloan 6/30/08 who have made a contri- Allison N. Shue Michael C. Zellers Dennis D. Resh

Fund-raising for the current ﬁscal year (7/1/2008-6/30/2009) is now underway. The Foundation makes grants to law-related projects serving Los Angeles County. Visit the LACBF Web page at www.lacba.org/foundation to learn more about the Foundation and to see a list of its 2008 grant recipients. You may also contact the Foundation’s administrator, Linda Stude, at (213) 896-6409 or e-mail her at [email protected]. To lend your support, send a tax-deductible contribution to: Los Angeles County Bar Foundation, PO Box 55020, Los Angeles, CA 90055-2020. Donations may also be made on-line at www.lacba.org/foundation by clicking on the Donate Now button.

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Ahern Insurance Brokerage, p. 2 ForensisGroup Inc., p. 45 Charles Pereyra-Suarez, p. 49 Tel. 800-282-9786 x101 [email protected] Tel. 626-795-5000 www.forensisgroup.com Tel. 213-623-5923 www.cpslawﬁrm.com

Air, Weather & Sea Conditions, Inc., p. 68 Marc J. Friedman, M.D., p. 67 The Psychological Trauma Center, p. 72 Tel. 818-645-8632 www.weatherman.org Tel. 818-901-6600 e-mail: [email protected] Tel. 415-292-7119 www.expertchildpsychiatry.com

AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 67 FULCRUM Financial Inquiry LLP, p. 1 Resident Agents of Nevada, p. 37 Tel. 800-275-8903 www.amfs.com Tel. 213-787-4100 www.fulcruminquiry.com Tel. 775-882-4641, 888-463-8462 www.nevada.com

Arbitration and Mediation Group, p. 4 G. L. Howard CPA, p. 39 Rosen & Associates, PC, p. 73 Tel. 818-790-1851 www.mediationla.com Tel. 562-431-9844 e-mail: [email protected] Tel. 213-362-1000 www.rosen-law.com

A R Tech Forensic Experts, Inc., p. 46 Steven L. Gleitman, Esq., p. 4 Roughan & Associates at LINC, p. 51 Tel. 818-344-2700 e-mail:[email protected] Tel. 310-553-5080 Tel. 626-303-6333 x16 e-mail: [email protected]

Bates Expert Witness Real Estate, p. 71 Global Corporate Services, Inc., p. 38 Saltzburg Ray & Bergman, LLP, p. 51 Tel. 310-739-4886 e-mail: [email protected] Tel. 561-968-6611 www.global-inter.net Tel. 310-481-6700 www.srblaw.com

Lee Jay Berman, p.17 Graham A Purcell, MD., Inc., p. 71 Anita Rae Shapiro, p. 42 Tel. 213-383-0438 www.leejayberman.com Tel. 818-985-3051 e-mail: [email protected] Tel. 714-529-0415 www.adr-shapiro.com

Bridgeport Continuing Legal Education, p. 17 Grubb & Ellis Company, p. 28 Steven Peck’s Premier Legal, p. 30 Tel. 818-783-7156 e-mail: [email protected] Tel. 213-596-2222 www.Grubb-Ellis.com Tel. 866-999-9085 www.premierlegal.org,

Dr. Kenneth H. Brown, Chemical Expert Witness, p. 53 Guaranteed Subpoena, p. 75 Steven R. Sauer APC, p. 42 Tel. 866-243-6397 e-mail: [email protected] Tel. 800-PROCESS (776-2377) e-mail: [email protected] Tel. 323-933-6833 e-mail: [email protected]

The California Academy of Distinguished Neutrals, p. 40, 41 Gursey, Schneider & Company, p. 50 Stephen Sears, CPA-Attorney at Law, p. 42 Tel. 310-341-3879 www.CaliforniaNeutrals.org Tel. 310-552-0960 www.gursey.com www.searsatty.com

California Eminent Domain Law Group, APC, p. 39 Hargis & Associates, Inc., p. 61 Eric R Steinwald Accountancy Corp., p. 49 Tel. 818-957-0477 www.caledlaw.com Tel. 800-554-2744 www.hargis.com Tel. 310-207-9980 www.erscpa.com

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DepoSums Deposition Summaries, p. 45 The Leukemia & Lymphoma Society, p. 38 URS, p. 53 Tel. 800-789-DEPO (800-789-3376) www.deposums.biz Tel. 888-773-9958 [email protected] Tel. 213-996-2555 www.urscorp.com

Diana G. Lesgart, An Accountancy Corp., p. 45 Lexis Publishing, Inside Front Cover, p. 11 Law Offices of Alan D. Wallace, p. 73 Tel. 818-886-7140 e-mail: [email protected] www.lexis.com Tel. 818-501-0133 www.expertwitnessre.com

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Ed Milich, p. 59 Clinton E. Miller, JD, p. 45 Michael R. Weinraub, M.D., p. 59 Tel. 310-710-4708 e-mail: [email protected] Tel. 408-279-1034 www.millerjd.qpg.com Tel. 213-742-0421 e-mail: [email protected]

Educational Seminars Institute, p. 31 Mr. Truck, p. 57 White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 47 Tel. 866-547-6083 www.ESISEMS.com Tel. 925-625-4994 or 800-337-4994 e-mail: [email protected] Tel. 818-981-4226 www.wzwlw.com

EquiLaw, p. 59 National Properties Group, p. 71 Witkin & Eisinger, LLC, p. 57 Tel. 818-762-7676 e-mail [email protected] Tel. 310-516-0022 Tel. 310-670-1500

E. L. Evans & Associates, p. 71 Noriega Clinics, p. 78 Wolfsdorf Immigration Law Group, p. 38 Tel. 310-559-4005 Tel. 323-728-8268 Tel 310-570-4088 www.wolfsdorf.com

First Indemnity Insurance Services, Inc., p. 15 Paciﬁc Construction Consultants, Inc. (PCCI), p. 73 Zivetz, Schwartz & Saltsman, p. 49 Tel. 800-982-1151 www.ﬁrstindemnity.net Tel. 916-638-4848 www.pcci.biz Tel. 310-826-1040 www.zsscpa.com

Forensic Construction Defect & Engr, Inc./Expert Witness, p. 68 Paciﬁc Health & Safety Consulting, Inc., p. 67 Tel. 213-632-1310 e-mail: [email protected] Tel. 949-253-4065 www.phsc-web.com

Los Angeles Lawyer November 2008 79 closing argument BY JUSTICE ROGER BOREN

An ACE for Los Angeles High School Students

FOR YEARS, JOSEPH LANE (the clerk and executive officer of the On the day of the special session, the students traveled by school Second Appellate District) and I discussed the possibility of taking bus to the Ronald Reagan Building and were brought to our court- appellate court proceedings to high school students. In some of the room on the third floor. The clerk of the court and others gave them other five California appellate districts the appellate bench has taken an introduction, and the students met the advocates on the appeal. its show on the road to smaller communities and held proceedings Soon the justices took the bench in the traditional manner, and oral in either the local courthouse or in a high school auditorium. We rec- argument ensued in accordance with the normal routine. At the con- ognized that such outreach activities were not easily adapted to, or clusion of the arguments and after the justices had left the bench, the reasonably feasible in, the megalopolis of Los Angeles. However, we students were addressed again by the clerk and were able to ask the came upon a model: Division Six of the Second District, located in arguing attorneys questions about the case, why they chose to become Ventura, established a program with two local high schools that we attorneys, and their backgrounds. That session lasted about a half hour, thought could be adapted to Los Angeles. But we needed a way to greatly expand the reach of the program to make it available to the Students also gain an awareness that they, too, may find a role large number of schools in the city. Fortuitously, in early 2004, Marshall Croddy, vice president of the Constitutional in the legal system and that this goal is not beyond their reach. Rights Foundation, asked us if the CRF might assist in developing a curriculum for high school classes that would involve our court. Croddy and Laura Wesley, director of law programs for the CRF, pro- and then the students were broken into groups, and each group was posed a program with three phases. First, volunteer attorneys would ushered to one of the participating justice’s chambers. In the infor- visit high school classrooms and orient the students about the appel- mality of the chambers, each justice addressed the students con- late process and a particular appellate case. Then, the students would cerning the proceedings—being careful not to comment inappropri- travel to our courtroom in the Ronald Reagan Building to hear oral ately about the case itself—and then entertained questions. The arguments and interact with the attorneys and the justices involved enthusiasm of the students was quite evident. with the case. Finally, after the court filed its opinion, the volunteer Since that inaugural run of ACE in 2004, the program has been attorneys would revisit the classrooms to discuss the case outcome. repeated 11 times. All the Los Angeles-based divisions of the Second After our agreement with the CRF, its representatives developed District have had an opportunity to host at least one ACE oral argu- an orientation curriculum to present to the students and to enlist the ment session. Almost 20 high schools have participated. From the per- cooperation of members of the Los Angeles bar to carry out com- spective of the justices, it seems clear that a major objective of the ACE ponents of the proposed program. The curriculum and program program is being met. Students are able to grasp the role of the procedures had to be field tested and assessed. When teachers and stu- courts in promoting the rule of law, providing fair resolutions of legal dents who reviewed the proposed program gave it positive marks, we disputes, and administering justice in the criminal law arena. Students were ready to put it into action. also gain an awareness that they, too, may find a role in the legal sys- The CRF and the court enlisted the Appellate Courts Committee tem and that this goal is not beyond their reach. Every session results of the Los Angeles County Bar Association and the California in questions about how the judge became a lawyer or a judge and why. Academy of Appellate Lawyers to collaborate in the program. The But it is very clear to me that the guts of the ACE program lies in three groups recruited attorneys to act as the instructors for the pro- the mentoring provided by the volunteer attorneys who instruct and gram to educate the students about the appellate process and the par- guide the students through a process with which they are generally ticular case that they would follow. By fall of 2004, we were ready quite unfamiliar. Without this tremendous effort by the members of to roll. All we lacked was a catchy acronym with which to title the the bar, the ACE program could not be maintained. There may come program. We finally agreed on ACE—the Appellate Courts Experience. a day when, through the Internet or closed circuit broadcasting, the Division Two (my division) was the guinea pig for the inaugural ACE program could be further broadened so that the court proceedings run of the ACE program. We selected a case suitable to the stu- could be piped into schools that cannot make the trip to the court. dents’ understanding and made the briefs available to the program But we are off to a wonderful start, thanks to the Constitutional Rights attorneys who had volunteered to serve as instructors. We scheduled Foundation, the Los Angeles County Bar Association, and the a special morning oral argument session for our courtroom in the California Academy of Appellate Lawyers. ■ Ronald Reagan Building on October 24, 2004. In early October the volunteer attorneys met with the students in their classrooms, gave Justice Roger Boren is administrative presiding justice of the California Court them copies of the briefs, and prepared them for the oral arguments. of Appeal, Second Appellate District.

80 Los Angeles Lawyer November 2008 Complex Court Symposium Ethics, Substance Abuse, Diversity: A Humorous Approach ON WEDNESDAY, NOVEMBER 19, the ON THURSDAY, NOVEMBER 13, the Los Angeles County Bar Association, together with the Law Practice Management Section and the Small and Solo Litigation Section, together with the Labor Practitioner Division, will host a program titled “Legal Ethics: A Funny Thing and Employment Law Section, the Los Happened on the Way to the Disciplinary Hearing.” It’s often said that laughter Angeles and Orange County Chapters of is the best medicine. Let lawyer, comedian, and humor columnist Sean Carter the Association of Business Trial Lawyers, show you how to add a daily dose of laughter to your practice. In this presentation, he explores some of the more outrageous disciplinary cases that the Association of Southern California come before state bar committees and how lawyers can avoid being part of Defense Counsel, and the Consumer them. After explaining why legal ethics is not an oxymoron, Carter will cover Attorneys Association of Los Angeles, will how laughter is the best defense against substance abuse. Additionally, Carter will explore the issues involved in recruiting and retaining minority and women present a program on all aspects of employees and debunks some of the common myths surrounding the issue of complex court litigation. Many of the 19 diversity. The event will take place at the LACBA Conference Center, 281 South judges from the complex courts in Figueroa Street, Downtown. Figueroa Courtyard reduced parking with LACBA California—including all seven Los validation costs $10. On-site registration and the meal will begin at 4 P.M., with the program continuing from 4:30 to 8:15 P.M. The registration code number is Angeles Complex Court judges—are 010051. The prices below include the meal. scheduled to present their views and take $150—CLE+PLUS members questions. The program will cover $175—Barristers Section members $195—Law Practice Management Section and Small and Solo Practitioner procedures for case control, class Division members certiﬁcation, discovery, attaining and $275—LACBA members approving settlements, and conduct at $450—all others trial. The program will take place at the 3.5 CLE hours, including 1 hour of ethics, 1 of elimination of bias, 1 of substance abuse, and half an hour of general CLE Omni Los Angeles Hotel, 251 South Olive Street, Downtown. Valet parking costs $12. On-site registration will begin at

Electronic Discovery Faux Pas 2:30 P.M., with the program continuing ON THURSDAY, NOVEMBER 20, the Los Angeles County Bar Association and the from 3 to 7:30 P.M. The registration code Small Firm and Sole Practitioner Division will host a webinar (an online seminar) on the most common and critical faux pas that attorneys commit when handling number is 010073. The prices below electronic data of clients. Solutions and tips on to how to avoid errors will be include the meal. provided. Please note that registration for this program closes on November 17. $80—CLE+PLUS members Early registration is required because of the special nature of the program. $160—Litigation and Real Property Registrants must provide an e-mail address so that the Association may send information prior to the program. The webinar will take place from 11:30 A.M. to Section members 12:30 P.M. The registration code number is 010156. $160—ABTL, CAALA, and SCDC members $45—CLE+PLUS members $180—LACBA members $85—LACBA members $125—all others $225—all others 1 CLE hour 3.25 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/where you will ﬁnd a full listing of this month’s Association programs. CITATION FORMATTING MADE ACCURATE, EASY AND QUICK.

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Los Angeles Lawyer November 2008 +HUPLSH3PJH[H)YPHU-VZ[LY(JJV\U[HU[Z

Los Angeles Lawyer November 2008 +HUPLSH3PJH[H)YPHU-VZ[LY(JJV\U[HU[Z