Los Angeles Lawyer November 2010 LOS ANGELES LAWYER11 01 108.375X10.875__4C

Semiannual Guide to Expert Witnesses Rest aur Law PAGE ant 72

November 2010 /$4

EARN MCLE CREDIT PLUS Enforceability Bad NewsNews of Forum- for Copyright Selection Claimants Clauses page 32 page page 25

LossLoss Deductions from Wages page 10 Undocumented Personal Injury Plaintiffs page 15 Super Powers

Los Angeles lawyers Justin M. Goldstein (left) and Noah Pérez-Silverman discuss the inherent powers of courts to address litigation abuse page 18 THE SCHOOL OF LAW AND THE CENTER FOR GLOBAL LAW AND DEVELOPMENT AT CHAPMAN UNIVERSITY proudly announce Photograph used with permission of Creative Commons GLOBAL PROJECT FOR LGBTQ RIGHTS AND FEMINISM

PROJECT CO-DIRECTORS

Professor M. Katherine Baird Darmer served as an Assistant United States Attorney in the Southern District of New York before joining the faculty at Chapman University School of Law in 2000. She is co-editor of the book Morality, Justice and the Law and has published several articles and spoken in legal forums across the country on matters related to Proposition 8 and LGBTQ rights. She is a founding board member and Chair of the Legal Team of the Orange County Equality Coalition

Photograph used with permission of Marta Evry and a founding board member of Lavender Bar Association. She was recently awarded a Community Bridge Award for her work on behalf of LGBTQ rights. In 2009, she served as a sabbatical visitor and senior fellow in Columbia Law School’s Gender CONFIRMED SPEAKERS FOR 2010-2011: and Sexuality Law Program in New York City. She was one of two lead authors of an amicus brief filed on behalf of numerous Chapman University and Orange County individualsand married couples June Rose Carbone – Monday, October 4, 2010 in favor of overturning Proposition 8 before the California Supreme Court. Professor Darmer received her A.B. Edward A. Smith/Missouri Chair in Law, from Princeton University, with high honors, and her Juris Doctor from Columbia University, where she was the Constitution and Society a Harlan Fiske Stone Scholar. She will teach a new seminar on Sexual Orientation in spring 2011. University of Missouri-Kansas City School of Law “What Does Bristol Palin Have To Do With Professor Marisa S. Cianciarulo is the Director of Chapman’s Family Violence Same-Sex Marriage?” Clinic, in which upper-level law students represent survivors of domestic violence, rape, and other crimes in petitions for restraining orders and applications for immigration Dean Spade – Thursday, October 28, 2010 relief. She is a specialist in clinical teaching and immigration law with a human rights Assistant Professor of Law focus. Professor Cianciarulo taught in the Villanova Clinic for Asylum, Refugee and Seattle University School of Law Emigrant Services for three years prior to joining the faculty at Chapman. She previously served as a Staff Attorney with the American Bar Association’s Commission on Immigration "The End of G(LBT?) Rights Politics" in Washington, D.C., was a partner in a law firm specializing in immigration matters, Katherine M. Franke – Wednesday, January 12, 2011 and served as interim legal director of a non-profit immigration services provider in Arlington, Virginia. She publishes on the intersection of gender and immigration with an emphasis on vulnerable Professor of Law, Director of Center for Gender immigrant populations. Professor Cianciarulo received her B.A. from the Catholic University of America, her J.D. and Sexuality Law from American University Washington College of Law, and her M.A. from American University School of International Columbia Law School Service. She teaches the Family Violence Clinic, Gender & the Law, Refugee Law and Civil Procedure. "Dignifying Rights: Reflections on the Same-Sex Marriage Litigation" BOARD OF ADVISORS Catherine E. Smith – Spring 2011 Ashleigh Aitken, president of the Orange County Women Lawyers Association and former Assistant Associate Dean of Institutional Diversity and Inclusiveness, United States Attorney in the Central District of California. Associate Professor University of Denver Sturm College of Law Tiffany Chang, board member of the Orange County Equality Coalition and former president of Outlaw, Topic: TBA the Chapman law student group for LGBTQs and straight allies. Lt. Dan Choi, West Point graduate and Arab language specialist in the United States Army before being discharged after publicly coming out as being gay. MISSION STATEMENT Karyl E. Ketchum, Ph.D., assistant professor of Women’s Studies at California State University, Fullerton The mission of the Global Project for LGBTQ Rights and whose scholarship has examined the relationship between misogyny and homophobia. Feminism is to bring leading scholars and policymakers Shannon Minter, Esq., legal director of the National Center for Lesbian Rights and lead attorney in the to Chapman University to discuss a wide range of issues California marriage cases whose work led to the first-ever state supreme court finding that gays and lesbians related to family law, marriage equality, discrimination based are entitled to “suspect classification” status for equal protection purposes. Ford Foundation “Leadership on sex and sexual orientation, international human rights, for a Changing World” award recipient. and the profound impact that gender and sexual orientation have on law and society; to address the complex questions Rev. Canon Albert J. Ogle, board member of Equality California and Integrity, U.S.A., which works closely evoked by feminist theory and LGBTQ rights through an with Bishop Christopher Senyonjo of Uganda in battling the repression of LGBTQs in that country. interdisciplinary approach; and to provide an important Jeffrey A. Redding, assistant professor of law at St. Louis University whose scholarship examines family forum for international dialogue about gender and norms and family law practices across cultures. Former Oscar M. Ruebhausen Fellow in Law at Yale Law School. sexual orientation.

VISION STATEMENT

The vision of the Global Project for LGBTQ Rights and Feminism is a world safe for all persons, regardless of gender, gender identification or sexual orientation. One University Drive, Orange, CA 92866 I www.chapman.edu/law EXCLUSIVELY FAMILYLAW

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42 Special Section Semiannual Guide to Expert Witnesses

Los Angeles Lawyer DEPARTMENTS the magazine of the Los Angeles County 9 Barristers Tips 72 By the Book Bar Association How to prepare for direct examination of The Essential Guide to California a witness Restaurant Law November 2010 BY DEVON MYERS REVIEWED BY GORDON ENG Volume 33, No.8 10 Practice Tips 76 Closing Argument COVER PHOTO: TOM KELLER The limits on employer deductions from Leveraging justice with the Justice pay in California Gap Fund BY STEVEN G. PEARL BY ASSEMBLYMEMBER MIKE FEUER, HOLLY J. FUJIE, AND REX S. HEINKE 15 Practice Tips The immigration status of plaintiffs in 73 Classifieds personal injury actions LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, BY CEDRIC M. SHEN AND HUMBERTO R. GRAY 74 Index to Advertisers except for a combined issue in July/August, by the Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid 70 LACB Foundation at Los Angeles, CA and additional mailing offices. Annual sub- 75 CLE Preview scription price of $14 included in the Association membership 2009-2010 Fund Drive Results dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 11.10 VISIT US ON THE INTERNET AT www.lacba.org/lalawyer E-MAIL CAN BE SENT TO [email protected] EDITORIAL BOARD Chair MICHAEL A. GEIBELSON Articles Coordinator KENNETH W. SWENSON JERROLD ABELES (PAST CHAIR) ETHEL W. BENNETT ERIC BROWN CAROLINE BUSSIN PATRICIA H. COMBS CHAD C. COOMBS (PAST CHAIR) ELIZABETH L. CROOKE BEN M. DAVIDSON ANGELA J. DAVIS (PAST CHAIR) PANKIT J. DOSHI GORDON ENG DONNA FORD STUART R. FRAENKEL /PWBUJPO$BQJUBM MMD GABRIEL G. GREEN TED HANDEL JEFFREY A. HARTWICK STEVEN HECHT (PAST CHAIR) LAURENCE L. HUMMER 1/A6T]Àb`cQbc`SRASbbZS[S\ba AMY K. JENSEN GREGORY JONES O\R/\\cWbWSa MARY E. KELLY JOHN P. LECRONE 0SbbS`RSOZaT`][OPSbbS`Q][Ô\g KENNETH K. LEE JONATHAN D. LIBBY &%"%$"% eee

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6 Los Angeles Lawyer November 2010

JUDGE LAWRENCE W. CRISPO (RET.)

n a prior column, I noted that “in the absence of a precedent stating the obvious, common sense will suffice.” I Jeffer, Mangels & Butler v. Glickman, 234 Cal. App. 3d 1432, 1439 (1991). But Jeffer, Mangels was nearly 20 years ago, long before the Internet inﬁltrated our homes and pockets.

Now, common sense often requires confirmation via a quick Internet search. Still we often quip with irony that “it’s on the Internet, so it must be true” and joke about receiving “official request[s]” from Nigerian royalty to transfer money. Notwithstanding the scams, the availability of information on the Internet has entered our communal psyche. As a result, the vast majority of us now second-guess, or at least feel more comfortable in confirming with an Internet search, what we simply knew via common sense in years past. For example, 20 years ago, who would have questioned whether there were different designs of yellow hats? At a minimum, Mediator Arbitrator there’s the Gorton’s fish stick guy, Dick Tracy, the San Diego Padres, and the Man with the Yellow Hat from the Curious George books. (I must confess that, despite reading the Curious George books as a child and to my children ad nauseam, I conducted an Internet search to confirm that the Man with the Yellow Hat had no proper Referee name. This was so until 1998, according to Wikipedia, when he was “Ted” in the 213.926.6665 book See the Circus and “Ted Shackleford” in the 2006 movie Curious George.) www.judgecrispo.com Finally, there is “precedent stating the obvious”—an Internet search may suffice to confirm (or demonstrate) common sense. In United States v. Bari, 599 F. 3d 176 (2d Cir. 2010), the U.S. Court of Appeals considered, and confirmed in a limited context, the propriety of a district court taking judicial notice of Internet search results. After his imprisonment for bank robbery, Bari commenced his supervised release. At a supervised release revocation hearing the court found Bari guilty of a bank robbery violation and a firearms violation “on the cumulative effect of multiple items of evidence.” The judge noted that the “strongest piece of evidence” was a yellow hat worn by the perpetrator (as seen on the bank’s surveillance video footage)—the same type found in Bari’s landlord’s garage. “To emphasize the similarity between the hats, [the district judge] stated that ‘there are clearly lots of yellow hats out there,’ and that ‘[o]ne can Google yellow rain hats and find lots of different yellow rain hats.’” After noting that the Federal Rules of Evidence, except those governing privileges, do not apply in revocation proceedings, the court concluded, “Common sense leads one to suppose that there is not only one type of yellow rain hat for sale. Instead, one would imagine that there are many types of yellow rain hats, with one sufficient to suit nearly any taste in brim-width or shade. The District Court’s independent Internet search served only to confirm this common sense supposition.” Moreover, continued the Bari court, “As the cost of confirming one’s intuition decreases, we would expect to see more judges doing just that. More generally, with so much information at our fingertips (almost literally), we all likely confirm hunches with a brief visit to our favorite search engine that in the not-so-distant past would have gone unconfirmed.” The observations by the court foreshadow the impending merger of the so far distinct subparts of Federal Rule of Evidence 201 on judicial notice that address what is “(1) generally known within the territorial jurisdiction of the trial court,” and “(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Perhaps the same fate awaits California Evidence Code Sections 451(f) and 452(g) and (h). I

Michael A. Geibelson is a business trial lawyer with Robins, Kaplan, Miller & Ciresi L.L.P., where he handles unfair competition, trade secret, and class actions. He is the 2010-11 chair of the Los Angeles Lawyer Editorial Board.

8 Los Angeles Lawyer November 2010 barristers tips BY DEVON MYERS

How to Prepare for Direct Examination of a Witness

WHILE NO SINGLE LIST CAN ENCOMPASS all the fine points of Once the outline is fully prepared, it is time to practice with your preparing and questioning a witness at trial, the following list high- witness. You do not want your witness’s testimony to sound rehearsed, lights the important ones. The first step is to conduct a comprehen- so review your questions as needed, probably no more than once. Or sive review of the evidence that relates to the witness. Collect and you can describe the order in which you plan to ask questions and review all documents related to the witness—including declarations, the important points that need to be covered. For questions that have depositions, and exhibits—to construct a narrative, through ques- emotional impact, steer clear of them in preparation so that the wit- tioning, for the jury. Review documents, if any, that are not part of ness’s answers will be fresher for testimony. For example, I recently discovery. had the opportunity to question witnesses during trial in the challenge Once you have reviewed what you know about the witness, con- led by Log Cabin Republicans to the Don't Ask, Don’t Tell policy. My sider what you do not know and what you want to avoid. Cross-exam- first witness had an excellent answer to why he spent a lot of his time ination cannot exceed the bounds of direct examination, so unless speaking out against the policy. He did so because his best friend, who absolutely necessary, avoid topics that may be problematic. Next, talk was an excellent soldier, left the military because he could not bear to the witness about the information you do not have that may add the burden of having to lie about his sexual orientation all the time. useful detail to the testimony. Ask about any potential problems The witness, who was also an excellent soldier, spoke of how it was that the witness may not have disclosed, so you know exactly what not the country he loved that applied such a policy. It was an emo- weaknesses exist. Ask the hard questions too, which may involve facts tional answer because of how passionately he felt for his friend and that the witness may not want to discuss. all the other people who want to serve their country but cannot. The When the review is complete, it is time to create an outline of your first time I asked him that question was about two weeks before trial. questions. A witness declaration, if you have one, is a good place to I did not ask it again when we prepared for trial. When I asked him start to structure your outline. Use the declaration to create a list of that question at trial, his answer was so powerful that it felt like every- witness questions and answers. Direct examination questions cannot one else in the courtroom stopped breathing. be leading. Writing the expected answers is important in case your Hold your preparation session in an informal place, but where you witness gives an incomplete answer to a question. When this happens, will not be overheard. Take time to help the witness become more com- you will know what follow-up questions are needed to obtain the full fortable with you and the examination. Get to know the witness apart answer. When drafting your questions and answers, keep them short. from his or her testimony if you can; it will help you to elicit the story You want to help your witness move through the testimony in bite- on direct. You may also develop new questions from informal dis- sized pieces, not long narratives. cussions. Tell your witness to remain calm and composed during cross- After writing an outline of the questions and answers, review it examination and to give you time to object, if necessary, before for any questions that are not included but that could provide use- answering. Conduct a mock cross-examination of your witness or, even ful testimony. Review these potential questions with your witness. Do better, have a colleague that the witness does not know do it. You want not include any question in your outline to which you do not know your practice cross-examination to be more difficult than the one the the answer. witness will likely face. Remind your witness to always be truthful Consider possible objections to each question and how to handle and to answer the question asked. Lastly, explain to your witness where them. You can include these notations in the margins for quick ref- he or she will sit and how the courtroom is situated. If you can, let erence. Include in appropriate places in the outline those documents the witness see the courtroom ahead of time. that you want to introduce into evidence. Note in your outline next At trial, bring your binder and cheat sheet to the lectern, along with to the document what you intend to rely on to pass hearsay and rel- a blank piece of paper for notes, particularly for points you may need evance objections. Review your outline again for any gaps or subjects to circle back to in your examination. Bring a few sticky tabs too so to flesh out. If you get sidetracked during questioning, a short check- you can hold a place in your outline if you are interrupted and have list of crucial points that you want to elicit can help. to finish your examination later. If your witness gets off track, ask a Create a binder for each witness that includes the outline and leading question. You will probably get an objection, but it will exhibits. Number tabs so that they match the exhibit number. For remind your witness what testimony you need. For exhibits, lay the example, if you have three exhibits, do not use exhibit tabs 1, 2, and foundation first before you move to admit the document into evidence. 3. Instead, use the tab number that matches the exhibit list. Be sure You cannot put the document on a projector until it is admitted. Once to include a cheat sheet—a bare-bones list of all the hearsay excep- cross-examination begins, only object when necessary. Make your redi- tions, legal principles to support your relevance arguments, and rect as short as you can, and direct it to any points that require clar- objections you can make when your witness is being cross-examined. ification or explanation from cross-examination. I The cheat sheet should not be more than a page long, although you can put the objections on the back and flip the page over when your Devon Myers is an associate at White & Case LLP and practices in its litiga- witness is being cross-examined. tion department.

Los Angeles Lawyer November 2010 9 practice tips BY STEVEN G. PEARL

The Limits on Employer Deductions from Pay in California

BUSINESSES IN CALIFORNIA currently employ almost 14 million non- farm payroll employees—most of them hourly wage earners.1 With such a large number of workers, it is a safe bet that each workday, some California employees experience cash shortages, broken merchandise and equipment, and product theft. Equally inevitable is that many employers who have lost money or merchandise look to their employees to make up for shortages, breakage, and loss with deductions from employee paychecks. These deductions are not necessarily legal. Are employers legally justified in docking employee pay for the losses employees cause by negligence or suspected theft? California law does not give a clear answer. On the one hand, the Labor Code requires employers—not employees—to bear the cost of doing business; further, the code expressly prohibits employers from making deductions from pay except under very limited circumstances. In addition, the due process clause of the Fourteenth Amendment to the U.S. Constitution requires employers, like all other creditors, to provide notice and an opportunity to be heard before depriving a person of a property right, such as an employee’s pay for work already performed. On the other hand, the administrative regulations—specifically, the Industrial Welfare Commission (IWC) wage orders that implement the Labor Code—explicitly allow deductions under certain circumstances. The IWC regulates all California employees with a system of 17 wage orders that constitute comprehensive statements of employee rights and employer responsibilities. Section 8 of all but two of the 17 wage orders covers shortages, breakages, and loss. The section states, “No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash short- ers the IWC to adopt a series of wage orders prescribing the minimum age, breakage, or loss of equipment, unless it can be shown that the wages, maximum hours, and standard conditions of employment for shortage, breakage, or loss is caused by a dishonest or willful act, or all employees in California.6 by the gross negligence of the employee.”2 The IWC’s wage orders have general support in case law. In Because this provision appears to conflict with the Labor Code and Martinez v. Combs, the California Supreme Court strongly empha- the U.S. Constitution, a strong argument can be made that payroll sized the importance of the IWC’s wage orders, holding that the wage deductions for lost money or merchandise are not lawful. However, orders, rather than common law, define the employment relation- no court has decided whether the administrative regulations that ship for purposes of California’s wage and hour laws. The court held permit deductions from an employee’s pay lawfully regulate the stan- that “the IWC Wage Orders are entitled to extraordinary deference.”7 dard conditions of employment in California, unlawfully exceed the Section 8 of most of those orders, however, does not explain what administrative agency’s mandate, or violate the constitutional due procedures should be used to show whether a shortage, breakage, process rights of employees. or loss is caused by a dishonest or willful act, or by the gross neg- The history of employee rights in California goes back almost 100 ligence of the employee. The use of the passive voice—“unless it can years. After the Triangle Shirtwaist garment factory fire in 1911, a be shown”—raises questions about the burden of proof. There is wave of legislation intended to protect women and children workers no designation of the tribunal that is charged with determining swept the nation. California passed its first minimum wage law in whether the burden of proof has been met or whether the aggrieved 1913.3 The law created the IWC and empowered it to establish a min- party has a right to review of that decision. However, employers may imum wage, a maximum on hours of work, and standard conditions understandably believe that, under Section 8 of the wage orders, they of labor demanded by the health and welfare of employees.4 The legislature also initiated a voter-approved constitutional amendment to Steven G. Pearl is a mediator and attorney in Los Angeles whose practice confirm its new authority.5 With some exceptions, the laws defining focuses on wage and hour matters. He is a coauthor of California Wage and

RICHARD EWING the IWC’s powers remain unchanged. The Labor Code still empow- Hour Law and Litigation (CEB).

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FW11067D6D LA Lawyer Mag_Shaffer_Nov2010.indd 1 9/21/2010 10:43:39 AM have the right to deduct for shortages, break- only when one of the following three cir- ee’s rights under Section 2802 are consid- age, or loss from employee paychecks. cumstances applies: 1) the employer is ered so important that the law prohibits their required or empowered to do so by state or waiver.20 Kerr’s Catering Service federal law, or 2) the employee expressly Case Law Kerr’s Catering Service v. Department of authorizes the deduction in writing and the Industrial Relations,8 a 1962 loss deductions deduction is to cover insurance premiums, Arguably, statutory law offers no support case, dealt with an employer that operated hospital or medical dues, or other deduc- for the wage orders allowing deductions from lunch trucks. It paid its “salesgirls” mini- tions not amounting to a rebate or deduction wages for shortages, breakage, or loss. Case mum wage plus a commission based on sales. from the standard wage arrived at by collec- law, however, is less clear. In the nearly 50 The commission was “subject to reduction in tive bargaining or pursuant to wage agree- years since Kerr’s, California courts have the amount of any cash shortage attribut- ment or statute, or 3) a deduction to cover considered several additional cases in which able to the salesgirl during the month.”9 health and welfare or pension plan contri- employees have alleged that their employers The employer sued to have Section 8 of the butions is expressly authorized by a collective illegally deducted from their wages, with applicable wage order declared unconstitu- bargaining or wage agreement. mixed results. tional on grounds that it improperly regulated The compensation protected from pay- In Quillian v. Lion Oil Company,21 the matters beyond the minimum wage and max- roll deductions by Sections 221 to 223 manager of a gas station challenged her imum hours of work.10 In other words, the includes forms of compensation beyond what employer’s policy of calculating bonus com- employer argued that, as long as it paid its most employees would recognize as wages. pensation by deducting cash and merchandise employees minimum wage and overtime com- The terms used in the Labor Code are given shortages from the gas station’s sales to arrive pensation, the IWC could not regulate its broad meaning to effectuate the code’s pur- at a net profit figure from which it calcu- deductions from sales-based commissions on pose of protecting workers. Thus, as used in lated the bonus.22 This is similar to the issue account of cash shortages. the Labor Code, the term “wages” includes raised in Kerr’s, but it involved bonus com- The California Supreme Court rejected “all amounts for labor performed by employ- pensation rather than commissions. Following the employer’s challenge. First, it held that the ees of every description, whether the amount Kerr’s, the court of appeal held that because IWC has “general power” to regulate “the is fixed or ascertained by the standard of both commissions and bonuses are wages, the standard conditions of labor” beyond just time, task, piece, commission basis, or other employer’s bonus policy constituted an unlaw- the minimum wages and maximum hours of method of calculation.”15 ful deduction from those wages. There was no work.11 Second, the court held that the IWC An employee’s wages or earnings are the allegation or evidence that any shortage was had authority to prohibit deductions that are amount the employer has offered or promised caused by the plaintiff’s misconduct. The not caused by dishonest, willful, or negligent to pay, or has paid pursuant to such an offer court did not consider whether the wage employee conduct. The court held that such or promise, as compensation for that employ- order contravenes the Labor Code but did deductions affect the “standard conditions of ee’s labor. The employer takes a deduction or hold that “the bonus…is in contravention labor” and therefore fall within the IWC’s contribution from an employee’s wages or of the public policy expressed in sections 400 broad power.12 earnings when it subtracts, withholds, sets off, to 410 of the Labor Code.”23 However, despite 1) the broad constitu- or requires the employee to return a portion In another case, Hudgins v. Neiman Marcus tional and statutory authority given to the of the compensation offered, promised, or Group, Inc.,24 the court of appeal held that IWC, 2) the supreme court’s holding in paid as offered or promised, so that the an employer’s policy of deducting from its Kerr’s that the IWC can protect employees employee, having performed the labor, actu- employees’ wages for “unidentified returns”— from certain deductions, and 3) the supreme ally receives or retains less than the paid, that is, merchandise returns for which the par- court’s strong endorsement of the wage offered, or promised compensation, and effec- ticular salesperson could not be identified— orders, there are limits on what the IWC may tively makes a forced “contribution” of the violated Labor Code Sections 221 and 400 do in its wage orders. The orders are regu- difference.16 through 410.25 The court held that the pol- lations, and the law is clear that “no regu- Sections 221 to 223 are designed to protect icy allowed for unlawful deductions from lation adopted is valid or effective unless employees from fraud and deceit perpetrated wages. consistent and not in conflict with the statute by employers, who typically enjoy a superior The Hudgins court also held that the and reasonably necessary to effectuate the economic and bargaining position relative to employer had “numerous other tools for deal- purpose of the statute.”13 This strongly sug- their employees.17 These sections were enacted ing with the problem of unidentified returns,” gests that Section 8 of the wage orders, by to prevent the utilization of secret deductions, including careful training and supervision of allowing employers to deduct from employee or kickbacks, to make it appear that the its employees and investigation of employees wages under even limited circumstances, employer paid wages provided by a collective reasonably believed to be engaging in abuse conflicts with the Labor Code and exceeds bargaining contract or by statute.18 of its policies.26 “The one tool that is not the authority given to the IWC. Sections Other Labor Code provisions support the available to Neiman Marcus, however, is an 221 to 223 of the Labor Code clearly pro- view that employers cannot deduct from employment agreement by which Neiman hibit employers from collecting or receiving wages for shortages, breakage, or loss, even Marcus requires its employees to consent to earned wages from their employees and if caused by employee misconduct. Sections unlawful deductions from their wages.”27 from forcing employees to bear the employ- 400 to 410, sometimes referred to as the In Ralphs Grocery Company v. Superior er’s costs of doing business. Employee’s Bond Law, prohibit an employer Court,28 the court of appeal again considered The only statutory exception to the pro- from requiring an employee to provide a whether an employer may deduct certain hibition against payroll deductions can be bond unless certain conditions are satisfied.19 items when calculating bonus compensation. found in Section 224, which allows employ- Finally, Section 2802 requires an employer After considering Kerr’s, Quillian, and ers to withhold wages for the standard deduc- to “indemnify his or her employee for all Hudgins, the court held that the wage order tions with which most wage earners are famil- necessary expenditures or losses incurred by prohibited Ralphs from deducting cash and iar: taxes, healthcare, and union dues.14 In the employee in direct consequence of the merchandise losses from profits in calculating particular, Section 224 allows deductions discharge of his or her duties.” The employ- bonus compensation, but only for nonex-

12 Los Angeles Lawyer November 2010 empt employees.29 The court also noted that tive and collective contributions to the prof- due that employee.”43 Section 8 of the wage order applies only to itable performance of its stores by sharing In California State Employees’ Association those employees deemed not to be exempt with employees, in addition to their regular v. State of California,44 the First District held from the wage order’s protections. Thus, wages, a portion of the profits, if any, their that the state of California, as an employer, Section 8 does not apply to employees who efforts had produced, which Ralphs would could not deduct amounts from its employ- are deemed exempt as executive, adminis- otherwise be entitled to retain for itself.38 ees’ paychecks to repay alleged salary over- trative, or professional.30 payments. Although Government Code Section 8 and Due Process However, the court departed from ear- Section 17051 explicitly allowed the gov- lier authority in holding that the Labor Code Upholding the Ralphs plan, however, is ernment to deduct amounts owed to the gov- itself does not prohibit deductions from arguably quite different from upholding ernment from “any warrant drawn in favor employee compensation: “Nothing in the Section 8 of the wage orders. Section 8 allows of a payee,” the court recognized that Section Labor Code itself, unlike the wage orders an employer to do precisely what the Labor 17051, when applied to wages, conflicted applicable to non-exempt employees, Code prohibits: deduct for breakage, short- with the post-Sniadach wage garnishment expressly prohibits deductions from wages for age, and loss, provided that “it can be shown” and attachment laws. cash or merchandise shortages.”31 that the cash shortage, breakage, or loss was The court held that the wage garnish- On the other hand, the Kerr’s court specif- “caused by a dishonest or willful act, or by ment law and the attachment law protect ically held it was not “unjust” for inevitable the gross negligence of the employee.” This wages from creditors. The wage garnish- business losses, such as cash shortages, break- provision conflicts directly with the Labor ment law provides the exclusive judicial pro- age, and loss of equipment, to be borne as Code, and in case of conflict, the Labor Code cedure by which a judgment creditor can “expenses of management.”32 As the court governs. The wage orders present a proce- execute against the wages of a judgment reasoned in Ralphs Grocery, “By using the dural as well as a substantive difficulty. The debtor, except for cases of judgments or term ‘management,’ the supreme court sug- taking of an employee’s wages, without notice orders for support. It limits the amount of gested the legitimacy of requiring exempt and an opportunity to be heard, is a violation earnings that may be garnished in satisfaction employees to bear some burden of business of the employee’s due process rights. of a judgment and establishes certain exemp- losses and expenses.33 It would require a sig- More than 40 years ago, the U.S. Supreme tions from earnings that may not be gar- nificant extension of the supreme court’s dicta Court held that extrajudicial deductions from nished. The attachment law expressly pro- regarding the underlying spirit of the Labor wages—like the deductions apparently per- hibits any prejudgment attachment or levy of Code provisions protecting workers’ wages to mitted under the wage orders—provide cred- execution against wages.45 conclude an incentive compensation plan itors an unconstitutional self-help remedy. Citing Barnhill, the California State that determines an exempt employee’s bonus In Sniadach v. Family Finance Corpora- Employees’ Association court held that “the on a full range of revenue and expense items, tion,39 the Supreme Court concluded that a specific provisions of the attachment and including cash shortages, is unlawful.”34 Wisconsin prejudgment wage garnishment wage garnishment laws take precedence over As the supreme court later explained, statute violated a debtor’s right to procedural the general provisions of Government Code “Though Ralphs Grocery did not expressly due process by sanctioning the taking of his section 17051.”46 The court concluded, disagree with Quillian as to the rights of property without affording him prior notice “[T]his general language is superseded by managerial employees, the two decisions are and hearing. the specific provisions of the attachment and at odds on the point. Quillian involved a In 1970, the California Legislature changed wage garnishment laws protecting earnings managerial employee, and no Commission California law to conform to Sniadach.40 As from such extra-judicial seizures.”47 wage order was cited there as a source of her one California appellate court narrates, “In To date, no California appellate court has rights. Instead, Quillian held that the deduc- McCallop v. Carberry…and Cline v. Credit considered an employee’s challenge to Section tion of cash and merchandise losses from a Bureau of Santa Clara Valley…we examined 8 of the IWC wage orders as contradicting the manager’s incentive pay contravened sections the California wage garnishment statutes in Labor Code or violating constitutional due 400 through 410, and insinuated that it might light of Sniadach and, although the California process rights. However, given the ongoing also violate section 221.”35 provisions differed from the Wisconsin statute focus on wage and hour cases in the appellate In Prachasaisoradej v. Ralphs Grocery in several respects…we concluded that the courts, it can only be a matter of time before Company, Inc.,36 the supreme court considered California procedure exhibited the same fun- a challenge arises. The weight of authority the same bonus compensation plan consid- damental, constitutional vice as the statute strongly suggests that employers that deduct ered in Ralphs Grocery. The court disagreed invalidated in Sniadach.”41 money from their payrolls for shortages, with Ralphs Grocery, holding that nothing in In Barnhill v. Robert Saunders & Com- breakage, or loss are treading on thin ice. the relevant statutes, regulations, and deci- pany,42 the First District Court of Appeal Employers should carefully consider the risks sions suggests that an employer violates rejected an employer’s efforts to set off an compared to the rewards of following what California wage protection laws by providing, employee’s earned wages against debts may ultimately be deemed an unenforceable as Ralphs did, “supplementary compensation allegedly owed to the employer by the em- provision of the IWC’s wage orders. I designed to reward employees, over and above ployee. The court held that the setoffs violate their regular wages, if and when their collec- due process: “[F]undamental due process 1 See California Employment Development Depart- tive efforts produced a positive financial result considerations underlie the prejudgment ment, California Employment Highlights (July 2010), for the store where they worked.”37 attachment exemption. Permitting [an available at http://www.calmis.ca.gov/file/lfmonth /Employment-Highlights.pdf. Under the Ralphs plan, each Ralphs store employer] to reach [the employee’s] wages by 2 Industrial Welfare Commission wage orders, available employee was paid—as full compensation setoff would let it accomplish what neither it at http://www.dir.ca.gov/iwc/wageorderindustries.htm. for his or her individual work—a dollar wage nor any other creditor could do by attachment Wage Order No. 16—which applies to certain on-site that did not vary with the store’s financial for- and would defeat the legislative policy under- occupations in the construction, drilling, logging, and tunes, and from which no unauthorized lying that exemption. We conclude that an mining industries—contains different language. Wage amounts were deducted. In addition, Ralphs employer is not entitled to a setoff of debts Order No. 17 does not address this issue. 3 1913 Cal. Stat. ch. 324, at 632, 637, §13. sought to encourage and reward coopera- owing it by an employee against any wages 4 LAB. CODE §1182 (enacted in 1913 Cal. Stat. ch. 324,

Los Angeles Lawyer November 2010 13 §6, at 634-35); see Martinez v. Combs, 49 Cal. 4th 35, slip op. at 12 (2010). expert4law–The Legal Marketplace 5 See Martinez, 49 Cal. 4th 35, slip op. at 18. 6 LAB. CODE §§70-74, 1171-1204; Industrial Welfare Target Your Online Search for Experts Quickly, Easily Comm’n v. Superior Court (California Hotel and Motel Ass’n), 27 Cal. 3d 690, 698 (1980). 7 Martinez, 49 Cal. 4th 35, slip op. at 28-29. Need an Expert? Find one here. 8 Kerr’s Catering Serv. v. Department of Indus. The Los Angeles County Bar Association’s official online referral service for Relations, 57 Cal. 2d 319 (1962). expert witnesses, legal consultants, litigation support, lawyer-to-lawyer referrals, 9 Id. at 322. and dispute resolution service providers. 10 IWC Wage Order No. 5-57 §8, 8 CAL. ADMIN. CODE §11380 (1962). For more information, call 213.896.6470 or e-mail [email protected] 11 Kerr’s, 57 Cal. 2d at 325; LAB. CODE §1182. 12 Kerr’s, 57 Cal. 2d at 328. 13 Bearden v. Borax, 138 Cal. App. 4th 429, 436 (2006). AVAILABLE 24 HOURS A DAY! www.expert4law.org See also Industrial Welfare Comm’n v. Superior Court, 27 Cal. 3d 690 (1980). 14 LAB. CODE §224. 15 LAB. CODE §200(a). 16 Prachasaisoradej v. Superior Court (Ralphs Grocery Co., Inc.), 42 Cal. 4th 217, 228 (2007). 17 Sublett v. Henry’s Turk & Taylor Lunch, 21 Cal. 2d 273 (1942). RECEIVERSHIP SPECIALISTS 18 Kerr’s Catering Serv. v. Department of Indus. Relations, 57 Cal. 2d 319 (1962). Court Appointed Receivers and Referees 19 Id. at 328. 19 Years of Serving the Insolvency Community 20 LAB. CODE §2804; Gattuso v. Harte-Hanks Shoppers, Inc., 42 Cal. 4th 554, 570 (2007) (Any agreement made by the employee is null and void insofar as it waives the employee’s rights to full expense reimbursement under LAB. CODE §2802.). “Committed to improving the value of your client’s assets, 21 Quillian v. Lion Oil Co., 96 Cal. App. 3d 156 (1979). 22 Id. at 158-59. at the lowest cost, while disputes are resolved.” 23 Id. at 163. 24 Hudgins v Neiman Marcus Group, Inc., 34 Cal. App. 4th 1109 (1995). 25 Id. at 1111-24 (citing Quillian, 96 Cal. App. 3d at 156). 26 Id. at 1124. 27 Id. 28 Ralphs Grocery Co. v. Superior Court (Swanson), 112 Cal. App. 4th 1090 (2003). 29 Id. at 1102. 30 See, e.g., IWC Wage Order No. 1-2001 §1A (“Provisions of Sections 3 through 12 shall not apply to persons employed in administrative, executive, or pro- KEVIN SINGER JOHN RACHLIN fessional capacities.”). 31 Real Estate & Business Expert Attorney At Law Hudgins, 34 Cal. App. 4th at 1119. 32 Kerr’s Catering Serv. v. Department of Indus. Relations, 57 Cal. 2d 319, 329 (1962). 33 See CAL. CODE REGS. tit. 8, §11070, subdiv. 1(A) s (Exempt employees “manage” the enterprise for which Receivership, Referee & Partition Assignments they are employed.). Real Estate Management & Sales 34 Ralphs Grocery Co., 112 Cal. App. 4th at 1105-06 (citations omitted). Business Management & Sales 35 Prachasaisoradej v. Ralphs Grocery Co., Inc., 42 Family Estate Management & Sales Cal. 4th 217, 235, n.8 (2007). 36 Id. at 217. Real Estate & Business Evaluations 37 Id. at 223. 38 Id. at 228. 39 Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969). s 40 See CODE CIV. PROC. §487.020(c). 41 Randone v. Appellate Dep’t, 5 Cal. 3d 536 (1971). See also McCallop v. Carberry, 1 Cal. 3d 903, 906, n.7 SOUTHERN NORTHERN NEVADA ARIZONA CALIFORNIA CALIFORNIA OFFICE OFFICE (1970) and Cline v. Credit Bureau of Santa Clara OFFICE OFFICE Valley, 1 Cal. 3d 908 (1970). 7251 W. Lake Mead Blvd. 40 N. Central Avenue 42 Barnhill v. Robert Saunders & Co., 125 Cal. App. 3d 11400 W. Olympic Blvd. 795 Folsom Street Suite 300 Suite 1400 Suite 200 1st Floor Las Vegas, NV 89128 Phoenix, AZ 85004 1 (1981). Los Angeles, CA 90064 San Francisco, CA 94107 43 Id. at 6. Tel 702.562.4230 Tel 602.343.1889 44 California State Employees’ Ass’n v. State of Cal., 198 Tel 310.552.9064 Tel 415.848.2984 Cal. App. 3d 374 (1988). 45 Id. at 377 (1988) (notes omitted); CODE CIV. PROC. §§487.020(c), 706.020, 706.050-706.052. 46 California State Employees’ Ass’n, 198 Cal. App. 3d www.ReceivershipSpecialists.com at 378. 47 Id.

14 Los Angeles Lawyer November 2010 practice tips BY CEDRIC M. SHEN AND HUMBERTO R. GRAY

The Immigration Status of Plaintiffs in Personal Injury Actions

THERE ARE SEVERAL FORMS OF DAMAGES a plaintiff may seek in a reversed the trial court’s decision and determined that “whenever a civil personal injury action. Some, such as medical expenses, are plaintiff whose citizenship is challenged seeks to recover for loss of readily quantifiable. Other damages, such as emotional distress or loss future earnings, his status in this country shall be decided by the trial of future earnings, are not as easily measured. In cases involving size- court as a preliminary question of law” pursuant to Evidence Code able claims for loss of future earnings, battles are often fought con- Section 310.8 The court acknowledged that evidence relating to cit- cerning the plaintiff’s education and employment history. Given the izenship and deportation would be prejudicial to the party whose sta- speculative nature of future income claims, attorneys for both sides tus was at issue.9 Thus, the court of appeal held that the issue could will often retain economists and experts to inflate or deflate the be resolved by treating “any question regarding a plaintiff’s citizen- amount of future earnings to which a plaintiff may be entitled. ship or lawful place of residence as one of law, to be decided exclu- However, attorneys often overlook the importance of immigration sively by the trial court outside of the presence of a jury.”10 During status in civil personal injury actions as it relates to a plaintiff’s loss of future earnings. In an action involving a plaintiff who is undocumented in the United States, immigration sta- If the plaintiff cannot demonstrate that he or she is legally allowed tus may play a significant role in the amount of future earnings he or she may be awarded. Recovery for loss of future earnings is limited to work for compensation in the United States, he or she will not for plaintiffs who are in the United States illegally to what they would make in their country of citizenship. This could mean the differ- be entitled to future earnings based on U.S. wages. ence of tens—if not hundreds—of thousands of dollars in a jury verdict. For example, consider a 30-year-old plaintiff of Mexican citizenship this hearing, the defendant has the initial burden of producing proof who is severely injured and permanently disabled. Assume that at the that the plaintiff is undocumented and subject to deportation.11 If the time of his injury he was earning $10 per hour doing manufacturing defendant is successful, the burden shifts to the plaintiff to demon- work. He files a negligence lawsuit seeking, among other things, strate that he or she has “taken steps” to correct his or her deportable loss of future earnings. The plaintiff’s expert places his loss of future condition.12 earnings at $624,000 in U.S. wages ($10 per hour at 40 hours per week If the plaintiff cannot demonstrate that he or she is legally allowed for the next 30 years). However, if the plaintiff’s future earnings are to work for compensation in the United States, he or she will not be calculated according to Mexican wages (roughly 13 percent of U.S. entitled to future earnings based on U.S. wages. If the judge finds in wages), it would decrease the value to $81,120—a reduction of more favor of the plaintiff, all evidence relating to his or her illegal status than $540,000.1 This hypothetical example illustrates the importance “shall be excluded and his projected earning capacity may be com- in determining the loss of future earnings in the early stages of disputed upon the basis of his past and projected future income in the covery. A recent California case, Rodriguez v. Kline, offers practitioners United States.”13 If the judge finds in favor of the defendant, then evi- a guide.2 dence of the plaintiff’s future earnings is “limited to those he could In Rodriguez, plaintiff Jesus Rodriguez, who was illegally present anticipate receiving in his country of lawful citizenship.”14 in the United States, brought an action against defendant Samuel Kline In applying this reasoning to the plaintiff in Rodriguez, the court for injuries he sustained in a traffic accident.3 The trial court con- of appeal held that he may have been able to meet his burden in a cluded that the defendant had the burden of demonstrating the pretrial hearing.15 The plaintiff had been in the country for nearly plaintiff’s current illegal status as well as the possibility of his even- 20 years and had been a hardworking person with high moral char- tual deportation.4 The trial court also allowed evidence of the plain- acter. While it was clear that the plaintiff was subject to deportation, tiff’s projected earnings in the United States and Mexico, and then it was not clear whether the verdict of $99,000 compensated him for instructed the jury to determine whether the plaintiff was subject to his loss of future earnings and, if so, whether the award was based deportation and whether he was entitled to future loss of earnings.5 on his earning capacity in the United States or Mexico.16 Since the The plaintiff was awarded a judgment of $99,000, which the defen- jury was improperly instructed, the judgment was reversed and dant appealed.6 remanded. Upon remand, the trial court was ordered “to conduct The court of appeal decided whether a person who is in the United States illegally is entitled to be compensated for personal Cedric M. Shen and Humberto R. Gray practice immigration law in Los injuries based upon projected earning capacity in the United States Angeles. The authors wish to thank Courtney A. Morgan for her contributions or in the country of lawful citizenship.7 In doing so, the court of appeal to this article.

Los Angeles Lawyer November 2010 15 a hearing that would afford plaintiff an to interrogatories regarding citizenship or legal able condition. Given this, defense counsel opportunity to present proof regarding his status in the United States, the defense attor- should inquire into two general categories legal status.”17 ney should be sure to lay the foundation in a regarding the undocumented status of the meet and confer letter to compel responses. plaintiff: 1) what steps he or she has taken to Rodriguez and Civil Discovery After the written discovery is complete, the correct the deportable condition, and 2) Attorneys should apply Rodriguez to civil defense attorney will have a good idea as to whether he or she can correct the deportable actions in California by ascertaining early in whether the plaintiff is undocumented. At condition. discovery whether the plaintiff may not be this point, the defense attorney should take Correcting a Deportable Condition entitled to future earnings in U.S. wages. the plaintiff’s deposition. Prior to doing so, it Presumably, a plaintiff’s attorney knows prior is important to outline the proposed deposi- A key term in Rodriguez is whether the plain- to filing a lawsuit whether his or her client is tion examination to ensure the proper ques- tiff has “taken steps” to correct the deportable entitled to future earnings damages—as this tions are asked regarding the plaintiff’s immi- or removable condition. What constitutes would have an impact on the amount of any gration status. While the value of every case steps that would be sufficient to meet the potential verdict. Whether a plaintiff is enti- is different, it would be prudent to consult burden? No case law defines the standard. tled to future earnings in U.S. wages may with an immigration attorney to determine Merely seeking counsel is probably insuffi- not be readily apparent to a defense attorney, what questions to ask in order to assess the cient, while filing an application for immi- especially if the plaintiff is undocumented viability and legitimacy of the plaintiff’s loss gration benefits may be sufficient where the and his or her attorney attempts to withhold of future earnings claim. application is still pending. this information. Questions framed for the deposition will Taking steps to be placed in removal pro- The simplest way for a defense attorney to vary depending on the specific facts of each ceedings would certainly constitute sufficient determine a plaintiff’s immigration status via case and will require different inquiries relat- steps but is not an easy task. Usually, if an formal discovery is to propound California ing to specific immigration issues. The first undocumented person is convicted of a crime, Judicial Form Interrogatories to the plaintiff question to ask a plaintiff is whether he or she Immigration Customs and Enforcement (ICE) shortly after the commencement of litiga- is a U.S. citizen or a lawful permanent resi- will initiate removal proceedings. However, tion. Form Interrogatories 2.2 and 8.0 ask for dent. If he or she is not, the defense attorney if the undocumented person presents him- the plaintiff’s date and place of birth and should ask the plaintiff whether he or she is self or herself to ICE, it has discretion to information about loss of income or earning illegally present in the United States. The commence removal proceedings. Immigration capacity. From these two interrogatories, a plaintiff’s counsel will probably object to this courts are currently backlogged, and ICE is defense attorney will get an idea as to whether question and instruct the client not to respond. usually reluctant to place people in removal the plaintiff’s immigration status will play a Understandably, the plaintiff’s counsel will not proceedings. role in any future lost earnings claim. want a client to admit to violating federal law. Even if the plaintiff demonstrates steps Obviously, if the plaintiff was born in the However, the defense attorney should not taken to correct the deportable condition, United States, there would not likely be an back down from inquiring into a plaintiff’s the defense attorney can ask questions to issue. However, if the plaintiff was born in immigration status—citing Rodriguez and determine if the plaintiff has a realistic hope Mexico, for example, and is making a loss of its relevance in determining the plaintiff’s of correcting his or her deportable status. future earnings claim, it is important to deter- loss of future earnings. If the plaintiff’s attor- There are several legal ways that an undoc- mine his or her immigration status in the ney instructs the client not to answer the umented individual can correct a deportable United States. question, defense counsel should file a timely condition. One is to immigrate through imme- After receiving these responses, defense motion to compel. diate family members. These include par- counsel should propound further interroga- Regardless of whether or not the plaintiff’s ents, children, or siblings who are perma- tories regarding the plaintiff’s immigration sta- counsel objects to questions regarding the nent residents or citizens of the United tus. Is he or she a U.S. citizen? A permanent plaintiff’s immigration status, it is important States.20 Another way to correct a deportable resident? When did he or she first come to the for a defense attorney to ask several additional condition is through employment. There are United States? Did he or she enter with a questions at the deposition. A party cannot five categories under which a foreigner can visa? If so, what type? Has he or she main- be deposed more than once absent a court seek immigration benefits.21 Even if an undoc- tained that visa? Has he or she been con- order based on a showing of good cause.18 umented individual has a family- or employ- victed of a crime anywhere in the world? Thus, if counsel objects to questions regard- ment-based option to immigrate, he or she Does he or she have any immediate family ing the plaintiff’s immigration status, defense must also be eligible to adjust status.22 members who are residents or citizens of the counsel should operate on the presumption There are also avenues in deportation United States? Has he or she applied for an that the plaintiff is undocumented or proceedings by which an undocumented indi- immigration benefit in the United States? deportable. vidual can correct his or her deportable con- While these may certainly be asked at depo- It is important to understand the term dition. These proceedings are held in front of sition, it would help the defense attorney to “deportable.” A person can be deportable an immigration judge in federal immigration know the answers beforehand in order to for various reasons, even if he or she is a per- court. Avenues of relief include asylum, with- prepare for the deposition. manent resident of the United States. Formal holding of removal, protection under the The plaintiff’s attorney may object to any grounds for deportability may be found in the convention of torture, and two types of can- questions involving the plaintiff’s immigra- Immigration and Naturalization Act.19 Some cellation of removal. However, all types of tion status—especially if the plaintiff is undoc- grounds for deportability include entering the relief are difficult to secure. For example, umented. In fact, the plaintiff’s attorney should U.S. illegally, failing to maintain legal status, under one cancellation of removal provision, object to these questions—not only to pro- and convictions for certain crimes. the person in removal proceedings must prove tect the loss of future earnings claim but to Under Rodriguez, once defense counsel that he or she has been in the United States demonstrate that the attorney has taken steps can establish that the plaintiff is deportable, for 10 years and is a person of good moral to protect the plaintiff from admitting undoc- the burden shifts to the plaintiff to prove he character (no criminal convictions). In addi- umented status. If the plaintiff’s counsel objects or she has taken steps to correct the deport- tion, those in removal proceedings must show

16 Los Angeles Lawyer November 2010 that if they are deported, a family member future earnings in U.S. wages? An argument (spouse, parent or child) who is a resident or can certainly be made that these plaintiffs citizen of the United States faces exceptional should not be entitled to lost U.S. earnings. and extremely unusual hardship.23 The stan- On balance, it is important to remember dard for hardship is difficult. It may be sat- that assessing a loss of future earnings claim isfied if a qualifying family member has a in a civil action must be considered by attor- serious illness.24 neys for both sides from the inception of lit- Finally, it is also important to ask the igation. In personal injury actions, attorneys plaintiff his or her educational level, what type often focus on the most common forms of of work he or she did in the native country, damages, such as hospital bills, future med- and most importantly, what his or her wages ical care, pain and suffering, and emotional were there. If the judge finds that the plain- distress. Details of a loss of future earnings tiff has not met his or her burden, then future claim may often be overlooked until the par- earnings will be decided based on the wages ties reach the expert discovery phase of liti- in the native country. gation. At this time, proving these damages Rodriguez was issued more than 20 years may reveal—possibly for the first time—that ago and remains good law. Given that the plaintiff is not entitled to future earnings California courts have not further explored in U.S. dollars. If a defense attorney has not the issue of undocumented individuals and presented the case with the plaintiff’s immi- future earnings claims, the term “taken steps” gration status in mind, it may be difficult to remains murky. What steps must a plaintiff meet the burden of proof established in take to meet the Rodriguez burden? Is it suf- Rodriguez. This error may substantially ficient that a plaintiff merely consulted with increase a jury award. Conversely, a plaintiff’s an immigration attorney? Should the plain- attorney who does not make a preliminary tiff voluntarily place himself or herself into consideration of the viability of a loss of removal proceedings so that he or she can seek future earnings claim may later be put in the a cancellation of removal? Is filing an appli- uncomfortable position of asking a client to cation for immigration benefits, or being either admit his or her illegal status or to placed in deportation proceedings without the waive the claim altogether. I ability to correct the deportable condition, enough to satisfy the standard of Rodriguez 1 STATISTICAL ABSTRACT OF THE UNITED STATES tbl. in taking steps to correct the deportable con- 1318. dition? While there is no definitive answer, it 2 Rodriguez v. Kline, 186 Cal. App. 3d 1145, 1147 (1986). is safe to conclude that the more actions that 3 Id. the plaintiff shows he or she has taken, the 4 Id. at 1149. VIGOROUS better chance he or she has of prevailing 5 Id. at 1149-50. STATE BAR DEFENSE under the test in Rodriguez. 6 Id. at 1147. Rodriguez also poses a dilemma for attor- 7 Id. 8 JAMES R. DIFRANK neys who represent undocumented plaintiffs. Id. at 1149. 9 Id. at 1148. A PROFESSIONAL LAW CORP. Should the attorney proceed with a loss of 10 Id. TEL 562.789.7734 future earnings claim, knowing that a client 11 Deportation is also known as removal. The court of www.BarDefense.net is illegally present in the United States? Doing appeal in Rodriguez uses the term “deportable.” E-MAIL [email protected] so may subject the plaintiff to admit—in depo- However, “deportable” and “removable” are inter- sition or written discovery responses—that changeable. “Removable” is a broadly used term that encompasses certain grounds of inadmissibility and • Disciplinary Defense he or she is in the country illegally. Or should deportability found in Immigration and Naturalization • Reinstatements the plaintiff’s attorney waive the claim, thereby Act §212, 8 U.S.C. §1182, and Immigration and protecting his or her client’s privacy but fore- Naturalization Act §237, 8 U.S.C. §1227. The term • Bar Admissions going the potential for a larger verdict? Before “removable” encompasses §212(a) grounds of inad- • Moral Character commencing litigation, a plaintiff’s attorney missibility and §237(a) grounds of deportability, and it may ordinarily be used in place of either term. See • Criminal Defense should confer with the client about the client’s Rodriguez, 186 Cal. App. 3d at 1149. • Representation within the immigration status and whether he or she 12 Rodriguez, 186 Cal. App. 3d at 1149. wishes to make a claim for future earnings. In 13 Id. State of California doing so, the attorney should also advise the 14 Id. client that he or she may be entitled to future 15 Id. FORMER: 16 Id. at 1150. earnings in U.S. wages, but that doing so may 17 Id. State Bar Sr. Prosecutor require him or her to divulge his or her ille- 18 CODE CIV. PROC. §2025.610. Sr. State Bar Court Counsel gal immigration status. 19 See 8 U.S.C. §§1227 et seq. It is also interesting to see whether the test 20 8 U.S.C. §1154. in Rodriguez will be expanded to include non- 21 8 U.S.C. §1153. 22 U.S. citizen plaintiffs in different immigration See 8 U.S.C. §1255i. To qualify, the individual should be the beneficiary of an application filed before categories. For example, should plaintiffs in April 30, 2001. nonimmigrant temporary status who verify 23 8 U.S.C. §1229a(b). Home of Sir Winston their intent to return to their home country 24 Matter of Monreal, 23 I&N Dec. 56 (BIA 2001); Pictured Above upon expiration of their visas be entitled to Matter of Recinas, 23 I&N Dec. 467 (BIA 2002).

Los Angeles Lawyer November 2010 17 by JUSTIN M. GOLDSTEIN and NOAH PÉREZ-SILVERMAN SUPER POWERS California courts have broad inherent powers to redress litigation misconduct

CIVIL LITIGATION is not always civil. Never- Act identifies categories of conduct that can the exercise of all others.”4 These powers are theless, there is a line between fighting hard justify sanctions and sets forth specific mea- “not confined by or dependent on statute”5 and cheating. sures a court can impose against “any party and include the power to “fashion[] proce- Imagine a party materially altering or fab- engaging in the misuse of the discovery dures and remedies as necessary to protect lit- ricating evidence and presenting it as authen- process.”2 igants’ rights.”6 tic, or surreptitiously reviewing and copying But what of litigation misconduct that California courts agree and have found documents from the opposing party’s brief- cannot be categorized as a “misuse of the dis- occasion to flex their inherent powers when case, or threatening witnesses. These scenar- covery process”? As one court has observed, confronted with litigation abuses. The inher- ios may seem far-fetched, but each was raised “[I]t is impossible to establish a rule of law for ent powers of California courts include not and addressed in a published decision.1 every conceivable situation which could arise only precluding evidence and issues but also, Litigation abuses undermine the fairness in the course of a trial…[or] in the discovery as confirmed recently, the power to terminate of the judicial system for the participants, process.”3 It seems inconceivable that there and more broadly, do the same for the pub- would be no remedy for a party issuing death Justin M. Goldstein, a counsel in the litigation lic’s perception of the courts as a fair venue threats to witnesses, wiretapping the opposi- department of O’Melveny & Myers, specializes in for resolving disputes. It is therefore no sur- tion’s attorneys, or the like. entertainment, intellectual property, and complex prise that legislatures have empowered courts The U.S. Supreme Court has affirmed business disputes. He was a member of the to redress misconduct. that courts possess certain inherent powers O’Melveny defense team led by Daniel M. Petrocelli Remedies for misconduct are often found that “necessarily result…from the nature of in Stephen Slesinger, Inc. v. Walt Disney Company. in procedural discovery rules. California is their institution, powers that cannot be dis- Noah Pérez-Silverman is an associate in the liti-

no exception. Chapter 7 of the Civil Discovery pensed with…because they are necessary to gation department. MICHAEL CALLOWAY

18 Los Angeles Lawyer November 2010 cases to redress litigation misconduct when power to dismiss an action or dismiss a com- notion that due process of law entitles a lit- justice requires. plaint as to a defendant.”15 igant to present certain evidence after it has The notion that courts possess inherent The California Supreme Court has rec- compromised its opponent’s ability to counter powers—powers separate and apart from ognized two types of inherent powers: 1) that evidence with the sort of litigation abuse those specifically granted to courts by legis- “courts’ equitable power derived from the his- found in this case.”23 When a party seeks to latures—is rooted in English tradition.7 toric power of equity courts,” and 2) “super- take unfair advantage or “the integrity of Norman monarchs possessed absolute sov- visory or administrative powers which all the judicial system” is at risk, the Peat, ereignty, which they used to assign adminis- courts possess to enable them to carry out Marwick court affirmed that judges are trative and judicial tasks to personal minis- their duties.”16 The latter powers, in partic- empowered to act.24 ters and advisers: “Through these councils, the ular, enable a court to “control litigation The Peat, Marwick decision drew heavily king exercised his vast prerogative authority, before it, to prevent abuse of its process, and from prior California decisions addressing which included guaranteeing justice and pre- to create a remedy for a wrong even in the California courts’ inherent powers to respond serving the peace.”8 As these councilors absence of specific statutory authority.”17 to “the many vagaries of the litigation evolved into more formal judges and courts, process.” These include Conn v. Superior Redressing Litigation Misconduct they were entrusted with judicial duties and Court, in which a court exercised its inherent given certain powers essential to the efficient Over the last century, there has been no short- powers to require the return of documents functioning of the courts. However, these age of reported decisions describing a court’s wrongfully taken by an employee from his early English judges were merely the king’s exercise of inherent powers to redress litiga- former employer’s office.25 The Peat, Marwick representatives; all their powers stemmed tion misconduct. For approximately the last decision has been cited on numerous occa- from the king’s absolute authority. 20 of those 100 years, arguably the most sions by courts assessing whether and how to The Magna Carta affirmed for the first important decision in California on the inher- apply their inherent powers to redress litiga- time that there existed laws even the king ent authority of courts was Peat, Marwick, tion abuses.26 However, until recently, no must obey. Over the next several centuries the Mitchell & Co. v. Superior Court.18 In Peat, published decision had directly tackled the notion of a constrained monarch became Marwick, the state of California sued account- question of whether the arsenal of inherent more potent. As judges gradually became ing firm Peat, Marwick for having negligently powers includes the authority to terminate a more independent, a shift took place from performed an audit. The state retained the case for litigation misconduct. Enter the long- allegiance to a particular king to allegiance to accounting firm Main Hurdman as an expert. standing Stephen Slesinger, Inc. v. Walt Disney the impersonal concept of “the Crown” and, Shortly after its retention, however, Main Company royalty dispute concerning the ultimately, to “the law.”9 As a result, judicial Hurdman began secretly negotiating with Winnie the Pooh children’s stories.27 powers once merely derivative of the mon- Peat, Marwick over a potential merger. In 2004, the trial court imposed a termi- arch’s supreme power became viewed as the Neither Main Hurdman nor Peat, Marwick nating sanction against Stephen Slesinger, “inherent powers” of the court.10 informed the state of the intended merger. In Inc., based on its finding that SSI engaged in The U.S. Constitution established the fact, when news of the merger prematurely severe and irremediable litigation miscon- American judiciary as a separate branch of leaked to the press, Main Hurdman assured duct.28 Among its findings, the court con- government with even greater autonomy. As the state that there was no truth to the cluded that SSI had 1) hired an investigator early as 1812, the U.S. Supreme Court “rumors.” Formal announcement of the who wrongfully obtained Disney documents, acknowledged that Article III federal courts merger came almost a year later. 2) reviewed privileged and confidential Disney possessed inherent powers: “Certain implied The court exercised its inherent power to papers, and 3) materially altered evidence in powers must necessarily result to our Courts sanction Peat, Marwick for having interfered an effort to conceal its possession of confi- of justice from the nature of their institu- with the state’s expert relationship—conduct dential Disney documents.29 In granting the tion.…[O]ur Courts no doubt possess pow- that the court deemed an “abuse of the liti- terminating sanction, the trial court made ers not immediately derived from statute.” gation process.”19 To “prevent the compro- clear that it was “[e]xercising its inherent The Court described those powers as ones mise of confidential information and to pre- powers to preserve and protect the integrity that “cannot be dispensed with in a Court, serve the integrity of the judicial process,” the of the judicial process.”30 This gave the court because they are necessary to the exercise of court precluded Peat, Marwick from pre- of appeal an opportunity to address whether all others.”11 senting any evidence controverting certain trial courts have the inherent power to dismiss The same is true of California courts. elements of the plaintiff’s case.20 Beyond its litigation based on misconduct—a question They were created by the California Constitu- core holding, what made the Peat, Marwick the court described as one of “first impres- tion12 and are deemed to have inherent pow- decision so influential was its thorough treat- sion.”31 ers “not confined by or dependent on ment of the reach of courts’ inherent powers. Although no published California decision statute.”13 Moreover, the California Legisla- The Peat, Marwick court recognized that had affirmed a court’s exercise of inherent ture has expressly recognized these powers. inherent powers “have been flexibly applied power to grant a terminating sanction to For example, in addressing the issue of dis- in response to the many vagaries of the liti- redress litigation abuses, California courts missing cases for failure to prosecute, the gation process” and reasoned that there is no have long-recognized inherent powers to ter- legislature stated its clear intention not to “intrinsic limitation” that would justify minate cases for other reasons. If a litigant interfere with the courts’ inherent powers: restricting their application to redressing only unreasonably delays in prosecuting its case, “This chapter does not limit or affect the specific types of litigation abuse.21 Invading or pursues a “sham, frivolous or wholly vex- authority of a court to dismiss an action or or damaging a party’s unique relationship atious” claim or defense, California courts impose other sanctions…under inherent with its expert, the court found, is funda- have the inherent power to dismiss the entire authority of the court.”14 The legislature was mentally no different from disadvantaging a action.32 similarly cautious in its general guidelines party by destroying evidence.22 Nor did the California courts also have given strong for handling the dismissal of cases: “The pro- court find due process considerations to be an indications that the inherent power to dismiss visions of this section shall not be deemed to insurmountable obstacle to the exercise of should be extended to redressing litigation be an exclusive enumeration of the court’s inherent powers: “We cannot accept the misconduct. For example, one court of appeal

20 Los Angeles Lawyer November 2010 upheld the exercise of dismiss an action inherent authority by when a party has will- a peer review panel to fully deceived the terminate an admin- court and engaged istrative proceeding in conduct utterly based on ﬁndings of inconsistent with the discovery delays, vio- orderly administra- lations of orders, and tion of justice.”43 disruptive behavior.33 Had the court explic- The court likened the itly adopted another inherent powers of jurisdiction’s stan- administrative officers dard, decisions from to those of judges, and that jurisdiction found that “hearing would have become officers must have the more relevant. power to control the Finally, the Sles- parties and prevent inger court explicitly deliberately disruptive made dismissal an and delaying tactics. appropriate remedy The power to dismiss only when no lesser an action and termi- remedy would guar- nate the proceeding is antee fairness. This an important tool that criterion sets Calif- should not be denied ornia apart from them.”34 During the many jurisdictions— pendency of the Sles- including federal inger appeal, another courts—which seem division of the Cal- to allow room for ifornia Court of courts to exercise the Appeal affirmed that inherent power to dis- trial courts “have miss even when it is inherent authority to not absolutely neces- dismiss an action,” sary to do so. Dismis- even though the dis- sals for misconduct in missal in that case was other jurisdictions based on statutory may explicitly serve authority.35 as a form of punish- Courts from other jurisdictions have also preserve the fairness of trial. Thus, the court ment or deterrence. According to the U.S. found that their inherent powers extend to ter- concluded that dismissal was warranted under Supreme Court, for example, “The most mination. Federal courts have regularly exer- its new standard. severe in the spectrum of sanctions provided cised inherent powers to terminate cases for The standard is notable for several reasons. by statute or rule must be available to the dis- all manner of litigation misconduct, includ- First, it sets the bar. No prior court in Cal- trict court in appropriate cases, not merely to ing the manufacturing of evidence,36 perjury ifornia had articulated what conditions would penalize those whose conduct may be deemed in discovery responses,37 and bad faith delay.38 justify exercising the court’s inherent power to to warrant such a sanction, but to deter those The same is true of state courts around the dismiss a case for misconduct. Until Slesinger, who might be tempted to such conduct in the country.39 no appellate court had reason to do so. absence of such a deterrent.”44 A number of Second, the Slesinger court did not state courts have concluded likewise.45 Three-Part Standard expressly adopt a standard articulated by Slesinger is the only published California In the end, the Slesinger court concluded that courts from other jurisdictions. For example, state court appellate decision upholding the California courts necessarily must have the Florida courts have ruled that dismissal is invocation of inherent powers to dismiss a power to dismiss cases for pervasive litigation appropriate when the conduct of the litigant case based on litigation abuses. Still, abuse. The court established a three-part shows “[a] deliberate and contumacious dis- California courts have recognized and applied standard for determining when a court may regard of the court’s authority,…bad faith, the three-part standard.46 exercise its inherent power to terminate. A willful disregard or gross indifference to an One court even intimated that the stan- party’s misconduct during the course of liti- order of the court, or conduct which evinces dard may apply to any exercise of inherent gation must: deliberate callousness.”41 In Maryland, a dis- power to sanction based on litigation mis- 1) Be “deliberate.” missal for litigation misconduct is “warranted conduct.47 In New Albertsons, Inc. v. Superior 2) Be “egregious.” only in cases of egregious misconduct such as Court, the trial court imposed an evidentiary 3) Render “any remedy short of dismissal willful or contemptuous behavior, a deliber- sanction after ﬁnding the defendant destroyed inadequate to preserve the fairness of the ate attempt to hinder or prevent effective security camera footage despite having trial.”40 presentation of defenses or counterclaims, received a request for its production. The In Slesinger, the court found that SSI’s or stalling in revealing one’s own weak claim court of appeal reversed because the destruc- abuses were sufficiently deliberate and egre- or defense.”42 The Ninth Circuit has stated tion of video footage was deemed not to con- gious, and no remedy short of dismissal could that federal courts “have inherent power to stitute “egregious misconduct.”48 The court

Los Angeles Lawyer November 2010 21 Engineering Just Resolutions for the also did not consider the sanctions to be tions authorized by statute.”58 World’s Most Complex Disputes “necessary to ensure a fair trial.”49 Based on Driving this determination were due those ﬁndings, and relying on Slesinger, the process concerns about fee awards without Reginald A. Holmes, ESQ. court reversed the lower court’s use of inher- statutory safeguards, as well as the prospect Mediator • Arbitrator • Private Judge ent powers to sanction.50 Only time will tell of a chilling effect on attorneys’ zealous advo- Business • Intellectual Property • Franchise whether the three-part standard will emerge cacy. According to the court, “The use of Employment • International as the yardstick for California courts to assess courts’ inherent power to punish misconduct • Superb judicial temperament all nonmonetary sanctions for litigation abuse. by awarding attorneys’ fees may imperil the • Fiercely fair and impartial independence of the bar and thereby under- Limitations on Inherent Judicial Powers • Orderly party driven process mine the adversary system.” Tempered by • Deep subject matter knowledge Although broad, courts’ inherent powers are procedural safeguards, courts already have not limitless. They can, for example, be cir- “ample power to punish the misconduct by cumscribed by legislation. In McMahon v. contempt.”59 Superior Court, the court of appeal reversed That the Bauguess court spoke of mone- a trial court’s exercise of inherent authority tary awards as a way to “punish” misconduct to shorten the statutory notice period for a helps reconcile this decision with other deci- summary judgment motion.51 The court held sions giving trial courts broad inherent pow- that even when legislative acts bear directly ers to dismiss and impose evidentiary sanctions on inherent judicial powers, lawmakers may to redress litigation abuse.60 In California, exercise “a reasonable degree of regulation” courts have the inherent power to impose of the judiciary—so long as the statutes do not nonmonetary sanctions to remedy threats to “materially impair the constitutional functions the judicial system and rebalance the process AAA National Roster of Neutrals • College 52 of Commercial Arbitrators • Association of the courts.” This ruling is consistent when one party takes unfair advantage. It for International Arbitration • Academy of with the California Supreme Court’s general makes sense to exclude monetary sanctions Distinguished Neutrals caution that “inherent powers should never from the court’s inherent powers to the extent The Holmes Law Firm be exercised in such a manner as to nullify they are viewed solely as a form of punish- existing legislation or frustrate legitimate leg- ment. This analysis helps explain why 1.877. FAIR.ADR (t) • 1.626.432.7223 (f) islative policy.”53 California courts do not have the inherent [email protected] The inherent power of federal courts are power to impose monetary sanctions to www.theholmeslawfirm.com subject to even greater legislative control. redress misconduct but federal courts do.61 That is because the U.S. Supreme Court is the Federal courts are permitted to use their only constitutionally created federal court. All inherent power to impose sanctions to pun- other federal courts are “ordained and estab- ish or deter.62 lished” by Congress.54 Thus, for example, Nevertheless, this analysis is not entirely BOYKOFF INVESTIGATIONS even though the power of contempt is con- satisfying because courts could conceivably CA. State Lic. # 14388 • Since 1979 sidered “inherent in all courts [and] essential award nonpunitive monetary sanctions—for to the preservation of order in judicial pro- example, if the sanction were designed merely We are a full service investigative agency ceedings,” the Supreme Court held that to compensate a party for fees incurred as a specializing in: Congress could nevertheless regulate that direct consequence of misconduct by the • Skip Traces power’s application in circuit and district opposing party. California courts have not • Asset Searches courts because those courts’ “powers and carved out an exception to permit the exer- Witness Statements • duties depend upon [Congress] calling them cise of inherent powers to grant purely • Surveillance into existence.”55 restorative monetary sanctions. • Service of Process • Celebrity Stalkers The judiciary itself also can set limits on At least three explanations for this inac- its inherent powers. California courts have tion seem to emerge from California decisions. imposed one important doctrinal limitation The ﬁrst is a concern about abuse, absent Please ask about our other services, or visit us on the web at with implications for parties confronted with statutory safeguards. The Bauguess court www.BoykoffInvestigations.com litigation misconduct. In Bauguess v. Paine, commented that if it “were to hold that trial the California Supreme Court ruled that trial courts have the inherent power to impose David Boykoff is the co-founder and courts lack the inherent power to award sanctions in the form of attorneys’ fees for past president of Professional 56 Investigators of CA (PICA) attorneys’ fees based on misconduct. The alleged misconduct, trial courts would be supreme court recognized the American Rule, given a power without procedural limits and 818-718-8000 which makes each party responsible for its potentially subject to abuse.”63 Second, courts own fees, absent an agreement or statutory seem to view the inherent power to impose basis.57 But that point did not prove dis- nonmonetary sanctions to redress miscon- positive. The court observed that even when duct as more “necessary.” The Slesinger court no agreement or statute exists, a trial judge observed that the Bauguess decision described has inherent supervisory power to “take the inherent power to impose monetary sanc- appropriate action to secure compliance with tions as “unnecessary” in light of courts’ its orders, to punish contempt, and to con- contempt power.64 In contrast, the court trol its proceedings.” However, the court described the inherent power to terminate concluded, “It would be both unnecessary litigation when deliberate and egregious mis- and unwise to permit trial courts to use fee conduct renders any lesser sanction inade- awards as sanctions apart from those situa- quate to be “essential for the court to preserve

22 Los Angeles Lawyer November 2010 the integrity of its proceedings.” This power, according to the court, “restores balance to Judge Michael D. Marcus (Ret.) the adversary system when the misconduct of one party has destroyed it.”65 Finally, the Mediator Arbitrator Discovery Referee California Legislature has “expressly acknowl- EXPERIENCED PERSUASIVE EFFECTIVE edged the inherent power of courts to dismiss,” but has not done so with respect to Daily Journal Top 50 Neutral 2009 monetary sanctions.66 Daily Journal Top 40 Neutral 2007 In fact, since the Bauguess decision, the Employment Legal Malpractice legislature took a number of steps to ensure • • Business Real Property that trial courts have statutory authority to • • impose monetary sanctions for different forms • Personal Injury • Intellectual Property of misconduct. For example, the legislature Century City Downtown Los Angeles Orange County enacted Code of Civil Procedure Section tel: 310.201.0010 www.marcusmediation.com Available exclusively at 128.5, giving courts broad authority to email: [email protected] impose monetary sanctions for “bad faith actions or tactics.” The legislature speciﬁ- cally observed that this power was “now not presently authorized by the interpretation of the law in Baug[u]ess v. Paine.”67 Section 128.5 was later superseded by Section 128.7, which was modeled after Rule 11 of the Federal Rules of Civil Procedure and remains in place today. Section 128.7 grants more limited authority to impose monetary sanctions than Section 128.5 and also provides greater procedural safeguards by allowing an offending filing to be withdrawn without A. J. Hazarabedian Guillermo A. Frias consequence. This and other authorities like Glenn L. Block Bernadette M. Duran Section 177.5 and Rule 2.30 of the California Artin N. Shaverdian Rules of Court (formerly Rule 227), which authorize imposition of monetary sanctions for certain forms of litigation impropriety, further underscore “the Legislature’s acceptance of [the Bauguess court’s] core holding that trial courts may not award attorney fees as a sanction for misconduct absent statutory authority (or an agreement of the parties).”68 The inherent powers of California courts provide an important check on litigation American of abuses. Recent decisions underscore this Institute Mediation fundamental fact, even as the contours of the courts’ inherent powers continue to World Class Training for the Complete Mediator I evolve. RESOLVING CONFLICTS AT WORK 1 See, e.g., Aoude v. Mobil Oil Corp., 892 F. 2d 1115 —with Ken Cloke— (1st Cir. 1989); R.S. Creative, Inc. v. Creative Cotton, Friday-Saturday • November 12-13 Ltd., 75 Cal. App. 4th 486 (1999); Perna v. Electronic 10 MCLE Hours Data Sys. Corp., 916 F. Supp. 388 (D. N.J. 1995); Cummings v. Wayne County, 533 N.W. 2d 13 (Mich. Ct. App. 1995). MEDIATING AND NEGOTIATING COMMERCIAL CASES 2 Civil Discovery Act, ch. 7, CODE CIV. PROC. —with Lee Jay Berman— §§2023.010-2023.040. See CODE CIV. PROC. §2023.010 Tuesday-Saturday • January 25-29 (listing speciﬁc discovery abuses potentially justifying Meets the 40-hour Court Requirement – 30 MCLE Hours sanctions); CODE CIV. PROC. §2023.030 (catalogue of remedies). 3 Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). MEDIATING DIVORCE AGREEMENTS 4 Stephen Slesinger, Inc. v. Walt Disney Co., 155 Cal. —with Jim Melamed— App. 4th 736, 758 (2007) (quoting United States v. Hudson & Goodwin, 11 U.S. 32, 34 (1812) (internal Tuesday-Saturday • January 25-29 quotations omitted)). Meets the 40-hour Court Requirement – 30 MCLE Hours 5 Walker v. Superior Court, 53 Cal. 3d 257, 267 (1991). See our complete listing of courses and dates at: 6 Slesinger, 155 Cal. App. 4th at 762. 7 See Robert J. Pushaw Jr., The Inherent Powers of www.AmericanInstituteofMediation.com Federal Courts and the Structural Constitution, 86 IOWA L. REV. 735 (2001) (providing historical overview 213.383.0454

Los Angeles Lawyer November 2010 23 of courts’ inherent powers). 32 See, e.g., Estate of King, 121 Cal. App. 2d 765, 774 (unpublished). 8 Id. at 800. (1953); Karras v. Western Title Ins. Co., 270 Cal. 47 See New Albertsons, Inc. v. Superior Court, 168 Cal. 9 Id. at 806. App. 2d 753, 757 (1969). App. 4th 1403 (2008). 10 Id. at 810. 33 Mileikowsky v. Tenet Health Sys., 128 Cal. App. 4th 48 Id. at 1434. 11 United States v. Hudson & Goodwin, 11 U.S. 32, 34 531 (2005). 49 Id. (1812). 34 Id. at 561. 50 Id. The court also concluded that a court order vio- 12 CAL. CONST. art. VI, §1. 35 Del Junco v. Hufnagel, 150 Cal. App. 4th 789, 799 lation was required to impose evidentiary sanctions 13 Walker v. Superior Court, 53 Cal. 3d 257, 267 (2007). under the relevant statute. Id. at 1431-34. (1991). 36 Aoude v. Mobil Oil Corp., 892 F. 2d 1115, 1118- 51 McMahon v. Superior Court, 106 Cal. App. 4th 112, 14 CODE CIV. PROC. §583.150. 22 (1st Cir. 1999). 118 (2003). 15 CODE CIV. PROC. §581(m). 37 Martin v. DaimlerChrysler Corp., 251 F. 3d 691, 52 Id. at 117. 16 Peat, Marwick, Mitchell & Co. v. Superior Court, 694-95 (8th Cir. 2001). 53 Ferguson v. Keays, 4 Cal. 3d 649, 654 (1971) (cit- 200 Cal. App. 3d 272, 287 (1988) (internal quotations 38 Woodson v. Surgitek, Inc., 57 F. 3d 1406, 1417-18 ing Martin v. Superior Court, 176 Cal. 289 (1917)). omitted). (5th Cir. 1995). 54 U.S. CONST. art. III. 17 Western Steel & Ship Repair, Inc. v. RMI, Inc., 176 39 See, e.g., Schultz v. Sykes, 638 N.W. 2d 604, 610 55 Ex Parte Robinson, 86 U.S. 505, 510-11 (1873). Cal. App. 3d 1108, 1116-17 (1986). (Wis. Ct. App. 2001); Tramel v. Bass, 672 So. 2d 78 56 Bauguess v. Paine, 22 Cal. 3d 626, 637-39 (1978). 18 Peat, Marwick, 200 Cal. App. 3d 272. For the fac- (Fla. Dist. Ct. App. 1996); Rockdale Mgmt. Co. v. 57 Id. at 634; CODE CIV. PROC. §1021. tual background of the case, see generally id. at 276- Shawmut Bank, N.A., 418 Mass. 596 (1994); 58 Bauguess, 22 Cal. 3d at 637. 83. Cummings v. Wayne County, 210 Mich. App. 249 59 Id. at 638. 19 Id. at 289. (1995). 60 See also Andrews v. Superior Court, 82 Cal. App. 4th 20 Id. at 275. 40 Stephen Slesinger, Inc. v. Walt Disney Co., 155 Cal. 779, 782 (2000) (observing that the Baugess court 21 Id. at 287-89. App. 4th 736, 764 (2007). “made it clear that a punitive monetary sanction” is not 22 Id. at 289. 41 Tramel, 672 So. 2d at 83. authorized under inherent powers of the court). 23 Id. at 290. 42 Klupt v. Krongard, 126 Md. App. 179, 202 (1999). 61 Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 24 Id. at 289. 43 Anheuser-Busch, Inc. v. Natural Beverage Distribs., (1991). 25 Conn v. Superior Court, 196 Cal. App. 3d 774 69 F. 3d 337, 348 (9th Cir. 1995). 62 NHL v. Metropolitan Hockey Club, 427 U.S. 639, (1987). 44 NHL v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976). 26 See, e.g., Silvestro v. Bondex Int’l, Inc., 2005 WL 643 (1976). 63 Bauguess, 22 Cal. 3d at 638. 2435833, at *2-4 (Cal. App. 2d Dist. 2005); Hilton v. 45 See, e.g., Tramel, 672 So. 2d at 84 (Florida); Abtrax 64 Stephen Slesinger, Inc. v. Walt Disney Co., 155 Cal. Bressler, 2008 WL 2526241, at *4 (Cal. App. 2d Dist. Pharms. v. Elkins-Sinn, 139 N.J. 499, 517-18 (1995) App. 4th 736, 760-61 (2007). 2008). (New Jersey). 65 Id. at 761. 27 Stephen Slesinger, Inc. v. Walt Disney Co., 155 Cal. 46 In re Sepuya, 2009 Cal. App. Unpub. LEXIS 6173, 66 Clark v. Optical Coating Labs., Inc., 165 Cal. App. App. 4th 736 (2007). at *13-14 (July 30, 2009) (unpublished); In re Marriage 4th 150, 165 (2008). 28 Id. at 755-56. of Jayraj & Bindu Nair, 2010 Cal. App. Unpub. 67 Trans-Action Commercial Investors, Ltd. v. Jelinek, 29 Id. at 741-56. LEXIS 1658, at *12-13 (Mar. 9, 2010) (unpublished); 60 Cal. App. 4th 352, 367 (1997) (quoting 1981 Cal. 30 Id. at 756. Union Carbide Corp. v. Superior Court, 2010 Cal. Stat. ch. 762, §2, at 2968). 31 Id. at 740. App. Unpub. LEXIS 326, at *16-17 (Jan. 15, 2010) 68 Clark, 165 Cal. App. 4th at 164.

24 Los Angeles Lawyer November 2010 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.

by Julie J. Bisceglia Location Location Location In the enforcement of forum-selection clauses, courts will distinguish between mandatory and permissive language

A WELL-WROUGHT forum-selection clause, where a dispute that arises between them owner sued the towing company in Florida. with or without a companion choice-of-law will be litigated. Such a clause is usually, The Florida district court and the Fifth Circuit clause, can have a profound impact on a law- though not always, paired with a choice-of- refused to enforce the forum-selection clause, suit. Because California law requires—and law clause that speciﬁes which law will gov- on the usual “ousting” and public policy federal law permits—a defendant seeking a ern their dispute.1 grounds. The appellate court added that the change of forum to do so early in litigation, In simpler times, courts often refused to plaintiff’s choice of forum should rarely be dis- a forum-selection clause can make an action enforce forum-selection clauses, perceiving turbed. Applying a straight inconvenient- grind to a halt before it even gets underway. them as attempts by private parties to “oust” forum analysis—one that would be applied in As these clauses become more commonplace the court’s jurisdiction and also as contrary the absence of a forum-selection clause—the in commercial contracts, counsel need to be to public policy.2 In 1972, however, the U.S. appellate court found that the crucial events familiar with the governing law. Indeed, Supreme Court, in The Bremen v. Zapata took place in U.S. waters, potential witnesses searching for and evaluating a forum-selection Off-Shore Company,3 took a decidedly more clause should be one of the top items on a lit- hospitable view. The case concerned a con- Julie J. Bisceglia is a research attorney for California igation checklist—right alongside insurance tract to tow an oil rig. A clause within the con- Court of Appeal Justice William Bedsworth, Fourth coverage. tract appointed the London Court of Justice District. She wrote this article as a civil litigator A forum-selection clause represents an as the forum for any dispute. When the oil rig practicing at the Los Angeles office of Payne & agreement between contracting parties about was damaged in the Gulf of Mexico, the Fears, LLP.

Los Angeles Lawyer November 2010 25 were nearby, and London had no interest in Court focused on the economic realities, both California Supreme Court decided Smith, the matter.4 commercial and judicial, underlying Carnival’s Valentino & Smith v. Superior Court.19 The The Supreme Court, however, took the clause. Holding that the lack of bargaining Smith court cited The Bremen and the “mod- opposite view. Signaling a major shift in the power between the passenger and the cruise ern trend” of enforcing these clauses,20 con- law, the Court remarked that “far too little line did not render a forum-selection clause cluding that “forum selection clauses are weight and effect were given to the forum unenforceable, the Court ticked off the reasons valid and may be given effect, in the court’s clause in resolving this controversy.”5 The that a cruise line would insist on having one: discretion and in the absence of a showing Court instead held that forum-selection First, a cruise line has a special inter- [that] enforcement of such a clause would clauses “are prima facie valid and should be est in limiting the fora in which it be unreasonable.”21 The court even helpfully enforced unless enforcement is shown by the potentially could be subject to suit. deﬁned “unreasonable”: “[T]he forum select- resisting party to be ‘unreasonable’ under Because a cruise ship typically carries ed would be unavailable or unable to accom- the circumstances.”6 This rule assisted Amer- passengers from many locales, it is not plish substantial justice.”22 Moreover, the ican commercial interests by enforcing the unlikely that a mishap on a cruise court placed the burden of demonstrating California hopped on the forum-selection-clause bandwagon in 1976 when the California Supreme Court decided Smith, Valentino & Smith v. Superior Court. The Smith court cited The Bremen and the “modern trend” of enforcing these clauses, concluding that “forum selection clauses are valid and may be given effect, in the court’s discretion and in the absence of a showing [that] enforcement of such a clause would be unreasonable.” sanctity of contracts and holding parties to could subject the cruise line to litiga- unreasonableness on the party opposing their bargain.7 If English law—assumed to tion in several different fora.…Addi- enforcement.23 apply in the absence of a choice-of-law tionally, a clause establishing ex ante Since the decision in Smith, forum-selec- clause8—was less favorable to the American the forum for dispute resolution has tion clauses have generally encountered rig owner than to the German towing com- the salutary effect of dispelling any smooth sailing in California courts. pany, that was part of the bargain and not confusion about where suits arising Arguments that they appear in adhesion con- grounds for refusing to enforce the clause.9 from the contract must be brought tracts,24 or that it may be more expensive to The Court also made short work of the and defended, sparing litigants the litigate in the selected forum,25 or that the law “ousting” notion, implying that overworked time and expense of pretrial motions of the selected forum may be unfavorable or federal district court judges would be happy to determine the correct forum and even hostile to the plaintiff’s claims,26 or that to be “ousted” from having to hear a com- conserving judicial resources that oth- the plaintiff did not read the clause,27 have all plex maritime case.10 Although the Court’s erwise would be devoted to deciding been held to be insufficient to overcome the holding in The Bremen applied to “federal dis- those motions.…Finally, it stands to plaintiff’s heavy burden of showing unrea- trict courts sitting in admiralty,”11 other reason that passengers who purchase sonableness. As courts and dockets become courts, federal and state, soon gave it a much tickets containing a forum clause like more crowded, no one even bothers to make broader application,12 and so did the Court that at issue in this case benefit in the “ousting” argument anymore.28 itself.13 the form of reduced fares reflecting In California state court, the mechanism The Bremen dealt with a unique, care- the savings that the cruise line enjoys for enforcing a forum-selection clause is a fully negotiated contract concerning inter- by limiting the fora in which it may motion to dismiss or stay for forum non con- national commerce between American and be sued.17 veniens under Code of Civil Procedure Section foreign businesses.14 In Carnival Cruise Lines The Court also noted the lack of any evi- 410.30.29 This motion must be ﬁled within the v. Shute, the Court examined a forum-selec- dence that Carnival had picked Florida for an time to plead to the complaint, unless the tion clause in a form contract between an untoward purpose, such as discouraging law- court extends the time for good cause.30 American company and its customers.15 Shute suits, or that Carnival had gained the Shutes’ Section 418.10 provides directions for review involved a clause on a ticket purchased by a agreement by “fraud or overreaching.” Finally by writ of an order denying the motion.31 A couple, the Shutes, for a cruise vacation, dur- the Court observed that the Shutes did not defendant who does not make this motion at ing which Mrs. Shute was injured. The Shutes have to go on the cruise if they objected to the the proper time waives any objection on lived in Washington. The forum-selection clause. They failed to satisfy the “‘heavy bur- inconvenient forum grounds.32 clause specified Florida—Carnival’s home den of proof’” required to render the clause In federal court, a defendant has more state. When the Shutes sued in Washington, unenforceable.18 options for enforcing a forum-selection clause, Carnival moved to enforce the clause.16 California hopped on the forum-selec- depending on the circumstances and on which As it had in The Bremen, the Supreme tion-clause bandwagon in 1976 when the circuit’s law applies. A defendant can make

26 Los Angeles Lawyer November 2010 MCLE Test No. 197 MCLE Answer Sheet #197 LOCATION LOCATION LOCATION

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. Under federal and California law, the nonmoving 11. The fact that a forum-selection clause is accessible Address party bears the burden of showing why a forum-selec- only by a link on the defendant’s Web site does not ren- tion clause should not be enforced. der the clause unenforceable. City True. True. State/Zip False. False. E-mail 2. Smith, Valentino & Smith v. Superior Court—the only 12. A service-of-suit clause expressly allows a defen- Phone California Supreme Court decision addressing forum- dant to be sued in more than one jurisdiction. State Bar # selection clauses—refers in passing to the distinction True. between mandatory and permissive clauses. False. INSTRUCTIONS FOR OBTAINING MCLE CREDITS True. 13. If a federal court finds that a forum-selection clause 1. Study the MCLE article in this issue. False. is permissive, it will determine the correct forum using 2. Answer the test questions opposite by marking 3. When the U.S. Supreme Court decided The Bremen the standard forum non conveniens analysis employed the appropriate boxes below. Each question v. Zapata Off-Shore Company in 1972, it was following in the absence of a forum-selection clause. has only one answer. Photocopies of this answer sheet may be submitted; however, this the “modern trend” of enforcing forum-selection True. form should not be enlarged or reduced. clauses. False. True. 3. Mail the answer sheet and the $15 testing fee 14. A California court will enforce a forum-selection ($20 for non-LACBA members) to: False. clause that selects a particular California county or Los Angeles Lawyer 4. Under California law, proper forum is jurisdictional city only if venue is otherwise proper under California’s MCLE Test and cannot be waived. venue statutes. P.O. Box 55020 True. True. Los Angeles, CA 90055 False. False. Make checks payable to Los Angeles Lawyer. 5. Federal law provides several procedures for enforc- 15. An order denying a motion to enforce a forum- 4. Within six weeks, Los Angeles Lawyer will selection clause is an appealable order. return your test with the correct answers, a ing a forum-selection clause; California law provides rationale for the correct answers, and a True. only one procedure. certificate verifying the MCLE credit you earned True. False. through this self-assessment activity. False. 16. The standard of review for an order enforcing a 5. For future reference, please retain the MCLE test materials returned to you. 6. Which of these findings is not one that would pre- forum-selection clause is de novo. clude enforcement of a forum-selection clause in the True. ANSWERS False. Ninth Circuit? Mark your answers to the test by checking the A. The clause was obtained by fraud or overreaching. 17. A forum-selection clause that specifies a federal dis- appropriate boxes below. Each question has only B. The clause is contained in a contract of adhesion. trict court is not enforceable unless the parties also meet one answer. C. The clause deprives the nonmoving party of a day in federal subject-matter jurisdiction requirements. court. True. 1. I True I False D. The clause contravenes a strong public policy of the False. 2. I True I False forum. 18. Under California law, a forum-selection clause is 3. I True I False 7. A federal court sitting in diversity applies the law of deemed unreasonable if the forum is unavailable. 4. I True I False the state in which it sits when deciding whether to True. 5. I True I False enforce a forum-selection clause. False. True. 6. I A I B I C I D False. 19. Under California law, a motion to enforce a forum- 7. I True I False selection clause may be made by summary judgment, 8. 8. I True I False If the out-of-state forum’s law is unfavorable to the so long as the defendant pleads improper forum as an I I California plaintiff, a California court will not enforce an affirmative defense. 9. True False out-of-state forum-selection clause. True. 10. I True I False True. False. 11. I True I False False. 20. Under the Ninth Circuit test for forum-selection 12. I True I False 9. A properly drafted forum-selection clause can pre- clauses, the district court must resolve all factual con- 13. I True I False clude removal to federal court. flicts in favor of the nonmoving party. 14. I True I False True. True. I I False. False. 15. True False I I 10. A California statute that prohibits out-of-state 16. True False forum-selection clauses precludes enforcement of such 17. I True I False a clause. 18. I True I False True. 19. I True I False False. 20. I True I False

Los Angeles Lawyer November 2010 27 a motion under 28 USC Section 1404 for a intentions, while remaining mindful of other The Smith court did not address, or even change of venue “in the interest of justice,”33 issues that may bear on the choice of forum. mention, mandatory and permissive clauses. a motion to dismiss or transfer under 28 Thus, in one case, the disputed clause stated, The California Court of Appeal intro- USC Section 1406, or, in some circuits (includ- “For the purpose of resolving disputes regard- duced the concept of mandatory and per- ing the Ninth Circuit), a motion to dismiss ing this Agreement…the Government [of missive forum-selection clauses into California under Rule 12(b)(3) of the Federal Rules of Guyana], ATN and GT&T shall submit them- law in Berg v. MTC Electronics Technologies Civil Procedure.34 Federal law, rather than the selves to the jurisdiction of the courts of Company, Ltd.53—a case that abounds in law of the state in which the district court sits, Guyana.”41 The court combined this clause difficulties. Berg involved a series of share- governs whether the motion is granted.35 It with a waiver of sovereign immunity by the holder class action lawsuits, most of which is also possible to enforce a forum-selection government of Guyana and a choice of were consolidated or coordinated in the clause through summary judgment, as the Guyana law and held that litigation had to Eastern District of New York. After these cruise line did in Shute.36 A plea of improper take place in Guyana’s courts.42 In another cases were safely berthed in New York, the forum must, however, be asserted as an affir- case, however, the clause “The courts of Cali- Berg plaintiffs filed another shareholder action mative defense.37 If the opposing party has fornia, County of Orange, shall have juris- in Los Angeles, alleging substantially the already launched a lawsuit in another forum, diction over the parties in any action at law same theories as those alleged in the New the party seeking to enforce the clause may relating to the subject matter or the inter- York cases. Not surprisingly, the California move for an antisuit injunction.38 pretation of this contract” was held not to court granted the defendants a stay.54 require litigation in Orange County.43 The Berg plaintiffs argued that a state- Terminology and Enforcement If a federal court decides that the clause is ment in the MTC prospectus—not in any Counsel in both state and federal courts must mandatory, it will enforce it unless the plain- agreement—required the defendants to liti- confront the vexed question of what kind of tiff can show that enforcement would be gate in Los Angeles. According to the sen- forum-selection clause they are dealing with— unreasonable or unjust.44 In the Ninth Circuit, tence in the prospectus, “‘The company mandatory or permissive. Mandatory clauses the court has identified three circumstances [MTC] has expressly submitted to the juris- usually will be enforced in both California and under which a forum-selection clause would diction of the State of California and United federal courts. In federal court, however, per- not be enforced: fraud or overreaching, States Federal courts sitting in the City of Los missive clauses face an uphill battle. To com- depriving nonmoving parties of their day in Angeles, California, for the purpose of any plicate matters further, forum-selection clauses court, or contravening a strong public policy suit, action, or proceedings arising out of are sometimes expressed in terms of juris- of the forum.45 The court has further held that this Offering.’”55 diction or venue instead of court location if a motion to dismiss is based on controverted The Berg court identified this sentence as and type. All these refinements have generated facts, “the trial court must draw all reason- a “service of suit clause,” a particular type voluminous and confusing case law. Minute able inferences in favor of the non-moving of clause developed for insurance policies.56 changes in terminology are deemed sufficient party and resolve all factual conflicts in favor A service-of-suit clause provides that an to differentiate two clauses that look indis- of the non-moving party.”46 Even under this insurer “‘will submit to the jurisdiction of any tinguishable to the untutored eye. test, however, the nonmoving party still car- court of competent jurisdiction and will com- Ideally, a mandatory forum-selection ries a heavy burden to establish that the ply with all requirements necessary to give clause addresses court location and type clause is unreasonable or unjust. Inconven- such Court jurisdiction.…’”57 The court (state, federal, or both) and jurisdiction sep- ience, even a substantial amount of it, is not observed that service-of-suit clauses oper- arately and in unmistakably exclusive terms: enough to “deprive” the nonmoving party of ate to “confer personal jurisdiction on the “Exhibitor…expressly agrees that any and all a day in court.47 selected forum, but not to mandate resolu- disputes arising out of or in connection with If the clause is permissive, one of two tion of the dispute in that forum regardless this Agreement shall be litigated only in the results can occur. Either the court will ignore of other considerations.”58 Superior Court for Los Angeles, California the clause and proceed with a standard analy- While this is true enough, it is irrelevant (and in no other), and Exhibitor hereby con- sis based on forum non conveniens,48 or the to the analysis of a forum-selection clause. By sents to the jurisdiction of said court.”39 In court will take the clause into account as definition, service-of-suit clauses do not reality, however, many clauses are not drafted one factor in a standard forum non conve- “select” a particular forum. In an earlier so tidily. niens analysis.49 This latter alternative is case, the court in Appalachian Insurance The most troublesome clauses are those much more likely if the defendant has moved Company v. Superior Court identified the phrased in terms of jurisdiction rather than for a transfer rather than for outright dis- key difference between the two kinds of court location and type. Although a permis- missal. Here too, courts differ. Some courts clauses: sive forum-selection clause hardly seems give “substantial” weight to a permissive The difference between The Bremen worth the trouble to print, a permissive juris- clause,50 while others simply regard it as one and the case at bench [which dealt diction clause makes sense. For example, a of the interests reviewed as part of the stan- with a service of suit clause] lies in buyer agrees to be subject to the jurisdiction dard forum non conveniens analysis.51 the type of forum selection clause of the seller’s home state, with no arguments involved. In The Bremen selection of California’s Legal Wrinkle about minimum contacts, although other the specific forum in London was states may also have jurisdiction over the The published California state court opinions “clearly a reasonable effort to bring buyer. Agreeing to be subject to the home on forum-selection clauses are mercifully vital certainty to this international state’s jurisdiction, however, is not necessar- fewer than the federal cases and far more uni- transaction and to provide a neutral ily the same as agreeing to litigate disputes in form. California, however, has its own legal forum.…” Given the strong evidence the home state’s courts.40 wrinkle that makes the distinction between that the clause was an important part When faced with this kind of ambigu- mandatory and permissive troublesome. of the agreement, the parties must have ity—does “jurisdiction” mean “jurisdiction” The California Supreme Court has not conducted their negotiations with the or does it mean “forum”?—courts will do issued an opinion on forum-selection clauses clause prominently in mind.…59 what they can to give effect to the parties’ since 1976, when it decided the Smith case.52 By contrast, the service-of-suit clauses

28 Los Angeles Lawyer November 2010 served an entirely different purpose. Lloyd’s be enforced.74 And some California statutes cases, litigation in a distant forum is simply used them to make its products more attrac- explicitly forbid enforcement of out-of-state impractical for one reason or another. tive to American businesses, which might forum-selection clauses. For example, Business Counsel for defendants in state court otherwise have hesitated to contract with an and Professions Code Section 20040.5 pro- must be particularly alert to the presence insurer that could not be sued in the United hibits out-of-state forum-selection clauses in and nature of a forum-selection clause States.60 Rather than providing “vital cer- franchise agreements involving a California because of the short time period provided by tainty” or protection “from being confronted franchise.75 California law for asserting it. When defense by a myriad of different state, provincial, Still other statutory schemes have been counsel receive a lawsuit based on a contract, and national forums”61 afforded by The interpreted to forbid enforcement of an out- especially a commercial or boilerplate con- Bremen-type forum-selection clauses, a typ- of-state forum-selection clause indirectly. In tract, the terms should be checked immedi- ical service-of-suit clause invites lawsuits in America Online, Inc., v. Superior Court,76 the ately for an out-of-state forum-selection multiple jurisdictions. court of appeal interpreted the nonwaiver clause. If the complaint involves e-commerce, Having confused two types of clauses provision of California’s Consumer Legal counsel should review the terms and condi- with very different purposes, Berg launches Remedies Act77 to prohibit enforcement of a tions posted on the defendant’s Web site. into a discussion of mandatory and permis- Virginia forum-selection clause. Because These terms and conditions have been held sive forum-selection clauses, a discussion that Virginia did not afford consumers the same enforceable, even if they are only accessible has no bearing on service-of-suit clauses. The rights that they would have under the CLRA, by a link.79 If the contract includes a forum- cases cited in Berg regarding mandatory and the court reasoned that enforcement of the selection clause and the client wishes to permissive clauses are, without exception, forum-selection clause would be tantamount enforce it, counsel should then determine as federal cases applying federal law.62 to a waiver of the CLRA’s provisions.78 best they can whether a court is likely to Since Berg, the fate of a permissive forum- Realistically, a successful motion to dismiss regard it as mandatory or permissive. A deci- selection clause has been extremely murky or stay for forum non conveniens in state sion must be made quickly whether to move under California law. On the one hand, Berg court or to dismiss or transfer in federal court for dismissal or stay for forum non conven- states that the clause is to be given substan- often signals the end of a lawsuit. In many iens. Finally, counsel should become famil- tial weight.63 On the other hand, Berg says that the “traditional” forum non conveniens analysis, such as that set forth in Stangvik v. Mandatory or Permissive? Shiley,64 applies.65 The Stangvik analysis, however, was devel- Counsel for clients faced with a forum-selection clause must predict whether a court will oped for torts. It makes no allowance for a find the clause mandatory or permissive. Each of the following clauses appeared in a forum-selection clause at all. The traditional federal case. The endnotes reveal how the clauses were categorized. California forum non conveniens analysis causes a forum-selection clause simply to dis- 1. “I agree and consent to the jurisdiction of the courts of the State of Vermont, with venue appear, as if it had never existed.66 Moreover, in Windham County, Vermont or the United States District Court for the District of the defendant, not the plaintiff, bears the Vermont for the resolution of all legal matters concerning this agreement.…”1 burden of proof.67 In practice, however, 2. “This Agreement shall be construed and enforced in accordance with the laws of the although published opinions since Berg have State of California and the parties agree that in any dispute jurisdiction and venue shall cited it for the distinction between mandatory be in California.”2 and permissive clauses,68 no published 3. “A decision of the Board of Adjustment…or the decision of a permanent arbitrator shall California appellate court decision has held be enforceable by a petition to confirm an arbitration award filed in the Superior Court a forum-selection clause unenforceable on of the City and County of San Francisco, State of California.”3 the grounds that it is merely permissive.69 4. “The parties hereunto consent to jurisdiction in the State of Nevada and the terms of In state court practice, a forum-selection this agreement to be interpreted pursuant to the laws of said State.”4 clause should not be confused with a true 5. “Jurisdiction: Each party expressly submits to the jurisdiction of the State of New York, venue-selection clause.70 A clause that selects U.S.A. and the federal courts situated in New York City and to service of process by reg- a California county in which a dispute must istered mail.”5 be litigated will run into trouble if the county 6. “The undersigned further acknowledges and agrees…that Michigan is a mutually is not otherwise appropriate.71 California reasonably convenient place for any trial concerning disputes arising from this Agreement courts will not allow private parties to over- and further agrees to submit to the jurisdiction of the Courts of the State of Michigan with ride the legislature’s determination as to which respect to claims arising out of the agreement.”6 California county should host an action.72 If 7. “The undersigned further acknowledges and agrees…that Michigan is a mutually the clause selects a county or city in some reasonably convenient place for any trial concerning disputes arising from this Agreement other state, however, California courts will and further agrees to submit to the jurisdiction of the Courts of the State of Michigan with enforce it, assuming, no doubt, that the other respect to claims arising out of the agreement.”7—J.J.B. state’s courts can sort out their own venue problems.73 1 Paster v. Putney Student Travel, Inc., No. 99-2062, 1999 U.S. Dist. LEXIS 9194, at *2 (C.D. Cal., June 17, California courts usually regard forum- 1999) (mandatory). 2 Sterling Forest Assocs. Ltd. v. Barnett-Range Corp., 840 F. 2d 249, 251-52 (4th Cir. 1988) (mandatory). selection clauses with a benign eye. 3 Northern Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F. 3d 1034, 1036 (9th Cir. 1995) Nevertheless, a court will refuse to enforce (permissive). even a mandatory clause if enforcement 4 Kachal, Inc., v. Menzie, 738 F. Supp. 371 (D. Nev. 1990) (permissive). would compromise some important 5 Central Coal Co. v. Philbro Energy, Inc., 685 F. Supp. 595, 596 (W.D. Va. 1988) (mandatory). 6 California public policy. An unconscionable Furrey v. First Nat’l Monetary Corp., 602 F. Supp. 6, 8 (W.D. Okla. 1984) (mandatory). 7 First Nat’l Monetary Corp. v. Chesney, 654 F. Supp. 649, 654 (E.D. Mich. 1980) (permissive). forum-selection clause, just like any other unconscionable contract provision, will not

Los Angeles Lawyer November 2010 29 iar with any statutes, such as those protect- but see Carnival Cruise Lines v. Superior Court, 234 Cal. App. 3d 1019, 1027 (1991) (lack of notice renders ing consumers, that could directly or indi- clause unenforceable). ERISA rectly affect enforcement. 28 States differ, however, in their acceptance of forum- In federal court, the pace need not perhaps selection clauses. For example, the U.S. Supreme Court LAWYERS be quite so hectic, as a defendant may be in Stewart Organization, Inc., v. Ricoh Corporation able to assert improper venue as an affirma- alluded to the hostility of Alabama state courts toward these clauses. Stewart Org., Inc., v. Ricoh Corp., 487 LONG TERM DISABILITY, LONG tive defense and make a motion for sum- TERM CARE, HEALTH, U.S. 22, 24, 30 (1988). mary judgment at its leisure. But counsel 29 Olnick v. BMG Entm’t, 138 Cal. App. 4th 1286, EATING DISORDER, AND LIFE must be careful to follow the dictates of Rule 1294 (2006); Cal-State Business Prods. & Servs., Inc., INSURANCE CLAIMS 12 of the Federal Rules of Civil Procedure v. Ricoh, 12 Cal. App. 4th 1666, 1680 (1993). If the regarding motions to dismiss to avoid inad- plaintiff is a California resident, the court will almost always stay, rather than dismiss, the case. See, e.g., ERISA & BAD FAITH vertently waiving the issue.80 Furda v. Superior Court, 161 Cal. App. 3d 418, 425 MATTERS Plaintiffs’ counsel also should be looking (1984). for forum-selection clauses while litigation is 30 CODE CIV. PROC. §418.10(a). 31 California state and federal courts being considered. A client who suddenly finds CODE CIV. PROC. §418.10(c). The standard of review More than 20 years experience out that he or she will have to litigate in a dis- for enforcement of a forum-selection clause is all over Settlements, trials and appeals tant state—and perhaps under different and the map. See Intershop Commc’ns, 104 Cal. App. 4th at 198-99 (substantial evidence, abuse of discretion, de less favorable law—will likely be annoyed, at novo). The standard chosen will most likely depend on Referral fees as allowed by the very least, with counsel for failing to how the trial court arrived at its decision. For exam- State Bar of California bring this game-changer to the client’s atten- ple, if it interpreted contract language as a matter of tion before filing. I law, then the appellate court will probably review de novo. Id. Kantor & Kantor LLP 32 CODE CIV. PROC. §418.10(e)(3). 1 818.886.2525 TOLL FREE The choice-of-law clause usually specifies the law of 33 Stewart, 487 U.S. at 29. If there is no enforceable the state selected as the forum. But see Vogt-Nem, choice-of-law provision, the law of the state in which 877.783.8686 Inc. v. M/V Tramper W. African Shipping Co., N.V., the original court sat will still apply—even if the motion www.kantorlaw.net 263 F. Supp. 2d 1226, 1231-32 (N.D. Cal. 2002) is granted and the case is moved. Van Dusen v. Barrack, (Netherlands forum, Dutch and American law applied). 376 U.S. 612, 639 (1964). 2 See, e.g., Carbon Black Export v. The SS Monrosa, 34 Argueta v. Banco Mexicano, S.A., 87 F. 3d 320, 324 254 F. 2d 297, 300-01 (5th Cir. 1958). (9th Cir. 1996). It is important to check the law of the 3 The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 circuit in which the motion is made. In the Sixth (1972). Circuit, for example, a FED. R. CIV. P. 12(b)(3) motion 4 Id. at 6, 7. will be denied if the suit was originally filed in a court 5 Id. at 8. in which venue would be proper. Kerobo v. 6 Id. at 10. Southwestern Clean Fuels Corp., 285 F. 3d 531, 536 7 Id. at 11. (6th Cir. 2002). If the case is transferred for improper 8 Id. at 14 n.15. venue under 28 U.S.C. §1406, the law of the new 9 Id. at 15. forum will apply in the absence of an enforceable 10 Id. at 12. choice-of-law provision. Nelson v. International Paint 11 Id. at 10. Co., 716 F. 2d 640, 643 (9th Cir. 1983). 12 See, e.g., Pelleport Investors, Inc., v. Budco Quality 35 Stewart, 487 U.S. at 32. Although the court has dis- Theaters, Inc., 741 F. 2d 273, 279 (9th Cir. 1984), discretion to dismiss the action pursuant to 28 U.S.C. approved on other grounds by Powerex Corp. v. §1406(a), it will usually transfer the case if the selected Reliant Energy Servs., 551 U.S. 224 (2007). forum is domestic and if it perceives that a dismissal 13 Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974); may cause limitation problems. See, e.g., Roberson v. see also Mitsubishi Motors Corp. v. Soler Chrysler- Norwegian Cruise Line, 897 F. Supp. 1285, 1289 Plymouth, Inc., 473 U.S. 614 (1985). (C.D. Cal. 1995). 14 A Team Of Experts The Bremen, 407 U.S. at 9, 10. 36 Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991), 15 Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991), superseded by statute, 46 U.S.C. §30509; see also John At Your Service... superseded by statute, 46 U.S.C. §30509. Boutari & Sons v. Attiki Imps. & Distribs., Inc., 22 F. 16 Id. at 587-88. 3d 51 (2d Cir. 1994). 17 ______Id. at 593-94. 37 American Home Assurance Co. v. TGL Container 18 Id. at 595. Lines, Ltd., 347 F. Supp. 2d 749, 765 (N.D. Cal. 19 Smith, Valentino & Smith v. Superior Court, 17 Realtors® with experience in 2004); FED. R. CIV. P. 12(h). Cal. 3d 491 (1976). 38 Applied Med. Distrib. Corp. v. The Surgical Co., 587 20 Divorce Id. at 494-95. In his dissent, Justice Mosk wrote in F. 3d 909 (9th Cir. 2009); E. & J. Gallo Winery v. Trust favor of the traditional view. Id. at 497-98. Andina Licores S. A., 446 F. 3d 984 (9th Cir. 2006). 21 Id. at 496. This procedure is also available in state court, but an Probate 22 Id. at 494. injunction is granted only in exceptional circumstances. 23 ______Id.; see also Benefit Ass’n Int’l, Inc. v. Superior Advanced Bionics Corp. v. Medtronic, Inc., 29 Cal. 4th Court, 46 Cal. App. 4th 827, 835 (1996). An incon- 697, 707-08 (2002). venient-forum analysis operating in the absence of a Providing complimentary 39 Pelleport Investors, Inc., v. Budco Quality Theaters, forum-selection clause places the burden on the party Inc., 741 F. 2d 273, 275 (9th Cir. 1984), disapproved Property evaluations advocating dismissal or stay (usually the defendant) to on other grounds by Powerex Corp. v. Reliant Energy Pre-marketing counsel & coordination show that the chosen forum is not the right one. Servs., 551 U.S. 224 (2007). The court held that this Century Indem. Co. v. Bank of Am., 58 Cal. App. 4th Nationwide agent referral network clause defeated removal to federal court. Pelleport, 741 408, 411 (1997). F. 2d at 280. Parties may not, however, “contract” 24 Intershop Commc’ns AG v. Superior Court, 104 themselves into federal court. They must still satisfy the Cal. App. 4th 191, 201-02 (2002). subject-matter jurisdictional requirements of federal 25 Smith, 17 Cal. 3d at 496. question or diversity. A clause that specifies a federal dis- 26 310.230.7373 CQL Original Prods., Inc. v. National Hockey League trict court as the exclusive forum will be unenforceable DRE# 00902158 Players Ass’n, 39 Cal. App. 4th 1347, 1356-57 (1995). if the jurisdictional requirements are not met. 27 Intershop Commc’ns, 104 Cal. App. 4th at 202;

30 Los Angeles Lawyer November 2010 40 See Hunt v. Superior Court, 81 Cal. App. 4th 901, veniens case. Federal Arbitration Act when the forum-selection 908 (2000). 70 Federal courts do not need to be concerned about clause purports to regulate the forum for an arbitration. 41 Atlantic Tele-Network, Inc. v. Inter-American Dev. enforcing clauses that specify a particular location Bradley v. Harris Research, Inc., 275 F. 3d 884, 890 Bank, 251 F. Supp. 2d 126, 133 (D. D.C. 2003). within a state. In addition, the terms “venue” and (9th Cir. 2001). 42 Id. at 134. “forum” are often used interchangeably in federal 76 America Online, Inc., v. Superior Court, 90 Cal. App. 43 Hunt Wesson Foods v. Supreme Oil Co., 817 F. 2d practice. See Sterling Forest Assocs., v. Barnett-Range 4th 1 (2001). 75, 76 (9th Cir. 1987). Corp., 840 F. 2d 249, 251 (4th Cir. 1988). 77 CIV. CODE §§1750 et seq. 44 The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 71 CODE CIV. PROC. §§392 et seq. 78 America Online, 90 Cal. App. 4th at 15; see also Hall (1972). 72 Alexander v. Superior Court, 114 Cal. App. 4th v. Superior Court, 150 Cal. App. 3d 411 (1983) (anti- 45 Murphy v. Schneider Nat’l, Inc., 362 F. 3d 1133, 723, 731-32 (2003); see also General Acceptance Corp. waiver provision of California securities law prevented 1140 (9th Cir. 2003). v. Robinson, 207 Cal. 285, 289 (1929). enforcement of forum-selection clause). 46 Id. at 1138. 73 See, e.g., Smith, Valentino & Smith v. Superior 79 Net2phone, Inc. v. Superior Court, 109 Cal. App. 4th 47 See, e.g., Sharani v. Salviati & Santori, Inc., No. C Court, 17 Cal. 3d 491 (1972) (court enforces clause 583, 588 (2003); see also Schlessinger v. Holland Am., 08-03854 SI, U.S. Dist. LEXIS 105685, at *6-11 (N.D. requiring litigation in Philadelphia). N.V., 120 Cal. App. 4th 552, 555 (2004) (sample Cal. Dec. 29, 2008) (Oakland couple did not provide 74 Bolter v. Superior Court, 87 Cal. App. 4th 900, contracts available on cruise line Web site). enough evidence to establish that requiring them to lit- 909-10 (2001). 80 See, e.g., American Home Assurance Co. v. TGL igate in London would deprive them of their day in 75 This statute has encountered some difficulties. The Container Lines, Ltd., 347 F. Supp. 2d 749, 765 (N.D. court.). Ninth Circuit has held that it is preempted by the Cal. 2004). 48 See, e.g., Utah Pizza Serv. v. Heigl, 784 F. Supp. 835, 839 (D. Utah 1992). 49 See, e.g., Kachal, Inc., v. Menzie, 738 F. Supp. 371, 374 (D. Nev. 1990); Softwareworks Group, Inc., v. IHosting, Inc., No. C06-04301, 2006 U.S. Dist. LEXIS 75989, at *10 (N.D. Cal. Oct. 4, 2006). 50 See, e.g., Unisys Corp. v. Access Co., Ltd., No. C05- 3378, 2005 U.S. Dist. LEXIS 31897 (N.D. Cal. Nov. It’s More Than Just a Referral 23, 2005). 51 See, e.g., Kachal, 738 F. Supp. at 374. It’s Your Reputation 52 The state supreme court repeatedly referred to the Smith decision in its Nedlloyd Lines choice-of-law case. The court did not, however, add to the Smith Make the Right Choice analysis in Nedlloyd. Nedlloyd Lines, B.V. v. Superior Court, 3 Cal. 4th 459 (1992). 53 Berg v. MTC Elecs. Techs. Co., Ltd., 61 Cal. App. Personal Injury • Products Liability 4th 349 (1998). Medical Malpractice • Insurance Bad Faith 54 Id. at 355. 55 Id. at 357. 56 Id. at 352-53. 57 Ford Motor Co. v. Insurance Co. of N. Am., 35 Cal. Referral Fees per State Bar Rules App. 4th 604, 608-09 (1995). These clauses were inserted into insurance policies for marketing purposes. As one insurance company executive explained, www.cdrb-law.com the clause “‘was voluntarily developed by Lloyd’s of London many years ago, as a response to competitor’s 310.277.4857 arguments that Lloyd’s was not amenable to process in the United States and that the potential customer should therefore place its business with a domestic The More You Know About Us, company that was subject to service [of] process.’” The Better Choice You Will Make Appalachian Ins. Co. v. Superior Court, 162 Cal. App. 3d 427, 432 (1984). 58 Berg, 61 Cal. App. 4th at 353. 59 Appalachian Ins. Co., 162 Cal. App. 3d at 439. 60 Id. at 432. 61 CQL Original Prods., Inc. v. National Hockey League Players Ass’n, 39 Cal. App. 4th 1347, 1355 (1995). 62 Berg, 61 Cal. App. 4th at 359-60. 63 Id. at 359. 64 Stangvik v. Shiley, 54 Cal. 3d 744, 751 (1991). 65 Berg, 61 Cal. App. 4th at 359. 66 See, e.g., Hemmelgarn v. Boeing Co., 106 Cal. App. 3d 576, 584-85 (1980). 67 Century Indem. Co. v. Bank of Am., 58 Cal. App. 4th 408, 411 (1997). 68 See Olnick v. VMG Entm’t, 138 Cal. App. 4th 1286, 1294 (2006); Intershop Commc’ns AG v. Superior Court, 104 Cal. App. 4th 191, 196 (2002); Hunt v. Superior Court, 81 Cal. App. 4th 901, 907 (2000). 69 The trial court in TSMC North America v. Semiconductor Manufacturing International Corporation found that a forum clause was permissive, following Berg, but this was only one factor in the 10100 Santa Monica Blvd., Suite 2460, Los Angeles, California 90067 court’s analysis of whether to grant an antisuit injunc- 310.277.4857 office I 310.277.5254 fax tion prohibiting litigation in China. TSMC N. Am. v. Semiconductor Mfg. Int’l Corp., 161 Cal. App. 4th www.cdrb-law.com 581, 588-89 (2008). TSMC was not a forum non con-

Los Angeles Lawyer November 2010 31 By STEVEN T. LOWE DEATH OF COPYRIGHT Copyright infringement may be the only remaining area of law in which courts seem increasingly willing to decide material facts on summary judgment

COPYRIGHT INFRINGEMENT claims against As a result, the determination of each case sibility and a ‘reasonable’ possibility of access motion picture studios and television net- now rests almost entirely in the unfettered dis- is difficult to draw.”6 If the work has not works, for all intents and purposes, are dead. cretion of trial judges, who have consistently been widely disseminated—which is usually Of the 48 copyright infringement cases against dismissed plaintiffs’ claims. Unless the current the case for unpublished screenplays—“a studios or networks that resulted in a ﬁnal trend changes, longstanding principles once particular chain of events” must be established judgment within the Second and Ninth favorable to creators may be eclipsed by an between the plaintiff’s work and the defen- Circuits (and the district courts within those evolving body of law so unfavorable to them dant’s access to that work.7 circuits) in the last two decades,1 the studios that the studios and networks are essentially Early cases outside of the Ninth Circuit and networks prevailed in all of them—and immunized from liability except in cases of found access even when the plaintiff could not nearly always on motions for summary judg- identical copying and conceded access to the actually place the work in the hands of the ment. (See “Perfect Storm,” at 34.) In fact, in plaintiff’s work. defendant. For example, in the First Circuit the last 20 years, only two publicly avail- Since direct evidence of copying rarely is case of Morrissey v. Procter & Gamble Com- able copyright infringement cases (published available in a copyright infringement suit,3 pany, the plaintiff offered evidence that he had or unpublished) against studios or networks plaintiffs typically must establish that the mailed his copyrighted work to the defen- proceeded to jury trial—with verdicts for the defendant had access to the plaintiff’s work dant’s principal office. The court held that this defendants.2 and that the two works are substantially sim- mailing created “an inference that the letter Were all these cases without merit, or did ilar.4 Proof of access requires only a “rea- reached its proper destination,” and to require the studios and networks simply have far sonable possibility” to view or copy the plain- the plaintiff to show that the “particularly superior counsel in each case? These suppo- tiff’s work.5 However, courts commonly cite sitions are very unlikely. The case law gov- to the countervailing principle that “mere Steven T. Lowe is a principal of Lowe Law, a bou- erning these actions simply has become so speculation or conjecture” is insufficient. tique entertainment litigation ﬁrm in Los Angeles. amorphous that for almost every principle of Because the analysis of a reasonable possibility He wishes to thank Daniel Lifschitz, Chris Johnson, law favorable to creators, the courts have necessarily includes some conjecture and and Michael Salvatore for their assistance in the preparation of this article. endorsed and applied an opposite principle. speculation, the “line between a ‘bare’ pos- AMANE KANEKO

32 Los Angeles Lawyer November 2010 H T responsible employees had received his com- access but the facts do not fall into one of the summary judgment has been granted for munication” would have been unfair.8 court’s enumerated categories.13 defendants, the courts simply presumed that Similarly, in 1971, a New York district court The Meta-Film court also recognized sit- access existed.21 This is because “even mas- held in Bevan v. Columbia Broadcasting Sys- uations in which a third-party intermediary sive evidence of access cannot by itself avoid tem, Inc., that corporate receipt could be not of the same business enterprise as the the necessity of also proving the full measure “sufficient to raise a triable issue, despite alleged infringer may be found to have passed of substantial similarity.”22 And this full mea- plaintiff’s inability to show receipt by the along the plaintiff’s work.14 The court limited sure has become virtually impossible to estab- responsible employee,”9 because it would be such situations, however, to instances when the lish under recent case law. unfair to “saddle a plaintiff with disproving third-party intermediary “provided creative To determine whether substantial simi- non-access within a corporate structure for- suggestions and ideas” concerning the larity exists between works at the summary eign to him and with witnesses not his own.”10 allegedly infringing work, and “the dealings judgment phase, the Ninth Circuit has Unfortunately for creators, the Bevan between the three entities (plaintiff, defen- instructed that courts perform an “extrin- holding was rejected by some courts.11 For dants, and [intermediary])…related to the sic” analysis of the works’ objective elements, example, in Meta-Film Associates, Inc. v. identical subject matter.”15 Although Meta- focusing on “articulable similarities between MCA, Inc., a 1984 case, the Central District Film’s effect in the Ninth Circuit has been the plot, themes, dialogue, mood, setting, of California identified only three circum- limited to several district court cases16—and pace, characters, and sequence of events.”23 stances that would meet the type of close the Ninth Circuit has not adopted its hold- In application, however, this analysis has relationship between coworkers necessary to ing17—Meta-Film has been influential in the been unpredictable and has resulted in wildly give rise to a reasonable opportunity of access. Second Circuit, which expressly relied on the conflicting case law and results. In addition, The person who received the plaintiff’s work case when it overruled the Bevan holding.18 in recent years, the Ninth Circuit has ignored must 1) be “a supervisor with responsibility Thus, Meta-Film remains a prominent exam- established case law that requires the court to for the defendant’s project,” or 2) “part of the ple of why commentators note that “many not only include “unprotectable elements” in same work unit as the copier,” or 3) have courts set an unrealistically high bar as to its analysis24 but also exclude dissimilarities “contributed creative ideas or material to what constitutes a close relationship” for between the two works.25 the defendant’s work.”12 By limiting, as a establishing access.19 A long line of copyright infringement matter of law, the instances in which a plain- cases holds that a plaintiff and defendant’s Substantial Similarity tiff can prove access within a corporate struc- works should be compared in their entirety, ture, the Meta-Film court effectively pre- Even when access is established, the path to including both protectable and unprotectable cluded plaintiffs from establishing access in a favorable judgment remains perilous for elements,26 to determine whether a qualita- numerous scenarios in which there is actual plaintiffs.20 In fact, in many cases in which tively (or quantitatively) significant portion of

Perfect Storm In the last 20 years, in the Second and Ninth Circuits and the lower courts within those circuits, 48 copyright infringement cases against studios or networks were litigated to final judgment. In all 48 cases, the victors were the studio and network defendants. Most of the cases were determined by a grant of summary judgment.

Arden v. Columbia Pictures Industries, 908 F. Supp. 1248 (S.D. N.Y. mary judgment for defendant) (Bringing Down the House). 1995) (summary judgment for defendant) (Groundhog Day). Flynn v. Surnow, 2003 U.S. Dist. LEXIS 26973 (C.D. Cal. 2003) (sum- Benay v. Warner Bros. Entertainment, Inc., 607 F. 3d 620 (9th Cir. 2010) mary judgment for defendant) (24). (summary judgment for defendant affirmed) (The Last Samurai). Funky Films v. Time Warner Entertainment, 462 F. 3d 1072 (9th Cir. Benjamin v. Walt Disney Company, 2007 U.S. Dist. LEXIS 91710 (C.D. 2006) (summary judgment for defendant) (Six Feet Under). Cal. 2007) (summary judgment for defendant) (Sweet Home Alabama). Gable v. NBC, 2010 WL 2990977 (C.D. Cal. 2010) (summary judgment Bethea v. Burnett, 2005 WL 1720631 (C.D. Cal. 2005) (summary judg- for defendant) (My Name Is Earl). ment for defendant) (The Apprentice). Gilbert v. New Line Productions, 2010 U.S. Dist. LEXIS 27134 (C.D. Cal. Blakeman v. Walt Disney Company, 613 F. Supp. 2d 288 (E.D. N.Y. 2009) 2010) (summary judgment for defendant) (Monster in Law). (summary judgment for defendant) (Swing Vote). Gregory v. Murphy, 1991 U.S. App. LEXIS 4893 (9th Cir. 1991) (sum- Burns v. Imagine Films Entertainment, Inc., 2001 U.S. Dist. LEXIS 24653 mary judgment for defendant affirmed) (Coming to America). (W.D. N.Y. 2001) (summary judgment for defendant) (Backdraft). Grosso v. Miramax Film Corporation, 2001 U.S. Dist. LEXIS 26199 (C.D. Brown v. Perdue, 177 Fed. Appx. 121 (2d Cir. 2006) (summary judg- Cal. 2001) (summary judgment for defendant) (Rounders). ment for defendant affirmed) (The Da Vinci Code). Historical Truth Productions v. Sony Pictures Entertainment, 1995 U.S. Bunick v. UPN, 2008 U.S. Dist. LEXIS 35536 (S.D. N.Y. 2008) (summary Dist. LEXIS 17477 (S.D. N.Y. 1995) (summary judgment for defendant) judgment for defendant) (South Beach). (Universal Soldier). Cabell v. Sony Pictures Entertainment, Inc., 2010 U.S. Dist. LEXIS 54667 Hudson v. Universal Pictures Corporation, 2004 U.S. Dist. LEXIS (S.D. N.Y. 2010) (summary judgment for defendant) (You Don’t Mess with 11508 (E.D. N.Y. 2004) (summary judgment for defendant) (Life). the Zohan). Idema v. Dreamworks, Inc., 162 F. Supp. 2d (C.D. Cal. 2001) (summary Cox v. Abrams, 1997 U.S. Dist. LEXIS 6687 (S.D. N.Y. 1997) (summary judgment for defendant) (The Peacemaker). judgment for defendant) (Regarding Henry). Kodadek v. MTV Networks, 1996 U.S. Dist. LEXIS 20776 (C.D. Cal. 1996) Flaherty v. Filardi, 2009 U.S. Dist. LEXIS 22641 (S.D. N.Y. 2009) (sum- (summary judgment for defendant) (Beavis & Butthead).

34 Los Angeles Lawyer November 2010 a plaintiff’s work was appropriated.27 This one of only two copyright infringement cases be protected separately).35 In the years since comports with basic principles of copyright against a studio or network in the last 20 its publication, however, the analysis of law and is known as the “selection and years that proceeded to trial. (The other is Metcalf has proven to be the exception and arrangement” test.28 Shaw v. Lindheim.31) In Metcalf, the plaintiff not the rule. In the seminal 1991 case Feist Publications offered evidence that the defendant had mis- The 2003 case of Rice v. Fox Broadcasting Inc. v. Rural Telephone Services Company, the appropriated many elements of the plain- Company may have played the heaviest hand U.S. Supreme Court held that when dealing tiff’s screenplay to create a television series for against the use of the selection and arrange- with works largely (or even entirely) com- NBC. The court recognized that “the simi- ment test. The Rice court stated that “simi- posed of unprotectable elements, “choices larities proffered by [the plaintiff] are not larities derived from the use of common ideas as to selection and arrangement, so long as protectable when considered individually; cannot be protected.”36 This assertion ignored they are made independently by the com- they are either too generic or constitute ‘scenes the holdings and rationales of the cases that piler and entail a minimal degree of creativ- a faire.’”32 However, “the presence of so the court cited, including Metcalf, but the ity, are sufficiently original.”29 Transposed to many generic similarities and the common Rice court attempted to distinguish Metcalf the literary arts, the test provides that patterns in which they arise help satisfy the by stating that it was “based on a form of although copyright law does not generally extrinsic test.”33 The court memorably com- inverse ratio rule analysis” (i.e., the rule protect basic plot premises in literary works pared the elements of literary works to those whereby more access requires less substantial or commonly used expressions that ﬂow nat- of musical compositions: similarity and vice versa) and seemed to imply urally from those premises (“scenes a faire”), The particular sequence in which an that the selection and arrangement test is the original selection and arrangement of author strings a signiﬁcant number of only applicable when access is conceded.37 these elements can constitute a protectable unprotectable elements can itself be a This implication, which limits Metcalf to its work in and of itself.30 Therefore, the whole- protectable element. Each note in a facts, overlooks that nowhere in Metcalf (or sale exclusion of all “unprotectable” ele- scale, for example, is not protectable, any case prior to it) is the inverse ratio rule ments improperly limits the scope of copyright but a pattern of notes in a tune may required for the application of the selection protection. The Ninth Circuit has recognized earn copyright protection.34 and arrangement test.38 Nevertheless, Rice’s this principle on numerous occasions but The court did not strip the works of their misinterpretation of Metcalf has been repeat- has spent the better part of the past decade unprotectable elements before diving into an edly followed by the Ninth Circuit in subse- aggressively denying its use to plaintiffs in extrinsic analysis of substantial similarity, quent opinions. copyright infringement cases against studios consistent with the general purpose of the Indeed, in the 2006 case of Funky Films, and networks. selection and arrangement test (that is, to Inc. v. Time Warner Entertainment Company, Metcalf v. Bochco, decided in 2002, is protect in combination that which cannot L.P., the Ninth Circuit once again ignored the

Kouf v. Walt Disney Pictures and Television, 16 F. 3d 1042 (9th Cir. 1994) Pelt v. CBS, Inc., 1993 U.S. Dist. LEXIS 20464 (C.D. Cal. 1993) (sum- (summary judgment for defendant affirmed) (Honey, I Shrunk the Kids). mary judgment for defendant) (Listen Up! Young Voices for Change). Kretschmer v. Warner Bros., 1994 U.S. Dist. LEXIS 7805 (S.D. N.Y. 1994) Rice v. Fox Broadcasting Company, 330 F. 3d 1170 (9th Cir. 2003) (sum- (summary judgment for defendant) (Defending Your Life). mary judgment for defendant affirmed) (The Mystery Magician). Lane v. Universal City Studios, 1994 U.S. App. LEXIS 23769 (9th Cir. Robinson v. Viacom International, 1995 U.S. Dist. LEXIS 9781 (S.D. Cal. 1994) (summary judgment for defendants affirmed) (Kojak: Fatal N.Y. 1995) (summary judgment for defendant) (Hi Honey). Flaw). Rodriguez v. Heidi Klum Company, LLC, 2008 U.S. Dist. LEXIS 80805 Laskay v. New Line Cinema, 1998 U.S. App. LEXIS 23461 (C.D. Cal. (S.D. N.Y. 2008) (summary judgment for defendant) (Project Runway). 1998) (summary judgment for defendant) (Don Juan DeMarco). Rosenfeld v. Twentieth Century Fox Film, 2009 U.S. Dist. LEXIS 9305 Lassiter v. Twentieth Century Fox Film Corporation, 238 Fed. Appx. 194 (C.D. Cal. 2009) (summary judgment for defendant) (Robots). (9th Cir. 2007) (summary judgment for defendant affirmed) (Drumline). Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal. 1992) (upon remand, Mallery v. NBC Universal, Inc., 331 Fed. Appx. 821 (2d Cir. 2009) (sum- judgment as a matter of law in favor of defendant studio) (The Equalizer). mary judgment for defendant affirmed) (Heroes). Stewart v. Wachowski, 574 F. Supp. 2d 1074 (C.D. Cal. 2005) (sum- Merrill v. Paramount Pictures Corporation, 2005 U.S. Dist. LEXIS 45401 mary judgment for defendant) (The Matrix). (C.D. Cal. 2005) (summary judgment for defendant) (Crossroads). The Sheldon Abend Revocable Trust v. Steven Spielberg, 2010 WL Mestre v. Vivendi Universal U.S. Holding Co., 273 Fed. Appx. 631 (9th 3701343 (S.D. N.Y. 2010) (summary judgment for defendants) (Disturbia). Cir. 2008) (summary judgment for defendant affirmed) (Billy Elliot). Thomas v. Walt Disney Company, 337 Fed. Appx. 694 (9th Cir. 2009) Metcalf v. Bochco, 294 F. 3d 1069 (9th Cir. 2002) (jury verdict in favor (defendant’s motion to dismiss affirmed) (Finding Nemo). of defendant studio), aff’d, Metcalf v. Bochco, 200 Fed. Appx. 635 (9th Walker v. Viacom International, Inc., 2010 U.S. App. LEXIS 1475 (9th Cir. 2006) (City of Angels). Cir. 2010) (summary judgment for defendant) (SpongeBob SquarePants). Milano v. NBC Universal, Inc., 584 F. Supp. 2d 1288 (C.D. Cal. 2008) Weygand v. CBS, 1997 U.S. Dist. LEXIS 19613 (C.D. Cal. 1997) (sum- (summary judgment for defendant) (The Biggest Loser). mary judgment for defendant) (Charlie). Mowry v. Viacom International, Inc., 2005 U.S. Dist. LEXIS 15189 (S.D. Williams v. Crichton, 84 F. 3d 581 (2d Cir. 1996) (summary judg- N.Y. 2005) (summary judgment for defendant) (The Truman Show). ment for defendant) (Jurassic Park). Novak v. National Broadcasting Company, 752 F. Supp. 164 (S.D. N.Y. Willis v. HBO, 2001 U.S. Dist. LEXIS 17887 (S.D. N.Y. 2001) (summary 1990) (summary judgment for defendant) (Saturday Night Live). judgment for defendant) (Arli$$). Ostrowski v. Creative Artists Agency, 1994 U.S. App. LEXIS 23732 (9th Cir. Zella v. E. W. Scripps Company, 529 F. Supp. 2d 1124 (C.D. Cal. 2007) Cal. 1994) (summary judgment for defendant affirmed) (To Forget Palermo). (defendant’s motion to dismiss granted) (Rachael Ray).—S.T.L.

Los Angeles Lawyer November 2010 35 selection and arrangement test, holding that: arrangement test, comfortably stripping all favored on the substantial similarity issue in [Courts] must take care to inquire only unprotected elements from the works and copyright cases,”54 the overwhelming major- whether the protectable elements, ultimately using the new Funky Films dis- ity of copyright cases are dismissed on exactly standing alone, are substantially sim- similarity analysis as a basis to rule against the that issue. Admissible expert testimony nor- ilar. In so doing, [courts] filter out and plaintiffs on their copyright claim.49 mally can defeat summary judgment against disregard the non-protectable elements In the end, the Benay plaintiffs only were the party it supports.55 When two expert in making [their] substantial similarity able to continue to pursue their state law witnesses reasonably contradict one another, determination.39 claim of breach of implied contract.50 Though the contradiction should create a material Moreover, in one flourish of its pen, the this claim can be satisfied when copying does issue of fact that a jury is required to resolve.56 Funky Films court created a whole new not rise to a level of substantial similarity, it However, courts inexplicably have carved defense for alleged infringers where none requires a higher level of access to establish out literary analysis as an exception to this previously existed and which has been heav- an implied contract, as well as privity between rule. Courts have become more willing to Not only has the ad hoc use of substantial dissimilarity and the refusal to acknowledge selection and arrangement stripped creators of the doctrines that once protected them, but it also effectively endorses creative theft whenever the elements of an implied contract are not satisfied. ily relied upon in subsequent court opinions. the parties.51 Furthermore, even if estab- dismiss expert witnesses to screenplay copy- The court stated that a “reading of the two lished, the remedies available in a breach of right infringement claims and analyze the works reveal[ed] greater, more significant dif- implied contract claim are not as broad as works themselves.57 ferences” than similarities.40 In essence, the those for copyright claims.52 Overall, the In 2001, the Central District of California court constructed a brand new test of “sub- state claim is a poor substitute for the once stated in Fleener v. Trinity Broadcasting stantial dissimilarity” in the context of copy- robust protections offered to creators under Network (a case that was not against a major right infringement, one that completely con- copyright law. The claim also has been lim- studio), “There is abundant case-law estab- travenes the well-established principle that ited extensively by the application of the lishing that expert testimony is particularly dissimilarity is irrelevant as long as the plain- preemptive effect of federal copyright law— appropriate in summary judgment motions tiff makes a showing of the defendant work’s the very law creators hoped it would sup- under the copyright ‘extrinsic test.’”58 similarity to a substantial element of the plement.53 However, judges have become comfortable plaintiff’s work.41 with disregarding this type of testimony when Phasing Out Experts and Juries It appears that the old Learned Hand they believe they can do their own compari- chestnut that “no plagiarist can excuse the The outcome in Benay is emblematic of just son, regardless of how it comports with well- wrong by showing how much of his work he how far copyright decisions have strayed established legal standards.59 did not pirate” may no longer be true.42 The from maintaining a balance between the inter- Many troubling questions arise from this result of this shift in copyright law is that third ests of creators and the interests of produc- trend. Why do judges believe they can per- parties now have the freedom to steal from ers. Not only has the ad hoc use of substan- form the extrinsic analysis of literary works screenplays with impunity, provided they tial dissimilarity and the refusal to better than plaintiffs’ experts?60 An extrinsic cover their tracks by creating sufficient dis- acknowledge selection and arrangement analysis is no easy feat. A judge who dissimilarities in what is, in reality, a “derivative stripped creators of the doctrines that once misses an expert witness, believing the sub- work.”43 The recent case of Benay v. Warner protected them, but it also effectively endorses ject matter within his or her grasp, effec- Bros. illustrates this point.44 creative theft whenever the elements of an tively acts as a self-appointed expert. This is In Benay, decided in June 2010, the plain- implied contract are not satisfied. If more a disservice to the creators of literary works. tiffs’ agent pitched and provided a copy of juries were exposed to the facts of these cases, It implies that writing a screenplay is a less their screenplay The Last Samurai to the creators might hope to reverse the imbal- complex and involved undertaking than writ- president of production at Warner Bros.45 ance. However, the determination of appro- ing a song or a software program. Moreover, The studio declined to proceed further with priation has time and again been allocated to the judge essentially deprives plaintiffs of the screenplay but later produced and released the presiding judge of each case instead. their constitutional right to a jury trial. a film with the exact same title and premise Indeed, copyright infringement may be the Nevertheless, this is the current state of copy- as the plaintiffs’ work.46 Despite compelling only remaining area of the law in which right law for literary works, with no signs of evidence that actual copying of the plain- judges seem increasingly willing to decide rebalancing anytime soon. tiff’s screenplay occurred,47 the court deemed material facts on summary judgment, effec- In copyright infringement cases, judges it “insufficient to overcome the overall lack tively removing both experts and juries from are supposed to play the role of gatekeeper to of similarities between protected elements of the process entirely. the jury. Their task in analyzing substantial the works.”48 The Ninth Circuit’s extrinsic While courts repeatedly cite the proposi- similarity is supposed to be extrinsic—that is, analysis once again ignored the selection and tion that “summary judgment is not highly objective.61 If a plaintiff can show objective

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!TWWW#ALIFORNIA.EUTRALSORGYOUCANSEARCHBYSUBJECTMATTEREXPERTISE LOCATIONANDPREFERRED 4OlNDTHEBESTNEUTRALFORYOURCASE PLEASEVISITOURCOMPLETEMEMBERROSTERAT !$2SERVICEINJUSTSECONDS9OUCANALSODETERMINEAVAILABILITYBYVIEWINGMANYMEMBERS /.,).%#!,%.$!23 lNDINGTHEIDEALNEUTRALFORYOURCASEINAWAYTHATSAVESBOTHTIMEANDMONEY WWW#ALIFORNIA.EUTRALSORG 4HE#ALIFORNIA!CADEMYISTHE#ALIFORNIA#HAPTEROFTHE.ATIONAL!CADEMYOF$ISTINGUISHED.EUTRALS ANATIONWIDEASSOCIATIONOFMEDIATORSANDARBITRATORSWHOHAVESUBSTANTIAL EXPERIENCEINTHERESOLUTIONOFCOMMERCIALANDCIVILDISPUTES!LLMEMBERSHAVEBEENRECOGNIZEDFORTHEIRACCOMPLISHMENTSTHROUGHTHE!CADEMYSPEERNOMINATIONSYSTEMAND EXTENSIVEATTORNEY CLIENTREVIEWPROCESS-EMBERSHIPISBYINVITATIONONLYANDISLIMITEDTOINDIVIDUALSWHODEVOTESUBSTANTIALLYALLOFTHEIRPROFESSIONALEFFORTSTO!$2PRACTICE 4OACCESSOUR.ATIONAL$IRECTORY PLEASEVISITWWW.!$.ORGDIRECTORYHTMLANDSELECTYOURPREFERREDSTATE similarity, a jury is brought in to determine overlap in subject matter”); Weygand v. CBS Inc., 43 34 Id. at 1074. whether the total concept and feel—the U.S.P.Q. 2d 1120, 1123 (C.D. Cal. 1997) (ignoring the 35 See Fleener v. Trinity Broad. Network, 203 F. Supp. three categories altogether, and instead citing general intrinsic test—of the plaintiff’s and defen- 2d 1142, 1150 (C.D. Cal. 2001) (“[C]opyright also pro- Meta-Film language as a catch-all provision: “courts tects the expressive act of arranging completely unpro- dant’s works are substantially similar. In have found access when…an individual in a position tected works. See Apple Computer, Inc. v. Microsoft practice, however, the extrinsic test has been to provide suggestions or comments with respect to the Corp., 35 F. 3d 1435, 1445 (9th Cir. 1994).”). devoured by an intrinsic test performed by defendant’s work…had the opportunity to view the 36 Rice v. Fox Broad. Co., 330 F. 3d 1170, 1174-75 the judge. Simply put, with judges able to plaintiff’s work”). (2003) (“In analyzing the scope of copyright protection 17 substitute their opinions for those of experts The Ninth Circuit has cited Meta-Film but never for afforded to The Mystery Magician, we note at the this proposition. See Cleary v. News Corp., 30 F. 3d outset that ideas generally do not receive protection, and juries on issues of material fact, all other 1255, 1263 (9th Cir. 1994); E. W. French & Sons v. only the expression of such ideas do.”); Metcalf, 294 witnesses to the case become effectively General Portland, 885 F. 2d 1392, 1401 (9th Cir. F. 3d at 1074 (“It is true that this dichotomy between redundant. 1989); Lloyd v. Schlag, 884 F. 2d 409, 414 (9th Cir. an idea and its expression is less clear when the idea Case law has provided defendants with an 1989); Little Oil Co. v. Atlantic Ritchfield Co., 852 F. and expression are “merged” or practically indistin- impenetrable shield of confusing and often 2d 441, 445 (9th Cir. 1988). guishable. However, we have held that ‘similarities 18 Jorgensen v. Epic/Sony Records, 351 F. 3d 46 (2d Cir. derived from the use of common ideas cannot be pro- contradictory principles that thwart plain- 2003). tected; otherwise, the first to come up with an idea will tiffs in nearly every instance, with only tiny 19 Nick Gladden, When California Dreamin’ Becomes corner the market.’ Apple, 35 F. 3d at 1443.”). cracks in that shield providing a mere glimpse a Hollywood Nightmare; Copyright Infringement and 37 Rice, 330 F. 3d at 1179. See Mestre v. Vivendi of hope. Unless the Ninth Circuit seriously the Motion Picture Screenplay: Toward an Improved Universal U.S. Holding Co., 273 Fed. Appx. 631, 632 reexamines where courts have taken the law Framework, 10 J. INTELL. PROP. L. 359, 359-84 (2003). (9th Cir. 2008) (“Moreover, even if ‘[t]he particular 20 One unreported case may offer some hope for cre- of copyright infringement, the cards will sequence in which an author strings a significant num- ators. See Miller v. Miramax Film Corp., 2001 U.S. ber of unprotectable elements can itself be a pro- remain completely stacked in favor of the Dist. LEXIS 25967, at *28 (2001) (holding that evi- tectable element’ in certain contexts, Mestre has not studios and networks. I dence of a screenplay submitted to Universal Pictures, demonstrated sufficient similarities in sequence to along with evidence that agents were common to the qualify for such protection.”) (citations omitted)). 38 1 One case arguably did not result in a clear-cut victory writers of both works, was sufficient to preclude sum- While the plaintiff’s case in Metcalf was “strength- for the defendant studio. See Miller v. Miramax Film mary judgment on access). ened considerably” by the defendant’s concession of 21 Corp., 2001 U.S. Dist. LEXIS 25967, at *28 (2001). See Benay v. Warner Bros. Entm’t, Inc., 607 F. 3d access, the Metcalf court never actually invoked the However, the case achieved no final judgment on the 620 (9th Cir. Cal. 2010); Funky Films, Inc. v. Time inverse ratio rule, nor did it hold that finding sub- merits. The court denied summary judgment to the Warner Entm’t Co., L.P., 462 F. 3d 1072 (9th Cir. stantial similarity through selection and arrangement defendant on the plaintiff’s copyright infringement 2006); Mestre, 2005 WL 1959295, at *5; Zella v. E. was contingent on access being admitted. 39 claim (much like two other cases discussed infra) before W. Scripps Co., 529 F. Supp. 2d 1124 (C.D. Cal. Funky Films, Inc. v. Time Warner Entm’t Co., L.P., the case disappeared from the docket entirely. 2007). 462 F. 3d 1072, 1077 (9th Cir. 2006) (citations omit- 22 2 See Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal. 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ted) (emphasis in original). 40 1992) (upon remand, judgment as a matter of law in ON COPYRIGHT §13.03[D] (2007). Id. at 1078. 23 41 favor of defendant studio); Metcalf v. Bochco, 294 F. Kouf v. Walt Disney Pictures & Television, 16 F. 3d 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER 3d 1069 (9th Cir. 2002) (jury verdict in favor of defen- 1042, 1045 (9th Cir. 1994) (citation and internal quo- ON COPYRIGHT §13.03[B][1][a] (2007). 42 dant studio, aff’d Metcalf v. Bochco, 200 Fed. Appx. tation marks omitted). Shaw v. Lindheim, 919 F. 2d 1353, 1362 (1990) 24 635 (9th Cir. 2006)). Metcalf v. Bochco, 294 F. 3d 1069, 1074 (9th Cir. (quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 2002), aff’d Metcalf v. Bochco, 200 Fed. Appx. 635 3 See 4 MELVILLE B. NIMMER & DAVID NIMMER, F. 2d 49, 56 (2d Cir. 1936)). (9th Cir. 2006) (“The particular sequence in which an 43 NIMMER ON COPYRIGHT §13.02[A] (2007). A “derivative work,” as defined by 17 U.S.C. §101, 4 Sid & Marty Krofft Television Prods., Inc. v. author strings a significant number of unprotectable ele- is “a work based upon one or more pre-existing McDonald’s Corp., 562 F. 2d 1157, 1162 (9th Cir. ments can itself be a protectable element.”). works…including any form in which a work may be 25 1977); Berkic v. Crichton, 761 F. 2d 1289, 1291 (9th See Shaw v. Lindheim, 919 F. 2d 1353, 1362 (1990) recast, transformed, or adapted.” 17 U.S.C. §106 pro- Cir. 1985); Apple Computer, Inc. v. Microsoft Corp., (quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 vides that, subject to other sections of the Copright Act, 35 F. 3d 1435, 1442 (9th Cir. 1994); Three Boys F. 2d 49, 56 (2d Cir. 1936)); Aliotti v. R. Dakin & Co., a copyright owner “has the exclusive rights to do and Music Corp. v. Bolton, 212 F. 3d 477, 481 (9th Cir. 831 F. 2d 898, 901 (9th Cir. 1987) (“Dissection of dis- to authorize…derivative works based upon the copy- 2000). similarities is inappropriate because it distracts a rea- righted work.” 44 5 Id. sonable observer from a comparison of the total con- Benay v. Warner Bros. Entm’t, Inc., 607 F. 3d 620 6 Id. cept and feel of the works.”); 4 MELVILLE B. NIMMER (9th Cir. 2010). 45 7 Three Boys Music, 212 F. 3d at 482. & DAVID NIMMER, NIMMER ON COPYRIGHT § Id. at 622. 46 8 Morrissey v. Procter & Gamble Co., 379 F. 2d 675, 13.03[B][l][a] (2007). Id. at 622-23. 26 47 677 (1st Cir. 1967). See Weitzenkorn v. Lesser, 256 P. 2d 947 (Cal. Benay v. Warner Bros. Entm’t, 2008 U.S. 9th Cir. 9 Bevan v. Columbia Broad. Sys., 329 F. Supp. 601, 609 1953) (en banc); Morse v. Fields, 127 F. Supp. 63 Briefs 55719 (9th Cir. June 9, 2009) (“Defendants (D.C. N.Y. 1971). (S.D. N.Y. 1954); Roth Greeting Cards v. United Card copied plaintiffs’ work right down to the historical inac- 10 Id. at 610. Co., 429 F. 2d 1106 (9th Cir. 1970); United States v. curacy of cannons being new when in fact cannons date 11 See Jorgensen v. Epic/Sony Records, 351 F. 3d 46 (2d Hamilton, 583 F. 2d 448 (9th Cir. 1978); Feist Publ’ns, back to the fourteenth century.”). 48 Cir. 2003); Meta-Film Assocs., Inc. v. MCA, Inc., 586 Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991); Benay, 607 F. 3d at 629. 49 F. Supp. 1346 (C.D. Cal. 1984). Shaw, 809 F. Supp. 1393; Three Boys Music Corp. v. Id. at 625(“We agree with the district court that 12 Meta-Film, 586 F. Supp. at 1355-56. Bolton, 212 F. 3d 477, 481 (9th Cir. 2000); Fleener v. ‘[w]hile on cursory review, these similarities may 13 See Mestre v. Vivendi Universal U.S. Holding Co., Trinity Broad. Network, 203 F. Supp. 2d 1142 (C.D. appear substantial, a closer examination of the pro- 2005 WL 1959295 (D. Or. 2005), aff’d, 273 Fed. Cal. 2001); Metcalf, 294 F. 3d 1069; Satava v. Lowry, tectable elements including plot, themes, dialogue, Appx. 631 (9th Cir. 2008); Merrill v. Paramount 323 F. 3d 805 (9th Cir. 2003); Swirsky v. Carey, 376 mood, setting, pace, characters, and sequence of events, Pictures Corp., 2005 WL 3955653 (C.D. Cal. 2005). F. 3d 841 (9th Cir. 2004). exposes many more differences than similarities between 27 14 Meta-Film, 586 F. Supp. at 1358. Baxter v. MCA, 812 F. 2d 421, 425 (9th Cir. 1987); Plaintiffs’ Screenplay and Defendants’ film.’”). 50 15 Id. at 1359 (analyzing and distinguishing Kamar 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON Id. at 629, 633. 51 Int’l, Inc. v. Russ Berrie & Co., 657 F. 2d 1059 (9th COPYRIGHT §13.03[B][1][a] (2007). See Rokos v. Peck, 182 Cal. App. 3d 604, 617-18 28 Cir. 1981)). 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER (1986) (holding that an implied-in-fact contract between 16 See Merrill, 2005 WL 3955653, at *8 (citing only ON COPYRIGHT §2.11 (2007). the plaintiff and the writer was effective only between 29 Meta-Film’s three categories as a requirement for Feist Publ’ns, 499 U.S. 340. them). 30 52 access); Mestre, 2005 WL 1959295, at *5 (applying the Metcalf, 294 F. 3d at 1074. While copyright law allows for recovery of actual 31 three categories as limiting but adding the require- Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal. damages and profits resulting from the infringement, ment that “at a minimum, the dealings between the 1992). a breach of contract allows recovery of damages only 32 plaintiff and the intermediary and between the inter- Metcalf, 294 F. 3d at 1074. for the amount the plaintiff would have received un- 33 mediary and the alleged copier must involve some Id. at 1073. der the contract. See 17 U.S.C.A. §504; RESTATEMENT

40 Los Angeles Lawyer November 2010 (SECOND) OF CONTRACTS §345; Benay, 607 F. 3d 620. 53 In Montz v. Pilgrim Films & TV, Inc., decided less WANT RESULTS? than a week before Benay, the court affirmed the “Industry Specialists For Over 23 Years” defendants’ motion to dismiss on the grounds that the tWitkin & Eisinger we specialize in the Non-Judicial COLLECTION OF JUDGMENTS AND DEBTS plaintiff’s implied-in-fact contract claim was “merely AForeclosure of obligations secured by real property derivative” of the plaintiff’s rights under 17 U.S.C. §106 or real and personal property (mixed collateral). Specializing in statewide pre- and post- and was thus preempted by federal copyright law. When your client needs a foreclosure done profession- judgment collection litigation: lawsuits, Montz v. Pilgrim Films & TV, Inc., 606 F. 3d 1153, ally and at the lowest possible cost, please call us at: arbitrations, writs, liens, levies, examinations, 1159 (9th Cir. 2010). Montz thus stands as another garnishments, attachments, asset searches and major blow for creators, who saw a chance to protect seizures. Contingent fees available. their works through implied contract claims based on earlier Ninth Circuit cases. See Grosso v. Miramax Film Law Offices of Matthew C. Mickelson Corp., 2004 U.S. App. LEXIS 28043 (holding that www.mickelsonlegal.com the implied promise to pay constituted an extra element [email protected] • 818.382.3360 for preemption purposes that transformed the action from one arising under the ambit of federal copyright —Taking On the Hard Cases Others Refuse— law to one sounding in contract). 54 See Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F. 3d 1072, 1076 (9th Cir. 2006); Berkic v. Crichton, 761 F. 2d 1289, 1292 (9th Cir. 1985); Litchfield v. Spielberg, 736 F. 2d 1352, 1355 (9th Cir. 1984); Shaw v Lindheim, 809 F. Supp. 1393, 1355 Anita Rae Shapiro (C.D. Cal. 1992). 55 In re Apple Computer Sec. Litig., 886 F. 2d 1109, SUPERIOR COURT COMMISSIONER, RET. 1116 (9th Cir. 1989) (citing Bieghler v. Kleppe, 633 F. 2d 531, 534 (9th Cir. 1980) (“As a general rule, summary judgment is inappropriate where an expert’s tes- PRIVATE DISPUTE RESOLUTION timony supports the nonmoving party’s case.”). PROBATE, CIVIL, FAMILY LAW 56 Wyler Summit P’ship v. Turner Broad. Sys., Inc. PROBATE EXPERT WITNESS 235 F. 3d 1184, 1192 (9th Cir. 2000) (“Weighing the credibility of conflicting expert witness testimony is the TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 province of the jury.”). E-MAIL: [email protected] 57 See Rice v. Fox Broad. Co., 330 F. 3d 1170 (2003) http://adr-shapiro.com (holding that district court did not abuse its discretion in disregarding the testimony of plaintiff’s expert); Bethea v. Burnett, 2005 WL 1720631, at *12 (C.D. Cal. 2005) (ignoring plaintiff’s expert’s testimony, finding it unhelpful to the court’s own analytic dissection); Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal. 1992) (disregarding plaintiff’s expert’s testimony in overturning jury verdict in favor of plaintiff); Funky Films, INVESTIGATIONS 462 F. 3d at 1076 (“[T]he district court conducted an — DISCRETION AND CONFIDENTIALITY — independent analysis of [the works].”); Gable v. NBC, 2010 U.S. Dist. LEXIS 77772, at *59 (C.D. Cal. 2010) (“Expert testimony is far less critical in a case like this than it is in a case where specialized knowledge is Locates required to dissect the objective components of the copyrighted work.”). Asset Investigations 58 Fleener v Trinity Broad. Network, 203 F. Supp. 2d Rush & Difficult Service of Process 1142, 1147 (C.D. Cal. 2001) (denying defendants’ requests for reconsideration and summary adjudication Surveillance based on substantial similarities between the two works). 59 But see Swirsky v. Carey, 376 F. 3d 841, 846 (9th Cir. 2004) (The district court’s dismissal of expert testimony and use of its own substantial similarity analysis to discount similarities between the two works as scenes a faire was erroneous.) (quoting Brown Bag Software v. Symantec Corp., 960 F. 2d 1465, 1472 (9th Cir. 1992)). 60 See Brown Bag Software, 960 F. 2d at 1473-74 (relying on expert testimony in order to identify the objective points of comparison among different computer software programs); Swirsky, 376 F. 3d at 847- The Power of Knowledge. 48 (relying on expert testimony comparing the objective elements—pitch, melodies, baselines, tempo, 23 Years of Experience chords, structure, and harmonic rhythm—of musical works). 818.344.2193 tel | 818.344.9883 fax | [email protected] 61 In re Apple Sec. Litig., 886 F. 2d 1109, 1442 (9th Cir. PI 14084 1989) (citing Brown Bag Software, 960 F. 2d at 1475; Shaw v. Lindheim, 919 F. 2d 1353, 1357 (9th Cir. www.shorelinepi.com 1990)) (“[T]he extrinsic test now objectively considers whether there are substantial similarities in both ideas and expression, whereas the intrinsic test continues to 800.807.5440 measure expression subjectively.”).

Los Angeles Lawyer November 2010 41 The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

ACCIDENT ANALYSIS/RECONSTRUCTION (818) 766-9259, fax (818) 908-9301. Contact Carl Sheriff, tices, policies, in all types of lending (real estate, subprime, PE, forensic engineer. Degreed in law and engineering. business/commercial, construction, consumer/credit card), ACCIDENT RECONSTRUCTION SPECIALISTS Licensed general contractor, real estate broker, and certified banking operations/administration, trusts and investments, (Field Test Engineering Inc,) 340 Golden Shore, Suite 400, building and playground inspector. Licensed truck driver. economic analysis and valuations/damages assessment, Long Beach, CA 90802, (800) 675-7667, fax (562) 432- Consulting and expert testimony on premises liability, prod- insurance claims, coverages and bad faith, real estate bro- 2322. Also: 11440 Bernardo Court, Suite 300, San Diego, uct defects, and traffic accidents. Construction and indus- kerage, appraisal, escrow, and construction defects/dis- CA 92127; 8275 South Eastern Avenue, Suite 200, Las trial accidents. Building and OSHA code compliance. Slip, putes, and title insurance. Vegas, NV 89123; 2900 Adams Street, Riverside, CA trip, and falls. Human factors. Safety evaluation. Computer- CAPSTONE ADVISORY GROUP, LLC 92604; 7362 Remcon Circle, El Paso, TX 79912. Web site: ized analysis and exhibits. Free initial file review. www.FieldAndTestEngineering.com. Contact Robert F. 555 South Flower Street, Suite 3200, Los Angeles, CA ACCOUNTING Douglas, PE—engineering manager. Registered profes- 90071, (213) 542-7121, fax (213) 542-7102, e-mail: [email protected]. Web site: www.capstoneag sional engineer in California and Arizona, member— ADVISORS/EXPERTS @ MCS ASSOCIATES NCUTCD, I.T.F., ASTM, Transp. Research Board, ASCE, .com. Contact Michael Spindler. Capstone’s typical litiga- 18881 Von Karman, Suite 1175, Irvine, CA 92612, SAE, ATSSA, IEEE. Profile: Accident reconstruction, human tion and forensic services include expert testimony in com- (949) 263-8700, fax (949) 263-0770, e-mail: experts factors, failure analysis, traffic, and transportation engineer- plex commercial litigation, arbitration, mediation, and other @mcsassociates.com. Web site: www.mcsassociates.com. ing. Auto/truck/train/ped/bike/cycle accidents. See display dispute resolution forums, damages claims preparation and Contact Norman Katz, managing partner. Nationally ad on page 47. assessment, analysis of the relationship between events and recognized banking, finance, insurance, and real estate con- damages, construction damages analysis, project recon- CALIFORNIA TECHNOLOGY ASSOCIATES sulting group (established 1973). Experienced litigation construction, and job history analysis, internal investigations, 17410 Mayerling Street, Granada Hills, CA 91344, (800) sultants/experts include senior bankers, lenders, consul- SEC matters, purchase price disputes, critique of reports by 358-9909. Web site: www.technology-assoc.com. Contact tants, economists, accountants, insurance other experts, business fraud investigations, and third-party Dr. Ojalvo, chairman. Over 1700 cases. Our staff of PhDs underwriters/brokers. Specialties: lending customs, prac- inspections. and professors has many scientific publications and decades CORNERSTONE RESEARCH of testing and testifying experience. We handle all types vehicle issues such as crash and precrash speeds, seatbelt 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- TASAmed Has 2005, (213) 553-2500, fax (213) 553-2699, Web site: usage, airbag deployment, component failure, roadway SM design, low speed rear-end impacts, occupant and pedes- www.cornerstone.com. Contact George G. Strong, Jr., trian biomechanics, rollover, visibility issues, golf car, and low Your Medical Expert. Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, speed vehicle safety. Computer animation and simulation Carlyn Irwin or Elisabeth Browne. Cornerstone services, scene inspections, crush measurements, tire skid Research provides attorneys with expert testimony and eco- testing and calculations are also provided. Free phone con- nomic and financial analyses in all phases of commercial liti- sultation or visit our Web site for more information. gation. We work with faculty and industry experts in a distinctive partnership that combines the strengths of the WILLIAM KUNZMAN, PE business and academic worlds. Our areas of expertise 1111 Town and Country #34, Orange, CA 92868, (714) include identifying and supporting expert witnesses in intel- 973-8383, fax (714) 973-8821, e-mail: mail@traffic-enginee lectual property, antitrust, securities, entertainment, real r.com. Web site: www.traffic-engineer.com. Contact estate, financial institutions, and general business litigation. William Kunzman, PE. Traffic expert witness since 1979, FULCRUM INQUIRY both defense and plaintiff. Auto, pedestrian, bicycle, and motorcycle accidents. Largest verdict: $10,300,000 in • Outstanding local and national Experts 888 South Figueroa Street, Suite 2000, Los Angeles, CA pedestrian accident case against Los Angeles Unified in more than 1,000 healthcare categories – 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte School District. Largest settlement: $2,000,000 solo vehicle @fulcrum.com. Web site: www.fulcrum.com. Contact accident case against Caltrans. Before becoming expert wit- even hard-to-find specialties David Nolte. Our professionals are experienced CPAs, ness, employed by Los Angeles County Road Department, • Services include prompt, customized MBAs, ASAs, CFAs, affiliated professors, and industry spe- Riverside County Road Department, City of Irvine, and Fed- cialists. Our analysis and research combined with unique eral Highway Administration. Knowledge of governmental searches, referrals,resumes, and your presentation techniques have resulted in an unequaled agency procedures, design, geometrics, signs, traffic con- initial interview calls with experts record of successful court cases and client recoveries. Our trols, maintenance, and pedestrian protection barriers. Hun- expertise encompasses damages analysis, lost profit stud- dreds of cases. Undergraduate work—UCLA; graduate • 5 decades of referral experience ies, business and intangible asset valuations, appraisals, work—Yale University. fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic and MR. TRUCK ACCIDENT INVESTIGATION AND market assessments, computer forensics, electronic discov- RECONSTRUCTION ery, and analysis of computerized data. Degrees/licenses: P.O. Box 398, Brentwood, CA 94513-0398, (800) 337- CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, 4994, fax (925) 625-4995, e-mail: [email protected]. finance, economics, and related subjects. See display ad Contact William M. Jones. Accident analysis and recon- inside back cover. struction. Court-qualified expert witness regarding car vs. GLENN M. GELMAN & ASSOCIATES car, truck vs. car cases, trucking industry safety, and driver CERTIFIED PUBLIC ACCOUNTANTS AND training issues, including Power Point court presentations. 800-659-8464 BUSINESS CONSULTANTS See display ad on page 54. www.tasamed.com 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- CARL SHERIFF, PE, FORENSIC ENGINEER [email protected] 2600, fax (714) 667-2636, e-mail: [email protected]. 1 10153 ⁄2 Riverside Drive, Suite 365, Toluca Lake, CA 91602, Web site: www.gmgcpa.com. Contact Richard M. Squar.

42 Los Angeles Lawyer November 2010 Winner of Inside Public Accounting’s 2008 “Best of the Best” award given to only 25 firms across the country, Glenn M. Gelman and Associates provides these litigation DepoSums support services: expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic DEPOSITION SUMMARIES accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation. Our areas of expertise include: business interruption, loss of earnings ® Experienced ® 3-step proof-reading ® E-mailed direct to analysis, breach of contract, partnership dissolution, profits summarizers process your computer distribution, tax consequences of settlements, reconstruction of accounting records, embezzlement and fraud, contract costs, lost profits, construction claims, damage com- Los Angeles’ Finest Digesting Service putations, and malpractice cases. Our comprehensive case list is available upon request. Our practice focuses on closely held entrepreneurial firms in the following industries: FOR MORE INFORMATION: construction, real estate development, equipment leasing, 800.789.DEPO • www.deposums.biz auto parts (wholesale and retail), manufacturing, and professional services. Honored by Construction Link as the “Best Accounting Firm for the construction industry.” Glenn M. Gelman has been appointed and served as Special Master in litigation support matters and has testified over 30 times. ForensisGroup Expert Witness Services Our comprehensive case list is available upon request. See display ad on page 63. GURSEY/SCHNEIDER LLP 1888 Century Park East, Suite 900, Los Angeles, CA 90067, (310) 552-0960, fax (310) 557-3468, e-mail: rpurzycki @gursey.com. Web site: www.gursey.com. Contact Roseanna Purzycki. Forensic accounting and litigation support services in the areas of marital dissolution, civil litigation, business valuation and appraisal, goodwill, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments, insurance claims, court accounting, tracing, and entertainment industry litigation. See display ad on page 51. HARGRAVE & HARGRAVE, AN ACCOUNTANCY CORPORATION 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) 576-1090, fax (310) 576-1080, e-mail: [email protected]. Web site: www.taxwizard.com. Contact Terry M. Hargrave, CPA/ABV/CFF, 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 Education Foundation. Services include business valuations, income available for support, tracing separate property, litigation consulting, real estate litigation, Securities & Business Law mediation, fraud investigations, damage calculation, and SEC Enforcement Defense other forensic accounting work. International Business & Securities KRYCLER, ERVIN, TAUBMAN, AND WALHEIM Class & Derivative Actions 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA Insider Trading 91403, (818) 995-1040, fax (818) 995-4124. Web site: [email protected]. Contact Michael J. Krycler. Litiga- NYSE, AMEX, FINRA Disciplinary Proceedings tion support, including forensic accounting, business Broker-Dealer, Investment Company & Investment Adviser Matters appraisals, family law accounting, business and professional Liability Under Federal & State Securities Laws valuations, damages, fraud investigations, and lost earnings. Krycler, Ervin, Taubman and Walheim is a full-service Public & Private Offerings accounting firm serving the legal community for more than Internet Securities 20 years. See display ad on page 46. Securities Arbitration DIANA G. LESGART, CPA, CFE, CVA, CFF, AN Law Firm Liability ACCOUNTANCY CORP. 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3@msn .com. Contact Diana G. Lesgart, CPA, CFE, CVA, CFF. AV Rated, Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School. Specialized accounting and litigation support services in the 37 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission, areas of family law litigation, including tracing of separate Washington D.C. Published Author of Securities Regulations, including eight volume treatise. and community property assets, pension plan tracing, forensic accounting, business valuations, goodwill calculation, expert testimony, cash available for support, Moore-Mars- den calculations, fraud investigations, real estate analysis, community property balance sheet. Over 25 years of Wells Fargo Center • 333 S. Grand Avenue, Suite 1925 • Los Angeles, CA 90071 accounting experience with 20 years litigation support spe- cialization. Appointed as Section 730 accounting expert. Ms. Lesgart’s profile can be found at http://www.jurispro.com/DianaLesgartCPA. Expert is Eng- lish/Spanish bilingual. See display ad on page 49.

Los Angeles Lawyer November 2010 43 MAYER HOFFMAN MCCANN PC investigation, investigative analysis of liability, marital dissolu- APPRAISAL & VALUATION 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA tion, and tax planning and preparation. Excellent communi- BTI APPRAISAL 90025, (310) 268-2000, fax (310) 268-2001, e-mail: cators with extensive testimony experience. Prior Big Four [email protected]. Web site: www.MHM-PC.com, accountants. Specialties include accounting, breach of 605 West Olympic Boulevard, Suite 820, Los Angeles, CA www.CBIZ.com. Contact Steve Franklin. Specializes in contract, business interruption, business dissolution, con- 90015, (213) 532-3800, fax (213) 532-3807, e-mail: ben business litigation; business valuation and appraisal, marital struction defects, delays, and cost overruns, fraud, insur- @btiappraisal.com. Web site: www.btiappraisal.com. Con- dissolutions, transactional due diligence, financial recon- ance bad faith, intellectual property including trademark, tact Ben F. Tunnell III, Chairman. BTI Appraisal has been struction, fraud investigation, family limited partnerships, patent, and copyright infringement, and trade secrets, mal- providing litigation and appraisal services, both nationally commercial damage and lost profits computations and busi- practice, marital dissolution, personal injury, product liability, and internationally, since 1974 in the areas of real estate, ness interruption. Experienced expert testimony and tax real estate, tax planning and preparation, IRS audit defense, machinery and equipment, and business valuation. Well- controversy representation. tracing, unfair advertising, unfair competition, valuation of written and documented reports reduce litigation costs and businesses, and wrongful termination. See display ad on speed dispute resolution. Our work has passed the most MICHAEL D. ROSEN, CPA, PHD., ABV page 45. rigorous scrutiny of the IRS, the SEC, government con- 3780 Kilroy Airport Way, Suite 200, Long Beach, CA 90806, ZIVETZ, SCHWARTZ & SALTSMAN, CPAS demning agencies, and the state and federal courts. The (562) 256-7052, fax (562) 256-7001, e-mail mrosencpa collective experience of our nationally regarded professionals @verizon.net Contact Michael D. Rosen. We are litigation 11900 West Olympic Boulevard, Suite 650, Los Angeles, can address projects of all sizes and locations. consultants, forensic accountants, expert witnesses. Our CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web FULCRUM INQUIRY mission is to tell the financial story that underlies every busi- site: www.zsscpa.com. Contact Lester J. Schwartz, ness litigation matter, and to convey that story in a clear and CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA, 888 South Figueroa Street, Suite 2000, Los Angeles, CA concise manner to the trier of fact. Our findings allow a real- MBA, David L. Bass, CPA, David Dichner, CPA, ABV, 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte istic assessment of the case and support settlement efforts. CVA, Sandy Green, CPA. Accounting experts in forensic @fulcrum.com. Web site: www.fulcrum.com. Contact Our work is designed to render conclusive opinions and to accounting, tax issues, business valuations, and appraisals, David Nolte. Our professionals are experienced CPAs, withstand cross-examination. We specialize in Business marital dissolutions, eminent domain, insurance losses, busi- MBAs, ASAs, CFAs, affiliated professors, and industry spe- Damages—lost profits and loss in value; Personal Dam- ness interruption, goodwill, economic analysis, investigative cialists. Our analysis and research combined with unique ages—lost earnings; and Business Valuation. auditing, loss of earning, commercial damages, and lost presentation techniques have resulted in an unequaled profits. Expert witness testimony preparation, settlement record of successful court cases and client recoveries. Our SCHULZE HAYNES LOEVENGUTH AND CO. negotiations, and consultations. See display ad on expertise encompasses damages analysis, lost profit stud- 660 South Figueroa Street, Suite 1280, Los Angeles, page 59. ies, business and intangible asset valuations, appraisals, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: fraud investigations, troubled company consultation, statis- ADA/DISABILITY DISCRIMINATION [email protected]. Web site: www tics, forensic economic analysis, royalty audits, strategic and .schulzehaynes.com. Contact Karl J. Schulze, principal. HAIGHT CONSULTING market assessments, computer forensics, electronic discov- Specialties: forensic business analysis and accounting, lost ery, and analysis of computerized data. Degrees/licenses: 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) profits, economic damages, expert testimony, discovery CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, 454-2988, fax (310) 454-4516. Contact Marcia Haight, assistance, business valuations, construction claims, corpo- finance, economics, and related subjects. See display ad SPHR—CA. Human resources expert knowledgeable in rate recovery, financial analysis and modeling, major profes- inside back cover. sional organizations, and have experience across a broad both federal and California law. Twenty-five years’ corporate HARGRAVE & HARGRAVE, AN ACCOUNTANCY spectrum of industries and business issues. human resources management experience plus over 20 CORPORATION Degrees/licenses: CPA; CVA; CFE; ABV; PhD-economics. years as a Human Resources Compliance Consultant in See display ad on page 53. California. 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Services include business accounting specialists with more than 25 years of experi- Assess human resources policies and practices for sound- valuations, income available for support, tracing separate ence. The firm’s emphasis is on expert testimony, litigation ness, for comparison to prevailing practices, and for compli- property, litigation consulting, real estate litigation, media- support, forensic accounting, insurance defense, family law, ance. Evaluate employer responsiveness to complaints and tion, fraud investigations, damage calculation, and other insurance loss recover, business valuation, loss of income, effectiveness of employer investigations. Assist counsel via forensic accounting work. preliminary case analysis, discovery strategy, examination of and bad faith damage. HIGGINS, MARCUS AND LOVETT, INC. THOMAS NECHES & COMPANY LLP documents, and expert testimony. 800 South Figueroa Street, Suite 710, Los Angeles, CA HRM CONSULTING, INC. 609 South Grand Avenue, Suite 1106, Los Angeles, CA 90017, e-mail: [email protected]. Web site: www.hmlinc 90017-3848, (213) 624-8150, fax (213) 624-8152, e-mail: P.O. Box 1786, Murphys, CA 95247, (209) 728-8905, fax .com. Contact Mark C. Higgins, ASA, president. The [email protected]. Web site: www.thomasneches (209) 728-8970, e-mail: [email protected]. Web firm has 30 years of litigation support and expert testimony .com. Contact Thomas M. Neches, CPA, ABV, CVA, site: www.hrmconsulting.com. Contact Beth Brascugli experience in matters involving business valuation, eco- CFE, CFF. Accounting, financial, business valuation, and De Lima, MBA, SPHR-CA. Ms. De Lima’s experience nomic damages, intellectual property, loss of business statistical analyses to assist attorneys in litigation. Expert tes- includes working on employment and vocational rehabilita- goodwill, and lost profits. Areas of practice include business timony in state and federal courts. Cases: Antitrust, breach tion matters from both the employee and employer perspec- disputes, eminent domain, bankruptcy, and corporate and of contract, fraud, intellectual property, lost business value, tive. Her expertise is utilized in ADA/FMLA, FMLA/CFRA, marital dissolution. See display ad on page 53. wrongful termination, and sexual harassment cases. We lost profits, wrongful death, and wrongful termination. Indus- KRYCLER, ERVIN, TAUBMAN, AND WALHEIM tries: banking, construction, entertainment, insurance, man- provide litigation support, expert testimony, and investiga- ufacturing, retail, securities, and wholesale. Credentials: cer- tions, and specialize in helping companies implement strate- 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA tified public accountant/accredited in business valuation, gies to comply with the complicated realm of personnel 91403, (818) 995-1040, fax (818) 995-4124. Web site: certified valuation analyst, certified fraud examiner and certi- management regulations. Ms. De Lima is nationally certified [email protected]. Contact Michael J. Krycler. Litiga- fied in financial forensics. Education: BA (Mathematics) UC as a SPHR-CA with a state specific certificate and sat on the tion support, including forensic accounting, business San Diego, MS (Operations Research) UCLA. Teaching: International Employment Health, Safety and Security Panel. appraisals, family law accounting, business and professional Adjunct Professor, Loyola Law School. See display ad on valuations, damages, fraud investigations, and lost earnings. ANESTHESIOLOGY/PAIN MANAGEMENT page 57. Krycler, Ervin, Taubman and Walheim is a full-service accounting firm serving the legal community for more than WHITE, ZUCKERMAN, WARSAVSKY, LUNA, SHLOMO ELSPAS MD 20 years. See display ad on page 46. WOLF & HUNT 1200 North State Street, Suite 14901, Los Angeles, CA WARONZOF ASSOCIATES, INC. 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 90033, (323) 409-4597, e-mail: [email protected]. Contact 91423, (818) 981-4226, fax (818) 981-4278; 363 San Shlomo Elspas, MD. Education: MIT, Harvard, UCLA. 2250 East Imperial Highway, Suite 120, El Segundo, CA Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) Specialties: clinical assistant professor of Anesthesiology at 90245, (310) 322-7744, fax (310) 322-7755. Web site: 219-9816, fax (949) 219-9095, e-mail: [email protected]. USC-Keck School of Medicine. Board certified in anesthesi- www.waronzof.com. Contact Timothy R. Lowe, MAI, Contact Barbara Luna or Bill Wolf. Expert witness testi- ology, with fellowships in pediatric and obstetric anesthesiol- CRE. Waronzof provides real estate and land use litigation mony for complex litigation involving damage analyses of ogy and pain management. Regional, nerve block, hypoten- support services including economic damages, lost profits, lost profits, unjust enrichment, reasonable royalties, lost sive, transfusion-free, and safety in anesthesia. Consultation financial feasibility, lease dispute, property value, enterprise earnings, lost value of business, forensic accounting, fraud and expert witness for plaintiff and defense. value, partnership interest and closely-held share value, fair

44 Los Angeles Lawyer November 2010 WZ_P4 6/12/06 1:41 PM Page 1

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

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Web site: www testimony. .BenchmarkInvestigations.com. Contact Jim Zimmer, BANKING Expert witness CPI. National agency. Professional investigations with emphasis on accuracy, detail, and expedience. Asset/finan- ADVISORS/EXPERTS @ MCS ASSOCIATES Forensic accountants cial searches; background investigation; DMV searches; domestic/marital cases; due diligence investigations; merg- 18881 Von Karman, Suite 1175, Irvine, CA 92612, Family law matters ers/acquisitions specialist; process service; (949) 263-8700, fax (949) 263-0770, e-mail: experts surveillance/photograph; witness location/interviews; work- @mcsassociates.com. Web site: www.mcsassociates.com. Business valuations place investigations—theft, harassment, and drugs. Bilingual Contact Norman Katz, managing partner. Nationally agents. Fully insured. Correspondents nationwide. CA Pri- recognized banking, finance, insurance, and real estate con- Loss of earnings vate Investigator license # PI 12651. See display ad on sulting group (established 1973). Experienced litigation con- page 56. sultants/experts include senior bankers, lenders, consul- Damages tants, economists, accountants, insurance ATTORNEY FEES underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, subprime, LAW OFFICES OF PHILLIP FELDMAN When you need more than just business/commercial, construction, consumer/credit card), 14401 Sylvan Street, Suite 208, Van Nuys, CA 91401, (818) banking operations/administration, trusts and investments, numbers... you can count on us... 986-9890, fax (818) 986-1757, e-mail: LegMalpExpert@aol economic analysis and valuations/damages assessment, .com; [email protected]; PreventativeLaw@aol insurance claims, coverages and bad faith, real estate bro- Contact Michael Krycler .com. Web sites: www.LegalMalpracticeExperts.com; kerage, appraisal, escrow, and construction defects/dis- PHONE (818) 995-1040 www.LegalEthicsExperts.com. Contact Phillip Feldman. putes, and title insurance. B.S. Accounting, former accountant CPA firm and industry. AX (818) 995-4124 F M.B.A.—USC. Fee dispute arbitrator 31 years. Judge Pro BANKRUPTCY [email protected] E-MAIL Tem—25 years. Fee dispute litigator and expert witness— FULCRUM INQUIRY VISIT US @ www.KETW.COM 42 years. Certified Specialist Legal Malpractice ABPLA/ABA. Consulting and testifying regarding attorney fees—30 years. 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte 15303 VENTURA BOULEVARD, SUITE 1040 Litigating fee disputes—42 years. @fulcrum.com. Web site: www.fulcrum.com. Contact SHERMAN OAKS, CALIFORNIA 91403 AUDIO/VIDEO FORENSIC David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry spe- AUDIO ENGINEERING ASSOCIATES cialists. Our analysis and research combined with unique 1029 North Allen Avenue, Pasadena, CA 91104, (626) 798- presentation techniques have resulted in an unequaled 9128, fax (626) 798-2378, e-mail: [email protected]. Web record of successful court cases and client recoveries. Our site: www.AEAForensics.com. Contact Wes Dooley. expertise encompasses damages analysis, lost profit stud- Enhancement and authentication fixed price intelligibility ies, business and intangible asset valuations, appraisals, evaluations. Audio and video evidence analysis. fraud investigations, troubled company consultation, statis- KGR VIDEO IMAGE AND AUDIO EVALUATION tics, forensic economic analysis, royalty audits, strategic and LA PANEL OF EXPERT WITNESSES market assessments, computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: 4578 Delancy Drive, Yorba Linda, CA 92886, (714) 926- CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, 0606, fax (714) 996-1033, e-mail: [email protected] finance, economics, and related subjects. See display ad or [email protected]. Web site: www.kgrproductions inside back cover. .com. Contact Ron Guzek. Since 1995, I have worked extracting usable information from poor quality video/audio BANKRUPTCY/TAX and provide clear presentations of these findings. My history includes expert testimony, defense, prosecution, and inves- ADVISORS/EXPERTS @ MCS ASSOCIATES tigative work with various L.A. Alternate Pub. Def., LAPD, 18881 Von Karman, Suite 1175, Irvine, CA 92612, FBI, OCFD, Tiffany and Co., B of A, and others. Measure- (949) 263-8700, fax (949) 263-0770, e-mail: experts ments, ratios, characteristics, photogammetry evaluation @mcsassociates.com. Web site: www.mcsassociates.com. and enhancement are used to establish similarities and dif- Contact Norman Katz, managing partner. Nationally ferences in image details. Very specific attention is given to recognized banking, finance, insurance, and real estate con- the details of every case. See display ad on page 53. sulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consul- AUTOMOTIVE tants, economists, accountants, insurance JOHNSON FORD, INC. underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, subprime, 1155 Auto Mall Drive, Lancaster, CA 93534, (661) 949- business/commercial, construction, consumer/credit card), 3586, ext 200, fax (661) 949-8803, e-mail: flyingmj1@aol banking operations/administration, trusts and investments, .com. Web site: www.auford.com. Contact Michael John- economic analysis and valuations/damages assessment, son. 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46 Los Angeles Lawyer November 2010 348-1133, fax (818) 348-4484, e-mail: kennethsolomon @mac.com. Web site: www.irsa.us. Specialized staff, broad range of consulting and expert testimony, 38 years of courtroom experience. Accident reconstruction, biomechanics, human factors, safety, accident prevention, adequacy of Life Care warnings, computer animation and simulations, construction defect, criminal defense, criminal prosecution, premises, Planning product integrity, product liability, product testing, warnings, and lost income calculations. Auto, bicycle, bus, chair, ele- • LIFE CARE PLANS Comprehensive (Trial) – Mini (Mediation/ vator, escalator, forklift, gate, ladder, machinery, motorcycle, Settlement Conference) – Critique press, recreational equipment, rollercoaster, slip/trip and fall, • EXPERT TESTIMONY Trial – Arbitration – Mediation/Settlement stairs, swimming pool, and truck. Litigation and claims; defense/plaintiff; educational seminars; and mediation and JAN ROUGHAN, RN • VIDEO SERVICE Day in Life – Mediation/Settlement Documentary arbitration services. • MEDICAL RECORDS Review – Chronology www.linc.biz BUSINESS • IME Attendance Report/Critique ROBERT C. ROSEN 114 W. COLORADO BLVD., MONROVIA, CA 91016 | 626.303.6333 EXT. 16 OR 17 Wells Fargo Center, 333 South Grand Avenue, Suite 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 Matthew Lankenau securities law enforcement, securities arbitration, and inter- 213-996-2549 national securities, insider trading, NYSE, AMEX, NASD disciplinary proceedings, broker-dealer, investment company [email protected] and investment adviser matters, liability under federal and state securities laws, public and private offerings, Internet URS is the nation’s largest engineering, consulting and construction securities, and law firm liability. AV rated. Former chair, services firm. URS specializes in the resolution of construction disputes. LACBA Business and Corporations Law Section; LLM, Har- vard Law School. More than 37 years practicing securities Dispute Resolution & Forensic Analysis Technical Expertise law, 12 years with the U.S. Securities and Exchange Com- Design/Construction Claims Architecture mission, Washington, DC. Published author/editor of securi- Environmental Claims Engineering ties regulations, including multivolume treatises. See dis- Bid/Cost/Damage Analysis Scheduling play ad on page 43. Construction Defect Analysis Construction Management BUSINESS APPRAISAL/VALUATION Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing Expert Witness Testimony Environmental ADVISORS/EXPERTS @ MCS ASSOCIATES Insurance/Bond Claims Geotechnical 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Web site: www.mcsassociates.com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and real estate consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance. BRIAN LEWIS & COMPANY 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268, e-mail: brian @brianlewis-cpa.com. Contact Brian Lewis, CPA, CVA. Forensic accounting; business valuations; cash spendable reports; estate, trust, and income tax services. COHEN, MISKEI & MOWREY LLP 5700 Canoga Avenue, Suite 300, Woodland Hills, CA 91367, (818) 986-5070, fax (818) 986-5034, e-mail: [email protected]. Web site: www.cmmcpas.com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 49. CORNERSTONE RESEARCH 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- 2005, (213) 553-2500, fax (213) 553-2699, Web site: www .cornerstone.com. Contact George G. Strong, Jr., Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, Carlyn Irwin or Elisabeth Browne. Cornerstone Research provides attorneys with expert testimony and economic and

Los Angeles Lawyer November 2010 47 financial analyses in all phases of commercial litigation. We [email protected]. Web site: www.schulze- EPA, OSHA, DOT, propane, natural gas, hydrogen, flamma- work with faculty and industry experts in a distinctive part- haynes.com. Contact Karl J. Schulze, principal. Special- ble liquids, hazardous chemicals, aerosols (hairspray, spray nership that combines the strengths of the business and ties: forensic business analysis and accounting, lost profits, paint, refrigerants), DOT certified (hazardous materials ship- academic worlds. Our areas of expertise include identifying economic damages, expert testimony, discovery assistance, ment), certified fire and explosion investigator, OSHA and supporting expert witnesses in intellectual property, business valuations, construction claims, corporate recov- process hazard analysis team leader, PhD Physical Chem- antitrust, securities, entertainment, real estate, financial insti- ery, financial analysis and modeling, major professional istry. Extensive experience in metallurgy, corrosion, and fail- tutions, and general business litigation. organizations, and have experience across a broad spec- ure analysis. trum of industries and business issues. Degrees/licenses: FULCRUM INQUIRY CIVIL LITIGATION CPA; CVA; CFE; ABV; PhD-economics. See display ad on 888 South Figueroa Street, Suite 2000, Los Angeles, CA page 53. GURSEY/SCHNEIDER LLP 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte @fulcrum.com. Web site: www.fulcrum.com. Contact THOMAS NECHES & COMPANY LLP 1888 Century Park East, Suite 900, Los Angeles, CA 90067, David Nolte. Our professionals are experienced CPAs, 609 South Grand Avenue, Suite 1106, Los Angeles, CA (310) 552-0960, fax (310) 557-3468. 20355 Hawthorne MBAs, ASAs, CFAs, affiliated professors, and industry spe- 90017-3848, (213) 624-8150, fax (213) 624-8152, e-mail: Boulevard, First Floor, Torrance, CA 90503, (310) 370-6122, cialists. Our analysis and research combined with unique [email protected]. Web site: www.thomasneches fax (310) 370-6188, e-mail: [email protected] or swasser- presentation techniques have resulted in an unequaled .com. Contact Thomas M. Neches, CPA, ABV, CVA, [email protected]. Web site: www.gursey.com. Contact record of successful court cases and client recoveries. Our CFE, CFF. Accounting, financial, business valuation, and Robert Watts or Stephan Wasserman. Gursey/Schnei- expertise encompasses damages analysis, lost profit stud- statistical analyses to assist attorneys in litigation. Expert tes- der specializes in forensic accounting and litigation support ies, business and intangible asset valuations, appraisals, timony in state and federal courts. Cases: Antitrust, breach services in the areas of civil litigation, business disputes, fraud investigations, troubled company consultation, statis- of contract, fraud, intellectual property, lost business value, bankruptcy, damage and cost-profit insurance claims, court tics, forensic economic analysis, royalty audits, strategic and lost profits, wrongful death, and wrongful termination. Indus- accountings, fraud investigations, accounting malpractice, market assessments, computer forensics, electronic discov- tries: banking, construction, entertainment, insurance, man- intellectual property, construction, government accounting ery, and analysis of computerized data. Degrees/licenses: ufacturing, retail, securities, and wholesale. Credentials: cer- and entertainment litigation. Gursey/Schneider has over 30 CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, tified public accountant/accredited in business valuation, years of experience as expert witnesses in accounting finance, economics, and related subjects. See display ad certified valuation analyst, certified fraud examiner and certi- related matters. See display ad on page 51. inside back cover. fied in financial forensics. Education: BA (Mathematics) UC COMPUTER EVIDENCE DISCOVERY GURSEY/SCHNEIDER LLP San Diego, MS (Operations Research) UCLA. Teaching: Adjunct Professor, Loyola Law School. See display ad on ROBERT J. ABEND, PE 1888 Century Park East, Suite 900, Los Angeles, CA 90067, page 57. (310) 552-0960, fax (310) 557-3468, e-mail: rwatts@gursey 1658 Laraine Circle, San Pedro, CA 90732, (310) 346-6543, .com or [email protected]. Web site: www.gursey WHITE, ZUCKERMAN, WARSAVSKY, LUNA, e-mail: [email protected] Web site: www.linkline.com/ .com. Contact Robert Watts or Stephan Wasserman. WOLF & HUNT personal/rabend. Specialties: Electrical engineering, com- Gursey/Schneider is an accounting firm specializing in foren- 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA puter forensics, data recovery, electronic discovery, com- sic accounting, litigation support services, business valua- 91423, (818) 981-4226, fax (818) 981-4278; 363 San puter engineering, software, electronics, microelectronics, tion, and appraisal services for a variety of purposes includ- Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) electronics manufacturing, printed circuit boards, intellectual ing marital dissolution, gift and estate planning, eminent 219-9816, fax (949) 219-9095, e-mail: [email protected]. property, and trade secret litigation. Technical support dur- domain, goodwill loss, business disputes, malpractice, tax Contact Barbara Luna or Bill Wolf. Expert witness testi- ing case preparation. Practiced at court and deposition testi- matters, bankruptcy, damage and cost-profit assessments, mony for complex litigation involving damage analyses of mony. Thirty-five years of experience in the electronics and insurance claims, and entertainment industry litigation. lost profits, unjust enrichment, reasonable royalties, lost computer industry. Fifteen years as a forensic engineering Gursey/Schneider has over 30 years experience as expert earnings, lost value of business, forensic accounting, fraud consultant. References provided on request. witnesses in litigation support. See display ad on page 51. investigation, investigative analysis of liability, marital dissolu- Degrees/licenses: BSEE, MS, Registered Professional Engi- neer, Computer Forensics Examiner, FCC General HAYNIE & COMPANY, CPAS tion, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four Radiotelephone license. 4910 Campus Drive, Newport Beach, CA 92660, (949) 724- accountants. Specialties include accounting, breach of con- COSGROVE COMPUTER SYSTEMS, INC. 1880, fax (949) 724-1889, e-mail: sgabrielson@hayniecpa tract, business interruption, business dissolution, construc- 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823- .com. Web site: www.hayniecpa.com. Contact Steven C. tion defects, delays, and cost overruns, fraud, insurance bad 9448, fax (310) 821-4021, e-mail: [email protected]. Gabrielson. Consulting and expert witness testimony in a faith, intellectual property including trademark, patent, and Web site: www.cosgrovecomputer.com. Contact John variety of practice areas: commercial damages, ownership copyright infringement, and trade secrets, malpractice, mari- Cosgrove. John Cosgrove, PE, has over 45 years’ experi- disputes, economic analysis, business valuation, lost profits tal dissolution, personal injury, product liability, real estate, tax ence in computer systems and has been a self-employed, analysis, fraud/forensic investigations, taxation, personal planning and preparation, IRS audit defense, tracing, unfair consulting software engineer since 1970. He was a part- injury, wrongful termination, professional liability, and expert advertising, unfair competition, valuation of businesses, and time lecturer in the UCLA School of Engineering and LMU cross examination. Extensive public speaking background wrongful termination. See display ad on page 45. assists in courtroom presentations. graduate schools. He provided an invited article, “Software ZIVETZ, SCHWARTZ & SALTSMAN, CPAS Engineering and Litigation,” for the Encyclopedia of Software HIGGINS, MARCUS AND LOVETT, INC. 11900 West Olympic Boulevard, Suite 650, Los Angeles, Engineering. He is a Certified Forensic Consultant (CFC), 800 South Figueroa Street, Suite 710, Los Angeles, CA CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web holds the CDP, is a member of ACM, ACFEI, FEWA, a life 90017, e-mail: [email protected]. Web site: www.hmlinc site: www.zsscpa.com. Contact Lester J. Schwartz, senior member of IEEE Computer Society, NSPE, a Fellow .com. Contact Mark C. Higgins, ASA, president. The CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA, of the National Academy of Forensic Engineers (an affiliate of firm has 30 years of litigation support and expert testimony MBA, David L. Bass, CPA, David Dichner, CPA, ABV, NSPE), and a professional engineer in California. Formal experience in matters involving business valuation, eco- CVA, Sandy Green, CPA. Accounting experts in forensic education includes a BSEE from Loyola University and a nomic damages, intellectual property, loss of business accounting, tax issues, business valuations, and appraisals, master of engineering from UCLA. goodwill, and lost profits. Areas of practice include business marital dissolutions, eminent domain, insurance losses, busi- COMPUTER FORENSICS disputes, eminent domain, bankruptcy, and corporate and ness interruption, goodwill, economic analysis, investigative marital dissolution. See display ad on page 53. auditing, loss of earning, commercial damages, and lost ROBERT J. ABEND, PE MAYER HOFFMAN MCCANN PC profits. Expert witness testimony preparation, settlement 1658 Laraine Circle, San Pedro, CA 90732, (310) 346-6543, 10474 Santa Monica Boulevard, Suite 200, Los Angeles, negotiations, and consultations. See display ad on e-mail: [email protected] Web site: www.linkline.com CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: page 59. /personal/rabend. Specialties: Electrical engineering, com- [email protected]. Web site: www.MHM-PC.com, CHEMISTRY puter forensics, data recovery, electronic discovery, com- www.CBIZ.com. Contact Steve Franklin. Specializes in puter engineering, software, electronics, microelectronics, business litigation; business valuation and appraisal, marital CHEMICAL ACCIDENT RECONSTRUCTION electronics manufacturing, printed circuit boards, intellectual dissolutions, transactional due diligence, financial recon- SERVICES, INC. property, and trade secret litigation. Technical support dur- struction, fraud investigation, family limited partnerships, 9121 East Tanque Verde Road, Suite 105, Tucson, AZ ing case preparation. Practiced at court and deposition testi- commercial damage and lost profits computations and busi- 85749, (800) 645-3369, e-mail: [email protected]. mony. Thirty-five years of experience in the electronics and ness interruption. Experienced expert testimony and tax Web site: www.chemaxx.com. Contact Dr. Michael Fox. computer industry. Fifteen years as a forensic engineering controversy representation. Comprehensive chemical accident investigation—specializ- consultant. References provided on request. Degrees/ SCHULZE HAYNES LOEVENGUTH AND CO. ing in complex industrial chemical accidents and chemical- licenses: BSEE, MS, Registered Professional Engineer, related consumer product injuries, chemical fires and explo- Computer Forensics Examiner, FCC General Radiotele- 660 South Figueroa Street, Suite 1280, Los Angeles, CA sions, chemical labeling, chemical packaging, handling and phone license. 90017, (213) 627-8280, fax (213) 627-8301, e-mail: shipping, burns, warnings, labels, MSDSs, disposal, safety,

48 Los Angeles Lawyer November 2010 DATACHASERS, INC. P.O. Box 2861, Riverside, CA 92516-2861, (877) DataExam, (877) 328-2392, (951) 780-7892, e-mail: [email protected]. Web site: www.DataChasers .com. E-Discovery: Full e-discovery services…you give us the mountain, we give you the mole hill: Tiff production, de-duplication, redaction, bates stamped data, and elec- TM tronically stored information (ESI) production. Computer CARPE DATUM ……SEIZE THE DATA forensic: full forensic computer lab. Recovering deleted text files (documents), graphics (pictures), date codes on COMPUTER FORENSICS E-DISCOVERY all files, e-mail, and tracing Internet activity. Intellectual • Recover Critical Data • De-Duplication property cases; family law; employment law; probate reso- • E-Mail Recovery • Redaction lution; asset verification; criminal law (prosecution or • Dates on All Files • Bates Stamped Data defense); etc. Litigation support, trial preparation, experi- • Websites Visited • Electronic (ESI) Production enced expert witnesses, and professional courtroom dis- plays. See display ad on page 49. FULCRUM INQUIRY 951.780.7892 | DataChasers.com 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte @fulcrum.com. Web site: www.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry spe- DIANA G. LESGART, CPA, CFE, CVA, CFF cialists. Our analysis and research combined with unique An Accountancy Corporation 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, LITIGATION CONSULTING fraud investigations, troubled company consultation, statis- Certified Certified Certified Certified in tics, forensic economic analysis, royalty audits, strategic and Public Fraud Valuation Financial market assessments, computer forensics, electronic discov- Accountant Examiner Analyst Forensics ery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, finance, economics, and related subjects. See display ad TEL 818.886.7140 • FAX 818.886.7146 • E-MAIL [email protected] inside back cover. 22024 LASSEN STREET, SUITE 106, CHATSWORTH, CA 91311 SETEC INVESTIGATIONS www.jurispro.com/DianaLesgartCPA 8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90036, (800) 748-5440, fax (323) 939-5481, e-mail: tstefan @setecinvestigations.com. Web site: www.setecinvestigations.com. Contact Todd Stefan. Setec Investigations offers unparalleled expertise in computer forensics and enterprise investigations providing personalized, case-specific forensic analysis and litigation support services for law firms and corporations. Setec Investigations possesses the necessary combination of technical expertise, understanding of the legal system, and specialized tools and processes enabling the discovery, collection, investigation, and production of electronic information for investigating and handling computer-related crimes or misuse. Our expertise includes computer forensics, electronic discovery, litigation support, and expert witness testimony. COMPUTERS/INFORMATION SCIENCES

ROBERT J. ABEND, PE 1658 Laraine Circle, San Pedro, CA 90732, (310) 346-6543, e-mail: [email protected] Web site: www.linkline.com /personal/rabend. Specialties: Electrical engineering, computer forensics, data recovery, electronic discovery, computer engineering, software, electronics, microelectronics, electronics manufacturing, printed circuit boards, intellectual property, and trade secret litigation. 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, Registered Professional Engineer, Computer Forensics Examiner, FCC General Radiotele- phone license. COSGROVE COMPUTER SYSTEMS, INC. 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823- 9448, fax (310) 821-4021, e-mail: [email protected]. 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 schools. He provided an invited article, “Software

Los Angeles Lawyer November 2010 49 Engineering and Litigation,” for the Encyclopedia of Software company, providing expert court witnesses, consultants and analysis, opinion, testimony, and claim preparation assis- Engineering. He is a Certified Forensic Consultant (CFC), litigation support specialists to law firms, private-practice tance services regarding construction defect, contract dis- holds the CDP, is a member of ACM, ACFEI, FEWA, a life attorneys, and insurance professionals and other firms since pute, personal injury, warranty, etc. Nolta is an impressive senior member of IEEE Computer Society, NSPE, a Fellow 1991! Our experts have been retained in over 10,000 cases construction expert, detailed analyst, communicator, and of the National Academy of Forensic Engineers (an affiliate of nationwide. Our highly experienced staff will connect you presenter. NSPE), and a professional engineer in California. Formal with top engineering consultants, medical expert witnesses, URS education includes a BSEE from Loyola University and a forensic accountants, construction expert witnesses, securi- master of engineering from UCLA. ties specialists, and others representing hundreds of techni- 915 Wilshire Boulevard, Suite 800, Los Angeles, CA 90017, cal and scientific disciplines. Thousands have gained the (213) 996-2549, fax (213) 996-2521, e-mail: matthew-lankenau CONSTRUCTION TECHNICAL ADVANTAGE and the COMPETITIVE EDGE in @urscorp.com. Expert witness for entitlement, causation damages on design, construction, and geotechnical envi- ARCADIS their cases. Referrals and searches are free. Call us now at (800) 555-5422 for your free initial telephone consultations ronmental disputes. Experienced in all types of construction Construction Claims Analysis, ARCADIS, 445 South with our experts. See display ad on page 43. projects. See display ad on page 47. Figueroa Street, Suite 3650, Los Angeles, CA 90071, (213) 486-9884, fax (213) 486-9894, e-mail: william.broz GLENN M. GELMAN & ASSOCIATES CONSTRUCTION DEFECT CERTIFIED PUBLIC ACCOUNTANTS AND @arcadis-us.com. Web site: www.arcadis-us.com. Contact M.A. CALABRESE ASSOCIATES William Broz, P.E., LEED AP. ARCADIS’ PMCM division is BUSINESS CONSULTANTS P.O. Box 50534, Pasadena, CA 91115, (626) 825-5444, fax an industry leader in the analysis of construction claims and 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- (909) 267-9670, e-mail: [email protected]. Web site: specializes in the prevention, investigation, evaluation and 2600, fax (714) 667-2636, e-mail: [email protected]. www.macalabreseassociates.com. Contact Michael Cal- resolution of construction disputes. Our firm offers a full Web site: www.gmgcpa.com. Contact Richard M. Squar. abrese. Mr. Calabrese is a hands-on California licensed range of services including litigation support, expert testi- Exclusive LA and Orange County representative for CICPAC general contractor who has been in the construction field for mony, schedule analysis, change order evaluation, (Construction Industry CPA/Consultants Association) This is over 30 years. Over the past 14 years, he has shifted his delay/impact analysis, discovery/deposition assistance, a nationwide network of CPA firms specifically selected for focus and expertise onto developing his consulting skills in cause-effect-impact analysis, contractor financial audits, their experience in and commitment to serving the construc- construction forensics. Among his specialty areas is tracing merit analysis, document database development/manage- tion industry. We are one of only six firms in all of California the cause and origin of water intrusion resulting in mold ment, and performance audits. that are members of this prestigious organization. We pro- growth and collateral damage, personal injury resulting from vide these litigation support services: expert witness testi- CAPSTONE ADVISORY GROUP, LLC faulty construction components, job site safety, standards of mony, strategy development, document discovery, deposi- 555 South Flower Street, Suite 3200, Los Angeles, care applied, contractor professional diligence, contractor tion assistance, computation of damages, arbitration CA 90071, (213) 542-7121, fax (213) 542-7102, e-mail: license laws, earthquake repair and cost analyses, cost esti- consulting, forensic accounting, investigative auditing, rebut- [email protected]. Web site: www.capstoneag mates for building repairs and remodeling, cost compar- tal testimony, fiduciary accountings, and trial exhibit prepara- .com. Contact Michael Spindler. Capstone’s typical litiga- isons and analyses, property damage assessment and tion. Our areas of expertise include: business interruption, tion and forensic services include expert testimony in com- indoor air quality surveys and inspections. See display ad loss of earnings analysis, breach of contract, partnership plex commercial litigation, arbitration, mediation, and other on page 52. dissolution, profits distribution, tax consequences of settle- dispute resolution forums, damages claims preparation and ments, reconstruction of accounting records, embezzlement CONSULTING assessment, analysis of the relationship between events and and fraud, contract costs, lost profits, construction claims, damages, construction damages analysis, project recon- and damage computations cases. Chosen by publishers of PLUMBING INSPECTION PIPE EVALUATION struction, and job history analysis, internal investigations, Accounting Today as one of 2008 “Best Accounting Firms SERVICES (PIPES) SEC matters, purchase price disputes, critique of reports by to Work For.” Honored by Construction Link as the “Best 43141 Business Center Parkway, Suite 201, Lancaster, CA other experts, business fraud investigations, and third-party Accounting Firm for the construction industry.” Glenn M. 93535, (661) 949-8811, fax (661) 940-7318. Contact inspections. Gelman has been appointed and served as Special Master Arnold A. Rodio. Specialties include evaluation of plumbing COOK CONSTRUCTION COMPANY in litigation support matters and has testified over 30 times. systems and installation in housing, apartment, condo- 7131 Owensmouth Avenue, Canoga Park, CA 91303, (818) Our comprehensive case list is available upon request. See minium, and commercial. Expert on uniform plumbing codes 438-4535, fax (818) 595-0028, e-mail: scook16121@aol display ad on page 63. and installation standards. Thirty-two years of experience, .com. Contact Stephen M. Cook. Specialties: Lawsuit KGA, INC. 8,000+ residential units and assorted commercial projects. preparation, residential construction, single and multifamily, Active plumbing contractor. Call for CV. 1409 Glenneyre Street, Suite A, Laguna Beach, CA 92651, hillsides, foundations, concrete floors, retaining walls, stairs, (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg@kgainc CONTRACTORS LICENSING (CSLB) excavation, waterproofing, water damages, roofing, carpen- .com. Web site: www.kgainc.com. Contact Kurt Grosz. try/rough framing, tile, stone, materials/costs, and building Construction and Environmental Consultants since 1991. DAVID KALB codes. Vibration trespass, expert witness, creditable, strong, Licensed engineers and contractors. ICC building, plumbing, 1225 8th Street, Suite 580, Sacramento, CA 95814, (866) concise testimony in mediation, arbitration involving con- mechanical, concrete and accessibility inspectors. Certified 443-0657, fax (916) 443-1908, e-mail: david@cutredtape struction defect for insurance companies and attorneys, professional estimator. California EPA environmental asses- .com. Web site: www.CutRedTape.com. Contact David at consulting services for construction, document preparation, sors. Trial expert, arbitrator, and insurance appraiser. Capitol Services Inc. Declarations and expert testimony construction material lists, costs, building codes analysis, regarding B&P code 7031, substantial compliance, classifi- site inspections, and common construction industry stan- MATHENY SEARS LINKERT & JAIME LLP cation determination, contractor license requirements for a dards of practice and its relationship with the California P.O. Box 13711, Sacramento, CA 95853, 4711, (916) construction project, plus CSLB policies, rules and regula- Building Codes. See display ad on page 55. 978-3434, fax (916) 978-3430, e-mail: rberrigan tions. Based in Sacramento, David has been helping DONLEY CONSTRUCTION CONSULTANTS @mathenysears.com. Web site: www.mathenysears.com. lawyers, contractors, and the construction industry since Contact Robert Berrigan. Specialties: Contractor licens- 1099 D Street, San Rafael, CA 94901, (415) 456-9242, fax 1982. Author, What Every Contractor Should Know: ing issues; proper license class to perform work; B & P sec- (415) 456-9365, e-mail: [email protected]. Web site: Answers to Real World Licensing Questions in CA, NV and tion 7031 issues. Contractor State License Board (CSLB) www.donleycc.com. John Donley. Litigation support ser- AZ. David’s construction industry column, Kalb’s Capitol investigations and disciplinary proceedings; obtaining vices; technical analysis and consulting, expert witness testi- Connection, appears regularly in over 30 industry publica- licenses or documents from CSLB. Also violations of sublet- mony, claims management in complex litigation, forensic tions. ting and subcontracting Fair Practice Act. Expert witness at accounting and architecture. Document management sys- trial/arbitration. Degrees/licenses: BA; JD; Commercial Pilot; COPYRIGHT tems. Construction claims expertise: construction defects, SEL; MEL. remediation scope and cost, costs and change orders, such A PHOTOGRAPHY EXPERT WITNESS NOLTA CONSULTING as unforeseen conditions claims, delays and productivity, PO Box 6339, Altadena, CA 91003, (626) 808-0000, e-mail: labor inefficiency, total cost claims, contract termination 6115 Syracuse Lane, San Diego, CA 92122, (858) 232- [email protected]. Web site: www.photographyexpertwitness claims, real estate claims, leasehold and disclosure claims, 9299, e-mail: [email protected]. Contact L. .com. Contact Professor Jeff Sedlik. The leading consul- site injury claims, and construction accidents. Fredrick C. (Fred) Nolta. California licensed general engi- tant and testifying forensic expert witness on all issues FORENSISGROUP, INC neering, general building, and concrete contractor with 30+ related to photography: copyright, licensing, contracts, busi- EXPERT WITNESS SERVICES years of continuous experience. Expertise covers all aspects ness practices, industry standards, stock photography, including contracts, estimates, schedules, submittals/shops, 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA model releases, rights of privacy/publicity, evaluation of lost cost control, quality control, change orders, claims and war- 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- or damaged photographs and film, evaluation of photogra- rantees. Product type experience in office, retail, residential, 1950, e-mail: [email protected]. Web site: phy assets, technical matters, forensic digital analysis, foren- multifamily high-rise, healthcare, Indian gaming, hospitality, www.forensisgroup.com. Contact Mercy T. Steenwyk. sic photography, and litigation support. education, parking, tilt-up and high-rise concrete, power ForensisGroup is an expert witness services and consulting generation, waste treatment, site development, Forensic

50 Los Angeles Lawyer November 2010 CORPORATE INVESTIGATIONS 91423, (818) 981-4226, fax (818) 981-4278; 363 San lab, and San Diego County District Attorney’s office. Cur- Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) rently in private, criminal, and civil practice. CAPSTONE ADVISORY GROUP, LLC 219-9816, fax (949) 219-9095, e-mail: [email protected]. DOGS 555 South Flower Street, Suite 3200, Los Angeles, CA Contact Barbara Luna or Bill Wolf. Expert witness testi- 90071, (213) 542-7121, fax (213) 542-7102, e-mail: mony for complex litigation involving damage analyses of JILL KESSLER [email protected]. Web site: www.capstoneag lost profits, unjust enrichment, reasonable royalties, lost 341 North Grenola Street, Pacific Palisades, CA 90272, .com. Contact Michael Spindler. Capstone’s typical litiga- earnings, lost value of business, forensic accounting, fraud (310) 573-9615, fax (310) 573-1304, e-mail: jillkessler tion and forensic services include expert testimony in com- investigation, investigative analysis of liability, marital dissolu- @mac.com. Web site: www.jillkessler.com. Opinion, consul- plex commercial litigation, arbitration, mediation, and other tion, and tax planning and preparation. Excellent communi- tation, reports, evaluations in dog bites, aggression, behav- dispute resolution forums, damages claims preparation and cators with extensive testimony experience. Prior Big Four iors, training, showing, breed tendencies, and rescued dogs. assessment, analysis of the relationship between events and accountants. Specialties include accounting, breach of con- Specializing in Rottweilers and pit-bull type dogs. See dis- damages, construction damages analysis, project recon- tract, business interruption, business dissolution, construc- play ad on page 59. struction, and job history analysis, internal investigations, tion defects, delays, and cost overruns, fraud, insurance bad SEC matters, purchase price disputes, critique of reports by faith, intellectual property including trademark, patent, and ECONOMIC ANALYSIS other experts, business fraud investigations, and third-party copyright infringement, and trade secrets, malpractice, mari- inspections. tal dissolution, personal injury, product liability, real estate, MAYER HOFFMAN MCCANN PC FULCRUM INQUIRY tax planning and preparation, IRS audit defense, tracing, 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA unfair advertising, unfair competition, valuation of busi- 90025, (310) 268-2000, fax (310) 268-2001, e-mail: 888 South Figueroa Street, Suite 2000, Los Angeles, CA nesses, and wrongful termination. 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Los Angeles Lawyer November 2010 51 Specialties: lending customs, practices, policies, in all types clients an edge. We provide the quality and depth tradition- I EVALUATION of lending (real estate, subprime, business/commercial, ally associated with Big Four firms with the personal atten- construction, consumer/credit card), banking tion and fee structure of a local firm. We are recognized I TESTING operations/administration, trusts and investments, eco- throughout southern California for the effectiveness of our nomic analysis and valuations/damages assessment, insur- work. Areas of expertise include: business interruption, loss I ance claims, coverages and bad faith, real estate broker- of earnings analysis, breach of contract, partnership dissolu- TREATMENT age, appraisal, escrow, and construction defects/disputes, tion, profits distribution, tax consequences of settlements, Neurology and Electromyography and title insurance. reconstruction of accounting records, embezzlement and CAPSTONE ADVISORY GROUP, LLC fraud, contract costs, lost profits, construction claims, and Neurotoxicology damage computations cases. Selected by Inside Public 555 South Flower Street, Suite 3200, Los Angeles, CA Occupational/Environmental Accounting as recipient of 2008 “Best of the Best” award 90071, (213) 542-7121, fax (213) 542-7102, e-mail: given to only 25 firms across the country. Our practice Medicine [email protected]. Web site: www.capstoneag focuses on closely held entrepreneurial firms in the following .com. Contact Michael Spindler. Capstone’s typical liti- industries: construction, real estate development, equip- gation and forensic services include expert testimony in TEL 415.381.3133 / FAX 415.381.3131 ment leasing, auto parts (wholesale and retail), manufactur- complex commercial litigation, arbitration, mediation, and ing, and professional services. Glenn M. Gelman has been E-MAIL [email protected] other dispute resolution forums, damages claims prepara- www.neoma.com appointed and served as Special Master in litigation support tion and assessment, analysis of the relationship between matters and has testified over 30 times. Our comprehensive events and damages, construction damages analysis, pro- case list is available upon request. See display ad on ject reconstruction, and job history analysis, internal investi- page 63. San Francisco gations, SEC matters, purchase price disputes, critique of HIGGINS, MARCUS & LOVETT, INC. Sacramento reports by other experts, business fraud investigations, and third-party inspections. 800 South Figueroa Street, Suite 710, Los Angeles, CA Petaluma CORNERSTONE RESEARCH 90017, e-mail: [email protected]. Web site: www.hmlinc .com. Contact Mark C. Higgins, ASA, president. The Richmond 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- firm has 30 years of litigation support and expert testimony Eureka 2005, (213) 553-2500, fax (213) 553-2699, Web site: www experience in matters involving business valuation, eco- .cornerstone.com. Contact George G. Strong, Jr., nomic damages, intellectual property, loss of business Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, goodwill, and lost profits. Areas of practice include business Carlyn Irwin or Elisabeth Browne. Cornerstone disputes, eminent domain, bankruptcy, and corporate and Research provides attorneys with expert testimony and marital dissolution. 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Specializes in financial institutions, and general business litigation. business litigation; business valuation and appraisal, marital 20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941 CORPORATE SCIENCES, INC. dissolutions, transactional due diligence, financial reconstruction, fraud investigation, family limited partnerships, 3215 East Foothill Boulevard, Pasadena, CA 91107, (626) commercial damage and lost profits computations and EXPERT WITNESS IN GENERAL 440-7200, fax: (626) 440-1800, e-mail: jsdantoni@hotmail business interruption. Experienced expert testimony and tax .com. Web site: www.corporatesciences.com. Contact Dr. controversy representation. CONSTRUCTION FORENSICS Joseph S. D’Antoni, Managing Principal. Corporate Sci- ences, Inc. provides financial analysis and expert testimony MICHAEL D. ROSEN, CPA, PHD., ABV in all types of commercial litigation. 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Our work is designed to render conclusive opinions and to • Water Intrusion Cause 888 South Figueroa Street, Suite 2000, Los Angeles, CA withstand cross-examination. We specialize in Business & Origin 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte Damages—lost profits and loss in value; Personal Dam- @fulcrum.com. Web site: www.fulcrum.com. Contact • Mold Growth & ages—lost earnings; and Business Valuation. Microbial Infestation David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry spe- SCHULZE HAYNES LOEVENGUTH AND CO. • Indoor Air Quality cialists. Our analysis and research combined with unique 660 South Figueroa Street, Suite 1280, Los Angeles, CA Surveys presentation techniques have resulted in an unequaled 90017, (213) 627-8280, fax (213) 627-8301, e-mail: • Standards of Care record of successful court cases and client recoveries. Our [email protected]. Web site: www.schulze- Applied expertise encompasses damages analysis, lost profit stud- haynes.com. Contact Karl J. Schulze, principal. Special- • Professional Diligence ies, business and intangible asset valuations, appraisals, ties: forensic business analysis and accounting, lost profits, fraud investigations, troubled company consultation, statis- economic damages, expert testimony, discovery assis- • Contractor License Laws Certified Mold Inspector • Cost Estimates, Analysis Certified Remediation tics, forensic economic analysis, royalty audits, strategic tance, business valuations, construction claims, corporate & Comparisons Contractor and market assessments, computer forensics, electronic recovery, financial analysis and modeling, major professional CMI# 79243 discovery, and analysis of computerized data. organizations, and have experience across a broad spec- • Property Preservation & CMRC# 79162 Damage Assessment Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in trum of industries and business issues. Degrees/licenses: Former CSLB: accounting, finance, economics, and related subjects. See CPA; CVA; CFE; ABV; PhD-economics. See display ad on • Project Value & Safety • Construction Consultant display ad inside back cover. page 53. Analysis • Arbitrator & Mediator of • Property Maintenance Construction Disputes GLENN M. GELMAN & ASSOCIATES THOMAS NECHES & COMPANY LLP & Safety Effects • Instructor of Contractor’s CERTIFIED PUBLIC ACCOUNTANTS AND 609 South Grand Avenue, Suite 1106, Los Angeles, CA State License Exam • Mechanics Liens BUSINESS CONSULTANTS 90017-3848, (213) 624-8150, fax (213) 624-8152, e-mail: 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- [email protected]. Web site: www.thomasneches TEL: 626.825.5444 FAX: 909.267.9670 2600, fax (714) 667-2636, e-mail: [email protected]. .com. Contact Thomas M. Neches, CPA, ABV, CVA, E-MAIL: [email protected] Web site: www.gmgcpa.com. Contact Richard M. Squar. CFE, CFF. Accounting, financial, business valuation, and P.O. Box 50534, Pasadena, CA 91115 Since 1983, our firm has specialized in delivering forensic statistical analyses to assist attorneys in litigation. Expert www.macalabreseassociates.com accounting and litigation support services that give our testimony in state and federal courts. Cases: Antitrust,

52 Los Angeles Lawyer November 2010 breach of contract, fraud, intellectual property, lost business value, lost profits, wrongful death, and wrongful termination. Industries: banking, construction, entertainment, insurance, manufacturing, retail, securities, and wholesale. Credentials: certified public accountant/accredited in business valuation, certified valuation analyst, certified fraud examiner and certified in financial forensics. Education: BA (Mathematics) UC San Diego, MS (Operations Research) UCLA. Teaching: Adjunct Professor, Loyola Law School. See display ad on page 57. 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 provides real estate and land use litigation support services including economic damages, lost profits, financial feasibility, lease dispute, property value, enterprise value, partnership interest and closely-held share value, fair compensation, lender liability and reorganization plan feasibility. Professional staff of five with advanced degrees and training in real estate, finance, urban planning and accounting. See display ad on page 67. Schulze Haynes Loevenguth & Co. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT FORENSIC/LITIGATION EXPERTS 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278; 363 San Designations include: • Financial Forensic Analysis Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) Certified Public • Expert Testimony Accountant (CPA) 219-9816, fax (949) 219-9095, e-mail: [email protected]. • Turnaround and Bankruptcy Contact Barbara Luna or Bill Wolf. Expert witness testi- Certified in Financial mony for complex litigation involving damage analyses of Forensics (CFF) • Business Valuation lost profits, unjust enrichment, reasonable royalties, lost Certified Valuation Analyst/Accredited in earnings, lost value of business, forensic accounting, fraud CONTACT KARL J. SCHULZE Business Valuation [email protected] • www.schulzehaynes.com investigation, investigative analysis of liability, marital dissolu- (CVA/ABV) tion, and tax planning and preparation. Excellent communi- Certified Fraud 213.627.8280 cators with extensive testimony experience. Prior Big Four Examiner (CFE) 660 SOUTH FIGUEROA STREET, SUITE 1280, LOS ANGELES, CALIFORNIA 90017 accountants. Specialties include accounting, breach of contract, business interruption, business dissolution, construction defects, delays, and cost overruns, fraud, insurance bad faith, intellectual property including trademark, patent, and copyright infringement, and trade secrets, malpractice, marital dissolution, personal injury, product liability, real estate, tax planning and preparation, IRS audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 45. ZIVETZ, SCHWARTZ & SALTSMAN, CPAS 11900 West Olympic Boulevard, Suite 650, Los Angeles, CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web site: www.zsscpa.com. Contact Lester J. Schwartz, CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA, MBA, David L. Bass, CPA, David Dichner, CPA, ABV, CVA, Sandy Green, CPA. Accounting experts in forensic accounting, tax issues, business valuations, and appraisals, marital dissolutions, eminent domain, insurance losses, business interruption, goodwill, economic analysis, investigative auditing, loss of earning, commercial damages, and lost profits. Expert witness testimony preparation, settlement negotiations, and consultations. See display ad on page 59. ECONOMICS Confidence At The Courthouse. ADVISORS/EXPERTS @ MCS ASSOCIATES 18881 Von Karman, Suite 1175, Irvine, CA 92612, Business litigation is increasingly complex. That is why we believe valuation (949) 263-8700, fax (949) 263-0770, e-mail: experts issues must be addressed with the same meticulous care @mcsassociates.com. Web site: www.mcsassociates.com. as legal issues. Analysis must be clear. Opinions must be Contact Norman Katz, managing partner. Nationally defensible. Expert testimony must be thorough and recognized banking, finance, insurance, and real estate consulting group (established 1973). Experienced litigation con- articulate. HML has extensive trial experience and can sultants/experts include senior bankers, lenders, consul- provide legal counsel with a powerful resource for expert tants, economists, accountants, insurance underwriters/ testimony and litigation support. brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, subprime, business/commercial, construction, consumer/credit card), banking oper- For More Information Call 213-617-7775 ations/administration, trusts and investments, economic Or visit us on the web at www.hmlinc.com analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS appraisal, escrow, and construction defects/disputes, and title insurance.

Los Angeles Lawyer November 2010 53 COHEN, MISKEI & MOWREY LLP 5700 Canoga Avenue, Suite 300, Woodland Hills, CA 91367, (818) 986-5070, fax (818) 986-5034, e-mail: [email protected]. Web site: www.cmmcpas.com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display ad on page 49. FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Web site: www.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research combined with unique presentation techniques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, INSURANCE BAD FAITH EXPERT fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discov- Clinton E. Miller, J.D., BCFE ery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, Author: How Insurance Companies Settle Cases finance, economics, and related subjects. See display ad 39 YEARS EXPERIENCE inside back cover. Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide ELECTRICAL Coverage Disputes – Customs and Practices in the Insurance ROBERT J. ABEND, PE Industry – Good Faith/Bad Faith Issues 1658 Laraine Circle, San Pedro, CA 90732, (310) 346-6543, TEL 408.279.1034 | EMAIL [email protected] | FAX 408.279.3562 e-mail: [email protected] Web site: www.linkline.com /personal/rabend. Specialties: Electrical engineering, com- www.millerjd.qpg.com puter forensics, data recovery, electronic discovery, computer engineering, software, electronics, microelectronics, electronics manufacturing, printed circuit boards, intellectual property, and trade secret litigation. Technical support dur- CHOOSE A BETTER & MORE SUCCESSFUL ing 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 EXPERT WITNESS consultant. References provided on request. Degrees/licenses: BSEE, MS, Registered Professional Engi- neer, Computer Forensics Examiner, FCC General Radiotelephone license. ELECTRICAL ENGINEERING

CTG FORENSICS, INC. 16 Technology Drive, Suite 109, Irvine, CA 92618, (949) 790-0010, fax (949) 790-0020, e-mail: jﬂynn@ctgforensics .com. Web site: www.CTGforensics.com. Contact John Flynn, managing director. Construction-related engineering, plumbing, mechanical (heating, ventilating, A/C) and electrical (power, lighting), energy systems, residential and nonresidential buildings, construction defects and delay analysis, cost to repair, construction claims, mold, and green/LEED buildings.

I Expert Witness Directory–call today for your free copy ELECTRONIC DISCOVERY

I Approved ca MCLE provider for attorneys and law firms SETEC INVESTIGATIONS 8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90036, I Annual expert witness conference: April 2011 (800) 748-5440, fax (323) 939-5481, e-mail: tstefan I National association of professional consultants providing @setecinvestigations.com. Web site: www.setecinvestiga- forensic services: los angeles, orange county, sacramento, tions.com. Contact Todd Stefan. Setec Investigations san diego, san francisco, dallas, houston, midwest, phoenix offers unparalleled expertise in computer forensics and enterprise investigations providing personalized, case-spe- I Visit www.forensic.org for immediate access to hundreds ciﬁc forensic analysis and litigation support services for law of forensic experts in diverse disciplines ﬁrms and corporations. Setec Investigations possesses the necessary combination of technical expertise, understanding of the legal system, and specialized tools and processes enabling the discovery, collection, investigation, and production of electronic information for investigating and handling computer-related crimes or misuse. Our expertise includes computer forensics, electronic discovery, litigation support, 562.695.4600 PHONE | 714.459.7198 FAX | WWW.FORENSIC.ORG | [email protected] and expert witness testimony.

54 Los Angeles Lawyer November 2010 EMBEZZLEMENT AND FRAUD PERSONNEL SYSTEMS ASSOCIATES, INC. P.O. Box 28597, Anaheim, CA 92809, (714) 281-8337, fax GLENN M. GELMAN & ASSOCIATES (714) 281-2949, e-mail: [email protected]. CERTIFIED PUBLIC ACCOUNTANTS AND Web site: www.personnelsystems.com. Contact Mae Lon BUSINESS CONSULTANTS Ding, MBA, CCP. Expert witness in employment, business 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- dispute, disability, and divorce cases involving issues of 2600, fax (714) 667-2636, e-mail: [email protected]. employee or owner compensation, discrimination, wrongful Web site: www.gmgcpa.com. Contact Richard M. Squar. termination, exemption from overtime, labor market/employ- Glenn M. Gelman and Associates provides a variety of high- ability, lost wages/benefits, employee performance, and quality services traditionally associated with the Big Four evaluation of personnel policies and practices. Nationally Air Weather & Sea firms along with the personal attention that is the hallmark of recognized human resource management and compensa- Conditions, Inc. local firms. Our litigation support services include: embezzle- tion consultant, speaker, author of book and articles, univer- ment and fraud, expert witness testimony, strategy develop- sity instructor. Quoted in Los Angeles Times, Orange County Clear, plain-language and convincing expert ment, document discovery, deposition assistance, compu- Register, Business Week, Workforce, and Working Woman. testimony, reports and analyses to reconstruct tation of damages, arbitration consulting, forensic Over 19 years of testifying in cases involving major national weather, climate, storm, and atmospheric accounting, investigative auditing, rebuttal testimony, fidu- organizations in a large variety of industries involving multiple conditions at location and time of interest. ciary accountings, and trial exhibit preparation and recon- plaintiffs. MBA, Certified Compensation Professional. Wind and rain and ice assessments, and struction of accounting records. Winner of Inside Public indications of their normalcy, unusualness Accounting’s 2008 “Best of the Best” award given to only ENGINEER/TRAFFIC and foreseeability. 25 firms across the country. Our practice focuses on closely WILLIAM KUNZMAN, PE held entrepreneurial firms in the following industries: con- Authoritative, certified data acquisition, struction, real estate development, equipment leasing, auto 1111 Town and Country #34, Orange, CA 92868, (714) preparation of exhibit materials, site visits parts (wholesale and retail), Manufacturing, and professional 973-8383, fax (714) 973-8821, e-mail: mail@traffic-engineer and evaluations of reports for legal and services. Glenn M. Gelman has been appointed and served .com. Web site: www.traffic-engineer.com. Contact insurance matters including building as Special Master in litigation support matters and has testi- William Kunzman, PE. Traffic expert witness since 1979, projects, mold, and accidents, homeland fied over 30 times. Our comprehensive case list is available both defense and plaintiff. Auto, pedestrian, bicycle, and security and alternative energy applications. upon request. See display ad on page 63. motorcycle accidents. Largest verdict: $10,300,000 in pedestrian accident case against Los Angeles Unified Excellent client references provided on request. EMPLOYMENT/DISCRIMINATION/HARASS- School District. Largest settlement: $2,000,000 solo vehicle EXTENSIVE COURT EXPERIENCE MENT accident case against Caltrans. Before becoming expert wit- Jay Rosenthal CCM nesses, employed by Los Angeles County Road Depart- BRIAN H. KLEINER, PHD, MBA AMS CERTIFIED CONSULTING METEOROLOGIST ment, Riverside County Road Department, City of Irvine, and NATIONAL WEATHER SERVICE WEATHER SPOTTER Professor of Human Resource Management, California State Federal Highway Administration. Knowledge of governmen- University, 551 Santa Barbara Avenue, Fullerton, CA 92835, tal agency procedures, design, geometrics, signs, traffic Phone 818.645.8632 or 310.454.7549 Fax 310.454.7569 (714) 879-9705, fax (714) 879-5600. Contact Brian H. controls, maintenance, and pedestrian protection barriers. E-mail [email protected] Kleiner, PhD. Specializations include wrongful termination, Hundreds of cases. Undergraduate work—UCLA; graduate www.weatherman.org discrimination, sexual harassment, ADA, evaluation of poli- work—Yale University. cies and practices, reasonable care, progressive discipline, P. O. Box 512, Pacific Palisades, CA 90272 conducting third-party workplace investigations, retaliation, ENGINEERING RIFs, statistics, negligent hiring, promotion selections, FALLBROOK ENGINEERING CFRA/FMLA, compensation, wage and hours, ERISA, workplace violence, and OSHA. Consultant to over 100 organiza- 355 West Grand Avenue, Suite 4, Escondido, CA 92025, – EXPERT WITNESS – tions. Over 500 publications. Five-time winner of CSUF Meri- (760) 489-5400, fax (760) 489-5412, e-mail: veronicav torious Performance Award. Testified at trial over 55 times. @fallbrook-eng.com. Web site: www.fallbrookeng.com. CONSTRUCTION Contact Richard P. Meyst. Fallbrook Engineering provides EMPLOYMENT LAW expert witness services in the areas of IP (patent infringement, invalidity, claim construction and trade dress), per- 41 YEARS HAIGHT CONSULTING sonal injury, product liability, and product failure analysis. CONSTRUCTION EXPERIENCE 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) Our professionals have represented both plaintiff and defen- 454-2988, fax (310) 454-4516. Contact Marcia Haight, dant. We have done analysis, prepared declarations, been SPECIALTIES: SPHR—CA. Human resources expert knowledgeable in deposed, and testified in court. We have years of design Lawsuit Preparation/Residential both federal and California law. Twenty-five years’ corporate and development experience making us effective expert wit- Construction, Single and Multi-family, human resources management experience plus over 20 nesses in all matters involving medical devices. Visit our Web Hillside Construction, Foundations, years as a Human Resources Compliance Consultant in site at www.fallbrook-eng.com. California. Specializations include sexual harassment, Vibration Trespass, Concrete, Floors, Tile, FORENSISGROUP, INC ADA/disability discrimination, other Title VII and FEHA dis- Stone, Retaining Walls, Waterproofing, EXPERT WITNESS SERVICES crimination and harassment, retaliation, FMLA/CFRA, safety, Water Damages, Roofing, Sheet Metal, and wrongful termination. Courtroom testimony and deposi- 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA Carpentry/Rough Framing, Stairs, tion experience. Retained 60 percent by defense, 40 per- 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- Materials/Costs, Building Codes, cent by plaintiff. Audit employer’s actions in preventing and 1950, e-mail: [email protected]. Web site: www Construction Contracts. .forensisgroup.com. Contact Mercy T. Steenwyk. Foren- resolving discrimination, harassment, and retaliation issues. CIVIL EXPERIENCE: Assess human resources policies and practices for sound- sisGroup is an expert witness services and consulting com- Construction defect cases for insurance ness, for comparison to prevailing practices, and for compli- pany, providing expert court witnesses, consultants and liti- companies and attorneys since 1992 ance. Evaluate employer responsiveness to complaints and gation support specialists to law firms, private-practice effectiveness of employer investigations. Assist counsel via attorneys, and insurance professionals and other firms since preliminary case analysis, discovery strategy, examination of 1991! Our experts have been retained in over 10,000 cases documents, and expert testimony. nationwide. Our highly experienced staff will connect you COOK with top engineering consultants, medical expert witnesses, CONSTRUCTION COMPANY EMPLOYMENT/WAGE EARNING CAPACITY forensic accountants, construction expert witnesses, securi- STEPHEN M. COOK CALIFORNIA CAREER SERVICES ties specialists, and others representing hundreds of techni- California Contractors License B431852 cal and scientific disciplines. Thousands have gained the Nevada Contractors License B0070588 6024 Wilshire Boulevard, Los Angeles, CA 90036, TECHNICAL ADVANTAGE and the COMPETITIVE EDGE in Graduate study in Construction (323) 933-2900, fax (323) 933-9929, e-mail: susan their cases. Referrals and searches are free. Call us now at L.A. Business College, 1972 @californiacareerservices.com. Web site: www (800) 555-5422 for your free initial telephone consultations .californiacareerservices.com. Contact Susan Wise Miller, with our experts. See display ad on page 43. MA. Career counselor, vocational expert vocational exami- Tel: 818-438-4535 Fax: 818-595-0028 nations, labor market research, and testimony on employa- Email: [email protected] bility and earning capacity, as well as educational options. Specializing in divorce and wrongful termination cases. 7131 Owensmouth Avenue, Canoga Park, CA 91303

Los Angeles Lawyer November 2010 55 ENGINEERING/GEOTECHNICAL business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, COTTON, SHIRES AND ASSOCIATES, INC. economic analysis and valuations/damages assessment, 3201 Corte Malpaso, Suite 301, Camarillo, CA 93012-8074, insurance claims, coverages and bad faith, real estate bro- (805) 484-5500, fax (805) 484-5530, e-mail: mphipps@cot- kerage, appraisal, escrow, and construction defects/dis- tonshires.com. Web site: www.cottonshires.com. Contact putes, and title insurance. Michael Phipps or Patrick O. Shires. Full-service geot- LAW OFFICE OF LORE HILBURG echnical engineering consulting firm specializing in investigation, design, arbitration, and expert witness testimony with 1625 South Cimarron Street, Los Angeles, CA 90019, (323) offices in Los Gatos, Camarillo and San Andreas, California. 737-4444, fax (323) 737-4411, e-mail: [email protected] Earth movement (settlement, soil creep, landslides, tunneling or [email protected]. Contact Richard Reinhardt. and expansive soil), foundation distress (movement and Lore Hilburg Esq. is a seasoned professional who has cracking of structures), drainage and grading (seeping slabs served as an expert witness as to escrow issues, and real WhenWhen the the need need and ponding water in crawlspace), pavement and slabs property title disputes such a easements, constructive (cracking and separating), retaining walls (movement, crack- notice and grantor/grantee index searches. Ms. Hilburg also ing and failures), pipelines, flooding and hydrology, design serves as a consultant on these issues whether they arise in forfor confidential confidential and construction deficiencies, expert testimony at over 77+ litigation involving a tort claim, legal malpractice, or breach of trials (municipal, superior and federal); 207+ depositions; contract or a transactional setting. informationinformation 208+ settlement conferences in southern and northern Cali- EXPERT REFERRAL SERVICE fornia and Hawaii. FORENSIC EXPERT WITNESS ASSOCIATION ENVIRONMENTAL arises...arises... 10820 Beverly Boulevard, Suite A5 PMB 310, Whittier, CA KGA, INC. 90601, (562) 695-4600, fax (562) 692-3425 or (714) 459- 1409 Glenneyre Street, Suite A, Laguna Beach, CA 92651, 7198, e-mail: [email protected] or [email protected]. Web Benchmark Investigations is (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg@kgainc site: www.forensic.org. Contact Lynn Gilbert or Don a full service investigation agency .com. Web site: www.kgainc.com. Contact Kurt Grosz. Gilbert, ED. Expert Witness Directory—call today for your Construction and Environmental Consultants since 1991. free annual print copy or visit www.forensic.org to find an serving attorneys, corporations, Licensed engineers and contractors. ICC building, plumbing, expert in a wide range of disciplines to contact your expert insurance firms, government mechanical, concrete and accessibility inspectors. Certified directly! Recently upgraded Web site includes dynamic agencies and financial institutions. professional estimator. California EPA environmental asses- search capabilities for attorneys and the public to find an sors. Trial expert, arbitrator, and insurance appraiser. expert by expertise categories or by keyword searches. We provide professional National Association of professional consultants providing PACIFIC HEALTH AND SAFETY investigations with emphasis on forensic services: in California, Arizona, Texas and Illinois. CONSULTING, INC. Annual Expert Witness Conference April 28-30, 2011 in Las accuracy, detail and expedience. 2192 Martin, Suite 230, Irvine, CA 92612, (949) 253-4065, Vegas. See display ad on page 54. e-mail: [email protected]. Web site: www.phsc- PRO/CONSUL • Asset/Financial Investigations web.com. Contact Tim Morrison. Providing quality consultation and expert witness for mold, bacteria, lead, and TECHNICAL AND MEDICAL EXPERTS • Locates/Skiptracing asbestos. Certified training for health and safety, OSHA, and 1945 Palo Verde Avenue, Suite 200, Long Beach, CA AQMD regulations. See display ad on page 61. • Process Service 90815, (800) 392-1119, fax (562) 799-8821, e-mail: eex- THE REYNOLDS GROUP • Surveillance [email protected]. Web site: www.expertinfo.com. Contact P.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397, Rebecca deButts. Right expert right away! We are listed • Witness Interviews & Statements fax (714) 730-6476, e-mail: edreynolds@reynolds-group and recommended by the A.M. Best Company. We wel- • Background Investigations .com. Web site: www.reynolds-group.com. Contact Ed come your rush cases! 15,000 medical and technical Reynolds. Principal of the Reynolds Group, an environmen- experts in over 3,000 fields enables Pro/Consul to provide • Due Diligence Research tal consulting, contracting, and consulting firm. Experienced the best experts at a reasonable cost, including: reconstruc- in matters related to environmental contamination, assess- tion, accounting, engineering, biomechanical, business valu- • Merger & Acquisition Specialist ment and remediation, reasonable value of construction, ation, construction, economics, electrical, human factors, • DMV Searches and related financial matters. Degrees from USC, BS, Civil insurance, lighting, marine, metallurgy, mechanical, roof, Eng., 1981; University of Houston, MS, Civil Eng., 1984; and safety, security, SOC, toxicology, medmal, MDs, RNs, etc. • Employee Misconduct & Sexual Harvard, MBA, 1986. California registered civil engineer, Free resume binder. Harassment Investigations licensed contractor. Adjunct faculty member at the USC TASA (TECHNICAL ADVISORY SERVICE FOR School of Engineering and member of its Board of Coun- ATTORNEYS) EXPERTS IN ALL CATEGORIES • Workers’ Compensation: cilors. Contact Heather Williamson. (800) 523-2319, fax (800) AOE/COE & Sub-rosa surveillance ENVIRONMENTAL ENGINEER 329-8272, e-mail: [email protected]. Web site: www.TASAnet.com. The TASA Group is your timesaving, WZI INC (ENVIRONMENTAL ENGINEERS) Contact us today for prompt cost-effective source for superior, independent Testifying 1717 28th Street, Bakersfield, CA 93301, (661) 326-1112, and Consulting Experts in all fields and locations. We offer attention to your case. fax (661) 326-6480, e-mail: [email protected]. Web site: 11,000+ diverse categories of expertise and hard-to-find www.wziinc.com. Contact Mary Jane Wilson. BS, petro- specialties in technology, business, the arts, and sciences, leum engineering environmental assessor #00050. Special- including 1000+ medical areas. Our experienced Referral ties include regulatory compliance, petroleum, and power Advisors target your specific criteria and connect you with generation. experts available to discuss your case. There is NO CHARGE for our search and referral services unless you ESCROW designate or engage an expert we refer. Plaintiff/Defense; ADVISORS/EXPERTS @ MCS ASSOCIATES Civil/Criminal. Visit TASAnet.com where you can search JIM ZIMMER, CPI expert profiles by expertise keyword, request a Challenge 18881 Von Karman, Suite 1175, Irvine, CA 92612, History Report on an expert’s past testimony, and request 800.248.7721 (949) 263-8700, fax (949) 263-0770, e-mail: experts an expert on our online form. Explore TASAnet.com’s [email protected] @mcsassociates.com. Web site: www.mcsassociates.com. Knowledge Center to read expert-authored articles and view Contact Norman Katz, managing partner. Nationally www.BenchmarkInvestigations.com archived webinars for attorneys. To receive invitations to our recognized banking, finance, insurance, and real estate con- 32158 Camino Capistrano, Ste. A-415 free, expert-led webinars for attorneys, register at www sulting group (established 1973). Experienced litigation con- San Juan Capistrano, CA 92675 .TASAnet.com/knowledgecenterregistration.aspx. Benefit sultants/experts include senior bankers, lenders, consul- California License #PI 12651 from 54 years of TASA Group experience. See insert in tants, economists, accountants, insurance this issue and display ad on page 42. underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, subprime,

56 Los Angeles Lawyer November 2010 EXPERT WITNESS the Los Angeles County Bar Association. COHEN, MISKEI & MOWREY LLP 5700 Canoga Avenue, Suite 300, Woodland Hills, CA AMFS MEDICAL EXPERTS NATIONWIDE FAILURE ANALYSIS 91367, (818) 986-5070, fax (818) 986-5034, e-mail: 6425 Christie Avenue, Suite 260, Emeryville, CA 94608, KARS ADVANCED MATERIALS, INC. [email protected]. Web site: www.cmmcpas.com. (800) 275-8903. Web site: www.AMFS.com. Medical Testing and Research Labs, 2528 West Woodland Drive, Contact Scott Mowrey. Specialties: consultants who pro- experts for malpractice and personal injury cases. AMFS is Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- vide extensive experience, litigation support, and expert tes- America’s premier medical expert witness and consulting 7169, e-mail: [email protected]. Web site: www.karslab timony regarding forensic accountants, fraud investigations, company. We are a trusted partner with the legal community .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. economic damages, business valuations, family law, bank- and provide a superior method of retaining medical experts. Southern California’s premier materials/mechanical/metallur- ruptcy, and reorganization. Degrees/license: CPAs, CFEs, For over 20 years, AMFS has provided board-certified gical/structural/forensics laboratory. Registered professional MBAs. See display ad on page 49. experts in over 10,000 malpractice and personal injury engineers with 30-plus years in metallurgical/forensic/struc- GURSEY/SCHNEIDER LLP cases. • Board-Certified experts in all medical specialties • tural failure analysis. Experienced with automotive, bicycles, Practicing physicians with legal experience, • No cost attor- 1888 Century Park East, Suite 900, Los Angeles, CA 90067, tires, fire, paint, plumbing, corrosion, and structural failures. ney consultations, • Record review and testimony, • Inde- (310) 552-0960, fax (310) 557-3468. 20355 Hawthorne We work on both plaintiff and defendant cases. Complete pendent Medical Examinations (IME) and autopsies, • Boulevard, First Floor, Torrance, CA 90503, (310) 370-6122, in-house capabilities for tests. Extensive deposition and Essential affidavits and reporting. Discuss your case at no fax (310) 370-6188, e-mail: [email protected] or tkatz courtroom experience (civil and criminal investigations). Prin- charge with one of our Medical Directors who will identify @gursey.com. Web site: www.gursey.com. Contact cipals are fellows of American Society for Metals and board- and clarify your case issues to ensure you retain the appro- Robert Watts or Tracy Katz. Forensic accounting and liti- certified diplomates, American Board of Forensic Examiners. priate specialists. Cost-effective Initial Case reviews for gation support services in all areas relating to marital dissolu- See display ad on page 67. merit. Have your case reviewed for merit by members of our tion; including, business valuation, tracing and apportion- 50+ member multi-specialty Physician Advisory Panel. KGA, INC. ment of real property and assets, net spendable evaluations, Review and select expert CVs. Our experience, resources, 1409 Glenneyre Street, Suite A, Laguna Beach, CA 92651, determination of gross cash flow available for support and and large proprietary database enable us to quickly identify (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg@kgainc analysis of reimbursement claims and marital standards of and interview a large number of potential medical experts on .com. Web site: www.kgainc.com. Contact Kurt Grosz. living. See display ad on page 51. your behalf and provide you with the CVs of those who are Construction and Environmental Consultants since 1991. HARGRAVE & HARGRAVE, AN ACCOUNTANCY best suited to your case. See display ad on page 46. Licensed engineers and contractors. ICC building, plumbing, CORPORATION mechanical, concrete and accessibility inspectors. Certified 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) EXPERT WITNESS WEB SITES professional estimator. California EPA environmental asses- 576-1090, fax (310) 576-1080, e-mail: terry@taxwizard EXPERT4LAW—THE LEGAL MARKETPLACE sors. Trial expert, arbitrator, and insurance appraiser. .com. Web site: www.taxwizard.com. Contact Terry M. (213) 896-6561, fax (213) 613-1909, e-mail: forensics FAMILY LAW Hargrave, CPA/ABV/CFF, CFE. Litigation services for @lacba.org. Web site: www.expert4law.org. Contact family law and civil cases. Past chair of California Society of Melissa Algaze. Still haven’t found who you’re looking for? BRIAN LEWIS & COMPANY CPAs’ Family Law Section, business valuation instructor for Click here! expert4law—The legal Marketplace is the best 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA California CPA Education Foundation. Services include online directory for finding expert witnesses, legal consul- 90024, (310) 475-5676, fax (310) 475-5268, e-mail: brian business valuations, income available for support, tracing tants, litigation support, lawyer-to-lawyer networking, dis- @brianlewis-cpa.com. Contact Brian Lewis, CPA, CVA. separate property, litigation consulting, real estate litigation, pute resolution professionals, and law office technology. Forensic accounting; business valuations; cash spendable mediation, fraud investigations, damage calculation, and This comprehensive directory is the one-stop site for your reports; estate, trust, and income tax services. other forensic accounting work. legal support needs. Available 24/7/365! Brought to you by

• 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 voice: (213) 624-8150 Certified in Financial Forensics e-mail: [email protected] www.thomasneches.com

Los Angeles Lawyer November 2010 57 HAYNIE & COMPANY, CPAS FEE DISPUTE ery, and analysis of computerized data. Degrees/licenses: 4910 Campus Drive, Newport Beach, CA 92660, (949) 724- CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, EDWARD LEAR 1880, fax (949) 724-1889, e-mail: sgabrielson@hayniecpa finance, economics, and related subjects. See display ad .com. Web site: www.hayniecpa.com. Contact Steven C. 5200 West Century Boulevard, Suite 345, Los Angeles, CA inside back cover. Gabrielson. Consulting and expert witness testimony in a 90045, (310) 642-6900, fax (310) 642-6910, e-mail: lear HAYNIE & COMPANY, CPAS variety of practice areas: commercial damages, ownership @centurylawgroup.com. Web site: www.CalStateBarDefense 4910 Campus Drive, Newport Beach, CA 92660, (949) disputes, economic analysis, business valuation, lost profits .com Contact Edward Lear. Specialties: Former State Bar 724-1880, fax (949) 724-1889, e-mail: sgabrielson analysis, fraud/forensic investigations, taxation, personal prosecutor, expert testimony and declarations regarding @hayniecpa.com. Web site: www.hayniecpa.com. Contact injury, wrongful termination, professional liability, and expert breach of standard of care, breach of fiduciary duties, espe- Steven C. Gabrielson. Consulting and expert witness testi- cross examination. Extensive public speaking background cially in context of California Rules of Professional Conduct. mony in a variety of practice areas: commercial damages, assists in courtroom presentations. Expert testimony and declarations regarding legal fees and billing practices. Experience includes state and federal, ownership disputes, economic analysis, business valuation, KRYCLER, ERVIN, TAUBMAN, AND WALHEIM plaintiff and defense. Fees: $450/hour, $500/hour (depo and lost profits analysis, fraud/forensic investigations, taxation, 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA trial). Degrees/license: JD, UCLA (Law Review); AB, Dart- personal injury, wrongful termination, professional liability, 91403, (818) 995-1040, fax (818) 995-4124. Web site: mouth College; State Bar of California 1987. and expert cross examination. Extensive public speaking [email protected]. Contact Michael J. Krycler. Litiga- background assists in courtroom presentations. FEES & ETHICS tion support, including forensic accounting, business FINANCIAL STATEMENTS appraisals, family law accounting, business and professional JOEL MARK valuations, damages, fraud investigations, and lost earnings. NORDMAN CORMANY HAIR & COMPTON LLP MAYER HOFFMAN MCCANN PC Krycler, Ervin, Taubman and Walheim is a full-service 1000 Town Center Drive, 6th Floor, Oxnard, CA 93936, 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA accounting firm serving the legal community for more than 90025, (310) 268-2000, fax (310) 268-2001, e-mail: sfranklin 20 years. See display ad on page 46. (805) 988-8300, fax (805) 988-7700, e-mail: [email protected]. Web site: www.nchc.com. Contact Joel @cbiz.com. Web site: www.MHM-PC.com, www.CBIZ PAMELA WAX-SEMUS, CFE Mark. Mr. Mark has had in excess of 35 matters as an .com. Contact Steve Franklin. Specializes in business liti- 107 North Reino Road, #402, Newbury Park, CA 91320, expert witness in attorney malpractice cases, attorneys’ fee gation; business valuation and appraisal, marital dissolu- (805) 499-3035, fax (805) 498-0468, e-mail: tracing.queen disputes and cases involving issues of attorney ethics. He tions, transactional due diligence, financial reconstruction, @verizon.net. Web site: www.tracingqueen.net. Contact served 12 years on the State Bar Committee on Mandatory fraud investigation, family limited partnerships, commercial Pamela Wax-Semus, CFE. I am experienced in most Fee Arbitration, a term on the State Bar Committee on Pro- damage and lost profits computations and business inter- areas of litigation support services with a particular emphasis fessional Responsibility and Conduct, and has been ruption. Experienced expert testimony and tax controversy in tracing, property allocation, reimbursements, stock appointed as an expert consultant by the Los Angeles representation. options and related allocations issues. I have vast experi- Superior Court. FIRE/EXPLOSIONS ence not only in marital dissolution matters. My expertise FINANCIAL expands to trust and probate accountings, fraud, and other CHEMICAL ACCIDENT RECONSTRUCTION litigation related matters. ADVISORS/EXPERTS @ MCS ASSOCIATES SERVICES, INC. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 9121 East Tanque Verde Road, Suite 105, Tucson, AZ WOLF & HUNT 263-8700, fax (949) 263-0770, e-mail: experts@mcsassoci- 85749, (800) 645-3369, e-mail: [email protected]. Web site: www.chemaxx.com. Contact Dr. Michael Fox. 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA ates.com. Web site: www.mcsassociates.com. Contact Comprehensive chemical accident investigation—specializ- 91423, (818) 981-4226, fax (818) 981-4278; 363 San Norman Katz, managing partner. Nationally recognized ing in complex industrial chemical accidents and chemical- Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) banking, finance, insurance, and real estate consulting related consumer product injuries, chemical fires and explo- 219-9816, fax (949) 219-9095, e-mail: [email protected]. group (established 1973). Experienced litigation consul- sions, chemical labeling, chemical packaging, handling and Contact Barbara Luna or Bill Wolf. Expert witness testi- tants/experts include senior bankers, lenders, consultants, shipping, burns, warnings, labels, MSDSs, disposal, safety, mony for complex litigation involving damage analyses of economists, accountants, insurance underwriters/brokers. EPA, OSHA, DOT, propane, natural gas, hydrogen, flamma- lost profits, unjust enrichment, reasonable royalties, lost Specialties: lending customs, practices, policies, in all types ble liquids, hazardous chemicals, aerosols (hairspray, spray earnings, lost value of business, forensic accounting, fraud of lending (real estate, subprime, business/commercial, con- paint, refrigerants), DOT certified (hazardous materials ship- investigation, investigative analysis of liability, marital dissolu- struction, consumer/credit card), banking operations/admin- ment), certified fire and explosion investigator, OSHA tion, and tax planning and preparation. Excellent communi- istration, trusts and investments, economic analysis and val- process hazard analysis team leader, PhD Physical Chem- cators with extensive testimony experience. Prior Big Four uations/damages assessment, insurance claims, coverages istry. Extensive experience in metallurgy, corrosion, and fail- accountants. Specialties include accounting, breach of con- and bad faith, real estate brokerage, appraisal, escrow, and ure analysis. tract, business interruption, business dissolution, construc- construction defects/disputes, and title insurance. tion defects, delays, and cost overruns, fraud, insurance bad CORNERSTONE RESEARCH FOOD SAFETY/HACCP faith, intellectual property including trademark, patent, and 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- copyright infringement, and trade secrets, malpractice, mari- FOOD SAFETY AND HACCP COMPLIANCE 2005, (213) 553-2500, fax (213) 553-2699, Web site: tal dissolution, personal injury, product liability, real estate, tax 20938 De Mina Street, Woodland Hills, CA 91364, (818) www.cornerstone.com. Contact George G. Strong, Jr., planning and preparation, IRS audit defense, tracing, unfair 703-7147, e-mail: [email protected]. Web site: www.food- Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, advertising, unfair competition, valuation of businesses, and safetycoach.com. Contact Jeff Nelken, BS, MA. Forensic Carlyn Irwin or Elisabeth Browne. Cornerstone wrongful termination. See display ad on page 45. food safety expert knowledgeable in both food safety and Research provides attorneys with expert testimony and eco- hazard analysis critical control point program development. ZIVETZ, SCHWARTZ & SALTSMAN, CPAS nomic and financial analyses in all phases of commercial liti- Specializes in expert witness testimony and litigation consul- 11900 West Olympic Boulevard, Suite 650, Los Angeles, CA gation. We work with faculty and industry experts in a distant in matters regarding food safety, Q.A., standards of per- 90064-1046, (310) 826-1040, fax (310) 826-1065. Web site: tinctive partnership that combines the strengths of the formance, HACCP, crisis management, food-borne illness, www.zsscpa.com. Contact Lester J. Schwartz, business and academic worlds. Our areas of expertise health department representation, food spoilage, allergy, CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA, include identifying and supporting expert witnesses in intel- and customer complaints. Performs inspections, vendor MBA, David L. Bass, CPA, David Dichner, CPA, ABV, lectual property, antitrust, securities, entertainment, real audits, and training. Hands-on food safety consultant for CVA, Sandy Green, CPA. Accounting experts in forensic estate, financial institutions, and general business litigation. restaurants, manufacturers, distributors, country clubs, accounting, tax issues, business valuations, and appraisals, FULCRUM INQUIRY schools, nursing homes, and casinos. NRA and NSF marital dissolutions, eminent domain, insurance losses, busi- 888 South Figueroa Street, Suite 2000, Los Angeles, CA HACCP certified instructor. Thirty years of food and hospital- ness interruption, goodwill, economic analysis, investigative 90017, (213) 787-4100, fax (213) 891-1300, e-mail: ity experience. Registered as a food handler instructor with auditing, loss of earning, commercial damages, and lost prof- [email protected]. Web site: www.fulcrum.com. Contact the Los Angeles County Health Department. Provider # 015. its. Expert witness testimony preparation, settlement negotia- David Nolte. Our professionals are experienced CPAs, Forensic food safety expert. Food safety expert for CBS, tions, and consultations. See display ad on page 59. MBAs, ASAs, CFAs, affiliated professors, and industry spe- NBC, Inside Edition, and CNN. Free Consultation. FASTENERS-LATCHES cialists. Our analysis and research combined with unique FORENSIC ACCOUNTING presentation techniques have resulted in an unequaled ARGOS ENGINEERING record of successful court cases and client recoveries. Our CAPSTONE ADVISORY GROUP, LLC 44 Argos, Laguna Niguel, CA 92677, (949) 363-8205, fax expertise encompasses damages analysis, lost profit stud- 555 South Flower Street, Suite 3200, Los Angeles, CA (949) 429-5972, e-mail: [email protected]. Web site: www ies, business and intangible asset valuations, appraisals, 90071, (213) 542-7121, fax (213) 542-7102, e-mail: .argos-engineering.com. Contact John D. Pratt, PhD, PE. fraud investigations, troubled company consultation, statis- [email protected]. Web site: www.capstoneag Litigation consulting, inspections, expert reports, patent in- tics, forensic economic analysis, royalty audits, strategic and .com. Contact Michael Spindler. Capstone’s typical litiga- fringement and validity analysis, deposition, and trial testimony. market assessments, computer forensics, electronic discov-

58 Los Angeles Lawyer November 2010 tion and forensic services include expert testimony in complex commercial litigation, arbitration, mediation, and other dispute resolution forums, damages claims preparation and CHARLES PEREYRA-SUAREZ assessment, analysis of the relationship between events and damages, construction damages analysis, project recon- — ARBITRATOR AND MEDIATOR — struction, and job history analysis, internal investigations, SEC matters, purchase price disputes, critique of reports by RELEVANT EXPERIENCE: other experts, business fraud investigations, and third-party • Trial/Appellate Attorney, U.S. Justice Department inspections. Civil Rights Division CORNERSTONE RESEARCH • Federal Prosecutor in Los Angeles 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- • Litigation Partner in Two National Law Firms 2005, (213) 553-2500, fax (213) 553-2699, Web site: www • Judge Pro Tem, Los Angeles County Superior Court .cornerstone.com. Contact George G. Strong, Jr., Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, • Diverse ADR and Expert Witness Practice Carlyn Irwin or Elisabeth Browne. Cornerstone Research 445 S. FIGUEROA STREET, SUITE 3200, LOS ANGELES CA 90071 provides attorneys with expert testimony and economic and financial analyses in all phases of commercial litigation. We Tel 213.623.5923 Fax 213.623.1890 http://www.cpsarbitration.com work with faculty and industry experts in a distinctive partnership that combines the strengths of the business and academic worlds. Our areas of expertise include identifying and supporting expert witnesses in intellectual property, antitrust, securities, entertainment, real estate, financial insti- Specializing in tutions, and general business litigation. Do You Have A Case Rottweilers and FULCRUM INQUIRY Pit Bulls 888 South Figueroa Street, Suite 2000, Los Angeles, CA Involving Dogs? 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte @fulcrum.com. Web site: www.fulcrum.com. Contact • aggression • breeding • temperament David Nolte. Our professionals are experienced CPAs, • behaviors • rescue • cruelty MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research combined with unique • training • protocols • hoarding presentation techniques have resulted in an unequaled record of successful court cases and client recoveries. Our — EVALUATIONS, CONSULTATION, BITE INVESTIGATIONS — expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, Jill Kessler • Dog Expert | 310-573-9615 | e-mail: [email protected] fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic and www.jillkessler.com 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 inside back cover. GLENN M. GELMAN & ASSOCIATES Zivetz, Schwartz & Saltsman CPA’s CERTIFIED PUBLIC ACCOUNTANTS AND BUSINESS CONSULTANTS With more than thirty years of experience as expert witnesses 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- in testimony, pre-trial preparation, settlement negotiations, 2600, fax (714) 667-2636, e-mail: [email protected]. consultations and court appointed special master. Web site: www.gmgcpa.com. Contact Richard M. Squar. Since 1983, our firm has specialized in delivering forensic accounting and litigation support services that give our clients an edge. We provide the quality and depth traditionally associated with Big Four firms with the personal atten- Some of our specialties consist of: tion and fee structure of a local firm. Our litigation support services include: forensic accounting, investigative auditing, • Forensic Accounting • Marital Dissolutions embezzlement and fraud, expert witness testimony, strategy development, document discovery, deposition assistance, • Business Valuation and Appraisal • Lost Profits computation of damages, arbitration consulting, rebuttal testimony, fiduciary accountings, and trial exhibit preparation • Economic Damages • Accounting Malpractice and reconstruction of accounting records. Winner of Inside Public Accounting’s 2008 “Best of the Best” award given to • Employee Benefit Plans • Entertainment Entities only 25 firms across the country. Our practice focuses on closely held entrepreneurial firms in the following industries: • Financial and Economic Analysis • Shareholder Disputes construction, real estate development, equipment leasing, auto parts (wholesale and retail), manufacturing, and profes- • Wrongful Termination sional services Glenn M. Gelman has been appointed and served as Special Master in litigation support matters and has testified over 30 times. Our comprehensive case list is Tel: (310) 826-1040 Lester J. Schwartz, CPA/CFF, DABFA, DABFE available upon request. See display ad on page 63. Fax: (310) 826-1065 Michael D. Saltsman, CPA, MBA RGL FORENSICS E-mail: [email protected] David L. Bass, CPA Los Angeles Office: 660 South Figueroa Street, Suite 980, www.zsscpa.com Dave Dichner, CPA, ABV, CVA Los Angeles, CA 90017, (213) 996-0900. Contact Alan Sandy Green, CPA Lurie, [email protected] or Bob Jones, [email protected] 11900 W. Olympic Blvd. l.com. Orange County Office: 625 City Drive South, Suite Suite 650 290, Orange, CA 92868, (714) 740-2100. Contact Hank Los Angeles, CA 90064-1046 Kahrs, [email protected]. RGL Forensics is an international firm of forensic financial experts exclusively dedicated to damage analysis, fraud investigation, and valuation. Serv-

Los Angeles Lawyer November 2010 59 ing the legal, insurance, and business communities for more infringement, and trade secrets, malpractice, marital dissolu- disputes, industry standards/practices, safety, and security. than 30 years, the firm is unique in its ability to combine tion, personal injury, product liability, real estate, tax planning Former partner, V.P. IHOP, president, Copper Penny chain, investigative accounting, business valuation, fraud, and and preparation, IRS audit defense, tracing, unfair advertis- author, director, and expert witness. forensic technology expertise. For attorneys, we discover ing, unfair competition, valuation of businesses, and wrongful FRAUD INVESTIGATIONS and define financial value in transactions and civil and crimi- termination. See display ad on page 45. nal disputes, and when necessary provide expert witness ZIVETZ, SCHWARTZ & SALTSMAN, CPAS CAPSTONE ADVISORY GROUP, LLC testimony in court and arbitration proceedings. For more 555 South Flower Street, Suite 3200, Los Angeles, CA information about RGL and its 23 offices worldwide, please 11900 West Olympic Boulevard, Suite 650, Los Angeles, 90071, (213) 542-7121, fax (213) 542-7102, e-mail: visit www.rgl.com. See display ad on page 65. CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web site: www.zsscpa.com. Contact Lester J. Schwartz, [email protected]. Web site: www.capstoneag PAMELA WAX-SEMUS, CFE CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA, .com. Contact Michael Spindler. Capstone’s typical litiga- 107 North Reino Road, #402, Newbury Park, CA 91320, MBA, David L. Bass, CPA, David Dichner, CPA, ABV, tion and forensic services include expert testimony in com- (805) 499-3035, fax (805) 498-0468, e-mail: tracing.quee CVA, Sandy Green, CPA. Accounting experts in forensic plex commercial litigation, arbitration, mediation, and other [email protected]. Web site: www.tracingqueen.net. Contact accounting, tax issues, business valuations, and appraisals, dispute resolution forums, damages claims preparation and Pamela Wax-Semus, CFE. I am experienced in most marital dissolutions, eminent domain, insurance losses, busi- assessment, analysis of the relationship between events and areas of litigation support services with a particular emphasis ness interruption, goodwill, economic analysis, investigative damages, construction damages analysis, project recon- in tracing, property allocation, reimbursements, stock auditing, loss of earning, commercial damages, and lost prof- struction, and job history analysis, internal investigations, options, and related allocations issues. I have vast experi- its. Expert witness testimony preparation, settlement negotia- SEC matters, purchase price disputes, critique of reports by ence not only in marital dissolution matters. My expertise tions, and consultations. See display ad on page 59. other experts, business fraud investigations, and third-party expands to trust and probate accountings, fraud, and other inspections. FORENSIC ANALYSIS litigation related matters. MAYER HOFFMAN MCCANN PC WHITE, ZUCKERMAN, WARSAVSKY, LUNA, BRIAN LEWIS & COMPANY 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA WOLF & HUNT 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: sfranklin 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 90024, (310) 475-5676, fax (310) 475-5268, e-mail: @cbiz.com. Web site: www.MHM-PC.com,www.CBIZ.com. 91423, (818) 981-4226, fax (818) 981-4278; 363 San [email protected]. Contact Brian Lewis, CPA, Contact Steve Franklin. Specializes in business litigation; Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) CVA. Forensic accounting; business valuations; cash business valuation and appraisal, marital dissolutions, trans- 219-9816, fax (949) 219-9095, e-mail: [email protected]. spendable reports; estate, trust, and income tax services. actional due diligence, financial reconstruction, fraud investigation, family limited partnerships, commercial damage and Contact Barbara Luna or Bill Wolf. Expert witness testi- FRANCHISING mony for complex litigation involving damage analyses of lost lost profits computations and business interruption. Experi- profits, unjust enrichment, reasonable royalties, lost earnings, LEON GOTTLIEB enced expert testimony and tax controversy representation. lost value of business, forensic accounting, fraud investiga- USA-INT’L RESTAURANT, HOTEL FRANCHISE GEOTECHNICAL ENGINEERING tion, investigative analysis of liability, marital dissolution, and CONSULTANT & EXPERT WITNESS tax planning and preparation. Excellent communicators with 4601 Sendero Place, Tarzana, CA 91356, (818) 757-1131, SHEPARDSON ENGINEERING GROUP, INC. extensive testimony experience. Prior Big Four accountants. fax (818) 757-1816, e-mail: [email protected]. Web site: 10035 Prospect Avenue, Suite 101, Santee, CA 92071- Specialties include accounting, breach of contract, business http://flashjordan.com/leongottlieb.htm. Over 45 years 4398, (619) 449-9830, fax (619) 449-5824, e-mail: interruption, business dissolution, construction defects, hands-on experience; all types of restaurants, fast foods, [email protected]. Contact Don Shepardson. Over delays, and cost overruns, fraud, insurance bad faith, intellec- hotels, operations, training, manuals, franchisor-franchisee 45 years as a Geotechnical Engineer of Record on residen- tual property including trademark, patent, and copyright tial, commercial, and governmental projects. Projects range from 6,000 AC subdivisions to multistory commercial buildings. Over 40 years of experience as a designated expert with extensive court experience, including electronic data presentations. Professional engineer license in 10 states, DAVID L. RAY prior contractor license in engineering, concrete, and grading (inactive). RICHARD WEISSMAN HANDWRITING SALTZBURG, RAY & WEISSMAN, LLP SANDRA L. HOMEWOOD, FORENSIC DOCUMENT EXAMINER 1132 San Marino Drive, Suite 216, Lake San Marcos, CA RECEIVERSHIP ACTIONS 92078, (760) 931-2529, fax (760) 510-8412, e-mail: home- • Partnerships and Corporate Dissolutions [email protected]. Contact Sandra L. Homewood. Highly skilled and experienced document examiner and • Government Enforcement Receivership Actions expert witness in many complex and high-profile civil and • Partition Actions/Marital Dissolution criminal cases with fully equipped document laboratory. Specializing in handwriting and handprinting identification, handwriting of the elderly in financial elder abuse cases and will contests, and examination of altered medical and corporate records. Trained in government laboratory including specialized training by the FBI and Secret Service. Former government experience includes document examiner for the San Diego Police Department crime lab, Arizona State crime lab, and San Diego County District Attorney’s office. Cur- rently in private, criminal, and civil practice. HORSE/EQUINE

EQUINE EXPERT WITNESS 11451 Shippigan Way, Cypress, CA 90630, (714) 248-9484 e-mail: [email protected]. Contact Marcy Shelton. Expe- 310.481.6780 rienced in depositions and trial testimony. Twenty-ﬁve years TEL of experience working with racehorses. I know all aspects of 310.481.6707 FAX horse and rider behavior. [email protected] • [email protected] www.srblaw.com INSURANCE DVISORS/EXPERTS @ MCS ASSOCIATES 12121 WILSHIRE BOULEVARD, SUITE 600, LOS ANGELES CA 90025 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: experts@mcsassoci-

60 Los Angeles Lawyer November 2010 ates.com. Web site: www.mcsassociates.com. Contact .com. Web site: www.roberthughes.com. Contact John Norman Katz, managing partner. Nationally recognized Oakley. Founded in 1979, RHA is an international insurance banking, finance, insurance, and real estate consulting and risk management consulting company based in Dallas. group (established 1973). Experienced litigation consul- Our consultants’ experience in the insurance industry allows tants/experts include senior bankers, lenders, consultants, us to provide highly qualified expert witness and litigation economists, accountants, insurance underwriters/brokers. support services. Our expertise includes: property/casualty Specialties: lending customs, practices, policies, in all types insurance, life/health insurance, Lloyd’s, London Market of lending (real estate, subprime, business/commercial, con- Research, claims handling, bad faith, decision analysis, struction, consumer/credit card), banking operations/admin- agency management and practices, insurance laws and istration, trusts and investments, economic analysis and val- regulations, statistical forecasting, insurance sales and mar- uations/damages assessment, insurance claims, coverages keting practices, insurance archaeology and policy interpre- and bad faith, real estate brokerage, appraisal, escrow, and tation and analysis. construction defects/disputes, and title insurance. SHARP AND ASSOCIATES; INSURANCE CON- E.L. EVANS ASSOCIATES SULTANTS AND EXPERTS. 3310 Airport Avenue, Box # 2, Santa Monica, CA 90405, West coast office: 21520 Yorba Linda Boulevard, Suite G- (310) 559-4005, fax (310) 390-9669, e-mail: elevans66 257, Yorba Linda, CA 92887, (213) 407-9957; East coast @yahoo.com. Contact Gene Evans. Good faith/bad faith. office: 325 East Paces Ferry Road, Suite 1603, Atlanta, GA Over 45 years’ experienceæclaims adjuster. Standards and 30305, (213) 407-9957, e-mail: [email protected] Web practices in the industry, litigation support, claims consulta- site: www.sharpandassociates.org. Contact Robert tion, case review and evaluation, property/casualty claims, Sharp. Good faith/bad faith. In regard to all insurance construction claims, uninsured/underinsured motorist related issues and insurance industry standards. Mr. Sharp claims, general liability, fire/water/mold claims, damage has 33 years of experience, retiring as president and CEO of assessment, professional liability claims, appraisal under pol- a property-casualty insurance company. He also held the icy, arbitration, duty to defend, advertising claims, coverage positions of senior vice president, claims, and executive vice applications, and suspected fraud claims. CV available on president. He is providing services to law firms, insurance request. See display ad on page 6. companies, and corporations as a consultant and expert. LAUNIE ASSOCIATES, INC. Mr. Sharp has testified in state and federal court in insurance related matters such as property/casualty claims, sales and 2627 Tunnel Ridge Lane, Santa Barbara, CA 93105, (805) underwriting issues, policy cancellations, coverage denials, 569-9175, fax (805) 687-8597, e-mail: [email protected]. general liability, uninsured/underinsured claims, and bad Contact Joseph J. Launie, PhD, CPCU, insurance pro- faith claims. CV upon request. For immediate background fessor, author, and consultant. Over 30 years of experi- information please see the Web site listed above. ence as expert witness in state and federal courts. Coau- thor of books and articles on underwriting, insurance THOMAS & ELLIOTT company operations, and punitive damages. Consulting, 12400 Wilshire Boulevard, Suite 400, Los Angeles, CA expert witness on underwriting, company and agency 90025, (310) 571-2727, fax (310) 207-0900, e-mail: operations, and bad faith. [email protected] or [email protected]. CLINTON E. MILLER, JD, BCFE Web site: www.thomasandelliott.com. Contact Jay Elliott. NSURANCE BAD FAITH EXPERT Coverage analysis of liability, property, auto, malpractice, health, disability, life, title, and fidelity insurance. Duty to 502 Park Avenue, San Jose, CA 95110, (408) 279-1034, fax defend, reservation of rights, Cumis, bodily injury, property EXPERT WITNESS (408) 279-3562, e-mail: [email protected]. Contact Clint damage, business torts, privacy, bad faith, reasonableness —Real Estate Matters— Miller. Insurance expert regarding claims, underwriting, of attorney’s fees, and defense cost reimbursement claims. agent and brokers errors and omissions, coverage disputes, customs and practices, and bad faith. See display ad on INTELLECTUAL PROPERTY PECIALIST N page 54. S I : CORNERSTONE RESEARCH • Broker duties; Standard of Care PAUL PAULIN AND ASSOCIATES 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- • Disclosure Issues – Buyer/Seller 567 West Channel Islands Boulevard, Suite 329, Port 2005, (213) 553-2500, fax (213) 553-2699, Web site: • Agency Obligations Hueneme, CA 93041, (805) 985-3917, fax (805) 985-6407, www.cornerstone.com. Contact George G. Strong, Jr., • Real Estate Malpractice e-mail: [email protected]. Contact Paul Paulin. Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, • Mortgage Brokerage Law Property/casualty insurance; surplus lines insurance; Carlyn Irwin or Elisabeth Browne. Cornerstone Research • Residential & Commercial Transactions agent/broker; standard of care; bad faith; insurance office provides attorneys with expert testimony and economic and procedures practice; 37 years as agent/broker; former chair, financial analyses in all phases of commercial litigation. We • Escrow Standard of Care senate advisory commission on business insurance. work with faculty and industry experts in a distinctive part- • Foreclosure Related Issues Degrees/licenses: CPCU, AMIM, ASLI, broker/agent, life nership that combines the strengths of the business and agent, surplus lines agent. academic worlds. Our areas of expertise include identifying CREDENTIALS: JANICE A. RAMSAY, ESQ and supporting expert witnesses in intellectual property, Supervising Broker antitrust, securities, entertainment, real estate, financial insti- Responsible for overseeing more than 5 Savos, Irvine, CA 92603, (949) 854-9375, (949) 400-5040 tutions, and general business litigation. 7,500 RE transactions in major (cell), fax (949) 854-0073, e-mail: [email protected]. Con- California-based real estate companies. tact Janice A. Ramsay, Esq. FULCRUM INQUIRY Experienced in testifying in General Counsel depositions and at trial. Can provide consultation to litigation 888 South Figueroa Street, Suite 2000, Los Angeles, CA Legal adviser for two of nation’s largest counsel on property insurance coverage issues and proper 90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte real estate companies. claim handling. Practiced law in property insurance specialty @fulcrum.com. Web site: www.fulcrum.com. Contact since 1971. Has acted as appraiser, arbitrator, and mediator Adjunct Professor David Nolte. Our professionals are experienced CPAs, Loyola Law School in coverage or valuation disputes. MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research combined with unique Hotline Attorney RICHARD MASTERS INSURANCE Supervising Senior Counsel at California SERVICES, INC. presentation techniques have resulted in an unequaled Association of Realtors (CAR) record of successful court cases and client recoveries. Our 35 West Main Street, #B170, Ventura, CA 93001, (805) expertise encompasses damages analysis, lost profit stud- DRE Master Instructor 377-2688, fax (805) 830-0432, e-mail: richard.masters ies, business and intangible asset valuations, appraisals, Author, DRE Disclosure Course. @mac.com. Contact Richard Masters. Forty-two years of fraud investigations, troubled company consultation, statis- experience. Agent and broker standard of care. 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Los Angeles Lawyer November 2010 61 WHITE, ZUCKERMAN, WARSAVSKY, LUNA, @aol.com; [email protected]; PreventativeLaw@ao term on the State Bar Committee on Professional Responsi- WOLF & HUNT l.com. Web sites: www.LegalMalpracticeExperts.com; bility and Conduct, and has been appointed as an expert 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA www.LegalEthicsExperts.com. Contact Phillip Feldman. consultant by the Los Angeles Superior Court. Designated, consulting & testifying expert—30 years. Certi- 91423, (818) 981-4226, fax (818) 981-4278; 363 San LEGISLATIVE INTENT Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) fied specialist legal malpractice ABPLA/ABA. Forty-two 219-9816, fax (949) 219-9095, e-mail: [email protected]. years litigating and testifying regarding standard of care, WILLIAM H. KELLER causation, fiduciary duties, time bars, ethics, standard of Contact Barbara Luna or Bill Wolf. 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Web site: www.lawrencejacobson.com. Expert tax planning and preparation, IRS audit defense, tracing, cpereyra@cpslawfirm.com. Web site: www.cpsarbitration witness: lawyer malpractice in business and real estate unfair advertising, unfair competition, valuation of busi- .com. Contact Charles Pereyra-Suarez. Acted as an transactions, standard of care for real estate brokers and nesses, and wrongful termination. See display ad on expert witness for the plaintiffs in a legal malpractice case mortgage brokers, and real estate document custom and page 45. that resulted in a $38 million jury verdict in favor of the plain- usage. Practicing real estate and business law in California tiffs against a prominent international law firm. This was the since 1968. See display ad on page 67. INVESTIGATIVE SERVICES fifth largest jury verdict in California in 2005. 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Mr. MARKETING AND SURVEY RESEARCH 650 East Chase Drive, Corona, CA 92881, (951) 734-0633, Mark has had in excess of 35 matters as an expert witness MARYLANDER MARKETING RESEARCH fax (951) 737-9487. Web site: www.omalleyengineering in attorney malpractice cases, attorneys’ fee disputes and MMR STRATEGY GROUP .com. Contact James O’Malley. Mr. James O’Malley PE, cases involving issues of attorney ethics. He served 12 years LS, JD a civil engineer and land surveyor, has 40 years on the State Bar Committee on Mandatory Fee Arbitration, a 16501 Ventura Blvd. Suite, Suite 601, Encino, CA 91367, experience designing and building land developments with term on the State Bar Committee on Professional Responsi- (818) 464-2400, fax (818) 464-2399, e-mail: cjaffe particular expertise in boundary disputes, drainage issues, bility and Conduct, and has been appointed as an expert @mmrstrategy.com. Web site: www.mmrstrategy.com. entitlements and processing. The fundamental element in consultant by the Los Angeles Superior Court. Contact Cheryl Jaffe. MMR Strategy Group (MMR) pro- drainage cases is determining why the damage occurred LAW OFFICES OF CHRISTOPHER ROLIN vides trial ready surveys, rebuttals, and expert witness services in marketing for intellectual property litigation. Our and knowing who is responsible for that. His knowledge of 5707 Corsa Avenue, Suite 106, Westlake Village, CA studies measure consumer attitudes and behaviors for mat- the permitting and construction process and understanding 91362, (818) 707-7065, fax (818) 735-9992, e-mail: crolin ters involving topics such as confusion, secondary meaning, of legal issues is helpful when putting a case together. @chrisrolin.com. Web site: www.chrisrolin.com. Contact deceptive advertising, dilution, and claim substantiation. We Christopher Rolin. After more than 40 years as a trial LEGAL ETHICS work on matters involving trademarks, copyrights, advertis- attorney, Christopher Rolin is now focusing on advising liti- ing, pricing, and other intellectual property issues. MMR LAW OFFICES OF PHILLIP FELDMAN gants and transactional attorneys as a consultant and expert principals have extensive experience and top-tier creden- witness. His area of emphasis is attorney malpractice, 14401 Sylvan Street, Suite 208, Van Nuys, CA 91401, (818) tials, and the firm has been in business for more than 35 focusing on the applicable community standard of care for 986-9890, fax (818) 986-1757, e-mail: LegMalpExpert@aol years. .com; [email protected]; PreventativeLaw@aol practicing attorneys in the litigation and business area. His .com. Web sites: www.LegalMalpracticeExperts.com; trial experience has resulted in numerous assignments as an MECHANICAL ENGINEERING www.LegalEthicsExperts.com, www.CaStateBarDefense expert witness on trial and standard of care issues. He has ARGOS ENGINEERING .com. Contact Phillip Feldman. Former State Bar Exam- been retained as an expert by both plaintiff and defendants iner (Prosecutor) now State Bar Defense, Consultant, Pre- in legal malpractice cases. He is also an expert in fee dispute 44 Argos, Laguna Niguel, CA 92677, (949) 363-8205, fax ventative law/risk management, and testimony. Forty-two cases including cases before State Bar Arbitration Panels. (949) 429-5972, e-mail: [email protected]. Web site: www years of professional responsibility-ethics. Former Chair LEGAL PRACTICE .argos-engineering.com. Contact John D. Pratt, PhD, PE. SFVB Professional Responsibility & Ethics committee. Testi- Litigation consulting, inspections, expert reports, patent fying, consulting, lecturing and writing nationally on legal JOEL MARK infringement and validity analysis, deposition, and trial testi- ethics over 30 years. Former judge pro tem—25 years. NORDMAN CORMANY HAIR & COMPTON LLP mony. Attorney-client arbitrator—31 years. Certified Specialist 1000 Town Center Drive, 6th Floor, Oxnard, CA 93936, CTG FORENSICS, INC. Legal Malpractice ABPLA/ABA. (805) 988-8300, fax (805) 988-7700, e-mail: jmark@nchc 16 Technology Drive, Suite 109, Irvine, CA 92618, (949) LEGAL MALPRACTICE .com. Web site: www.nchc.com. Contact Joel Mark. Mr. 790-0010, fax (949) 790-0020, e-mail: jflynn@ctgforensics Mark has had in excess of 35 matters as an expert witness .com. Web site: www.CTGforensics.com. Contact John LAW OFFICES OF PHILLIP FELDMAN in attorney malpractice cases, attorneys’ fee disputes and Flynn, managing director. Construction-related engineer- 14401 Sylvan Street, Suite 208, Van Nuys, CA 91401, (818) cases involving issues of attorney ethics. He served 12 years ing, plumbing, mechanical (heating, ventilating, A/C) and 986-9890, fax (818) 986-1757, e-mail: LegMalpExpert on the State Bar Committee on Mandatory Fee Arbitration, a electrical (power, lighting), energy systems, residential and

62 Los Angeles Lawyer November 2010 nonresidential buildings, construction defects and delay analysis, cost to repair, construction claims, mold, and green/LEED buildings. MEDICAL

AMFS MEDICAL EXPERTS NATIONWIDE 6425 Christie Avenue, Suite 260, Emeryville, CA 94608, (800) 275-8903. Web site: www.AMFS.com. Medical experts for malpractice and personal injury cases. AMFS is America’s premier medical expert witness and consulting company. We are a trusted partner with the legal community and provide a superior method of retaining medical experts. For over 20 years, AMFS has provided board-certified experts in over 10,000 malpractice and personal injury cases. • Board-Certified experts in all medical specialties • Practicing physicians with legal experience, • No cost attorney consultations, • Record review and testimony, • Inde- pendent Medical Examinations (IME) and autopsies, • Essential affidavits and reporting. Discuss your case at no charge with one of our Medical Directors who will identify and clarify your case issues to ensure you retain the appropriate specialists. Cost-effective Initial Case reviews for merit. Have your case reviewed for merit by members of our 50+ member multi-specialty Physician Advisory Panel. Review and select expert CVs. Our experience, resources, and large proprietary database enable us to quickly identify and interview a large number of potential medical experts on your behalf and provide you with the CVs of those who are best suited to your case. See display ad on page 46. TASAMED LOCAL AND NATIONAL MEDICAL EXPERTS (A DIVISION OF THE TASA GROUP, INC.) Customized Expert Referrals in all Medical Practice Areas. (800) 659-8464, fax (800) 850-8272, e-mail: tasamed @tasanet.com. Web site: www.tasamed.com. Contact Linda Bartorillo. FIND THE TESTIFYING OR CONSULT- ING MEDICAL EXPERT YOU NEED quickly with one call or click to TASAmed. We refer superior, independent, experienced medical experts—including hard-to-find-specialists— for case merit reviews, testimony at deposition or trial, BOARD CERTIFIED ORTHOPEDIC SURGEON research, IME’s, and more in • 1,000+ medical fields. Our skilled Referral Advisors • target your criteria, • forward resumes for your review, and • help arrange your initial telephone screening interviews with experts. • No charge unless MARC J. FRIEDMAN, M.D. you designate or engage an expert we refer • Plaintiff or 6815 Noble Avenue, Van Nuys, California 91405 defense • Local, regional, national referrals. • Exceptional Tel. 818.901.6600 ext. 2810 • Fax: 818.901.6685 • Email: [email protected] personal service. Sample categories include anesthesiology, cardiology, dentistry, emergency medicine, forensic pathol- Web Site: www.scoi.com ogy, general surgery, hospital administration, neurology, nursing homes, OB/GYN, oncology, orthopedics, pediatrics, Education: Princeton University and Cornell Medical School pharmacology, plastic surgery, psychiatry, radiology, and more. Visit TASAnet.com, where you can search expert pro- Certificate: Board Certified Orthopedic Surgeon files by expertise keyword, request a Challenge History Memberships: Report on an expert’s past testimony, and request an expert Fellowship Sports Medicine on our online form. Please see our insert in this issue Fellow American Academy of Orthopedic Surgeons and display ad on page 42. Fellow in the Arthroscopy Association of North America Fellow in the International Arthroscopy Association MEDICAL/CARDIO-THORACIC SURGERY Fellow in the International Knee Society HENRY FEE, MD Fellow in the American Orthopedic Society of Sports Medicine ACL Study Group 14911 National Avenue, #6, Los Gatos, CA 95032, (408) 358-8771, fax (408) 358-8621. Contact Henry Fee, MD. Certified QME, IME, AME Graduated Harvard Medical School. Residency Johns Hop- Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of kins and UCLA. Expert witness in adult heart and lung the Knee and Shoulder, and Knee Replacement surgery for the defendant or the plaintiff. Twenty-five years of experience in medical legal field. Full-time surgical practice in Appointments: Assistant Clinical Professor, Division of Orthopedics, private hospital. UCLA School of Medicine, Chairman, Education Committee MEDICAL/CARDIOVASCULAR DISEASES Arthroscopy Association of North America 1997-1999 World Cup Soccer Team Physician, 1985 HAROLD L. KARPMAN, MD, FACC, FACP Physician Specialist XXIII Olympiad 1984 Cardiovascular Medical Group of Southern California, Inc. Orthopedic Consultant–New York Knicks and Jets 1978-1985 414 North Camden Drive #1100, Beverly Hills, CA 90210, Publications: 60 Publications including handbook for Orthopedic Surgeons (310) 278-3400, fax (310) 887-2979. Contact Harold L. Karpman, MD, FACC, FACP. Cardiovascular diseases (car- on Prosthetic Ligament Reconstruction of the Knee diology and medical vascular problems), and internal medi- Presentations: Lectures extensively with over 375 presentations worldwide cine. Special expertise in coronary disease, valvular heart disease, arrhythmias, devices, hypertension, drug studies,

Los Angeles Lawyer November 2010 63 product liability, bacterial endocarditis, angioplasty, CABG, MEDICAL/TOXICOLOGY detail, and expedience. Asset/financial searches; back- etc. Expert and reviewer with 40+ years of experience. ground investigation; DMV searches; domestic/marital JONATHAN S. RUTCHIK, MD, MPH, QME cases; due diligence investigations; mergers/acquisitions MEDICAL/DERMATOLOGY 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941, specialist; process service; surveillance/photograph; witness BIERMAN FORENSIC DERMATOLOGY (415) 381-3133, fax (415) 381-3131, e-mail: jsrutch@neoma location/interviews; workplace investigations—theft, harass- .com. Web site: www.neoma.com. Jonathan S. Rutchik, ment, and drugs. Bilingual agents. Fully insured. Correspon- 2080 Century Park East, #1008, Los Angeles, CA 90067, MD, MPH is a physician who is board certified in both Neu- dents nationwide. CA Private Investigator license # PI (310) 553-3567, fax (310) 553-4538, e-mail: sbiermanmd rology and Occupational and Environmental Medicine. He 12651. See display ad on page 56. @aol.com. Web site: www.biermandermatology.com. Con- provides clinical evaluations and treatment, including elec- tact Stanley Bierman, MD. Dr. Bierman is an expert wit- METALLURGICAL AND CORROSION tromyography, of individuals and populations with sus- ness in matters relating to diagnosis and treatment of skin ENGINEER pected neurological illness secondary to workplace injuries cancers including melanoma. He is an acknowledged expert or chemical exposure. Services include medical record and in legal matters relating to sexually transmitted diseases. Dr. CHEMICAL ACCIDENT RECONSTRUCTION utilization review and consulting to industrial, legal, govern- Bierman is honorary associate professor of medicine and SERVICES, INC. ment, pharmaceutical, and academic institutions on topics past president of Los Angeles Dermatologic Society. 9121 East Tanque Verde Road, Suite 105, Tucson, AZ such as metals and solvents, mold illness, Persian Gulf War 85749, (800) 645-3369, e-mail: [email protected]. MEDICAL/EMERGENCY MEDICINE syndrome, musicians’ injuries, and others. See display ad Web site: www.chemaxx.com. Contact Dr. Michael Fox. on page 52. RYAN O’CONNOR, MD Comprehensive chemical accident investigation—specializ- MEDICAL DEVICES ing in complex industrial chemical accidents and chemical- P.O. Box 26381, Los Angeles, CA 90026, (310) 990-9979, related consumer product injuries, chemical fires and explo- e-mail: [email protected]. Contact Ryan O’Connor, FALLBROOK ENGINEERING sions, chemical labeling, chemical packaging, handling and MD. Board certified emergency medical physician. Los 355 West Grand Avenue, Suite 4, Escondido, CA 92025, shipping, burns, warnings, labels, MSDSs, disposal, safety, Angeles County Superior Court list of expert witnesses. (760) 489-5400, fax (760) 489-5412, e-mail: veronicav EPA, OSHA, DOT, propane, natural gas, hydrogen, flamma- Acknowledged wound expert for the Los Angeles County @fallbrook-eng.com. Web site: www.fallbrook-eng ble liquids, hazardous chemicals, aerosols (hairspray, spray Public Defenders’ office. Available for medical record review .com. Contact Richard P. Meyst. Fallbrook Engineering paint, refrigerants), DOT certified (hazardous materials ship- and interpretation, consultation, and testimony. provides expert witness services in the areas of IP (patent ment), certified fire and explosion investigator, OSHA BRUCE WAPEN, MD infringement, invalidity, claim construction and trade dress), process hazard analysis team leader, PhD Physical Chem- EMERGENCY MEDICINE EXPERT personal injury, product liability, and product failure analysis. istry. Extensive experience in metallurgy, corrosion, and fail- 969-G Edgewater Boulevard, Suite 807, Foster City, CA Our professionals have represented both plaintiff and defen- ure analysis. 94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail: dant. We have done analysis, prepared declarations, been KARS ADVANCED MATERIALS, INC. [email protected]. Web site: www.DrWapen deposed, and testified in court. We have years of design Testing and Research Labs, 2528 West Woodland Drive, .com. Contact Bruce Wapen, MD. Board-certified emer- and development experience making us effective expert wit- Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- gency physician and experienced teacher/public speaker nesses in all matters involving medical devices. Visit our Web 7169, e-mail: [email protected]. Web site: www.karslab offers consultation, chart review, and testimony as an expert site at www.fallbrook-eng.com. .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. witness for defense or plaintiff involving litigation arising from MEDICAL LEGAL Southern California’s premier materials/mechanical/metallur- the emergency department. gical/structural/forensics laboratory. Registered professional ROUGHAN & ASSOCIATES AT LINC, INC. MEDICAL/NEUROLOGY/PERSONAL INJURY engineers with 30-plus years in metallurgical/forensic/struc- 114 West Colorado Boulevard, Monrovia, CA 91016, tural failure analysis. Experienced with automotive, bicycles, ANDREW WOO, MD, PHD (626) 303-6333, fax (626) 303-8080, e-mail: [email protected]. tires, fire, paint, plumbing, corrosion, and structural failures. 2021 Santa Monica Boulevard, Suite 525-E, Santa Monica, Contact Jan Roughan at ext. 16. Specialties: Roughan We work on both plaintiff and defendant cases. Complete CA 90404, (310) 829-2126, fax (310) 998-8887. Contact and Associates at LINC is a case management and med- in-house capabilities for tests. Extensive deposition and Gail. Board-certified neurology, clinical assistant professor ical/legal consulting firm. Services/products offered include: courtroom experience (civil and criminal investigations). Prin- UCLA, personal injury, pain, carpal tunnel, spine, memory, 1) Expert Testimony, 2) Life Care Plan (LCP) Construction cipals are fellows of American Society for Metals and board- seizure, sleep, and clinical protocols. Multiple sclerosis, /LCP Critique, 3) Medical Record Organization/Summariza- certified diplomates, American Board of Forensic Examiners. migraine, and stroke. Education: AB Cornell University, MD tion/Analysis, 4) Medical Bill Auditing, 5) Expert Witness See display ad on page 67. Identification, 6) IME Attendance, 7) Video Services (e.g., and PhD Brown University; residency + EMG/EEG fellowship METALLURGY UCLA; Advisory Boards: L.A. Neurologic Society, St. John’s Day In Life, Settlement Brief, IME Evaluation, NDT/PT Evalu- Sleep Lab; honors: America’s Top Physicians (Consumer ation, etc.), 8) Questions for: Deposition/Cross Examination KARS ADVANCED MATERIALS, INC. Research Consul of America) 2005, 2006, 2007, Who’s 9) Medical/Psychiatric Case Management. See display ad Testing and Research Labs, 2528 West Woodland Drive, Who in Medicine (2001) and science/engineering (1993), on page 47. Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- international electrophysiology Young Investigator (1997), MEDICAL MALPRACTICE 7169, e-mail: [email protected]. Web site: www.karslab UCLA Neurology Teaching Awards (1994, 1996, 2006), .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. American Academy Neurology Research (1991), Brown Uni- GRAHAM A. PURCELL, MD, INC. Southern California’s premier materials/mechanical/metallur- versity Sigma XI (1989), and research/publications (22), lec- Assistant Clinical Professor Orthopedic Surgery, UCLA gical/structural/forensics laboratory. Registered professional tures (552). 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985- engineers with 30-plus years in metallurgical/forensic/struc- MEDICAL/PLASTIC AND COSMETIC RECON- 3051, fax (818) 985-3049, e-mail: [email protected]. tural failure analysis. Experienced with automotive, bicycles, STRUCTIVE SURGERY Web site: gpurcellmd.com. Contact Graham A. Purcell, tires, fire, paint, plumbing, corrosion, and structural failures. MD. Dr. Purcell is a board certified orthopedic surgeon, We work on both plaintiff and defendant cases. Complete JOHN M. SHAMOUN, MD, FACS, INC. subspecialty in spinal disorders affecting adults and children. in-house capabilities for tests. Extensive deposition and 360 San Miguel, Suite 406, Newport Beach, CA 92660, Examples of spinal disorders treated by Dr. Purcell include courtroom experience (civil and criminal investigations). Prin- (949) 759-3077, fax (949) 759-5458, e-mail: jmshamoun disc diseases, stenosis, infections, tumors, injuries, and cipals are fellows of American Society for Metals and board- @aol.com. Web site: www.ideallook.com. Contact deformities including scoliosis. He possesses 30 years of certified diplomates, American Board of Forensic Examiners. Yvonne. Specialties: only plastic surgeon in the United orthopedic and 22 years of med-legal experience, including See display ad on page 67. defense, plaintiff, insurance carriers, CA Attorney General’s States board certified by the 1) American Board of Surgery, METEOROLOGY 2) American Board of Plastic Surgery, 3) American Board of office and Public Defender’s office. Expert testimony per- Facial Plastic and Reconstructive Surgery, and 4) American tains to med-mal, personal injury, and workers’ compensa- AIR, WEATHER, AND SEA CONDITIONS, INC. Board of Forensic Medicine. Extensive experience in all tion cases. As a qualified medical evaluator, Dr. Purcell has P.O. Box 512, Pacific Palisades, CA 90272, (818) 645- aspects of cosmetic, plastic, and reconstructive surgery of extensive experience in performing QMEs, AMEs, IMEs, WC 8632, fax (310) 454-7569, e-mail: [email protected]. the breast, nose, face, eye, and body. Well-published author evals. See display ad on page 65. Web site: www.weatherman.org. Contact Jay Rosenthal, of several textbook chapters and journal articles related to MERGERS/ACQUISITIONS AMS Certified Consulting Meteorologist (CCM). Experi- above topics. Extensive experience in medical malpractice enced and authoritative expert testimony, reports and analy- case review, consultation, written evaluation and testimony BENCHMARK INVESTIGATIONS ses of wind, rain, storms, climatic conditions, flooding, in depositions and trial for plaintiff and defense. Articulate 32158 Camino Capistrano, # A-415, San Juan Capistrano, waves; specialist in auto/boat/ship/aircraft accident recon- subspecialty consultant with up-to-date knowledge and CA 92675, (800) 248-7721, fax (949) 248-0208, e-mail: struction, property damage, slip and falls, construction, mold expertise of plastic surgery literature and standards of care. [email protected]. Web site: www.BenchmarkInvestiga- issues, homeland security applications, air pollution, trans- Opinions supported by extensive subspecialty education, tions.com. Contact Jim Zimmer, CPI. National agency. port, and risk identification. Movie industry applications, cin- training, and experience. Professional investigations with emphasis on accuracy, ematography, and visual effects. Determining unusualness,

64 Los Angeles Lawyer November 2010 normalcy, and foreseeability. Official data, site visits, clear and convincing testimony. See display ad on page 55. 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. Reg- istered nurse with over 40 years of clinical experience. Non- testifying services include case analysis/for merit, chronology, translation, written reports, medical record organization. DME/IME accompaniment including CD recording and written report. Expert witness and testifying services, including affidavit, arbitration, declaration, and trial. Courtroom experienced both plaintiff and defense. OBSTETRICS & GYNECOLOGY

ANTON L AMBROSE, MD, FACOG 18350 Roscoe Boulevard, Suite 504, Northridge, CA 91325, (818) 341-3111, fax (818) 886-6925, e-mail: [email protected]. Contact Anton L. Ambrose, MD, FACOG. Specialties: OB/GYN. Diplomate, American Board of OB/GYN; Fellow, American College of OB/GYN; member; American Medical Association, Los Angeles County Medical Association, Sri Lanka Medical Association of North America; Assistant clinical professor, UCLA School of Medicine; OB/GYN Coordinator Family Practice Resi- dency Program, Northridge Hospital; private practice OB/GYN, Northridge California. Experienced expert witness. 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 63. RICHARD C. ROSENBERG, MD 18370 Burbank Boulevard, Suite 614, Tarzana, CA 91356, Others get too wrapped up (818) 996-6800, fax (818) 996-2929, e-mail: rcrnsx@aol .com. Web site: www.drrosenberg.com. Orthopedic surgery, in the numbers. We discover sports medicine, and physical therapy. Experienced in IME, QME, agreed medical exams, med/legal reports, and expert and defi ne fi nancial value. witness testimony. Personal injury and workers’ compensation. Additional offices in Oxnard and Santa Ana California. RGL Forensics is an international fi rm of accounting, WILLIAM B. STETSON, MD valuation and technology professionals who are 191 South Buena Vista Street, Suite 470, Burbank, CA 91505, (818) 848-3030, fax (818) 848-2228, e-mail: specially trained to sort through the details and [email protected]. Web site: www.sportsmedicinedr make sense of the data. .com. Contact W. Stetson, MD. Dr. Stetson is fellowship trained in arthroscopic surgery of the shoulder, knee, elbow, We specialize in litigation support services: and ankle. He is an Associate Clinical Professor of orthope- pre-trial preparation, economic damage analysis, dic surgery at the USC Keck School of Medicine. He also has extensive experience in sports medicine and orthopedic investigative accounting and embezzlement, trauma. business valuation, fraud, business interruption, PATENTS loss of earnings calculations, e-discovery, and expert witness testimony. ARGOS ENGINEERING

44 Argos, Laguna Niguel, CA 92677, (949) 363-8205, fax 6OJUFE4UBUFT &VSPQF "TJB1BDJGJD (949) 429-5972, e-mail: [email protected]. Web site: Alan J. Lurie, CPA/CFF, CFE Henry J. Kahrs, CPA/ABV/ www.argos-engineering.com. Contact John D. Pratt, PhD, PE. Litigation consulting, inspections, expert reports, Robert D. Jones, CBM, CFE CFF, CFE, CMA, CM patent infringement and validity analysis, deposition, and trial S. Figueroa Street, City Drive South, testimony. Suite Suite Los Angeles, CA Orange, CA FALLBROOK ENGINEERING local .. .. 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), rgl.com personal injury, product liability, and product failure analysis. Our professionals have represented plaintiffs and defen-

Los Angeles Lawyer November 2010 65 dants. We have done analysis, prepared declarations, been PLUMBING pedestrian biomechanics, rollover, visibility issues, golf car, deposed, and testified in court. We have years of design and low speed vehicle safety. Computer animation and sim- and development experience making us effective expert wit- CTG FORENSICS, INC. ulation services, scene inspections, crush measurements, tire nesses in all matters involving medical devices. Visit our Web 16 Technology Drive, Suite 109, Irvine, CA 92618, (949) skid testing and calculations are also provided. Free phone site at www.fallbrook-eng.com. 790-0010, fax (949) 790-0020, e-mail: jflynn@ctgforensics consultation or visit our Web site for more information. .com. Web site: www.CTGforensics.com. Contact John PEDIATRIC EXPERT WITNESS QUESTIONED DOCUMENTS Flynn, managing director. Construction-related engineer- MICHAEL WEINRAUB, MD ing, plumbing, mechanical (heating, ventilating, A/C) and RILE & HICKS, FORENSIC DOCUMENT electrical (power, lighting), energy systems, residential and 515 South Flower Street, Suite 3600, Los Angeles, CA EXAMINERS nonresidential buildings, construction defects and delay 90071, (213) 236-3662, fax (213)236-3663, e-mail: HOWARD C. RILE, JR. AND A. FRANK HICKS analysis, cost to repair, construction claims, mold, and [email protected]. Contact Dr. Michael Weinraub. 100 Oceangate, Suite 670, Long Beach, CA 90802-4312, green/LEED buildings. Board Certified Pediatrician. Child abuse and neglect, Mun- (562) 901-3376, fax (562) 901-3378, e-mail: info@rileand- chausen syndrome by proxy, shaken baby syndrome (SBS), POLICE hicks.com. Web site: www.rileandhicks.com. Diplomates, lead poisoning, fetal alcohol spectrum disorder (FASD), American Board of Forensic Document Examiners. Mem- pediatric malpractice, childhood injury and product liability, DANIEL R. SULLIVAN, DEPUTY CHIEF, bers, ASQDE, SWAFDE, SAFDE; Fellow AAFS. Combined developmental disabilities (autism), healthcare of foster chil- LAPD, RET. 65+ years’ experience in examination and evaluation of dis- dren, and custody evaluation for pediatric concerns. 39432 Narcissus Way, Palm Desert, CA 92211, (818) 590- puted documents, including handwriting and signatures 2486, e-mail: [email protected]. Web site: (wills, deeds, checks, etc.) medical records, business PERSONAL INJURY www.investigativeservices.com. Contact Dan Sullivan. records, typewriting, printing, and/or other business KGA, INC. Expert witness—use of force/police practices, event/facility machine processes, alterations, indentations, obliterations, security—consultant to cities of Los Angeles, Beverly Hills, and ink and paper questions. Fully equipped darkroom and 1409 Glenneyre Street, Suite A, Laguna Beach, CA 92651, U.S. Department of Justice. Qualified as expert over 150 laboratory, including VSC-4C and ESDA. Testified more than (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg@kgainc times in superior/federal courts. 600 times. .com. Web site: www.kgainc.com. Contact Kurt Grosz. Construction and Environmental Consultants since 1991. PRIVATE INVESTIGATIONS SANDRA L. HOMEWOOD, FORENSIC Licensed engineers and contractors. ICC building, plumbing, DOCUMENT EXAMINER BENCHMARK INVESTIGATIONS mechanical, concrete and accessibility inspectors. Certified 1132 San Marino Drive, Suite 216, Lake San Marcos, CA professional estimator. California EPA environmental asses- 32158 Camino Capistrano, # A-415, San Juan Capistrano, 92078, (760) 931-2529, fax (760) 510-8412, e-mail: home- sors. Trial expert, arbitrator, and insurance appraiser. CA 92675, (800) 248-7721, fax (949) 248-0208, e-mail: [email protected]. Contact Sandra L. Homewood. GRAHAM A. PURCELL, MD, INC. [email protected]. Web site: www.BenchmarkInvestiga- Highly skilled and experienced document examiner and tions.com. Contact Jim Zimmer, CPI. National agency. expert witness in many complex and high profile civil and Assistant Clinical Professor Orthopedic Surgery, UCLA Professional investigations with emphasis on accuracy, criminal cases with fully equipped document laboratory. 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985- detail, and expedience. Asset/financial searches; back- Specializing in handwriting and handprinting identification, 3051, fax (818) 985-3049, e-mail: [email protected]. ground investigation; DMV searches; domestic/marital handwriting of the elderly in financial elder abuse cases and Web site: gpurcellmd.com. Contact Graham A. Purcell, cases; due diligence investigations; mergers/acquisitions will contests, and examination of altered medical and corpo- MD. Dr. Purcell is a board certified orthopedic surgeon, specialist; process service; surveillance/photograph; witness rate records. Trained in government laboratory including subspecialty in spinal disorders affecting adults and children. location/interviews; workplace investigations—theft, harass- specialized training by the FBI and Secret Service. Former Examples of spinal disorders treated by Dr. Purcell include ment, and drugs. Bilingual agents. Fully insured. Correspon- government experience includes document examiner for the disc diseases, stenosis, infections, tumors, injuries, and dents nationwide. CA Private Investigator license # PI San Diego Police Department crime lab, Arizona State crime deformities including scoliosis. He possesses 30 years of 12651. See display ad on page 56. lab and San Diego County District Attorney’s office. Cur- orthopedic and 22 years of med-legal experience, including rently in private, criminal, and civil practice. defense, plaintiff, insurance carriers, CA Attorney General’s PROBATE LAW office and Public Defender’s office. Expert testimony per- REAL ESTATE HONORABLE ANITA RAE SHAPIRO tains to med-mal, personal injury, and workers’ compensation cases. As a qualified medical evaluator, Dr. Purcell has Superior Court Commissioner (Retired), P.O. Box 1508, ADVISORS/EXPERTS @ MCS ASSOCIATES extensive experience in performing QMEs, AMEs, IMEs, WC Brea, CA 92822-1508, e-mail: privatejudge@adr- 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) evals. See display ad on page 65. shapiro.com. Web site: http://adr-shapiro.com. Retired Los 263-8700, fax (949) 263-0770, e-mail: experts@mcsassoci- Angeles Superior Court commissioner (15 years) available to RYAN O’CONNOR, MD ates.com. Web site: www.mcsassociates.com. Contact serve as a probate expert witness in cases involving wills Norman Katz, managing partner. Nationally recognized P.O. Box 26381, Los Angeles, CA 90026, (310) 990-9979, and trust issues. Presided in Long Beach Probate Depart- banking, finance, insurance, and real estate consulting e-mail: [email protected]. Contact Ryan O’Connor, ment five years. See display ad on page 41. group (established 1973). Experienced litigation consul- MD. Board certified emergency medical physician. Los PROCESS SERVER tants/experts include senior bankers, lenders, consultants, Angeles County Superior Court list of expert witnesses. economists, accountants, insurance underwriters/brokers. Acknowledged wound expert for the Los Angeles County BENCHMARK INVESTIGATIONS Specialties: lending customs, practices, policies, in all types Public Defenders’ office. Available for medical record review of lending (real estate, subprime, business/commercial, con- 32158 Camino Capistrano, # A-415, San Juan Capistrano, and interpretation, consultation, and testimony. struction, consumer/credit card), banking operations/admin- CA 92675, (800) 248-7721, fax (949) 248-0208, e-mail: zim- WHITE, ZUCKERMAN, WARSAVSKY, LUNA, istration, trusts and investments, economic analysis and val- [email protected]. Web site: www.BenchmarkInvestiga- WOLF & HUNT uations/damages assessment, insurance claims, coverages tions.com. Contact Jim Zimmer, CPI. National agency. and bad faith, real estate brokerage, appraisal, escrow, and 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA Professional investigations with emphasis on accuracy, construction defects/disputes, and title insurance. 91423, (818) 981-4226, fax (818) 981-4278; 363 San detail, and expedience. Asset/financial searches; back- Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) ground investigation; DMV searches; domestic/marital STEPHEN B. FAINSBERT, ESQ., FAINSBERT 219-9816, fax (949) 219-9095, e-mail: [email protected]. cases; due diligence investigations; mergers/acquisitions MASE AND SNYDER, LLP Contact Barbara Luna or Bill Wolf. Expert witness testi- specialist; process service; surveillance/photograph; witness 11835 West Olympic Boulevard, Suite 1100, Los Angeles, mony for complex litigation involving damage analyses of location/interviews; workplace investigations—theft, harass- CA 90064, (310) 473-6400, fax (310) 473-8702, e-mail: lost profits, unjust enrichment, reasonable royalties, lost ment, and drugs. Bilingual agents. Fully insured. Correspon- [email protected]. Contact Stephen B. Fainsbert. earnings, lost value of business, forensic accounting, fraud dents nationwide. CA Private Investigator license # PI Expert testimony in real property exchanges (coauthor CEB investigation, investigative analysis of liability, marital dissolu- 12651. See display ad on page 56. publication Real Property Exchanges, 2nd ed.), real estate tion, and tax planning and preparation. Excellent communi- PRODUCT LIABILITY transactions, standard of care and practice for real estate cators with extensive testimony experience. Prior Big Four brokers, escrow, and real estate attorneys, disclosures in accountants. Specialties include accounting, breach of con- CALIFORNIA TECHNOLOGY ASSOCIATES purchase and sale agreements, real estate financing, and tract, business interruption, business dissolution, construc- secured real property transactions. tion defects, delays, and cost overruns, fraud, insurance bad 17410 Mayerling Street, Granada Hills, CA 91344, (800) faith, intellectual property including trademark, patent, and 358-9909. Web site: www.technology-assoc.com. Contact HOWARD N. GOULD copyright infringement, and trade secrets, malpractice, mari- Dr. Ojalvo, chairman. Over 1700 cases. Our staff of PhDs FINESTONE & RICHTER tal dissolution, personal injury, product liability, real estate, tax and professors has many scientific publications and 1875 Century Park East, Suite 1500, Los Angeles, CA planning and preparation, IRS audit defense, tracing, unfair decades of testing and testifying experience. We handle all 90067, (310) 575-0800, ext. 249 fax (310) 575-0170, e- advertising, unfair competition, valuation of businesses, and types of vehicle issues such as crash and precrash speeds, mail: [email protected]. Web site: www.frlawcorp.com. wrongful termination. See display ad on page 45. seatbelt usage, airbag deployment, component failure, road- Attorney malpractice in residential real estate, residential way design, low speed rear-end impacts, occupant and

66 Los Angeles Lawyer November 2010 brokerage issues including standard of care, agent/broker employment issues, broker and finder issues, corporate, LLC, partnership and shareholder disputes. LAW OFFICE OF LORE HILBURG 1625 South Cimarron Street, Los Angeles, CA 90019, (323) 737-4444, fax (323) 737-4411, e-mail: [email protected] or [email protected]. Contact Richard Reinhardt. Lore Hilburg Esq. is a seasoned professional who has served as an expert witness as to escrow issues, and real property title disputes such as easements, constructive notice and grantor/grantee index searches. Ms. Hilburg also serves as a consultant on these issues whether they arise in litigation involving a tort claim, legal malpractice, or breach of contract or a transactional setting. LAWRENCE H. JACOBSON, ESQ. 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA 90212, (310) 271-0747, fax (310) 271-0757, e-mail: [email protected]. Web site: www.lawrencejacobson.com. Expert witness: lawyer malpractice in business and real estate transactions, standard of care for real estate brokers and mortgage brokers, and real estate document custom As an Expert Witness in Real Estate Litigation, Attorney and usage. Practicing real estate and business law in Cali- fornia since 1968. See display ad on page 67. LAWRENCE H. JACOBSON MAURICE ROBINSON AND ASSOCIATES LLC has consistently been on the Winning Team 880 Apollo Street, Suite 125, El Segundo, CA 90245, (310) • Real estate and • Lawyer malpractice • Interpretation 640-9656, fax (310) 640-9276, e-mail: maurice@mauricerobinson.com. Web site: www.mauricerobinson.com. mortgage brokers’ in business and real of real estate Contact R. Maurice Robinson, president. Hotel and real standard of care estate transactions documents estate industry business issues, including market, economic Practicing real estate law in California since 1968. Member, Executive Committee, Beverly Hills Bar Association. and financial feasibility, valuation, and disputes between Former Vice President-Legal Affairs, California Association of Realtors. California Real Estate Broker since 1978. owner-operator, borrower-lender, and franchisor-franchisee. Fluent in management contracts, license agreements, LAWRENCE H. JACOBSON AB, UCLA 1964, JD UCLA SCHOOL OF LAW 1967 ground and building leases, partnership and JV agreement, concession contracts, development agreements, and loan Tel 310.271.0747 Fax 310.271.0757 email [email protected] www.lawrencejacobson.com docs. Can estimate damages and appraise property values LAW OFFICES: 9401 WILSHIRE BLVD. SUITE 1250, BEVERLY HILLS, CA 90212 under multiple scenarios. Expert witness testimony, litigation strategy, consultation and support, damage calculations, lost profits analysis, real estate appraisals, deal structuring, workouts, new development, strategic planning, market demand assessment, acquisition due diligence, and economic, financial, and investment analysis. ALAN D. WALLACE, ESQ. THE BEST LEGAL MINDS 14011 Ventura Boulevard, Suite 406, Sherman Oaks, CA 91423, (818) 501-0133, fax (818) 905-6091, e-mail: awal- IN THE COUNTRY [email protected]. Contact Alan D. Wallace, Esq. Expert witness and litigation consulting for general real estate mat- TALK TO US ters, including law, custom and practice, agency, disclosure, broker malpractice, standards of care for brokers, buyers and sellers. Broker and attorney. Involved as broker in more than 7,500 real estate transactions. Department of Real • Metallurgical Failures • Bio-Medical/Orthopedic Implants Estate master instructor and author, adjunct professor Loy- ola Law School, former CAR hotline attorney, university law • Corrosion & Welding Failures • Plumbing/Piping/ABS Failures professor in real estate. Successfully testified in dozens of • Glass & Ceramic Failures • Complete In-House Laboratory cases. See display ad on page 61. • Chairs / Ladders / Tires Testing & Analysis Facilities WARONZOF ASSOCIATES, INC. • Automobile/Aerospace/ • Expert Witnesses/Jury Verdicts 2250 East Imperial Highway, Suite 120, El Segundo, CA 90245, (310) 322-7744, fax (310) 322-7755. Web site: Accidents • Licensed Professional Engineers www.waronzof.com. Contact Timothy R. Lowe, MAI, CRE. Waronzof provides real estate and land use litigation Contact: Dr. Naresh Kar, Fellow ASM, Fellow ACFE support services including economic damages, lost profits, financial feasibility, lease dispute, property value, enterprise Dr. Ramesh Kar, Fellow ASM, Fellow ACFE value, partnership interest and closely-held share value, fair compensation, lender liability and reorganization plan feasibility. Professional staff of five with advanced degrees and training in real estate, finance, urban planning and accounting. See display ad on page 67. ADVANCED MATERIALS, INC. REAL ESTATE APPRAISAL Testing & Research Labs 2528 W. Woodland Drive ADELMAN APPRAISALS, INC. Anaheim, CA 92801 14431 Ventura Boulevard, Suite 288, Sherman Oaks, CA I 91423, (818) 995-0648, fax (818) 990-0326, e-mail: adel- TEL: (714)527-7100 [email protected]. Web site: www.adelmanap- I FAX: (714)527-7169 praisals.com. Contact Chris Adelman. Specialties: 20+ I www.karslab.com I email: [email protected] years of experience in residential real estate appraisals, high-

Los Angeles Lawyer November 2010 67 end residential appraisals, divorces, separation, trust, and Experienced staff of consultants specializing in cedures and practices, expert case analysis and testimony, retroactive appraisals, expert witness, depositions for resi- forensic/expert witness litigation services, plan/document corporate procedures, training and operations, kidnap, ran- dential evaluations and litigation, vacant land evaluations, review, specification preparation, and quality control/man- som, extortion, and workplace violence issues. Thirty-five extensive experience in dealing with law offices, business agement services. years of law enforcement and security experience, domestic managers, and accounting firms for various appraisal related and international. Listed in the Encyclopedia of Security SECURITIES business. Quoted 11/05 in the L.A. Daily Journal, expert wit- Management as “One of the most highly recognized security ness cover story. CORNERSTONE RESEARCH authorities in the US.” CA PI Lic. 0021073. RECEIVER 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- SEXUAL HARASSMENT/DISCRIMINATION 2005, (213) 553-2500, fax (213) 553-2699, Web site: SALTZBURG, RAY & WEISSMAN, LLP www.cornerstone.com. Contact George G. Strong, Jr., HAIGHT CONSULTING 12121 Wilshire Boulevard, Suite 600, Los Angeles, CA Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) 90025, (310) 481-6780, fax (310) 481-6707, e-mail: DLR Carlyn Irwin or Elisabeth Browne. Cornerstone 454-2988, fax (310) 454-4516. Contact Marcia Haight, @srblaw.com: [email protected]. Web site: www Research provides attorneys with expert testimony and eco- SPHR—CA. Human resources expert knowledgeable in .srblaw.com. Contact David L. Ray, Esq., or Richard nomic and financial analyses in all phases of commercial liti- both federal and California law. Twenty-five years’ corporate Weissman, Esq. Specializes in handling complex receiver- gation. We work with faculty and industry experts in a dis- human resources management experience plus over 20 ship matters, such as partnership and corporate dissolu- tinctive partnership that combines the strengths of the years as a Human Resources Compliance Consultant in tions, including law firm dissolutions, and government business and academic worlds. Our areas of expertise California. Specializations include sexual harassment, enforcement receivership actions, including actions brought include identifying and supporting expert witnesses in intel- ADA/disability discrimination, other Title VII and FEHA dis- by the California Department of Corporations, Department of lectual property, antitrust, securities, entertainment, real crimination and harassment, retaliation, FMLA/CFRA, safety, Real Estate, Commodities Future Trading Commission, and estate, financial institutions, and general business litigation. and wrongful termination. Courtroom testimony and deposi- Federal Trade Commission. Nationally recognized in both MARKET CONSULTING CORPORATION tion experience. Retained 60 percent by defense, 40 per- the lender and litigation communities as qualified to assist in cent by plaintiff. Audit employer’s actions in preventing and complicated and commercially sophisticated liquidations, (213) 627-0440, (888) 397-9867, e-mail: rcornew@market- resolving discrimination, harassment, and retaliation issues. reorganizations, and ongoing business operations. See dis- consulting.com. Web site: www.market-consulting.com. Assess human resources policies and practices for sound- play ad on page 60. Contact Dr. Ronald W. Cornew. Twenty plus years as ness, for comparison to prevailing practices, and for compli- consultants in investment and trading litigation. Asset man- ance. Evaluate employer responsiveness to complaints and RESTAURANT/HOTEL agement, pension investments, securities and futures tax effectiveness of employer investigations. Assist counsel via matters including IRS examinations, appeals, U.S. Tax Court LEON GOTTLIEB preliminary case analysis, discovery strategy, examination of appearances. Broker/customer disputes: stocks and bonds, USA-INT’L RESTAURANT, HOTEL FRANCHISE documents, and expert testimony. options, commodity futures, currency trading; derivatives COSULTANT & EXPERT WITNESS including swaps; limited partnerships, hedge funds, man- SPINAL CORD INJURY 4601 Sendero Place, Tarzana, CA 91356, (818) 757-1131, aged futures. Consultants to NYSE, Options Clearing Cor- GRAHAM A. PURCELL, MD, INC. fax (818) 757-1816, e-mail: [email protected]. Web site: poration, CBOT, CME, COMEX, TIAA/CREF, banks, other http://flashjordan.com/leongottlieb.htm. Over 45 years major clients. Arbitrator NASD, NYSE, AAA, NFA, mediator Assistant Clinical Professor Orthopedic Surgery, UCLA hands-on experience; all types of restaurants, fast foods, with NASD training. Member: Compliance and Legal Divi- 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985- hotels, operations, training, manuals, franchisor-franchisee sion, Securities Industry Association. 3051, fax (818) 985-3049, e-mail: [email protected]. disputes, industry standards/practices, safety, and security. Web site: gpurcellmd.com. Contact Graham A. Purcell, ROBERT C. ROSEN Former partner, V.P. IHOP, president, Copper Penny chain, MD. Dr. Purcell is a board certified orthopedic surgeon, author, director, and expert witness. Wells Fargo Center, 333 South Grand Avenue, Suite 1925, subspecialty in spinal disorders affecting adults and children. Los Angeles, CA 90071, (213) 362-1000, fax (213) 362- Examples of spinal disorders treated by Dr. Purcell include RETALIATION 1001, e-mail: [email protected]. Web site: disc diseases, stenosis, infections, tumors, injuries, and www.rosen-law.com. Specializing in securities law, federal HAIGHT CONSULTING deformities including scoliosis. He possesses 30 years of securities law enforcement, securities arbitration, and inter- orthopedic and 22 years of med-legal experience, including 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) national securities, insider trading, NYSE, AMEX, NASD dis- defense, plaintiff, insurance carriers, CA Attorney General’s 454-2988, fax (310) 454-4516. Contact Marcia Haight, ciplinary proceedings, broker-dealer, investment company office and Public Defender’s office. Expert testimony per- SPHR—CA. Human resources expert knowledgeable in and investment adviser matters, liability under federal and tains to med-mal, personal injury, and workers’ compensa- both federal and California law. Twenty-five years’ corporate state securities laws, public and private offerings, Internet tion cases. As a qualified medical evaluator, Dr. Purcell has human resources management experience plus over 20 securities, and law firm liability. AV rated. Former chair, extensive experience in performing QMEs, AMEs, IMEs, WC years as a Human Resources Compliance Consultant in LACBA Business and Corporations Law Section; LLM, Har- evals. See display ad on page 65. California. Specializations include sexual harassment, vard Law School. More than 37 years practicing securities ADA/disability discrimination, other Title VII and FEHA dis- law, 12 years with the U.S. Securities and Exchange Com- TAXATION crimination and harassment, retaliation, FMLA/CFRA, safety, mission, Washington, DC. Published author/editor of securi- KAJAN MATHER AND BARISH and wrongful termination. Courtroom testimony and deposi- ties regulations, including multivolume treatises. See dis- tion experience. Retained 60 percent by defense, 40 per- play ad on page 43. 9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA 90212, cent by plaintiff. Audit employer’s actions in preventing and (310) 278-6080, fax (310) 278-4805, e-mail: KMBlaw resolving discrimination, harassment, and retaliation issues. SECURITY @taxdisputes.com. Web site: www.taxdisputes.com. Con- Assess human resources policies and practices for sound- tact Elliott H. Kajan. The firm’s practice is devoted to rep- DR. STEVE ALBRECHT, PHR, CPP ness, for comparison to prevailing practices, and for compli- resentation of taxpayers before the Internal Revenue Ser- ance. Evaluate employer responsiveness to complaints and 9528 Miramar Road, #270, San Diego, CA 92126, (619) vice, Franchise Tax Board, State Board of Equalization, and effectiveness of employer investigations. Assist counsel via 445-4735, e-mail: [email protected]. Web site: California Employment Development Department, involving preliminary case analysis, discovery strategy, examination of www.drstevealbrecht.com. Contact Dr. Steve Albrecht, tax audits, administrative appeals proceedings, tax collection documents, and expert testimony. PHR, CPP. Workplace violence threat assessment expert. matters, complex tax litigation, and criminal tax investiga- HR policies and procedures, negligent hiring, supervision, tions and trials. The firm also represents and advises ROOFING AND WATERPROOFING training, background checks, sexual/racial liability, discipline accountants and attorneys regarding tax penalties and pro- and termination practices. Security failures, premise liability, KGA, INC. fessional responsibility matters. forseeability, prior notice, and employee injury/deaths due to 1409 Glenneyre Street, Suite A, Laguna Beach, CA 92651, violence. Police procedures, arrests and use of force, crimi- TRAFFIC ENGINEERING (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg@kgainc nal behavioral, gang violence, and homicides. Speaker, ACCIDENT RECONSTRUCTION SPECIALISTS .com. Web site: www.kgainc.com. Contact Kurt Grosz. trainer, author, retired San Diego PD, coauthor, Ticking Construction and Environmental Consultants since 1991. Bombs. Expert witness history, CV, and fees upon request. (Field Test Engineering Inc,) 340 Golden Shore, Suite 400, Licensed engineers and contractors. ICC building, plumbing, See YouTube.com link at www.drstevealbrecht.com. Long Beach, CA 90802, (800) 675-7667, fax (562) 432- mechanical, concrete and accessibility inspectors. Certified 2322. Also: 11440 Bernardo Court, Suite 300, San Diego, CONFIDENTIAL BUSINESS CONSULTANTS professional estimator. California EPA environmental asses- CA 92127, 8275 South Eastern Avenue, Suite 200, Las sors. Trial expert, arbitrator, and insurance appraiser. 1049 Linda Glen Drive, Pasadena, CA 91105, (626) 419- Vegas, NV 89123; 2900 Adams Street, Riverside, CA 0082, fax (626) 792-9805, e-mail: [email protected]. VAN DIJK & ASSOCIATES, INC. 92604, 7362 Remcon Circle, El Paso, TX 79912. Web site: Contact James F. Broder, CFE, CPP, FACFE. Author of www.FieldAndTestEngineering.com. Contact Robert F. 28 Hammond, Suite G, Irvine, CA 92618, (949) 586-3828, “Risk Analysis and the Security Survey,” (4th edition), Douglas, PE—engineering manager. Registered profes- fax (949) 586-7429, e-mail: [email protected]. Web premises liability, adequate versus inadequate security pro- sional engineer in California and Arizona, member— site: www.vdaconsulting.com. Contact Nils Van Dijk.

68 Los Angeles Lawyer November 2010 NCUTCD, I.T.F., ASTM, Transp. Research Board, ASCE, more tour entities than any other legal/custom and practice extensive experience in performing QMEs, AMEs, IMEs, WC SAE, ATSSA, IEEE. Profile: Accident reconstruction, human consultant. evals. See display ad on page 65. factors, failure analysis, traffic, and transportation engineer- WASTEWATER ing. Auto/truck/train/ped/bike/cycle accidents. See display WOUND ANALYSIS ad on page 47. JOHN SHAW CONSULTING, LLC WILLIAM KUNZMAN, PE P.O. Box 4259, Truckee, CA 96160, (530) 550-1576, fax RYAN O’CONNOR, MD 1111 Town and Country #34, Orange, CA 92868, (714) (530) 579-3388, e-mail: [email protected]. Web site: P.O. Box 26381, Los Angeles, CA 90026, (310) 990-9979, 973-8383, fax (714) 973-8821, e-mail: mail@traffic-engi- www.shaweng.com. Contact John Shaw, PE. Water/ e-mail: [email protected]. Contact Ryan O’Connor, neer.com. Web site: www.traffic-engineer.com. Contact wastewater/sewer industry—unique combination of opera- MD. Board certified emergency medical physician. Los William Kunzman, PE. Traffic expert witness since 1979, tions and engineering background. Sanitary engineering Angeles County Superior Court list of expert witnesses. both defense and plaintiff. Auto, pedestrian, bicycle, and including water (potable) and wastewater (industrial and Acknowledged wound expert for the Los Angeles County motorcycle accidents. Largest verdict: $10,300,000 in domestic) treatment, conveyance, hydraulics, storage, Public Defenders’ office. Available for medical record review pedestrian accident case against Los Angeles Unified reuse, master planning, operations, maintenance, and and interpretation, consultation, and testimony. expert witness and forensic (mode of failure and standard of School District. Largest settlement: $2,000,000 solo vehicle WRONGFUL TERMINATION accident case against Caltrans. Before becoming expert wit- care analysis; engineering analysis; product suitability and nesses, employed by Los Angeles County Road Depart- construction defect issues). Wastewater treatment plants, HAIGHT CONSULTING ment, Riverside County Road Department, City of Irvine, and disposal/reuse facilities, sewage lift station design, sewer 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) Federal Highway Administration. Knowledge of governmen- collection systems, and sludge treatment. Water treatment 454-2988, fax (310) 454-4516. Contact Marcia Haight, tal agency procedures, design, geometrics, signs, traffic plants, pipelines, and swimming pools. SPHR—CA. Human resources expert knowledgeable in controls, maintenance, and pedestrian protection barriers. WORKERS’ COMPENSATION both federal and California law. Twenty-five years’ corporate Hundreds of cases. Undergraduate work—UCLA; graduate human resources management experience plus over 20 work—Yale University. GRAHAM A. PURCELL, MD, INC. years as a Human Resources Compliance Consultant in TRAVEL AND TOURISM Assistant Clinical Professor Orthopedic Surgery, UCLA California. Specializations include sexual harassment, 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985- ADA/disability discrimination, other Title VII and FEHA dis- ALEXANDER ANOLIK, ESQ. 3051, fax (818) 985-3049, e-mail: [email protected]. crimination and harassment, retaliation, FMLA/CFRA, safety, 280 Round Hill Road, Tiburon, CA 94920, (415) 673-3333, Web site: gpurcellmd.com. Contact Graham A. Purcell, and wrongful termination. Courtroom testimony and deposi- fax (415) 673-3548, e-mail: [email protected]. Web site: MD. Dr. Purcell is a board certified orthopedic surgeon, tion experience. Retained 60 percent by defense, 40 per- www.travellaw.com. Contact Al Anolik. Consultation and subspecialty in spinal disorders affecting adults and children. cent by plaintiff. Audit employer’s actions in preventing and expert testimony on custom and practice for airline, cruise Examples of spinal disorders treated by Dr. Purcell include resolving discrimination, harassment, and retaliation issues. line, travel agencies, tour operators, motor coach, tour disc diseases, stenosis, infections, tumors, injuries, and Assess human resources policies and practices for sound- escorts/guides, incentive/meeting planners, and applicability deformities including scoliosis. He possesses 30 years of ness, for comparison to prevailing practices, and for compli- of travel and tourism regulation. Evaluation, computation/val- orthopedic and 22 years of med-legal experience, including ance. Evaluate employer responsiveness to complaints and uation of tourism entities for purchase, sale, economic dam- defense, plaintiff, insurance carriers, CA Attorney General’s effectiveness of employer investigations. Assist counsel via ages, or ADR hearings. Tourism security and restraint issues office and Public Defender’s office. Expert testimony per- preliminary case analysis, discovery strategy, examination of and crisis management implementation and manuals. tains to med-mal, personal injury, and workers’ compensa- documents, and expert testimony. Author and professor with actual consulting experience with tion cases. As a qualified medical evaluator, Dr. Purcell has

Los Angeles Lawyer November 2010 69 THE LOS ANGELES COUNTY BAR FOUNDATION’S 2009-2010 all individuals who made contributions of $200 or more, and all law FUND DRIVE raised more than $306,000 from corporations, individ- firms, corporations, and other organizations that contributed $1,000 or uals, law firms, and others. Direct contributions from law firms totaled more during the period beginning July 1, 2009, and ending June 30, $111,375; individuals contributed $109,604; and corporations and 2010. If you are not listed below, and you made a contribution to the others contributed $18,291. In addition to these direct contributions, Foundation fitting any of the above criteria, please contact the Founda- $67,096 was contributed to the Foundation by individuals, corporations, tion’s independent certified public accountants, Green, Hasson & Janks and law firms by means of the Association’s annual dues statement vol- LLP, by calling Tom Barry directly at (310) 873-1647. (Note: The Founda- untary contribution. 2009-2010 tion records gifts made by check on the date of receipt, not the date writ- The Foundation wishes to express sincere thanks to all who con- FUND DRIVE ten on the check.) tributed during the 2009-2010 campaign. As part of the procedures The Foundation regrets that space limitations prevent the listing of required in connection with its annual audit, the Foundation hereby lists RESULTS the names of all contributors.

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Danos RICHARD WALCH, by Linda Auerbach Allderdice Christie, Parker & Hale LLP Lexolution LLC Norma J. Williams Katessa Charles Davis Roy H. Aaron Paula Ambrosini Irell & Manella LLP Rusnak Group Beatriz M. Dieringer Don Mike Anthony Laura W. Brill Kirkland & Ellis LLP BENJAMIN B. SALVATY III, by Richard D. Esbenshade IN MEMORY OF... Donald P. Baker Joanne E. Caruso Morrison & Foerster Richard J. Ward, Jr. Gregory Evans Anthony H. Barash Meryl K. Chae Foundation Casey T. Fleck CHRISTOPHER MICHAEL JOSEPH TABACK, by John H. Brinsley Paul S. Chan O’Melveny & Myers LLP Charles A. Gessler ANTHONY, by Laurence R. Goldman John M. Byrne Christopher C. Chaney Skadden, Arps, Slate, Laurence R. Goldman Los Angeles County Bar Kolodny & Anteau Richard Chernick Tyrone R. Childress Meagher & Flom LLP Joseph G. Gorman, Jr. Association Roland L. Coleman, Jr. Glen B. Collyer VINCENT M. TOWNSEND, by Sarah Heck Griffin $3,000-$4,999 Beatriz M. Dieringer Su-Lyn Combs David S. 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Cox Thomas A. Freiberg, Jr. Ralph J. Shapiro Hon. William P. Hogoboom Harry L. Hathaway Stuart A. Forsyth Julia I. De Beers Robert S. Gerstein Maria D. Hummer Benefactor ($25,000- Rex S. Heinke Georgia Franklin-Shutan David A. Dillard Ethan P. Greene John D. Hussey John D. Hussey Eric C. Egaas $49,999) Jeffrey C. Freedman Brian D. Huben Joan R. Isaacs Joan R. Isaacs James J. Gallagher William J. Glucksman Shirley M. Hufstedler Roy H. Aaron Leonard S. Janofsky Leonard S. Janofsky Seth M. Gerber Robert A. Green Joan R. Isaacs*** Jules & Doris Stein Foundation Vincent W. Jones Vincent W. Jones Russell T. Ginise Shirley Hayton Lois M. Jacobs Lloyd & Susan Stockel Martha B. Jordan Patrick M. Kelly John A. Girardi Edward C. Ho Hon. Samantha Phillips James H. Kindel, Jr. Patron ($15,000-$24,999) Ruth J. Lavine Richard B. Goetz Malcolm S. McNeil Jessner Sandra R. King Fred L. Leydorf Hon. Arnold H. Gold Henry E. Orren Don Mike Anthony Henry J. Josefsberg Richard G. LaPorte Lawrence F. Liebenbaum Jo-Ann W. Grace Dianne Baquet Smith Joseph R. Austin Marcia L. Kraft Lawrence E. Leone James C. Martin Feris M. Greenberger Richard K. Smith, Jr. William J. Bogaard Miriam A. Krinsky Bernard E. & Joan M. LeSage Edith R. Matthai Alan N. Halkett Shondell M. Spiegel Robert E. Carlson Hon. Robert N. Kwan Justice Nora M. Manella Robin Meadow Christopher J. Heck Joel D. Whitley Richard Chernick Edward A. Landry Edith R. Matthai Danette E. Meyers Brian L. Holman Glen B. Collyer BARRISTERS Thomas J. Leanse Malissa Hathaway McKeith Neal S. Millard Peter Hsiao Knox M. Cologne III FELLOWS LeAnne E. Maillian** Danette E. Meyers Gavin Miller Patrick O. Hunnius Stephen R. English & Molly Frederick L. McKnight Hon. Anthony J. Mohr Hon. Margaret M. Morrow David C. Hunter A Barristers Fellow has con- Munger Ralph B. Perry III Hon. Margaret M. Morrow Gretchen M. Nelson Andres C. Hurwitz tributed, or pledged to con- Stanley F. Farrar John J. Quinn*** Hon. Margaret A. Nagle John F. O’Hara Bernard S. Kamine tribute over a five-year period, Robert K. Johnson Toby J. Rothschild Gretchen M. Nelson Andrea Sheridan Ordin Jason B. Komorsky $500 to the Foundation. Margaret Levy Michael & Lara Schwartz* John F. O’Hara David J. and Cynthia F. Linda M. Lawson Robin Meadow Barristers are individuals who Paul D. Supnik Ronald L. Olson Pasternak James D. Layden Gavin Miller are 36 years of age or less or John D. Vandevelde Andrea Sheridan Ordin Patricia Phillips Jana I. Lubert In Honor of David Pascale who have been in practice 10 Caroline C. Vincent** Ellen A. Pansky John J. Quinn Michael S. Lurey John J. Quinn years or less. (List includes Richard Walch** David J. & Cynthia F. Pasternak Sheldon H. Sloan Kerry Lyon-Grossman In Honor of Richard Walch participants as of 6/30/10.) Earl P. Willens Aulana L. Peters Susan R. Stockel Rick C. Madden Robert S. Warren Randee Barak Roxanne M. Wilson Thomas D. Phelps John D. Taylor LeAnne E. Maillian Daniel J. Woods Jonathan L. Brophy Rosalyn S. Zakheim** Patricia D. Phillips Hon. Charles S. Vogel Justice Nora M. Manella Michael C. Zellers

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Los Angeles Lawyer November 2010 71 by the book REVIEWED BY GORDON ENG

The Essential Guide to California Restaurant Law

The Essential Guide to California liability, use of surveillance cameras, emergency preparedness for Restaurant Law provides an overview fire and natural dangers like earthquakes, accepting payment by of the surprisingly broad range of legal credit card, menu labeling, healthy lifestyle laws, and entertainment issues that a California restaurant owner in a restaurant. may expect to address. The authors, Paul The sale of alcoholic beverages is a major source of restaurant rev- Tour-Sarkissian and Tonia Tour-Sarkis- enues and liabilities. Alcohol sales are subject to state licensing sian, offer valuable general discussions of requirements. The authors devote a chapter to the types of licenses the many areas of concern to restaurant used by restaurants, obtaining a license, and the rules for record keep- operators, including food handling and ing and sales. The authors’ coverage in this area is a very helpful dis- health inspections, labor laws, federal tillation of the regulations, but the reader would benefit further from and state regulations, service of alcoholic some practical advice and tips. A discussion of service providers— beverages, and theories of liability to cus- including who they are and what they do—in this aspect of the tomers. restaurant business could be very helpful. The Essential Guide to The authors discuss the California The FDA and the Menu California Restaurant Law Retail Food Code, which has revamped by Paul Tour-Sarkissian and the previous California Uniform Retail Federal Food and Drug Administration regulations reach into the state- Tonia Tour-Sarkissian Food Facilities Law. The Food Code cov- ments made in a restaurant’s menus. “Lite menu” or “heart healthy” Carolina Academic Press ers the core issues of restaurant operation selections and other health claims need only be backed by a reason- $65, 486 pages with comprehensive regulation of restau- able basis understanding and not by actual laboratory testing of the rant health and sanitation. The Food food the restaurant serves. However, California has gone a step fur- Code introduced the framework for municipalities to adopt restau- ther than federal law and requires restaurants that have 19 or more rant grading systems like the A, B, and C system used in Los Angeles. locations serving common menu items to provide nutritional label- The authors provide overviews, with references for more detailed ing similar to the nutritional content information found on food inquiry. For example, the labor law issues discussed in the book products sold at a grocery store. include Cal/OSHA safety requirements and the handling of tip Some aspects of restaurant operation are not addressed. For income. Slip-and-fall injuries in the kitchen are a major concern, and example, there is no discussion about the alternative structures avail- the authors suggest establishing a policy to encourage the use of able for the formation of the restaurant business—sole proprietorship, footwear that is more likely to help prevent injuries. A number of trea- partnership (general and limited), corporation (or limited liability com- tises will overlap these topics, but this book focuses on how these issues pany)—and the benefits of each structure. Attorneys who are taking are likely to be pertinent to a restaurant operator. A reader with less on clients in this area need to have a basic understanding of how to familiarity with an area of law that is the book’s concern will have advise clients on the relationship between partners, owners, and a starting point that is grounded in the restaurant world. investors in a restaurant. The ownership structure of the restaurant affects potential liability Comprehensiveness and taxes, and this book could offer more guidance on how to guide When the book’s coverage is not sufficiently detailed, the authors have clients toward ownership structures that correctly cut the tax and lia- often provided links to other resources. This is not to say that the book bility pie. Franchises are another topic that would help to round out lacks detail. The discussion of liabilities, for example, is interesting. the book as a more comprehensive resource for potential restaurant Regarding customer illness or injury resulting from food the restau- owners. The franchise method of operation is significant in the rant serves, the authors discuss common theories of liability—strict restaurant business. Some insights into how franchises work in the liability, negligence, and breach of the implied warranty of mer- restaurant business could be very useful. chantability. If the food contains a foreign object, liability may be A number of the topics, such as labor laws and prohibitions imposed under all three. against using trans fats in cooking, are developing rapidly at the local, Foreign objects can include food-borne diseases such as salmonella. state, and federal level. It remains to be seen if the authors will It may be surprising to learn that there is no common law duty in update the book on a regular basis so that it continues to be a timely California for the restaurant to come to the aid of a customer who resource on restaurant-related laws. As it stands, this book is a great may be choking on food that the restaurant has served. The authors start for any lawyer or restaurant owner or operator who needs a ready note, however, that in such cases it is a good idea to call 911 for an reference on the legal aspects of running a restaurant. I ambulance. The authors also cover a number of discrete legal issues related Gordon Eng is a business lawyer who focuses on small business, financing, to restaurant operations, including automobile valet and coat check and real estate issues.

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Los Angeles Lawyer November 2010 73 Accident Reconstruction Specialists, p. 47 Marc J. Friedman, M.D., p. 63 Novation Capital, p. 4 Tel. 562-743-7230 www.FieldAndTestEngineering.com Tel. 818-901-6600 e-mail: [email protected] Tel. 800-747-6472 www.NewCashOption.org

Affiniscape Merchant Solutions, p. 24 FULCRUM Financial Inquiry LLP, Inside Back Cover PCG Consultants, p. 8 Tel. 866-376-0950 www.lawpay.com Tel. 213-787-4100 www.fulcruminquiry.com Tel. 213-629-9211 www.pcgci.com

Ahern Insurance Brokerage, p. 2 Glenn M. Gelman & Associates, p. 63 Paciﬁc Health & Safety Consulting, Inc., p. 61 Tel. 800-282-9786 x101, [email protected] Tel. 714-667-2600 e-mail: [email protected] Tel. 949-253-4065 www.phsc-web.com

Air, Weather & Sea Conditions, Inc., p. 55 Steven L. Gleitman, Esq., p. 4 Charles Pereyra-Suarez, p. 59 Tel. 818-645-8632 www.weatherman.org Tel. 310-553-5080 Tel. 213-623-5923 www.cpslawﬁrm.com

The American Institute of Mediation, p. 23 Gursey, Schneider & Company, p. 51 Graham A. Purcell, M.D., Inc., p. 65 Tel. 213-383-0454 www.americaninstituteofmediation.com Tel. 310-552-0960 www.gursey.com Tel. 818-985-3051 e-mail: [email protected]

AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 46 Higgins, Marcus & Lovett, Inc., p. 53 RGL-Forensic Accountants & Consultants, p. 65 Tel. 800-275-8903 www.amfs.com Tel. 213-617-7775 www.hmlinc.com Tel. 213-996-0900 www.rgl.com

Benchmark Investigations, p. 56 The Holmes Law Firm, p. 22 Receivership Specialists, p. 14 Tel. 800-248-7721 www.BenchmarkInvestigations.com, Tel. 626-432-7222 www.theholmeslawﬁrm.com Tel. 310-552-9064 www.receivershipspecialists.com

Lee Jay Berman, Mediator, p. 6 Lawrence H. Jacobson, Esq., p. 67 Rosen & Associates, PC, p. 43 Tel. 213-383-0438 e-mail: [email protected] Tel. 310-271-0747 www.lawrencejacobson.com Tel. 213-362-1000 www.rosen-law.com

Boykoff Investigations, p. 22 Jill Kessler, p. 59 Roughan & Associates at LINC, p. 47 Tel. 818-718-8000 www.boykoffinvestigations.com Tel. 310-573-9615, www.jillkessler.com Tel. 626-303-6333 x16 e-mail: [email protected]

The California Academy of Distinguished Neutrals, p. 38, 39 KGR Video Image and Audio Evaluation, p. 53 Jonathan S. Rutchik, M.D. p. 52 Tel. 310-341-3879 www.CaliforniaNeutrals.org Tel. 714-926-0606 www.kgrproductions.com Tel. 415-381-3133 www.neoma.com

California Eminent Domain Law Group, APC, p. 23 Kantor & Kantor, LLP, p. 30 Saltzburg, Ray & Bergman, LLP, p. 60 Tel. 818-957-0477 www.caledlaw.com Tel. 877-783-8686 www.kantorlaw.net Tel. 310-481-6700 www.srblaw.com

Chapman University School of Law, Inside Front Cover KARS Advanced Materials, Inc., p. 67 Schulze Haynes Loevenguth & Co., p. 53 Tel. 877-CHAPLAW (877-242-7529) www.chaplaw.edu/law Tel. 714- 892-8987 www.karslab.com Tel. 213-627-8280 www.schulzehaynes.com

Cheong, Denove, Rowell & Bennett, p. 31 Krycler, Ervin, Taubman & Walheim, p. 46 Anita Rae Shapiro, p. 41 Tel. 310-277-4857 www.cdrb-law.com Tel. 818-995-1040 www.ketw.com Tel. 714-529-0415 www.adr-shapiro.com

Cohen Miskei & Mowrey, p. 49 Law Office of Michael Kelly, p. 69 Shoreline Investigations, p. 41 Tel. 818-986-5070 e-mail: [email protected] Tel. 310-393-0236 e-mail: admin@cﬂi.com Tel. 800-807-5440, 818-344-2193 www.shorelinepi.com,

Coldwell Banker–Michael Edlen, p. 30 Lawyers’ Mutual Insurance Co., p. 7 TASA, Technical Advisory Service for Attorneys, p. 42 Tel. 310-230-7373 e-mail: [email protected] Tel. 800-252-2045 www.lawyersmutual.com Tel. 800-523-2319 www.tasanet.com

Cook Construction, p. 55 Diana G. Lesgart, An Accountancy Corp., p. 49 Union Bank of California, p. 5 Tel. 818-438-4535 e-mail: [email protected] Tel. 818-886-7140 e-mail: [email protected] Tel. 310-550-6400 (B.H.), 213-236-7736 (L.A.) www.uboc.com

Lawrence W. Crispo, p. 8 M.A. Calabrese Associates, p. 52 URS, p. 47 Tel. 213-926-6665 e-mail: [email protected] Tel. 626-825-5444 www.macalabreseassociates.com Tel. 213-996-2555 www.urscorp.com

Crowe Horwath, LLP, p. 11 MCLE4LAWYERS.COM, p. 4 Law Offices of Alan D. Wallace, p. 61 Tel. 800-599-2304 www.crowehorwath.com Tel. 310-552-5382 www.MCLEforlawyers.com Tel. 818-501-0133 www.expertwitnessre.com

DataChasers.com, p. 49 Michael Marcus, p. 23 Walzer & Melcher, p. 1 Tel. 951-780-7892 www.datachasers.com Tel. 310-201-0010 www.marcusmediation.com Tel. 818-591-3700 e-mail: [email protected]

DepoSums Deposition Summaries, p. 43 Law Offices of Matthew C. Mickelson, p. 41 Waronzof Associates, P. 67 Tel. 800-789-DEPO (800-789-3376) www.deposums.biz Tel. 818-382-3360 www.mickelsonlegal.com Tel. 310-954-8060 www.waronzof.com

James R. DiFrank, PLC, p. 17 Clinton E. Miller, JD, p. 54 Thomson West, Back Cover Tel. 562-789-7734 www.bardefense.net e-mail: [email protected] Tel. 408-279-1034 www.millerjd.qpg.com Tel. 800-762-5272 www.thompsonwestgroup.com

E. L. Evans & Associates, p. 6 Mr. Truck, p. 54 White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 45 Tel. 310-559-4005 Tel. 925-625-4994 or 800-337-4994 Tel. 818-981-4226 www.wzwlw.com

Forensic Expert Witness Association, p. 54 Thomas Neches & Company, p. 57 Witkin & Eisinger, LLC, p. 41 Tel. 949-640-9903 www.forensic.org Tel. 213-624-8150 www.thomasneches.com Tel. 310-670-1500

ForensisGroup Inc., p. 43 Northwestern Mutual–The Beer Financial Group, p. 6 Zivetz, Schwartz & Saltsman, p. 59 Tel. 626-795-5000 www.forensisgroup.com Tel. 818-887-9191 www.beerﬁnancialgroup.com Tel. 310-826-1040 www.zsscpa.com

74 Los Angeles Lawyer November 2010 Environmental Ninth Annual Environmental Law Fall Symposium Compliance in Real Estate ON WEDNESDAY, NOVEMBER 10, the Environmental Law Section will host the Ninth On Thursday, December 2, the Real Annual Environmental Law Fall Symposium, featuring panels on managing media and public relations in high-profile environmental cases, an overview of recent Property Section and the General Real Ninth Circuit decisions under CERCLA, and a postelection perspective of the Global Property Subsection will host a program Warming Solutions Act. The lunch keynote speaker will be Thomas Girardi, giving featuring Roger J. Holt, who will provide a his perspective as one of the best-known plaintiff attorneys in the environmental practical overview of important arena. The symposium will take place at the Sheraton Delfina Santa Monica, 530 West Pico Boulevard. Hotel valet parking is complimentary. On-site registration environmental regulations and issues that will begin at 11:30 A.M., with the program continuing from noon to 4:35 P.M. The are likely to affect transactional real registration code number is 010992. The prices below include the meal. estate lawyers and their clients in $50—government/public interest attorney who is an Environmental Law Section California. These issues include member $80—government/public interest attorney who is not a section member Proposition 23, SB 375, CEQA, state and $85—CLE+PLUS member local green building codes, and voluntary $150—Environmental Law Section member private-sector sustainability initiatives. $160—Real Property Section member The presentation will also cover trends $180—LACBA member regarding environmental regulations $220—at-the-door 4 CLE hours likely to impact California businesses. This program will be available via Webinar. Please check rules regarding Complex Court Symposium how to register, view, and obtain CLE ON TUESDAY, NOVEMBER 16, the Los Angeles County Bar Association Litigation credit for Webinars. The program will take Section and Labor and Employment Law Section, the Los Angeles Chapter of the place at the Los Angeles County Bar Association of Business Trial Lawyers, the Association of Southern California Defense Counsel, and the Consumer Attorneys Association of Los Angeles will host a seminar Association, 1055 West 7th Street, 27th on the complex courts in California. Many of the 18 judges from the complex courts in floor, Downtown. Parking is available at California, including all six Los Angeles complex court judges, are scheduled to 1055 West 7th and nearby parking lots. attend and participate. The program will provide insight into all aspects of complex On-site registration and lunch will begin court litigation, including e-discovery, class certifications, JCCP matters, maintaining at noon, with the program continuing from and approving settlements, and conduct at trial. The seminar will take place at the Omni Los Angeles Hotel, 251 South Olive Street, Downtown. 12:30 to 1:30 P.M. The registration code Valet parking costs $12. On-site registration will begin at 3 P.M., with the program number is 011087. The prices below continuing from 3:30 to 7:30. Dinner will be served toward the end of the program. include lunch. The registration code number is 011046. The prices below include dinner. $20—CLE+PLUS member $80—CLE+PLUS member $160—Litigation Section member $45—Real Property Section member $160—ABTL, CAALA, and SCDC member $55—LACBA member $180—LACBA member $65—all others $225—all others 1 CLE hour 2.5 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.

Los Angeles Lawyer November 2010 75 closing argument BY ASSEMBLYMEMBER MIKE FEUER, HOLLY J. FUJIE, AND REX S. HEINKE

Leveraging Justice with the Justice Gap Fund

MORE THAN SIX MILLION INDIGENT CALIFORNIANS face serious funding for legal aid programs. It authorizes the State Bar to “facil- legal problems. There’s the domestic violence survivor who is afraid itate the professional responsibilities of members by collecting…vol- to go to her minimum wage job without the protection of a restrain- untary financial support for nonprofit organizations that provide ing order. There’s the slumlord’s tenant who cannot get rid of the free legal services to persons of limited means.” Programs qualify for roaches and rats that threaten his children’s health and safety. And funding through detailed annual applications and on-site monitoring there’s the family struggling to care for an incapacitated grandpar- visits every three years that ensure that operations are efficient, ser- ent whose medical care and daily needs have exhausted its energies vices are effective, and priorities reflect community concerns. By pig- and its savings. These are true stories, and there are many more like gybacking on the existing IOLTA infrastructure, every penny donated them. The people behind these stories desperately need legal help, and through the Justice Gap Fund goes directly to nonprofit legal aid orga- they will never be able to afford it on their own. nizations. The catch is, it only works if you contribute to it. Pro bono service provides a key lifeline for some people, and legal volunteers serve a crucial role in our justice system. But there is another way to assist every indigent Californian Requests for assistance have skyrocketed, while funding in legal need, from Del Norte to El Centro, with a simple, sweeping gesture of immeasurable impact: contributing to the Justice Gap Fund. reductions have forced service providers to furlough or lay off staff. The Justice Gap Fund supports critical services to those most in need, helping them to resolve their legal issues directly through self-help and community edu- Sadly, that is where this great system has yet to reach its full cation, as well as through advice and counsel, courtroom represen- potential. Due to the recession, last year only a small percentage of tation, and even impact advocacy. These services enhance indepen- California attorneys donated to the Justice Gap Fund. We need your dence and stability for every person they touch, and they bring new help to reverse this trend. The Justice Gap Fund allows us all to stand vitality to depressed communities. behind our justice system. Only through the engagement and par- Across California, nearly 100 nonprofit legal aid organizations ticipation of individual attorneys can the fund achieve its goal of work tirelessly to help the disenfranchised, powerless, and poor. improving access to justice throughout California. They participate in every aspect of the legal process, from intakes to California attorneys enjoy unrivaled resources and opportunities. appeals. Their wages do not begin to compete with the private sec- The Justice Gap Fund is one opportunity that California’s entire le- tor, and they have about 8,000 potential clients for every attorney on gal community can embrace and that brings resources to every one the payroll, but the job does have one great compensation: The of our 58 counties. Skilled legal guidance is desperately needed to attorneys know they truly make a difference in their clients’ lives. They defend the rights and protect the health and well-being of the voice- are protecting families, livelihoods, and communities—as well as less among us. Your contribution will advance the administration of conserving judicial and social service resources that are stretched to justice while relieving the logjams clogging our courthouses. the breaking point. Put plainly, legal aid saves money and lives. We urge you to make a generous contribution to the Justice Gap Legal aid in California is largely supported by private contribu- Fund. Contributions can be made as an add-on to your annual State tions, government grants, and IOLTA (Interest on Lawyers’ Trust Bar dues by completing the appropriate line on the statement (either Accounts) funding. Since 1982, the IOLTA program has leveraged the in hard copy or online). The new State Bar Web site is also equipped tiny bits of interest earned on small and short-term client trust to accept online donations apart from the dues payment process, at deposits into millions of dollars of legal aid funding. In the last three http://calbar.org/justicegapfund. You may also send a check payable years, however, interest rates on these accounts have dropped lower to the State Bar of California to the attention of the Justice Gap Fund than we have ever seen them, greatly reducing the flow of funding. at 180 Howard Street, San Francisco, California 94105. Staff are ready Despite the key efforts of “leadership banks” that voluntarily pay to answer your questions at (415) 538-2098. I higher rates, this revenue has plummeted almost 70 percent since 2008. At the same time, the economic crisis is putting unprecedented pres- Assemblymember Mike Feuer is majority policy leader of the California State sure on legal aid organizations. Requests for assistance have sky- Assembly and chair of the Assembly Judiciary Committee. Holly J. Fujie, rocketed, while funding reductions have forced service providers to 2008-09 president of the State Bar of California, is a litigation shareholder furlough or even lay off staff. These are conditions that just cannot in the Los Angeles office of Buchalter Nemer APC. Rex S. Heinke, head of the be sustained. The resources are inadequate for the work that must be national appellate practice at Akin, Gump, Strauss, Hauer & Feld LLP, is a for- done. And that is where you come in. mer member of the State Bar Board of Governors and chair of its Committee The Justice Gap Fund was enacted to create a new way to enhance on Legal Services, Pro Bono, and Equal Access.

76 Los Angeles Lawyer November 2010

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Los Angeles Lawyer November 2010 LOS ANGELES LAWYER11 01 108.375X10.875__4C