Los Angeles Lawyer April 2010

Semiannual Guide to Expert Witnesses

April 2010 /$4

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43 Special Section Semiannual Guide to Expert Witnesses

Los Angeles Lawyer DEPARTMENTS the magazine of the Los Angeles County 10 Barristers Tips 71 By the Book Bar Association Applying corporate privilege to PMQs Plain, Honest Men April 2010 during depositions REVIEWED BY JEFFREY D. WOLF BY CRAIG A. ROEB AND ANETA B. DUBOW Volume 33, No.2 76 Closing Argument 15 Practice Tips Does anyone really understand the COVER PHOTO: TOM KELLER The scope of Rule 30(b)(6) in the medical marijuana laws? examination of corporate deponents BY ALLISON B. MARGOLIN BY MICHAEL S. CRYAN 73 Classiﬁeds 19 Practice Tips The statute of limitations for equitable 75 CLE Preview accounting claims LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, BY THEODORE P. BYRNE AND ARMANDO M. GALVAN except for a combined issue in July/August, by the Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual sub- scription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 04.10 There is no substitute for experience. VISIT US ON THE INTERNET AT www.lacba.org/lalawyer E-MAIL CAN BE SENT TO [email protected] ■ Daily Journal Top Neutral 2008 & 2009 EDITORIAL BOARD ■ Over 1,350 successful mediations Chair DAVID A. SCHNIDER ■ 15 years as a full-time mediator Articles Coordinator ■ 92% of Cases Resolved MICHAEL A. GEIBELSON JERROLD ABELES (PAST CHAIR) DANIEL L. ALEXANDER ETHEL W. BENNETT LEE JAY BERMAN, Mediator CAROLINE BUSSIN 213.383.0438 www.LeeJayBerman.com CYNDIE M. CHANG R. J. COMER (PAST CHAIR) CHAD C. COOMBS (PAST CHAIR) ELIZABETH L. CROOKE ANGELA J. DAVIS (PAST CHAIR) PANKIT J. DOSHI GORDON ENG HELENE J. FARBER STUART R. FRAENKEL TED HANDEL JEFFREY A. HARTWICK STEVEN HECHT (PAST CHAIR) NAFISÉ NINA T. HODJAT LAWRENCE J. IMEL GREGORY JONES MARY E. KELLY JOHN P. LECRONE THANAYI LINDSEY KAREN LUONG PAUL MARKS AMY MESSIGIAN MICHELLE MICHAELS ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. (PAST CHAIR) CARMELA PAGAY DENNIS PEREZ ADAM J. POST GARY RASKIN (PAST CHAIR) JACQUELINE M. REAL-SALAS (PAST CHAIR) HEATHER STERN KENNETH W. SWENSON BRUCE TEPPER R. JOSEPH TROJAN THOMAS H. VIDAL JEFFREY D. WOLF KOREN WONG-ERVIN STAFF Publisher and Editor SAMUEL LIPSMAN Senior Editor LAUREN MILICOV Senior Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA LONERO BEKAS Account Executive MERYL WEITZ Sales and Marketing Coordinator AARON J. ESTRADA Advertising Coordinator WILMA TRACY NADEAU Administrative Coordinator MATTY JALLOW BABY Copyright © 2010 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer April 2010 Los Angeles Lawyer April 2010 5 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2548 Judge Michael D. Marcus (Ret.) Telephone 213.627.2727 / www.lacba.org ASSOCIATION OFFICERS Mediator Arbitrator Discovery Referee President EXPERIENCED PERSUASIVE EFFECTIVE DON MIKE ANTHONY President-Elect Daily Journal Top 50 Neutral 2009 ALAN K. STEINBRECHER Senior Vice President Daily Journal Top 40 Neutral 2007 ERIC A. WEBBER Vice President • Employment • Legal Malpractice RICHARD J. BURDGE JR. Treasurer • Business • Real Property LINDA L. CURTIS Personal Injury Intellectual Property Assistant Vice President • • PATRICIA EGAN DAEHNKE Century City Downtown Los Angeles Orange County Assistant Vice President tel: 310.201.0010 www.marcusmediation.com Available exclusively at TANJA L. DARROW Assistant Vice President email: [email protected] IRA M. FRIEDMAN Assistant Vice President MARGARET P. STEVENS Immediate Past President DANETTE E. MEYERS Executive Director SALLY SUCHIL Associate Executive Director/Chief Financial Officer BRUCE BERRA Associate Executive Director/General Counsel W. CLARK BROWN BOARD OF TRUSTEES P. PATRICK ASHOURI GEORGE F. BIRD JR. CHRISTOPHER C. CHANEY KIMBERLY H. CLANCY DUNCAN W. CRABTREE-IRELAND ANDREW DHADWAL ANTHONY PAUL DIAZ BEATRIZ D. DIERINGER DANA M. DOUGLAS WILLIAM J. GLUCKSMAN JAMES I. HAM JACQUELINE J. HARDING ANGELA S. HASKINS BRIAN D. HUBEN TAMILA C. JENSEN PAUL R. KIESEL RICHARD A. LEWIS HON. RICHARD C. NEAL (RET.) ELLEN A. PANSKY ANN I. PARK THOMAS H. PETERS DAVID K. REINERT MARIA M. ROHAIDY ALEC S. ROSE JOHN K. RUBINER World Class Training for the Complete Mediator NANCY A. SHAW DAVID W. SWIFT LUCY VARPETIAN NORMA J. WILLIAMS INTRODUCTION TO A CAREER IN MEDIATION ROBIN L. YEAGER —Online or In-person— AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION Saturday, April 24 • 8:00AM-11:00AM BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES MEDIATING THE NON-LITIGATED BUSINESS DISPUTE CULVER-MARINA BAR ASSOCIATION EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY with Doug Noll and Lee Jay Berman GLENDALE BAR ASSOCIATION Friday–Saturday, April 30–May 1 IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES MEDIATING & NEGOTIATING COMMERCIAL CASES JOHN M. LANGSTON BAR ASSOCIATION JUVENILE COURTS BAR ASSOCIATION with Lee Jay Berman KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA LAWYERS' CLUB OF LOS ANGELES COUNTY Tuesday-Saturday, May 11-15 LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES Meets the 40-hour Court Requirement – 30 MCLE Hours LONG BEACH BAR ASSOCIATION MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION See our complete listing of courses and dates at: SANTA CLARITA BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA www.AmericanInstituteofMediation.com SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. SOUTHEAST DISTRICT BAR ASSOCIATION 213.383.0454 SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

6 Los Angeles Lawyer April 2010

JUDGE LAWRENCE W. CRISPO (RET.)

ormer Chief Justice William Rehnquist began one of his speeches by saying, “I’ve often started off with a Flawyer joke, a complete caricature of a lawyer who’s been nasty, greedy, and unethical. But I’ve stopped that practice. I gradually realized that the lawyers in the audience didn’t think the jokes were funny, and the non-lawyers didn’t know they were jokes.” I’m sure every one of us has been treated to our share of lawyer jokes. Few are truly funny, but they seem to have common themes, including lying and thievery. Gallup does an annual poll asking respondents to rate the honesty and ethical standards for people in different professions. In 2009, 40 percent indicated that they consider lawyers’ ethical standards to be low or very low. Only 13 percent said lawyers have high standards. We still rate higher than bankers these days, but not by much. What surprises me as one who deals with lawyers and nonlawyers in a business Mediator Arbitrator setting is that lawyers, for the most part, seem to be the most concerned about ethics and fairness. Indeed, lawyers have codified ethical standards that govern our daily practice. We are one of the few groups of U.S. citizens whose livelihoods can be taken away for violating ethical rules. Moreover, at least in California, lawyers are Referee 213.926.6665 required to take continuing ethics training. We are likely to be more law abiding than www.judgecrispo.com the average citizen, if only because we are more conscious of the laws. There seems to be a double standard when it comes to lawyers. In February of this year, the coach of England’s national soccer team removed John Terry as team captain after revelations that Terry cheated on his wife (with whom he has two young children) with the former girlfriend of one of his teammates. Despite losing his cap- taincy, Terry will continue to play for his team, will be cheered on by millions of fans, and will continue to sell thousands of jerseys. Yet attorneys who fulfill their legal duty to provide the best defense available to their clients are publicly reviled. Walter Olson, a senior fellow at the Manhattan Institute, has an idea about this dichotomy. He calls it the “bartender theory.” When you want a drink, you choose to patronize the bartender who pours the stiffest ones, not those that are best for your health. Similarly, when hiring a lawyer, most people seek out warriors with attrib- utes that are not always the most admirable. Clients want counsel who will scorch the earth and make the other side suffer. Olson provides an illuminating example: “Alan Dershowitz, when criticized for some of his stratagems in criminal defense— things like telling the client on first meeting, ‘Don’t tell me whether you’re guilty or not; it would tie my hands to know; leave me free to come up with the best defense’—has defended himself by saying, ‘Look, if your kid were arrested and charged with something, you’d want a lawyer just like me.’” Olson suggests that lawyers may be despised not so much for a lack of ethics but for the disproportionate power we wield to complicate people’s lives. As he points out, “In no other major democracy can a freebooting lawyer show up, dump a pile of papers on your front lawn, tie you up for years, inflict untold damage to your business and reputation, and then walk away with hardly any consequences if he is proven wrong.” Perhaps what we see as carefully adhering to ethical rules—zealously representing our clients, using legal procedures to the fullest extent permitted, guard- ing client confidences even when that means safeguarding evil—is exactly what makes us villains to so many others. ■

David A. Schnider is general counsel for Leg Avenue, Inc., a distributor of costumes and apparel. He is the 2009-10 chair of the Los Angeles Lawyer Editorial Board.

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Applying Corporate Privilege to PMQs during Depositions

LITIGATORS FREQUENTLY RECEIVE notices of deposition seeking to (2) An association member or an employee of an association, depose a corporate client’s person most qualiﬁed. In some cases, the corporation, or partnership, if the subject of the communica- PMQ will be a lower-level employee. To prepare for the deposition, tion is any act or omission of such person in connection with the attorney must speak with the employee. Is that conversation the matter which may be binding upon or imputed to the privileged? In California, not necessarily. organization for purposes of civil or criminal liability or whose Although a PMQ may be an employee of the corporation, and a statement may constitute an admission on the part of the communication may be directly related to the subject matter of the organization. case, the employee is not a client simply by virtue of employment with Rule 2-100 appears virtually identical to its ABA Model Rule coun- the corporation that the attorney represents. Consequently, oppos- terpart, but this is misleading. The drafters of Rule 2-100, according ing counsel can contact the employee directly and freely discuss the to the court in Snider, expressly rejected Upjohn’s holding: “[t]he orig- subject matter of the litigation with the employee, according to Rule 2-100 of the California Rules of Professional Conduct and Snider v. Superior Court.1 Opposing counsel can contact the employee directly and freely The ABA Model Rules of Professional Conduct articulate guidelines regarding the representation of a corporation. Rule 4.2 states: discuss the subject matter of the litigation with the employee, “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be according to Rule 2-100 of the California Rules of Professional represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a Conduct and Snider v. Superior Court. court order.” Comment [7] of Rule 4.2 states: In the case of a represented organization, this Rule prohibits communications with a constituent of the inal draft of proposed rule 2-100 provided for a ‘blanket’ rule against organization who supervises, directs or regularly consults with ex parte contact with any current employees of the represented the organization’s lawyer concerning the matter or has author- organization.” Instead of including all employees, the drafters adopted ity to obligate the organization with respect to the matter or the control group test for paragraph (B) of Rule 2-100.3 whose act or omission in connection with the matter may be Under Snider, the history behind the adoption of Rule 2-100 imputed to the organization for purposes of civil or criminal supports a narrow reading of the term “managing agent.” California liability. maintains a narrow interpretation of which employees of a corporation This group of constituents is typically referred to as the control are actually represented by counsel when the corporation is the group. However, in 1981 the U.S. Supreme Court ruled in Upjohn party. Additionally, the category in paragraph (B)(2) restricts the Company v. United States2 that the corporate attorney-client privi- employees to high-ranking executives and those with the authority lege extends not only to communications between corporate coun- to speak on behalf of the organization. Provisions of the California sel and members of the control group but also to communications with Rules of Professional Conduct prohibiting ex parte contacts with rep- middle- and low-level corporate employees. Seven years later, how- resented parties exist in order to preserve the attorney-client rela- ever, drafters of the California Rules of Professional Conduct adopted tionship and the proper functioning of the administration of justice.4 Rule 2-100 concerning communications with employees of organi- Yet, rules of professional conduct prohibiting state bar members zations represented by counsel. It states: from communicating about the subject of representation with a While representing a client, a member shall not communicate party known to be represented by counsel should be given reasonable, directly or indirectly about the subject of the representation with common-sense interpretation and should not be given broad or lib- a party the member knows to be represented by another lawyer eral interpretation, which would stretch the rule to cover situations in the matter, unless the member has the consent of the other that were not contemplated by the rule.5 lawyer. (B) For purposes of this rule, a “party” includes: Craig A. Roeb is a partner and Aneta B. Dubow is a senior associate with the (1) An officer, director, or managing agent of a corporation or Los Angeles office of Chapman, Glucksman, Dean, Roeb & Barger, where association, and a partner or managing agent of a partnership; they practice business and employment law. The authors wish to thank law or clerk David Napper for his assistance in writing this article.

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©2010 Union Bank, N.A. unionbank.com/private According to the Snider court’s interpretation of Rule 2-100, ex parte communication with lower-level employees who may have Anita Rae Shapiro critical information is not prohibited and SUPERIOR COURT COMMISSIONER, RET. would not be grounds for disqualification. Similarly, the court’s interpretation in Snider PRIVATE DISPUTE RESOLUTION leads to questions about a lawyer’s duty regarding the person most knowledgeable in PROBATE, CIVIL, FAMILY LAW the corporation, when that person is not in PROBATE EXPERT WITNESS the control group. Conversely, if opposing counsel engages in improper communication TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 with a represented party, disqualification is E-MAIL: [email protected] proper. This disqualification is justified when http://adr-shapiro.com the misconduct will have a continuing effect on judicial proceedings.6 Lawyers must therefore tread carefully when representing or opposing a corporation. Here are some good practice tips for attorneys on both sides of the table: • When representing a corporation, be aware that communications outside the control group are not always privileged. • Inform employees of the organization whether they are or are not represented in the matter. If their depositions are set, discuss representing them for purposes of the deposition. • Inform employees that if they are contacted by an opposing attorney, they should communicate nothing except to tell that attorney WHO’S • Is your firm’s 401(k) subject to quarterly to contact counsel for the employer. reviews by an independent board of directors? • In order to avoid potential violations of the WATCHING • Does it include professional investment attorney-client privilege or bar rules, an attor- fiduciary services? ney contacting an employee of a represented YOUR FIRM’S • Is your firm’s 401(k) subject to 23 contracted organization should question the employee service standards? before discussing substantive matters about 401(k)? • Does it have an investment menu with passive the employee’s status at that organization, and active investment strategies? whether the employee is represented by counsel, and whether the employee has spoken to • Is your firm’s 401(k) sponsor a not-for-profit the organization’s counsel concerning the whose purpose is to deliver a member benefit? matter at issue. • Does it feature no out-of-pocket fees to your firm? Whether an attorney represents the plain- • Is your firm’s 401(k) part of the member tiff or the defendant in an action in which a benefit package of 35 state and national bar corporation or similar organization is a party, associations? it is critical to confirm who has knowledge of If you answered no to any of these questions, the facts of the dispute, as they will likely be contact the ABA Retirement Funds to learn how deposed and possibly called to testify at trial. to keep a close watch over your 401(k). Before this occurs, counsel representing the corporate party must confirm with all persons with knowledge of the issue who are still Unique 401(k) Plans for Law Firms employed with the organization whether they agree to be represented in the litigation. An Phone: (877) 947-2272 • Web: www.abaretirement.com attorney for a corporation or similar entity • email: [email protected] must take active steps to ensure that oppos- The American Bar Association Members/State Street Collective Trust (the “Collective Trust”) has filed a registration ing counsel sends telephone calls, e-mail, let- statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under ters, or other communications to the attorney the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which rather than an employee. ■ lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (877) 947-2272, by visiting the Web site of the 1 Snider v. Superior Court, 113 Cal. App. 4th 1187 American Bar Association Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the (2003). solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and 2 Upjohn Co. v. United States, 449 U.S. 383 (1981). is not a recommendation with respect to any of the collective investment funds established under the Collective 3 See Snider, 113 Cal. App. 4th at 1200-01, 1210. Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such 4 offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any United States v. Talao, 222 F. 3d 1133 (2000). such state or other jurisdiction. 5 Jorgenson v. Taco Bell Corp., 50 Cal. App. 4th 1398, C09-1005-035 (10/09) 1401 (1996). 6 Baugh v. Garl, 137 Cal. App. 4th 737, 738 (2006).

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The Scope of Rule 30(b)(6) in the Examination of Corporate Deponents

IF THE EXAMINING COUNSEL during a deposition of a corporate-designated deponent presses forward on a line of questions outside the scope of a deposition notice issued under Rule 30(b)(6) of the Federal Rules of Civil Procedure—and continues with the examination even in the face of objections—defending counsel must make a decision. Some may choose to walk out with the designated person in tow, confident they will be vindicated by the court if the examining counsel makes an issue of the terminated deposition. Indeed, defending counsel may claim that terminating the deposition was a reasonable response to an unreasonably expansive interrogation. But this may not be a good move by defending counsel—particularly if the deposition occurred in a proceeding pending in a federal court in California. Rule 30(b)(6), titled “Notice of Subpoena Directed to an Organ- ization,” permits a party to issue a deposition notice or subpoena nam- ing a public or private corporation or other entity as the deponent.1 California litigators may view the topics listed in the deposition notice as defining the outer boundaries of permissible examination at a Rule 30(b)(6) deposition. However, numerous decisions by federal courts in California have ruled otherwise. Clarifying the permissible parameters of examination at depositions of corporate designees under Rule 30(b)(6), several courts have concluded that the examination of a corporate deponent may extend to matters beyond the scope of the deposition notice. In reaching this surprising (at least to some California practitioners) conclusion, these decisions reject pre- vious case law holding that the scope of the examination is limited to the topics listed in the deposition notice. Rule 30(b)(6) requires the party issuing the notice to “describe with reasonable particularity the matters for examination.”2 The named corporation must then designate as deponents one or more persons, who may include officers, directors, managing agents, or “other persons.” Designated persons must be able to testify “about information known or reasonably available to the organization.”3 30(b)(6) is Paparelli v. Prudential Insurance Company of America.8 Indeed, the corporation “must designate a knowledgeable person to In Paparelli, the U.S. District Court for the District of Massachusetts fully prepare and ‘unequivocally answer questions about the desig- held that deposition questions must be limited to topics expressly iden- nated subject matter.’”4 If the notice lists more than one subject— tified in the Rule 30(b)(6) deposition notice. Specifically, the Paparelli and notices usually do—the corporation may specify more than court held that “if a party opts to employ the procedures of Rule one person to testify.5 30(b)(6)…to depose the representative of a corporation, that party In designating its deponent for a specific subject, the corporation must confine the examination to the matters stated ‘with reasonable generally will be bound by the deponent’s testimony on that topic.6 particularity’ which are contained in the Notice of Deposition.”9 This crucial implication—always an important factor for all parties The Paparelli court reasoned that the language of Rule 30(b)(6) to consider—supplies the backdrop for the differing opinions con- as well as the advisory committee’s note implies that the purpose of cerning the scope of examination at a Rule 30(b)(6) deposition. The the rule was to allow an examining party to obtain specific information binding nature of a corporate deponent’s testimony about a designated by identifying a particular person with that knowledge. According to topic has led some courts to determine that other matters, including subjects outside the scope of the ones listed in the notice, are off-lim- Michael S. Cryan, a partner at Arent Fox LLP in Los Angeles, was counsel for its in a deposition of a corporate designee. Moreover, courts and com- the defendant and examining party, SSL Americas, Inc., in FCC v. Mizuho mentators outside California have endorsed this more restrictive Medy Company, Ltd. He thanks summer associates Jennifer Tung of the approach.7 University of Southern California School of Law and Ali Tehrani of UCLA

RICHARD EWING The leading decision limiting the scope of depositions under Rule School of Law for their assistance in the preparation of this article.

Los Angeles Lawyer April 2010 15 Paparelli, requiring a deponent to answer the witness must be prepared to testify, not Instead, California federal courts have questions about topics not listed in the notice the maximum.”17 relied on the 1970 advisory committee’s note would defeat the purpose of Rule 30(b)(6)’s Courts allowing examination beyond the to Rule 30, which states that the liberal dis- requirement that a corporation designate a topics stated in the deposition notice have covery standards of Rule 26 govern deposi- person to answer questions for the corpora- cited at least four rationales for rejecting tion questions that fall outside the scope of tion about specified matters.10 Moreover, Paparelli. First, federal courts in California a Rule 30(b)(6) notice, and any questions, so corporations would face increased difficulty have applied the more expansive standard long as they are relevant under Rule 26, are in identifying a proper corporate deponent if of discovery in Rule 26(b)(1)—a rule address- proper.24 The advisory committee’s note fur- they did not know with specificity what top- ing “Discovery Scope and Limits” in all types ther provides that the Rule 30(b)(6) procedure ics would be covered, and what information of federal depositions—as the touchstone for is meant not as an obstacle but to supplement would be sought, at the deposition. rejecting Paparelli’s more restrictive approach. existing practice “as an added facility for The Paparelli court found that the phrase For example, the Detoy court states that “the discovery.”25 “with reasonable particularity” in Rule decision in Paparelli appears to ignore the Third, interpreting Rule 30(b)(6) as a 30(b)(6) would be rendered superfluous if liberal discovery requirements of Rule limitation on discovery conflicts with the the rule was not intended to limit the scope 26(b)(1).”18 Rule 26(b)(1) provides: purpose of the rule, because the rule seeks to of deposition questioning: “if a party were free Unless otherwise limited by court enhance the available means of discovery. to ask any questions, even if ‘relevant’ to the order, the scope of discovery is as fol- It does so by requiring a party to specify lawsuit, which were completely outside the lows: Parties may obtain discovery persons to be present at a deposition rather scope of the ‘matters on which the examina- regarding any non-privileged matter than providing greater notice or protections tion is requested,’ the requirement that the that is relevant to any party’s claim to corporate deponents.26 Federal courts in matters be listed ‘with reasonable particu- or defense–including the existence, California, adopting the reasoning of a larity’ would make no sense.”11 As a result, description, nature, custody, condi- decision by the U.S. District Court for the the Paparelli court ruled that a designated wit- tion, and location of any documents or Southern District of Florida, have held that ness should testify only about the matters other tangible things and the identity Rule 30(b)(6) cannot be used to limit what is listed “with reasonable particularity” in the and location of persons who know of asked of a corporate deponent.27 Restricting deposition notice and only to the extent the any discoverable matter….Relevant the areas of inquiry would hamper discovery information sought was “known to the organ- information need not be admissible at by using a rule that was not meant “to con- ization or reasonably available to it.”12 Papa the trial if the discovery appears rea- fer some special privilege on a corporate relli therefore establishes an interpretation sonably calculated to lead to the dis- deponent.”28 of Rule 30(b)(6) that the topics identified in covery of admissible evidence. Federal case law in California cites the a Rule 30(b)(6) notice define the outer bound- The Detoy court reasoned that confining advisory committee’s note in reasoning that aries of permissible inquiry at the deposition the scope of the deposition frustrates the the purpose of the Rule 30(b)(6) procedure of a corporate designee. objectives of broad discovery under the fed- was to facilitate the identification of a proper eral rules. Further, the court noted that strictly witness and not to shield corporations from Rejecting Paparelli limiting the examination deprives the exam- discovery. As the advisory committee’s note Numerous federal district courts in California ining party from exploring previously undis- states: and elsewhere, however, have rejected the closed subjects and from observing the depo- [Rule 30(b)(6)] will reduce the diffi- Paparelli decision resoundingly.13 In the nent’s demeanor in the face of unexpected culties now encountered in determining, Northern District of California, for example, questioning.19 prior to the taking of a deposition, the court in Detoy v. City and County of San Second, confining a deposition to topics whether a particular employee or agent Francisco concluded that once a Rule 30(b)(6) listed in a Rule 30(b)(6) deposition notice is a “managing agent.” (Citations omit- witness satisfied the minimum standard by confers unfair procedural advantages to a ted.) It will curb the “bandying” by answering questions about topics listed in party defending a deposition.20 Preventing a which officers or managing agents of a the deposition notice, the scope of the depo- deposition from exploring topics outside the corporation are deposed in turn but sition would be determined by the broad rel- scope of a deposition notice would force the each disclaims knowledge of facts that evance standard of Rule 26 of the Federal examining party to choose between asking rel- are clearly known to persons in the Rules of Civil Procedure.14 Similarly, in the evant questions or reopening a deposition at organization and thereby to it. (Cita- Southern District, the court in FCC v. Mizuho a later date. The restrictive approach causes tions omitted.) The provision should Medy Company Ltd. held that the examining the examining party to face two procedural also assist organizations which find party had a right to cross-examine a Rule disadvantages if forced to reopen a deposition: that an unnecessarily large number of 30(b)(6) deponent on matters outside the Rule 30(a)(2)(A)(i) limits each side to 10 their officers and agents are being scope of the deposition notice.15 While the depositions, without a local rule or court deposed by a party uncertain of who in Central and Eastern Districts have not been order extending the allowable number, while the organization has knowledge.29 asked to address this issue specifically, a Rule 30(a)(2)(A)(ii) requires a party to obtain In light of the advisory committee’s note, recent decision from the Central District leave of court to reopen the deposition of a courts have held that Rule 30(b)(6) is “not refused to exclude testimony on the grounds witness.21 The court in Detoy found that the one of limitation but rather of specification that the answers provided exceeded the scope Paparelli rule’s two significant procedural within the broad parameters of the discov- of the designated Rule 30(b)(6) topics.16 hurdles are “artificial and wasteful of both the ery rules.”30 Relying on the advisory com- Federal courts in California have held parties’ resources and the witness’s time.”22 mittee’s note, the Detoy court observed that that Rule 30(b)(6) establishes a de minimus Forcing parties to jump through additional Rule 30(b)(6) was intended to assist a cor- standard for the testimony of a corporate procedural hoops, according to the court, poration in identifying an individual with designee. According to Detoy, the desig- “would encourage defending counsel to take specific knowledge about specified topics.31 nated subject matter listed in the deposition a hard line and force an opponent to expend Fourth, the language of Rule 30(b)(6) notice delineates “the minimum about which its deposition allotment.”23 supports the less restrictive interpretation.

16 Los Angeles Lawyer April 2010 JACK TRIMARCO & ASSOCIATES www.jacktrimarco.com

A proud member of the Los Angeles County Bar Association The Detoy court rejected Paparelli’s more Inc.—moved to compel and for sanctions. porations). restrictive construction of the “describe with The party defending the deposition—plain- 2 FED. R. CIV. P. 30(b)(6). 3 Id. reasonable particularity” language on the tiff FCC, LLC—responded by seeking a pro- 4 FCC v. Mizuho Medy Co. Ltd., 257 F.R.D. 679, 43 ground that the rule imposes an obligation on tective order and sanctions. Citing Rule 681 (S.D. Cal. 2009) (quoting Board of Trs. of Leland the corporation to provide witnesses with 30(d)(2), which states that “[t]he court may Stanford Jr. Univ. v. Tyco Int’l Ltd., 253 F.R.D. 524, knowledge of the specified topics but does not impose an appropriate sanction—including 526 (C.D. Cal. 2008)). limit what may be asked at a deposition.32 the reasonable expenses and attorney’s fees 5 Id. 6 incurred by any party—on a person who See King v. Pratt & Whitney, a Div. of United Tech. Practical Implications Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995). impedes, delays, or frustrates the fair exam- 7 See Roger L. Wilson & Steve C. Posner, Questions California’s interpretation of Rule 30(b)(6) ination of the deponent,” the FCC court beyond the Scope: Defending against the Fed. R. Civ. has many practical implications for both the awarded sanctions in favor of SSL Americas, P. 30(b)(6) Sneak Attack, 26 COLO. LAW. 87, 90 (June examining and defending parties. Even though requiring FCC and its counsel to pay for 1997). See also Christopher W. Arledge, Pitfalls in an examining party in California will be SSL’s travel costs, court reporting fees, and Defending the Rule 30(b)(6) Witness, ORANGE COUNTY LAWYER, Nov. 2004, at 20, 22. allowed to ask questions outside the scope of attorney’s fees in bringing the motion to 8 Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. 727 44 a Rule 30(b)(6) deposition notice, counsel compel. (D. Mass. 1985). Accord Reed v. Bennett, 193 F.R.D. should craft adequate deposition notices, The cases rejecting the Paparelli rule serve 698, 692 (granting motion to quash Rule 30(b)(6) because if the corporate deponent does not as a timely reminder of the risks inherent in deposition notice when requesting party “indicated know the answer to questions outside the unilaterally terminating a deposition. A depo- that the listed areas are not exclusive”). 9 Paparelli, 108 F.R.D. at 730. scope of matters described in the notice, nent’s counsel may object to a question, but 10 Id. “then that is the examining party’s prob- unless the question seeks privileged or confi- 11 Id. lem.”33 Answers to questions outside the dential information or grounds for a protec- 12 Id. scope of the Rule 30(b)(6) notice may be tive order exist, counsel must refrain from 13 See, e.g., FCC v. Mizuho Medy Co. Ltd., 257 taken subject to objection.34 instructing the deponent not to answer. The F.R.D. 679, 681 (S.D. Cal. 2009); Detoy v. City & Defending parties in California, however, proper procedure is for the deponent’s coun- County of S.F., 196 F.R.D. 362, 367 (N.D. Cal. 2000); accord Teknowledge Corp. v. Akamai Tech. are not left without recourse or protection. sel to “note on the record which questions are Corp., No. C 02-5741-SL, 2004 WL 2480707, at *1 Counsel defending a Rule 30(b)(6) deposition beyond the scope of the deposition notice.”45 (N.D. Cal. Aug. 10, 2004); see generally Icon Enters. should object to questions outside the scope Furthermore, FCC illustrates that a depo- Int’l, Inc. v. American Prods. Inc., No. CV 04- of the deposition notice.35 By stating timely nent’s counsel cannot terminate a deposition 1240SVW (PLAx), 2004 WL 5644805, at *7 (C.D. and proper objections, counsel ensures that unless the examination is being conducted in Cal. Oct. 07, 2004). 14 Detoy, 196 F.R.D. at 367; Teknowledge Corp., the deponent’s answers do not bind the cor- bad faith or in such a manner as to unrea- 2004 WL 2480707, at *1. 36 poration. However, counsel should only sonably annoy, embarrass, or oppress the 15 FCC, 257 F.R.D. at 682. terminate a deposition or instruct a witness deponent. Even if the deposition is conducted 16 Icon Enters. Int’l, 2004 WL 5644805, at *7. not to answer questions if these steps are in this way, the deponent’s counsel must com- 17 Detoy, 196 F.R.D. at 366. 18 necessary to preserve a privilege, enforce a ply with proper procedure by immediately Id. 19 Id. limitation on evidence previously ordered by seeking a protective order. 20 Id. at 367. the court, or present a motion for a protec- Failure to immediately seek a protective 21 See FED. R. CIV. P. 30(a)(2)(A)(i) & (ii); Detoy, 196 tive order.37 Moreover, Rule 30(d)(3)(A) pro- order after terminating a deposition is a vio- F.R.D. at 367. vides that a deposition may be terminated lation of the Federal Rules of Civil Procedure 22 Detoy, 196 F.R.D. at 367. only if the examining party is taking the and may lead to sanctions, such as the those 23 Id. 24 Id. deposition in bad faith or is annoying, embar- awarded by the FCC court in resolving a dis- 25 FED. R. CIV. P. 30 advisory committee’s note. 38 46 rassing, or oppressing the deponent. Even pute regarding a Rule 30(b)(6) deposition. 26 Detoy, 196 F.R.D. at 367; King v. Pratt & Whitney, then, counsel must immediately seek a pro- In light of FCC, unless the objecting party a Div. of United Tech. Corp., 161 F.R.D. 475, 476 (S.D. tective order.39 In all other situations, “an actually proceeds under Rule 30(d)(3) and Fla. 1995). objection at the time of the examination must immediately files a motion for a protective 27 FCC v. Mizuho Medy Co. Ltd., 257 F.R.D. 679, 682 be noted on the record, but the examination order, courts will find the termination of the (S.D. Cal. 2009) (citing King, 161 F.R.D. at 476); Detoy, 196 F.R.D. at 366-67 (same). 40 still proceeds.” deposition improper and possibly worthy of 28 King, 161 F.R.D. at 476. The only authority for terminating a depo- sanctions. For federal court practitioners in 29 FED. R. CIV. P. 30 advisory committee’s note, cited sition resides in Rule 30(d)(3), which requires California, relying on a restrictive reading in Detoy, 196 F.R.D. at 367. the deponent to file a motion for a protective of the scope of corporate depositions runs 30 King, 161 F.R.D. at 476. 31 order.41 Absent an instruction not to answer counter to the weight of authority. Detoy, 196 F.R.D. at 367. 32 Id. or a motion for a protective order, a corpo- While case law continues to develop in this 33 Id. rate party may move prior to trial for an area, federal courts in California have steadily 34 Id. at 365. instruction stating that answers outside the interpreted a Rule 30(b)(6) notice as estab- 35 Id. at 367. scope of the Rule 30(b)(6) notice were merely lishing the minimum amount of information 36 Id. those of an individual fact witness and were a corporate deponent must provide at a depo- 37 Id. 38 FED. R. CIV. P. 30(d)(3)(A). not party admissions.42 sition. California decisions have clarified that 39 FCC v. Mizuho Medy Co. Ltd., 257 F.R.D. 679, 683 The FCC decision conveys an important the Paparelli rule will not be followed regard- (S.D. Cal. 2009) (citing Biovail Labs. Inc. v. Anchen cautionary lesson for counsel mulling whether ing depositions of a corporate deponent. Pharm., Inc., 233 F.R.D. 648 (C.D. Cal. 2006)). to instruct a corporate deponent not to answer Instead, Rule 26 and its liberal discovery 40 FED. R. CIV. P. 30(c)(2). questions or even terminate a deposition. In standards will govern any questions that fall 41 FED. R. CIV. P. 30(d)(3). 42 FCC, the party who was defending the depo- outside the scope of the deposition notice. ■ Detoy, 196 F.R.D. at 367. 43 FCC, 257 F.R.D. at 683. sition proceeded to terminate it but did not 44 Id. 1 immediately seek a protective order. The FED. R. CIV. P. 30(b)(6); compare CODE CIV. PROC. 45 Id. at 682. examining party—defendant SSL Americas, §§2025.010, 2025.230 (state rule for depositions of cor- 46 Id. at 683.

18 Los Angeles Lawyer April 2010 practice tips BY THEODORE P. BYRNE AND ARMANDO M. GALVAN

The Statute of Limitations for Equitable Accounting Claims

SHOULD AN ATTORNEY BE CONCERNED about a letter from a former needs to state that 1) a former attorney-client relationship exists, which client indicating that the client has filed a complaint for accounting creates an agency and fiduciary relationship, and 2) an unknown bal- regarding services that ceased years earlier? The lawyer may think the ance is due from the former attorney. One way that a plaintiff could complaint is obviously time barred. In the equitable world of account- fail to properly plead is to allege facts that show that the sum being ing claims, however, nothing is obvious, particularly in attorney-client sued for can be made certain by calculation.9 Although this mistake relationships. Under current law, as complicated by various streams is unlikely, if it were made the case would be subject to demurrer, since of case law, it is possible for overzealous plaintiffs’ attorneys to craft a complaint does not state a cause of action for an accounting when a complaint that survives demurrer and probably even summary it shows that none is necessary.10 judgment and assert a stale, frivolous contract claim under the guise After the pleading stage, however, facts may show that the plain- of an accounting action. tiff has sufficient information so that no accounting is necessary. This The rule for pleading an accounting claim is simple enough: 1) the was the situation in Caldwell v. Caldwell,11 in which the court held fiduciary relationship or other circumstances appropriate to the rem- that the evidence fell short of “proving this [accounting] cause of edy must be established, and 2) a balance must be due from the defen- action.” dant to the plaintiff that can only be ascertained by an accounting.1 The plaintiff at all times had full and free access to his own The “other circumstances appropriate to the remedy” of an account- money, through bank accounts in his name and with full ing include nonfiduciary contractual relationships requiring pay- access to and control over the books and records concerning ment by one party to another of profits or moneys received.2 This right the accounts in his name and with full access to and control can be derived simply from the implied covenant of good faith and over the books and records concerning the receipts and expen- fair dealing inherent in every contract in cases in which it can be said ditures of the property.12 that, without an accounting, there may be no way by which a party entitled to a share in profits or specified funds could determine Statute of Limitations whether there were any profits or amounts due.3 Whether the value of a claim can only be ascertained by an account- A fiduciary relationship can arise between a trustee and a bene- ing is one element of an accounting claim. Another is the statute of ficiary,4 a principal and agent,5 among partners in a partnership, and limitations, which may vary. In an action for an accounting, “the joint venturers in a joint venture.6 Illustrative of agency cases is nature of the right sued upon, not the form of action or relief McRaven v. Dameron,7 a case involving a suit by former clients for demanded, determines the applicability of the statute of limita- an accounting against their former attorney. tions.”13 The applicable statute of limitations will be the four-year In McRaven, the clients brought an action against their former period provided in Code of Civil Procedure Section 343, the catch- attorney to recover money that was received by the attorney while all limitations period, unless a different statute is warranted by the acting in a fiduciary capacity but that he failed to deliver or account specific form of action.14 For example, if the primary purpose of the for to the plaintiffs. The clients alleged that, after the attorney was action is to recover money under an oral contract, then the two-year paid to handle two lawsuits that were later dismissed, “upon infor- limit under Code of Civil Procedure Section 339(1) may apply.15 mation and belief…[the attorney] received about” $8,000 “on account An attorney defendant can defeat a former client’s accounting claim of said dismissals.” The trial court entered judgment in favor of the by presenting evidence that no money or property is owed to the client. plaintiffs, and the California Supreme Court affirmed. The court If the lawsuit requests an accounting based on the accounting rela- held that although “[t]he complaint may not be as specific with tionship—that is, a relationship whereby one party clearly has the duty regard to the contract as it might be…it is sufficient according to a to handle, safeguard, and keep track of another’s moneys—without number of decisions of the court.” The court concluded that the com- more, it should fail on the authority of Union Bank v. Superior plaint sufficiently pleaded and the clients sufficiently proved that 1) Court (Demetry).16 the action was to recover money received by the attorney while act- As the court in Union Bank made clear, “No California decision ing in the fiduciary capacity under a contract between the attorney holds that the existence of a complicated accounting relationship and client, 2) the attorney received as the fruit of his representation between parties by itself permits the maintenance of a lawsuit between certain moneys owed to the plaintiffs, and 3) the attorney failed to them when no money is owed or property must be returned.”17 In deliver or account for the funds to the clients. In the opinion, there Union Bank, the plaintiff fatally admitted that the defendant took no is no mention that the clients sued other than “for an accounting of inappropriate role in connection with the accounting relationship aris- moneys” of which “plaintiffs were not informed…until within two ing out of the defendant’s administration of loan collections and years before the commencement of the action.” At trial, “it was repossession of office equipment. The defendant was thus able to estab- expressly stipulated that the two year statute of limitations did not” bar maintenance of the suit.8 Theodore P. Byrne is a licensed CPA and an attorney practicing in Redondo To file an accounting claim against a former attorney, a plaintiff Beach, and Armando M. Galvan is an attorney practicing in Los Angeles.

Los Angeles Lawyer April 2010 19 lish on summary judgment that it engaged in accounting action accrued and whether the no triable issue of fact regarding a defen- no misconduct, because the plaintiff was written or oral agreement was in force at the dant’s contention that the suit is time barred. never deprived of moneys or profit, thereby time of the breach. Since the statute of limi- A defendant many times can indisputably precluding a right to an accounting.18 tations generally begins to run at the time of establish when he or she received money One complicating fact pattern arises when, the breach, facts are necessary to determine from the plaintiff. If the date of receipt of as is often the case, the attorney-client rela- whether a claim for breach of oral or written funds is more than four years prior to the date tionship begins with a written agreement to contract is time barred.19 the attorney ceased to work for and com- provide specific services but the relationship Another complication occurs if the plain- municate with the client, and if the breach and expands beyond them. In one common sce- tiff claims that the attorney mistakenly or related limitations period are based on a writ- nario, an attorney agrees to prosecute a law- intentionally took a garnishment check dur- ten contract, the defendant may be able to suit, is later asked to perform postjudgment ing the collections phase of the litigation. In establish that the claim is time barred. In collection work without an additional writ- that instance, the three-year statute of limi- addition, courts have held that when services ten agreement, and receives garnishment tations for an action for relief on the ground are rendered intermittently, the court may checks as part of the collection work. It is of fraud or mistake may apply. “Fraud” in consider each service performed to be com- unclear whether the oral or written contract this context includes actions for construc- plete and independent of the others, thereby statute of limitations should apply when a tive fraud or mistake, which exists when con- leading to the conclusion that the statute portion of the legal services is provided pur- duct, though not actually fraudulent, has the runs from the date each service is rendered.24 suant to a written agreement and a subsequent same consequences and effects of actual This date-of-service rule could apply when all portion is provided under an oral contract. fraud.20 This rule has been applied in at least services under a written agreement have been The applicable statute of limitations will one action to obtain an accounting.21 In such completed, but collections work outside the often depend on the specific allegations in a a case, the accounting action would be time contract is later undertaken. In such a case, complaint. For example, a complaint may barred if filed more than three years after the date of accrual for a suit for an account- state that the alleged wrongdoing is that cer- the alleged wrongful breach of duty.22 ing of moneys that the attorney collected tain moneys received during the attorney- would be the date that the attorney rendered client relationship were not accounted for, Date of Accrual the collections work. placing at issue the reasonable value of the ser- This analysis becomes more complex when Other accrual rules might apply depend- vices provided by the attorney. With this alle- the diverse accrual rules are considered. The ing on the circumstances. When a contract gation, the plaintiff may argue that a bal- key question is when each underlying breach fixes the time for performance, the statute of ance is due from the defendant to the plaintiff of contract accrued. For a service contract, the limitations does not begin to run until the that can only be ascertained by an account- date of accrual is ordinarily when the defen- expiration of that specific time.25 In contrast, ing. Questions will arise as to the time of dant received the money.23 Application of if no time is specified in the contract, the breach, which will determine when the this rule could warrant a finding that there is statute begins to run after the expiration of a reasonable period.26 Alternatively, if the oral agreement to perform collections work is for an indefinite period, the statute of limitations does not begin to run until the services end.27 A plaintiff’s claim may thus be time barred if the last invoices demonstrate that the most recent collection work was more than two years before the filing of the complaint. Under these circumstances, the plaintiff is unable to rely on contacts with the attorney that occurred after the collection work was completed. An action for an accounting is equitable. A suit may be brought to require the defendant to account for missing money or property received or held by the defendant. However, if the accounting results in a finding that an overpayment of a certain sum of money was made by the client to the attorney, can the court award damages in that amount against the attorney, effectively con- verting the case to a breach of contract case at law, even after the suit was tried in equity in a bench trial? Historically, courts have held that due process requires notice to the defendant of the degree of financial liability faced in a legal action.28 It would seem that no damages could be awarded in a suit in equity—such as a claim for an accounting—if the complaint has failed to allege a suit at law.

20 Los Angeles Lawyer April 2010 An attorney wishing to limit exposure to an equitable accounting claim should clearly delineate the services to be provided to the Does LACBA have “Industry Specialists For Over 22 Years” client through a written agreement. If subse- tWitkin & Eisinger we specialize in the Non-Judicial your current quent work is to be performed, a separate AForeclosure of obligations secured by real property e-mail address? written agreement should be created that or real and personal property (mixed collateral). specifically identifies the additional work and When your client needs a foreclosure done profession- The Los Angeles County Bar makes clear that the new work is distinct ally and at the lowest possible cost, please call us at: Association is your resource from any prior work performed for the client. for information delivered via e-mail Finally, at the conclusion of each scope of on a number of subjects that impact your practice. work covered by a written agreement with the client, the attorney should send the client a let- Update your records online at ter confirming that all services pursuant to the www.lacba.org/myaccount or agreement have been performed and that the call Member Services at 213.896.6560. attorney-client relationship has ended. The letter should also include a detailed accounting of all moneys received and expended during the engagement, and request the client’s prompt response if the client has any questions. ■

1 See, e.g., Stillwell v. Trutanich, 178 Cal. App. 2d 614 (1960). 2 McClain v. Octagon Plaza, LLC, 159 Cal. App. 4th 784, 805 (2008), review denied (2008). 3 Id. 4 Green v. Brooks, 81 Cal. 328, 333 (1889). 5 McRaven v. Dameron, 82 Cal. 57, 62 (1889). 6 April Enters. v. KTTV, 147 Cal. App. 3d 805, 818 (1983) (partnership dissolution); Menefee v. Oxnam, 42 Cal. App. 81, 85 (1919) (joint venture). 7 McRaven, 82 Cal. at 62. 8 Id. 9 Saint James Church of Christ Holiness v. Superior Court, 135 Cal. App. 2d 352, 359 (1955). 10 Id.; see also Union Bank v. Superior Court (Demetry), 31 Cal. App. 4th 573, 593-94 (1995) (citing Saint James Church of Christ Holiness, 135 Cal. App. 2d at 359). 11 Caldwell v. Caldwell, 80 Cal. App. 2d 378, 383 (1947). 12 Id. 13 Jefferson v. J. E. French Co., 54 Cal. 2d 717, 718 (1960). 14 People v. Taliaferro, 149 Cal. App. 2d 822, 825 (1957), disapproved on other ground (to extent case implies that four-year statute always applies to accounting claim); Jefferson, 54 Cal. 2d at 719. 15 See Estate of Peebles, 27 Cal. App. 3d 163, 166 (1972) (quoting and restating the rule in Jefferson, 54 Cal. 2d at 718). 16 Union Bank v. Superior Court (Demetry), 31 Cal. App. 4th 573, 593-94 (1995) (citing Saint James Church of Christ Holiness v. Superior Court, 135 Cal. App. 2d 352, 359 (1955)). 17 Id. at 594. 18 Id. 19 United Paciﬁc Reliance Ins. Co. v. DiDominico, 173 Cal. App. 3d 673, 675 (1985). 20 Day v. Greene, 59 Cal. 2d 404, 406 (1963) (If con- structive fraud is the gravamen of an action, the fact that a breach of contract is involved is not decisive.). 21 Lataillade v. Orena, 91 Cal. 565, 566 (1891). 22 CODE CIV. PROC. §338(d). 23 Tabata v. Murane, 24 Cal. 2d 221, 223 (1944). 24 Johnstone v. E & J Mfg. Co., 45 Cal. App. 586, 588 (1934). 25 Richter v. Union Land & Stock Co., 129 Cal. 367, 368 (1900). 26 Brennan v. Ford, 46 Cal. 7, 9 (1873). 27 Wax v. Adair, 16 Cal. App. 2d 393, 394 (1936). 28 Ely v. Gray, 224 Cal. App. 3d 1257, 1262 (1990).

Los Angeles Lawyer April 2010 21 by BRIAN S. KABATECK and ARTIN GHOLIAN

AS MORE AND MORE ADVERTISING CLICKdollars are moving from traditional media, including television and print, to the Internet, online advertisers and sellers such as Google, MSN, and Yahoo must contend with click fraud—arguably the most pronounced obstacle to the integrity of advertising on the Web. The term “click fraud” refers to clicking on a Web link without any intention to purchase, browse, or gain information from the Web site being visited. Click fraud generally encompasses any click made in bad faith. Click fraud schemes target online advertising by generating fraudulent traffic to WebHEREThe Computer Fraud and Abuse Act sites. According to the Interactive Advertising Bureau, online advertising spending for the ﬁrst six months of 2009 totaled $10.9 bil- may become the best tool for fighting lion.1 The online advertising industry is on the verge of exceeding advertising spent on Internet advertising click fraud radio and perhaps even television,2 yet 10 percent to 20 percent of Internet traffic generated from online advertising comes from opposed to the advertiser, and the ﬁrst one or loss. Section (g) provides for a civil action click fraud.3 that relies on provisions of the Computer by anyone who suffers damage or loss due to A new chapter opened in the battle against Fraud and Abuse Act. a CFAA violation. Complainants may seek Internet click fraud schemes last summer Enacted in 1984, the CFAA was created compensatory damages, an injunction, or when Microsoft filed a civil action in the to “provide a clear statement of proscribed other equitable relief. Still, not until the Western District of Washington against a activity concerning computers to the law small group of individuals suspected of enforcement community, those who own and Brian S. Kabateck, the founder and managing defrauding Microsoft’s advertisers through operate computers, and those tempted to partner of Kabateck Brown Kellner LLP, has dedi- click fraud.4 Even though the click fraud commit crimes by unauthorized access to cated his practice to the advocacy of consumer problem is almost as old as the Internet itself, computers.” Sections (a)(4) and (a)(5) of the rights. Artin Gholian, an associate at Kabateck the Microsoft case is one of very few claims CFAA make it a crime to access computers Brown, focuses his practice on Internet and busi-

brought by a seller of advertising space, as with the intent to defraud or cause damage ness litigation. KEN CORRAL

22 Los Angeles Lawyer April 2010

Microsoft civil suit has anyone alleged vio- of Web sites. One such program is Google’s on the left margin of the search results page. lations of the CFAA in litigation centered on AdSense. Advertising sellers like Google get When the user clicks on any of these spon- click fraud. a portion of the ad revenue generated each sored sites, the advertiser is charged per click. Indeed, despite its purpose, the CFAA has time an online consumer clicks on an ad dis- Click fraud occurs when an advertiser’s rival, been excluded from two recent click fraud played on the affiliate sites. For example, an who is also paying for ad space on the search criminal indictments5 and several recent click advertiser selling laptops will be best served page, repeatedly clicks on an ad simply to fraud-related civil lawsuits.6 Instead, plaintiffs if its ads are displayed on computer-related drive up costs to the advertiser and exhaust have used noncomputer-specific statutes, such sites rather than other sites containing random that advertiser’s ad budget. as those prohibiting mail fraud, to pursue or irrelevant content. Computers.com, for For example, the owners of an online click fraud schemes. While this approach is example, will be more desirable than, say, karaoke company were targeted by a com- effective in prosecuting some types of click shoes.com. Google, as the advertising seller, peting business when the competitor fraud, mail fraud statutes can fall short of pre- acts as the traffic broker between the adver- instructed its employees to repeatedly click on venting many other types of click fraud tiser selling laptops and the computer-related its rival’s ads and drain their ad budget.9 By schemes. Moreover, other noncomputer-spe- Web site in its affiliate network. Whenever an doing so, the rival’s ad would no longer cific statutes, such as those relating to wire affiliate’s site generates clicks for an advertiser, appear on the margins of the search display fraud, are deficient when applied to click Google charges the advertiser, at a predeter- page—and this, in turn, would increase the fraud. The CFAA may represent the future in mined per-click rate, and shares the revenue click-through rate of the perpetrator by hav- effective click fraud deterrence. with the affiliate. ing one less ad displayed on the results page. A variety of reasons have been proffered Once this type of advertising program The Microsoft complaint presents similar to explain why the CFAA has not been used was introduced, affiliates did not take long ini- allegations against the defendants. Microsoft previously in click fraud-related litigation. tiating schemes and methods to fraudulently sells online advertising through its Microsoft Perhaps advertising sellers were hoping that increase their click-through rates, which in adCenter platform, which enables advertisers the market would correct itself because of the turn raised their revenues. Since advertisers are to tie the placement of their ads to a keyword substantial revenues at stake—and this has paying for the number of clicks an ad receives, used on Live Search. Advertisers purchase happened to some extent. The market has affiliates (and, correspondingly, advertising certain keywords connected to their target produced several reactions to the growing sellers) generate more revenue when clicks are market, and when a user types in those key- risks that click fraud poses, including civil fraudulently generated. They do so with words, the search results display the adver- suits by online advertisers alleging common “clickbots”—programs designed to move tiser’s site as one of the sponsored sites. In law fraud and breach of contract. Click fraud throughout the Internet to generate clicks March 2008, Microsoft noticed dramatic protection software and new online adver- for the purpose of driving up click-through spikes in the searches of certain keywords con- tising business models have been introduced. rates—as well as “pay to read” programs— nected to the auto insurance industry and Legal commentators have suggested that com- click fraud rings composed of participants WoW (the World of Warcraft online game). puter crimes are really garden variety crimes paid to click on ads. Microsoft concluded that the spike was due carried out with new technologies. In this The 2004 criminal prosecution against to click fraud attacks from a single source and view, existing statutes are sufficient to address Michael Bradley is one example of the traced the fraudulent clicks back to the defen- click fraud. Indeed, some believe that com- attempts to thwart clickbot schemes.7 Bradley, dants—active users of Microsoft adCenter puter-specific laws are not only redundant who was indicted on mail fraud charges, and owners of several Web sites relating to but ultimately ineffective. designed a clickbot to exploit Google’s auto insurance and World of Warcraft. The CFAA, however, is actually the bet- AdSense program. The software generated The defendants’ Web sites were only mar- ter tool to use against click fraud schemes clicks on the AdSense program that ginally affected by the click fraud attack, because it is designed to target computer “mimic[ed] a surfer,” “look[ed] like real traf- while their competitors’ Web sites were hit crimes and computer-specific fraud. Civil fic,” and “hid[]” the true origin of the clicks. with thousands of clicks on several occasions lawsuits claiming violations of noncomputer- According to the criminal complaint allega- simultaneously. As a result, the competitors’ specific statutes as well as market responses tions, Bradley professed that advertisers would advertising budgets were exhausted while may fall short of addressing the fraudulent not be able to tell whether the paid-for clicks the defendants’ budgets went unaffected, behavior, but the CFAA can punish and pre- were legitimate or fraudulent. Ultimately, the allowing their sponsored sites to assume vent the fraudulent conduct and delete the charges against Bradley were dropped, amid higher rankings and gain increased traffic. To problem altogether. suggestions that Google had been unwilling lessen the adverse impact this attack had on to cooperate with the prosecution to protect advertisers, Microsoft issued advertising cred- How Click Fraud Schemes Work Google’s click fraud detection and prevention its worth $1.5 million to those who were Click fraud is fueled by the way Internet traf- methods.8 affected. Then it sued the suspected perpe- fic is monetized—the buying and selling of Competitor click fraud is a scheme in trators for damages. clicks. Pay-per-click programs allow adver- which fraudulent clicks are generated to com- tisers to pay a fee to advertising sellers like promise a competing advertiser’s online ad Falling Short Microsoft and affiliate Web site networks display. In programs such as Yahoo’s Over- The online advertising community has each time a user clicks on the advertisers’ ture, Google’s Adwords, or Microsoft’s responded to the click fraud problem, but so ads. The two most common schemes involve adCenter, advertisers have the opportunity to far its actions are problematic. Civil litigation affiliate click fraud and competitor click purchase advertising links that are displayed centering upon breach of contract claims, fraud. on the margins of search engine results based questioning the number of clicks for which Affiliate click fraud occurs in a revenue- on the keywords used by those conducting the advertisers must pay, and developing click sharing program. Google, Yahoo, MSN, or searches. For example, if a user visits fraud detection and protection mechanisms other advertising sellers provide ad space to Microsoft’s search engine Live Search and all have their place. New business models advertisers on a “cost per click” basis and dis- types “laptops” in the search field, several ad such as Bing.com’s Cash Back program are play the ads throughout their affiliate network displays for laptops will appear at the top and billed as an alternative to pay-per-click mod-

24 Los Angeles Lawyer April 2010 els. But each of these defenses against click As long as click fraud perpetrators are free to the statute.13 Accordingly, prosecuting a click fraud has its drawbacks. Allowing the mar- configure and adapt new schemes, the fraud scheme under the wire fraud statute ket to self-regulate falls short of deterring integrity of online advertising diminishes. would require proof beyond a reasonable click fraud perpetrators. The innovative click fraud perpetrators need doubt that the transmission of the bad-faith Civil suits involving click fraud have not only adjust their fraudulent strategies and clicks was routed across state lines. However, fully addressed the fraudulent conduct nec- tactics to these new models to continue prosecutors may find it impossible to meet essary to perpetrate a click fraud scheme. exploiting and fleecing online advertisers. that burden because an Internet router seeks Advertising sellers are often torn between pursuing legal action against affiliates running click fraud schemes—which also generate a significant revenue stream—and simply ignor- ing the behavior. Google has only launched one lawsuit against an affiliate for using click fraud to drive up revenue,10 and even the current action brought by Microsoft is a nov- elty. Although class action lawsuits have been filed against advertising sellers including Google and Yahoo, they are ineffective, because advertising sellers act simply as facil- itators and do not materially contribute to the fraudulent behavior. The threat of click fraud has triggered several companies to develop software programs that “scrub” traffic for fraudulent activities. One of these programs is ClickShield, which monitors traffic in real time by comparing fraudulent activities against typical user behavior patterns. Google, among other advertising sellers, is incorporating technology that ana- lyzes clicks to determine whether they fit a pat- Noncomputer-specific statutes are being out the most efficient path, which could likely tern of fraudulent use intended to artificially deployed to halt click fraud, but the results be between computer routers within the same drive up an advertiser’s clicks or a publisher’s are mixed and do not bode well for the ulti- state. This, of course, leaves open the possi- earnings. But ultimately, while click fraud mate eradication of the problem. The Bradley bility that the transmissions at issue never protection software can help guard against criminal prosecution and the 2006 prosecu- crossed state lines. click fraud, these products do little to deter tion of a defendant in an affiliate click fraud and discourage the actual behavior. In its scheme11 both involved the mail fraud statute. Combating Click Fraud with CFAA case, Microsoft alleges that the defendants But the statute only became applicable when Litigation managed to bypass the security measures checks resulting from fraudulent click revenue The pending Microsoft case may provide a implemented by the company on several occa- were mailed to the defendants. If either defen- beacon for future prosecutions of click fraud. sions. Thus lingering doubts remain about dant had implemented a competitor click If CFAA Sections (a)(4) and (a)(5) can be the effectiveness of these tools. Moreover, fraud scheme that did not generate a check applied successfully to affiliate and competi- click fraud protection software can be cate- moving through the U.S. mail, the mail fraud tor click fraud schemes, these provisions will gorized as merely a secondary market capi- statute would not apply. In fact, for a com- be the most effective deterrent of click fraud talizing on the economic waste that click petitor click fraud scheme, like the one in behavior. It is a crime under Section (a)(4) to fraud creates. the Microsoft case, U.S. mail services are knowingly, and with the intent to defraud, Making pay-per-click advertising models unnecessary to execute the scheme and, thus, access a protected computer, or exceed autho- obsolete seems a promising avenue against the mail fraud statute cannot combat it. rized access, and obtain anything of value. click fraud. The cost per action or CPA con- Similarly, the wire fraud statute may also Section (a)(5) provides for civil liability for cept is one model not based on sharing rev- present problems when applied to click fraud intentionally accessing protected computers enue when a visitor clicks on an ad but rather schemes. Although it seems plausible to uti- without authorization and causing damage or when an action has occurred, such as filling lize the wire fraud statute in prosecuting a loss as a result of that conduct. Microsoft out a form or buying a product or service. click fraud scheme, in its current form the claims that through the click fraud schemes, Bing.com, for example, shares its ad revenue statute may not cover wireless Internet con- the defendants, operating out of the United with the consumer when the consumer pur- nections. Moreover, the statute may fall short States and Canada and within the scope of the chases a product from one of its advertisers regardless of whether the transmission occurs CFAA, knowingly caused the transmission of through the Cash Back program. Because wirelessly. In United States v. Phillips,12 the a command or information (in the form of only a purchase results in billing for the traf- Massachusetts district court held that the clicks), exceeded authorized access, and fic and the resulting sale, click fraud perpe- wire fraud statute requires that the trans- caused damage to a protected computer by trators seemingly have no incentive to deploy mission must be “in interstate or foreign impairing the integrity of data in adCenter. their schemes. commerce,” and that the government must The Microsoft complaint alleges that the Nevertheless, even though new advertis- prove beyond a reasonable doubt that the per- adCenter system is the required “protected ing models could eliminate for now the prof- tinent wire transmissions actually crossed computer.” Under Section (e)(2)(B), a protect- its derived from click fraud schemes, these state lines. Use of the mechanisms of interstate ed computer is any computer “used in inter- models still do not address the root problem. commerce is not enough for conviction under state or foreign commerce or communication;

Los Angeles Lawyer April 2010 25 including a computer located outside the routers without authorization. fic. By their conduct in ensuring the depletion United States that is used in a manner that To satisfy the knowledge requirement of of their competitors’ ad budgets, the defen- affects interstate or foreign commerce or com- Section (a)(4), prosecutors must prove that the dants’ Web sites assumed higher rankings in munication of the United States.” Every time click fraud perpetrator knew that the conduct the adCenter program and increased their an online ad link receives a click, whether of generating illegitimate clicks furthered the traffic at a much lower cost than they could manually or through the use of a clickbot, the scheme and exceeded authorized access. In In have accomplished otherwise. The increased server in which the link resides is accessed re Intuit Privacy Litigation,16 the court held traffic and the higher rankings are poten- and so too the router, which forwards the that the defendant’s conduct of placing “cook- tially important enough to be considered by resulting click to the next destination. Thus the ies” (an electronic file that online companies a court as things of value. The defendants not server and the router are protected computers. such as Intuit implant upon computer users’ only obtained more valuable service—that Microsoft’s damages arise from the hard drives when those users visit Internet is, higher rankings—than what they paid for unwanted clicks, which violate its terms of ser- Web sites) on the plaintiffs’ computers for the but also potentially captured more customers. vice. Advertisers participate in pay-per-click purpose of monitoring Web activity satisfied CFAA Section (a)(4) provides for unspec- advertising programs to pay for clicks that the element of scienter. Therefore, the action ified fines or imprisonment (or both) for no might result in an economic benefit. Certainly of clicking on a link to further a click fraud more than five years for first offenses and advertisers do not authorize advertising sell- scheme is sufficient conduct to satisfy the and for no more than 10 years for subse- ers to bill them for clicks other than those scienter element of the CFAA. The defen- quent offenses. However, the effectiveness of derived from a Web user interested in the dants’ use of clickbots or their establishment Section (a)(4) requires the bringing of pros- ad. Advertising sellers operate under stan- of so-called click farms for this purpose, as the ecutions. David Goldstone, a trial attorney for dard terms and conditions with affiliate net- Microsoft complaint alleges, leaves little the Department of Justice Computer Crime work participants, and these generally pro- doubt about the purposeful nature of the and Intellectual Property Division, noted that hibit affiliate Web sites from authorizing or defendants’ conduct. prosecutions under the CFAA should pro- encouraging third parties to generate fraud- Increasing revenues by fraudulently gen- vide a substantial deterrent.18 In discussing the ulent clicks on any ad, link, search result, or erating clicks clearly falls within the definition prosecution of intellectual property crimes, display. Microsoft’s terms and conditions of “obtaining a thing of value” under Section such as copying protected music on the contractually prohibit adCenter participants (a)(4). However, value obtained through a Internet, Goldstone writes that prosecutions from “generat[ing] automated or fraudulent competitor click fraud scheme is more play a vital role in establishing public expec- impressions or clicks on sponsored sites on the nuanced. The plaintiffs in In re America tations of right and wrong.19 Microsoft Network.” Online, Inc.17—Internet subscribers as well as Similarly, an online advertising research Google similarly prohibits the partici- Internet Service Providers—alleged violations firm observed that “if more aggressive mea- pants of its Adworks program from autho- of Section (a)(4) when AOL provided online sures are not put in place to validate clicks, rizing any party to “generate automated, software that blocked any non-AOL com- fraud could undermine the entire business fraudulent or otherwise invalid impressions munications software and services used by model of Internet search engines by causing or clicks.” Therefore, any click fraud scheme consumers. AOL sought to dismiss the claims advertisers to lose confidence.”20 Through that misrepresents a click from a legitimate against it filed by other ISPs, contending that its current complaint, Microsoft is clearly Web surfer—whether the click is manual or by distributing its program it did not obtain trying to send a message to all click fraud per- automated—exceeds the access authorized anything of value proscribed by Section (a)(4). petrators. A decision in favor of Microsoft, by the standard terms and conditions of the Disagreeing, the court held that “although the or even public awareness of the existence various advertising programs. typical item of value in CFAA cases is usually and details of the claims at issue, can have the Microsoft’s position may hold water. The data, in other areas of the law, customers have sought-after effect of supporting the viability court in America Online, Inc. v. National been found to be a thing of value.” Ac- of online advertising. Click fraud perpetrators Health Care Discount, Inc. held that the cordingly, the court rejected AOL’s motion to are on notice that they run the risk of defend- defendants violated the unauthorized access dismiss, finding that AOL’s actions interfered ing a civil lawsuit. provisions of the CFAA when their agents with the relationships of other ISPs with exist- Online advertisers paying for fraudulent sent bulk e-mails to the plaintiff’s customers ing customers and potential subscribers and, clicks are analogous to consumers adversely in violation of AOL’s terms of service.14 In EF therefore, AOL obtained something of value affected by insider trading or monopolistic Cultural Travel v. Explorica, the court con- within the meaning of Section (a)(4). practices. Just as investors rely on the integrity cluded that a competitor’s use of a computer The Microsoft complaint may benefit of brokers dealing fairly and honestly and the program to systematically and rapidly copy from the AOL decision. For advertisers in the government to enable fair competition, online prices from the plaintiff’s Web site to allow Microsoft adCenter program to obtain certain advertisers depend on the integrity and legit- systematic undercutting of those prices keywords, they are required to bid on the key- imacy of the clicks they purchase from traf- “exceeded authorized access” within the words in a process similar to an auction. As fic brokers. In fact, advertisers contemplating meaning of the CFAA.15 This was because the a result, popular keywords can potentially moving a greater percentage of their adver- computer program was contrary to the agree- fetch hundreds of dollars per click. Moreover, tising budgets online must be confident that ment’s prohibition against “use [of] the amount an advertiser is willing to pay for effective measures are in place to ensure that such…information for [the] employee’s own a keyword affects the ranking of the dis- deceptive practices like click fraud schemes are benefit or for the benefit of any other person played Web site. High bidders will have their adequately deterred. The less likely a click or business entity.” The Bradley criminal Web sites listed higher in the rankings and results from fraud, the greater demand and complaint asserts that the use of clickbots thus can increase their chances of attracting value clicks will earn when sold by Internet constitutes unauthorized access of routers customers. Once a high bidder’s ad budget is traffic brokers. because once a clickbot is active it uses com- exhausted, the sponsored site will no longer The CFAA must become the primary tool puter routers to “tunnel” the http requests to appear when the keyword is searched, thus for stopping click fraud. The high risk and advertising sellers like Google and conceal enabling low-cost sites to assume higher posi- probability of prosecutions or civil lawsuits their true source, compromising computer tions in the rankings and increase their traf- will counterbalance any temptations for easy

26 Los Angeles Lawyer April 2010 money to which those with digital savvy statute is no longer just theoretically capable Cal. filed June 24, 2005). may succumb. Even foreign click fraud per- of protecting advertisers against click fraud. 7 Bradley, No. 504059, Complaint at ¶25. 8 Elgin, supra note 3. petrators will feel the heat of the CFAA. The CFAA will be a proven tool for ensuring 9 Tim Engstrom, ‘Click Fraud’ Worries Retailers, NEWS- While they may be beyond the jurisdictional the credibility and confidence of the online PRESS (Fort Meyers), Oct. 13, 2006, at 1D. reach of the CFAA, a successful CFAA action market. By relying on the CFAA and demon- 10 Complaint, Google, Inc. v. Auctions Expert Int’l, may significantly reduce the benefits they strating zero tolerance for click fraud, L.L.C., No. 104CV030560. may be deriving from a click fraud scheme. American companies can capture market 11 Indictment, United States v. Zeng, No. 06-335 (W.D. Pa. Sept. 26, 2006). Indeed, the defendants in the Microsoft case share by offering higher quality traffic and a 12 ■ United States v. Phillips, 376 F. Supp. 2d 6 (D. Mass. include foreign citizens and the domestic marketplace clear of cheats and scammers. 2005). entities they control. 13 Id. at 8 (“No reference is made in the text to mere ‘use’ The existence of a problem provides a 1 PriceWaterHouseCoopers, LLP, IAB Internet of the mechanisms of interstate commerce, as is the concurrent opportunity. If the CFAA proves Advertising Revenue Report (Oct. 5, 2009), available case with other statutes. The transmission itself must be a powerful deterrent to click fraud, compa- at http://www.iab.net/insights_research/947883 ‘in interstate or foreign commerce.’”). /adrevenuereport. 14 America Online, Inc. v. National Health Care nies like Google, Yahoo, and MSN can attract 2 Catherine Holahan, Advertising Goes Off the Radio, Discount, Inc., 174 F. Supp. 2d 890, 899 (N.D. Iowa advertisers currently spending their adver- BUSINESS WEEK ONLINE, Dec. 7, 2006. 2001). tising dollars with their global competition. 3 Ben Elgin, The Vanishing Click-Fraud Case, BUSINESS 15 EF Cultural Travel BV v. Explorica, Inc., 274 F. 3d International advertisers disillusioned by a WEEK ONLINE, Dec. 4, 2006, http://www.businessweek 577, 581 (1st Cir. 2001). 16 government’s lack of action against click .com/technology/content/dec2006/tc20061204_923336 In re Intuit Privacy Litig., 138 F. Supp. 2d 1272, 1274 (C.D. Cal. 2001). fraud are likely to reposition their advertis- .htm?chan=search. 4 Complaint, Microsoft Corp. v. Lam, No. C09-0815 17 In re America Online, Inc., 168 F. Supp. 2d. 1359 (S.D. ing strategies toward countries where effec- (W.D. Wash. filed June 15, 2009). Fla. 2001). tive recourses against fraudulent click fraud 5 Criminal Complaint, United States v. Bradley, No. 18 David Goldstone, Deciding Whether to Prosecute an practices are in place. China’s search engine, 504059 (N.D. Cal. filed Mar. 18, 2004); Indictment, Intellectual Property Case, UNITED STATES ATTORNEYS’ Baidu, which is responsible for 58 percent of United States v. Zeng, No. 06-335 (W.D. Pa. Sept. 26, BULLETIN, COMPUTER CRIMES AND INTELLECTUAL PROP- the Chinese online search market, is experi- 2006). ERTY, Mar. 2001, at 2, available at http://www.justice 6 Complaint, Checkmate Strategic Group Inc. v. Yahoo!, .gov/usao/eousa/foia_reading_room/usab4902.pdf. encing dwindling advertiser confidence due to Inc., No. 2:05-cv-04588-CAS-FMO (C.D. Cal. filed 19 Id. at 4. its staggering 34 percent click fraud rate since Nov. 3, 2005); Complaint, Google, Inc. v. Auctions 20 Sara Kehaulani Goo, ‘Click Fraud’ Threatens 2007.21 At present, Google only has 17 per- Expert Int’l, L.L.C., No. 104CV030560 (Super. Ct. Foundation of Web Ads, WASH. POST, Oct. 22, 2006. cent of China’s search market. Cal. filed Nov. 15, 2004); Complaint, Lane’s Gift & 21 Helen Leggatt, China Fraud a Problem for China’s A successful use of the CFAA in the Collectibles, L.L.C. v. Yahoo! Inc., No. CV-2005-52-1 Top Search Engine, BIZREPORT, Mar. 20, 2007, avail- (Cir. Ct. Ark. filed Feb. 17, 2005); Complaint, Click able at http://www.bizreport.com/2007/03/click Microsoft case will send a message that the Defense Inc. v. Google, Inc., No. C05 02579 (N.D. _fraud_a_problem_for_chinas_top_search_engine.html.

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Los Angeles Lawyer April 2010 27 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 31.

by Manuel Jimenez Before the Bar Failure to cooperate with the State Bar Enforcement Division can transform a minor complaint into a major disciplinary matter

NO WORDS regarding California’s attor- foreseeable pitfalls that may arise in the public corporation, acts as the administrative neys and their understanding of the attorney process. arm of the California Supreme Court in mat- discipline system are truer than those uttered The California Supreme Court has long ters involving the admission, regulation, and by Jonathan Arons, a long-time defense coun- held that the purpose of a disciplinary pro- discipline of attorneys.6 The Office of the sel representing clients in attorney discipline ceeding is not to punish the attorney but to Chief Trial Counsel (OCTC) is the enforce- matters, at the State Bar Public Hearing on protect the public, preserve public confidence ment entity of the State Bar, responsible for Admission, Competence and Discipline on in the legal profession, and ensure the high- prosecuting cases of attorney misconduct December 4, 2007.1 Arons said, “[N]either est professional standards for attorneys.2 The before the State Bar Court. the public nor the attorneys fully understand supreme court’s power to discipline licensed Attorneys come to the attention of the the disciplinary process, the system, how any attorneys in California is inherent and Enforcement Division of the State Bar in var- of this works. The education aspect of the Bar expressly reserved.3 Business and Professions ious ways. The majority of cases involve a is deficient.” This unfamiliarity can result in Code Section 6087 authorizes the supreme complaint from a former client. Complaints self-defeating conduct during the litigation of court to delegate this function to the State also can come from opposing counsel or par- a disciplinary matter. Not only should every Bar—as long as any actions by the State Bar ties and judges. Banks are required to report California attorney have a basic under- are reviewable by the court4—and the attorneys if they bounce a check on their standing of the State Bar disciplinary sys- supreme court has done so for much of the tem, but those actually facing disciplinary discipline process.5 Manuel Jimenez serves as a deputy trial counsel proceedings should know how to avoid the The State Bar of California, a nonprofit with the State Bar of California.

28 Los Angeles Lawyer April 2010 client trust account.7 Other enforcement ticipate in the State Bar’s investigation of ther civil nor criminal.17 They are adminis- actions emerge from an attorney being held misconduct is a breach of that duty.13 A trative18 and are not governed by either civil in contempt or having a modification or respondent’s failure to cooperate with the or criminal procedural rules.19 Moreover, reversal of a judgment based on misconduct, State Bar’s investigation of his or her mis- criminal procedural safeguards do not apply incompetent representation, or willful misconduct is a substantive violation of Business in disciplinary proceedings.20 The criminal representation.8 A attorney’s criminal con- and Professions Code Section 6068(i), which exclusionary rule does not apply in attorney viction sets in motion a process leading to a requires cooperation, and is not merely an discipline cases,21 and neither does the pro- determination whether the crime involves aggravating factor.14 hibition against double jeopardy.22 The Just because a respondent does not like a prosecutor’s settlement position does not mean it is unreasonable. If the respondent has to conjure up a novel legal theory to present a defense or do other legal gymnastics to explain away the obvious, the chances of a successful defense are pretty slim. Respondents may request an Early Neutral Evaluation conference with a State Bar judge, and this may be helpful in determining the merits of the matter. moral turpitude or other misconduct war- Failure to cooperate can transform a respondent does not have the right to refuse ranting discipline, and a hearing to decide minor complaint that could have been han- to testify.23 When the respondent is called to what, if any, discipline, is warranted.9 dled without a disciplinary disposition into a testify by the State Bar, he or she can be The OCTC’s Intake Unit receives a com- full-blown disciplinary matter. Approximately examined as if under cross-examination.24 plaint regarding an attorney and proceeds 65 to 80 percent of all matters referred for An attorney’s only entitlement to due to conduct an initial analysis of its viability. investigation end with a resolution other than process involves a “fair hearing.”25 Attorneys This is followed by a preliminary investiga- discipline or the filing of a NDC.15 Thus a fear facing the disciplinary process do not have a tion and attempts to resolve the matter. If the of confronting the State Bar can ultimately constitutional right to counsel.26 Although complaint survives the intake review, it pro- lead precisely to the dreaded confrontation as they have a statutory right to be represented ceeds to a State Bar investigator for further a direct result of the respondent’s failure to by counsel, they bear the responsibility to ob- handling. Statistically, the chances are remote participate. tain representation,27 and they do not have a that a complaint or other inquiry will result It is not unusual to find State Bar prose- right to the effective assistance of counsel.28 in either the filing of a formal charge, in the cutors who are former assistant district attor- Civil procedure elements are incorporated form of a Notice of Disciplinary Charges neys. Others have criminal and civil litigation into the disciplinary process by the Rules of (NDC), or a prenotice disciplinary disposition. backgrounds from diverse practice areas. Procedure of the State Bar of California, such Indeed, only 20 to 25 percent of all com- Many serve as prosecutors for more than 10 as California’s Civil Discovery Act via Rule plaints remain viable beyond the Intake Unit. years, and they quickly gain experience in 180 of the State Bar rules. Similarly, Rule In 2008, for example, of the 13,647 inquiries attorney discipline cases by focusing exclu- 214 of the State Bar rules makes California’s that were made, 10,845 were closed at the sively on them. They not only have the home Evidence Code applicable in State Bar pro- intake level, leaving only 2,802 inquiries for field advantage but also develop expertise ceedings, with some exceptions. Nevertheless, further investigation.10 dealing with a wide spectrum of practition- hearing judges have wide latitude to receive If Intake sends the complaint to an inves- ers. Respondents practice in a variety of sub- all relevant evidence, and relief from their tigator, the attorney being complained stantive areas and are diverse geographically, decisions will not be granted without a show- about—referred to as the respondent—will be ethnically, educationally, generationally, and ing of actual prejudice.29 Indeed, a State Bar contacted at the address maintained in the temperamentally. Court may invoke other civil or criminal pro- State Bar’s membership files for that attorney. Prosecutors know the rules, and respon- cedures to ensure due process.30 The initial contact is via correspondence, col- dents find it hard to play the game when While the State Bar Court operates under loquially known as a TR (“to respondent”) they are not as knowledgeable. For respon- specialized rules, it can also rely on the sub- letter. The TR letter will state that the State dents, being a solid criminal or civil court stantial body of case law generated by the Bar has received a complaint and will iden- practitioner is not enough if they are unfa- Review Department of the State Bar Court. tify the complainant, give a brief synopsis of miliar with the State Bar Act, ignorant of These decisions appear in the California State the complaint, request a written response, the Rules of Procedure of the State Bar of Bar Court Reporter. Along with decisions of and seek documentation from the attorney. California, or unaware of the Rules of Practice the California Supreme Court, the State Bar The TR letter’s use of the word “request” of the State Bar Court. Court Review Department decisions are the for a response is misleading. While respon- The State Bar operates under a specialized primary case law used by the State Bar Court dents are not required to waive any statutory set of procedural rules. Its attorney discipli- to support disciplinary holdings. or constitutional privileges, they are required nary proceedings have been described as to cooperate with the State Bar investiga- adversarial and quasi-criminal,16 evoking a Reasonable Approach to Settlement tion11 as a legal and ethical duty.12 Courts sense of being simultaneously criminal and Respondents not only need to respond to a have held that an attorney’s failure to par- civil. The irony is that the proceedings are nei- complaint. They also must decide as soon as

Los Angeles Lawyer April 2010 29 possible whether to settle a disciplinary mat- nary proceeding presently ranges from $1,983 proof for mitigating circumstances.44 Further, ter—a determination that usually involves a to $11,107, not including other allowable at the evidentiary hearing, the respondent cost-benefit analysis. Generally, the best offer associated costs of litigating the case or the has a duty to present all evidence that he or comes early in the process. If the respondent costs of seeking review. If a respondent she deems favorable.45 is able to resolve the problem before the pro- chooses to go to trial and is exonerated of all No rule or standard holds that respon- ceedings become full blown, he or she may charges, the respondent can move for reim- dents must prove affirmative defenses by not receive public discipline, or any disci- bursement of costs authorized under the clear and convincing evidence. Evidence Code pline at all. Delay in deciding whether to set- Business and Professions Code, as interpreted Section 500 provides that a party has the tle frequently means that public discipline through the State Bar’s rules of procedure.38 burden of proof for the facts underlying a becomes more of a possibility. This is so par- claim or defense. Rule 214 of the State Bar ticularly when discipline would not have Going to Trial rules of procedure incorporates Evidence been warranted but for the respondent’s lack Respondents should not rely on the State Code Section 500. Although not implicating of cooperation with the investigation. Bar’s pretrial statement and exhibits as their the burden of proof, the Review Department, Prosecutors formulate disciplinary offers reminder to file their own pretrial statement. in the Matter of Wolff, indicated that the based upon several factors, including the Rule 211 of the Rules of Procedure of the rule of limitations in State Bar proceedings State Bar’s Standards for Attorney Sanctions State Bar of California requires the parties to must be pled as an affirmative defense—and for Professional Misconduct as well as the attempt to file a joint pretrial statement. If they the respondent bears the burden when mak- alleged misconduct, and any mitigating or are unable to do so after a good faith effort, ing this pleading.46 In the Matter of aggravating factors. The State Bar’s stan- the parties must file separate statements. Rule Respondent B, the Review Department held dards set forth the baseline for disciplinary dis- 1221 of the Rules of Practice of the State that “the standard of clear and convincing evi- positions and “shall apply to the fixing of a Bar Court specifies that the parties must meet dence is so basic to State Bar proceedings final disciplinary sanction….”31 They pro- in person or telephonically to comply with that any deviation from this standard is ordi- vide for a broad range of sanctions depend- Rule 211. Nevertheless, despite these rules, it narily spelled out in the State Bar Act or the ing upon the nature and gravity of the offense is not infrequent that a respondent fails to Transitional Rules of Procedure.”47 and the resulting harm to clients.32 However, timely file a pretrial statement. the standards “do not mandate a specific dis- Without a joint statement, the State Bar Ineffective Trial Defenses cipline.”33 They define the factors that the prosecutor will send the respondent a pretrial Some attorneys believe that the best defense court may consider as either aggravation or statement, a set of marked and paginated is to go on offense. Their instinct is to lash out mitigation.34 documents representing the State Bar’s in the hope that adversaries will back down. Ever since the California Supreme Court exhibits, and a witness list of those scheduled However, State Bar prosecutors are not intim- in In re Silverton35 affirmed that the State to testify at the trial. This is accomplished 20 idated by aggressive attorneys. Insults, threats, Bar’s standards must be afforded great weight days prior to the pretrial conference or at and other forms of intimidation tactics may in disciplinary recommendations, the OCTC’s another time specified by the court.39 When be taken as indications that the respondent has willingness to deviate from the standards this happens, the respondent risks discover- no legitimate defense to the charged conduct. became minimal. Further, a prosecutor’s for- ing that it may be too late to prepare an ade- For example, in Matter of Steven G. mulation of a settlement position is refined by quate defense. Trying to conjure up a defense Hanson, the respondent repeatedly threat- other supreme court decisions as well as at the last minute is like having an architect ened the prosecutor and the trial judge.48 In Review Department opinions. draw up plans for a fortified castle after the his pleadings he wrote, “So far in this case, When a respondent finds the prosecutor’s siege has begun and the opposing army is both the court and the prosecutors, are ignor- best offer unacceptable, he or she should ready with sharpened swords. ing law and procedure thereby subjecting proceed carefully. A respondent who stead- The failure to file any type of pretrial themselves ultimately to personal liability in fastly believes that no discipline is warranted statement can lead to the respondent becom- a Federal Court action both through RICO should not stipulate to discipline for fear of ing a silent spectator at his or her own disci- and civil rights claims.” Respondents are not going to trial. However, the respondent’s plinary hearing. As Rule 211(f) states, going to intimidate anyone in the State Bar belief should be based upon a reasonable “Failure to file a pretrial statement in com- disciplinary process into dropping charges expectation of doing better at trial. Just pliance with this rule may constitute grounds or believing the absurd. Ultimately, the because a respondent does not like a prose- for such orders as the Court deems proper, respondent defaulted at trial and was disci- cutor’s settlement position does not mean it including but not limited to the exclusion of plined. Interestingly, the State Bar Court did is unreasonable. If the respondent has to con- evidence or witnesses.” In Matter of Heiner, not find Hanson’s behavior to be aggravating jure up a novel legal theory to present a the Review Department recognized that pre- under Standard 1.2(b)(vi). defense or do other legal gymnastics to trial statements are an effective tool for the Nevertheless, the Review Department did explain away the obvious, the chances of a efficient conduct of State Bar trials.40 The find that overly hostile litigation tactics were successful defense are pretty slim. Respon- court warned that “[u]nexcused failure to an aggravating factor in a recent unpublished dents may request an Early Neutral Eval- comply with an order requiring a pretrial decision. The Matter of Richard Isaac Fine is uation conference with a State Bar judge, statement…should not be treated lightly.”41 notable for the proposition that aggression is and this may be helpful in determining the Furthermore, the failure to comply with pre- a poor litigation tactic in State Bar proceed- merits of the matter.36 trial procedures may be considered a serious ings.49 The respondent had engaged in a pat- The respondent pays the costs of any pro- aggravating circumstance.42 Failing to file a tern of misconduct in which he repeatedly ceeding that results in public discipline,37 pretrial statement can have a negative effect misused Code of Civil Procedure Section and those costs increase as the resolution of on the disciplinary recommendation if the 170.3—a provision for challenging judicial the process takes longer to conclude. respondent is found culpable of misconduct. officers due to bias or prejudice—against a According to a formula approved by the The burden of proof for State Bar prose- superior court commissioner who had ruled Board of Governors pursuant to the Business cutors is clear and convincing evidence.43 against him. The respondent continued to and Professions Code, the cost of a discipli- The respondent bears the same burden of attempt to coerce and intimidate the judicial

30 Los Angeles Lawyer April 2010 MCLE Answer Sheet #191 MCLE Test No. 191 BEFORE THE BAR

The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. Name Law Firm/Organization 1. The primary purpose of the State Bar of California’s statement. disciplinary system is to punish errant attorneys. True. Address True. False. City False. State/Zip 12. Banks are required to report attorneys if they 2. The State Bar is a separate and independent agency, bounce a check on their client trust account. E-mail with the inherent authority to discipline attorneys. True. Phone True. False. State Bar # False. 13. According to statistics for 2004 to 2008, the vast INSTRUCTIONS FOR OBTAINING MCLE CREDITS 3. In State Bar disciplinary proceedings, the State Bar majority of complaints against attorneys received by the 1. Study the MCLE article in this issue. has to prove its case by what standard of proof? State Bar result in no disciplinary disposition. 2. Answer the test questions opposite by marking A. Beyond a reasonable doubt. True. the appropriate boxes below. Each question B. Preponderance of the evidence. False. has only one answer. Photocopies of this C. Clear and convincing. answer sheet may be submitted; however, this 14. State Bar disciplinary proceedings are quasi-crim- form should not be enlarged or reduced. 4. In State Bar disciplinary proceedings, the respondent inal, and therefore attorneys who cannot afford repre- 3. Mail the answer sheet and the $15 testing fee bears the burden of proving mitigating circumstances sentation have a right to court-appointed counsel. ($20 for non-LACBA members) to: by what standard of proof? True. Los Angeles Lawyer A. Clear and convincing. False. MCLE Test B. Preponderance of the evidence. P.O. Box 55020 C. Beyond a reasonable doubt. 15. Attorneys in State Bar proceedings can invoke their Los Angeles, CA 90055 right to remain silent. Make checks payable to Los Angeles Lawyer. 5. An attorney has a duty to cooperate and participate True. 4. Within six weeks, Los Angeles Lawyer will in a State Bar disciplinary investigation. False. return your test with the correct answers, a True. rationale for the correct answers, and a False. 16. An attorney can be found culpable of moral turpi- certificate verifying the MCLE credit you earned tude if his or her gross negligence allowed trust funds through this self-assessment activity. 6. The State Bar’s Standards for Attorney Sanctions for to be misappropriated, even without the attorney’s 5. For future reference, please retain the MCLE Professional Misconduct provide for a broad range of knowledge. test materials returned to you. sanctions. True. ANSWERS True. False. Mark your answers to the test by checking the False. appropriate boxes below. Each question has only 17. The Review Department of the State Bar Court has one answer. 7. The State Bar’s standards are given minimal weight held that the mitigating value of character evidence is by the State Bar Court in determining disciplinary dis- undermined if the witness is not aware of the full 1. ■ True ■ False positions. extent of the respondent’s misconduct. 2. ■ True ■ False True. True. False. False. 3. ■ A ■ B ■ C 4. ■ A ■ B ■ C 8. State Bar disciplinary proceedings are civil pro- 18. The State Bar uses its own rules of evidence, com- 5. ■ True ■ False ceedings that are governed exclusively by California’s pletely separate and apart from either criminal or civil 6. ■ True ■ False Code of Civil Procedure. evidence rules. ■ ■ True. True. 7. True False False. False. 8. ■ True ■ False 9. ■ True ■ False 9. An attorney can mitigate exposure to disciplinary 19. Prior to going to trial, an attorney may request an 10. ■ True ■ False actions by delegating responsibility for handling client Early Neutral Evaluation conference with a State Bar ■ ■ funds to a designated employee. judge to evaluate the attorney’s case. 11. True False True. True. 12. ■ True ■ False False. False. 13. ■ True ■ False 14. ■ True ■ False 10. The Rules of Procedure of the State Bar of California 20. If an attorney is found culpable of any of the ■ ■ require that the parties attempt to stipulate to some or charged allegations and receives a public disciplinary 15. True False all issues prior to trial. sanction, the attorney will be responsible for paying the 16. ■ True ■ False True. costs of the proceeding. 17. ■ True ■ False False. True. 18. ■ True ■ False False. ■ ■ 11. Rule 211 of the State Bar’s rules of procedure 19. True False requires the parties to attempt to file a joint pretrial 20. ■ True ■ False

Los Angeles Lawyer April 2010 31 officer during the disciplinary proceeding dence just because they are afraid of going to may admit declarations from character wit- before the State Bar Hearing Department, trial or because they want to cut the trial nesses without the necessity of those witnesses while the matter was under review by the short. Rule 130 of the State Bar rules of pro- making an appearance in court.57 Review Department, and even after his dis- cedure requires that the parties attempt to Still, in practice, there is only so much that barment. stipulate to some or all issues prior to trial. a prosecutor can elicit in cross-examining a Some respondents bring to disciplinary However, since the State Bar has the burden character witness. The prosecutor will cross- proceedings a ﬁrm belief that they are being of proving its case by clear and convincing evi- examine the witness about the length of the wronged. Respondents should keep in mind dence, reasonable doubts regarding a charge relationship with the respondent, the con- that in all likelihood, they are the only ones of professional misconduct must be resolved text in which the witness formed the opinion involved in the matter who see themselves as in favor of the accused attorney.55 The job of provided by the witness, what the respondent the victim. If a respondent’s trial strategy is respondents is to hold prosecutors responsi- or respondent’s counsel told the witness prior to mount a martyr defense, the respondent ble for meeting their burden. Likewise, stip- to testifying, what documents the witness should be prepared for the prosecutor to pre- ulating to adverse evidence as a strategem for reviewed, and what the witness knows about sent a former client whose case the respondent introducing positive evidence is almost never the charged misconduct. Indeed, what the bungled, whose telephone calls the respondent worth the bargain. Respondents are mistaken witness knows about the charged miscon- ignored, and whose money the respondent has if they think that the only beneﬁt of the bar- duct is the most common source of prosecu- not returned. gain for the prosecutor is to make the trial torial cross-examination. The Review Depart- One variation of the “respondent as vic- more efficient or shorter or to not require the ment has held that the mitigating value of tim” defense is the “evil secretary” defense. presence of a witness to establish the founda- character evidence is undermined if the wit- Respondents use this defense primarily when tion of an exhibit. Furthermore, respondents ness is not aware of the full extent of a respon- trust funds turn up missing. This defense is an often assume, incorrectly, that courts will dent’s misconduct.58 If the witness is aware attempt to shift responsibility to a subordi- invariably admit all prosecutorial evidence. of the extent of the alleged misconduct, the nate. Nevertheless, even if an attorney is the The vagaries of trial make stipulating to prosecutor typically asks, “If the allegations victim of duplicitous staff, the respondent exhibits a gamble for respondents. A prose- were true, would that change your opinion may still be culpable. Attorneys can delegate cutor’s willingness to stipulate may indicate about the respondent’s reputation for truth- authority but not responsibility—and courts that the prosecutor would rather be spared the fulness?” Prosecutors are not going to gain have repeatedly found respondents culpable trouble of having to lay a foundation for much from that question or even the cross- of moral turpitude by gross negligence. exhibits or calling foundational witnesses. examination in its entirety. For example, in Matter of Rubens, the On the other hand, the eagerness of prose- Indeed, the prosecutor’s case will suffer Review Department held that an attorney cutors to stipulate may also indicate that the very little harm if the prosecutor agrees to stip- violated Business and Professions Code case is falling apart and the prosecutors are ulate to allowing a declaration from the Section 6106 by abdicating responsibility for scrambling at the last minute to prove an respondent’s spouse telling the court what a a case to support staff.50 Respondents have element of the charged misconduct. wonderful person the respondent is. Never- a “personal obligation of reasonable care to For prosecutors, stipulating to evidence is theless, respondents will sometimes stipulate comply with the critically important rules a win-win situation. With a stipulation, they to one or all of the prosecution’s exhibits in for the safekeeping and disposition of client shorten the trial and may ensure the admis- exchange for the admission of the most funds.”51 Moreover, “‘Trust account defi- sion of evidence that may not have come in innocuous piece of evidence. ciencies are attributable to attorneys—not but for the stipulation. Prosecutors face no Determining how respondents will fare their employees.’…”52 Responsibility for trust downside when they stipulate to the admis- in the State Bar’s disciplinary process can be fund management and oversight cannot be sion of evidence because almost all docu- gleaned by looking at the 2008 Report on the delegated.53 The Review Department also ments in a State Bar trial involve the under- State Bar of California Discipline System for has held a respondent culpable of moral lying representation for which the respondent 2004 through 2008. During those years, the turpitude based upon gross negligence because has been accused of professional miscon- chances of a case receiving a dismissal or a the respondent’s slipshod procedures allowed duct—and the respondent has a special rela- nondisciplinary disposition ranged between entrusted funds to be misappropriated with- tionship with each document. The respondent 8.9 percent to 12 percent. Using those sta- out his knowledge.54 either wrote the document, received it, or tistics as a guide, a respondent who goes to Another variant of the “respondent as otherwise will be able to get it admitted trial has about a 90 percent chance of being victim” defense is the “crazy client” defense. through the respondent’s own testimony. The found culpable of some misconduct and This is used when respondents fail to com- respondent will almost certainly see the admis- receiving a disciplinary disposition. municate with or have abandoned a client. sion of all of his or her evidence unless it Therefore, all attorneys should be famil- Respondents using this defense claim that does not directly relate to the case. If a respon- iar with the State Bar’s disciplinary process, “[m]y client incessantly called, was unrea- dent is unable to get the evidence admitted, including the rules by which the system is gov- sonable, harassed me, ranted, had mental it is likely that the evidence is tangential and erned and the pitfalls that may arise for the issues.” Just by using the crazy client defense, therefore of limited value to the defense. defense. For a respondent to be successful, he respondents are tacitly admitting that they For example, respondents often want pros- or she must perform an honest inventory of were avoiding their client. The respondents ecutors to stipulate to allowing affidavits of the conduct at issue in the case, know the are providing evidence of their failure character witnesses in lieu of having the wit- adversary, and create the circumstances nec- to communicate with a client. Thus the de- nesses testify. Standard 1.2(e)(iv)56 allows con- essary for engaging prosecutors on favorable fense often backfires—and if the client at sideration of “an extraordinary demonstra- terms. Respondents are responsible for pre- court appears reasonable, articulate, and tion of good character of the member attested senting their best defense. Indeed, their careers aggrieved, the judge may turn the crazy client to by a wide range of references in the legal and depend on doing so. ■ defense into a “respondent lacks credibility” general communities who are aware of the determination. full extent of the member’s misconduct.” If the 1 Transcript of State Bar Public Hearing on Admission, Respondents should not stipulate to evi- prosecutor makes no objection, the respondent Competence and Discipline Pursuant to Business and

32 Los Angeles Lawyer April 2010 Professions Code Section 6095(a), at 102. Yokozeki v. State Bar, 11 Cal. 3d 436, 447 (1974)) 53 Matter of Malek-Yonan, 4 Cal. State Bar Ct. Rptr. 2 Chadwick v. State Bar, 49 Cal. 3d 103, 111 (1989); (holding that members of the bar have a duty to pre- 627, 635 (Review Dept. 2003). Cooper v. State Bar, 43 Cal. 3d 1016, 1025 (1987). sent any evidence they deem favorable to themselves, 54 Matter of Conner, 5 Cal. State Bar Ct. Rptr. 93 3 Obrien v. Jones, 23 Cal. 4th 40, 48 (2000); In re and a failure to do so may justify a denial of a motion (Review Dept. 2008); see also Matter of Hagen, 2 Cal. Attorney Discipline System, 19 Cal. 4th 582, 592-93 for a rehearing for the purpose of presenting additional State Bar Ct. Rptr. 153 (Review Dept. 1992); Matter (1998); see Hustedt v. Workers’ Comp. Appeals Bd., evidence). of Blum, 4 Cal. State Bar Ct. Rptr. 403 (Review 30 Cal. 3d 329, 336-37 (1981); CAL. CONST. art VI, 46 Matter of Wolff 5 Cal. State Bar Ct. Rptr. 1, 9 Dept. 2002). §1; BUS. & PROF. CODE §6087. (Review Dept. 2006). 55 Matter of Frazier, 1 Cal. State Bar Ct. Rptr. 676 4 BUS. & PROF. CODE §6087. 47 Matter of Respondent B, 1 Cal. State Bar Ct. Rptr. (Review Dept. 1991); Matter of Heiser, 1 Cal. State 5 Id.; Emslie v. State Bar, 11 Cal. 3d 210 (1974); 424, 431 (Review Dept. 1991). Bar Ct. Rptr. 47 (Review Dept. 1990). Saleeby v. State Bar, 39 Cal. 3d 547, 557 (1985); see 48 Matter of Steven G. Hanson, State Bar case no. 01- 56 STATE BAR R. PROC. tit. IV, STANDARDS FOR also BUS. & PROF. CODE §6077. O-04659. ATTORNEY SANCTIONS FOR PROF’L MISCONDUCT 6 2008 Report on the State Bar of California Discipline 49 Matter of Richard Isaac Fine, State Bar case no. 04- 1.2(e)(iv). System, available at http://www.calbar.ca.gov/calbar O-14366 (unpublished). 57 Matter of Pierce, 2 Cal. State Bar Ct. Rptr. 382 /pdfs/reports/2008_Annual-Discipline-Report.pdf. 50 Matter of Rubens, 3 Cal. State Bar Ct. Rptr. 498 (Review Dept. 1993). 7 BUS. & PROF. CODE §6091.1. (Review Dept. 1995). 58 Matter of Potack, 1 Cal. State Bar Ct. Rptr. 525 8 BUS. & PROF. CODE §§6086.7, 6086.8. 51 Palomo v. State Bar, 36 Cal. 3d 785, 795 (1984). (Review Dept. 1991). 9 BUS. & PROF. CODE §§6101, 6102. 52 Id. 10 2008 Report, supra note 6. 11 BUS. & PROF. CODE §6068(i). 12 Hipolito v. State Bar, 48 Cal. 3d 621, 627 n.2 (1989); Matter of Peterson, 1 Cal. State Bar Ct. Rptr. ASSOCIATION of DISCIPLINE DEFENSE COUNSEL 73 (Review Dept. 1990). 13 Peterson, 1 Cal. State Bar Ct. Rptr. 73. ➥ on the existing and proposed ➥ 14 Matter of Farrel, 1 Cal. State Bar Ct. Rptr. 490 TO ENSURE that attorneys TO ENHANCE the quality and applicants are treated policies, rules, statutes and of advocacy by defense counsel (Review Dept. 1991). procedures governing the 15 fairly and afforded due before the State Bar and State 2008 Report, supra note 6. discipline system; 16 Giddens v. State Bar, 28 Cal. 3d 730, 734 (1981) process in discipline, Bar Court; admissions and regulatory (citing In re Ruffalo, 390 U.S. 544, 551 (1968)). proceedings conducted by the ➥ TO EDUCATE the ➥ TO WORK with the State 17 Yokozeki v. State Bar, 11 Cal. 3d 436 (1974). State Bar of California; profession and public about Bar, local bar associations, and 18 Emslie v. State Bar, 11 Cal. 3d 210, 225 (1974). the discipline system and the others to address the root 19 Id. at 226. ➥ realities of attorney 20 TO OFFER informed causes of attorney misconduct. Palomo v. State Bar, 36 Cal. 3d 785 (1984). comment and vigorous critique misconduct; 21 Emslie, 11 Cal. 3d at 226-30. 22 In re Crooks, 51 Cal. 3d 1090, 1100 (1990). 23 Goldman v. State Bar, 20 Cal. 3d 120 (1977); [email protected] http://disciplinedefensecounsel.org/ Matter of Bach, 1 Cal. State Bar Ct. Rptr. 631 (Review Dept. 1991). 24 EVID. CODE §776(a). 25 Walker v. State Bar, 49 Cal. 3d 1107, 1115-16 (1989). If 26 Id. at 1116; Ainsworth v. State Bar, 46 Cal. 3d 1218 (1988). You are Italian, or 27 BUS. & PROF. CODE §6085; see Ainsworth, 46 Cal. 3d at 1229. You are married to an Italian, or 28 Walker, 49 Cal. 3d at 1116; Matter of Acuna, 3 Cal. State Bar Ct. Rptr. 495 (Review Dept. 1996). 29 Matter of Johnson, 3 Cal. State Bar Ct. Rptr. 233, You are dating an Italian, or 241 (Review Dept. 1995). 30 Emslie v. State Bar, 11 Cal. 3d 210, 226 (1974); You like to eat Italian food, or Giddens v. State Bar, 28 Cal. 3d 730, 735 (1981). 31 STATE BAR R. PROC. tit. IV, STANDARDS FOR ATTORNEY SANCTIONS FOR PROF’L MISCONDUCT 1.1. You like to drink Italian wine, or 32 Chadwick v. State Bar, 49 Cal. 3d 103, 111 (1989); Cooper v. State Bar, 43 Cal. 3d 1016, 1025 (1987). e… 33 Matter of Van Sickle, 4 Cal. State Bar Ct. Rptr. 980, You just enjoy a good tim 994 (Review Dept. 2006). 34 STATE BAR R. PROC. tit. IV, STANDARDS FOR ATTORNEY SANCTIONS FOR PROF’L MISCONDUCT 1.2. 35 In re Silverton, 36 Cal. 4th 81, 89-92 (2005). 36 STATE BAR R. PROC. 75. 37 BUS. & PROF. CODE §6068.10. 38 STATE BAR R. PROC. 283; BUS. & PROF. CODE §6086.10(d); see Matter of Wu, 4 Cal. State Bar Ct. Rptr. 263 (Review Dept. 2001). 39 STATE BAR R. PROC. 211. 40 Matter of Heiner, 2 Cal. State Bar Ct. Rptr. 559, It’s Time to Join 564 n.3 (Review Dept. 1993). 41 Id. at 564 n.3. THE ITALIAN AMERICAN LAWYERS ASSOCIATION 42 Matter of Hunter, 3 Cal. State Bar Ct. Rptr. 81 (Review Dept. 1994); Matter of Meyer, 3 Cal. State Bar Ct. Rptr. 697 (Review Dept. 1997). For more information, visit www.iala.info 43 STATE BAR R. PROC. 213. 44 STATE BAR R. PROC. tit. IV, STANDARDS FOR or call Jack Denove, il Presidente di 2010 • (310) 277-4857 ATTORNEY SANCTIONS FOR PROF’L MISCONDUCT 1.2(e). 45 Warner v. State Bar, 34 Cal. 3d 36 (1983) (citing

Los Angeles Lawyer April 2010 33 Spontaneous utterances made in a domestic violence incident may still be admissible evidence even after Crawford DOMESTIC CONFRONTATION

by Shaun Dabby Jacobs

OFTEN IN DOMESTIC VIOLENCE TRIALS the strongest evidence is the victim’s statements. However, due to the nature of the crime, many times the victim does not appear to testify at trial. While it is possible for prosecutors to proceed without the victim’s testimony, the U.S. Supreme Court’s 2004 ruling in Crawford v. Washington,1 which is based on the confrontation clause of the U.S. Constitution,2 as well as two recent California cases, make that task difficult. However, even when the victim does not appear or testify at trial, it is still possible to get the victim’s statements admitted into evidence. For example, if the statements are otherwise admissible under Evidence Code Section 1240 (which is titled Spontaneous, Contemporaneous, and Dying Declarations)—such as statements the victim made to a 911 operator, the police, or healthcare providers—courts will often admit them.

Shaun Dabby Jacobs is a deputy city attorney in the Los Angeles City Attorney’s office. She has tried 30 misdemeanor criminal cases to verdict, including 12 domestic violence trials. HADI FARAHANI

34 Los Angeles Lawyer April 2010 Los Angeles Lawyer April 2010 35 To be admitted, the primary reason for the statements must have ing emergency, or the incident just happened and the person is still been to assist the victim with an ongoing emergency and not to pre- under the stress and excitement of the incident or situation, courts pare for trial. If the victim made the statements to preserve and pro- often find the statements are not testimonial and admit them into evi- vide testimony for trial but does not appear, they are inadmissible dence. If significant time has passed, or the victim is in a place of safety hearsay and violate the defendant’s Sixth Amendment right to con- and the suspect is already in custody, the defendant is likely to be more front his or her accuser. As a result, the admissibility of domestic vio- successful in claiming that the victim made his or her statements in lence testimony often depends on who—the defense or the prosecu- response to police interrogation and that the statements are testimonial tion—does a better job of characterizing the victim’s statements in light and inadmissible without live testimony. of Crawford. In examining specific cases, courts often admit calls to 911 emer- The facts in Crawford are simple. The defendant, Crawford, con- gency dispatchers and paramedics responding to the scene because it fronted and stabbed a man named Lee who allegedly had tried to rape is clear the purpose of the call is to get help, not to create testimony Crawford’s wife.3 Crawford was charged with assault and attempted in preparation for a court hearing or a trial. For example, in People murder. Subsequently, Crawford claimed he had acted in self-defense v. Corrella,10 a police officer, in response to a 911 emergency call, went because he believed Lee had a weapon. However, Crawford’s wife gave to a motel where the defendant lived with the victim, his wife. The a tape-recorded statement to police during a station house interview officer saw the victim in the parking lot. The victim, who was cry- specifically undermining her husband’s self-defense claim by stating ing, distraught, and in apparent pain, complained that the defendant that Lee did not have a weapon, and that she had led Crawford to had assaulted and punched her. The officers felt a bump on her Lee’s apartment and facilitated the assault.4 Over defense objection, head. The victim made similar statements to the 911 dispatcher and the prosecution played this tape-recorded statement at trial and the paramedic who arrived at the scene.11 The victim did not testify argued it was “damming evidence” that refuted Crawford’s self- at trial, but the court admitted the 911 call and the victim’s statements defense claim.5 Crawford could not cross-examine his wife at trial to the officers regarding the assault. The Corrella court upheld the because Washington’s marital privilege barred his wife from testify- defendant’s conviction. The victim’s statements did not constitute a ing without Crawford’s consent. The privilege, however, did not police interrogation because they were not “knowingly given in extend to a spouse’s out-of-court statements that were admissible under response to structured police questioning, and bear no indicia com- a hearsay exception. Therefore, the trial court admitted the tape- mon to the official and formal quality of the statements deemed tes- recorded statements as statements against penal interest. The jury con- timonial by Crawford.”12 victed Crawford of assault.6 In 2006, in Davis v. Washington,13 the U.S. Supreme Court The Court granted review. Justice Antonin Scalia asked whether affirmed that 911 emergency calls are not testimonial but are other- the procedure used by the trial court in Crawford complied with the wise admissible under exceptions to the hearsay rule. In Davis, the Sixth Amendment’s guarantee that an accused shall enjoy the right victim called 911 and said her boyfriend, Davis, was attacking her. to confront the witnesses against him or her. In a lengthy opinion trac- The Court noted, “[S]tatements are nontestimonial when made in the ing the history of the confrontation clause, the Court noted, under course of police interrogation under circumstances objectively indi- civil law, justices of the peace and other officials examined and took cating that the primary purpose of the interrogation is to enable statements of suspects and witnesses prior to trial. These statements police assistance to meet an ongoing emergency.”14 In a footnote, the were later read into evidence in lieu of trial testimony.7 opinion added: “it is in the final analysis the declarant’s statements, The Court held the admission of the wife’s statements violated not the interrogator’s questions, that the Confrontation Clause Crawford’s Sixth Amendment right to confront and cross-examine his requires us to evaluate.”15 In a companion opinion the Court made accuser. Significantly, however, the Court also stated that not all it clear that statements made at the scene to police officers are not nec- hearsay implicates the Sixth Amendment’s core concerns. An accuser essarily testimonial. Even statements to 911 operators or police offi- who makes a formal statement to a government officer bears testi- cers at the scene shortly after the event occurred are admissible if the mony in a sense that a person who makes a casual remark to an person is still under the stress and excitement of the emergency. acquaintance does not. The confrontation clause applies to witnesses In contrast, in Hammon v. Indiana,16 the Court found statements against the accused or those who bear testimony. What is testimony? that a domestic violence victim made to officers were testimonial The Court went on to distinguish between out-of-court statements because the victim made the statements after the defendant and the wherein a witness may bear testimony, “testimonial” statements, victim were separated. The Court went on to define “testimonial.” and statements in which the witness did not supply testimony, also Statements “are testimonial when the circumstances objectively indi- known as nontestimonial statements. Essentially, “testimony” is typ- cate that there is no such ongoing emergency and that the primary ically “[a] solemn declaration or affirmation made for the purpose purpose of the interrogation is to establish or provide past events poten- of establishing or providing some fact.” There have been various for- tially relevant to later criminal prosecution.”17 mulations for the definition of testimonial statements. For example, Further, in California, statements given in response to “nonsug- prior testimony at a preliminary hearing and before a grand jury is gestive police inquiries would not bar application of the sponta- testimonial.8 Statements made during “police interrogations” are neous utterance hearsay exception.”18 Therefore, the mere fact that also testimonial. More formal out-of-court statements, such as depo- police asked the victim what happened does not make the responses sitions and affidavits, are also testimonial.9 nonspontaneous or inadmissible. Since the Supreme Court decided Crawford, California courts have heard and examined many cases to determine whether a particular California Cases statement is testimonial and requires the presence of the speaker at In the years after the Supreme Court decided Crawford and Davis, trial. If the statement would otherwise be admissible under an excep- California courts took a narrow view of what constituted a testimonial tion to the hearsay rule—such as an excited utterance or spontaneous statement and an expansive view of what constituted a nontestimo- statement under Evidence Code Section 1240, or a statement to a med- nial statement. For example, in People v. Saracoglu,19 the victim ical professional—courts will often admit the statement. The ques- came to the police station about a half hour after her boyfriend had tion is: what is the victim’s purpose in making the statement? Is the assaulted her. When she arrived at the station, she was “nervous, cry- victim making the statement because there is an ongoing emergency ing and shaking.”20 The victim described her boyfriend’s attack and and he or she needs help, or has the emergency passed? If it is an ongo- his threats to kill her to the police. The officer taking the report

36 Los Angeles Lawyer April 2010 observed injuries. The victim did not testify at trial. Over defense objec- recently held that a rape victim’s statements to healthcare practition, the trial court allowed the officer that took the station report tioners who perform a sexual assault examination are testimonial, to testify about the injuries he observed on the victim as well as what and those healthcare practitioners are acting as agents of law the victim had told the officer. The victim’s statements were charac- enforcement when they perform the sexual assault examination. The terized as an excited utterance exception to the hearsay rule under court found the primary purpose of the sexual assault examination Evidence Code Section 1240. was “to establish or prove some past fact for possible use in a crim- The appellate court affirmed the trial court’s ruling on appeal, hold- inal trial.”29 That the rape victim may have made the statements to ing that the statements constituted an excited utterance because the seek treatment of a medical problem as well did not negate the fact victim was distraught, crying, shaking, and fearful. The appellate court that the primary purpose of the examination was for “document- also held that the officer’s testimony did not violate the defendant’s ing the nature of the sexual assault and gathering evidence for right to confront and cross-examine witnesses. The court found that transmittal to the police and for possible later use in court.”30 the conversation between the victim and the officer was for the purpose of dealing with an ongoing emergency “rather than to produce evidence about past events for possible use at a criminal trial.”21 Similarly, in People v. Brenn,22 the victim of a stabbing called 911, and officers responded to the scene shortly thereafter. The stabbing victim did not testify at trial, but the court admitted the statements the victim made to the 911 operator, as well as testimony from the responding officers regarding the statements the victim made to the officers about the stabbing. The appellate court held the statements by the victim to both the 911 operator and the responding officers were spontaneous statements pursuant to Evidence Code Section 1240 and did not violate the defendant’s confrontation clause right. The court in People v. Johnson23 also held the trial court properly admitted an absent crime victim’s statements to an officer that the defendant punched her in the face. The court found the victim made the Thus, since the victim did not testify at trial, the appellate court held statements spontaneously and to get help in an emergency. Since the the trial court violated the defendant’s right of confrontation by officer questioned the victim to assess the situation, the trial court prop- admitting the statements to the nurse performing the sexual assault erly admitted the victim’s statements at trial. examination. Finally, in People v. Osorio,24 the court found the trial court prop- The record does not say whether the rape victim went to the erly admitted the victim’s statements to the 911 operator, the para- hospital on her own or in response to her crime report. If the victim medics, and the police at trial even though the victim did not testify went to the hospital on her own and told a healthcare practitioner at trial. She made the statements to paramedics not for the purpose she was raped and gave some details, arguably the statements the vic- of assisting with a crime investigation but to treat her injuries. The court tim made to the healthcare practitioner before the commencement of further held the trial court properly admitted statements the victim made the sexual assault examination would be admissible, because the to the officers who arrived at the scene shortly after it occurred victim’s purpose at that point is to seek medical treatment. The because “‘[p]reliminary questions asked at the scene of a crime shortly healthcare practitioner’s purpose is also to render medical aid. Until after it has occurred do not rise to the level of an interrogation. Such the sexual assault examination begins, the purpose of neither the vic- an unstructured interaction between officer and witness bears no tim nor the healthcare practitioner is to assist with an ongoing crim- resemblance to a formal or informal police inquiry that is required for inal investigation or to assist in the preparation of the case for trial. a police interrogation as that term is used in Crawford.’”25 Thus, when prosecutors analyze their cases, they should determine whether the victim made any statements about the violence before the Melendez-Diaz, Vargas formal sexual assault examination begins. Defense counsel’s focus will Perhaps in response to continuing efforts to expand the reach of post- be to exclude statements the victim made to medical personnel Crawford rulings, the U.S. Supreme Court recently decided a defen- because when the medical examination switches from treating the dant’s right to confrontation also extends to witnesses testifying injuries to determining the cause of injuries in preparation for trial, about scientific matters. In Melendez-Diaz v. Massachusetts,26 a the statements by the victim are testimonial. criminologist tested powder to determine if it contained illegal drugs but did not testify. Instead, the supervisor reviewed the criminologist’s Banos laboratory report and testified. The Court held the supervisor’s tes- In a domestic violence case, the application of general principles to timony violated the defendant’s Sixth Amendment right to con- specific fact patterns, as in the cases above, can result in highly spe- frontation because the criminologist conducted his work and prepared cific analyses. This is exemplified in People v. Banos.31 The defendant the subsequent report for the sole purpose of aiding the prosecution killed his ex-girlfriend after numerous acts of domestic violence and and preparing the case for trial.27 violations of restraining orders. At trial, the prosecution introduced Since the Court issued its opinion in Melendez-Diaz, California multiple statements by the victim to police officers from the various courts have revisited what constitutes testimonial statements. For days on which the instances of violence and restraining order viola- example, in People v. Vargas,28 the California Court of Appeal tions occurred. In the first instance of violence, which occurred on June

Los Angeles Lawyer April 2010 37

7, 2003, the defendant attacked the victim at the defendant was at her apartment, which the court held they were testimonial because a laundromat and in a taxi. When an officer was a violation of the restraining order. After the “defendant had left, and [the victim] was arrived at the victim’s apartment, she was an officer verified the existence of the order, in a place of ostensible safety—her home.”35 excited and upset, and the victim described the he went to the victim’s apartment and found In addition, the officer did not interrupt defendant’s violence that day. The defendant the defendant inside. The officer then arrested an ongoing emergency. Although the officer was not at the victim’s residence when the offi- the defendant again.33 described the victim as “excited” and “upset” cer arrived. A few minutes after the officer left, One month later, the defendant called the he did not describe her as “distraught,” as did the victim called 911 because the defendant victim at her apartment, and the victim’s new the officer in describing the victim in returned to the residence to restart the vio- boyfriend answered the phone and handed the Saracoglu. With respect to the statements the lence. The prosecutor introduced the 911 phone to the victim. After the victim spoke to victim made when the officer returned the sec- call, which the defendant did not challenge on the defendant, she told her new boyfriend ond time that evening, the court found appeal. During the 911 call, the victim asked the defendant had threatened to kill her. Later because the defendant was already in cus- the defendant why he was hitting her, and the that night, the defendant came to the vic- tody, the ongoing emergency ended.36 This defendant responded he was going to kill tim’s apartment and climbed through a win- represents a narrowing of the holding in her. The defendant also asked the victim dow. When the police arrived, they heard Saracoglu because the victim in Banos was numerous times whether she was going to moaning sounds of a woman from inside the excited and upset, which, until this opinion, shut up or the defendant would kill her. The victim’s apartment and through an open door was sufficient for purposes of Evidence Code police officer entered the apartment toward saw the defendant wearing black gloves and Section 1240. In addition, the victim’s home the end of the 911 call and arrested the defen- kneeling beside the victim. The officer iden- clearly was not a place of safety as evident dant. A court subsequently issued a criminal tified himself as a police officer, and the defen- from the fact that the defendant returned to protective order.32 dant slammed the door shut. When the offi- the victim’s apartment shortly after the vic- On December 30, 2003, the victim called cer went into the apartment, he found the tim called 911 the first time on June 7, 2003, 911 to report a violation of a protective order. victim lying on the floor covered in blood. At and he continued to return in later months. When officers arrived, the defendant was trial, the defendant admitted to hitting her It is difficult to see how a statement made to walking out of the victim’s apartment. The with a hammer and killing her.34 police in the victim’s home, when the defen- officer described the victim as “frightened, The trial court admitted all the victim’s dant was still at large, was testimonial, while very nervous.” The officers arrested the defen- statements about the defendant into evidence. a similar statement made at a police station, dant. After the officers took the defendant into The court of appeal held that the statements where the victim was ostensibly safer, would custody, they spoke to the victim about what the victim made to officers on June 7, 2003, not be viewed as testimonial. The danger to happened. On March 27, 2004, the victim and on December 30, 2003, were testimonial. the victim was equal in both locations called 911 from a 7-11 and reported that With respect to the June 7, 2003, statements, because the defendant knew where the victim lived and could easily seek her out later. (Ultimately, under the forfeiture by wrongdoing doctrine, the court admitted even the testimonial statements.) The court found the statements the victim made to officers on March 27, 2004, in the call to 911 and to the responding police officer were not testimonial. The court found these statements similar to those of Saracoglu because in both cases, the victim left her home to gain police protection. In Banos the court found the victim’s statements to the officer while she was at the 7-11 were also not testimonial because the officer was questioning the victim “to ascertain what was The Los Angeles County Bar happening in order to resolve a dangerous sit- Association has conference rooms uation: defendant was at [the victim’s] apart- available for business meetings, ment and she was afraid to go home.”37 networking, conferences, It is clear from the recent cases that professional social agendas, courts still struggle with what constitutes tes- and any business demand. timonial statements as opposed to Evidence Code Section 1240 statements and statements made to law enforcement to obtain assistance in an ongoing emergency. It is a If you would like to reserve one of very fact-intensive process. Prosecutors seek- our spectacular conference rooms or ing to introduce evidence should fully inter- if you have any questions, please view all police and medical witnesses to contact Kyan Coward, room rental coordinator, at 213.896.6432 or determine the extent and nature of the con- [email protected] versation with the victim. If the victim is crying, distraught, nervous, complaining of pain, or not in a place of safety, or if officers or medical personnel observe fresh injuries, or if the defendant is

40 Los Angeles Lawyer April 2010 DOWNTOWN LOS ANGELES WEDNESDAY MILLENNIUM BILTMORE HOTEL APRIL 14, 2010

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Earn CLE/CPE/DRE/ Credits! Special Discount for members of LACBA and BHBA. Visit our website: http://law.usc.edu/cle/realestate/. at large, courts are more likely to admit the statements even if the victim does not testify ANGER ADDICTION at trial. When the primary purpose of the COUNSELING SERVICES officer or healthcare practitioner’s interaction with the victim is to assist with an ongo- • Individualized Sessions ing emergency, courts should admit the state- • Court-Approved for Anger Management and Domestic Violence ment. If statements are made for the purpose • Stress Management and Life Coaching of preparing the police report and the case for trial, they will be deemed testimonial and, absent some other exception, will not be MARTY BRENNER, CCDC TEL 213.500.8865 Anger Management Specialist FAX 310.273.1010 admitted if the victim does not testify at trial. Both the defense and the prosecution must be People can change. E-MAIL [email protected] ready with arguments regarding the admis- 9171 WILSHIRE BOULEVARD, SUITE #660, BEVERLY HILLS, CALFORNIA 90210 sibility of the victim’s statements and should consider questions to the police and other medical providers and responders in light of the cases establishing whether the statements DIANA G. LESGART, CPA, CFE, CVA are admissible. ■ AN ACCOUNTING CORPORATION 1 Crawford v. Washington, 541 U.S. 36 (2004). 2 See U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right…to be con- ✔ Family Law Litigation Consulting fronted with the witnesses against him.…”) ✔ Certified Public Accountant 3 Crawford, 541 U.S. at 38. ✔ 4 Id. at 39. Certified Fraud Examiner 5 Id. at 40. ✔ Certified Valuation Analyst 6 Id. at 41. 7 Id. at 43. 8 Id. at 52. TEL • FAX • E-MAIL 818-886-7140 818-886-7146 [email protected] 9 Id. 22024 LASSEN STREET, SUITE 106, CHATSWORTH, CA 91311 10 People v. Corrella, 122 Cal. App. 4th 461 (2004). 11 http://www.jurispro.com/DianaLesgartCPACFEFCPA Id. 12 Id. at 468. 13 Davis v. Washington, 547 U.S. 813 (2006). 14 Id. at 822. 15 Id., n.1. 16 Hammon v. Indiana, 547 U.S. 813 (2006). 17 Id. at 822. 18 People v. Saracoglu, 152 Cal. App. 4th 1584, 1590 (2007). See also People v. Morrison, 34 Cal. 4th 698, Proudly Congratulates 719 (2004) (Shooting victim’s response to officer’s question “who did it?” was admissible.); People v. Alvarez, 14 Cal. 4th 155, 186 (1996) (Replying to questions does not necessarily negate spontaneity.); People v. Poggi, 45 Cal. 3d 306, 319-20 (1988) (“[F]act that the statements were delivered in response to questioning does not render them nonspontaneous….”). 19 Saracoglu, 152 Cal. App. 4th 1584. 20 Id. at 1587. 21 Id. at 1597. John (Jack) F. Denove, Esq. 22 People v. Brenn, 152 Cal. App. 4th 166 (2007). Cheong Denove Rowell & Bennett 23 People v. Johnson, 150 Cal. App. 4th 1467 (2007). 24 People v. Osorio, 165 Cal. App. 4th 603 (2008). Verdicts and Binding Arbitrations Jack Denove obtained 25 Id. (quoting Brenn, 152 Cal. App. 4th at 178); see also in 2009 with the assistance of Executive Presentations: People v. Romero, 44 Cal. 4th 386, 422 (2008) (Victim’s statements to police responding to emergency call were Medical Malpractice - Offer $ 95,001 NET AWARD $7,379,566 nontestimonial and admissible because statements were Premises Liability - Offer $ 2,500 NET AWARD $1,681,456 made to assist with an ongoing emergency.). 26 Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 Medical Malpractice - Offer $ 400,000 NET AWARD $1,425,000 (2009). 27 Id. at 2543. Motor Vehicle - Offer $ 100,000 NET AWARD $1,359,618 28 People v. Vargas, 178 Cal. App. 4th 647 (2009). UIM - Offer $ 200,000 NET AWARD $1,040,000 29 Id. at 657 (quoting People v. Cage, 40 Cal. 4th 965, 984 (2007)). Medical Malpractice - Offer $ 0 NET AWARD $ 775,000 30 Id. at 662. 31 People v. Banos, 178 Cal. App. 4th 483 (2009). “ If you don’t think Executive Presentations makes a 32 Id. at 486-88. 33 difference at trial, THINK AGAIN. ” Jack Denove, Esq. Id. at 488. 34 Id. at 488-90. EP Client since 1989 35 Id. at 497. 36 Id. (213) 480-1644 www.epdelivers.com 37 Id. at 488.

42 Los Angeles Lawyer April 2010 The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

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Experienced Air Weather & Sea business valuations, and appraisals, marital dissolutions, expert testimony and tax controversy representation. Conditions, Inc. eminent domain, insurance losses, business interruption, SCHULZE HAYNES LOEVENGUTH AND CO. goodwill, economic analysis, investigative auditing, loss Clear, plain-language and convincing expert 660 South Figueroa Street, Suite 1280, Los Angeles, of earning, commercial damages, and lost profits. Expert testimony, reports and analyses to reconstruct CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: witness testimony preparation, settlement negotiations, weather, climate, storm, and atmospheric [email protected]. Web site: www and consultations. See display ad on page 55. conditions at location and time of interest. .schulzehaynes.com. Contact Karl J. Schulze, principal. 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See display ad on page 59. insurance matters including building ence plus over 20 years as a Human Resources Compli- projects, mold, and accidents, homeland SMITH DICKSON, AN ACCOUNTANCY ance Consultant in California. Specializations include security and alternative energy applications. CORPORATION sexual harassment, ADA/disability discrimination, other 18100 Von Karman Avenue, Suite 420, Irvine, CA Title VII and FEHA discrimination and harassment, retali- Excellent client references provided on request. 92612, (949) 553-1020, fax (949) 553-0249, e-mail: ation, FMLA/CFRA, safety, and wrongful termination. [email protected]. Web site: www Courtroom testimony and deposition experience. EXTENSIVE COURT EXPERIENCE .smithdickson.com. Contact Deborah Dickson, CPA. Retained 60 percent by defense, 40 percent by plaintiff. Jay Rosenthal CCM CPA 25+ years, testifying 15+ years, audits, reviews, Audit employer’s actions in preventing and resolving dis- AMS CERTIFIED CONSULTING METEOROLOGIST evaluations of companies, financial statement and busi- crimination, harassment, and retaliation issues. Assess NATIONAL WEATHER SERVICE WEATHER SPOTTER ness profitability analysis, document review, reconstruc- human resources policies and practices for soundness, tion of accounting records; asset, note, capital, expense, for comparison to prevailing practices, and for compli- Phone 818.645.8632 or 310.454.7549 cash flow tracing, lost revenues, lost profits, economic ance. Evaluate employer responsiveness to complaints Fax 310.454.7569 damages, business dissolution, business valuations, and effectiveness of employer investigations. 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44 Los Angeles Lawyer April 2010 • Rigorous standards • Tailored service • Prompt turnaround • Free initial consultations • Free resume book • Reasonable rates L O C A L O F F I C E Pro/Consul Inc. 1945 Palo Verde Avenue, Suite 200 Long Beach, CA 90815-3443 (562) 799-0116 • Fax (562) 799-8821 Hours of Operation: 6 a.m. - 6 p.m. [email protected] • ExpertInfo.com ANESTHESIOLOGY sation, fiduciary duties, professional responsibility and Expert referral service escrow, corporate governance, ethics, and fee disputes. Any underlying case-litigation, mortgage banking, and real estate. Over 900 cases ROGER F. DONENFELD, MD transaction, family, administrative, state or federal. For- national and international. See display ad on page 56. 10557 Rocca Place, Los Angeles, CA 90077, (310) 471- mer accountant. Degrees: BS, MBA. Former managing 3777, fax (206) 203-0422, e-mail: rfdonenfeld@hotmail partner plaintiff and defense firms. Also State Bar BANKRUPTCY .com. Contact Roger F. Donenfeld, MD. Chart review Defense Counsel and preventative law. and depositions. Expert witness, board certified, 1987. FULCRUM INQUIRY Anesthesiology fellowship-trained. Ivy League, board AUDIO/VIDEO FORENSIC 888 South Figueroa Street, Suite 2000, Los Angeles, CA review textbook author. Certified medical board of CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: expert. Active clinical anesthesia practice. Extensive AUDIO ENGINEERING ASSOCIATES [email protected]. Web site: www.fulcrum.com. medical legal experience. 1029 North Allen Avenue, Pasadena, CA 91104, (626) Contact David Nolte. Our professionals are experi- 798-9128, fax (626) 798-2378, e-mail: stereoms@aol enced CPAs, MBAs, ASAs, CFAs, affiliated professors, APPRAISAL AND VALUATION .com. Web site: www.wesdooley.com. Contact Wes and industry specialists. Our analysis and research com- Dooley. Enhancement and authentication fixed price bined with unique presentation techniques have resulted FULCRUM INQUIRY intelligibility evaluations. Audio and video evidence in an unequaled record of successful court cases and 888 South Figueroa Street, Suite 2000, Los Angeles, analysis. client recoveries. Our expertise encompasses damages CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: analysis, lost profit studies, business and intangible asset [email protected]. Web site: www.fulcrum.com. AUTOMOTIVE valuations, appraisals, fraud investigations, troubled com- Contact David Nolte. Our professionals are experi- pany consultation, statistics, forensic economic analysis, JOHNSON FORD, INC. enced CPAs, MBAs, ASAs, CFAs, affiliated professors, royalty audits, strategic and market assessments, com- 1155 Auto Mall Drive, Lancaster, CA 93534, (661) 949- and industry specialists. Our analysis and research computer forensics, electronic discovery, and analysis of 3586, ext 200, fax (661) 949-8803, e-mail: flyingmj1@aol bined with unique presentation techniques have resulted computerized data. Degrees/licenses: CPAs, CFAs, .com. Web site: www.auford.com. Contact Michael in an unequaled record of successful court cases and ASAs, PhDs and MBAs in accounting, finance, econom- Johnson. Auto industries: all sales, DMV, pay plans, client recoveries. Our expertise encompasses damages ics, and related subjects. See display ad on page 1. analysis, lost profit studies, business and intangible Song-Beverly, Magnus Moss, advertising and all other asset valuations, appraisals, fraud investigations, trou- issues regarding the automotive retail business. Thirty- BANKRUPTCY/TAX bled company consultation, statistics, forensic economic seven years in the business, 30 years as a dealer. analysis, royalty audits, strategic and market assess- ADVISORS/EXPERTS @ MCS ASSOCIATES ments, computer forensics, electronic discovery, and AUTOMOTIVE ACCIDENT INVESTIGATION 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: experts analysis of computerized data. Degrees/licenses: CPAs, DR. WILLIAM D. GUENTZLER FORENSICS @mcsassociates.com. Web site: www.mcsassociates CFAs, ASAs, PhDs and MBAs in accounting, finance, INTERNATIONAL .com. Contact Norman Katz, managing partner. economics, and related subjects. See display ad on 10298 Hawley Road, El Cajon, CA 92021, (619) 390- Nationally recognized banking, finance, insurance, and page 1. 9081, cell (619) 823-9081, fax (619) 390-9086, e-mail: real estate consulting group (established 1973). Experi- [email protected]. Contact William D. Guentzler, HARGRAVE & HARGRAVE, AN ACCOUNTANCY enced litigation consultants/experts include senior PhD. Dr. Guentzler has over 30 years of experience as CORPORATION bankers, lenders, consultants, economists, accountants, an expert witness and forensic examiner and 36 years 520 Broadway, Suite 680, Santa Monica, CA 90401, insurance underwriters/brokers. Specialties: lending cus- as a university professor. He is licensed in the state of (310) 576-1090, fax (310) 576-1080, e-mail: terry toms, practices, policies, in all types of lending (real Arizona as a private investigator. His expertise includes @taxwizard.com. Web site: www.taxwizard.com. Con- estate, subprime, business/commercial, construction, auto, truck, ATC, ATV, motorcycle, motor homes, and tact Terry M. Hargrave, CPA/ABV/CFF, CFE. Litiga- consumer/credit card), banking operations/administra- golf carts. He also specializes in braking systems, igni- tion services for family law and civil cases. Past chair of tion, trusts and investments, economic analysis and val- tion, fuel systems, cooling, electrical and battery explo- California Society of CPA’s Family Law Section, busi- uations/damages assessment, insurance claims, cover- sions, as well as vehicle fire cause and origin. ness valuation instructor for California CPA Education ages and bad faith, real estate brokerage, appraisal, Foundation. Services include business valuations, AVIATION escrow, and construction defects/disputes, and title income available for support, tracing separate property, insurance. litigation consulting, real estate litigation, mediation, fraud AVIATION CONSULTING SERVICES ANDELA CONSULTING GROUP, INC. investigations, damage calculation, and other forensic P.O. Box 1522, San Carlos, CA 94070, (650) 508-1079, accounting work. fax (650) 593-1747, e-mail: [email protected]. 16311 Ventura Boulevard, Suite 845, Encino, CA 91436, Web site: www.avconsult.com. Contact Capt. Robert (818) 380-3102, fax (818) 501-5412, e-mail: ttarter HIGGINS, MARCUS AND LOVETT, INC. Contact Thomas A. Tarter, managing E. Norris. Expertise: general aviation/airline ground/flight @earthlink.net. 800 South Figueroa Street, Suite 710, Los Angeles, CA director. Former CEO of two banks. Lending, forgery, 90017, e-mail: [email protected]. Web site: www.hmlinc operations, flight crew hiring, training, evaluation, checking, standard of care dictated by FARs and ICAO, review endorsements, letters of credit, guarantees, lender liabil- .com. Contact Mark C. Higgins, ASA, president. The ity, checking accounts, credit cards, credit damages, firm has over 25 years of litigation support and expert of aircraft accidents attributable to “pilot error,” flight crew employability/earnings model, and wrongful termi- and bankruptcy. Expert witness, litigation consulting. testimony experience in matters involving business valu- Expert referral service escrow, corporate governance, ation, economic damages, intellectual property, loss of nation/discrimination. Experience: UAL Captain, flight manager, FAA Check Airman, Hughes Aircraft—engi- mortgage banking, and real estate. Over 900 cases business goodwill, and lost profits. Areas of practice national and international. See display ad on page 56. include business disputes, eminent domain, bankruptcy, neering psychologist, owner/operator FAA-141 Flight and corporate and marital dissolution. See display ad School/FAA maintenance repair facility, BS, ATP, Typed BIOMECHANICS/ RECONSTRUCTION / on page 50. B-737,757/767, DC8/10, flight dispatcher, author. HUMAN FACTORS WARONZOF ASSOCIATES, INC. BANKING INSTITUTE OF RISK & SAFETY ANALYSES 2250 East Imperial Highway, Suite 120, El Segundo, CA ADVISORS/EXPERTS @ MCS ASSOCIATES Kenneth A. Solomon, PhD, PE, Post PhD, Chief 90245, (310) 322-7744, fax (310) 322-7755. Web site: Scientist. 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 5324 Canoga Avenue, Woodland Hills, CA www.waronzof.com. Contact Timothy R. Lowe, MAI, 91364, (818) 348-1133, fax (818) 348-4484, e-mail: CRE. Waronzof Associates provides real estate and 263-8700, fax (949) 263-0770, e-mail: experts@mcsassociates.com. Web site: www.mcsassociates.com. [email protected]. Web site: www.irsa.us. Specialized land use litigation support services including economic staff, broad range of consulting and expert testimony, 38 damages, lost profits, financial feasibility, highest and Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and real estate years of courtroom experience. Accident reconstruction, best use, property value, enterprise value, partnership biomechanics, human factors, safety, accident preven- interest and closely-held share value, fair compensation, consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, tion, adequacy of warnings, COMPUTER ANIMATION lender liability and reorganization plan feasibility. Profes- and SIMULATIONS, construction defect, criminal sional staff of four with advanced degrees and training in consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, defense, criminal prosecution, premises, product real estate, finance, urban planning and accounting. See integrity, product liability, product testing, warnings, and display ad on page 51. policies, in all types of lending (real estate, subprime, business/commercial, construction, consumer/credit lost income calculations. Auto, bicycle, bus, chair, eleva- tor, escalator, forklift, gate, ladder, machinery, motorcy- ATTORNEY FEES card), banking operations/administration, trusts and investments, economic analysis and valuations/damages cle, press, recreational equipment, rollercoaster, slip/trip LAW OFFICES OF PHILLIP FELDMAN assessment, insurance claims, coverages and bad faith, and fall, stairs, swimming pool, and truck. Litigation and 14401 Sylvan Street, Suite 208, Van Nuys, CA real estate brokerage, appraisal, escrow, and construc- claims; defense/plaintiff; educational seminars; and 91401, (818) 986-9890, fax (818) 986-1757, e-mail: tion defects/disputes, and title insurance. mediation and arbitration services. [email protected]; StateBarDefense@aol .com; [email protected]. Web sites: www ANDELA CONSULTING GROUP, INC. BUSINESS 16311 Ventura Boulevard, Suite 845, Encino, CA 91436, .LegalMalpracticeExperts.com; www.LegalEthicsExperts ROBERT C. ROSEN (818) 380-3102, fax (818) 501-5412, e-mail: ttarter .com. Contact Phillip Feldman. Certified Specialist Wells Fargo Center, 333 South Grand Avenue, Suite @earthlink.net. Contact Thomas A. Tarter, managing Legal Malpractice ABPLA/ABA. Former judge pro tem— 1925, Los Angeles, CA 90071, (213) 362-1000, fax director. Former CEO of two banks. Lending, forgery, 25 years. Fee dispute arbitrator—31 years. Forty-one (213) 362-1001, e-mail: [email protected]. endorsements, letters of credit, guarantees, lender liabil- years ethics, bar prosecution/defense. Consulting Web site: www.rosen-law.com. Specializing in securities ity, checking accounts, credit cards, credit damages, expert. Testifying expert 29 years: standard of care, cau- law, federal securities law enforcement, securities arbi- and bankruptcy. Expert witness, litigation consulting.

46 Los Angeles Lawyer April 2010 tration, and international securities, insider trading, NYSE, AMEX, NASD disciplinary proceedings, broker- dealer, investment company and investment adviser matters, liability under federal and state securities laws, public and private offerings, Internet securities, and law firm liability. AV rated. Former chair, LACBA Business and Corporations Law Section; LLM, Harvard Law School. More than 36 years practicing securities law, 12 years with the U.S. Securities and Exchange Commis- sion, Washington, DC. Published author/editor of securities regulations, including multivolume treatises. See display ad on page 67. BUSINESS APPRAISAL/VALUATION ADVISORS/EXPERTS @ MCS ASSOCIATES 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). Experi- enced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real DepoSums estate, subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and val- DEPOSITION SUMMARIES uations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, ➤ Experienced ➤ 3-step proof-reading ➤ E-mailed direct to escrow, and construction defects/disputes, and title insurance. summarizers process your computer BRIAN LEWIS & COMPANY 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268. Contact Los Angeles’ Finest Digesting Service Brian Lewis, CPA, CVA. Forensic accounting; business valuations; cash spendable reports; estate, trust, FOR MORE INFORMATION: and income tax services. COHEN, MISKEI & MOWREY LLP 800.789.DEPO • www.deposums.biz 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA 91403, (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 59. 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 financial analyses in all phases of commercial litigation. We 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 institutions, and general business litigation. FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Web site: www.fulcrum .com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research combined with unique presentation techniques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 1.

Los Angeles Lawyer April 2010 47 GURSEY/SCHNEIDER LLP WHITE, ZUCKERMAN, WARSAVSKY, LUNA, fraud investigations, accounting malpractice, intellectual 1888 Century Park East, Suite 900, Los Angeles, CA WOLF AND HUNT property, construction, government accounting and 90067, (310) 552-0960, fax (310) 557-3468, e-mail: 14455 Ventura Boulevard, Suite 300, Sherman Oaks, entertainment litigation. Gursey/Schneider has over 30 [email protected] or [email protected]. Web CA 91423, (818) 981-4226, fax (818) 981-4278; 363 years of experience as expert witnesses in accounting site: www.gursey.com. Contact Robert Watts or San Miguel Drive, Suite 130, Newport Beach, CA related matters. See display ad on page 52. Stephan Wasserman. Gursey/Schneider is an 92660, (949) 219-9816, fax (949) 219-9095; 831 State accounting firm specializing in forensic accounting, liti- Street, Suite 291, Santa Barbara, CA 93101, (805) 648- COMPUTER EVIDENCE DISCOVERY gation support services, business valuation, and 4088, fax (805) 963-4088, e-mail: [email protected]. ROBERT J. ABEND, PE appraisal services for a variety of purposes including Contact Barbara Luna or Bill Wolf. Expert witness 1658 Laraine Circle, San Pedro, CA 90732, (310) 346- marital dissolution, gift and estate planning, eminent testimony for complex litigation involving damage analy- 6543, e-mail: [email protected] Web site: www.lin- domain, goodwill loss, business disputes, malpractice, ses of lost profits, unjust enrichment, reasonable royal- kline.com/personal/rabend. Specialties: Electrical engi- tax matters, bankruptcy, damage and cost-profit ties, lost earnings, lost value of business, forensic neering, computer forensics, data recovery, electronic assessments, insurance claims, and entertainment accounting, fraud investigation, investigative analysis of discovery, computer engineering, software, electronics, industry litigation. Gursey/Schneider has over 30 years liability, marital dissolution, and tax planning and prepa- microelectronics, electronics manufacturing, printed cir- experience as expert witnesses in litigation support. ration. Excellent communicators with extensive testi- cuit boards, intellectual property, and trade secret litiga- See display ad on page 52. mony experience. Prior Big Four accountants. Special- tion. Technical support during case preparation. Prac- ties include accounting, breach of contract, business HAYNIE & COMPANY, CPAS ticed at court and deposition testimony. Thirty-five years interruption, business dissolution, construction defects, 4910 Campus Drive, Newport Beach, CA 92660, (949) of experience in the electronics and computer industry. delays, and cost overruns, fraud, insurance bad faith, 724-1880, fax (949) 724-1889, e-mail: sgabrielson Fifteen years as a forensic engineering consultant. Refer- intellectual property including trademark, patent, and @hayniecpa.com. Web site: www.hayniecpa.com. Con- ences provided on request. Degrees/licenses: BSEE, copyright infringement, and trade secrets, malpractice, tact Steven C. Gabrielson. Consulting and expert wit- MS, Registered Professional Engineer, Computer Foren- marital dissolution, personal injury, product liability, real ness testimony in a variety of practice areas: commercial sics Examiner, FCC General Radiotelephone license. estate, tax planning and preparation, IRS audit defense, damages, ownership disputes, economic analysis, busi- tracing, unfair advertising, unfair competition, valuation of ness valuation, lost profits analysis, fraud/forensic inves- COMPUTER FORENSICS businesses, and wrongful termination. See display ad tigations, taxation, personal injury, wrongful termination, on page 49. ROBERT J. ABEND, PE professional liability, and expert cross examination. 1658 Laraine Circle, San Pedro, CA 90732, (310) 346- ZIVETZ, SCHWARTZ & SALTSMAN, CPAS Extensive public speaking background assists in court- 6543, e-mail: [email protected] Web site: www room presentations. 11900 West Olympic Boulevard, Suite 650, Los Ange- .linkline.com/personal/rabend. Specialties: Electrical les, CA 90064-1046, (310) 826-1040, fax (310) 826- HIGGINS, MARCUS AND LOVETT, INC. engineering, computer forensics, data recovery, elec- 1065. Web site: www.zsscpa.com. Contact Lester J. 800 South Figueroa Street, Suite 710, Los Angeles, CA tronic discovery, computer engineering, software, elec- Schwartz, CPA, CFF, DABFE, DABFA, Michael D. 90017, e-mail: [email protected]. Web site: www.hmlinc tronics, microelectronics, electronics manufacturing, Saltsman, CPA, MBA, David L. Bass, CPA, David .com. Contact Mark C. Higgins, ASA, president. The printed circuit boards,intellectual property, and trade Dichner, CPA, ABV, CVA, Sandy Green, CPA. firm has over 25 years of litigation support and expert secret litigation. Technical support during case prepara- Accounting experts in forensic accounting, tax issues, testimony experience in matters involving business valu- tion. Practiced at court and deposition testimony. Thirty- business valuations, and appraisals, marital dissolutions, ation, economic damages, intellectual property, loss of five years of experience in the electronics and computer eminent domain, insurance losses, business interruption, business goodwill, and lost profits. Areas of practice industry. Fifteen years as a forensic engineering consul- goodwill, economic analysis, investigative auditing, loss include business disputes, eminent domain, bankruptcy, tant. References provided on request. Degrees/licenses: of earning, commercial damages, and lost profits. Expert and corporate and marital dissolution. See display ad BSEE, MS, Registered Professional Engineer, Computer witness testimony preparation, settlement negotiations, on page 50. Forensics Examiner, FCC General Radiotelephone See display ad on page 55. and consultations. license. MAYER HOFFMAN MCCANN PC 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CEMENT & CONCRETE PRODUCTS BURGESS CONSULTING & FORENSICS CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: 1010 West Betteravia Road, Suite E, Santa Maria, CA CONCRETE INSIGHTS CORPORATION [email protected] site: www.MHM-PC.com, 93455, (805) 349-7676, fax (805) 349-7790, e-mail: 1040 East Howell Avenue, Anaheim, CA 92805, www.CBIZ.com. Contact Steve Franklin. Specializes [email protected]. Web site: www (877) 231-1020, fax (714) 634-4933, e-mail: info in business litigation; business valuation and appraisal, .burgessforensics.com. Contact Steve Burgess. @concreteinsights.com. Concrete Insights Corp. (CIC) marital dissolutions, transactional due diligence, financial “Helping you win with incisive discovery.” Since 1985, specializes in evaluating all aspects of concrete, cement, reconstruction, fraud investigation, family limited partner- Burgess has performed services for thousands of clients and cement-containing materials, including constructed ships, commercial damage and lost profits computa- on tens of thousands of digital media. Computer foren- work, plans and specifications, deliveries, installation, tions and business interruption. Experienced expert tes- sic, electronic discovery (e-discovery) and expert witness workmanship, material conformance, and material prop- timony and tax controversy representation. services. Burgess Consulting will find whatever is there erties. 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Specialties: forensic business analysis and account- insurers and/or attorneys, and often working in response Santa Maria. ing, lost profits, economic damages, expert testimony, to claims of construction defects, consequential dam- discovery assistance, business valuations, construction age, or other construction and payment disputes, the DATACHASERS, INC. claims, corporate recovery, financial analysis and model- consultation of CIC evaluates design, installation, and P.O. Box 2861, Riverside, CA 92516-2861, (877) ing, major professional organizations, and have experi- performance of the many varieties of concrete and DataExam, (877) 328-2392, (951) 780-7892, ence across a broad spectrum of industries and busi- related materials, including cement, aggregates, admix- e-mail: [email protected]. Web site: www ness issues. Degrees/licenses: CPA; CVA; CFE; ABV; tures, supplementary cementing materials, plaster, .DataChasers.com. E-Discovery: Full e-discovery ser- PhD-economics. See display ad on page 59. gunite, masonry, integral colors, and related ingredients. vices…you give us the mountain, we give you the mole Frequently provided services also include the assess- hill: Tiff production, de-duplication, redaction, bates THOMAS NECHES & COMPANY LLP ment of distress or damage to such construction, stamped data, and electronically stored information (ESI) 609 South Grand Avenue, Suite 1106, Los Angeles, CA whether due to poor performance, overloading, earth- production. Computer forensic: full forensic computer 90017-3848, (213) 624-8150, fax (213) 624-8152, quakes, fires, floods, soil conditions, or improper mainte- lab. Recovering deleted text files (documents), graphics e-mail: [email protected]. Web site: www nance. CIC also reviews contracts, specifications, con- (pictures), date codes on all files, e-mail, and tracing .thomasneches.com. Contact Thomas M. Neches, struction documents, and testing and inspection work Internet activity. Intellectual property cases; family law; CPA, ABV, CVA, CFE, CFF. Accounting, financial, records for comparison with industry standards. employment law; probate resolution; asset verification; business valuation, and statistical analyses to assist criminal law (prosecution or defense); etc. Litigation sup- attorneys in litigation. Expert testimony in state and fed- CIVIL LITIGATION port, trial preparation, experienced expert witnesses, eral courts. Cases: Antitrust, breach of contract, fraud, and professional courtroom displays. See display ad intellectual property, lost business value, lost profits, GURSEY/SCHNEIDER LLP on page 56. wrongful death, and wrongful termination. Industries: 1888 Century Park East, Suite 900, Los Angeles, CA banking, construction, entertainment, insurance, manu- 90067, (310) 552-0960, fax (310) 557-3468. 20355 FULCRUM INQUIRY facturing, retail, securities, and wholesale. Credentials: Hawthorne Boulevard, First Floor, Torrance, CA 90503, 888 South Figueroa Street, Suite 2000, Los Angeles, CA certified public accountant/accredited in business valua- (310) 370-6122, fax (310) 370-6188, e-mail: rwatts 90017, (213) 787-4100, fax (213) 891-1300, e-mail: tion, certified valuation analyst, certified fraud examiner @gursey.com or [email protected]. Web site: [email protected]. Web site: www.fulcrum.com. and certified in financial forensics. Education: BA (Math- www.gursey.com. Contact Robert Watts or Stephan Contact David Nolte. Our professionals are experi- ematics) UC San Diego, MS (Operations Research) Wasserman. Gursey/Schneider specializes in forensic enced CPAs, MBAs, ASAs, CFAs, affiliated professors, UCLA. Teaching: Adjunct Professor, Loyola Law School. accounting and litigation support services in the areas of and industry specialists. Our analysis and research com- See display ad on page 57. civil litigation, business disputes, bankruptcy, damage bined with unique presentation techniques have resulted and cost-profit insurance claims, court accountings, in an unequaled record of successful court cases and

48 Los Angeles Lawyer April 2010 Expert witnesses and litigation consultants for complex litigation Los Angeles Office involving analyses of lost profits, lost earnings and lost value of 818-981-4226 business, forensic accounting and fraud investigation Orange County Office 949-219-9816 Other areas include marital dissolution, accounting and tax Santa Barbara Office Excellent communicators with extensive testimony experience 805-648-4088

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Callll uuss ttododay. WWithith oourur llitigitigationtion consultingconsulting, extensivextensive experiencexperience and exxpertpert ttestimoestimony, youyou can ffocusocus yyourour effortsefforts wwherehere ttheyhey arree nneededeeded mmostost.

wwwww..wzwlwzwlw..comcom exxpert@[email protected] client recoveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled com- INSURANCE BAD FAITH EXPERT pany consultation, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and analysis of Clinton E. Miller, J.D., BCFE computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAs in accounting, finance, econom- Author: How Insurance Companies Settle Cases ics, and related subjects. See display ad on page 1. 39 YEARS EXPERIENCE SETEC INVESTIGATIONS 8391 Beverly Boulevard, Suite 167, Los Angeles, CA Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide 90036, (800) 748-5440, fax (323) 939-5481, e-mail: Coverage Disputes – Customs and Practices in the Insurance [email protected]. Web site: www Industry – Good Faith/Bad Faith Issues .setecinvestigations.com. Contact Todd Stefan. Setec Investigations offers unparalleled expertise in computer TEL 408.279.1034 | EMAIL [email protected] | FAX 408.279.3562 forensics and enterprise investigations providing person- alized, case-specific forensic analysis and litigation sup- www.millerjd.qpg.com port 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 DAVID L. RAY computer forensics, electronic discovery, litigation support, and expert witness testimony. Saltzburg, Ray & Bergman, LLP COMPUTERS/INFORMATION SCIENCES RECEIVERSHIP ACTIONS ROBERT J. ABEND, PE 1658 Laraine Circle, San Pedro, CA 90732, (310) • Partnerships and Corporate Dissolutions 346-6543, e-mail: [email protected] Web site: www • Government Enforcement Receivership Actions .linkline.com/personal/rabend. Specialties: Electrical engi- • Partition Actions/Marital Dissolution neering, computer forensics, data recovery, electronic discovery, computer engineering, software, electronics, microelectronics, electronics manufacturing, printed cir- TEL 310.481.6700 e-mail: [email protected] cuit boards, intellectual property, and trade secret litiga- www.srblaw.com tion. Technical support during case preparation. Prac- FAX 310.481.6707 ticed at court and deposition testimony. Thirty-five years 12121 Wilshire Boulevard, Suite 600, Los Angeles CA 90025 of experience in the electronics and computer industry. Fifteen years as a forensic engineering consultant. Refer- ences provided on request. Degrees/licenses: BSEE, MS, Registered Professional Engineer, Computer Foren- sics Examiner, FCC General Radiotelephone license. CONSTRUCTION ARCADIS Construction Claims Analysis, ARCADIS, 445 South Figueroa Street, Suite 3650, Los Angeles, CA 90071, (213) 486-9884, fax (213) 486-9894, e-mail: william.broz @arcadis-us.com. Web site: www.arcadis-us.com. Contact William Broz, P.E., LEED AP. ARCADIS’ PMCM division is an industry leader in the analysis of construction claims and specializes in the prevention, investigation, evaluation and resolution of construction disputes. Our firm offers a full range of services including litigation support, expert testimony, schedule analysis, change order evaluation, delay/impact analysis, discovery/deposition assistance, cause-effect-impact analysis, contractor financial audits, merit analysis, document database development/management, and performance audits. CONCRETE INSIGHTS CORPORATION 1040 East Howell Avenue, Anaheim, CA 92805, (877) 231-1020, fax (714) 634-4933, e-mail: info @concreteinsights.com. Concrete Insights Corp. (CIC) Confidence At The Courthouse. specializes in evaluating all aspects of concrete, cement, and cement-containing materials, including constructed Business litigation is increasingly complex. That is why we believe valuation work, plans and specifications, deliveries, installation, issues must be addressed with the same meticulous care workmanship, material conformance, and material prop- as legal issues. Analysis must be clear. Opinions must be erties. CIC examines the work and responsibilities of var- defensible. Expert testimony must be thorough and ious parties in disputes, including owners, developers, articulate. HML has extensive trial experience and can general concrete and specialty contractors, materialmen, and related entities on projects during construction provide legal counsel with a powerful resource for expert through the warranty period, and through the service life testimony and litigation support. of the work. Whether working directly for them, their insurers and/or attorneys, and often working in response to claims of construction defects, consequential dam- For More Information Call 213-617-7775 age, or other construction and payment disputes, the consultation of CIC evaluates design, installation, and Or visit us on the web at www.hmlinc.com performance of the many varieties of concrete and BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS related materials, including cement, aggregates, admix- tures, supplementary cementing materials, plaster, gunite, masonry, integral colors, and related ingredients.

50 Los Angeles Lawyer April 2010 Frequently provided services also include the assessment of distress or damage to such construction, whether due to poor performance, overloading, earth- quakes, fires, floods, soil conditions, or improper maintenance. CIC also reviews contracts, specifications, construction documents, and testing and inspection work records for comparison with industry standards. COOK CONSTRUCTION COMPANY 7131 Owensmouth Avenue, Canoga Park, CA 91303, (818) 438-4535, fax (818) 595-0028, e-mail: [email protected]. Contact Stephen M. Cook. Specialties: Lawsuit preparation, residential construction, single and multifamily, hillsides, foundations, concrete floors, retaining walls, stairs, excavation, waterproofing, water damages, roofing, carpentry/rough framing, tile, stone, materials/costs, and building codes. Vibration trespass, expert witness, creditable, strong, concise testimony in mediation, arbitration involving construction defect for insurance companies and attorneys, consulting services for construction, document preparation, construction material lists, costs, building codes analysis, site inspections, and common construction industry standards of practice and its relationship with the Califor- nia Building Codes. See display ad on page 68. EXPERT WITNESS — Claims Consultant FORENSISGROUP, INC EXPERT WITNESS SERVICES OVER 45 YEARS EXPERIENCE as a claims adjuster, licensed in three states and 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA qualified in state and federal courts. Expert in good faith/bad faith, 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- 1950, e-mail: [email protected]. Web site: standards and practices and standard in the industry. Specialties in www.forensisgroup.com. Contact Mercy T. Steenwyk. property/casualty construction defect, fire/water, uninsured/underinsured The Expert of Experts—thousands of our clients have motorist, warehouse and cargo claims. Failure to defend and/or indemnify. EXPERIENCE gained the technical advantage and the competitive Litigation support, case review and evaluation claim consultation, coverage edge in their cases from our group of high-quality expert review and valuations. Appraisal, Arbitration and Claims Rep. at MSC & MMC. court witnesses, consultants, and litigation support spe- INTEGRITY cialists since 1991! Our highly experienced staff will con- Contact Gene Evans at E. L. Evans Associates nect you with top engineering consultants, medical HONESTY expert witnesses, forensic accountants, construction Phone (310) 559-4005 / Fax (310) 559-4236 / E-mail [email protected] experts, securities specialists, and hundreds of additional specialists and professionals covering a compre- 3310 AIRPORT AVENUE, SUITE 7, SANTA MONICA, CALIFORNIA 90405 hensive field of technical and scientific disciplines. Refer- rals and searches are free. Call us now at (800) 555-5422 for your free initial telephone consultations with our experts. See display ad on page 47. GLENN M. GELMAN AND ASSOCIATES CERTIFIED PUBLIC ACCOUNTANTS AND BUSINESS CONSULTANTS 1940 East 17th Street, Santa Ana, CA 92705, (714) 667-2600, fax (714) 667-2636, e-mail: rsquar @gmgcpa.com. Web site: www.gmgcpa.com. Contact Richard M. Squar. Exclusive LA and Orange County representative for CICPAC (Construction Indus- try CPA/Consultants Association) This is a nationwide network of CPA firms specifically selected for their experience in and commitment to serving the construction industry. We are one of only six firms in all of California that are members of this prestigious organization. We provide these litigation support services: expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation. Our areas of expertise include: business interruption, loss of earnings analysis, breach of contract, partnership dissolution, profits distribution, tax consequences of settlements, reconstruction of accounting records, embezzlement and fraud, contract costs, lost profits, construction claims, and damage computations cases. Chosen by publishers of Account- ing Today as one of 2008 “Best Accounting Firms to Work For.” 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. Our comprehensive case list is available upon request. See display ad on page 51. MATHENY SEARS LINKERT & JAIME LLP P.O. Box 13711, Sacramento, CA 95853, 4711, (916) 978-3434, fax (916) 978-3430, e-mail: rberrigan @mathenysears.com. Web site: www.mathenysears .com. Contact Robert Berrigan. Specialties: Contrac- tor licensing issues; proper license class to perform work; B & P section 7031 issues. Contractor State License Board (CSLB) investigations and disciplinary

Los Angeles Lawyer April 2010 51 proceedings; obtaining licenses or documents from plus CSLB policies, rules and regulations. Based in FULCRUM INQUIRY CSLB. Also violations of subletting and subcontracting Sacramento, David has been helping lawyers, contrac- 888 South Figueroa Street, Suite 2000, Los Angeles, CA Fair Practice Act. Expert witness at trial/arbitration. tors, and the construction industry since 1982. Author, 90017, (213) 787-4100, fax (213) 891-1300, e-mail: Degrees/licenses: BA; JD; Commercial Pilot; SEL; MEL. What Every Contractor Should Know: Answers to Real [email protected]. Web site: www.fulcrum.com. World Licensing Questions in CA, NV and AZ. David’s Contact David Nolte. Our professionals are experi- MATT LE VESQUE—BISHOP CONSTRUCTION construction industry column, Kalb’s Capitol Connec- enced CPAs, MBAs, ASAs, CFAs, affiliated professors, SERVICES tion, appears regularly in over 30 industry publications. and industry specialists. Our analysis and research com- P.O. Box 1527, Highland, CA 92346, (909) 890-0889, bined with unique presentation techniques have resulted fax (909) 890-9884, e-mail: matt@bishopconstruction COPYRIGHT in an unequaled record of successful court cases and .net. Web site: www.bishopconstruction.net. Contact client recoveries. Our expertise encompasses damages Matt Le Vesque. Active California licensed general A PHOTOGRAPHY EXPERT WITNESS analysis, lost profit studies, business and intangible engineering and general building contractor, with exten- 50 North Hill Avenue, Suite 302, Pasadena, CA 91106, asset valuations, appraisals, fraud investigations, trou- sive experience as an industry expert investigating Con- (626) 808-0000, e-mail: [email protected]. Web site: bled company consultation, statistics, forensic economic tractors State License Board violations. Dispute resolu- www.photographyexpertwitness.com. Contact Profes- analysis, royalty audits, strategic and market assess- tion in mediation, arbitration, expert witness, industry sor Jeff Sedlik. The leading consultant and testifying ments, computer forensics, electronic discovery, and standards, construction safety and jobsite accidents, forensic expert witness on all issues related to photogra- analysis of computerized data. Degrees/licenses: CPAs, contract disputes, cost analysis and change orders, phy: copyright, licensing, contracts, business practices, CFAs, ASAs, PhDs and MBAs in accounting, finance, owner/general contractor/subcontractor disputes, ADA industry standards, stock photography, model releases, economics, and related subjects. See display ad on compliance, home remodeling, commercial tenant rights of privacy/publicity, evaluation of lost or damaged page 1. improvements, and home owner association issues. photographs and film, evaluation of photography assets, Special expertise in roofing, and roofing products. Host technical matters, forensic digital analysis, forensic pho- WHITE, ZUCKERMAN, WARSAVSKY, LUNA, weekly radio show, “Construction Zone Radio,” weekly tography, and litigation support. WOLF AND HUNT newspaper columnist, “Construction Zone.” 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CORPORATE INVESTIGATIONS CA 91423, (818) 981-4226, fax (818) 981-4278; 363 URS San Miguel Drive, Suite 130, Newport Beach, CA 915 Wilshire Boulevard, Suite 800, Los Angeles, CA CAPSTONE ADVISORY GROUP, LLC 92660, (949) 219-9816, fax (949) 219-9095; 831 State 90017, (213) 996-2549, fax (213) 996-2521, e-mail: 555 South Flower Street, Suite 3200, Los Angeles, Street, Suite 291, Santa Barbara, CA 93101, (805) 648- [email protected]. Expert witness for CA 90071, (213) 542-7121, fax (213) 542-7102, 4088, fax (805) 963-4088, e-mail: [email protected]. entitlement, causation damages on design, construction, e-mail: [email protected]. Web site: www Contact Barbara Luna or Bill Wolf. Expert witness and geotechnical environmental disputes. Experienced .capstoneag.com. Contact Michael Spindler. Cap- testimony for complex litigation involving damage analy- in all types of construction projects. See display ad on stone’s typical litigation and forensic services include ses of lost profits, unjust enrichment, reasonable royal- page 65. complex commercial litigation, arbitration, mediation, and dispute resolution. Bankruptcy avoidance actions ties, lost earnings, lost value of business, forensic CONTRACTORS LICENSING (CSLB) and analysis, damages claims preparation and assess- accounting, fraud investigation, investigative analysis of ment, analysis of relationship between events and dam- liability, marital dissolution, and tax planning and prepa- DAVID KALB ages. Construction damages analysis, project recon- ration. Excellent communicators with extensive testi- 1225 8th Street, Suite 580, Sacramento, CA 95814, struction, and job history analysis. Internal investigations, mony experience. Prior Big Four accountants. Special- (866) 443-0657, fax (916) 443-1908, e-mail: david SEC matters, purchases price disputes, critique of ties include accounting, breach of contract, business @cutredtape.com. Web site: www.CutRedTape.com. reports by other experts, analysis of leveraged transac- interruption, business dissolution, construction defects, Contact David at Capitol Services Inc. Declarations tion insolvency, business fraud investigations, and third- delays, and cost overruns, fraud, insurance bad faith, and expert testimony regarding B&P code 7031, sub- party inspections. intellectual property including trademark, patent, and stantial compliance, classification determination, con- copyright infringement, and trade secrets, malpractice, tractor license requirements for a construction project, marital dissolution, personal injury, product liability, real

52 Los Angeles Lawyer April 2010 estate, tax planning and preparation, IRS audit defense, tracing, unfair advertising, unfair competition, valuation of Specializing in businesses, and wrongful termination. See display ad Do You Have A Case on page 49. Rottweilers and Pit Bulls DOGS Involving Dogs? JILL KESSLER 341 North Grenola Street, Pacific Palisades, CA 90272, • aggression • breeding • temperament (310) 573-9615, fax (310) 573-1304, e-mail: jillkessler • behaviors • rescue • cruelty @mac.com. Web site: www.jillkessler.com. Opinion, consultation, reports, evaluations in dog aggression, dog • training • protocols • hoarding behaviors, training, showing, breed tendencies, rescued dogs, and dog bites. Specializing in Rottweilers and pit- bull type dogs. See display ad on this page. — EVALUATIONS, CONSULTATION, BITE INVESTIGATIONS — ECONOMIC ANALYSIS Jill Kessler • Dog Expert | 310-573-9615 | e-mail: [email protected] MAYER HOFFMAN MCCANN PC www.jillkessler.com 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected]. Web site: www.MHM-PC.com, www.CBIZ.com. Contact Steve Franklin. Specializes in business litigation; business valuation and appraisal, marital dissolutions, transactional due diligence, financial reconstruction, fraud investigation, family limited partnerships, commercial damage and lost profits computations and business interruption. Experienced expert testimony and tax controversy representation. ECONOMIC DAMAGES ADVISORS/EXPERTS @ MCS ASSOCIATES 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Web site: www.mcsassociates .com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and real estate consulting group (established 1973). Experi- enced 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 val- CHOOSE A BETTER & MORE SUCCESSFUL uations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title EXPERT WITNESS insurance. BRIAN LEWIS & COMPANY 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268. Contact Brian Lewis, CPA, CVA. Forensic accounting; business valuations; cash spendable reports; estate, trust, and income tax services. CAPSTONE ADVISORY GROUP, LLC 555 South Flower Street, Suite 3200, Los Angeles, CA 90071, (213) 542-7121, fax (213) 542-7102, e-mail: [email protected]. Web site: www .capstoneag.com. Contact Michael Spindler. Cap- stone’s typical litigation and forensic services include complex commercial litigation, arbitration, mediation, and dispute resolution. Bankruptcy avoidance actions and analysis, damages claims preparation and assessment, analysis of relationship between events and dam- ■ Expert Witness Directory–call today for your free copy ages. Construction damages analysis, project reconstruction, and job history analysis. Internal investigations, ■ Approved ca MCLE provider for attorneys and law firms SEC matters, purchases price disputes, critique of reports by other experts, analysis of leveraged transac- ■ Annual expert witness conference: February 2011 tion insolvency, business fraud investigations, and third- party inspections. ■ National association of professional consultants providing forensic services: los angeles, orange county, sacramento, CORNERSTONE RESEARCH 633 West Fifth Street, 31st Floor, Los Angeles, CA san diego, san francisco, dallas, houston, midwest, phoenix 90071-2005, (213) 553-2500, fax (213) 553-2699, Web ■ Visit www.forensic.org for immediate access to hundreds site: www.cornerstone.com. Contact George G. Strong, Jr., Richard W. Dalbeck, Katie J. Galley, of forensic experts in diverse disciplines Elaine Harwood, Carlyn Irwin or Elisabeth Browne. Cornerstone Research provides attorneys with expert testimony and economic and financial analyses in all phases of commercial litigation. We 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 562.695.4600 PHONE | 714.459.7198 FAX | WWW.FORENSIC.ORG | [email protected] supporting expert witnesses in intellectual property,

Los Angeles Lawyer April 2010 53 antitrust, securities, entertainment, real estate, financial ness issues. Degrees/licenses: CPA; CVA; CFE; ABV; investigations, economic damages, business valuations, institutions, and general business litigation. PhD-economics. See display ad on page 59. family law, bankruptcy, and reorganization. Degrees/ license: CPAs, CFEs, MBAs. See display ad on FULCRUM INQUIRY THOMAS NECHES & COMPANY LLP page 59. 888 South Figueroa Street, Suite 2000, Los Angeles, CA 609 South Grand Avenue, Suite 1106, Los Angeles, 90017, (213) 787-4100, fax (213) 891-1300, CA 90017-3848, (213) 624-8150, fax (213) 624-8152, FULCRUM INQUIRY e-mail: [email protected]. Web site: www.fulcrum e-mail: [email protected]. Web site: www 888 South Figueroa Street, Suite 2000, Los Angeles, .com. Contact David Nolte. Our professionals are .thomasneches.com. Contact Thomas M. Neches, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: experienced CPAs, MBAs, ASAs, CFAs, affiliated profes- CPA, ABV, CVA, CFE, CFF. Accounting, financial, [email protected]. Web site: www.fulcrum.com. sors, and industry specialists. Our analysis and research business valuation, and statistical analyses to assist Contact David Nolte. Our professionals are experi- combined with unique presentation techniques have attorneys in litigation. Expert testimony in state and fed- enced CPAs, MBAs, ASAs, CFAs, affiliated professors, resulted in an unequaled record of successful court eral courts. Cases: Antitrust, breach of contract, fraud, and industry specialists. Our analysis and research com- cases and client recoveries. Our expertise encompasses intellectual property, lost business value, lost profits, bined with unique presentation techniques have resulted damages analysis, lost profit studies, business and wrongful death, and wrongful termination. Industries: in an unequaled record of successful court cases and intangible asset valuations, appraisals, fraud investiga- banking, construction, entertainment, insurance, manu- client recoveries. Our expertise encompasses damages tions, troubled company consultation, statistics, forensic facturing, retail, securities, and wholesale. Credentials: analysis, lost profit studies, business and intangible asset economic analysis, royalty audits, strategic and market certified public accountant/accredited in business valua- valuations, appraisals, fraud investigations, troubled com- assessments, computer forensics, electronic discovery, tion, certified valuation analyst, certified fraud examiner pany consultation, statistics, forensic economic analysis, and analysis of computerized data. Degrees/licenses: and certified in financial forensics. Education: BA (Math- royalty audits, strategic and market assessments, com- CPAs, CFAs, ASAs, PhDs and MBAs in accounting, ematics) UC San Diego, MS (Operations Research) puter forensics, electronic discovery, and analysis of finance, economics, and related subjects. See display UCLA. Teaching: Adjunct Professor, Loyola Law School. computerized data. Degrees/licenses: CPAs, CFAs, ad on page 1. See display ad on page 57. ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 1. GLENN M. GELMAN AND ASSOCIATES WARONZOF ASSOCIATES, INC. CERTIFIED PUBLIC ACCOUNTANTS AND 2250 East Imperial Highway, Suite 120, El Segundo, CA ELECTRICAL ACCIDENTS BUSINESS CONSULTANTS 90245, (310) 322-7744, fax (310) 322-7755. Web site: 1940 East 17th Street, Santa Ana, CA 92705, www.waronzof.com. Contact Timothy R. Lowe, MAI, JAMES A. SMITH, CONSULTANT (714) 667-2600, fax (714) 667-2636, e-mail: rsquar CRE. Waronzof Associates provides real estate and 2562 Treasure Drive, Suite 4102, Santa Barbara, CA @gmgcpa.com. Web site: www.gmgcpa.com. land use litigation support services including economic 93105-4177, (805) 687-7911, fax (805) 687-0832, Contact Richard M. Squar. Since 1983, our firm has damages, lost profits, financial feasibility, highest and e-mail: [email protected]. Electrical accidents, elec- specialized in delivering forensic accounting and litigation best use, property value, enterprise value, partnership trocution and electric shock, analyzing what happened support services that give our clients an edge. We pro- interest and closely-held share value, fair compensation, and why, consulting on case strategy, and being an vide the quality and depth traditionally associated with lender liability and reorganization plan feasibility. Profes- expert witness, National Electric Code compliance, Cali- Big Four firms with the personal attention and fee struc- sional staff of four with advanced degrees and training in fornia GO-95 compliance, National Electric Safety Code ture of a local firm. We are recognized throughout south- real estate, finance, urban planning and accounting. See compliance, protective relaying, and equipment and ern California for the effectiveness of our work. Areas of display ad on page 51. product testing. expertise include: business interruption, loss of earnings WHITE, ZUCKERMAN, WARSAVSKY, LUNA, analysis, breach of contract, partnership dissolution, ELECTRICAL WOLF AND HUNT profits distribution, tax consequences of settlements, 14455 Ventura Boulevard, Suite 300, Sherman Oaks, ROBERT J. ABEND, PE reconstruction of accounting records, embezzlement CA 91423, (818) 981-4226, fax (818) 981-4278; 363 1658 Laraine Circle, San Pedro, CA 90732, (310) 346- and fraud, contract costs, lost profits, construction San Miguel Drive, Suite 130, Newport Beach, CA 6543, e-mail: [email protected] Web site: www claims, and damage computations cases. Selected by 92660, (949) 219-9816, fax (949) 219-9095; 831 State .linkline.com/personal/rabend. Specialties: Electrical Inside Public Accounting as recipient of 2008 “Best of Street, Suite 291, Santa Barbara, CA 93101, (805) 648- engineering, computer forensics, data recovery, elec- the Best” award given to only 25 firms across the coun- 4088, fax (805) 963-4088, e-mail: [email protected]. tronic discovery, computer engineering, software, elec- try. Our practice focuses on closely held entrepreneurial Contact Barbara Luna or Bill Wolf. Expert witness tronics, microelectronics, electronics manufacturing, firms in the following industries: construction, real estate testimony for complex litigation involving damage analy- printed circuit boards, intellectual property, and trade development, equipment leasing, auto parts (wholesale ses of lost profits, unjust enrichment, reasonable royal- secret litigation. Technical support during case prepara- and retail), manufacturing, and professional services. ties, lost earnings, lost value of business, forensic tion. Practiced at court and deposition testimony. Thirty- Glenn M. Gelman has been appointed and served as accounting, fraud investigation, investigative analysis of five years of experience in the electronics and computer Special Master in litigation support matters and has testi- liability, marital dissolution, and tax planning and prepa- industry. Fifteen years as a forensic engineering consul- fied over 30 times. Our comprehensive case list is avail- ration. Excellent communicators with extensive testi- tant. References provided on request. Degrees/licenses: able upon request. See display ad on page 51. mony experience. Prior Big Four accountants. Special- BSEE, MS, Registered Professional Engineer, Computer HIGGINS, MARCUS & LOVETT, INC. ties include accounting, breach of contract, business Forensics Examiner, FCC General Radiotelephone 800 South Figueroa Street, Suite 710, Los Angeles, CA interruption, business dissolution, construction defects, license. 90017, e-mail: [email protected]. Web site: www delays, and cost overruns, fraud, insurance bad faith, .hmlinc.com. Contact Mark C. Higgins, ASA, presi- intellectual property including trademark, patent, and ELECTRICAL ENGINEERING dent. The firm has over 25 years of litigation support copyright infringement, and trade secrets, malpractice, ALOHA SYSTEMS and expert testimony experience in matters involving marital dissolution, personal injury, product liability, real 8539 Barnwood Lane, Riverside, CA 92508-7126, business valuation, economic damages, intellectual estate, tax planning and preparation, IRS audit defense, (951) 780-9903, fax (951) 789-0783, e-mail: marks property, loss of business goodwill, and lost profits. tracing, unfair advertising, unfair competition, valuation of @alohasys.com. Web site: www.pwrexpert.com. Con- Areas of practice include business disputes, eminent businesses, and wrongful termination. See display ad tact Dr. Mark Shirilau. Electricity and electric utility domain, bankruptcy, and corporate and marital dissolu- on page 49. power systems, rates, and billing responsibilities. PhD in tion. See display ad on page 50. ZIVETZ, SCHWARTZ & SALTSMAN, CPAS power systems—generation, transmission, distribution, MAYER HOFFMAN MCCANN PC 11900 West Olympic Boulevard, Suite 650, Los Ange- energy use and conservation. PE and licensed contrac- 10474 Santa Monica Boulevard, Suite 200, Los Angeles, les, CA 90064-1046, (310) 826-1040, fax (310) 826- tor. Former utility employee. CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: 1065. Web site: www.zsscpa.com. Contact Lester J. CTG FORENSICS, INC. [email protected]. Web site: www.MHM-PC Schwartz, CPA, CFF, DABFE, DABFA, Michael D. 16 Technology Drive, Suite 109, Irvine, CA 92618, .com, www.CBIZ.com. Contact Steve Franklin. Spe- Saltsman, CPA, MBA, David L. Bass, CPA, David (949) 790-0010, fax (949) 790-0020, e-mail: mlewis cializes in business litigation; business valuation and Dichner, CPA, ABV, CVA, Sandy Green, CPA. @CTGforensics.com. Web site: www.CTGforensics appraisal, marital dissolutions, transactional due dili- Accounting experts in forensic accounting, tax issues, .com. Contact Dr. Malcolm Lewis, PE. Construction- gence, financial reconstruction, fraud investigation, family business valuations, and appraisals, marital dissolutions, related engineering, plumbing, mechanical (heating, ven- limited partnerships, commercial damage and lost profits eminent domain, insurance losses, business interruption, tilating, A/C) and electrical (power, lighting), energy sys- computations and business interruption. Experienced goodwill, economic analysis, investigative auditing, loss tems, residential and nonresidential buildings, expert testimony and tax controversy representation. of earning, commercial damages, and lost profits. Expert construction defects and delay analysis, cost to repair, witness testimony preparation, settlement negotiations, SCHULZE HAYNES LOEVENGUTH AND CO. construction claims, mold, and green/LEED buildings. and consultations. See display ad on page 55. 660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, ECONOMICS ELECTRONIC DISCOVERY e-mail: [email protected]. Web site: www BURGESS CONSULTING & FORENSICS .schulzehaynes.com. Contact Karl J. Schulze, princi- COHEN, MISKEI & MOWREY LLP 1010 West Betteravia Road, Suite E, Santa Maria, CA pal. Specialties: forensic business analysis and account- 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, 93455, (805) 349-7676, fax (805) 349-7790, e-mail: ing, lost profits, economic damages, expert testimony, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: [email protected]. Web site: www discovery assistance, business valuations, construction [email protected]. Web site: www.cmmcpas .burgessforensics.com. Contact Steve Burgess. claims, corporate recovery, financial analysis and model- .com. Contact Scott Mowrey. Specialties: consultants “Helping you win with incisive discovery.” Since 1985, ing, major professional organizations, and have experi- who provide extensive experience, litigation support, and Burgess has performed services for thousands of clients ence across a broad spectrum of industries and busi- expert testimony regarding forensic accountants, fraud

54 Los Angeles Lawyer April 2010 on tens of thousands of digital media. Computer forensic, electronic discovery (e-discovery) and expert witness services. Burgess Consulting will find whatever is there and explain it in a fashion that you, a judge, or jury can understand. Professional and complete. Almost any type of digital media (hard drives, cell phones, smart phones, PDAs, tapes, removable media, flash cards) or operating system. Accomplished testimony in court and deposition. Los Angeles office in Culver City; headquarters in Santa Maria. SETEC INVESTIGATIONS 8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90036, (800) 748-5440, fax (323) 939-5481, e-mail: [email protected]. Web site: www .setecinvestigations.com. Contact Todd Stefan. Setec Investigations offers unparalleled expertise in computer forensics and enterprise investigations providing person- alized, 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. EMBEZZLEMENT AND FRAUD GLENN M. GELMAN AND ASSOCIATES CERTIFIED PUBLIC ACCOUNTANTS AND BUSINESS CONSULTANTS 1940 East 17th Street, Santa Ana, CA 92705, (714) 667-2600, fax (714) 667-2636, e-mail: rsquar@gmgcpa .com. Web site: www.gmgcpa.com. Contact Richard M. Squar. Glenn M. Gelman and Associates provides a variety of high-quality services traditionally associated with the Big Four firms along with the personal attention that is the hallmark of local firms. Our litigation support services include: embezzlement and fraud, expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation and reconstruction of accounting records. Winner of Inside Public Accounting’s 2008 Zivetz, Schwartz & Saltsman CPA’s “Best of the Best” award given to only 25 firms across the country. Our practice focuses on closely held entrepreneurial firms in the following industries: construction, With more than thirty years of experience as expert witnesses real estate development, equipment leasing, auto parts in testimony, pre-trial preparation, settlement negotiations, (wholesale and retail), Manufacturing, and professional services. Glenn M. Gelman has been appointed and consultations and court appointed special master. served as Special Master in litigation support matters and has testified over 30 times. Our comprehensive case list is available upon request. See display ad on page 51. Some of our specialties consist of: EMPLOYMENT/DISCRIMINATION/ HARASSMENT • Forensic Accounting • Marital Dissolutions BRIAN H. KLEINER, PHD, MBA • Business Valuation and Appraisal • Lost Profits Professor of Human Resource Management, California State University, 800 North State College Boulevard, • Economic Damages • Accounting Malpractice LH-640, Fullerton, CA 92834, (714) 879-9705, fax (714) 879-5600. Contact Brian H. Kleiner, PhD. Specializa- tions include wrongful termination, discrimination, sexual • Employee Benefit Plans • Entertainment Entities harassment, ADA, evaluation of policies and practices, reasonable care, progressive discipline, conducting • Financial and Economic Analysis • Shareholder Disputes third-party workplace investigations, retaliation, RIFs, statistics, negligent hiring, promotion selections, CFRA/ • Wrongful Termination FMLA, compensation, wage and hours, ERISA, workplace violence, and OSHA. Consultant to over 100 organizations. Over 500 publications. Five-time winner of CSUF Meritorious Performance Award. Extensive experi- Tel: (310) 826-1040 Lester J. Schwartz, CPA, CFF, DABFA, DABFE ence giving testimony effectively. Fax: (310) 826-1065 Michael D. Saltsman, CPA, MBA EMPLOYMENT LAW E-mail: [email protected] David L. BASS, CPA Dave Dichner, CPA, ABV, CVA HAIGHT CONSULTING www.zsscpa.com 1726 Palisades Drive, Pacific Palisades, CA 90272, 11900 W. Olympic Blvd. Sandy Green, CPA (310) 454-2988, fax (310) 454-4516. Contact Marcia Suite 650 Haight, SPHR—CA. Human resources expert knowledgeable in both federal and California law. Twenty-five Los Angeles, CA 90064-1046 years’ corporate human resources management experience plus over 20 years as a Human Resources Compli-

Los Angeles Lawyer April 2010 55 ance Consultant in California. Specializations include related materials, including cement, aggregates, admix- EXPERT WITNESS sexual harassment, ADA/disability discrimination, other tures, supplementary cementing materials, plaster, Title VII and FEHA discrimination and harassment, retali- gunite, masonry, integral colors, and related ingredients. SERVICES ation, FMLA/CFRA, safety, and wrongful termination. Frequently provided services also include the assess- Courtroom testimony and deposition experience. ment of distress or damage to such construction, Retained 60 percent by defense, 40 percent by plaintiff. whether due to poor performance, overloading, earth- • Bankruptcy - Interest Rates Audit employer’s actions in preventing and resolving dis- quakes, fires, floods, soil conditions, or improper mainte- crimination, harassment, and retaliation issues. Assess nance. CIC also reviews contracts, specifications, con- • Banking - Lending & Operations human resources policies and practices for soundness, struction documents, and testing and inspection work • Lender Liability, Letters of for comparison to prevailing practices, and for compli- records for comparison with industry standards. ance. Evaluate employer responsiveness to complaints FALLBROOK ENGINEERING Credit, Guarantees and effectiveness of employer investigations. Assist 355 West Grand Avenue, Suite 4, Escondido, CA counsel via preliminary case analysis, discovery strategy, Forgery, Credit Cards, Ponzi 92025, (760) 489-5400, fax (760) 489-5412, e-mail: • examination of documents, and expert testimony. Schemes, Checking Account [email protected]. Web site: www NASH AND COMPANY .fallbrook-eng.com. Contact Richard P. Meyst. Disputes 6453 Via de Anzar, Rancho Palos Verdes, CA 90275, Fallbrook Engineering provides expert witness services • Consumer, Commercial, Real (310) 831-4874, fax (310) 514-1664, e-mail: mnash484 in the areas of IP (patent infringement, invalidity, claim @aol.com. Contact Michael Nash, PhD. Employment construction and trade dress), personal injury, product Estate, Construction Loans practices, standard of care, Americans with Disabilities liability, and product failure analysis. Our professionals & Regulatory Issues (ADA), compensation, wrongful termination, retaliation, have represented both plaintiff and defendant. We have discrimination, harassment, mental injury, and emotional done analysis, prepared declarations, been deposed, • Credit Damages, ID Theft distress. PSY 4753 Licensed Psychologist. and testified in court. We have years of design and Appraisal and Expert referrals development experience making us effective expert wit- • EMPLOYMENT/DISCRIMINATION/ nesses in all matters involving medical devices. Visit our HARASSMENT Web site at www.fallbrook-eng.com. – 35 years experience – PERSONNEL SYSTEMS ASSOCIATES, INC. FORENSISGROUP, INC P.O. Box 28597, Anaheim, CA 92809, (714) 281-8337, EXPERT WITNESS SERVICES CEO, Director, Sr. Loan Officer, fax (714) 281-2949, e-mail: mding@personnelsystems 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA State, Bankruptcy,& .com. Web site: www.personnelsystems.com. Contact 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- Mae Lon Ding, MBA, CCP. Expert witness in employ- 1950, e-mail: [email protected]. Web site: Federal Court ment, business dispute, disability, and divorce cases www.forensisgroup.com. Contact Mercy T. Steenwyk. involving issues of employee or owner compensation, The Expert of Experts—thousands of our clients have THOMAS TARTER discrimination, wrongful termination, exemption from gained the technical advantage and the competitive ANDELA CONSULTING GROUP overtime, labor market/employability, lost wages/benefits, edge in their cases from our group of high-quality expert employee performance, and evaluation of personnel poli- court witnesses, consultants, and litigation support spe- 818-380-3102 or 818-884-2525 cies and practices. Nationally recognized human cialists since 1991! Our highly experienced staff will con- resource management and compensation consultant, nect you with top engineering consultants, medical E-Mail: [email protected] speaker, author of book and articles, university instructor. expert witnesses, forensic accountants, construction www.commercepartners.org Quoted in Los Angeles Times, Orange County Register, experts, securities specialists, and hundreds of addi- Business Week, Workforce, and Working Woman. Over tional specialists and professionals covering a compre- 19 years of testifying in cases involving major national hensive field of technical and scientific disciplines. Refer- organizations in a large variety of industries involving mul- rals and searches are free. Call us now at (800) tiple plaintiffs. MBA, Certified Compensation Professional. 555-5422 for your free initial telephone consultations with our experts. See display ad on page 47. Computer Evidence ENGINEER/TRAFFIC HICHBORN CONSULTING GROUP WILLIAM KUNZMAN, PE 1040 East Howell Avenue, Anaheim, CA 92805, (714) ® 1111 Town and Country #34, Orange, CA 92868, 637-7400, fax (714) 637-7488, e-mail: info@hichborn DATACHASERS INC. (714) 973-8383, fax (714) 973-8821, e-mail: mail Contact Geoffrey .com. Web site: www.hichborn.com. @traffic-engineer.com. Web site: www.traffic-engineer Hichborn Sr, PE. General civil design with specialties .com. Contact William Kunzman, PE. Traffic expert featuring forensic investigations of concrete work and CARPE DATUMTM… witness since 1979, both defense and plaintiff. Auto, concrete products, concrete, cement and related mate- pedestrian, bicycle, and motorcycle accidents. Largest rials expertise, construction practices and materials eval- verdict: $10,300,000 in pedestrian accident case against uation, repair recommendations, construction observa- …SEIZE THE DATA Los Angeles Unified School District. Largest settlement: tion, public works/residential/commercial/industrial, and $2,000,000 solo vehicle accident case against Caltrans. specially designed tests of distressed materials. Before becoming expert witnesses, employed by Los Angeles County Road Department, Riverside County ENGINEERING/GEOTECHNICAL Road Department, City of Irvine, and Federal Highway COMPUTER FORENSICS COTTON, SHIRES AND ASSOCIATES, INC. Administration. Knowledge of governmental agency pro- 3201 Corte Malpaso, Suite 301, Camarillo, CA cedures, design, geometrics, signs, traffic controls, • Recover Critical Data 93012-8074, (805) 484-5500, fax (805) 484-5530, maintenance, and pedestrian protection barriers. Hun- e-mail: [email protected]. Web site: www • E-Mail Recovery dreds of cases. Undergraduate work—UCLA; graduate .cottonshires.com. Contact Michael Phipps or work—Yale University. • Dates on All Files Patrick O. Shires. Full-service geotechnical engineering ENGINEERING consulting firm specializing in investigation, design, arbi- • Websites Visited tration, and expert witness testimony with offices in Los CONCRETE INSIGHTS CORPORATION Gatos, Camarillo and San Andreas, California. Earth E-DISCOVERY 1040 East Howell Avenue, Anaheim, CA 92805, movement (settlement, soil creep, landslides, tunneling (877) 231-1020, fax (714) 634-4933, e-mail: info and expansive soil), foundation distress (movement and • De-Duplication @concreteinsights.com. Concrete Insights Corp. (CIC) cracking of structures), drainage and grading (seeping specializes in evaluating all aspects of concrete, cement, slabs and ponding water in crawlspace), pavement and • Redaction and cement-containing materials, including constructed slabs (cracking and separating), retaining walls (move- • Bates Stamped Data work, plans and specifications, deliveries, installation, ment, cracking and failures), pipelines, flooding and workmanship, material conformance, and material prop- hydrology, design and construction deficiencies, expert • Electronic (ESI) Production erties. CIC examines the work and responsibilities of var- testimony at over 75 trials (municipal, superior and fed- ious parties in disputes, including owners, developers, eral); 205+ depositions; 205+ settlement conferences in general concrete and specialty contractors, materialmen, southern and northern California and Hawaii. and related entities on projects during construction TEL. through the warranty period, and through the service life ENTERTAINMENT & MEDIA 951-780-7892 of the work. Whether working directly for them, their MEDIA VALUATION PARTNERS insurers and/or attorneys, and often working in response 2931 South Sepulveda Boulevard, Suite I, Los Angeles, to claims of construction defects, consequential dam- CA 90064, (323) 988-0506, e-mail: larry@mediavaluation age, or other construction and payment disputes, the DATACHASERS.COM .com. Web Site: www.mediavaluationpartners.com. consultation of CIC evaluates design, installation, and Contact: Larry Gerbrandt. Services available: MVP performance of the many varieties of concrete and

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Visit TASAnet.com consultation, and litigation support concerning hydroge- estate, subprime, business/commercial, construction, where you can search expert profiles by expertise key- ologic assessments to evaluate groundwater supply, consumer/credit card), banking operations/administra- word, request a Challenge History Report on an expert’s basin studies, nature/extent of soil/groundwater contam- tion, trusts and investments, economic analysis and val- past testimony, and request an expert on our online ination, source identification, identification of potentially uations/damages assessment, insurance claims, cover- form. Explore TASAnet.com’s Knowledge Center to read responsible parties, cost allocation studies, and negotia- ages and bad faith, real estate brokerage, appraisal, expert-authored articles and view archived webinars for tions with USEPA and state regulatory agencies involv- escrow, and construction defects/disputes, and title attorneys. To receive invitations to our free, expert-led ing cleanup levels and approval of RI/FS/RD/RA docu- insurance. webinars for attorneys, register at www.TASAnet ments for various state and federal Superfund sites. See .com/knowledgecenterregistration.aspx. Benefit from 54 display ad on page 55. EXPERT REFERRAL SERVICE years of TASA Group experience. See insert in this issue and display ad on page 43. PACIFIC HEALTH AND SAFETY PRO/CONSUL CONSULTING, INC. TECHNICAL AND MEDICAL EXPERTS EXPERT WITNESS 2192 Martin, Suite 230, Irvine, CA 92612, (949) 253- 1945 Palo Verde Avenue, Suite 200, Long Beach, CA 4065, e-mail: [email protected]. Web site: 90815, (800) 392-1119, fax (562) 799-8821, e-mail: AMFS MEDICAL EXPERTS NATIONWIDE www.phsc-web.com. Contact Tim Morrison. Provid- [email protected]. Web site: www.expertinfo.com. 6425 Christie Avenue, Suite 260, Emeryville, CA 94608, ing quality consultation and expert witness for mold, Contact Rebecca deButts. Right expert right away! (800) 275-8903. Web site: www.AMFS.com. Medical bacteria, lead, and asbestos. Certified training for health We are listed and recommended by the A.M. Best Com- experts for malpractice and personal injury cases. AMFS and safety, OSHA, and AQMD regulations. See display pany. We welcome your rush cases! 15,000 medical is America’s premier medical expert witness and con- ad on page 62. and technical experts in over 3,000 fields enables sulting company. We are a trusted partner with the legal Pro/Consul to provide the best experts at a reasonable community and provide a superior method of retaining ENVIRONMENTAL ENGINEER cost, including: reconstruction, accounting, engineering, medical experts. 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• 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 April 2010 57 industry average of 28%. • 8,500+ experts in 250+ spe- plumbing, corrosion, and structural failures. We work on ties, lost earnings, lost value of business, forensic cialties, • Practicing physicians with legal experience, • both plaintiff and defendant cases. Complete in-house accounting, fraud investigation, investigative analysis of No cost attorney consultations, • Record review and capabilities for tests. Extensive deposition and court- liability, marital dissolution, and tax planning and prepa- testimony, • Independent Medical Examinations (IME) room experience (civil and criminal investigations). Princi- ration. Excellent communicators with extensive testi- and autopsies, • Essential affidavits and reporting. Free pals are fellows of American Society for Metals and mony experience. Prior Big Four accountants. Special- attorney consultations. Discuss your case at no charge board-certified diplomates, American Board of Forensic ties include accounting, breach of contract, business with a physician who will identify and clarify your case Examiners. See display ad on page 63. interruption, business dissolution, construction defects, issues to ensure you retain the appropriate specialists. delays, and cost overruns, fraud, insurance bad faith, Case reviews for merit. Have your case reviewed for FAMILY LAW intellectual property including trademark, patent, and merit in roundtable fashion by a multidisciplinary panel of copyright infringement, and trade secrets, malpractice, COHEN, MISKEI & MOWREY LLP practicing, board-certified physicians. Review and select marital dissolution, personal injury, product liability, real 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, expert CVs. Our experience, resources, and large propri- estate, tax planning and preparation, IRS audit defense, CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail: etary database enable us to quickly identify and interview tracing, unfair advertising, unfair competition, valuation of [email protected]. Web site: a large number of potential medical experts on your businesses, and wrongful termination. See display ad www.cmmcpas.com. Contact Scott Mowrey. Special- behalf and provide you with the CVs of those who are on page 49. ties: consultants who provide extensive experience, liti- best suited to your case. 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Click here! expert4law—The legal Marketplace is Accounting experts in forensic accounting, tax issues, 90067, (310) 552-0960, fax (310) 557-3468. 20355 the best online directory for finding expert witnesses, business valuations, and appraisals, marital dissolutions, Hawthorne Boulevard, First Floor, Torrance, CA 90503, legal consultants, litigation support, lawyer-to-lawyer eminent domain, insurance losses, business interruption, (310) 370-6122, fax (310) 370-6188, e-mail: rwatts networking, dispute resolution professionals, and law goodwill, economic analysis, investigative auditing, loss @gursey.com or [email protected]. Web site: office technology. This comprehensive directory is the of earning, commercial damages, and lost profits. Expert www.gursey.com. Contact Robert Watts or Tracy one-stop site for your legal support needs. Available witness testimony preparation, settlement negotiations, Katz. Forensic accounting and litigation support ser- 24/7/365! Brought to you by the Los Angeles County and consultations. See display ad on page 55. vices in all areas relating to marital dissolution; including, Bar Association. business valuation, tracing and apportionment of real FEE & ETHICS FAILURE ANALYSIS property and assets, net spendable evaluations, determination of gross cash flow available for support and JOEL MARK CONCRETE INSIGHTS CORPORATION analysis of reimbursement claims and marital standards NORDMAN CORMANY HAIR & COMPTON LLP 1040 East Howell Avenue, Anaheim, CA 92805, of living. See display ad on page 52. 1000 Town Center Drive, 6th Floor, Oxnard, CA 93936, (877) 231-1020, fax (714) 634-4933, e-mail: info (805) 988-8300, fax (805) 988-7700, e-mail: jmark HARGRAVE & HARGRAVE, AN ACCOUNTANCY @concreteinsights.com. Concrete Insights Corp. (CIC) @nchc.com. Web site: www.nchc.com. Contact Joel CORPORATION specializes in evaluating all aspects of concrete, cement, Mark. Mr. Mark has had in excess of 30 matters as an 520 Broadway, Suite 680, Santa Monica, CA 90401, and cement-containing materials, including constructed expert witness in attorney malpractice cases, attorneys’ (310) 576-1090, fax (310) 576-1080, e-mail: terry work, plans and specifications, deliveries, installation, fee disputes and cases involving issues of attorney @taxwizard.com. Web site: www.taxwizard.com. Con- workmanship, material conformance, and material prop- ethics. He served 11 years on the State Bar Committee tact Terry M. Hargrave, CPA/ABV/CFF, CFE. Litiga- erties. CIC examines the work and responsibilities of var- on Mandatory Fee Arbitration, a term on the State Bar tion services for family law and civil cases. Past chair of ious parties in disputes, including owners, developers, Committee on Professional Responsibility and Conduct, California Society of CPA’s Family Law Section, busi- general concrete and specialty contractors, materialmen, and has been appointed as an expert consultant by the ness valuation instructor for California CPA Education and related entities on projects during construction Los Angeles Superior Court. Foundation. Services include business valuations, through the warranty period, and through the service life income available for support, tracing separate property, of the work. Whether working directly for them, their FINANCIAL litigation consulting, real estate litigation, mediation, fraud insurers and/or attorneys, and often working in response investigations, damage calculation, and other forensic ADVISORS/EXPERTS @ MCS ASSOCIATES to claims of construction defects, consequential dam- accounting work. 18881 Von Karman, Suite 1175, Irvine, CA 92612, age, or other construction and payment disputes, the (949) 263-8700, fax (949) 263-0770, e-mail: experts consultation of CIC evaluates design, installation, and HAYNIE & COMPANY, CPAS @mcsassociates.com. Web site: www.mcsassociates performance of the many varieties of concrete and 4910 Campus Drive, Newport Beach, CA 92660, (949) .com. Contact Norman Katz, managing partner. related materials, including cement, aggregates, admix- 724-1880, fax (949) 724-1889, e-mail: sgabrielson Nationally recognized banking, finance, insurance, and tures, supplementary cementing materials, plaster, @hayniecpa.com. Web site: www.hayniecpa.com. Con- real estate consulting group (established 1973). Experi- gunite, masonry, integral colors, and related ingredients. tact Steven C. Gabrielson. Consulting and expert wit- enced litigation consultants/experts include senior Frequently provided services also include the assess- ness testimony in a variety of practice areas: commercial bankers, lenders, consultants, economists, accountants, ment of distress or damage to such construction, damages, ownership disputes, economic analysis, busi- insurance underwriters/brokers. Specialties: lending cus- whether due to poor performance, overloading, earth- ness valuation, lost profits analysis, fraud/forensic inves- toms, practices, policies, in all types of lending (real quakes, fires, floods, soil conditions, or improper mainte- tigations, taxation, personal injury, wrongful termination, estate, subprime, business/commercial, construction, nance. CIC also reviews contracts, specifications, con- professional liability, and expert cross examination. consumer/credit card), banking operations/administra- struction documents, and testing and inspection work Extensive public speaking background assists in court- tion, trusts and investments, economic analysis and val- records for comparison with industry standards. room presentations. uations/damages assessment, insurance claims, cover- DR. WILLIAM D. GUENTZLER PAMELA WAX-SEMUS, CFE ages and bad faith, real estate brokerage, appraisal, FORENSICS INTERNATIONAL 107 North Reino Road, #402, Newbury Park, CA escrow, and construction defects/disputes, and title 10298 Hawley Road, El Cajon, CA 92021, (619) 390- 91320, (805) 499-3035, fax (805) 498-0468, e-mail: insurance. 9081, cell (619) 823-9081, fax (619) 390-9086, e-mail: [email protected]. Web site: www CORNERSTONE RESEARCH [email protected]. Contact William D. Guentzler, .tracingqueen.net. Contact Pamela Wax-Semus, 633 West Fifth Street, 31st Floor, Los Angeles, CA PhD. Dr. Guentzler has over 30 years of experience as CFE. I am experienced in most areas of litigation sup- 90071-2005, (213) 553-2500, fax (213) 553-2699, Web an expert witness and forensic examiner and 36 years port services with a particular emphasis in tracing, prop- site: www.cornerstone.com. Contact George G. as a university professor. He is licensed in the state of erty allocation, reimbursements, stock options and Strong, Jr., Richard W. Dalbeck, Katie J. Galley, Arizona as a private investigator. His expertise includes related allocations issues. I have vast experience not Elaine Harwood, Carlyn Irwin or Elisabeth Browne. auto, truck, ATC, ATV, motorcycle, motor homes, and only in marital dissolution matters. My expertise expands Cornerstone Research provides attorneys with expert golf carts. He also specializes in braking systems, igni- to trust and probate accountings, fraud, and other litiga- testimony and economic and financial analyses in all tion, fuel systems, cooling, electrical and battery explo- tion related matters. phases of commercial litigation. We work with faculty sions, as well as vehicle fire cause and origin. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, and industry experts in a distinctive partnership that KARS ADVANCED MATERIALS, INC. WOLF AND HUNT combines the strengths of the business and academic Testing and Research Labs, 2528 West Woodland 14455 Ventura Boulevard, Suite 300, Sherman Oaks, worlds. Our areas of expertise include identifying and Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax CA 91423, (818) 981-4226, fax (818) 981-4278; 363 supporting expert witnesses in intellectual property, (714) 527-7169, e-mail: [email protected]. Web site: San Miguel Drive, Suite 130, Newport Beach, CA antitrust, securities, entertainment, real estate, financial www.karslab.com. Contact Drs. Ramesh J. Kar or 92660, (949) 219-9816, fax (949) 219-9095; 831 State institutions, and general business litigation. Naresh J. Kar. Southern California’s premier materi- Street, Suite 291, Santa Barbara, CA 93101, (805) 648- FULCRUM INQUIRY als/mechanical/metallurgical/structural/forensics labora- 4088, fax (805) 963-4088, e-mail: [email protected]. 888 South Figueroa Street, Suite 2000, Los Angeles, CA tory. Registered professional engineers with 20-plus Contact Barbara Luna or Bill Wolf. Expert witness 90017, (213) 787-4100, fax (213) 891-1300, e-mail: years in metallurgical/forensic/structural failure analysis. testimony for complex litigation involving damage analy- [email protected]. Web site: www.fulcrum.com. Experienced with automotive, bicycles, tires, fire, paint, ses of lost profits, unjust enrichment, reasonable royal-

58 Los Angeles Lawyer April 2010 Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research com- CHARLES PEREYRA-SUAREZ bined with unique presentation techniques have resulted in an unequaled record of successful court cases and — ARBITRATOR AND MEDIATOR — client recoveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset RELEVANT EXPERIENCE: valuations, appraisals, fraud investigations, troubled company consultation, statistics, forensic economic analysis, • Trial/Appellate Attorney, U.S. Justice Department royalty audits, strategic and market assessments, com- Civil Rights Division puter forensics, electronic discovery, and analysis of • Federal Prosecutor in Los Angeles computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAs in accounting, finance, econom- • Litigation Partner in Two National Law Firms ics, and related subjects. See display ad on page 1. • Judge Pro Tem, Los Angeles County Superior Court HAYNIE & COMPANY, CPAS • Diverse ADR and Expert Witness Practice 4910 Campus Drive, Newport Beach, CA 92660, (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson 445 S. FIGUEROA STREET, SUITE 3200, LOS ANGELES CA 90071 @hayniecpa.com. Web site: www.hayniecpa.com. Con- Tel 213.623.5923 Fax 213.623.1890 http://www.cpsarbitration.com tact Steven C. Gabrielson. Consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis, business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists in court- Schulze Haynes Loevenguth & Co. room presentations. FORENSIC/LITIGATION EXPERTS FINANCIAL STATEMENTS MAYER HOFFMAN MCCANN PC Designations include: • Financial Forensic Analysis 10474 Santa Monica Boulevard, Suite 200, Los Angeles, ✒ Certified Public • Expert Testimony Accountant (CPA) CA 90025, (310) 268-2000, fax (310) 268-2001, • Turnaround and Bankruptcy e-mail: [email protected]. Web site: www.MHM-PC ✒ Certified in Financial .com, www.CBIZ.com. Contact Steve Franklin. Forensics (CFF) • Business Valuation Specializes in business litigation; business valuation and ✒ Certified Valuation appraisal, marital dissolutions, transactional due dili- Analyst/Accredited in CONTACT KARL J. SCHULZE gence, financial reconstruction, fraud investigation, family Business Valuation [email protected] • www.schulzehaynes.com limited partnerships, commercial damage and lost profits (CVA/ABV) computations and business interruption. Experienced ✒ Certified Fraud 213.627.8280 expert testimony and tax controversy representation. Examiner (CFE) 660 SOUTH FIGUEROA STREET, SUITE 1280, LOS ANGELES, CALIFORNIA 90017 FOOD SAFETY/HACCP FOOD SAFETY AND HACCP COMPLIANCE 20938 De Mina Street, Woodland Hills, CA 91364, (818) 703-7147, e-mail: [email protected]. Web site: www.foodsafetycoach.com. Contact Jeff Nelken, BS, MA. Forensic food safety expert knowledgeable in both food safety and hazard analysis critical control point program development. Specializes in expert witness testimony and litigation consultant in matters regarding food safety, Q.A. HACCP, crisis management, food-borne illness, health department representation, food spoilage, allergy, and customer complaints. Performs inspections, vendor audits, and training. Hands-on food safety consultant for restaurants, manufacturers, distributors, country clubs, schools, nursing homes, and casinos. NRA and NSF HACCP certified instructor. Thirty years of food and hospitality experience. Registered as a food handler instructor with the Los Angeles County Health Department. Provider # 015. Forensic food safety expert. Food safety expert for CBS, NBC, Inside Edition, and CNN. Free Consultation. FORENSIC ACCOUNTING BRIAN LEWIS & COMPANY 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268. Contact Brian Lewis, CPA, CVA. Forensic accounting; business valuations; cash spendable reports; estate, trust, and income tax services. 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 financial analyses in all phases of commercial litigation. We 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

Los Angeles Lawyer April 2010 59 estate, financial institutions, and general business liti- Schwartz, CPA, CFF, DABFE, DABFA, Michael D. bankers, lenders, consultants, economists, accountants, gation. Saltsman, CPA, MBA, David L. Bass, CPA, David insurance underwriters/brokers. Specialties: lending cus- Dichner, CPA, ABV, CVA, Sandy Green, CPA. toms, practices, policies, in all types of lending (real FULCRUM INQUIRY Accounting experts in forensic accounting, tax issues, estate, subprime, business/commercial, construction, 888 South Figueroa Street, Suite 2000, Los Angeles, business valuations, and appraisals, marital dissolutions, consumer/credit card), banking operations/administra- CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: eminent domain, insurance losses, business interruption, tion, trusts and investments, economic analysis and val- [email protected]. Web site: www.fulcrum.com. goodwill, economic analysis, investigative auditing, loss uations/damages assessment, insurance claims, cover- Contact David Nolte. Our professionals are experi- of earning, commercial damages, and lost profits. Expert ages and bad faith, real estate brokerage, appraisal, enced CPAs, MBAs, ASAs, CFAs, affiliated professors, witness testimony preparation, settlement negotiations, escrow, and construction defects/disputes, and title and industry specialists. Our analysis and research com- and consultations. See display ad on page 55. insurance. bined with unique presentation techniques have resulted in an unequaled record of successful court cases and FORENSIC ACCOUNTING AND DAMAGE E.L. EVANS ASSOCIATES client recoveries. Our expertise encompasses damages CALCULATION 3310 Airport Avenue, Box # 7, Santa Monica, CA analysis, lost profit studies, business and intangible asset 90405, (310) 559-4005, fax (310) 559-4236, e-mail: valuations, appraisals, fraud investigations, troubled com- GREEN HASSON & JANKS LLP [email protected]. Contact Gene Evans. Good pany consultation, statistics, forensic economic analysis, 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA faith/bad faith. Over 45 years’ experienceæclaims royalty audits, strategic and market assessments, com- 90024, (310) 873-6699, fax (310) 873-6600, e-mail: adjuster. Standards and practices in the industry, litiga- puter forensics, electronic discovery, and analysis of [email protected]. Web site: www.ghjadvisors tion support, claims consultation, case review and evalu- computerized data. Degrees/licenses: CPAs, CFAs, .com. Contact Sid Blum. GH&J’s accounting experts ation, property/casualty claims, construction claims, ASAs, PhDs and MBAs in accounting, finance, econom- provide financial insight and clarity during all stages of a uninsured/underinsured motorist claims, general liability, ics, and related subjects. See display ad on page 1. business dispute, state or federal, from case develop- fire/water/mold claims, damage assessment, profes- ment and discovery, to expert witness testimony. sional liability claims, appraisal under policy, arbitration, GLENN M. GELMAN AND ASSOCIATES Through trial, mediation or arbitration, we provide review duty to defend, advertising claims, coverage applica- CERTIFIED PUBLIC ACCOUNTANTS AND and critique of opposing expert opinions & testimony; tions, and suspected fraud claims. CV available on BUSINESS CONSULTANTS consultation on discovery, depositions and trial prepara- request. See display ad on page 51. 1940 East 17th Street, Santa Ana, CA 92705, tion; and clear, persuasive communication of findings (714) 667-2600, fax (714) 667-2636, e-mail: rsquar LAUNIE ASSOCIATES, INC. through reports, exhibits and expert witness testimony. @gmgcpa.com. Web site: www.gmgcpa.com. Contact 1165K Tunnel Road, Santa Barbara, CA 93105, (805) Well-known in entertainment and intellectual property, Richard M. Squar. Since 1983, our firm has specialized 569-9175, fax (805) 687-8597, e-mail: [email protected]. we serve a variety of industries. See display ad on in delivering forensic accounting and litigation support Contact Joseph J. Launie, PhD, CPCU, insurance page 20. services that give our clients an edge. We provide the professor, author, and consultant. Over 30 years of quality and depth traditionally associated with Big Four FORENSIC ENGINEERING experience as expert witness in state and federal courts. firms with the personal attention and fee structure of a Coauthor of books and articles on underwriting, insur- local firm. Our litigation support services include: forensic CONCRETE INSIGHTS CORPORATION ance company operations, and punitive damages. Con- accounting, investigative auditing, embezzlement and 1040 East Howell Avenue, Anaheim, CA 92805, sulting, expert witness on underwriting, company and fraud, expert witness testimony, strategy development, (877) 231-1020, fax (714) 634-4933, e-mail: info agency operations, and bad faith. document discovery, deposition assistance, computa- @concreteinsights.com. Concrete Insights Corp. (CIC) CLINTON E. MILLER, JD, BCFE tion of damages, arbitration consulting, rebuttal testi- specializes in evaluating all aspects of concrete, cement, INSURANCE BAD FAITH EXPERT mony, fiduciary accountings, and trial exhibit preparation and cement-containing materials, including constructed 502 Park Avenue, San Jose, CA 95110, (408) 279- and reconstruction of accounting records. Winner of work, plans and specifications, deliveries, installation, 1034, fax (408) 279-3562, e-mail: [email protected]. Inside Public Accounting’s 2008 “Best of the Best” workmanship, material conformance, and material prop- Contact Clint Miller. Insurance expert regarding award given to only 25 firms across the country. Our erties. CIC examines the work and responsibilities of var- claims, underwriting, agent and brokers errors and omis- practice focuses on closely held entrepreneurial firms in ious parties in disputes, including owners, developers, sions, coverage disputes, customs and practices, and the following industries: construction, real estate devel- general concrete and specialty contractors, materialmen, bad faith. See display ad on page 50. opment, equipment leasing, auto parts (wholesale and and related entities on projects during construction retail), manufacturing, and professional services Glenn through the warranty period, and through the service life MURPHY, CAMPBELL, GUTHRIE AND M. Gelman has been appointed and served as Special of the work. Whether working directly for them, their ALLISTON Master in litigation support matters and has testified over insurers and/or attorneys, and often working in response 8801 Folsom Boulevard, Suite 230, Sacramento, CA 30 times. Our comprehensive case list is available upon to claims of construction defects, consequential dam- 95826, (916) 400-2300, fax (916) 484-3511, e-mail: request. See display ad on page 51. age, or other construction and payment disputes, the [email protected]. Web site: www consultation of CIC evaluates design, installation, and .murphycampbell.com. Contact George E. Murphy. In PAMELA WAX-SEMUS, CFE performance of the many varieties of concrete and his 30 years of practicing insurance law, George E. Mur- 107 North Reino Road, #402, Newbury Park,CA related materials, including cement, aggregates, admix- phy has become uniquely skilled in matters of insurance 91320, (805) 499-3035, fax (805) 498-0468, e-mail: tures, supplementary cementing materials, plaster, coverage and good faith/bad faith insurer practices. He [email protected]. Web site: www gunite, masonry, integral colors, and related ingredients. has authored hundreds of insurance coverage opinions .tracingqueen.net. Contact Pamela Wax-Semus, Frequently provided services also include the assess- concerning virtually every type of policy, and has CFE. I am experienced in most areas of litigation sup- ment of distress or damage to such construction, obtained numerous published appellate decisions shap- port services with a particular emphasis in tracing, prop- whether due to poor performance, overloading, earth- ing insurance coverage law in California. In one signifi- erty allocation, reimbursements, stock options, and quakes, fires, floods, soil conditions, or improper mainte- cant case, the court of appeal specifically requested Mr. related allocations issues. I have vast experience not nance. CIC also reviews contracts, specifications, con- Murphy to serve as amicus curiae for the court. In pri- only in marital dissolution matters. My expertise expands struction documents, and testing and inspection work vate practice, he litigates cases for and against insur- to trust and probate accountings, fraud, and other litiga- records for comparison with industry standards. ance companies, bringing objectivity and perspective to tion related matters. each assignment while explaining cryptic policy lan- RGL FORENSICS FRAUD INVESTIGATIONS guage in clear and concise terms. Los Angeles Office: 660 South Figueroa Street, Suite MAYER HOFFMAN MCCANN PC PAUL PAULIN AND ASSOCIATES 980, Los Angeles, CA 90017, (213) 996-0900. Contact 10474 Santa Monica Boulevard, Suite 200, Los Angeles, 567 West Channel Islands Boulevard, Suite 329, Port Alan Lurie, [email protected] or Bob Jones, bjones CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: Hueneme, CA 93041, (805) 985-3917, fax (805) 985- @us.rgl.com. Orange County Office: 625 City Drive [email protected]. Web site: www.MHM-PC.com, 6407, e-mail: [email protected]. Contact Paul South, Suite 290, Orange, CA 92868, (714) 740-2100. www.CBIZ.com. Contact Steve Franklin. Specializes Paulin. Property/casualty insurance; surplus lines insur- Contact Hank Kahrs, [email protected]. RGL Foren- in business litigation; business valuation and appraisal, ance; agent/broker; standard of care; bad faith; insur- sics is an international firm of forensic financial experts marital dissolutions, transactional due diligence, financial ance office procedures practice; 37 years as agent/bro- exclusively dedicated to damage analysis, fraud investi- reconstruction, fraud investigation, family limited partner- ker; former chair, senate advisory commission on gation, and valuation. Serving the legal, insurance and ships, commercial damage and lost profits computa- business insurance. Degrees/licenses: CPCU, AMIM, business communities for more than 30 years, the firm is tions and business interruption. Experienced expert tes- ASLI, broker/agent, life agent, surplus lines agent. unique in its ability to combine investigative accounting, timony and tax controversy representation. business valuation, fraud, and forensic technology DAVID F. PETERSON, INC. expertise. For attorneys, we discover and define financial INSURANCE 10681 Encino Drive, Oak View, CA 93022, (805) 649- value in transactions and civil and criminal disputes, and 8557, fax (805) 649-5957, e-mail: [email protected]. when necessary provide expert witness testimony in ADVISORS/EXPERTS @ MCS ASSOCIATES Expert witness and consultant for insurance coverage court and arbitration proceedings. For more information 18881 Von Karman, Suite 1175, Irvine, CA 92612, and bad faith claim handling for first party policies, third about RGL and its 23 offices worldwide, please visit (949) 263-8700, fax (949) 263-0770, e-mail: experts party policies, directors and officers policies, professional www.rgl.com. See display ad on page 67. @mcsassociates.com. Web site: www.mcsassociates liability policies, bonds, life and disability policies. Have .com. Contact Norman Katz, managing partner. been retained as an expert in over 1000 lawsuits and ZIVETZ, SCHWARTZ & SALTSMAN, CPAS Nationally recognized banking, finance, insurance, and qualified and testified in over 98 trials. Insurance cover- 11900 West Olympic Boulevard, Suite 650, Los Ange- real estate consulting group (established 1973). Experi- age and bad faith defense attorney for over 20 years les, CA 90064-1046, (310) 826-1040, fax (310) 826- enced litigation consultants/experts include senior with 24 published and unpublished appellate decisions. 1065. Web site: www.zsscpa.com. Contact Lester J.

60 Los Angeles Lawyer April 2010 ROBERT HUGHES ASSOCIATES, INC. 508 Twilight Trail, #200, Richardson, TX 75080, (972) 980-0088, fax (972) 233-1548, e-mail: joakley As an Expert Witness in Real Estate Litigation, Attorney @roberthughes.com. Web site: www.roberthughes .com. Contact John Oakley. Founded in 1979, RHA is LAWRENCE H. JACOBSON an international insurance and risk management consult- has consistently been on the Winning Team ing company based in Dallas. Our consultants’ experience in the insurance industry allows us to provide highly qualified expert witness and litigation support services. • Real estate and • Lawyer malpractice • Interpretation Our expertise includes: property/casualty insurance, mortgage brokersÕ in business and real of real estate life/health insurance, Lloyd’s, London Market Research, standard of care estate transactions documents claims handling, bad faith, decision analysis, agency management and practices, insurance laws and regula- Practicing real estate law in California since 1968. Member, Executive Committee, Beverly Hills Bar Association. tions, statistical forecasting, insurance sales and market- Former Vice President-Legal Affairs, California Association of Realtors. California Real Estate Broker since 1978. ing practices, insurance archaeology and policy interpretation and analysis. LAWRENCE H. JACOBSON AB, UCLA 1964, JD UCLA SCHOOL OF LAW 1967 SHARP AND ASSOCIATES; INSURANCE CON- Tel 310.271.0747 Fax 310.271.0757 email [email protected] www.lawrencejacobson.com SULTANTS AND EXPERTS. West coast office: 21520 Yorba Linda Boulevard, Suite LAW OFFICES: 9401 WILSHIRE BLVD. SUITE 1250, BEVERLY HILLS, CA 90212 G-257, Yorba Linda, CA. 92887, (213) 407-9957; East coast office: 325 East Paces Ferry Road, Suite 1603, Atlanta, GA 30305, (213) 407-9957, e-mail: rsharp1959 @aol.com Web site: www.sharpandassociates.org. Contact Robert Sharp. Good faith/bad faith. In regard to all insurance related issues and insurance industry standards. Mr. Sharp has 33 years of experience, and retired as president and CEO of a property-casualty insurance company. He also held the positions of senior vice president, claims, and executive vice president. He is providing services to law firms, insurance companies, and corporations as a consultant and expert. Mr. Sharp has testified in state and federal court in insurance related matters such as property/casualty claims, sales and underwriting issues, policy cancellations, coverage denials, general liability, uninsured/underinsured claims, and bad faith claims. CV upon request. For immediate background information please see the Web site listed above. INTELLECTUAL PROPERTY 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. INVESTIGATIONS Cornerstone Research provides attorneys with expert testimony and economic and financial analyses in all — DISCRETION AND CONFIDENTIALITY — phases of commercial litigation. We 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 Locates supporting expert witnesses in intellectual property, antitrust, securities, entertainment, real estate, financial Asset Investigations institutions, and general business litigation. Rush & Difficult Service of Process FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, Surveillance CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Web site: www.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research combined with unique presentation techniques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, The Power of Knowledge. ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 1. 23 Years of Experience WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF AND HUNT 818.344.2193 tel | 818.344.9883 fax | [email protected] 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278; 363 PI 14084 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095; 831 State www.shorelinepi.com Street, Suite 291, Santa Barbara, CA 93101, (805) 648- 4088, fax (805) 963-4088, e-mail: [email protected]. Contact Barbara Luna or Bill Wolf. Expert witness 800.807.5440 testimony for complex litigation involving damage analy-

Los Angeles Lawyer April 2010 61 ses of lost profits, unjust enrichment, reasonable royal- Committee on Professional Responsibility and Conduct, ties, lost earnings, lost value of business, forensic and has been appointed as an expert consultant by the accounting, fraud investigation, investigative analysis of Los Angeles Superior Court. liability, marital dissolution, and tax planning and prepa- REHWALD GLASNER & CHALEFF ration. Excellent communicators with extensive testi- 5855 Topanga Canyon Boulevard, Suite 400, Woodland mony experience. Prior Big Four accountants. Special- Hills, CA 91367, (818) 703-7500, fax (818) 703-7498, ties include accounting, breach of contract, business e-mail: [email protected]. Web site: www interruption, business dissolution, construction defects, .rehwaldlaw.com. Contact William Rehwald. Expert delays, and cost overruns, fraud, insurance bad faith, consulting and testimony on attorney standard of care, intellectual property including trademark, patent, and fiduciary duties, professional responsibility and ethics, copyright infringement, and trade secrets, malpractice, underlying case proof, and fee disputes. Retained expert marital dissolution, personal injury, product liability, real by plaintiffs and defendants in legal malpractice trials. estate, tax planning and preparation, IRS audit defense, Representing litigants in contract disputes, employment tracing, unfair advertising, unfair competition, valuation of law and medical malpractice in federal and state courts businesses, and wrongful termination. See display ad for 37 years. Extensive publication and lecture experi- on page 49. ence. LAND SURVEYING LAW OFFICES OF CHRISTOPHER ROLIN 5707 Corsa Avenue, Suite 106, Westlake Village, CA O’MALLEY ENGINEERING CORPORATION 91362, (818) 707-7065, fax (818) 735-9992, e-mail: 650 East Chase Drive, Corona, CA 92881, (951) [email protected]. Web site: www.chrisrolin.com. 734-0633, fax (951) 737-9487. Web site: www Contact Christopher Rolin. Christopher Rolin is a .omalleyengineering.com. Contact James O’Malley. highly effective trial attorney with over 43 years of trial Mr. James O’Malley PE, LS, JD a civil engineer and land activity in civil litigation. His area of emphasis is attorney surveyor, has 40 years experience designing and build- malpractice, focusing on the applicable community stan- ing land developments with particular expertise in dard of care for practicing attorneys in the litigation and boundary disputes, drainage issues, entitlements and business areas. His trial experience has resulted in processing. The fundamental element in drainage cases numerous assignments as an expert witness on trial and is determining why the damage occurred and knowing standards of care issues. He has been retained as an who is responsible for that. His knowledge of the permit- expert by both plaintiffs and defendants in legal malprac- ting and construction process and understanding of tice cases. He is also an expert in fee disputes cases legal issues is helpful when putting a case together. including cases before the State Bar and Superior Court. LAW FIRM ISSUES LEGAL PRACTICE BERNE ROLSTON, PC JOEL MARK 2245 South Beverly Glen Boulevard, Suite 303, Los NORDMAN CORMANY HAIR & COMPTON LLP Angeles, CA 90064, (424) 208-3820, fax (424) 208- 1000 Town Center Drive, 6th Floor, Oxnard, CA 93936, 3455, e-mail: [email protected]. Web site: www.rolston (805) 988-8300, fax (805) 988-7700, e-mail: jmark .net. Contact Berne Rolston. Services available: @nchc.com. Web site: www.nchc.com. Contact Joel Expert advice and guidance regarding the organization Mark. Mr. Mark has had in excess of 30 matters as an of law firms, including mergers, and acquisitions; and expert witness in attorney malpractice cases, attorneys’ where necessary providing testimony concerning, or fee disputes and cases involving issues of attorney assistance in resolving, issues or disputes between law ethics. He served 11 years on the State Bar Committee firm members or between present or former law firm on Mandatory Fee Arbitration, a term on the State Bar member(s) and firm(s). See display ad on page 65. ■ Committee on Professional Responsibility and Conduct, EVALUATION LEGAL MALPRACTICE and has been appointed as an expert consultant by the Los Angeles Superior Court. ■ TESTING LAW OFFICES OF PHILLIP FELDMAN 14401 Sylvan Street, Suite 208, Van Nuys, CA MARKETING/ADVERTISING/MEDIA 91401, (818) 986-9890, fax (818) 986-1757, e-mail: ■ LARRY STEVEN LONDRE/LONDRE TREATMENT [email protected]; StateBarDefense@aol MARKETING .com; [email protected]. Web sites: www CONSULTANTS, LLC/ USC/ CSUN Neurology and Electromyography .LegalMalpracticeExperts.com; www.LegalEthicsExperts 11072 Cashmere Street, Second Floor, Los Angeles, .com. Contact Phillip Feldman. Certified Specialist Neurotoxicology CA 90049, (310) 889-0220, fax (310) 889-0221, e-mail: Legal Malpractice ABPLA/ABA. Former judge pro tem— [email protected]. Web site: www Occupational/Environmental 25 years. Fee dispute arbitrator—31 years. Forty-one .LondreMarketing.com. Contact Larry Steven Londre. years ethics, bar prosecution/defense. Consulting Medicine Experienced expert in marketing, advertising, media, expert. Testifying expert 29 years: standard of care, cau- communication, advertising agencies, business, trade- sation, fiduciary duties, professional responsibility and marks, and global marketing. Also senior lecturer at ethics, and fee disputes. Any underlying case-litigation, TEL 415.381.3133 / FAX 415.381.3131 USC, CSUN, UCLA and Pepperdine Universities. transaction, family, administrative, state or federal. For- E-MAIL [email protected] mer accountant. Degrees: BS, MBA. Former managing MARKETING AND SURVEY RESEARCH www.neoma.com partner plaintiff and defense firms. Also State Bar Defense Counsel and preventative law. MMR STRATEGY GROUP 16501 Ventura Blvd. Suite, Suite 601, Encino, CA LAWRENCE H. JACOBSON, ESQ. San Francisco 91367, (818) 464-2400, fax (818) 464-2399, e-mail: 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA [email protected]. Web site: www.mmrstrategy Sacramento 90212, (310) 271-0747, fax (310) 271-0757, e-mail: .com. Contact Cheryl Jaffe. MMR Strategy Group [email protected]. Web site: www.lawrencejacobson (MMR) provides trial ready surveys, rebuttals, and expert Petaluma .com. Expert witness: lawyer malpractice in business witness services in marketing for intellectual property liti- and real estate transactions, standard of care for real Richmond gation. Our studies measure consumer attitudes and estate brokers and mortgage brokers, and real estate behaviors for matters involving topics such as confusion, document custom and usage. Practicing real estate and Eureka secondary meaning, deceptive advertising, dilution, and business law in California since 1968. See display ad claim substantiation. We work on matters involving on page 61. trademarks, copyrights, advertising, pricing, and other JOEL MARK intellectual property issues. MMR principals have exten- NORDMAN CORMANY HAIR & COMPTON LLP sive experience and top-tier credentials, and the firm has 1000 Town Center Drive, 6th Floor, Oxnard, CA 93936, been in business for more than 35 years. (805) 988-8300, fax (805) 988-7700, e-mail: jmark @nchc.com. Web site: www.nchc.com. Contact Joel MECHANICAL ENGINEERING Mark. Mr. Mark has had in excess of 30 matters as an CTG FORENSICS, INC. expert witness in attorney malpractice cases, attorneys’ 16 Technology Drive, Suite 109, Irvine, CA 92618, fee disputes and cases involving issues of attorney JONATHAN S. RUTCHIK, MD, MPH (949) 790-0010, fax (949) 790-0020, e-mail: mlewis ethics. He served 11 years on the State Bar Committee @CTGforensics.com. Web site: www.CTGforensics on Mandatory Fee Arbitration, a term on the State Bar 20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941 .com. Contact Dr. Malcolm Lewis, PE. Construction-

62 Los Angeles Lawyer April 2010 related engineering, plumbing, mechanical (heating, ven- BOARD CERTIFIED ORTHOPEDIC SURGEON tilating, 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. MARC J. FRIEDMAN, M.D. MEDICAL 6815 Noble Avenue, Van Nuys, California 91405 AMFS MEDICAL EXPERTS NATIONWIDE Tel. 818.901.6600 ext. 2810 • Fax: 818.901.6685 • Email: [email protected] 6425 Christie Avenue, Suite 260, Emeryville, CA 94608, Web Site: www.scoi.com (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 con- Education: Princeton University and Cornell Medical School sulting company. We are a trusted partner with the legal community and provide a superior method of retaining Certificate: Board Certified Orthopedic Surgeon medical experts. Since 1990, we have provided board- Memberships: Fellowship Sports Medicine certified experts in over 10,000 malpractice and personal injury cases with a 92% win-rate compared to the Fellow American Academy of Orthopedic Surgeons industry average of 28%. • 8,500+ experts in 250+ spe- Fellow in the Arthroscopy Association of North America cialties, • Practicing physicians with legal experience, • Fellow in the International Arthroscopy Association No cost attorney consultations, • Record review and Fellow in the International Knee Society testimony, • Independent Medical Examinations (IME) Fellow in the American Orthopedic Society of Sports Medicine and Autopsies, • Essential affidavits and reporting. Free attorney consultations. Discuss your case at no charge ACL Study Group with a physician who will identify and clarify your case Certified QME, IME, AME issues to ensure you retain the appropriate specialists. Specialties: Case reviews for merit. Have your case reviewed for Sports Medicine, Arthroscopic and Reconstructive Surgery of merit in roundtable fashion by a multidisciplinary panel of the Knee and Shoulder, and Knee Replacement practicing, board-certified physicians. Review and select Appointments: expert CVs. Our experience, resources, and large propri- Assistant Clinical Professor, Division of Orthopedics, etary database enable us to quickly identify and interview UCLA School of Medicine, Chairman, Education Committee a large number of potential medical experts on your Arthroscopy Association of North America 1997-1999 behalf and provide you with the CVs of those who are World Cup Soccer Team Physician, 1985 best suited to your case. See display ad on page 44. Physician Specialist XXIII Olympiad 1984 E. ANN MYERS MD, FACP, FACE Orthopedic Consultant–New York Knicks and Jets 1978-1985 2245 Hayes Street, Suite 505, San Francisco, CA 94117, (415) 668-6764, fax (415) 668-8248, e-mail: Publications: 60 Publications including handbook for Orthopedic Surgeons [email protected]. Carefully researched on Prosthetic Ligament Reconstruction of the Knee endocrine opinions with references. Majority of the expert’s time spent in clinical practice and quality Presentations: Lectures extensively with over 375 presentations worldwide improvement measures at St. Mary’s Hospital, a CHW member. 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: [email protected]. Web site: www.tasamed.com. THE BEST LEGAL MINDS Contact Linda Bartorillo. FIND THE TESTIFYING OR CONSULTING MEDICAL EXPERT YOU NEED quickly IN THE COUNTRY with one call or click to TASAmed. We refer superior, independent, experienced medical experts—including hard-to-find-specialists—for case merit reviews, testi- TALK TO US mony at deposition or trial, 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 inter- • Metallurgical Failures • Bio-Medical/Orthopedic Implants views with experts. • No charge unless you designate or engage an expert we refer • Plaintiff or defense • Local, • Corrosion & Welding Failures • Plumbing/Piping/ABS Failures regional, national referrals. • Exceptional personal service. 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Contact Henry ADVANCED MATERIALS, INC. Fee, MD. Graduated Harvard Medical School. Resi- Testing & Research Labs dency Johns Hopkins and UCLA. Expert witness in adult heart and lung surgery for the defendant or the plaintiff. 2528 W. Woodland Drive Twenty-five years of experience in medical legal field. Anaheim, CA 92801 Full-time surgical practice in private hospital. ■ TEL: (714)527-7100 MEDICAL/DERMATOLOGY ■ FAX: (714)527-7169 BIERMAN FORENSIC DERMATOLOGY ■ www.karslab.com ■ email: [email protected] 2080 Century Park East, #1008, Los Angeles, CA

Los Angeles Lawyer April 2010 63 90067, (310) 553-3567, fax (310) 553-4538, and reconstructive surgery of the breast, nose, face, MEDICAL LEGAL e-mail: [email protected]. Web site: www eye, and body. Well-published author of several text- .biermandermatology.com. Contact Stanley Bierman, book chapters and journal articles related to above top- ROUGHAN & ASSOCIATES AT LINC, INC. MD. Dr. Bierman is an expert witness in matters relating ics. Extensive experience in medical malpractice case 114 West Colorado Boulevard, Monrovia, CA 91016, to diagnosis and treatment of skin cancers including review, consultation, written evaluation and testimony in (626) 303-6333, fax (626) 303-8080, e-mail: janr@linc melanoma. He is an acknowledged expert in legal mat- depositions and trial for plaintiff and defense. Articulate .biz. Contact Jan Roughan at ext. 16. Specialties: ters relating to sexually transmitted diseases. Dr. Bier- subspecialty consultant with up-to-date knowledge and Roughan and Associates at LINC is a case management man is honorary associate professor of medicine and expertise of plastic surgery literature and standards of and medical/legal consulting firm. Services/products past president of Los Angeles Dermatologic Society. care. Opinions supported by extensive subspecialty edu- offered include: 1) Expert Testimony, 2) Life Care Plan cation, training, and experience. (LCP) Construction/LCP Critique, 3) Medical Record BRUCE WAPEN, MD Organization/Summarization/Analysis, 4) Medical Bill EMERGENCY MEDICINE EXPERT MEDICAL/TOXICOLOGY Auditing, 5) Expert Witness Identification, 6) IME Atten- 969-G Edgewater Boulevard, Suite 807, Foster City, CA dance, 7) Video Services (e.g., Day In Life, Settlement 94404-3760, (650) 577-8635, fax (650) 577-0191, JONATHAN S. RUTCHIK, MD, MPH, QME Brief, IME Evaluation, NDT/PT Evaluation, etc.), 8) Ques- e-mail: [email protected]. Web site: www 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA tions for: Deposition/Cross Examination 9) Medical/Psy- .DrWapen.com. Contact Bruce Wapen, MD. Board- 94941, (415) 381-3133, fax (415) 381-3131, e-mail: chiatric Case Management. See display ad on page certified emergency physician and experienced teacher/ [email protected]. Web site: www.neoma.com. 61. public speaker offers consultation, chart review, and tes- Jonathan S. Rutchik, MD, MPH is a physician who is timony as an expert witness for defense or plaintiff board certified in both Neurology and Occupational and MEDICAL MALPRACTICE involving litigation arising from the emergency depart- Environmental Medicine. He provides clinical evaluations ment. and treatment, including electromyography, of individu- GRAHAM A. PURCELL, MD, INC. als and populations with suspected neurological illness ASSISTANT CLINICAL PROFESSOR MEDICAL/NEUROLOGY/PERSONAL INJURY secondary to workplace injuries or chemical exposure. ORTHOPAEDIC SURGERY, UCLA Services include medical record and utilization review 3600 Wrightwood Drive, Studio City, CA 91604, ANDREW WOO, MD, PHD and consulting to industrial, legal, government, pharma- (818) 985-3051, fax (818) 985-3049, e-mail: expert 2021 Santa Monica Boulevard, Suite 525-E, Santa ceutical, and academic institutions on topics such as @gpurcellmd.com. Web site: gpurcellmd.com. Contact Monica, CA 90404, (310) 829-2126, fax (310) 998- metals and solvents, mold illness, Persian Gulf War syn- Graham A. Purcell, MD. Dr. Purcell is a board certified 8887. Contact Gail. Board-certified neurology, clinical drome, musicians’ injuries, and others. See display ad orthopedic surgeon, subspecialty in spinal disorders assistant professor UCLA, personal injury, pain, carpal on page 62. affecting adults and children. Examples of spinal disor- tunnel, spine, memory, seizure, sleep, and clinical proto- ders treated by Dr. Purcell include disc diseases, steno- cols. Multiple sclerosis, migraine, and stroke. Education: MEDICAL/UROLOGY sis, infections, tumors, injuries, and deformities including AB Cornell University, MD and PhD Brown University; scoliosis. He possesses 30 years of orthopedic and 22 residency + EMG/EEG fellowship UCLA; Advisory DUDLEY SETH DANOFF, MD, FACS years of med-legal experience, including defense, plain- Boards: L.A. Neurologic Society, St. John’s Sleep Lab; Cedars-Sinai Medical Center, 8635 West 3rd Street, tiff, insurance carriers, CA Attorney General’s office and honors: America’s Top Physicians (Consumer Research Suite One West, Los Angeles, CA 90048, (310) 854- Public Defender’s office. Expert testimony pertains to Consul of America) 2005, 2006, 2007, Who’s Who in 9898, fax (310) 854-0267, e-mail: [email protected]. Web med-mal, personal injury, and workers’ compensation Medicine (2001) and science/engineering (1993), inter- site: www.towerurology.com. Contact Dudley Seth cases. As a qualified medical evaluator, Dr. Purcell has national electrophysiology Young Investigator (1997), Danoff, MD, FACS. Experience in urologic case review extensive experience in performing QMEs, AMEs, IMEs, UCLA Neurology Teaching Awards (1994, 1996, 2006), and testimony for plaintiff and defense, court experience, WC evals. See display ad on page 65. American Academy Neurology Research (1991), Brown and strategies. Extensive expertise in prostate, bladder, University Sigma XI (1989), and research/publications and kidney cancers; kidney transplantation; pelvic MEDICINE AND HEALTH (22), lectures (482). trauma; sexual dysfunction; penile implants; inconti- nence; infections; and stone disease. Publishing experi- ALS MEDICAL CONSULTANT MEDICAL/NEUROLOGY AND SLEEP ence in scientific journals, books, lectures, training semi- 10940 Trinity Parkway, Suite C-336, Stockton, CA CENTER nars, and course directorships. Princeton University, 95219, (209) 992-1272, fax (209) 478-8358, e-mail: Summa Cum Laude; Yale Medical School; Columbia [email protected]. Contact Ed A. Rodriguez. MOHSEN M. HAMZA, MD. University urologic training; Major, U.S. Air Force; Who’s Why hire a certified Legal nurse Consultant? A certified 11600 Wilshire Boulevard, Suite 420, Los Angeles, CA Who in America; Academic appointment. Detailed CV legal nurse consultant(CLNC) is a registered nurse who 90025, (310) 477-7201, fax (310) 575-0973, e-mail: available. has the expertise to quickly pinpoint and interpret med- [email protected]. Web site: www.neurologycenter ical and nursing issues in any case involving health, .org. Contact Mohsen M. Hamza, MD. General neu- MEDICAL/VASCULAR SURGERY illness or injury including: workers compensation/ rology, head injury, toxicological neurology, back pain, medicare fraud, personal injury, elder care probate, industrial neurology, sleep disorders, and neck injury. ROBERT WAGMEISTER, MD, FACS medical, or nursing malpractice, and criminal cases. We 2001 Santa Monica Boulevard, #690-W, Santa Monica, can also prepare interrogatories, deposition questions, MEDICAL/RHEUMATOLOGY CA 90404, (310) 828-5626, fax (310) 828-2826, e-mail: and requests for production. [email protected]. Contact Robert Wagmeister, MD, JEFF SARKOZI, MD, F.R.C.P.C., F.A.C.R. FACS. Vascular surgery: diseases, trauma, and surgery Fibromyalgia Polypain Arthritis Center, 801 North Tustin METALLURGICAL AND CORROSION of the circulation, both arterial and venous. Includes Avenue, Suite 503, Santa Ana, CA 92705, (714) 973- ENGINEER approach for lumbar spine surgery, carotid surgery, 4636, fax (714) 973-4776, e-mail: expert@fmpolypain aneurysms, bypass surgery, dialysis surgery, amputa- KARS ADVANCED MATERIALS, INC. .com. Web site: www.fmpolypain.com. Services avail- tions, pulmonary embolus, and phlebitis, access for Testing and Research Labs, 2528 West Woodland able: specialty rheumatology expertise in fibromyalgia anterior lumbar spine surgery. Special certification in Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax and chronic widespread pain as well as arthritis, syn- vascular surgery. Member of Southern California Vascu- (714) 527-7169, e-mail: [email protected]. Web site: dromes of chronic fatigue, and pain. Rheumatoid arthri- lar Surgery Society, Society for Vascular Surgery, Soci- www.karslab.com. Contact Drs. Ramesh J. Kar or tis, osteoarthritis, neck pain, back pain, lupus, sclero- ety for Clinical Vascular Surgery and Peripheral Vascular Naresh J. Kar. Southern California’s premier materi- derma, Rayraud’s syndrome, ankylosing spondylitis, Surgery Society. Extensive experience, numerous cases als/mechanical/metallurgical/structural/forensics labora- myositis, and reflex dystrophy. Extensive consultation, each year, depositions, expert witness; court appear- tory. Registered professional engineers with 20-plus case review, analysis, IME/AME, deposition, trial experi- ance as required. Birth date: May 16, 1949. MD, Tufts years in metallurgical/forensic/structural failure analysis. ence especially involving industrial/occupational/environ- Medical School, 1974. Experienced with automotive, bicycles, tires, fire, paint, mental/post-traumatic/disability claims of fibromyalgia, plumbing, corrosion, and structural failures. We work on chronic widespread pain, reflex dystrophy, syndromes of MEDICAL DEVICES both plaintiff and defendant cases. Complete in-house chronic fatigue and pain, arthritis, connective tissue, and capabilities for tests. Extensive deposition and court- other rheumatologic diseases as well as rheumatology FALLBROOK ENGINEERING room experience (civil and criminal investigations). Princi- medical malpractice issues. 355 West Grand Avenue, Suite 4, Escondido, CA pals are fellows of American Society for Metals and 92025, (760) 489-5400, fax (760) 489-5412, e-mail: board-certified diplomates, American Board of Forensic MEDICAL/PLASTIC AND COSMETIC [email protected]. Web site: www.fallbrook- Examiners. See display ad on page 63. RECONSTRUCTIVE SURGERY eng.com. Contact Richard P. Meyst. Fallbrook Engi- neering provides expert witness services in the areas of JOHN M. SHAMOUN, MD, FACS, INC. METALLURGY IP (patent infringement, invalidity, claim construction and 360 San Miguel, Suite 406, Newport Beach, CA trade dress), personal injury, product liability, and prod- KARS ADVANCED MATERIALS, INC. 92660, (949) 759-3077, fax (949) 759-5458, e-mail: uct failure analysis. Our professionals have represented Testing and Research Labs, 2528 West Woodland [email protected]. Web site: www.ideallook.com. both plaintiff and defendant. We have done analysis, Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax Contact Yvonne. Specialties: only plastic surgeon in prepared declarations, been deposed, and testified in (714) 527-7169, e-mail: [email protected]. Web site: the United States board certified by the 1) American court. We have years of design and development experi- www.karslab.com. Contact Drs. Ramesh J. Kar or Board of Surgery, 2) American Board of Plastic Surgery, ence making us effective expert witnesses in all matters Naresh J. Kar. Southern California’s premier materi- 3) American Board of Facial Plastic and Reconstructive involving medical devices. Visit our Web site at als/mechanical/metallurgical/structural/forensics labora- Surgery, and 4) American Board of Forensic Medicine. www.fallbrook-eng.com. tory. Registered professional engineers with 20-plus Extensive experience in all aspects of cosmetic, plastic, years in metallurgical/forensic/structural failure analysis.

64 Los Angeles Lawyer April 2010 Experienced with automotive, bicycles, tires, ﬁre, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Princi- pals are fellows of American Society for Metals and board-certiﬁed diplomates, American Board of Forensic Examiners. See display ad on page 63. LAW FIRM ISSUES SEAL LABORATORIES 250 North Nash Street, El Segundo, CA 90245, (310) 322-2011, fax (310) 322-2243. E-mail: akumar@seallabs organization — disputes — advice .com. Web site: www.seallabs.com. Contact Arun Kumar, PhD, president. Materials failure analysis, product liability, and patent infringement support. Case ROLSTON.NET evaluation, analytical support, and expert witness testimony. Metals, composites, plastics, and glass. Air- planes, autos, helicopters, motorcycles, consumer products, medical devices, prostheses and implants, and electrical components. Analysis of failure due to fatigue, overload, corrosion, wear, or manufacturing/material defect.

METALLURGICAL/CONCRETE Matthew Lankenau NEFF MATERIALS CONSULTING 213-996-2549 10833 Braddock Drive, Culver City, CA 90230, (310) [email protected] 612-0222, fax (310) 839-2385, e-mail: mtlrgist@aol .com. Web site: www.michaelnefffassociates.com. Contact Michael Neff SM PE. Consulting and labora- URS is the nation’s largest engineering, consulting and construction tory testing related to materials failure, patent disputes, services firm. URS specializes in the resolution of construction disputes. product liability, and construction defect litigation. METEOROLOGY Dispute Resolution & Forensic Analysis Technical Expertise Design/Construction Claims Architecture AIR, WEATHER, AND SEA CONDITIONS, INC. Environmental Claims Engineering P.O. Box 512, Pacific Palisades, CA 90272, (818) 645- Bid/Cost/Damage Analysis Scheduling 8632, fax (310) 454-7569, e-mail: [email protected]. Construction Defect Analysis Construction Management Web site: www.weatherman.org. Contact Jay Rosen- Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing thal, AMS Certified Consulting Meteorologist Expert Witness Testimony Environmental (CCM). Experienced and authoritative expert testimony, Insurance/Bond Claims Geotechnical reports and analyses of wind, rain, storms, climatic conditions, flooding, waves; specialist in auto/boat/ship/aircraft accident reconstruction, property damage, slip and falls, construction, mold issues, homeland security applications, air pollution, transport, and risk identification. Movie industry applications, cinematography, and visual effects. Determining unusualness, normalcy, and foreseeability. Official data, site visits, clear and convincing testimony. See display ad on page 44. OBSTETRICS and GYNECOLOGY BERNARD WEISS, MD, FACOG, FACS Twenty-two years plaintiff & defense experience Department of OB/GYN, Harbor-UCLA, 1000 West Car- son Street, Box 3, Torrance, CA 90509, (310) 977-7003, fax (310) 544-1171, e-mail: [email protected]. Contact Bernard Weiss, MD. Assistant clinical professor David Geffen School of Medicine at UCLA, department of OB/GYN at Harbor-UCLA Medical Center. ’ Thirty-four years of private practice of OB/GYN, last 10 years in academic practice of OB/GYN, teaching resi- dents, medical students and actively participating in the ’ , CA Attorney hands on care of patients with special interest in gyne- General’s Office cologic surgery and family planning. Experience includes both plaintive and defense cases. OPHTHALMOLOGY ALAN L SHABO, MD Clinical Professor of Ophthalmology, UCLA and Chief of Ophthalmology, Cedars Sinai Medical Center, 10921 Wilshire Boulevard, Suite 1205, Los Angeles, CA 90024, (310) 824-9661, fax (310) 824-9867, e-mail: ashabo @hotmail.com. Contact Alan L. Shabo, MD. Special- ties: comprehensive ophthalmology, cataract surgery, glaucoma, diabetic retinopathy, eye injuries, and eye diseases and treatments. Education: 1966 BA, UCLA, Phi Beta Kappa; 1968 MS UCLA Anatomy; 1969 MD, UCLA School of Medicine, Alpha Omega Alpha; Certification/ licenses: American Board of Ophthalmology, 1976. Pre- vious positions/appointments: 1975-1985 Coprincipal investigator, NIH Early Treatment Diabetic Retinopathy Study; 1985-1995 Board of Directors, Center for the Partially Sighted; 1995-1996. 1998 president, UCLA Dept. of Ophthalmology Association; 1985-present Clini- cal Professor of Ophthalmology, UCLA/Jules Stein Eye Institute; 2001-2008 Chief of Ophthalmology, Cedars

Los Angeles Lawyer April 2010 65 Sinai Medical Center. Honors/Awards: Achievement (autism), healthcare of foster children, and custody eval- POLICE PROCEDURES/PRACTICES EXPERT Award for College Scientists; Manpower Award, uation for pediatric concerns. Research to Prevent Blindness; Helmholtz Award, Asso- TT WILLIAMS JR, INVESTIGATIONS INC. ciation for Research in Vision and Ophthalmology; PERSONAL INJURY 445 South Figueroa Street, Suite 2700, Los Angeles, CA Upjohn Achievement Award for Scholarship and 90071, (213) 489-6831, fax (213) 426-2151, e-mail: GRAHAM A. PURCELL, MD, INC. Research; Founder’s Award, Center for the Partially [email protected]. Web site: www.ttwilliamspi.com. ASSISTANT CLINICAL PROFESSOR Sighted; Special proclamation/Commendation from Contact Timothy T Williams Jr., CEO. Police proce- ORTHOPAEDIC SURGERY, UCLA County of Los Angeles for contributions to benefit its citi- dure expert, use of force and domestic violence expert 3600 Wrightwood Drive, Studio City, CA 91604, zens; UCLA Irvine Prize for highest traditions of medical as it relates to police procedure issues in both state and (818) 985-3051, fax (818) 985-3049, e-mail: expert profession. Publications: author of over 50 research federal courts. Retired LAPD Senior Detective Supervisor @gpurcellmd.com. Web site: gpurcellmd.com. Contact papers, scientific journal articles, book chapters, maga- from the elite Robbery-Homicide Division. Twenty-nine Graham A. Purcell, MD. Dr. Purcell is a board certified zine and newspaper articles. Membership in professional plus years of active law enforcement experience, with orthopedic surgeon, subspecialty in spinal disorders societies: fellow, American Academy of Ophthalmology. over twenty-six years conducting and supervising inves- affecting adults and children. Examples of spinal disor- Diplomate, American Board Ophthalmology, Examiner, tigations including homicide, robbery, domestic violence, ders treated by Dr. Purcell include disc diseases, steno- American Board of Ophthalmology. Extensive legal child abuse, assault, sexual assault, burglary, auto theft, sis, infections, tumors, injuries, and deformities including experience. juvenile, and narcotics investigations. Degree/Licenses: scoliosis. He possesses 30 years of orthopedic and 22 P.O.S.T. Supervisory Leadership Institute; West Point ORTHOPEDIC SURGEON years of med-legal experience, including defense, plain- Leadership Program; Basic, Intermediate, Advanced and tiff, insurance carriers, CA Attorney General’s office and Supervisor P.O.S.T. Certificates; PI 23399; PPO 14771. ROBERT A. BAIRD, MD Public Defender’s office. Expert testimony pertains to 16300 Sand Canyon Avenue, Suite 511, Irvine, CA med-mal, personal injury, and workers’ compensation POLYGRAPH 92618, (949) 727-3636, fax (949) 727-1883, e-mail: rb cases. As a qualified medical evaluator, Dr. Purcell has @rbairdmd.com. Contact Debbie Black. Former U.C. extensive experience in performing QMEs, AMEs, IMEs, JACK TRIMARCO & ASSOCIATES Irvine and V.A. chief of orthopedic surgery with special WC evals. See display ad on page 65. POLYGRAPH INC. expertise in trauma and spinal conditions. Available for 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA WHITE, ZUCKERMAN, WARSAVSKY, LUNA, case consultation and expert testimony. Extensive CV 90212, (310) 247-2637, e-mail: [email protected]. Web WOLF AND HUNT including expert qualification in orthopedic biomechan- site: www.jacktrimarco.com. Contact Jack Trimarco. 14455 Ventura Boulevard, Suite 300, Sherman Oaks, ics. Former manager of the Federal Bureau of Investigation’s CA 91423, (818) 981-4226, fax (818) 981-4278; 363 polygraph program in Los Angeles. Former Inspector MARC J. FRIEDMAN, MD San Miguel Drive, Suite 130, Newport Beach, CA General Polygraph Program—Department of Energy. 6815 Noble Avenue, Van Nuys, CA 91405, (818) 901- 92660, (949) 219-9816, fax (949) 219-9095; 831 State Nationally known and respected polygraph expert. I 6600, fax (818) 901-6685, e-mail: [email protected]. Street, Suite 291, Santa Barbara, CA 93101, (805) 648- have the credentials you would want when you have a Web site: www.scoi.com. Contact Holly Robinson, 4088, fax (805) 963-4088, e-mail: [email protected]. client polygraphed, a case reviewed, or a motion made Ext 2810. Orthopedic shoulder and knee, consulting, Contact Barbara Luna or Bill Wolf. Expert witness regarding polygraph. My unique background allows me and expert witness testimony. IME, AME, QME and testimony for complex litigation involving damage analy- to bring the highest levels of service and expertise to any workers’ compensation evaluations. See display ad on ses of lost profits, unjust enrichment, reasonable royal- polygraph situation. Current member of the board of page 63. ties, lost earnings, lost value of business, forensic directors and chairman of the Ethics Committee, Califor- accounting, fraud investigation, investigative analysis of STEVEN R. GRABOFF, MD nia Association of Polygraph Examiners (CAPE). Hun- liability, marital dissolution, and tax planning and prepa- 17752 Beach Boulevard, Suite 202, Huntington dreds of appearances on national TV, including Dr. Phil, ration. Excellent communicators with extensive testi- Beach, CA 92647, (714) 843-0019, fax (714) 841-1280, Oprah, Greta, Nancy Grace, O’Reilly Factor, and Hannity mony experience. Prior Big Four accountants. Special- e-mail: [email protected]. Web site: and Colmes. Degrees/licenses: BS Psychology; Certified ties include accounting, breach of contract, business http://OthopedicExpertWitness.com. Contact Laurie APA, AAPP, CAPE, AAFE. See display ad on page 17. interruption, business dissolution, construction defects, Rye or Sheri Haynes. Orthopedic expert witness, med- delays, and cost overruns, fraud, insurance bad faith, ical legal consulting services, independent medical PROBATE LAW intellectual property including trademark, patent, and exam, medical legal record review, forensic analysis and copyright infringement, and trade secrets, malpractice, HONORABLE ANITA RAE SHAPIRO reporting, certificate of merit, expert witness testimony in marital dissolution, personal injury, product liability, real Superior Court Commissioner (Retired), P.O. Box personal injury, and medical malpractice. estate, tax planning and preparation, IRS audit defense, 1508, Brea, CA 92822-1508, e-mail: privatejudge RICHARD C. ROSENBERG, MD tracing, unfair advertising, unfair competition, valuation of @adr-shapiro.com. Web site: http://adr-shapiro.com. 18370 Burbank Boulevard, Suite 614, Tarzana, CA businesses, and wrongful termination. See display ad Retired Los Angeles Superior Court commissioner (15 91356, (818) 996-6800, fax (818) 996-2929, e-mail: on page 49. years) available to serve as a probate expert witness in [email protected]. Web site: www.drrosenberg.com. cases involving wills and trust issues. Presided in Long Orthopedic surgery, sports medicine, and physical ther- PLUMBING Beach Probate Department five years. See display ad apy. Experienced in IME, QME, agreed medical exams, on page 12. CTG FORENSICS, INC. med/legal reports, and expert witness testimony. Per- 16 Technology Drive, Suite 109, Irvine, CA 92618, sonal injury and workers’ compensation. Additional PROCESS SERVER (949) 790-0010, fax (949) 790-0020, e-mail: mlewis offices in Oxnard, and Santa Ana, California. @CTGforensics.com. Web site: www.CTGforensics BENCHMARK INVESTIGATIONS 32158 Camino Capistrano, # A-415, San Juan Capis- PATENTS .com. Contact Dr. Malcolm Lewis, PE. Construction- related engineering, plumbing, mechanical (heating, ven- trano, CA 92675, (800) 248-7721, fax (949) 248-0208, FALLBROOK ENGINEERING tilating, A/C) and electrical (power, lighting), energy sys- e-mail: [email protected]. Web site: www 355 West Grand Avenue, Suite 4, Escondido, CA tems, residential and nonresidential buildings, .BenchmarkInvestigations.com. Contact JimZimmer, 92025, (760) 489-5400, fax (760) 489-5412, e-mail: construction defects and delay analysis, cost to repair, CPI. National agency. Professional investigations with [email protected]. Web site: www construction claims, mold, and green/LEED buildings. emphasis upon accuracy, detail, and expedience. Asset/ .fallbrook-eng.com. Contact Richard P. Meyst. financial searches, background investigation, DMV Fallbrook Engineering provides expert witness services PODIATRY—FOOT SPECIALIST searches, domestic/marital cases, due diligence, in the areas of IP (patent infringement, invalidity, claim process service, surveillance/photograph, witness loca- STEVEN L. ROSENBERG, DPM construction and trade dress), personal injury, product tion, and statements. LA branch plus correspondents 2901 Wilshire Boulevard, Suite 110, Santa Monica, CA liability, and product failure analysis. Our professionals nationwide. Multilingual agents. Fully insured. California 90403, (310) 828-3336, fax (310) 828-0096, e-mail: have represented plaintiffs and defendants. We have PI license PI 12651. [email protected]. Web site: www.rosenbergstevendpm done analysis, prepared declarations, been deposed, .com. Expert witness, plaintiff and defense, IME, podi- and testified in court. We have years of design and PSYCHIATRY/PSYCHOLOGY atric surgery, medicine, sports medicine, trauma injuries development experience making us effective expert wit- and pain management. Second opinion reports, x-ray BRIAN P. JACKS, MD nesses in all matters involving medical devices. Visit our review, and evaluations. Treating all ages, infants, chil- 462 North Linden, Suite 441, Beverly Hills, CA 90212, Web site at www.fallbrook-eng.com. dren and adults. Over 26 years of experience. (310) 274-0684, e-mail: [email protected]. Contact Patricia Valenzuela. Clinical Professor of Psychiatry PEDIATRIC EXPERT WITNESS POLICE USC. Over 25 years of trial experience in child sex MICHAEL WEINRAUB, MD abuse, workers’ compensation, personal injury, malprac- DANIEL R. SULLIVAN, DEPUTY CHIEF, 515 South Flower Street, Suite 3600, Los Angeles, tice, PTSD, psychopharmacology, sex harassment, dis- LAPD, RET. CA 90071, (213)236-3662, fax (213)236-3663, email: crimination, child custody, neuropsychiatry and (head 39432 Narcissus Way, Palm Desert, CA 92211, (818) [email protected]. Contact Dr. Michael Wein- injury). Board Certified: Adult (1974); Child-Adolescent 590-2486, e-mail: [email protected]. Web raub. Board Certified Pediatrician. Child abuse and 1976. site: www.investigativeservices.com. Contact Dan neglect, Munchausen Syndrome by Proxy, Shaken Baby Sullivan. Expert witness—use of force/police practices, NINA T. RODD, PH.D., DABPS Syndrome (SBS), lead poisoning, Fetal Alcohol Spec- event/facility security—consultant to cities of Los Ange- 609 Deep Valley Drive, Suite 200, Rolling Hills Estate, trum Disorder (FASD), pediatric malpractice, childhood les, Beverly Hills, U.S. Department of Justice. Qualified CA 90274, (310) 378-7172, fax (310) 265-4499, e-mail: injury and product liability, developmental disabilities as expert over 150 times in superior/federal courts. [email protected]. Web site: www.psych-expert.com.

66 Los Angeles Lawyer April 2010 Contact Dr. Nina Rodd. Employment cases including sexual harassment and discrimination, personal injury, Others get too wrapped up medical malpractice, post-traumatic stress disorder, and depressive or anxiety disorders. in the numbers. We discover QUESTIONED DOCUMENTS and defi ne fi nancial value. RILE & HICKS, FORENSIC DOCUMENT EXAMINERS HOWARD C. RILE, JR. AND A. FRANK HICKS RGL Forensics is an international fi rm of accounting, 100 Oceangate, Suite 670, Long Beach, CA 90802- 4312, (562) 901-3376, fax (562) 901-3378. Web site: valuation and technology professionals who are www.asqde.org/rile or /hicks.htm. Diplomates, American specially trained to sort through the details and Board of Forensic Document Examiners. Members, ASQDE, SWAFDE, SAFDE; Fellow AAFS. Combined make sense of the data. 60+ years’ experience in examination and evaluation of disputed documents, including handwriting and signa- We specialize in litigation support services: tures (wills, deeds, checks, etc.) medical records, busi- pre-trial preparation, economic damage analysis, ness records, typewriting, printing, and/or other business machine processes, alterations, indentations, investigative accounting and embezzlement, obliterations, and ink and paper questions. Fully business valuation, fraud, business interruption, equipped darkroom and laboratory, including VSC-4C and ESDA. Testified more than 500 times. loss of earnings calculations, e-discovery, and expert witness testimony. REAL ESTATE ADVISORS/EXPERTS @ MCS ASSOCIATES 6OJUFE4UBUFT &VSPQF "TJB1BDJGJD 18881 Von Karman, Suite 1175, Irvine, CA 92612, Alan J. Lurie, CPA/CFF, CFE Henry J. Kahrs, CPA/ABV/ (949) 263-8700, fax (949) 263-0770, e-mail: experts Robert D. Jones, CBM, CFE CFF, CFE, CMA, CM @mcsassociates.com. Web site: www.mcsassociates .com. Contact Norman Katz, managing partner. 800 S. Figueroa Street, 625 City Drive South, Nationally recognized banking, finance, insurance, and Suite 980 Suite 290 real estate consulting group (established 1973). Experi- Los Angeles, CA 90017 Orange, CA 92868 enced litigation consultants/experts include senior local bankers, lenders, consultants, economists, accountants, 213.996.0900 714.740.2100 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, cover- rgl.com ages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance. STEPHEN B. FAINSBERT, ESQ., FAINSBERT MASE AND SNYDER, LLP 11835 West Olympic Boulevard, Suite 1100, Los Ange- les, CA 90064, (310) 473-6400, fax (310) 473-8702, e-mail: [email protected]. Contact Stephen B. Fainsbert. Expert testimony in real property exchanges (coauthor CEB publication Real Property Exchanges, 2nd ed.), real estate transactions, standard of care and practice for real estate brokers, escrow, and real estate Securities & Business Law attorneys, disclosures in purchase and sale agreements, SEC Enforcement Defense real estate financing, and secured real property transactions. International Business & Securities Class & Derivative Actions HOWARD N. GOULD FINESTONE & RICHTER Insider Trading 1875 Century Park East, Suite 1500, Los Angeles, NYSE, AMEX, FINRA Disciplinary Proceedings CA 90067, (310) 575-0800, ext. 249 fax (310) 575- 0170, e-mail: [email protected]. Web site: www Broker-Dealer, Investment Company & Investment Adviser Matters .frlawcorp.com. Attorney malpractice in residential real Liability Under Federal & State Securities Laws estate, residential brokerage issues, agent/broker Public & Private Offerings employment issues, broker and finder issues, corporate, LLC, partnership and shareholder disputes. Internet Securities LAWRENCE H. JACOBSON, ESQ. Securities Arbitration 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA Law Firm Liability 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 AV Rated, Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School. estate brokers and mortgage brokers, and real estate document custom and usage. Practicing real estate and 36 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission, business law in California since 1968. See display ad Washington D.C. Published Author of Securities Regulations, including eight volume treatise. on page 61. ALAN D. WALLACE, ESQ. 14011 Ventura Boulevard, Suite 406, Sherman Oaks, CA 91423, (818) 501-0133, fax (818) 905-6091, e-mail: [email protected]. Contact Alan D. Wallace, Esq. Wells Fargo Center • 333 S. Grand Avenue, Suite 1925 • Los Angeles, CA 90071 Expert witness and litigation consulting for general real estate matters, 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 Estate master instruc-

Los Angeles Lawyer April 2010 67 tor and author, adjunct professor Loyola Law School, Strong, Jr., Richard W. Dalbeck, Katie J. Galley, – EXPERT WITNESS – former CAR hotline attorney, university law professor in Elaine Harwood, Carlyn Irwin or Elisabeth Browne. real estate. Successfully testified in dozens of cases. Cornerstone Research provides attorneys with expert CONSTRUCTION See display ad on page 68 . testimony and economic and financial analyses in all phases of commercial litigation. We work with faculty WARONZOF ASSOCIATES, INC. and industry experts in a distinctive partnership that 41 YEARS 2250 East Imperial Highway, Suite 120, El Segundo, CA combines the strengths of the business and academic 90245, (310) 322-7744, fax (310) 322-7755. Web site: CONSTRUCTION EXPERIENCE worlds. Our areas of expertise include identifying and www.waronzof.com. Contact Timothy R. Lowe, MAI, supporting expert witnesses in intellectual property, CRE. Waronzof Associates provides real estate and antitrust, securities, entertainment, real estate, financial land use litigation support services including economic SPECIALTIES: institutions, and general business litigation. Lawsuit Preparation/Residential damages, lost profits, financial feasibility, highest and Construction, Single and Multi-family, best use, property value, enterprise value, partnership ROBERT C. ROSEN Hillside Construction, Foundations, interest and closely-held share value, fair compensation, Wells Fargo Center, 333 South Grand Avenue, Suite lender liability and reorganization plan feasibility. Profes- 1925, Los Angeles, CA 90071, (213) 362-1000, fax Vibration Trespass, Concrete, Floors, Tile, sional staff of four with advanced degrees and training in (213) 362-1001, e-mail: [email protected]. Stone, Retaining Walls, Waterproofing, real estate, finance, urban planning and accounting. See Web site: www.rosen-law.com. Specializing in securities Water Damages, Roofing, Sheet Metal, display ad on page 51. law, federal securities law enforcement, securities arbi- Carpentry/Rough Framing, Stairs, tration, and international securities, insider trading, Materials/Costs, Building Codes, RECEIVER NYSE, AMEX, NASD disciplinary proceedings, broker- Construction Contracts. dealer, investment company and investment adviser SALTZBURG, RAY & BERGMAN, LLP matters, liability under federal and state securities laws, 12121 Wilshire Boulevard, Suite 600, Los Angeles, CIVIL EXPERIENCE: public and private offerings, Internet securities, and law CA 90025, (310) 481-6700, fax (310) 481-6707, Construction defect cases for insurance firm liability. AV rated. Former chair, LACBA Business e-mail: [email protected]. Web site: www.srblaw.com. companies and attorneys since 1992 and Corporations Law Section; LLM, Harvard Law Contact David L. Ray, Esq. Specializes in handling School. More than 36 years practicing securities law, 12 complex receivership matters, such as partnership and years with the U.S. Securities and Exchange Commis- corporate dissolutions, including law firm dissolutions, sion, Washington, DC. Published author/editor of securi- and government enforcement receivership actions, COOK ties regulations, including multivolume treatises. See including actions brought by the California Department CONSTRUCTION COMPANY display ad on page 67. of Corporations, Department of Real Estate, Commodi- STEPHEN M. COOK ties Future Trading Commission, and Federal Trade SECURITY California Contractors License B431852 Commission. Nationally recognized in both the lender Nevada Contractors License B0070588 and litigation communities as qualified to assist in com- DANIEL R. SULLIVAN, DEPUTY CHIEF, Graduate study in Construction plicated and commercially sophisticated liquidations, LAPD, RET. L.A. Business College, 1972 reorganizations, and ongoing business operations. See 39432 Narcissus Way, Palm Desert, CA 92211, (818) display ad on page 50. 590-2486, e-mail: [email protected]. Web site: www.investigativeservices.com. Contact Dan Tel: Fax: 818-595-0028 818-438-4535 RETALIATION Sullivan. Expert witness—use of force/police practices, Email: [email protected] event/facility security—consultant to cities of Los Ange- HAIGHT CONSULTING les, Beverly Hills, U.S. Department of Justice. Qualified 1726 Palisades Drive, Pacific Palisades, CA 90272, 7131 Owensmouth Avenue, Canoga Park, CA 91303 as expert over 150 times in superior/federal courts. (310) 454-2988, fax (310) 454-4516. Contact Marcia Haight, SPHR—CA. Human resources expert knowl- SEXUAL HARASSMENT/DISCRIMINATION edgeable in both federal and California law. Twenty-five years’ corporate human resources management experi- HAIGHT CONSULTING EXPERT WITNESS ence plus over 20 years as a Human Resources Compli- 1726 Palisades Drive, Pacific Palisades, CA 90272, —Real Estate Matters— ance Consultant in California. Specializations include (310) 454-2988, fax (310) 454-4516. Contact Marcia sexual harassment, ADA/disability discrimination, other Haight, SPHR—CA. Human resources expert knowl- Title VII and FEHA discrimination and harassment, retali- edgeable in both federal and California law. Twenty-five PECIALIST N ation, FMLA/CFRA, safety, and wrongful termination. years’ corporate human resources management experi- S I : Courtroom testimony and deposition experience. ence plus over 20 years as a Human Resources Compli- • Broker duties; Standard of Care Retained 60 percent by defense, 40 percent by plaintiff. ance Consultant in California. Specializations include • Disclosure Issues – Buyer/Seller Audit employer’s actions in preventing and resolving dis- sexual harassment, ADA/disability discrimination, other • Agency Obligations crimination, harassment, and retaliation issues. Assess Title VII and FEHA discrimination and harassment, retali- • Real Estate Malpractice human resources policies and practices for soundness, ation, FMLA/CFRA, safety, and wrongful termination. for comparison to prevailing practices, and for compli- Courtroom testimony and deposition experience. • Mortgage Brokerage Law ance. Evaluate employer responsiveness to complaints Retained 60 percent by defense, 40 percent by plaintiff. • Residential & Commercial Transactions and effectiveness of employer investigations. Assist Audit employer’s actions in preventing and resolving dis- counsel via preliminary case analysis, discovery strategy, crimination, harassment, and retaliation issues. Assess CREDENTIALS: examination of documents, and expert testimony. human resources policies and practices for soundness, Supervising Broker for comparison to prevailing practices, and for compli- RHEUMATOLOGY/INTERNAL MEDICINE ance. Evaluate employer responsiveness to complaints Responsible for overseeing more than and effectiveness of employer investigations. Assist DANIEL J. WALLACE, MD. 7,500 RE transactions in major counsel via preliminary case analysis, discovery strategy, 8737 Beverly Boulevard, Suite 302, West Hollywood, California-based real estate companies. examination of documents, and expert testimony. General Counsel CA 91604, (310) 652-0920, fax (310) 360-4812, e-mail: [email protected]. Web site: www.danielwallace.com. SPINAL CORD INJURY Legal adviser for two of nation’s largest Physician expertise in all aspects of autoimmune dis- real estate companies. ease, arthritis, rheumatic diseases. GRAHAM A. PURCELL, MD, INC. Adjunct Professor Assistant Clinical Professor Orthopaedic Surgery, UCLA Loyola Law School ROOFING AND WATERPROOFING 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985-3051, fax (818) 985-3049, e-mail: expert VAN DIJK & ASSOCIATES, INC. Hotline Attorney @gpurcellmd.com. Web site: gpurcellmd.com. Contact 28 Hammond, Suite G, Irvine, CA 92618, (949) 586- Supervising Senior Counsel at Graham A. Purcell, MD. Dr. Purcell is a board certified 3828, fax (949) 586-7429, e-mail: info@vdaconsulting California Association of Realtors (CAR) orthopedic surgeon, subspecialty in spinal disorders .com. Web site: www.vdaconsulting.com. Contact Nils affecting adults and children. Examples of spinal disor- DRE Master Instructor Van Dijk. Experienced staff of consultants specializing in ders treated by Dr. Purcell include disc diseases, steno- Author, DRE Disclosure Course. forensic/expert witness litigation services, plan/docu- sis, infections, tumors, injuries, and deformities including ment review, specification preparation, and quality con- scoliosis. He possesses 30 years of orthopedic and 22 trol/management services. Alan D. Wallace, Esq. years of med-legal experience, including defense, plain- 14011 Ventura Blvd., Suite 406 SECURITIES tiff, insurance carriers, CA Attorney General’s office and Sherman Oaks, CA 91423 Public Defender’s office. Expert testimony pertains to 818/501-0133 ■ FAX 818/905-6091 CORNERSTONE RESEARCH med-mal, personal injury, and workers’ compensation 633 West Fifth Street, 31st Floor, Los Angeles, CA cases. As a qualified medical evaluator, Dr. Purcell has www.expertwitnessre.com 90071-2005, (213) 553-2500, fax (213) 553-2699, Web extensive experience in performing QMEs, AMEs, IMEs, e-mail: [email protected] site: www.cornerstone.com. Contact George G. WC evals. See display ad on page 65.

68 Los Angeles Lawyer April 2010 TAXATION restraint issues and crisis management implementation Engineering Resolutions for the World’s and manuals. Author and professor with actual consult- Most Intractable Disputes KAJAN MATHER AND BARISH ing experience with more tour entities than any other 9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA legal/custom and practice consultant. 90212, (310) 278-6080, fax (310) 278-4805, e-mail: Reginald A. Holmes, ESQ. [email protected]. Web site: www.taxdisputes WASTEWATER Mediator • Arbitrator • Private Judge .com. Contact Elliott H. Kajan. The firm’s practice is devoted to representation of taxpayers before the Inter- JOHN SHAW CONSULTING, LLC Business • Intellectual Property • Franchise nal Revenue Service, Franchise Tax Board, State Board P.O. Box 4259, Truckee, CA 96160, (530) 550-1576, Employment • International of Equalization, and California Employment Development fax (530) 579-3388, e-mail: [email protected]. Web Department, involving tax audits, administrative appeals site: www.shaweng.com. Contact John Shaw, PE. • Superb judicial temperament proceedings, tax collection matters, complex tax litiga- Water/wastewater/sewer industry—unique combination • Fiercely fair and impartial of operations and engineering background. Sanitary tion, and criminal tax investigations and trials. The firm • Orderly party driven process also represents and advises accountants and attorneys engineering including water (potable) and wastewater Deep subject matter knowledge regarding tax penalties and professional responsibility (industrial and domestic) treatment, conveyance, • matters. hydraulics, storage, reuse, master planning, operations, maintenance, and expert witness and forensic (mode of TOXICOLOGY failure and standard of care analysis; engineering analysis; product suitability and construction defect issues). PRINCETON-SOMERSET GROUP, INC. Wastewater treatment plants, disposal/reuse facilities, 4 Carroll Drive, Hillsborough, NJ 08844, (800) 597-8836, sewage lift station design, sewer collection systems, and fax (908) 369-6881. Contact Dr. Dennis Stainken. sludge treatment. Water treatment plants, pipelines, and Expert witness, toxicology, health issues, chemical swimming pools. exposure, mold issues, worker exposure, contamination issues, causation assessment, property damage/conta- WATER DAMAGE AND MOLD ALLERGY mination and remediation, sewage, gasoline and oil issues and age determination, petroleum releases, ALLERGY MEDICAL GROUP, INC chemicals/products, risk assessment, indoor air 400 Newport Center Dr, Suite 401, Newport Beach, CA quality/health effects, toxic tort evaluation, chemistry, site 92660, (949) 644-1422, fax (949) 644-1424, e-mail: assessment, regulatory issues, environmental toxicology, [email protected]. Web site: www.allergyasthma1 environmental issues, and wetland/ecological. Services .com. Contact: John T Chiu, MD. Type of expert wit- AAA National Roster of Neutrals • College of Commercial Arbitrators • Association nationwide. Thirty plus years of industrial and govern- ness: Medical doctor. Services available: Expert evaluation on adverse health effects from water damage for International Arbitration • Academy of ment experience in pollution under NPDES, CERCLA, Distinguished Neutrals RCRA, SDWA and CWA. Former federal and state regu- and/or mold exposure. Dr Chiu has served as a medical lator, professor, consultant, industrial research. Seventy- expert witness in over 250 cases and has testified in five plus publications. over 6 trials related to these issues. We provide allergy The Holmes Law Firm skin testing, lung function test, tympanogram, and TRAFFIC ENGINEERING methacholine inhalation challenge test. Common ill- 1.877. FAIR.ADR (t) • 1.626.432.7223 (f) nesses linked to water damage exposure include [email protected] ACCIDENT RECONSTRUCTION SPECIALISTS asthma, allergic rhinitis, headaches, sinusitis, hypersensi- (Field Test Engineering Inc,) 4510 Pacific Coast High- tivity pneumonitis, and ABPA. www.theholmeslawfirm.com way, Suite 200, Long Beach, CA 90804, (800) 675- 7667, fax (562) 494-7667. Also: 11440 Bernardo Court, WORKERS’ COMPENSATION Suite 300, San Diego, CA 92127, 8275 South Eastern Avenue, Suite 200, Las Vegas, NV 89123; 2900 Adams GRAHAM A. PURCELL, MD, INC. Street, Riverside, CA 92604, 7362 Remcon Circle, El Assistant Clinical Professor Orthopaedic Surgery, UCLA Paso, TX 79912. Web site: www.FieldAndTestEngineer- 3600 Wrightwood Drive, Studio City, CA 91604, (818) ing.com. Contact Robert F. Douglas, PE—engineer- 985-3051, fax (818) 985-3049, e-mail: expert ing manager. Registered professional engineer in Cali- @gpurcellmd.com. Web site: gpurcellmd.com. Contact fornia and Arizona, member—NCUTCD, I.T.F., ASTM, Graham A. Purcell, MD. Dr. Purcell is a board certified ERISA Transp. Research Board, ASCE, SAE, ATSSA, IEEE. orthopedic surgeon, subspecialty in spinal disorders LAWYERS Profile: Accident reconstruction, human factors, failure affecting adults and children. Examples of spinal disor- analysis, traffic, and transportation engineering. ders treated by Dr. Purcell include disc diseases, steno- Auto/truck/train/ped/bike/cycle accidents. See display sis, infections, tumors, injuries, and deformities including LONG TERM DISABILITY, LONG ad on page 47. scoliosis. He possesses 30 years of orthopedic and 22 TERM CARE, HEALTH, years of med-legal experience, including defense, plain- WILLIAM KUNZMAN, PE tiff, insurance carriers, CA Attorney General’s office and EATING DISORDER, AND LIFE 1111 Town and Country #34, Orange, CA 92868, Public Defender’s office. Expert testimony pertains to INSURANCE CLAIMS (714) 973-8383, fax (714) 973-8821, e-mail: mail med-mal, personal injury, and workers’ compensation @traffic-engineer.com. Web site: www.traffic-engineer cases. As a qualified medical evaluator, Dr. Purcell has .com. Contact William Kunzman, PE. Traffic expert extensive experience in performing QMEs, AMEs, IMEs, ERISA & BAD FAITH witness since 1979, both defense and plaintiff. Auto, WC evals. See display ad on page 65. pedestrian, bicycle, and motorcycle accidents. Largest MATTERS verdict: $10,300,000 in pedestrian accident case against WRONGFUL TERMINATION Los Angeles Unified School District. Largest settlement: ✔ California state and federal courts $2,000,000 solo vehicle accident case against Caltrans. HAIGHT CONSULTING ✔ Before becoming expert witnesses, employed by Los 1726 Palisades Drive, Pacific Palisades, CA 90272, More than 20 years experience Angeles County Road Department, Riverside County (310) 454-2988, fax (310) 454-4516. Contact Marcia ✔ Settlements, trials and appeals Road Department, City of Irvine, and Federal Highway Haight, SPHR—CA. Human resources expert knowledgeable in both federal and California law. Twenty-five Administration. Knowledge of governmental agency pro- Referral fees as allowed by cedures, design, geometrics, signs, traffic controls, years’ corporate human resources management experi- State Bar of California maintenance, and pedestrian protection barriers. Hun- ence plus over 20 years as a Human Resources Compli- dreds of cases. Undergraduate work—UCLA; graduate ance Consultant in California. Specializations include work—Yale University. sexual harassment, ADA/disability discrimination, other Title VII and FEHA discrimination and harassment, retali- Kantor & Kantor LLP TRAVEL AND TOURISM ation, FMLA/CFRA, safety, and wrongful termination. Courtroom testimony and deposition experience. 818.886.2525 TOLL FREE ALEXANDER ANOLIK, ESQ. Retained 60 percent by defense, 40 percent by plaintiff. 2107 Van Ness Boulevard, Suite 200, San Francisco, Audit employer’s actions in preventing and resolving dis- 877.783.8686 CA 94109, (415) 673-3333, fax (415) 673-3548, e-mail: crimination, harassment, and retaliation issues. Assess www.kantorlaw.net [email protected]. Web site: www.travellaw.com. human resources policies and practices for soundness, Contact Al Anolik. Consultation and expert testimony for comparison to prevailing practices, and for compli- on custom and practice for airline, cruise line, travel ance. Evaluate employer responsiveness to complaints agencies, tour operators, motor coach, tour escorts/ and effectiveness of employer investigations. Assist guides, incentive/meeting planners, and applicability of counsel via preliminary case analysis, discovery strategy, travel and tourism regulation. Evaluation, computation/ examination of documents, and expert testimony. valuation of tourism entities for purchase, sale, economic damages, or ADR hearings. Tourism security and

Los Angeles Lawyer April 2010 69

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!.934!4%!.9.!4)/.!.97(%2%!.934!4%!.9.!4)/.!.97(%2% by the book REVIEWED BY JEFFREY D. WOLF

Plain, Honest Men

In the wake of the American Revolution, Morris, Gouverneur Morris, and James Wilson on several evenings most Americans believed that a strong before the other delegates arrived. The delegates from Virginia and central government posed the greatest Pennsylvania took the opportunity in this informal setting to discuss threat to the liberty they had just obtained. how they might form a stronger central government. Mason wrote The Confederation government was to his son that the dinners allowed the delegates to “form a proper formed in that vein, allowing the states to correspondence of sentiments.” retain their sovereignty and creating a As Beeman explains, the delegates who did arrive at the conven- government with little authority, no power tion were not all party elders; many of the more revered political lead- to tax, and no chief executive. As a result, ers of the day believed that the scope of the convention would be lim- the government was in a state of collapse ited to amending the Articles of Confederation. For example, the young less than 10 years after the new nation won its Plain, Honest Men: The independence. The delegates needed to form a government with the power to Making of the American The failure of Constitution the Confederation by Richard Beeman tax and to execute the laws it passed. Random House, 2009 became unmis- $38.50, 544 pages takable during an insurgency in Massachusetts in 1786. Farmers took to arms after being threatened James Madison from Virginia attended in place of the more senior with foreclosure of their property. Unable to find any assistance from Patrick Henry. Those who did attend were generally wealthy indi- the Continental Congress, the Massachusetts governor was forced to viduals, well educated, and students of the law. Significantly, 24 of turn to private donors to raise the funds to form a private militia to quell the 55 delegates were also slave owners. the revolt because the Continental Congress found itself with no As the convention opened, Virginia Governor Edmund Randolph money to pay federal troops to stop the farmers. The fledgling nation introduced Madison’s Virginia Plan as a resolution for a strong was unable to secure the peace at home. national government. The plan called for a national legislature with In Plain, Honest Men: The Making of the American Constitution, two houses, an executive to be elected by the Congress, and a judi- Richard Beeman tells how a small group of men caused a peaceful ciary. It also proposed a Counsel of Revision, composed of the exec- revolution in America in the summer of 1787 and formed a new, utive and some of the judiciary, that would have the authority to veto stronger, more lasting government. Charged with the task of amend- laws enacted by Congress or the state legislatures. ing the Articles of Confederation to render the Confederation “ade- Beeman explains that the convention “rejected the principle of quate to the exigencies of the Union,” they instead created a new gov- Federalism in which the American republic had been founded and ernment. Choosing not to deify the drafters of our Constitution, endorsed in its place the notion of a supreme national government.” Beeman takes his title from a statement that Constitutional Convention The delegates endorsed this principle because of the collapse of the delegate Gouverneur Morris made. Reflecting upon the Constitution, Confederation government. Foreign debts were overdue, Confederation Morris noted, “While some have boasted it as a work from Heaven, paper money was worthless, and the Confederation was unable to raise others have given it a less righteous origin. I have many reasons to revenue. Madison describes the urgency in the preamble to the Virginia believe that it is the work of plain, honest men.” roster of delegates—“the crisis is arrived.” Prominent Americans who Through Plain, Honest Men, we come to understand that even a did not attend the convention—such as Thomas Jefferson, Samuel happenstance delay of the commencement of the convention would Adams, and Patrick Henry, who were advocates of state sovereignty— have a profound effect on the course of the proceedings. George did not learn of the true extent of this revolutionary document until Washington and James Madison, along with only a few other dele- it was put into final form. The convention might have ended early and gates, were the only delegates to appear at the Pennsylvania State in failure if it had not operated under a strict rule of secrecy. House on May 14, 1787, the day the convention was scheduled to In Plain, Honest Men, the reader learns of the internal struggle of begin. The delay that ensued allowed Madison to build support many of the delegates. They had a rational understanding of the immi- among his fellow Virginia delegates, Edmund Randolph and George nent collapse of the Confederation. Yet, they also had a visceral fear Mason. Madison’s framework, later known as the Virginia Plan, would establish a new, centralized, national government. Jeffrey D. Wolf is a trial attorney and a partner at Pocrass, Heimanson & During this interim the Virginia delegates met at Benjamin Wolf, LLP. He represents plaintiffs in wrongful death and catastrophic injury Franklin’s house for dinner with Pennsylvania delegates Robert cases.

Los Angeles Lawyer April 2010 71 following the Revolutionary War that a strong national government would lead to despotism like that of the British monarchy. It was this same fear of concentrated power that led many delegates to have a “profound distrust of executive power.” Only because General Washington served as president of the convention and was expected to be the first holder of the executive position did the delegates agree that the executive should consist of a single person. Still, a majority of the delegates believed that ordinary citizens were too ignorant to be responsible for electing the executive directly. Madison’s Virginia Plan called for Congress to elect the president. Beeman delves into the compromises of the delegates, which allowed the formation of a government that encompassed separation of powers and federalism. However, he also explores how this compromise created the single greatest failing of the Constitution—“the It’s More Than Just a Referral recognition and legitimization of slavery.” It’s Your Reputation The delegates agreed to proportional representation for the lower house of Congress that set forth that a slave would count as three- Make the Right Choice ﬁfths of a person for purposes of apportion- ing representation. Personal Injury • Products Liability In Plain, Honest Men, Beeman takes a close look at how the Founders created the Medical Malpractice • Insurance Bad Faith Constitution. Unlike the Declaration of Independence, this was not a philosophical document. The delegates were looking for a Referral Fees per State Bar Rules solution to a practical problem: the weak Confederation government could not govern. www.cdrb-law.com Consequently, the delegates needed to form a government with the power to tax and to exe- 310.277.4857 cute the laws it passed. The practical solution that Madison and The More You Know About Us, others envisioned—with concentrated power and a strong national government, even if sep- The Better Choice You Will Make arated by several branches of government— raised concerns that the Constitution would create a form of elected monarchy. Beeman deftly illustrates how the delegates struggled, compromised, and ultimately agreed upon a government that was radically different from the Confederation. The debate over the proper amount of power to be exerted by the national government would arise later during the Civil War, and the debate continues to this day. Under President George W. Bush’s administration, the measures taken by the government to combat terrorism led to criticism that the president had exceeded his constitutional powers. Under President Barack Obama’s administration, the role that government should take in affording healthcare to all Americans has also been debated with reference to the Constitution. This struggle 10100 Santa Monica Blvd., Suite 2460, Los Angeles, California 90067 between the philosophical desire for state 310.277.4857 office ■ 310.277.5254 fax sovereignty and the practical need for a cen- www.cdrb-law.com tralized government dates back to 1787 and the Pennsylvania statehouse. ■

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Los Angeles Lawyer April 2010 73 reserve now! LOS ANGELES LAWYER MAGAZINE’S ANNUAL Lawyer-to-Lawyer Referral Guide

Referrals from other attorneys are important to the growth of your firm. However, This lawyer referral successful business development requires more than word of mouth. How do you guide concentrates on market your firm or practice areas? THE BEST LEGAL Here is a special opportunity to tell the more than 25,000 members of the Los MARKET for your Angeles County Bar Association who you are and the services your firm has to offer by business, Los Angeles. placing a listing in the 2010 LAWYER-TO-LAWYER REFERRAL GUIDE published in In addition, there will be the June 2010 issue of LOS ANGELES LAWYER magazine. BONUS DISTRIBUTION If yours is a small or boutique firm, your listing will increase your visibility to larger of this special issue at firms that need your special expertise. If your firm is a large firm, its services will be LEGAL TECH 2010! found by colleagues who are looking for that special alliance.

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Cost for a listing in the guide is $175. If you prefer to list in more than one area of law, For more information, call each additional listing is only $75. All participants purchasing a display ad of a 1/6 LINDA BEKAS page or larger will receive a free listing in the guide! 213.896.6504 or To make your reservation, simply ﬁll out the attached form and return it with your MERYL WEITZ check to LOS ANGELES LAWYER, P.O. BOX 55020, Los Angeles, CA 90055, Attn: 213.896.6505 Ad Department.

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❏ I am interested in SERVICES AVAILABLE: (75 words or less) running a display ad in the guide, therefore, I will want a free listing. Please have an account executive call me to make arrangements. Early Case 24th Annual Environmental Law Super Symposium ON FRIDAY, APRIL 16, the Environmental Law Section will present its annual symposium Assessment offering a full day of presentations and discussions regarding the latest developments in ON WEDNESDAY, APRIL 28, the Los environmental law. The symposium will explore how environmental law is being reshaped Angeles County Bar Association and the by forces such as politics, media, and economics, and cross-currents within the Small and Solo Division will present a environmental movement. The keynote speaker will be Dr. Barry R. Wallerstein, executive Webcast featuring Alexander H. Lubarsky officer of the South Coast Air Quality Management District. Sessions will cover politics and on one of the fastest-growing areas of law law of climate change, how lawyers can handle interactions with journalists, wind and solar practice management—early case power, small group deliberation, water, green tech, alternative and renewable energy, the assessment (ECA). Modern ECA influence of the California fiscal crisis on environmental protection, and the shifting technologies and best practices assist chemical regulatory paradigm. The symposium will take place at the Omni Los Angeles attorneys and clients in answering key Hotel, 251 South Olive Street, Downtown. Hotel valet parking costs $14. On-site registration and breakfast will begin at 8 A.M., with the program continuing from 8:30 A.M. to 4:10 P.M. questions before a lawsuit begins, The registration code number is 010700. The prices below include the meal. including the value of the lawsuit, $50—Government/Public Interest Attorney (Section member) potential exposure to the client, the costs $80—Government/Public Interest Attorney (non-Section member) of a successful resolution, and the time it $150—CLE+PLUS member will likely take to review the discovery. $295—Environmental Law Section member ECA can help determine whether a case $350—LACBA member should proceed directly to mediation or $650—exhibitor settlement and how many people will be 6 CLE hours required to meet discovery deadlines. Understanding the true requirements to achieve success with any given case is Fraud Prevention critical, and new ECA best practices and tools will enable the practitioner to take ON WEDNESDAY, APRIL 21, the Los Angeles County Bar Association and the Small and Solo Division will host a program on fraud prevention. Beginning with a historical perspective of on a new matter with his or her eyes wide regulatory change in dealing with fraud, speaker Ilan Haimoff will cover such topics as internal open and the client’s expectations controls, the elements of fraud, a case study of the worst private embezzlement in properly set. The registration code Massachusetts, and training and monitoring for fraud prevention. This event may be attended number is 010708. Login information will in person or via Webinar. Registration for the Webinar closes on Monday, April 19. The live be forwarded to each registrant 24 hours program will take place at the Los Angeles County Bar Association, 1055 West 7th Street, 27th before the event, so a correct e-mail floor, Downtown. Parking is available at 1055 West 7th and nearby parking lots. On-site address must be provided. To receive full registration and lunch will begin at 11:30 A.M., with the program continuing from 12:15 to 1:15 P.M. CLE credit for viewing the Webinar, The registration code number is 010804. The prices below include the meal. registrants must log in individually. $20—CLE+PLUS member $35—Small and Solo Division member $45—CLE+PLUS member $55—LACBA member $75—Small and Solo Division member $75—all others $90—LACBA member $65 to $85—live Web viewer $125—all others 1 CLE hour 1 CLE hour

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

Los Angeles Lawyer April 2010 75 closing argument BY ALLISON B. MARGOLIN

Does Anyone Really Understand the Medical Marijuana Laws?

MARIJUANA HAS TAKEN OVER LOS ANGELES and, some may argue, for marijuana and the services provided in conjunction with the pro- the state of California. The plant is, by some estimates, the state’s (and vision of that marijuana.”1 Although the statute is silent as to whether the nation’s) number one cash crop, and California, along with 13 collectives must operate on a nonprofit basis, the court of appeals has other states, has decriminalized many aspects of the marijuana indus- indicated, at least in dicta, that they must do so.2 try. Moreover, this past October, the Justice Department announced Just recently, the California Supreme Court mixed the pot further that it would give a low priority to the federal prosecution of med- in People v. Kelly,3 in which the court struck down the section of the ical marijuana distributors who are in clear compliance with state law. MMPA that capped the number of plants and dried weight a patient Los Angeles County is now home to an estimated 800 to 1,000 or caregiver could possess. The law, after Kelly, seems to suggest that medical marijuana dispensaries. This proliferation, together with immunity from arrest still applies if patients or caregivers are within the federal government’s new policy, have given Californians a false the guidelines and possess a state-issued identification card. However, sense that the state is a free-for-all for large- scale cultivation and distribution of the drug. As an attorney whose practice consists of Jurors who are confused about the law are loath to convict about half marijuana cases, I am sad to say that perception and reality are out of sync. The result is that people who in the past have been people who clearly have no criminal intent. discreet about their marijuana use are operating conspicuously. And they are getting arrested and charged with felonies. According to the Marijuana Policy Project, between 1990 and 2008 the rate of for purposes of determining whether a patient is acting legally, the Californians arrested for possession rose 127 percent. guidelines are no longer relevant. What the law actually is and what activity it immunizes elude not The state of the law regarding quantities is now that individuals only much of the public but the legal community too. Here are the may possess an amount of marijuana that is reasonably consistent with basics: In 1996, voters passed the Compassionate Use Act, which their medical needs. This standard creates much confusion for a immunized personal cultivation and possession of marijuana by variety of reasons. First, while it is clear from case law that a defen- those who obtained a recommendation from a doctor and by those dant has the burden to create a reasonable doubt based on his or her patients’ primary caregivers. This referendum did not allow for med- medical status, no case has addressed whether that defendant also has ical marijuana dispensaries or for sales of marijuana. The referendum to make a showing that the amount is reasonable. Though the CAL- and the case law that emerged from it did allow caregivers to receive CRIM instructions seem to suggest that the defendant bears this reasonable compensation for providing marijuana to patients. How- burden, my perspective is that this conclusion is not supported by law. ever, the courts interpreted the concept of caregiver narrowly, ultimately Case law indicates that once the defendant demonstrates his or her deciding that a caregiver had to consistently provide for the health, status as a qualified patient or caregiver, the burden shifts to the pros- safety, or welfare of the marijuana patient antecedent to the provi- ecution to show beyond a reasonable doubt not that the amount was sion of medical marijuana. unreasonable but that the purpose for which the marijuana was pos- In 2003, the legislature passed the Medical Marijuana Program sessed was illegal, such as for illegal sale. Act. This act gave patients and caregivers immunity from various The silver lining in all these developments is that once these cases Health and Safety Code violations not previously immunized by the start going to trial the district attorney’s office will begin to realize original referendum, including sales, possession for sale, and trans- that the vagueness of the law benefits the defendant, because jurors portation. The MMPA also established a voluntary system whereby who are confused about the law are loath to convict people who clearly patients and caregivers could receive a state identification card that have no criminal intent. But this can only happen if lawyers who take provided immunity from arrest if patients possessed less than six these cases verse themselves well enough in the case law to realize that mature plants, twelve immature plants, or eight ounces, unless their pleading defendants, who are often in the system for the first time, doctor recommended more. is in many instances, no answer. ■ Very few cases have addressed the possession limits of the MMPA, but it is clear that storefront dispensaries may put on an affirmative 1 People v. Urziceanu, 132 Cal. App. 4th 747, 883 (2005). defense if they can show that they are a collective of patients and care- 2 People v. Hochanadel, 176 Cal. App. 4th 997 (2009). 3 givers. Although the Los Angeles district attorney claims that sales People v. Kelly, 47 Cal. 4th 1008 (2010). are still illegal, the California Supreme Court in People v. Urziceanu indicated that the law “contemplates the formation and operation of Allison B. Margolin is a Los Angeles attorney who practices state and federal medicinal marijuana cooperatives that would receive reimbursement criminal defense.

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