Exper Guide to THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION t W PAGE it ne 38 sse s

APRIL 2015 / $4

EARN MCLE CREDIT PLUS 2014 Ethics Prosecuting Roundup Elder Financial page 23 Abuse page 30 Lender Liability after Foley page 12 Inverse Condemnation for Water Damage page 14 Secrecy in Doubling Mediation page 68 Down

Los Angeles lawyer Robert M. Heller argues that double derivative indemnity litigation may come to California page 16

FEATURES 16 Doubling Down BY ROBERT M. HELLER If California courts continue to pursue a remedy for every wrong, they are likely to sanction double derivative standing 23 2014 Ethics Roundup BY JOHN W. AMBERG AND JON L. REWINSKI Last year brought ethical challenges for dissolving law firms and a surprise for the State Bar’s Commission for the Revision of the Rules of Professional Conduct Plus: Earn MCLE credit. MCLE Test No. 245 appears on page 25. 30 Out of Bounds BY SARA COLÓN AND CATHERINE ESCHBACH Bounds v. Superior Court highlights the need to draft complaints so that financial elder abuse claims may apply

38 Special Section Semiannual Guide to Expert Witnesses

DEPARTMENTS

Los Angeles Lawyer 8 On Direct 14 Practice Tips the magazine of Brian Panish Applying the inverse condemnation INTERVIEW BY DEBORAH KELLY remedy to water damage the Los Angeles County BY JOYCE S. MENDLIN AND ROGER M. ROSEN Bar Association 10 Barristers Tips April 2015 Overview of the guidelines of civility and 66 By the Book Volume 38, No. 2 professionalism A World More Concrete BY DAVID B. JONELIS REVIEWED BY ERIC HOWARD

12 Practice Tips 68 Closing Argument The application of Foley in recent lender Six examples to counter the allegation COVER PHOTO: TOM KELLER liability decisions that mediators lie BY STUART M. RICHTER AND YONATON M. BY JAN FRANKEL SCHAU ROSENZWEIG 0467.15CLE Preview Law Firms 4 Sale

VISIT US ON THE INTERNET AT WWW.LACBA.ORG/LALAWYER Want to retire? Want to plan E-MAIL CAN BE SENT TO [email protected] for your life after law! EDITORIAL BOARD Chair See Ed Poll’s website MARY E. KELLY www.lawbiz.com for the tools Articles Coordinator you need to make a transition. DONNA FORD Assistant Articles Coordinator Want to buy a practice? TED M. HANDEL Ed can help! Secretary JOHN C. KEITH Call today 800.837.5880 Immediate Past Chair PAUL MARKS JERROLD ABELES (PAST CHAIR) K. LUCY ATWOOD ETHEL W. BENNETT SCOTT BOYER CAROLINE BARBEE CHAD C. COOMBS (PAST CHAIR) HON. MICHELLE WILLIAMS COURT GORDON K. ENG STUART R. FRAENKEL CHRISTY GARGALIS MICHAEL A. GEIBELSON (PAST CHAIR) CHRISTINE D. GILLE SHARON GLANCZ JEFFREY A. HARTWICK STEVEN HECHT (PAST CHAIR) ERIC KINGSLEY KATHERINE KINSEY DANIELLE LACKEY JENNIFER W. LELAND SANDRA MENDELL MICHELLE MICHAELS COMM. ELIZABETH MUNISOGLU PAUL OBICO CARMELA PAGAY DENNIS L. PEREZ (PAST CHAIR) GREGG A. RAPOPORT GARY RASKIN (PAST CHAIR) JACQUELINE M. REAL-SALAS (PAST CHAIR) A. JOEL RICHLIN DAVID SCHNIDER (PAST CHAIR) NANCY L. SCHROEDER STEVEN SCHWARTZ HEATHER STERN MATTHEW D. TAGGART DAMON THAYER THOMAS H. VIDAL

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4 Los Angeles Lawyer April 2015 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 Telephone 213.627.2727 / www.lacba.org

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Los Angeles Lawyer April 2015 5 alifornia’s court system, the largest in the nation, serves 38 million people. Yet, as reported by the CJudicial Council, only 1 percent of the state general fund—one penny out of each dollar—is allocated to the courts. As Chief Justice Tani G. Cantil-Sakauye observed in

her 2014 State of the Judiciary address, underfunding of the branch results in “harmful and astonishing delays in civil redress” such that “50 years after passage of the Civil Rights Act, we are on the verge of a different type of civil rights crisis.” The share that the judicial branch has in the general fund fell from 56 percent in 2008-09 to 35 percent in 2014-15. Some of these budget cuts have been offset or back-filled, in part, by statutory increases in fees and fine assessment levels. Funding the courts through increasing fees and fines, however, leads to a perception of pay-to-play justice. The third branch of government, often characterized as invis- ible because judges cannot engage in the political act of legislative lobbying, is being transformed, as a Judicial Council report puts it, “into a user-fee-supported institution.” With the closure of 52 courthouses and approximately 200 courtrooms, parties with the financial means opt for private arbitration, while those of modest means travel longer distances and wait much longer for relief. This two-tiered sys- tem adversely affects access to justice for the state’s most vulnerable citizens. California is not alone in this crisis. Recent federal lawsuits charge that Ferguson and Jennings, suburbs of St. Louis, Missouri, jail people solely for the inability to pay fines and fees on offenses such as tickets and other minor offenses. Dubbing this system a “modern debtors’ prison scheme” that earned Ferguson millions of dol- lars over the past several years, the suits allege that fees and fines allegedly “devas- tated the City’s poor, trapping them for years in a cycle of increased fees, debts, extor- tion and cruel jailings.” The demands include a declaration that Ferguson and Jennings jailed indigent residents because they were unable to pay fines and fees and they failed to provide adequate access to legal representation. According to the Wall Street Journal, Ferguson is a city of 21,000 that is two-thirds African American, and its residents often complain that minorities bear a disproportionate share of legal fees and charges, a claim bolstered by state records that show “minority drivers are more likely to be pulled over than white motorists.” Justice William J. Brennan’s 1986 remark that “We do not yet have justice, equal and practical for the poor, [and] for members of minority groups” still rings true today. California’s Bench-Bar Coalition (BBC) seeks to alter the inequities of funding the judicial branch through court-imposed fees and fines in order to achieve equal access to justice. The Chief Justice informs us that the relationship of the three branches of government in service to the public is symbiotic. Quoting Dr. Martin Luther King, the Chief Justice reminds us “injustice anywhere is a threat to justice everywhere.” The three branches of government “are caught in an inescapable network of mutu- ality, tied in a single garment of destiny. Whatever affects one directly affects all indi- rectly.” Access to justice necessitates what the Judicial Council calls a “fresh look at statu- tory and structural challenges to efficiency and stability for the courts.” The bar is well situated to move this endeavor forward. Please join the efforts of the BBC and, if you are able to do so, urge your state representatives to increase the judicial branch’s share of the general fund. I

Mary E. Kelly is a nurse attorney and an administrative law judge II with the California Unemployment Insurance Appeals Board. She is cochair of the California Access to Justice Commission’s Administrative Agency Committee.

6 Los Angeles Lawyer April 2015

On Direct INTERVIEW BY DEBORAH KELLY

Brian Panish Trial Attorney

what would you do with it? I’d give it to some me what had happened. The next day, there high schools. was a small article in the LA Times. I was proud of him. You played football at Fresno State as a free safety. What did you learn from that experi- In 2005, you left Greene, Broillet, Panish and ence that still applies today? I learned Wheeler after 18 years to start your own firm. about never giving up and fighting through Why then? I think the time was right; I had adversity. grown. I wanted to have my own firm and do things my way. Later, you went to Southwestern Law School. Do you expect either your two daughters or Who is on your music playlist? U2, Charlie son to follow in your footsteps? One daugh- Daniels, the Doobie Brothers, the Eagles, ter is taking the LSAT and applying to law and Willie Nelson. school. The other two, I’m not sure. All of my brothers are lawyers; my father was a What book is on your nightstand? Money: lawyer; and my wife is a lawyer. I love being Master the Game, by Tony Robbins. a lawyer. Which fictional hero would you like to be? What scared you the most the first time you Huck Finn. BRIAN PANISH | In personal injury, car acci- stood in front of a jury? Not doing a good dent, wrongful death, and business litigation Why? My wife says I never want to grow job for my client. I had only been a lawyer cases, Brian Panish has won over 30 jury ver- up. for about a month. I didn’t want it to look dicts and settlements in excess of $10 mil- like it was my first trial. lion, and one for $4.9 billion. What are your retirement plans? I like my job too much. I’m just getting into the prime How have juries changed in the last 20 of my career. What is the perfect day? Wake up early, years? I really don’t think they’ve changed work out, go Downtown and go to trial. that much. When you get 12 people togeth- Which television shows do you record? Come home and have dinner with the fami- er, they all have a lot of different perspec- House of Cards, Ray Donovan, The News- ly, watch some sports, and prepare for trial tives. They usually get it right. I believe in room. the next day. juries. I think they do a great job. Do you have a Facebook Page? Not any- What is overrated about being a trial attor- Do you believe jurors obey the judicial officer more. ney? How easy it is. It takes a lot of work, a and ignore the news and social media during Are you on Twitter? Yes, I like it. lot of preparation, and a lot of stress. The a trial? I do. I think they take the job very se- riously. I have a ton of respect for the jurors. fun part of it—helping people—makes it Who do you follow? The Fresno State foot- worthwhile. Do you use the media differently in your ball coach, some athletes, some lawyers, my What is underrated? How much intensity is cases than you once did? I don’t really try to daughters. go out and send out messages with the involved in the courtroom. What is your favorite radio station? media, but sometimes you have to deal with NFL What was your best job? Being a high school them and be prepared. Network. football coach and seeing the kids get better. Did you watch your dad, Howard Panish, at Which person in history would you like to take out for a beer? What was your worst job? Working on the trial as a child? Every day at the dinner table Clarence Darrow. loading docks, unloading railroad cars with he would cross-exam me. What are the three most deplorable condi- 100-pound boxes. In 1974, your father won the first case that tions in the world? Poverty. Lack of ade- What characteristic do you most admire in awarded $1 million in punitive damages. In quate healthcare. Oppression. your mother? Her toughness. On her own, 1999, you won the first case that awarded $1 Who are you two favorite U.S. presidents? billion in punitive damages. Were you com- she got her college degree and became a John F. Kennedy and Bill Clinton. teacher. petitive with your father? I don’t think so. I remember on the day he won that verdict, What is the one word you would like on your If you were handed $1 million tomorrow, he picked me up from high school. He told tombstone? Accountable.

8 Los Angeles Lawyer April 2015 barristers tips BY DAVID B. JONELIS

Overview of the Guidelines of Civility and Professionalism

EVER HEARD THE STORY about an attorney who got served with an when engaged in a personal dialog. Given the current congestion and ex parte application on the eve of his daughter’s birth by an oppos- financial cutbacks plaguing the court systems (both state and federal), ing counsel who was aware of the impending birth, or about an at- it is in every lawyer’s best interest not to place motions before a judge torney who was denied a requested one-week discovery extension that could have been resolved without judicial intervention. After all, because opposing counsel was not in the habit of granting extensions? no one wants to risk invoking the ire of the very judge who might be Having experienced both situations firsthand, I understand why ruling on the motion and who may ultimately decide the outcome of lawyers get a bad rap. As noted in a recent decision: “Our profession the case. Moreover, resolving an issue without motion practice can save is rife with cynicism, awash in incivility. Lawyers and judges of our a client substantial fees—a result that any client surely will appreciate. generation spend a great deal of time lamenting the loss of a golden The civility guidelines further direct us to address the prospect of age when lawyers treated each other with respect and courtesy.”1 settlement as soon as possible during litigation.8 While some lawyers Unfortunately, lawyers often seem to confuse the concept of zealous and passionate advo- cacy with a need to take unreasonably aggres- sive positions. While there is a time and place It is in every lawyer’s best interest to review and follow the for taking a hardline stance, especially in the con- text of acrimonious litigation, it is equally true, as noted in a recent decision, that “[p]assion can civility guidelines for the collective benefit of the profession. easily coexist with respect, dignity, and civility.”2 As Los Angeles lawyers, we are bound by the ethical and professional guidelines set forth in the state bar’s Rules may think that zealous advocacy means always pursuing a claim to of Professional Conduct that are intended “to protect the public the bitter end, from a practical standpoint, early settlement often and to promote respect and confidence in the legal profession.”3 makes the most sense. The overwhelming majority of cases eventually While these rules garner the most attention among law school ethics settle,9 and the legal fees incurred in going to trial often exceed the professors and new lawyers attempting to avoid malpractice traps, amount of damages at issue. As anyone who has attempted to collect we are also subject to the state bar’s Guidelines of Civility and on a judgment can attest, the process can go on for years, and there Professionalism and the Los Angeles Superior Court’s Guidelines is no guarantee that the judgment will even be satisfied at the end. Thus, for Civility in Litigation.4 Violating these guidelines can result not only in many cases, obtaining a favorable settlement for a client at an in sanctions but also discipline by the state bar.5 Thus, new attorneys early juncture may prove to be the most zealous form of advocacy. should review and familiarize themselves with these guidelines. It is in every lawyer’s best interest to review and follow the civil- The civility guidelines serve public policy interests and also provide ity guidelines for the collective benefit of the profession and from a numerous practical benefits to our careers as attorneys. For example, practical and client-management perspective. In the examples above the guidelines direct us to grant opposing counsel reasonably requested both opposing counsel were soon discharged by their clients, so try- extensions of time.6 Although inexperienced attorneys may think ing to appear tough by taking unreasonable, obnoxious positions even- that denying an extension will make them appear tough to their tually hurts, rather than helps, an attorney’s bottom line. In other clients, they are actually causing potential harm to their clients. Life words, a little common courtesy goes a long way. I often throws curveballs—whether it be a sudden illness, a nanny call- ing in sick at the last minute, or the receipt of an unexpected ex parte 1 Kim v. Westmoore Partners, Inc, 201 Cal. App. 4th 267, 293 (2011). application on the same day that discovery responses are scheduled 2 People v. Whitus, 209 Cal. App. 4th Supp. 1, 14 (2012). to be drafted. These circumstances can make it difficult, if not impos- 3 CAL. RULES OF PROF’L CONDUCT R. 1-100. 4 California Attorney Guidelines of Civility and Professionalism, available at sible, to meet every deadline. Chances are that extensions will be http://www.calbar.ca.gov [hereinafter State Bar Guidelines]; LOS ANGELES SUPER. CT. requested at some point down the line. By granting reasonable exten- R. 3.26, App. 3.A [hereinafter LASC Guideline]. sions to opposing counsel, an attorney increases the likelihood of rec- 5 See, e.g., Whitus, 209 Cal. App. 4th Supp. 1; In re Marriage of Davenport, 194 iprocal extensions thereby minimizing the potential prejudice to his Cal. App. 4th 150 (2011). or her own clients when an extension request is denied and papers have 6 State Bar Guidelines, §6; LASC Guideline (a). 7 to be drafted at the eleventh hour. State Bar Guidelines, §10; LASC Guideline (h). 8 State Bar Guidelines, §13; LASC Guideline (k). The civility guidelines also direct us to engage in more than a pro 9 Jay Folberg et al., Use of ADR in California Courts: Findings & Proposals, 26 U.S.F. forma meet-and-confer effort before filing motions—ideally by speak- L. Rev. 343, 350-51 (1992). ing to opposing counsel in person.7 This guideline makes practical sense, as lawyers who might otherwise take an unnecessarily aggressive David B. Jonelis is an entertainment litigation associate at Lavely & Singer stance through e-mail communication will often act more reasonably PC in Century City.

10 Los Angeles Lawyer April 2015 fi practice tips BY STUART M. RICHTER AND YONATON M. ROSENZWEIG

The Application of Foley in Recent Lender Liability Decisions

THE RECENT RECESSION has resulted in a groundswell of lender lia- According to the Foley court, Egan was “a major departure from tra- bility actions in which plaintiffs have sued under a variety of theo- ditional principles of contract law” and represented only “an excep- ries ranging from tort to procedural defects in the note or in the fore- tion to th[e] general rule.”10 The general rule, the supreme court held, closure. In the context of commercial and high-net-worth lending, some is that tort and contract law have divergent objectives: tort law vin- borrowers resort to tort theories to avoid or delay collection. When dicates social policy while contract law enforces private agreements contending with these new types of lender liability theory, defense coun- and predictability in those relationships.11 In a contract dispute, a court sel should remember the broad implications of a line of cases start- does not punish a breaching party, the supreme court held, because ing with Foley v. Interactive Data Corporation, in which the California “[t]he purpose of awarding contract damages is to compensate the Supreme Court held that tort damages should not be applied to injured party.”12 what are essentially contract claims.1 These cases disapprove of Although it was an employment dispute, Foley represents a strong recasting contract-type claims as tort claims and are not limited to position against the extension of tort theories into breach of contract only one cause of action.2 cases. The court overturned six court of appeal decisions that blurred While lender liability tort claims may take a variety of forms, they the distinction between tort and contract,13 and it warned future often assert that the lender caused the borrower lost business oppor- courts that they should not extend tort damages to contractual situ- tunities, reputational harm, or other damages by failing to perform ations “without careful consideration of the fundamental policies a contractual duty or other alleged promissory obligation. The for- underlying the development of tort and contract law in general.”14 mal causes of action may include negligence, interference, slander of Although the court left open the possibility that businesses could title, or other tort claims, but they share in alleging failure to perform engage in conduct that might result in a special relationship with a lender’s obligations faithfully. their arms-length counterparts, the subsequent case law has affirmed In 1979, the California Supreme Court created the tort of bad faith Foley’s central thrust. breach of an insurance contract when it decided Egan v. Mutual of The historical background behind the shift from Egan to Foley is Omaha Insurance Company.3 Justice Stanley Mosk, writing for the a bit unusual. Three years after the Egan decision, California voters court, held that an insurer may be liable for tort and punitive dam- elected George Deukmejian as governor. In 1986, the governor and ages if it breaches the covenant of good faith and fair dealing. While his political allies ran an unprecedented political campaign against such a breach is normally only contractual in nature, the court autho- three sitting California Supreme Court justices—including the chief rized tort damages because insurers have a “special relationship” with justice—ostensibly because they did not adhere to California crimi- the insured that is “quasi-fiduciary” in nature.4 According to the court, nal law. These justices had formed parts of the majorities in Egan, the special relationship arises from the fact that insurance companies Tamney, and Seaman’s, and they were ejected from the bench that have public obligations and a superior bargaining position. year.15 In fact, only one justice remained on the Foley court from the Over the next five years, the supreme court twice suggested expand- Egan era—Justice Stanley Mosk. ing Egan into fields other than insurance. First, in Tamney v. Atlantic Subsequent California Supreme Court authority twice reaffirmed Richfield Company, the court held that an at-will employee may sue the central principle in Foley as the general rule. First, In Freeman & for the tort of unlawful termination under some circumstances.5 In a Mills, Inc. v. Belcher Oil Company, the court held that a bad faith footnote, the court hinted that an employee can sue in tort for breaches denial of the existence of a contract of indemnity is not a viable cause of the contractual implied covenant too.6 Second, in Seaman’s Direct of action in noninsurance contracts.16 Relying on Foley, the court Buying Service, Inc. v. Standard Oil Company, the court lowered the found that “certain basic principles relevant to contract law include barrier a bit further in a commercial dispute when it said, in dicta, that the need for predictability” and the limitation of damages to those “there are other relationships [besides insurer-insured] which have sim- needed to compensate the injured party, rather than punish the ilar characteristics” and “are deserving of similar treatment.”7 breaching party.17 Second, in Erlich v. Menezes, the supreme court These cases spawned years of litigation against both employers and held that emotional damages are not available for breach of contract banks for tortious breach of the implied covenant.8 Courts used the claims, reasoning that “conduct amounting to a breach of contract language of Egan and reasoned that employers and banks—like becomes tortious only when it also violates a duty independent of the insurers—have a “special relationship” that justifies tort damages for contract arising from principles of tort law.”18 contract breaches and broken promises. Thus, as of 1984 it appeared The court of appeal applied Foley to the lender-borrower context that contractual breaches by employers or banks would invariably result in tort claims. Stuart M. Richter is a partner at Katten Muchin Rosenman LLP and cochair of the firm’s class action and multidistrict litigation practice. Yonaton M. Foley and Mitsui Manufacturers Bank Rosenzweig is an associate in the firm’s litigation and dispute resolution In Foley the California Supreme Court stopped the expansion of Egan department. The authors represented HSBC Bank USA in the trial court and and defined just how narrow the special relationship exception is.9 on appeal in HSBC Bank USA, N.A. v. Cappello.

12 Los Angeles Lawyer April 2015 in Mitsui Manufacturers Bank v. Superior same idea in a similar case: “The winds of action is not barred under the California Court.19 The bank in Mitsui had promised change blew with the publication of Foley.”25 Uniform Commercial Code.30 plaintiff that it would continue extending In 2006, Stop Loss Insurance Brokers, Another relevant case in the lender liabil- short-term credit until the borrower found Inc. v. Brown & Toland Medical Group, ity context is Nymark v. Hart Federal Savings long-term replacement financing. When the another court of appeal decision, dismissed a and Loan Association, in which the court of lender declared a default despite its oral claim for equitable indemnity between two appeal set forth a multifactor test to determine promise, the borrower sued in tort, claiming parties to a contract for indemnification, when a lender is so involved in a borrower’s a breach of the implied covenant.20 finding that the tort principle of joint liabil- project that tort duties arise.31 The Nymark The court rejected this argument, finding ity did not apply to breaches of contract.26 court held that a bank’s faulty appraisal does that “Foley, impliedly if not expressly, limits “Despite the cross-complaint’s use of neg- not support a tort claim against the bank, the ability to recover tort damages in breach ligence terminology, the alleged misconduct because a bank has no duty to prevent the bor- of contract situations to those where the by [defendant] describes, at most, a breach rower’s venture from failing or to advise a bor- respective positions of the contracting parties of contract, not a breach of a legal duty of rower that his or her loan is unwise.32 In this have the fiduciary characteristics of that rela- care.” 27 The tort action was thus “an improp- respect, Nymark, which discusses neither tionship between the insurer and insured.”21 er attempt to recast a breach of contract Foley or Mitsui, supports the principles of Mitsui agreed that “the ordinary arms-length cause of action as a tort claim.”28 freedom of contract set forth in both earlier commercial lender/borrower relationship was decisions. Recent Cases insufficient as a matter of law to generate tort One recent court of appeal decision illus- damages for the breach of the covenant of In 2007, the court of appeal in Holcomb v. trates the continued vitality of Foley without good faith and fair dealing.” 22 Wells Fargo Bank held that a bank can be interruption from Nymark or Holcomb. In The Mitsui/Foley line of cases bars claims liable in tort if it fails to make a deposit and Cappello v. HSBC Bank USA, N.A.,33 the against a range of lender conduct, including the depositor is harmed.29 Even though question presented was whether Mitsui applies breaches of oral or written promises regard- Holcomb distinguished Mitsui as being a to claims other than the tortious breach of the ing the loan. In Price v. Wells Fargo, for case about the implied covenant, Holcomb implied covenant.34 Plaintiffs alleged that example, the court of appeal held that a bank does not address the lender-borrower rela- HSBC promised its borrower to provide a is not liable for fraud and other torts when tionship, the distinction between contract “positive reference” to a third party who it promises to “work with” a borrower, even and tort, or Foley and its progeny. Instead, the was considering making an investment in if it later takes a “hard line” in enforcing a court of appeals held that Mitsui was inap- borrower’s company in order to help pay off written contract.23 Price squarely relies upon plicable to Holcomb since the defendant in HSBC’s loan.35 HSBC’s loan officer allegedly Foley, finding that it “dramatically upset” Holcomb was making a claim concerning “fumbled” the call and provided a negative the availability of tort claims against lenders.24 the bank’s making representations as a depos- reference, thereby destroying the borrower’s Or, as another court of appeal expressed the itory institution, and the court found this Continued on page 65.

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Los Angeles Lawyer April 2015 13 practice tips BY JOYCE S. MENDLIN AND ROGER M. ROSEN

Applying the Inverse Condemnation Remedy to Water Damage

IN JULY 2014, A WATER MAIN BURST in Westwood, flooding a sig- nificant portion of the UCLA campus.1 Similar but less newsworthy events are occurring more frequently, as municipal water delivery and sewage systems age. A recent exposé by the Los Angeles Times found that almost half the water pipes in Los Angeles received a grade of C or worse from the Los Angeles Department of Water and Power (DWP) and that average pipe age is 58 years across the sys- tem.2 While the DWP moved promptly to reach pretrial resolutions with many claimants whose property was damaged by the UCLA flood, it is expected that litigation of these types of claims will increase as pipes and sewer systems experience more frequent fail- ures. There are constitutionally based legal principles that apply when damage occurs to private property from broken water mains, sewer spills, and sewer backups. The concept of eminent domain—the government’s obligation to pay just compensation for the deliberate taking of private prop- erty—is well known to practicing lawyers. Less well known is the con- cept of inverse condemnation—the principle governing the public enti- ty’s obligation to provide compensation for the unintentional damaging of private property. In eminent domain, a governmental entity files a lawsuit and seeks an order for condemnation of the property, as well as the setting of an amount to be paid to the property owner as just compensation. In inverse condemnation, the property owner files a lawsuit to recover compensation for damage done to his or her prop- erty as a result of a government project. The property owner alleges that the government has “taken” his or her property, even if unin- tentionally, by damaging it.3 proof of negligence on the part of the government or its political sub- Such damage may arise from many causes, including landslides, divisions.6 Inverse condemnation claims are also not subject to typ- water damage, and sewage damage. For example, a municipal util- ical defenses to tort claims brought against governmental entities for ity or water district’s water main may break, and escaping water may property damage, for example the design immunity defense.7 damage one or a few homes. The escaping water may even saturate Moreover, the property owner’s recovery of damages under inverse the soil under a home, causing subsidence and eventual damage to condemnation claims is superior in that the prevailing property the structure. A sewer system may discharge sewage into a home due owner is entitled to attorney fees and expert witness expenses.8 to a blockage from tree roots or a shift in pressure during system-wide However, the property owner is not entitled to recover emotional dis- cleaning. While the entire community benefits from the public pro- tress damages, because the claim is limited to property damage.9 The ject—the water delivery system or the sewage system—one or a few property owner may also be entitled to relocation expenses.10 property owners may bear a disproportionate share of project costs, In inverse condemnation cases for property damage caused by as over an entire system it can be expected that there will be some unin- water main breaks and sewer backups and spills, courts apply a strict tended, unpredictable events. The law considers the ensuing damage liability test. Thus, the government, or a utility company that has the to be part of the overall cost of the project. power of eminent domain11 will be held liable for any damage to real Inverse condemnation provides the unfairly burdened property property caused by the public project, whether or not the damage was owner with a claim that is in many ways superior to tort causes of foreseeable, and whether or not the government acted negligently so action. With regard to liability issues, inverse condemnation claims long as the plaintiff proves a substantial cause-and-effect relationship are superior because the claims are based upon the U.S. and California between the public project or improvement and the damages.12 This Constitutions.4 Thus, the property owner is not required to present liability derives from constitutional and public policy considerations a claim against the governmental entity within the relatively short time that justify spreading the costs of public improvements benefitting the limit that is required under the Government Claims Act.5 That act is a trap for the unwary property owner that often proves to be an insur- Joyce S. Mendlin and Roger M. Rosen are partners in Rosenberg Mendlin & mountable bar to an otherwise potentially successful claim for prop- Rosen, LLP, in Santa Monica whose practice emphasizes inverse condemna-

RICHARD EWING erty damage. In addition, inverse condemnation claims do not require tion, real property litigation, and business litigation.

14 Los Angeles Lawyer April 2015 entire community among those who benefit nation theory.24 The trial court had entered tion’ is applied to an action by an owner to recover dam- rather than shifting the risk of loss onto just judgment for the defendant, declining to apply ages for injury to his or her property from some public works undertaking or other activity by an agency with 13 one or a few members of the community. strict liability principles. The court of appeal power to condemn. The designation was coined because reversed, holding that not only was the strict lia- Water Main Cases the object—compensation for property damaged in con- bility test appropriate but also the plaintiff nection with a public use—is the same as in a condem- The Los Angeles DWP’s reaction to the UCLA was not required to prove the specific mecha- nation action.”); Customer Co. v. City of Sacramento, water main burst likely was influenced by set- nism that caused the sewage to back up.25 10 Cal. 4th 386, 379 (1995) (“[T]he words ‘or damaged’ were added to clarify that the government was obligated tled case law in this area. For example, in Instead, the law placed the burden on the city to pay just compensation for property damaged in con- Pacific Bell v. City of San Diego, in which a to prove that forces other than its project or nection with the construction of public improvements, water pipe owned and maintained by the city improvement, acting alone, caused the damage even if the government had not physically invaded the of San Diego burst, flooding the basement of to the home.26 damaged property.”). 4 Pacific Bell’s facility.14 The court of appeal In Ambrosini v. Alisal Sanitary District, 27 U.S. CONST. amend. V; CAL. CONST. art. I, §19. 5 GOV’T CODE §§810, 900, 905, 911.2; City of Stockton held that strict liability was applicable.15 Em- the court of appeal affirmed a finding of v. Superior Court, 42 Cal. 4th 730, 741 (2007) (explain- ploying the strict liability standard, the court inverse condemnation liability against the ing the requirement to file a claim in most instances); found that the city’s water delivery system defendant sanitary district when its sewer GOV’T CODE §905.1 (“No claim is required to be filed was a public improvement, the design, main- outfall line overflowed and damaged the plain- to maintain an action against a public entity for taking tenance, and construction of which led to the tiffs’ celery field. The court found the defen- as of, damage to, private property pursuant to Section .” . deterioration and subsequent breaking of the dant liable in inverse condemnation despite the 19 of Article 1 of the California Constitution ) 6 Albers v. County of Los Angeles, 62 Cal. 2d 250, water pipe, subjecting the city to inverse con- occurrence of more than three times the his- 263-64 (1965). 16 demnation liability. The court further found toric monthly average rainfall, which con- 7 GOV’T CODE §830.6. that policy considerations mandated applica- tributed to the overflowing of the sewer out- 8 CODE CIV. PROC. §1036. tion of a strict liability standard in this type of fall line. Furthermore, the court explained 9 Brandenburg v. Los Angeles County Flood Control Dist., case because the costs of a public benefit—in that the defendant was liable for inverse con- 45 Cal. App. 2d 306 (1941) (A claim for the death of the plaintiff’s son from a flood is not actionable in inverse con- this instance, a water delivery system—should demnation regardless of whether the defendant demnation; wrongful death is not a property claim). be distributed among those who benefited by acted intentionally or negligently in causing the 10 GOV’T CODE §§7260-77. the public improvement rather than imposing damages,28 and regardless of whether the 11 Barham v. Southern Cal. Edison Co., 74 Cal. App. 4th a disproportionate burden on the individual damages were foreseeable.29 744, 752-53 (1999) (a privately owned utility company who was harmed by the improvement.17 The In Amador Valley Investors v. City of may be liable on an inverse condemnation claim). 12 Albers, 62 Cal. 2d at 263-64; California State Auto. same result obtained in Holtz v. Superior Livermore, 30 the plaintiff landowners brought Ass’n Inter-Ins. Bureau v. City of Palo Alto, 138 Cal. App. 18 Court, in which a property owner who was an inverse condemnation action for damages 4th 474, 484 (2006). damaged by construction of part of the BART allegedly caused by the defendant city’s dis- 13 Pacific Bell v. City of San Diego, 81 Cal. App. 4th 596, subway system was permitted to pursue an charge of treated sewage water into a creek that 602 (2000); see also Holtz v. Superior Court, 3 Cal. 3d inverse condemnation claim.19 flowed through the plaintiffs’ property. The 296, 311 n.17 (1970); Arno Van Alstyne, Inverse Condemnation: Unintended Physical Damage, 20 HAST. Pacific Bell followed and relied upon Mc- court of appeal found the city’s conduct action- L. J. 431, 493-95 (1969). Mahan’s of Santa Monica v. City of Santa able and that discharge of the sewage water 14 Pacific Bell, 81 Cal. App. 4th at 600. Monica.20 In that case, the plaintiff’s furniture into the creek was the proximate cause of the 15 Id. at 602 (“Damage caused by the public improve- store was damaged after a city-owned-and- plaintiffs’ damages.31 ment as deliberately conceived, altered or maintained may operated water main running under the alley- It is settled law that courts apply a strict lia- be recovered under inverse condemnation and the pres- way behind the store burst, causing a 75-foot bility test in inverse condemnation cases involv- ence or absence of fault by the public entity ordinarily is irrelevant.”) (citations omitted). geyser to spew out of the break. The property ing property damage caused by water main 16 Id. at 607-08. owner brought an inverse condemnation action breaks and sewer backups and spills. Under this 17 Id. at 615. against the City of Santa Monica. The city standard, any injury to real property proxi- 18 Holtz v. Superior Court, 3 Cal. 3d 296 (1970). argued that it was not liable because the dam- mately caused by a public improvement is 19 Id. at 303-04. 20 age was not caused by a public improvement compensable under both federal and California McMahan’s of Santa Monica v. City of Santa Monica, 146 Cal. App. 3d 683, 687 (1983). 21 as deliberately planned and built. The court constitutional law, regardless of whether the 21Id. at 693. of appeal rejected this argument, finding that injury was foreseeable or whether the public 22 Id. at 697-98 (“[T]he City was taking a calculated risk the city’s program of water main installation entity was negligent. I by adopting a plan of pipe replacement and maintenance and replacement was a public improvement and that it knew was inadequate.”). 23 California State Auto. Ass’n Inter-Insur. Bureau v. City that its adoption of the water main replacement 1 Alice Walton, UCLA Flood: DWP starts paying dam- of Palo Alto, 138 Cal. App. 4th 474, 477 (2006). and maintenance plan constituted a deliberate age claims from water main break, S. Cal. Pub. Radio 24 Insurance companies, as subrogees of property own- (September 11, 2014), available at http://www.scpr.org. act, subjecting the city to inverse condemnation ers, are entitled to seek compensation for inverse con- 2 Ben Poston, Matt Stevens, & Emily Alpert Reyes, liability for the resulting damages, whether demnation. Aetna Life & Casualty Co. v. City of Los L.A. identifies riskiest pipes in aging water system, L.A. 22 Angeles, 170 Cal. App. 3d 865, 875 (1985); McMahan’s those damages were foreseeable or not. TIMES (Nov. 6, 2014); Ben Poston, Matt Stevens, & of Santa Monica, 146 Cal. App. 3d at 691; Travelers Emily Alpert Reyes, More than 40% of Los Angeles Sewer Cases Indem. Co. v. Ingebretsen, 38 Cal. App. 3d 858, 863- water pipes graded C or worse, L.A. TIMES (Nov. 6, 64 (1974). 2014); Ben Poston & Matt Stevens, L.A.’s aging water Sewer cases follow the same general rule as 25 California State Auto. Ass’n, 138 Cal. App. 4th at 483- pipes; a $1-billion dilemma, L.A. TIMES (Feb. 16, 2015); water main cases, in that strict liability applies. 84. Ben Poston, Matt Stevens, & Sarah Parvini, Under more 26 Id. at 481-83. In California State Automobile Association pressure in hilly areas, old water mains prone to breaks, 23 27 Ambrosini v. Alisal Sanitary Dist., 154 Cal. App. 2d Inter-Insurance Bureau v. City of Palo Alto, L.A. TIMES, (Feb. 18, 2015). 720, 730-31 (1957). backups in the defendant city’s sewer pipe 3 CAL. CONST. art. I, §19 (“Private property may be taken 28 Id. or damaged for a public use and only when just com- caused raw sewage to enter a home. The home- 29 Id. at 730. pensation, ascertained by a jury unless waived, has first owner’s insurer paid the homeowner’s claim for 30 Amador Valley Investors v. City of Livermore, 43 been paid to, or into court for, the owner.”); 8 WITKIN, property damages and then sought subrogation Cal. App. 3d 483, 488 (1974). SUMMARY OF CALIFORNIA LAW: CONSTITUTIONAL LAW 31 Id. at 492-93. against Palo Alto under an inverse condem- §1143 (10th ed. 2005) (“The term ‘inverse condemna-

Los Angeles Lawyer April 2015 15 by Robert M. Heller

Doubling Down Doubling Down California has yet to follow Delaware and other jurisdictions and allow double derivative standing

ALTHOUGH DOUBLE DERIVATIVE corporation is controlled by the wrongdoers who wished to reduce or eliminate the risk of standing has been adopted in many jurisdic- who may be expected to refuse to file suit breach of fiduciary duty and other actions tions outside California to address the mod- against themselves.3 On the other hand, when against themselves could simply form and ern corporate form,1 California courts have an individual owns an interest in a parent operate through a corporate subsidiary while yet to rule on whether it will be allowed in this company, and its subsidiary is the target of also controlling the parent.5 For this reason, state. Application of the double derivative wrongdoing, the individual does not directly numerous jurisdictions have kept stride with principle permits a shareholder of a parent own shares in the subsidiary.4 Classic single “the realities of the changing techniques and company to sue for harm to its subsidiary and derivative standing does not convey a right to structures of the modern corporation.”6 Courts prevents corporate fiduciaries from using the sue on behalf of the subsidiary, because the in other states have recognized and steadily parent-subsidiary form to circumvent share- individual only owns an interest in the par- expanded the double derivative category of holder derivative litigation. California’s pol- ent. Technically, only the parent, as the direct standing, which allows an owner in a parent icy of affording a right for every wrong, how- owner of the subsidiary, has single derivative company to file suit in favor of a subsidiary.7 ever, portends California’s adoption of double standing to sue on behalf of the subsidiary. Foreign Law derivative standing.2 What recourse, then, exists if the sub- Shareholders, limited partners, LLC mem- sidiary’s board refuses to file suit, and the Double derivative theory evolved over a cen- bers, and others may bring a derivative action board of the parent also refuses to bring a tury ago.8 It was well established in New York on behalf of an entity when that entity has suf- single derivative action on the subsidiary’s as early as 1948,9 in Delaware as early as fered harm and those controlling it refuse to behalf? If no other person has standing to sue, 1963,10 and has been applied and ex- panded file suit. The right of an individual to sue a subsidiary could be left without a remedy. in numerous other jurisdictions as well as in the derivatively is critical to ensure that insider The mere layer of a second corporate structure corporate wrongdoing is addressed. In fact, could insulate wrongdoers under a simple for- Robert M. Heller practices business litigation with

it is the only recourse available when the mula of abuse: corporate boards and officers an emphasis on shareholder disputes. KEN CORRAL

16 Los Angeles Lawyer April 2015 n Model Business Corporations Act.11 The ques- actions also had equitable, rather than purely California practitioners representing the tion of whether California will adopt double statutory, origins. would-be double derivative plaintiff may cite derivative standing can, in part, be evaluated California courts are also likely to look to the foreign cases discussed above and may fur- by examining the reasons double derivative Delaware decisions.19 For decades, Delaware ther consider advancing additional arguments standing has been adopted in other states. courts have recognized double derivative to secure standing. A particularly illustrative opinion was standing, and in 2010, the Delaware Supreme First, Corporations Code Section 800(b), issued in 1988 by the Illinois Supreme Court Court greatly expanded the theory in Lam- which authorizes shareholder derivative suits, in Brown v. Tenney.12 There, three share- brecht v. O’Neal.20 The Lambrecht court expressly permits derivative actions by “a holders formed a corporation, appointed first reviewed prior Delaware decisions, such shareholder, of record or beneficially.” The themselves to its board of directors, and oper- as Sternberg v. O’Neil,21 in which the parent legislature added the term “beneficially” to ated the business. They then formed a sepa- company acquired the subsidiary before the Section 800(b) in 1975, but did not define the rate corporation to act as a holding com- alleged wrongdoing had occurred. The term. Pearce v. Superior Court,26 a 1983 pany, exchanged their shares for an equal Lambrecht court confirmed: “In these cir- appellate court decision, was the first case to percentage of the holding company’s shares, cumstances, our law recognizes a right to examine the new term, observing that bene- and elected themselves as directors of the proceed double derivatively. Otherwise, there ficial shareholder standing was added as part holding company. would be no procedural vehicle to remedy the of “the 1975 liberalization of the standing The plaintiff, a minority shareholder in the claimed wrongdoing in cases where the par- requirements” to bring California in line with parent, alleged that the defendants breached ent company board’s decision not to enforce the majority rule.27 Framing the term within their fiduciary duties by converting corporate the subsidiary’s claim is unprotected by the the context of both the legal definition and funds of the subsidiary and that both the business judgment rule.”22 The Lambrecht that of usage in ordinary social discourse, parent and the subsidiary were controlled court further reasoned that double derivative Pearce stresses that a “liberal and expansive by the wrongdoers, who refused to sue. The standing arises “where the parent corpora- reading of section 800 and the phrase ‘share- plaintiff shareholder brought a derivative tion’s board is shown to be incapable of mak- holder…beneficially’” is proper.28 lawsuit on behalf of the parent and its sub- ing an impartial business judgment regarding Pearce holds that a beneficiary of corpus sidiary. The trial court refused to recognize whether to assert the subsidiary’s claim.”23 of a trust was a “beneficial stock owner” double derivative theory for the subsidiary’s The Lambrecht case, however, presented under Section 800(b), even though the ben- suit, the appellate court reversed, and the an even more complex issue. The Lambrecht eficiary did not personally own the corporate Illinois Supreme Court accepted the appeal. plaintiff had initially owned shares in the stock. In a subsequent case, Patrick v. Alacer The Illinois Supreme Court noted that a corporation at issue individually and directly, Corporation, the wife of a shareholder with “double derivative action is a long-standing and had properly filed a single derivative a community property interest in her hus- doctrine of equity jurisprudence” and the case on behalf of that nominal defendant band’s shares was deemed a beneficial owner “overwhelming weight of authority does corporation. During the litigation, the nom- with derivative standing, despite the fact the accept the double derivative action.”13 The inal defendant entity merged with another stock was not in her name.29 Thus, Section Illinois high court agreed with the plaintiff, corporation, thereby causing plaintiff to lose 800(b) expressly creates an exception to direct finding that “this court should not be derailed direct shareholder status. The court noted stock ownership, opening the door to the by convenient corporate formations which do that a “post-merger double derivative action” argument that a parent company shareholder not reflect business realities.”14 Illinois had a was “a new, distinct action in which stand- is a “beneficial” owner of the subsidiary’s well-settled principle to look beneath the cor- ing to sue double derivatively rests on a stock and, as such, expressly granted stand- porate veil and disregard legal fictions “when different temporal and factual basis—namely, ing by legislative enactment. used as a shield for wrongful acts.”15 The the failure of the [current] board, post-merg- Second, California’s creation of single court was more concerned with protecting the er, to enforce the premerger claim of its derivative law was initially based in equity,30 natural persons for whom the corporations wholly-owned subsidiary.”24 Despite the more and California strongly supports the “fun- were created rather than the “artificial crea- complicated ownership issues presented, the damental principle of our system of jurispru- tures in whom legal title is vested.”16 Delaware Supreme Court nevertheless con- dence that for every legal wrong there is a The Illinois Supreme Court was further firmed that “Delaware case law clearly en- remedy.”31 California compensates injured persuaded that corporate officers and direc- dorses the double-derivative action as a post- parties for all damage proximately caused tors are fiduciaries and that single-derivative merger remedy” and extended double- by the wrongdoer unless a departure from the standing evolved to ensure someone could derivative standing to those circumstances basic principle is “mandated by a legislative represent the interests of corporations and as well.25 exception or by strong public policy.”32 When shareholders should the fiduciaries fail to act individuals are subjected to conduct by oth- California Law properly. The court reasoned that double ers that is deemed unfair and contrary to derivative standing merely extended single Despite the acceptance of double derivative public policy, the courts have full power to derivative theory, so that the “beneficiary is standing elsewhere, the theory has remained afford necessary protection.33 Thus, even if a in turn also a fiduciary” that deserves repre- an elusive issue of first impression in Cal- California court were to find in Section 800(b) sentation should interlocking directorates or ifornia and has avoided full evaluation in a that “beneficial” shareholder language did not collusion result in lack of representation.17 published decision in the state’s courts. legislatively sanction double derivative stand- Otherwise, “the subsidiary is accountable to California’s lack of precedent complicates ing, California is rife with authority to sup- no one since its shareholder, the holding com- matters for California practitioners since, port the theory based on equity alone. pany, is controlled by the wrongdoers.”18 given the popularity of the parent-subsidiary Third, California opinions that have had The Illinois court rejected the defendants’ form, the double derivative standing issue indirect brushes with double derivative the- contention that recognizing double deriva- will likely arise in shareholder disputes. ory are favorable. In Gaillard v. Natomas tive actions was tantamount to judicial legis- Moreover, since a successful lack of standing Company,34 the court considered double lation. The court swiftly disposed of that defense can terminate all liability, fiduciary derivative theory in the context of a merger. argument by noting that single derivative defendants will likely contest the issue. Before the merger was effective, the plaintiff

18 Los Angeles Lawyer April 2015 stockholder filed a single derivative share- Supreme Court in Lambrecht seemingly soon be expressly adopted in this state. In holder suit against Natomas’s officers and pulled the rug out from under the Grosset Kruss v. Booth,46 the plaintiff’s second directors challenging their substantial bene- decision, expressly recognizing that double amended complaint alleged double derivative fits approved as part of the merger. Within derivative standing does, in fact, exist under theory. The appellate court reversed the trial hours after the complaint was filed, the merger Delaware law to afford standing in the post- court and permitted the pleading to stand concluded, forcing the plaintiff to exchange merger context.42 Because Grosset did not on demurrer, thus implicitly recognizing that her shares in Natomas for common stock in consider double derivative standing, Grosset double derivative standing exists in California. the second company, which became the sole is not controlling on that issue and remains Additionally, in Villari v. Mozilo,47 the shareholder of Natomas’s common stock. one of first impression in California. The plaintiff alleged multiple double derivative The trial court held that the plaintiff lost question thus remains whether California actions after a postcomplaint merger, but standing to proceed derivatively when she courts will follow Delaware’s numerous opin- then dropped the double derivative theory was no longer a Natomas shareholder. Upon ions, including Lambrecht, which hold that of standing on appeal. Despite this, the court reversing the decision, the took the opportunity to appellate court framed the cite and even quote exten- issue before it narrowly with- sively from Lambrecht, in single derivative theory, concluding “The continu- and concluded that Section ous ownership rule, how- 800(b)(1) did not require the ever, does not preclude a plaintiff to maintain con- double derivative action by tinuing shareholder status a former shareholder.”48 throughout the litigation, as Apparently, the only thing it would “leave Gaillard and standing in the way of dou- all those similarly situated ble derivative standing in without a remedy.”35 Villari was the fact that the The Gaillard cour t’s con- plaintiff had abandoned it. cern over its plaintiff’s po- California courts may tential lack of remedy was also be influenced by the prompted by its further com- Ninth Circuit’s holding ments about double deriva- in In re Imperial Corpora- tive standing, whereby the tion of America,49 in which court concluded that double the Ninth Circuit consid- derivative standing could not ered whether double deriv- aid its plaintiff “in the context ative standing existed in of this case.”36 First, Gaillard the context of the doctrine reasoned that a double deri- of claim preclusion (res vative action would be dis- judicata).50 The court ob- missed as moot under its served that claim preclu- unique facts because it re- sion bars not only claims sulted in the “anomalous” sit- that were actually litigated uation of a corporation, post- but also any claims that merger, “suing itself for its own benefit, because double derivative standing is, and has been, could have been litigated. In a prior lawsuit, of acts it performed.”37 Second, the court rea- a viable theory for decades, whether under the the shareholders brought and settled a single soned that its plaintiff did not own the parent postmerger cases or otherwise. derivative action against the officers and company at the time of the alleged wrongdo- It seems likely that California will do so, directors relating to the failure of Imperial ing or filing of the complaint, and thus could given that California courts have historically Savings Association, which was a wholly not meet the contemporaneous shareholder been persuaded by and often follow Delaware owned subsidiary of Imperial Corporation of requirement for the parent company. The corporate case law.43 Grosset itself illustrates America.51 However, the shareholders only Gaillard court carefully limited its holding, a circumstance in which the action of the sued the parent company Imperial Corpor- thereby implicitly recognizing that double California Supreme Court could be inter- ation of America and did not bring a double derivative standing could be viable based on preted as desiring to parallel Delaware law.44 derivative lawsuit on behalf of the subsidiary. other facts and circumstances.38 A number of Moreover, given that the Grosset court has The Federal Deposit Insurance Corpor- authorities continue to describe Gaillard as already concluded that Delaware’s statutory ation (FDIC), as receiver for the failed sub- looking favorably on the double derivative “contemporaneous ownership” requirement sidiary, brought a separate action on behalf suit concept.39 is the same as, if not narrower, than Cali- of the subsidiary against the same officers and In Grosset v. Wenaas,40 the California fornia’s requirement for the purpose of sin- directors for the same conduct. After con- Supreme Court overruled Gaillard’s holding gle derivative standing,45 California courts cluding that the FDIC was in privity with the on postmerger standing. Without address- will be hard pressed to now attempt to dis- prior shareholder plaintiffs (a requirement for ing double derivative theory, and under what tinguish California law from Delaware law or claim preclusion), the court further examined was essentially a single derivative analysis, the otherwise conclude that double derivative which claims the prior shareholder plain- Grosset court concluded that under both standing cannot exist in California in light of tiffs had or could have brought. Although the Delaware’s and California’s contemporaneous Lambrecht. subsidiary was not a named defendant or a ownership rules a postmerger plaintiff does Since Lambrecht, two California appellate party to the settlement in the prior litigation, not have standing and dismissed the appeal.41 courts have seemingly concurred and tele- the Court cited Gaillard for the definition of However, two years later, the Delaware graphed that double derivative standing may double derivative and held that the prior

Los Angeles Lawyer April 2015 19 shareholder plaintiffs “could have brought a proper double derivative suit” on behalf of the parent in the prior action.52 After rec- ognizing that double derivative standing would have allowed the prior shareholder plaintiffs to sue on behalf of the subsidiary, the court concluded that the FDIC’s claim on behalf of the subsidiary was barred by claim preclusion in the present action.53 The primary function of double deriva- tive theory is to provide a remedy to indi- viduals when both the parent company and the subsidiary refuse to act; it favors sub- stance over form and promotes equity for the individual rather than the fiction of the corporate structure. Although California courts have yet to issue a clear, published decision on whether a double derivative plaintiff, in fact, has standing in this state, the nationwide move in that direction and the compelling reasons in favor of the the- ory should be persuasive argument leading to the formal, explicit approval of double derivative standing in California I

1 Webre v. Sneed, 358 S.W. 3d 322, 334 (Tex. App. 2011) (“Many other jurisdictions” recognize double derivative standing.); West v. West, 825 F. Supp. 1033, 1054 (N.D. Ga. 1992) (citing 3B MOORE’S FEDERAL PRACTICE §23.1.16[1] (1991) (“The general rule under existing federal case law is that double or multiple derivative actions are permissible.”). 2 “It is a fundamental principle of our system of jurispru- dence that for every legal wrong there is a remedy (CIV. CODE §3523), and that an injured party should be com- pensated for all damage proximately caused by the wrongdoer unless a departure from the basic principle is mandated by a legislative exception or by strong pub- lic policy.” Barbara A. v. John G., 145 Cal. App. 3d 369, 376 (1983). 3 FRIEDMAN, CALIFORNIA PRACTICE GUIDE: CORPOR- ATIONS §§6:602-03 (2006). 4 The use of subsidiaries has become “increasingly popular with the growth and sophistication of the modern corporate enterprise. The reasons for this are complex and varied. Subsidiaries may be useful for tax reasons, for achieving the advantages of limited liability, for centralizing control in a relatively small percentage of stock ownership, for qualifying to do business under the laws of the various states, for reasons related to financing, and doubtless for a number of other pur- poses.” William H. Painter, Double Derivative Suits and Other Remedies with Regard to Damaged Subsidiaries, 36 IND. L. J. 143 (1961). 5 “The holding company has given rise to numerous new problems of the protection of stockholders from the misconduct of their directors.” Note, Remedies of Stockholder of Parent Corporation for Injuries to Subsidiaries, 50 HARV. L. REV. 963 (1937). 6 Brown v. Tenney, 532 N.E. 2d 230, 233–234 (Ill. 1988). 7 See, e.g. Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Florida, Inc., 140 F. 3d 898, 910 n.5 (11th Cir. 1998); Pessin v. Chris-Craft Indus., Inc., 181 A.D. 2d 66, 72 (N.Y. App. Div. 1992); Webre v. Sneed, 358 S.W. 3d 322, 334 (Tex. App. 2011); West v. West, 825 F. Supp. 1033, 1054 (N.D. Ga. 1992); and cases dis- cussed below. 8 Ryan v. Leavenworth, Atchison & Northwestern R.R. Co., 21 Kan. 365, 402-04 (1879) (“If any other rule were adopted, the plaintiffs would be denied all

20 Los Angeles Lawyer April 2015 relief, and the wrongs of which they complain would 1058 (3d Cir. 1976). 39 See e.g., WEIL & BROWN, CALIFORNIA PRACTICE go unredressed.”). 26 Pearce v. Superior Court, 149 Cal. App. 3d 1058 GUIDE: CIVIL PROCEDURE BEFORE TRIAL §6:612.3; ANN 9 Saltzman v. Birrell, 78 F. Supp. 778, 783 (S.D. N.Y. (1983). TAYLOR SCHWING, 1 CALIFORNIA AFFIRMATIVE DEFENSES 1948). 27 Id. at 1064-65. §12:15 (2013); JUSTICE ELIZABETH A. BARON (RET.) & 10 Leibert v. Grinnell Corp., 194 A. 2d 846, 847 (Del. 28 Id. In arriving at a meaning that “reflects a common LOUISE A. LAMOTHE, BUSINESS LITIGATION (CALIFORNIA Ch. 1963); see also Levine v. Milton, 219 A. 2d 145, understanding,” the court referenced both Black’s CIVIL PRACTICE) §2:1; Brokers §514 in 15 CALIFORNIA 146 (Del. Ch. 1966). Law Dictionary (1968) and The American Heritage JURISPRUDENCE 3D. 11 2 Model Business Corp. Act 761-62 (3d ed. Supp. Dictionary of the English Language (1981). 40 Grosset v. Wenaas, 42 Cal. 4th 1100 (2008). 1987); see also Model Business Corp. Act 50 (2d ed. 29 Patrick v. Alacer Corp., 167 Cal. App. 4th 995, 1011 41 Id. at 1119. 1971); United States Lines, Inc. v. United States Lines (2008). 42 Lambrecht v. O’Neal, 3 A. 3d 277, 293 (Del. 2010). Co., 96 F. 2d 148 (2d Cir. 1938); Hirshhorn v. Mine 30 Rosenfeld v. Zimmer, 116 Cal. App. 2d 719 (1953). 43 See, e.g. Oakland Raiders v. National Football Safety Appliances Co., 54 F. Supp. 588, 592 (W.D. Pa. 31 CIV. CODE §3523. League 93 Cal. App. 4th 572, (2001); Shields v. 1944). 32 Barbara A. v. John G., 145 Cal. App. 3d 369, 376 Singleton, 15 Cal. App. 4th 1611 (1993). 12 Brown v. Tenney, 532 N.E. 2d 230, 233–234 (Ill. (1983). 44 Grosset, 42 Cal. 4th at 1110 (“Like Delaware, 1988). 33 Williams v. Int’l Bhd. of Boilermakers, 27 Cal. 2d California has a statute that imposes stock ownership 13 Id. at 234. 586, 590 (1946). requirements for standing to pursue a shareholder’s 14 Id. 34 Gaillard v. Natomas Co., 173 Cal. App. 3d 410, 419- derivative suit.” The court then applied what it believed 15 Id. 20 (1985). to be Delaware law to arrive at its decision as to 16 Id. 35 The court reasoned: “We could well have a situation California law.). 17 Id. at 235. where a shareholder files a derivative action, navigates 45 Grosset, 42 Cal. 4th at 1119. 18 Id. laboriously through the pleading stage, undertakes exten- 46 Kruss v. Booth, 185 Cal. App. 4th 699, 706 (2010). 19 See, e.g. Oakland Raiders v. National Football sive discovery, incurs sizeable monetary obligations, and 47 Villari v. Mozilo, 208 Cal. App. 4th 1470, 1479 n.10 League, 93 Cal. App. 4th 572, 586 n.5 (2001); Shields then, after an elapse of several years, is precluded from (2012). v. Singleton, 15 Cal. App. 4th 1611, 1621 (1993). proceeding further because his or her corporation has just 48 Id. at 1480. 20 Lambrecht v. O’Neal, 3 A. 3d 277 (Del. 2010). merged with another. It could not have been the inten- 49 In re Imperial Corp. of Am., 92 F. 3d 1503, 1510 21 Sternberg v. O’Neil, 550 A. 2d 1105 (Del. 1988). tion of the Legislature that the adjudication of an alleged (9th Cir. 1996). 22 Lambrecht, 3 A. 3d at 283. wrong be concluded in this manner.” Id. at 414. 50 The Ninth Circuit does not expressly state whether 23 Id. at 282 (citing Rales v. Blasand, 634 A. 2d 927 36 Id. at 419. it was applying California or federal law to the dou- (Del. 1993)). 37 Id. ble derivative issue. However, the court cites to Gaillard 24 Lambrecht, 3 A. 3d at 290. 38 Notably, in Lambrecht v. O’Neal, 3 A. 3d 277 (Del. v. Natomas Co., 173 Cal. App. 3d 410, 419-20 (1985) 25 Federal courts also permit double derivative stand- 2010), the Delaware Supreme Court held otherwise, and and had exercised diversity jurisdiction. Thus, it pre- ing. See 7c CHARLES ALAN WRIGHT, ARTHUR R. MILLER, confirmed that double derivative standing does exist in sumably based its recognition of double derivative & MARY K. KANE, FEDERAL PRACTICE AND PROCEDURE a postmerger case. Despite this inconsistency, both standing upon California law. §1821 (3d ed. 2007); see also Blasband v. Rales, 971 the Lambrecht and Gaillard courts were united in the 51 In re Imperial Corp. of Am., 92 F. 3d at 1505. F. 2d 1034, 1043 (3rd Cir.1992); In re Pittsburgh & quest to ensure that the plaintiff shareholder continued 52 Id. at 1510. L.E.R. Co. Securities and Antitrust Litig., 543 F. 2d to have standing to pursue the alleged wrongdoing. 53 Id. at 1507-09.

22 Los Angeles Lawyer April 2015 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE legal ethics credit. To apply for credit, please follow the instructions on the test answer sheet on page 25.

by John W. Amberg and Jon L. Rewinski ETHICS 2014ROUNDUP California attorneys confronted ethical issues involving nonparty client secrets, conflicts of interest, division of fees, law firm dissolutions, and advertising

DRAMATIC EVENTS roiled California’s its president2 and claiming retaliation because Judicial Performance in a split vote.6 legal ethics world in 2014. In a shocking let- he was an anonymous whistleblower, a posi- Two married lawyers found guilty of fel- ter to the state bar, the California Supreme tion the bar described as “bewildering…since ony false imprisonment and conspiracy faced Court rejected all 67 proposed rules of pro- as the executive who is head of the entire disbarment. Kent Easter, a former partner fessional conduct drafted over nine years by organization he is responsible for managing with Stradling Yocca Carlson & Rauth PC, the Commission for the Revision of the Rules operations.…”3 and his wife Jilliane Easter embarked on a of Professional Conduct and approved by Two judges narrowly avoided removal malicious campaign against a volunteer at the State Bar Board of Trustees. The court from the bench after they were charged with their six-year-old son’s school that culmi- scuttled years of volunteer effort by the state’s having sex in their chambers and lying about nated in planting marijuana, Vicodin, Perco- most venerable ethics experts, but a new it, in violation of the Code of Judicial Ethics. cet, and a marijuana pipe in their victim’s car, commission, whose members were announced Kern County Superior Court Judge Cory and calling the police using a false name and on January 30, includes some veterans who Woodward engaged in sexual activity with his foreign accent to have her arrested. Jilliane are likely to build on the work product of married courtroom clerk in chambers and their predecessors.1 public places, and misled the presiding judge, John W. Amberg is a partner in the Los Angeles The state bar abruptly fired Executive assistant presiding judge, and court executive office of Bryan Cave LLP, and Jon L. Rewinski is a Director Joseph L. Dunn after an investiga- officer about the relationship.4 Orange Coun- partner in the Los Angeles office of Locke Lord LLP. tion concluded Dunn had misled the board of ty Superior Court Judge Scott Steiner engaged Both are former chairs and Amberg is a current trustees by, among other things, representing in sexual activity in his chambers with two member of LACBA’s Professional Responsibility that Chief Justice Tani Cantil-Sakauye sup- women, both former students in law school and Ethics Committee. Amberg is also a former ported his proposal to sell the bar’s San classes taught by the judge, and one an chair and Rewinski is a former member of the Francisco headquarters and move to Sacra- intern.5 After the judges expressed remorse, California State Bar’s Committee on Professional mento. Dunn lashed back, suing the bar and they were censured by the Commission on Responsibility and Conduct.

Los Angeles Lawyer April 2015 23 was disbarred in October 2014, and Kent’s oranda, and e-mails evaluating Lemmon’s construction defects. A second suit was filed disbarment will be decided in 2015.7 performance, and Lemmon’s midyear and by separate counsel for individual home- California’s judicial branch continued to annual performance reviews. Lemmon moved owners for damage to individual units. The struggle to overcome $1 billion in budget to compel. The motion raised a host of thorny HOA’s counsel conducted a series of meetings cuts since 2008, which has forced the Los issues regarding the attorney-client privilege with homeowners to update them on the sta- Angeles Superior Court to close eight court- and work product doctrine, including the tus and goals of the litigation, though not all houses and 79 courtrooms. Though the state ability of Chubb, neither an attorney nor attendees were clients and some were con- budget provided $223 million in new fund- client, to assert the privilege on behalf of its sultants affiliated with the defendants. After ing, only $129 million was earmarked for trial insureds. The First Appellate District, how- the defendants sought to discover what was courts, and Los Angeles Presiding Judge David ever, focused on a narrow, preliminary issue— discussed at the meetings, arguing any priv- S. Wesley bluntly concluded, “[T]his year’s Chubb’s contention that a lawyer’s duty of ilege had been waived, the superior court budget is a disaster for access to justice.”8 confidentiality precluded each party from overruled the HOA’s privilege claim. The disclosing even to that party’s own litigation court of appeal vacated the lower court order Confidentiality counsel client secrets known by that party. and directed entry of a protective order. It held A lawyer’s obligation to maintain client secrets The trial court ordered Chubb and Lemmon that information from the lawyers did not lose is of fundamental importance, facilitating to disclose the client secrets to their respec- its confidential nature and the privilege was the candor necessary for clients to receive tive litigation counsel for evaluation of priv- not waived when disclosed to persons with a sound legal advice.9 Over 20 years ago, the ilege. At the same time, the court prohibited “common interest.”17 Under OXY Resources California Supreme Court admonished in them from disclosing the secrets to anyone California LLC v. Superior Court,18 the com- General Dynamics Corporation v. Superior else, including the court. mon interest doctrine is not subject to a bright Court that “[e]xcept in those rare instances Chubb petitioned the court of appeal for line test, and it applies when the participants when disclosure is explicitly permitted or a writ of mandate. The court issued an order have a reasonable expectation that informa- mandated by an ethics code provision or to show cause, but, after further briefing, tion will remain confidential and disclosure statute, it is never the business of a lawyer to discharged the order and denied the petition. is reasonably necessary to accomplish the disclose publicly the secrets of a client.”10 The court rejected Chubb’s argument that purpose for which the lawyer was consulted. More than 10 years ago, the Second District Lemmon was seeking to create a nonstatutory The test was met because the HOA had a duty Court of Appeal concluded in Fox Searchlight exception to the attorney-client privilege. to communicate with homeowners about the Pictures, Inc. v. Paladino that, notwithstand- Disclosure to one’s own lawyer constitutes litigation under the Davis-Stirling Common ing this general rule, a former in-house lawyer neither a public disclosure nor a waiver of any Interest Development Act19 and its covenants, could ethically disclose to her own attorney privilege. Likewise, Chubb’s prediction that conditions and restrictions. The court also client secrets of her former employer to facil- allowing such disclosure would spell doom for found that the two defect suits were closely itate the preparation of a wrongful termina- the attorney-client privilege was “entirely related, so the individual homeowners and the tion claim.11 In 2014, in Chubb & Son v. speculative.”13 Fundamental fairness requires HOA had common interests. The presence of Superior Court,12 the First District addressed that an attorney-litigant be allowed to make some with conflicting loyalties “did not a similar issue in the context of a lawyer-lit- a limited disclosure to his or her own lawyer destroy all other common interests.”20 igant claiming employment discrimination to the extent necessary to prepare a claim. Edward Snowden’s revelations about the against her former employer, a captive law “Attorney-litigants should not be deprived of government’s warrantless collection of elec- firm of insurer Chubb & Son. Unlike in Fox the right to independent, candid, professional tronic communications21 collided with the Searchlight, in Chubb & Son, the client secrets advice about their ethical duties under their attorney-client privilege when American belonged to persons not parties to the litiga- particular circumstances.”14 Finally, the appel- lawyers discovered that privileged commu- tion. When nonparty client secrets are in- late court saw no basis for creating a special nications had been monitored by allied intel- volved, how should the parties and their rule when the client secrets belong to non- ligence agencies abroad. The American Bar counsel handle discovery? parties. The litigation attorneys and attorney- Association demanded assurances that the Attorney Tracy Lemmon worked for litigants were under ethical, statutory, and National Security Agency was not actively Bragg & Kuluva, a law firm that represented court-imposed duties not to disclose the non- seeking attorney-client communications and Chubb’s insureds in litigation. Lemmon parties’ secrets, which would adequately pro- would “take all appropriate steps” to ensure alleged that she had consistently met or tect the nonparties’ interests. As the appellate that such communications were not dissem- exceeded expectations on her performance court noted, the trial court has an equitable inated. Lawyers were urged to take “rea- reviews until after she took medical leaves due arsenal of ad hoc measures at its disposal to sonable precautions” to protect confidential to complications with a pregnancy. Lemmon’s protect the nonparty client secrets, including communications with foreign clients by meet- postleave reviews, based in part on a law the use of sealing and protective orders, lim- ing in person, using encryption, and using pre- firm audit of her cases, stated that she fell ited admissibility of evidence, orders restrict- paid phones.22 short of her goals. Then, claiming that ing the use of testimony in successive pro- In-House Law Firm Privilege Lemmon had misrepresented facts in a court ceedings, and, when appropriate, in camera declaration, Bragg & Kuluva fired Lemmon. proceedings.15 Does a conflict of interest prevent a lawyer Lemmon sued Bragg & Kuluva and Chubb from seeking legal advice from designated Attorney-Client Privilege for disability discrimination, defamation, and general counsel of his or her firm on how to wrongful termination. Disclosure of confidential information to handle an ongoing client matter? Is the gen- Claiming a duty to protect the confiden- nonclients did not waive the attorney-client eral counsel’s advice to the lawyer privileged? tiality of its insureds’ secrets, Chubb refused privilege in Seahaus La Jolla Owners The Second District addressed these issues in to produce letters in which clients gave feed- Association v. Superior Court.16 A home- Edwards Wildman Palmer LLP v. Superior back on Lemmon’s performance. Chubb did owners association sued the developers and Court. 23 produce, but with redactions, Bragg & builders of a “common interest development” A contentious relationship with client Kuluva’s internal case reviews, internal mem- for water damage in common areas due to Shahrokh Mireskandari led an Edwards

24 Los Angeles Lawyer April 2015 MCLE Test No. 245 MCLE Answer Sheet #245 2014 ETHICS ROUNDUP

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

1. The California Supreme Court adopted new Rules of 11. A conservator’s suit against the estate’s lawyers is Address Professional Conduct in 2014. barred by unclean hands because the former conser- City True. vator’s malfeasance is imputed to the successor. State/Zip False. True. False. E-mail 2. Former in-house lawyers may ethically disclose the Phone secrets of their former employer to their own attorney 12. A new conservator can enforce the duties owed to State Bar # to prepare a wrongful termination claim. the prior conservator by the former lawyers. True. True. INSTRUCTIONS FOR OBTAINING MCLE CREDITS False. False. 1. Study the MCLE article in this issue. 2. Answer the test questions opposite by marking 3. Dis closure of privileged information to persons with 13. There is a split of authority in California whether the appropriate boxes below. Each question a common interest does not waive the privilege. malicious prosecution claims against a lawyer are gov- has only one answer. Photocopies of this True. erned by a one- or two-year statute of limitations. answer sheet may be submitted; however, this form should not be enlarged or reduced. False. True. False. 3. Mail the answer sheet and the $20 testing fee ($25 for non-LACBA members) to: 4. The presence of persons with conflicting loyalties destroys the common interest doctrine. 14. An attorney’s lien on settlement proceeds in a Los Angeles Lawyer MCLE Test True. successor lawyer’s client trust account is not enforce- P.O. Box 55020 False. able until after the lawyer files a separate action against Los Angeles, CA 90055 the former clients. Make checks payable to Los Angeles Lawyer. 5. Lawyers should take precautions to protect the con- True. 4. Within six weeks, Los Angeles Lawyer will fidentiality of communications with foreign clients from False. return your test with the correct answers, a government surveillance. rationale for the correct answers, and a True. 15. The Business and Professions Code requires a writ- certificate verifying the MCLE credit you earned False. ten fee agreement with an individual client. through this self-assessment activity. True. 5. For future reference, please retain the MCLE test materials returned to you. 6. A lawyer who consults with his firm’s general coun- False. sel regarding a problem with a client during the engage- ANSWERS ment breaches his or her fiduciary duty to the client. 16. Lawyers are not entitled to a multiplier on their Mark your answers to the test by checking the True. billing rate if they do not assume any contingent risk. appropriate boxes below. Each question has only False. True. one answer. False. 7. The attorney-client privilege for communications 1. I True I False between lawyers and their firm’s general counsel does 17. When a firm dissolves, all lawyers in the firm owe 2. I True I False not relieve the lawyers from reporting malpractice to the a duty to take steps to avoid prejudice to the clients. 3. I True I False client. True. 4. I True I False True. False. 5. I True I False False. I I 18. A dissolved law firm may recover fees earned on 6. True False 8. A conflict of interest between a criminal defendant ongoing matters for its former clients by successor 7. I True I False and his or her lawyer destroys the effective assistance firms. 8. I True I False of counsel. True. 9. I True I False True. False. 10. I True I False False. I I 19. It is unethical for a lawyer to imply an ability to 11. True False 9. A legal malpractice claim arising out of a 14-year-old improperly influence a judge. 12. I True I False settlement is time-barred. True. 13. I True I False True. False. 14. I True I False False. 15. I True I False 20. Photographs on an attorney’s website showing 16. I True I False 10. A lawyer may have a fiduciary duty under the the attorney at social events are not subject to rules gov- I I Probate Code to account for funds in his or her client erning attorney advertising. 17. True False trust account. True. 18. I True I False True. False. 19. I True I False False. 20. I True I False

Los Angeles Lawyer April 2015 25 Wildman Palmer lawyer to seek legal advice him with felony possession for sale of a con- property damage claim against insurer State from her firm’s separately designated in- trolled substance. Unbeknown to Harris and Farm, arising out of the Northridge earth- house general counsel and claims counsel the superior court at the time of the prelim- quake. The Engstrom firm had obtained more on how to handle Mireskandari and his inary hearing, attorney Diaz had himself been than $100 million for 93 insureds, including client matter. The appellate court concluded arrested and was facing felony charges by the plaintiffs, who received $500,000 after the that the attorney-client privilege can attach the same office that was prosecuting Harris. lawyers deducted their one-third fee. After to such intrafirm communications even while Moreover, the same deputy who had arrested conducting discovery and comparing notes the firm continued to represent Mireskandari, Harris and was the sole prosecution witness with other Engstrom clients, the plaintiffs as long as there was a genuine attorney- at his hearing had also arrested Diaz and contended that $22 million of the settlement client relationship between the inquiring was unaccounted for. The superior court sus- lawyer and general counsel. The court en- The rule’s requirements tained the lawyers’ demurrer to the amended dorsed a four-factor test developed by the complaint without leave to amend, holding Massachusetts Supreme Court: 1) the law apply to all lawyers of that the claims were barred under Solin v. firm must have formally or informally des- O’Melveny & Myers33 because the suit was ignated an in-house or ethics counsel, 2) the incapable of complete resolution without in-house lawyer must not have performed the dissolved firm and breaching the attorney-client privilege of any work on the underlying client matter or other Engstrom clients. a substantially related matter, 3) the time with respect to all The appellate court reversed, holding that spent on in-house communications cannot be disclosure of aggregate settlement information billed to the underlying client, and 4) the clients of the firm, did not require disclosure of confidential intrafirm communications must have been client information or implicate Solin.34 kept confidential.24 regardless of the Instead, it focused on the statutes of limita- The court in Edwards Wildman Palmer tion. The plaintiffs’ professional negligence rejected two federal cases holding that a con- lawyer’s status within and breach of fiduciary duty claims were flict of interest would preclude a lawyer from barred by Code of Civil Procedure Section forming a lawyer-client relationship with the the firm and regardless 340.6, which requires actions against an lawyer’s own firm with respect to an open attorney for a wrongful act or omission, client matter.25 Under the plain language of other than fraud, arising in the performance Evidence Code Sections 950 to 952, the of the lawyer’s personal of professional services” to be filed within one lawyer qualified as a client and the firm’s year after actual or constructive discovery general counsel and claims counsel qualified connection to any or four years after occurrence, whichever as “lawyers” for purposes of the privilege. The occurs first.35 However, noting that Section law firm’s fiduciary and ethical duties to specific client. 340.6 does not apply to fraud, the court con- Mireskandari did not trump the privilege. cluded that the plaintiffs’ fraud claims based Nor could Mireskandari imply a fiduciary was a potential witness against the lawyer. on the theory Engstrom had not properly or current-client exception to the privilege Harris learned this from the deputy, three distributed the aggregate settlement proceeds protecting the intrafirm communications.26 months later in jail. After his motion to set from its client trust account were not time- Courts have no power to limit the state’s aside the information resulting from the barred. In a novel approach, it relied on statutory privilege by recognizing implied flawed hearing was denied, he petitioned the Probate Code Section 16460, which applies exceptions. court of appeal. The appellate court described to a fiduciary’s duty to provide an account- As the court noted, the existence of the the lawyer’s conflict: “As a criminal defendant, ing to a beneficiary; Rule of Professional privilege does not undercut the law firm’s Diaz had an interest in maintaining a cordial Conduct 4-100(B)(3), which requires a lawyer and lawyer’s duty to keep a current client and cooperative (if not subservient) rela- to account for funds in the client trust apprised of developments in the client’s case. tionship with the district attorney’s office.… account; and Rule 3-310(D), which requires The privilege protects confidential commu- [But] Diaz’s duties with respect to charges informed written consent from each client nications between lawyer and client, but it simultaneously facing Harris almost certainly before entering into an aggregate settlement.36 would not excuse, for example, a firm from called for a different—perhaps somewhat The limitations period in Section 16460 is having to report to a current client the fact less conciliatory and more adversarial—rela- three years, the same as the general fraud that the firm had committed malpractice.27 tionship with the prosecutor’s office, were it statute, Code of Civil Procedure Section Such a reporting duty would arise under a not for his own contrary self-interest.”30 338(d), but discovery is triggered by the lawyer’s ethical obligation to keep a client rea- Declining to remand for a new preliminary receipt of an accounting or if no accounting sonably informed about significant develop- hearing, the court issued a writ, directing the is supplied, by facts sufficient to put the plain- ments in the client’s matter.28 lower court to dismiss the information.31 tiff on notice of wrongdoing. Engstrom’s accounting in 1997 was incomplete, the court Conflict of Interest Malpractice held, because it did not provide plaintiffs A client is entitled to representation by coun- Neither the passage of more than a dozen with sufficient information to evaluate sel free of conflicts of interest no less in crim- years nor the absence of an attorney-client whether all monies had been distributed and inal proceedings than in civil cases. The exis- relationship was sufficient to defeat claims in whether they had received all they were enti- tence of an actual conflict destroyed the two malpractice cases. In Prakashpalan v. tled to receive. The plaintiffs’ discovery of effective assistance of counsel in .Harris v Engstrom, Lipscomb and Lack,32 clients facts from other Engstrom clients 14 years Superior Court.29 Following a preliminary Muruganandan and Navamalar Prakashpalan later made their complaint timely.37 hearing at which Melvin Harris Jr. was de- sued the Engstrom law firm for malpractice In Stine v. Dell’Osso,38 a conservator sued fended by lawyer Gustavo Diaz, an infor- and fraud in 2011 in connection with the the attorneys for the prior conservator who mation was filed against Harris, charging settlement in 1997 of their bad faith and was removed after misappropriating more

26 Los Angeles Lawyer April 2015 than $1 million from the estate of his mother history of Sections 340.6(a) and 335.1 and rate to $5,000 per hour.49 The court of appeal while they represented him. In a pretzel argu- concluded that Section 340.6(a) was intended reversed, remanding the case for entry of a ment enthralling to lawyers, the defendants to apply to claims for professional negligence reduced judgment based on a $1,000 hourly argued that the new conservator had all of the against a lawyer and not to malicious pros- rate.50 The court noted that Chodos and his burden and none of the benefit: Since they had ecution claims against a lawyer. 45 Hopefully, client had an unenforceable oral agreement no attorney-client relationship with the new the California Supreme Court will resolve to pay him an hourly fee but no written conservator, she could not sue them for mal- the conflict among appellate courts. agreement, and no agreement for a contin- practice, and since the malfeasance of their gent fee. Since the lawyer had not voluntar- Getting Paid client, the former conservator, was imputed ily assumed any contingent risk, it was inap- to the new conservator, her claim was barred The Los Angeles County and Beverly Hills Bar propriate to apply a multiplier. Awarding under the doctrine of unclean hands. The Associations unsuccessfully sought depubli- the lawyer a premium on his fees would court of appeal disagreed, holding that under cation of an unduly formalistic and imprac- reward him for his violation of Business and the successor fiduciary exception, the new tical decision by the Second District, Moj- Professions Code Sections 6147 and 6148, conservator succeeds to the duties owed by the tahedi v. Vargas, which involved the division which require a written fee agreement, and prior lawyer. Citing the Probate Code and of a contingent fee between successive coun- violate public policy.51 Borissoff v. Taylor & Faust,39 the court con- sel.46 Attorney Michael Mojtahedi entered Law Firm Dissolution cluded that the successor fiduciary had stand- into a written fee contract to represent two ing to sue her predecessor’s attorneys.40 clients in connection with injuries they The last decade has witnessed the dissolution Unclean hands did not apply because the for- suffered in an auto accident. The contract of several venerable law firms, including mer conservator’s wrongdoing was outside the allowed his firm to assert a lien against Dewey & LeBoeuf LLP in 2012, Howrey scope of his fiduciary authority. The new the plaintiffs’ claims. After eight months, LLP in 2011, Wolf Block LLP in 2009, conservator does not step into the morass Mojtahedi was replaced by new counsel, Thacher Proffitt & Wood LLP, Thelen LLP created by his personal malfeasance, the court Fernando Vargas. Mojtahedi informed the and Heller Ehrman LLP in 2008, and Coudert held. “[W]hy would any competent individ- claims adjustor he had a lien for attorneys’ Brothers in 2005. During 2014, the state ual agree to take over as a successor fiduciary fees on payments to his clients. After the case bar’s Standing Committee on Professional if he or she was tarred with and shackled by settled, settlement checks were made payable Responsibility and Conduct (COPRAC) and the malfeasance of a prior fiduciary?”41 jointly to the clients, Mojtahedi’s firm, and District Court Judge Charles R. Breyer issued Vargas’s firm, and deposited in Vargas’s trust important and timely opinions addressing Malicious Prosecution account. Mojtahedi claimed $4,407 from the some of the ethical and financial issues result- In Roger Cleveland Golf Company, Inc. v. $14,500 settlement. When Vargas offered ing from a law firm dissolution. Krane & Smith APC, Division Three of the $2,000, Mojtahedi sued Vargas, the claims In Formal Opinion 2014-190, COPRAC Second District addressed the applicable adjustor, and the banks that issued and reminds us that a law firm dissolution does statute of limitations when an attorney is deposited the checks. The clients were not not terminate a lawyer’s ethical duties to sued for malicious prosecution.42 As noted parties to the suit, and there is no suggestion clients. On the contrary, under Rule of Pro- above, Code of Civil Procedure Section 340.6 they disputed the fees. fessional Conduct 3-700, additional obliga- sets a one-year limitation following actual The superior court sustained a demur- tions are triggered. Rule 3-700(A)(2) pre- or imputed discovery for “[a]n action against rer to the complaint on the ground that cludes a lawyer from withdrawing from an an attorney for a wrongful act or omission, Mojtahedi did not have an enforceable lien. engagement until the lawyer has taken rea- other than actual fraud, arising in the per- The court of appeal affirmed, rejecting the sonable steps to avoid reasonably foresee- formance of professional services.” Section written fee contract and lawyer’s time log, able prejudice to the rights of the client. The 335.1 sets a two-year limitation for “[a]n and holding that the lawyer must file a sep- rule’s requirements apply when the lawyer’s action for assault, battery, or injury to…an arate declaratory judgment action against withdrawal is prompted by the dissolution of individual caused by the wrongful act or his former clients to establish the reason- the lawyer’s law firm. The rule’s requirements neglect of another.” In Roger Cleveland, able value of his services. “[T]he attorney’s apply to all lawyers of the dissolved firm and Division Three concluded that Section 335.1 lien is only enforceable after the attorney with respect to all clients of the firm, regard- applies. In so holding, the court disagreed with adjudicates the value and validity of the lien less of the lawyer’s status within the firm and decisions recently published by Division Eight in a separate action against his client.”47 regardless of the lawyer’s personal connection, of the Second District43 and the Fourth The opinion ignored settled authority regard- or lack of connection, to any specific client. Appellate District.44 ing the duty of counsel holding the check to What “reasonable steps” a particular lawyer In that Section 340.6(a) applies only to divide the contingent fee on a quantum must undertake depends on the lawyer’s prior claims against lawyers and malicious prose- meruit basis, in the absence of objection by relationship with a client, the lawyer’s abil- cution claims can be asserted against lawyers the clients and without the need to sue ity to act within the firm, and the lawyer’s and their clients, the court in Roger Cleveland them.48 In this situation, the bar associa- competence to perform any needed services was troubled by the concept that different lim- tions argued, it was poor public policy to for the client. itations could apply to lawyer-defendants require the lawyer to file a new lawsuit Therefore, COPRAC opined that a liti- (one year under Section 340.6(a)) and non- against his clients. gation partner of the dissolving firm, who lawyer defendants (two years under Section After steering his client through two supervised an engagement analyzing the 335.1). The court was also troubled by the divorce actions and a Marvin lawsuit, attor- potential claims of a client, some of which fact that Section 340.6(a) does not permit ney Hillel Chodos negotiated a divorce set- would soon be lost by operation of relevant tolling on a claim against a lawyer while the tlement worth an estimated $26 million and statutes of limitation, likely breached her underlying action is on appeal, even though was discharged by the client without pay- ethical obligations by sending an e-mail that tolling in these circumstances is well estab- ment. In an action for his fees, in Chodos v. merely notified the client that the firm was dis- lished in malicious prosecution cases. Borman a jury awarded Chodos $7.8 million solving, the partner was joining a new firm, Perplexed, the court turned to the legislative by using a multiplier of five to increase his the partner would no longer represent the

Los Angeles Lawyer April 2015 27 client, and the client should engage new coun- that point, the client only owes fees for ser- ures, including Barack Obama, Bill and sel quickly because of the relevant statutes of vices performed to the date of discharge, Hillary Clinton, Arnold Schwarzenegger, limitations. The litigation partner should and his former lawyer must, even if fees are George Clooney, Paris Hilton, and many oth- have done more to protect the client from in dispute, cease working on the matter and ers. Unfortunately, the photos were created by being prejudiced by her withdrawal, such immediately cooperate in the transfer of taking original celebrity photos and over- as being sure that the client retained new files to new counsel.”56 laying the lawyer’s image to create the false counsel and the new counsel knew of the appearance that she was in the presence of the Advertising impending deadlines, or perhaps even filing celebrity. In a disciplinary action, In the a protective complaint. COPRAC opined Two California lawyers succumbed to the Matter of Svitlana E. Sangary,64 the State that a nonlitigation partner with no prior modern mania for self-promotion with dis- Bar Court judge found that the doctored relationship to the client probably satisfied astrous results. In In re Edward R. Reines, images on Sangary’s website violated Rule of his ethical obligations under 3-700 by par- a prominent practitioner before the Federal Professional Conduct 1-400(D)(2), which ticipating in the firm’s creation of a dissolu- Circuit Court of Appeals and chair of its prohibits attorney advertising that is false, tion committee responsible for protecting advisory council was publicly reprimand- deceptive, or tends to confuse, deceive or against the abandonment of the dissolving fir- ed for conduct unbecoming a member of mislead the public.65 It also found that m’s clients, unless the partner had reason to the bar under Federal Rule of Appellate Sangary had failed to cooperate with the dis- believe the dissolution committee was not Procedure 46(b)(1)(B).57 After Reines argued ciplinary investigation, noting that she refused doing its job. Finally, COPRAC opined that two appeals before the Federal Circuit in to participate or answer questions, skipped an associate, who had worked on the clien- March 2014, he received an effusive e-mail conferences, and filed lengthy documents t’s matter, normally would satisfy her ethical from Chief Judge Randall R. Rader report- asserting her personification of the American obligations by voicing her concerns to her ing an internal court conversation with fel- dream that the court characterized as bizarre supervising partner, unless the associate had low judges who had praised his perfor- soliloquies having “little to no rational con- reason to believe that the partner would not mance. After extolling Reines’s talents, the nection to the charges.” Though the State convey those concerns to the client. chief judge concluded: “In sum, I was really Bar had originally contacted Sangary about In Heller Ehrman LLP v. Davis, Wright, proud to be your friend today! You bring the fake photos in December 2012, they re- Tremaine, LLP, 52 District Judge Charles great credit on yourself and all associated mained on her website throughout the disci- R. Breyer concluded on summary judgment with you! And actually I not only do not plinary hearing in July 2014. Expressing that the trustee of the bankruptcy estate of mind, but encourage you to let others see this “grave concerns” about her lack of insight dissolved law firm Heller Ehrman LLP could message. Your friend for life, rrr.”58 It was and contemptuous conduct, the judge rec- not pursue claims for the profits earned by an invitation Reines should have declined. ommended suspension for six months.66 I law firms that Heller’s former clients retained However, his judgment no doubt clouded by to work on hourly fee matters begun at praise and the rare spectacle of a judge flat- 1 California Supreme Court docket, No. S206125 Heller. In doing so, he distinguished and tering a lawyer, Reines promptly circulated (Rules of Professional Conduct), 09/19/2014; Press questioned the continuing validity of the the e-mail to 35 existing and prospective Release, California State Bar, State Bar Announces Formation of Rules Revision Commission (Jan. 30, unfinished business rule first articulated in clients with a solicitation for business. In 2015). 53 Jewel v. Boxer. The dissolution in Jewel response to the Federal Circuit’s order to 2 State Bar Fires Its Executive Director, THE RECORDER, was voluntary and involved four partners show cause why he should not be disci- Nov. 13, 2014; Fired director misled State Bar, report who created two new law firms. Heller’s plined, Reines minimized his friendship with says, L.A. DAILY J., Nov. 21, 2014; Dunn v. State Bar dissolution, on the other hand, was forced the judge and argued discipline would vio- of Cal., L. A. Super. Ct. No. BC563715. 3 and involved hundreds of lawyers, many of late his First Amendment freedom of speech. Press Release, California State Bar, State Bar Issues Statement on Executive Director (Nov. 15, 2014). whom joined existing law firms. Judge Sitting en banc, the court stated that it is mis- 4 In the Matter Concerning Judge Cory Woodward, Breyer questioned the continuing validity conduct under ABA Model Rule 8.4(e) for 2014 Daily Journal D.A.R. 12203, Cal. Comm’n on of Jewel, decided in 1984, in light of mate- a lawyer to state or imply an ability to im- Judicial Performance, Sept. 2, 2014. rial revisions in the Revised Uniform Part- properly influence a government agency or 5 In the Matter Concerning Judge Scott Steiner, 2014 nership Act (RUPA) effective in 1999.54 official, and concluded, “It would blink Daily Journal D.A.R. 12197, Cal. Comm’n on Judicial Performance, Sept. 2, 2014. Under the old act, partners breached their reality not to view respondent’s action as 6 Id. fiduciary duties by taking action with respect suggesting his retention because his special 7 Irvine lawyer who planted drugs on school aid sen- to unfinished partnership business for per- relationship would help secure a favorable tenced to 6 months in jail, L.A. DAILY J., Oct. 20, sonal gain. Under RUPA, a partner became outcome at the Federal Circuit.”59 The 2014. 8 free to compete with the partnership imme- Supreme Court had upheld limits on attor- Despite budget gloom, some courts to avoid slashing service, L.A. DAILY J., July 14, 2014. diately upon an event of dissolution. Thus, neys’ commercial speech in Ohralik v. Ohio 9 See BUS. & PROF. CODE §6068(e)(1), CAL. RULES OF 60 former Heller shareholders who signed new State Bar Association and Florida Bar v. PROF’L CONDUCT R. 3-100. retainer agreements with former Heller Went for It, Inc.,61 to protect the integrity 10 General Dynamics Corp. v. Superior Court, 7 Cal. clients did not violate any fiduciary duty.55 of the legal profession and the public from 4th 1164, 1190 (1994). Judge Breyer also reasoned that third-party misleading speech.62 Reines was publicly 11 Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294 (2001). firms should not be punished for hiring for- reprimanded, and Judge Rader resigned as 12 Chubb & Son v. Superior Court, 228 Cal. App. 4th 63 mer partners of dissolved firms and clients chief judge and retired from the court. 1094 (2014). should be able to retain lawyers from a dis- Attorney Svitlana Sangary was a proud 13 Id. at 1115. solved firm who are familiar with their mat- immigrant to America whose entrepreneur- 14 Id. at 1109 (internal quotation omitted). ters. “A law firm—and its attorneys—do ial spirit traded on her adoptive country’s 15 See id. at 1105. 16 not own the matters on which they perform fascination with self-invention and celebrity Seahaus La Jolla Owners Ass’n v. Superior Court, 224 Cal. App. 4th 754 (2014). their legal services. Their clients do. A client, culture. Sangary solicited clients through her 17 Id. at 776. for whatever reason, may summarily dis- firm’s website featuring photos in which she 18 OXY Resources Cal. LLC v. Superior Court, 115 Cal. charge counsel and hire someone else. At posed with famous celebrities and political fig- App. 4th 874 (2004).

28 Los Angeles Lawyer April 2015 19 CIV. CODE §§6150 et seq. 20 Seahaus La Jolla Owners Ass’n, 224 Cal. App. 4th at 775. 21 GLENN GREENWALD, NO PLACE TO HIDE: EDWARD SNOWDEN, THE NSA, AND THE U.S. SURVEILLANCE STATE (2014). 22 Listen Up: NSA surveillance policies raise questions about the viability of the attorney-client privilege, A.B.A. J. (Sept. 2014). 23 Edwards Wildman Palmer LLP v. Superior Court, 231 Cal. App. 4th 1214 (2014). 24 Id. at 1234-35 (citing RFF Family P’ship, LP v. Burns & Levinson, LLP, 465 Mass. 702 (2013)). 25 Thelen, Reid & Priest LPP v. Marland, 2007 U.S. Dist. LEXIS 17482 (N.D. Cal. Feb. 21, 2007); In re SonicBlue, Inc., 2008 Bankr. LEXIS 181 (Bankr. N.D. Cal. Jan. 18, 2008). 26 Edwards Wildman Palmer LLP, 231 Cal. App. 4th at 1227. 27 Id. at 1234. 28 See CAL. RULES OF PROF’L CONDUCT R. 3-500. 29 Harris v. Superior Court, 225 Cal. App. 4th 1129 (2014). 30 Id. at 1139. 31 Id. at 1149. 32 Prakashpalan v. Engstrom, Lipscomb and Lack, 223 Cal. App. 4th 1105 (2014). 33 Solin v. O’Melveny & Myers, 89 Cal. App. 4th 451 (2001); see also Dietz v. Meisenheimer Herron, 177 Cal. App. 4th 771 (2009). 34 Prakashpalan, 223 Cal. App. 4th at 1126. 35 Id. at 1122. 36 Id. at 1123-24. 37 Id. at 1125. 38 Stine v. Dell’Osso, 230 Cal. App. 4th 834 (2014). 39 Borissoff v. Taylor & Faust, 33 Cal. 4th 523, 531 (2004). 40 Stine, 230 Cal. App. 4th at 840-41. 41 Id. at 846. 42 Roger Cleveland Golf Co., Inc. v. Krane & Smith, APC, 225 Cal. App. 4th 660 (2014). 43 Vafi v. McCloskey, 193 Cal. App. 4th 874 (2011). 44 Yee v. Cheung, 220 Cal. App. 4th 184 (2013). 45 Roger Cleveland, 225 Cal. App. 4th at 680-82. 46 Mojtahedi v. Vargas, 228 Cal. App. 4th 974 (2014). 47 Id. at 978. 48 See, e.g., Guzzetta v. State Bar, 43 Cal. 3d 962 (1987); CAL. RULES OF PROF’L CONDUCT R. 4-100; Cal. State Bar Committee on Mandatory Fee Arbitration, Arbitration Advisory 1997-03. 49 Chodos v. Borman, 227 Cal. App. 4th 76, 82 (2014). 50 Id. at 106. 51 Id. at 101-02. 52 Heller Ehrman LLP v. Davis, Wright, Tremaine, LLP, __ B.R. __, 2014 WL 2609743 (N.D. Cal. June 11, 2014). 53 Jewel v. Boxer, 156 Cal. App. 3d 171 (1984). 54 See CORP. CODE §§16100 et seq. 55 Heller Ehrman LLP, 2014 WL 2609743, at *4. 56 Id. at *1. 57 In re Edward R. Reines, 771 F. 3d 1326 (Fed. Cir. 2014). 58 Id. at 1328 n. 1. 59 Id. at 1330-31. 60 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). 61 Fla. Bar v. Went for It, Inc., 515 U.S. 618 (1995). 62 Reines, 771 F. 3d at 1332-33. 63 Judge Rader, Author of Controversial Email to Lawyer, to Resign from Bench, WALL STREET J., June 13, 2014. 64 In the Matter of Svitlana E. Sangary, State Bar Court of Cal., Case No. 13-O-13838—DFM, filed Sept. 11, 2014. 65 Id. at 7-8. 66 Id. at 15.

Los Angeles Lawyer April 2015 29 by Sara Colón and Catherine Eschbach OUT OF

Bounds v. Superior Court holds that a taking under the financial elder abuse statute does not require full BOUNDSperformance of a contract

THE CALIFORNIA Court of Appeal recently a person or entity takes or assists agreements clarified in Bounds v. Superior Court what in taking real or personal property of entered into by the constitutes a taking for the purposes of the an elder for a wrongful use or with intent elderly should not be financial elder abuse statute codified in to defraud or by undue influence.2 A person subject only to the general rules Welfare and Institutions Code Section is deemed to take an elder’s property when the of contract, but should instead be subject to 15610.30.1 According to the court, a taking elder is deprived of any property right by special scrutiny.”8 If the elements of financial under the statute does not require completed means of an agreement, donative transfer, abuse are met and the defendant has been performance of a contract but is adequately or testamentary bequest.3 Additionally, the “guilty of recklessness, oppression, fraud, or pleaded when any property right is impaired person must have either known or “should malice in the commission of this abuse,” the by means of an agreement. This holding inter- have known that this conduct [was] likely to court shall award the plaintiff reasonable prets the term “taking” in the financial elder be harmful to the elder.”4 attorney’s fees in addition to other available abuse statute and finds that contracts with The legislature enacted the Elder Abuse remedies.9 anyone over the age of 65 may be subject to Act to “encourage private civil enforcement Attorney’s fees were included for the finan- special scrutiny and the financial elder abuse of laws against elder abuse and neglect.”5 statute’s heightened remedies, including attor- An elder is defined as a person residing in the Sara Colón is a partner at Brown Neri & Smith LLP, ney’s fees. Additionally, the court also clari- state over age 65.6 These statutory provi- formerly Ethan Brown Law LLP, and Catherine fied the scope of litigation privilege as applied sions contain no requirement that an elder Eschbach is a law student at Pepperdine University to financial elder abuse claims. lack capacity or be of limited financial means.7 School of Law. Ethan Brown Law LLP represented The financial elder abuse statute provides The act’s financial abuse provisions are in Ms. Bounds and the trustee of the Helen J. Bounds

that financial abuse of an elder occurs when part premised “on the view that financial Living Trust in Bounds v. Superior Court. AMANE KANEKO

30 Los Angeles Lawyer April 2015 BOUNDS cial abuse provisions to encourage speedy the financial elder abuse statute.15 It is suffi- higher property value than was to be paid to settlements of meritorious claims.10 The leg- cient to allege that any property right has her per the escrow instructions. islature intended to help settle these claims been substantially impaired. This holding As there was no formal purchase con- quickly and prevent elders from draining lim- potentially subjects a party to liability for tract, Bounds, trusting her neighbor to be ited funds and energy litigating claims at the financial elder abuse the moment a contract fair and acting in a diminished capacity, end of their lives.11 In doing so, however, is signed even if no transfer of the physical believed they were still negotiating. Eventually the legislature also recognized it was creating property or title ever occurs. she consulted her attorney to draft a counter a powerful tool that was potentially subject proposal, and her attorney sought to rene- The Facts of Bounds to abuse by overzealous litigants.12 gotiate fair terms. The neighbor refused and, Despite, or perhaps because of, the height- The Bounds cross-complaint16 for financial rather than deal with Bounds’s counsel as ened remedies available, there is very little elder abuse alleged the following facts: Helen her counsel directed, communicated with decisional authority interpreting the financial Bounds was an 88-year-old widow and the Bounds directly to demand she consummate abuse statutes. Prior to Bounds no California trustee of a trust owning her long-held fam- the transaction or face a lawsuit. case law interpreted whether a taking occurs ily business. She was also suffering from Alz- In the meantime, the family learned weeks within the meaning of the statute if an agree- heimer’s disease but had not yet been diag- after Bounds had signed the escrow instruc- ment is not fully performed. One case, nosed. The owner of the business on the tions that she was diagnosed with Alzheimer’s. Bonfigli v. Strachan, did consider whether a adjacent lot sought to persuade Bounds to sell Bounds’s counsel notified the neighbor of taking had been asserted when the defen- the family business’s property to him. Bounds this and that his investigation of the proper- dants encumbered the property without a had known the neighboring business owner ty’s value revealed it was worth significantly valid power of attorney,13 but there was no for several years and trusted him. Without more. Nevertheless, the neighbor demanded contention in Bonfigli that the elders had not consulting her family, Bounds and the neigh- that the transaction close on the escrow terms. yet been deprived of their property. Instead, bor, along with the neighbor’s friend, a real Shortly thereafter, the neighbor filed suit the question was whether a breach of contract estate agent, began negotiating for the neigh- against the trust for specific performance and claim was a taking within the meaning of bor to purchase the lot. During this time the recorded a lis pendens. Bounds and the trust the statute. neighbor and his friend repeatedly phoned cross-claimed, alleging financial elder abuse The superior court in Bonfigli had found Bounds and made exaggerated claims about on the basis that the moment she signed the that a lot line adjustment was not a taking the property’s poor physical and financial escrow instructions, her property rights were and expressed concern that such a holding condition. taken and substantially impaired. Among would transform any breach of contract Bounds did not fully understand the terms other things, Bounds could not sell the prop- claim with a person over age 65 into an being negotiated, which should have been erty without disclosing the escrow instruc- elder abuse case. The court of appeal apparent to her neighbor and his friend. She tions, and no buyer would purchase at fair reversed, holding at least a skeletal claim for eventually consulted with her attorney and market value knowing that information. Nor financial elder abuse was asserted where financial adviser about the sale, and then her could the property be used to secure a loan, the lot line was adjusted without valid power family learned about the negotiations. After as no lender would extend reasonable and of attorney and the elders received no com- being told the sale would not resolve her commercially acceptable terms knowing of the pensation for the parcel subject to the adjust- financial worries and would, in fact, incur sig- escrow instructions. ment. Additionally, the court affirmed under nificant tax liability, she decided not to sell. A demurrer to the financial elder abuse the financial elder abuse statute that it was A family member informed the neighbor and claims was sustained without leave to amend. not necessary to allege mental suffering asso- the neighbor’s friend that Bounds was not Bounds petitioned for writ relief, and the ciated with the taking. going to sell and that she was acting in a court of appeal issued an order to show cause. Bonfigli, therefore, provided only limited diminished capacity. In opposition, the neighbor and his friend guidance on when a financial elder abuse Bounds’s condition further deteriorated asserted that the court should find that a tak- claim is adequately asserted. No allegation of over the following months. Then, while her ing by agreement can only occur by a con- mental suffering is necessary and a breach of family was away on vacation, her neighbor summated agreement. The petition was contract claim—specifically an invalid lot saw her on the property and sought to reini- granted, and the court issued a writ, holding line adjustment without compensation— tiate negotiations. Bounds felt overwhelmed in a published opinion that Bounds ade- could constitute a taking. This left the ques- with financial worries and was also having dif- quately alleged a taking under the financial tion presented in Bounds unaddressed: Is ficulty sleeping. Her business neighbor per- elder abuse provisions. there a taking within the statute’s meaning if suaded her to sell. A Taking there is a signed agreement but the property’s Shortly thereafter, Bounds and the neigh- title is not yet transferred? bor signed a letter of intent stating there The court held that the signed escrow instruc- Property rights may be likened to a bun- was no agent representing either party, even tions constituted a taking of Bounds’s prop- dle of sticks. Included in that bundle are the though the neighbor’s real estate broker erty rights. In reaching this holding, the court right to sell the property and the right to use friend had drafted it. Bounds acted without noted that one premise for the financial elder it.14 Conceptually, Bounds resolved the ques- any professional or family assistance. Two abuse statutes is that contracts with elders tion of whether an elder had to be deprived days later, Bounds was convinced to exe- should be subject to special scrutiny. Within of the entire bundle or only one stick for a tak- cute a set of escrow instructions, even though that framework, the court determined the ing to occur. Bounds also addresses whether no purchase contract had been signed. The escrow instructions were an agreement that the mere signing of an agreement implicated price for the property in the instructions was substantially affected the ability to sell the a stick without any further performance. The around half of what Bounds had been advised property or use it as collateral, as Bounds was Bounds court concluded that an agreement the property was worth. At this time Bounds under a legal duty to disclose the claim on it— does not need to be fully performed nor the also executed a lease, allowing her business a material fact that affected its desirability and elder entirely deprived of the property or to remain on the property for a couple years, value.17 Thus Bounds’s right to do with the property rights to constitute a taking under but at a rental rate reflecting a significantly property as she saw fit was impaired. The

32 Los Angeles Lawyer April 2015 neighbor and friend advanced the argument row definition. But as the Bounds court states, the escrow instructions with the trust after that there was no taking until title was trans- this narrow interpretation essentially rewrites signing arguably could constitute part per- ferred in a consummated agreement.18 The the statute to read: “performed agreement.” formance. In Zimmer, there may be a court explained this narrow interpretation The underlying agreement in Zimmer—the stronger case because money was transferred. would produce several troubling results and loan the fees were paid on—was not fully per- But would it be enough if only one dollar was rejected it. formed. Hillery’s holding would have been paid? Courts would be addressing the ques- The first troubling result would be that an completely at odds with the narrow definition. tion of how much performance is enough elder would be barred from asserting a claim There the court did not rely on any repayment with little guidance. Instead, the Bounds until only after the result of the abuse was on the loan in holding a taking occurred. court created a bright-line rule that an elder achieved with a transfer of property. This Instead, it looked to the lender’s assertion of who was induced into an agreement through would immunize the abuser from the remedies under the act while the abuse was ongoing. Second, one legislative purpose in adopting the act was to protect elders with diminished or declining cognitive abilities from property deprivation by overreaching conduct. It would not serve that protective purpose to have elders wait to assert a claim until there was a complete property transfer. Third, a narrow interpreta- tion would be inconsistent with the statutory framework of the provision. Section 15610.30 provides that a taking can occur by “means of an agreement, donative transfer, or testa- mentary bequest.” The terms “donative trans- fer” and “testamentary bequest” can refer both to performed and unperformed transfers. For example, the statute would apply when a gift is promised and when the gift is deliv- ered. In view of these terms, the court held “by means of an agreement” can refer to both a performed agreement and to an agree- ment whose promises are still executory. Federal Law The troubling implications of the narrow interpretation become even starker when applied in the predatory lending context. Two federal cases illustrate why the Bounds court adopted the definition that best fits with both the statutory language and intent. a secured interest in the property. The lender undue influence or wrongful use could sat- In Zimmer v. Nawabi,19 the Eastern Dis- had secured that interest the moment the isfy the taking requirement at the signing of trict found there was financial elder abuse by agreement was signed, regardless of whether a contract, as that act impinges a property wrongful use. The lender had induced the the loan funds had transferred or repayment right. elder by false statements to refinance a mort- had started. The rule adopted in Bounds not only gage on terms it knew were less favorable than Under the interpretation of the statute provides clarity but also enables the statute the existing mortgage. This resulted in at that was offered by the neighbor and real to fulfill its purpose. Looking to the exam- least $10,000 in fees to the lender that the estate agent in Bounds, to fully perform the ple of an elder who signs a guarantee demon- elder would not otherwise have incurred. In elder would either need to repay the entire strates this. If the narrow interpretation had Consumer Solutions REO, LLC v. Hillery,20 sum or the lender would need to secure the prevailed, an elder who was unduly influ- the Northern District found that although property on default. An elder who entered a enced to serve as a guarantor on a loan or the elder still retained the property, there was loan agreement under undue influence or lease agreement would not be able to assert a taking because the lender had a secured wrongful use would be unable to bring a a claim until the signer of the underlying interest in the property. The lender asserted claim upon realizing the terms were unjust. agreement defaulted. An elder would be there was no taking despite the company’s The elder would have to choose to either subject to potential liability on the agreement right to initiate foreclosure proceedings on a pay the entire amount or lose the property to and without remedy against the abuser who defaulted loan. The court disagreed, stating the lender in order to bring a claim. This subjected him to the potential obligation. that the assertion of a secured interest unless would entirely subvert the purpose of the Only in the event of a default and the trans- the elder paid a certain sum was a taking. financial abuse provision—speedy resolu- fer of the agreement’s balance would there Under the proposed narrow definition, tions of claims and enabling the elder to be full performance. However, a property which appears to require full performance, the retain the property. right was impaired the moment the guar- elders in Zimmer and Hillery likely could Interpreting the Bounds court’s use of antee was signed because the elder’s position not assert a taking. Initially, in Zimmer it the term “performed agreement” to encom- changed. Any assets were subject to a future would appear that because fees were paid a pass part performance would create further conditional claim. Thus, the elder would taking could be asserted, even under the nar- ambiguity. In Bounds, for example, filing have been without a remedy against their

Los Angeles Lawyer April 2015 33 abuser, and living with the fear of potential However, this highlights why litigants erty—indisputably a taking. That elder would liability for it, until default occurred. need to draft their complaints carefully. If have been able to file a claim for financial Bounds had alleged the taking was the result elder abuse, whereas an elder who was sub- The Litigation Privilege of the filing of the lis pendens or the suit for ject to the same underlying abusive actions, The Bounds decision clarifies that a taking specific performance, the privilege would but where the abuser first filed the lis pendens occurs when any property right is impaired, have attached, preventing the financial elder and suit for specific performance, would not including any right impaired by merely sign- abuse claims.24 This is borne out in Consumer due to litigation privilege attaching to the ing an agreement without any further per- Solutions REO, LLC v. Hillery.25 Although taking. formance. It also provides guidance on the the court found asserting a secured interest in There are also some practical and proce- scope of litigation privilege in the financial the property was a taking, the court also dural consequences of adopting a narrow elder abuse context. Bounds supports the found that the gravamen of the claim was not interpretation of “taking.” At least three addi- argument that the litigation privilege cannot the making of the loan or obtaining the deed tional problems would have arisen if the be asserted to shield liability. Initiating a suit of trust but the steps taken in the judicial fore- Bounds court had found that an elder in for specific performance does not immunize closure proceedings. As such, privilege poten- Bounds’s position was required to wait for res- a party against a claim for financial elder tially attached.26 olution of a suit for specific performance abuse. Under California Civil Code Section If the Bounds court failed to find there was before stating a claim for financial elder abuse. 47(b) a filing made in a judicial proceeding to a taking it could have had the potential to First, if an elder could not show the taking achieve the objects of the litigation is privi- undermine the financial elder abuse statutes. resulted from undue influence under California leged.21 The neighbor and realtor in Bounds If there was no taking until a transfer of Civil Code 1575 in a suit for specific perfor- asserted that because they filed a lis pendens property occurred, in a contested case like mance, the elder would have to transfer the and sued for specific performance, litigation Bounds, a taking would only occur as a result property and initiate a separate suit to recap- privilege shielded them from the financial of a judicial process—thus making the taking ture it under the knowingly wrongful use or elder abuse claims. The Bounds court rejected privileged. This holding would have created undue influence standard in the financial elder this argument. If the cause of action is not a race-to-the courthouse situation and treated abuse statute.27 This would not be judicially based on privileged conduct but rather the similarly situated litigants differently. efficient. Further, the elder would expend underlying facts of abuse, the litigation priv- Take for example, a case with the same attorney’s fees and court costs fighting the ilege cannot be used as a shield for liability.22 underlying facts in Bounds as to how the initial suit for specific performance, but even In Bounds it was the abusive and deceptive elder’s signature was obtained. Except in this if she ultimately prevailed in the second action actions of the neighbor and agent that formed scenario the family or counsel never found out for financial elder abuse and recovered the the basis of the allegation—not the recording about the escrow instructions, and the elder property, she would not be able to recover the of the lis pendens.23 went through with the transfer of the prop- costs from the initial action, as would have been her right if a cross-claim for financial elder abuse had been filed.28 Second, under the financial elder abuse statute an elder only needs to show that the taking was for knowingly wrongful use,29 whereas the affirmative defense to specific performance of a contract only offers the elder the option of showing undue influ- ence.30 Thus, the wrongful use standard allows the elder to argue for rescission with- out putting her mental state at issue, as undue influence requires. Third, a court could poten- tially find this separate financial elder abuse claim was a compulsory cross-claim to the suit for specific performance and bar a later filed suit for financial elder abuse under preclusion doctrines.31 These potential outcomes clearly contra- vene the legislature’s intent to allow elders to keep property taken from them by abusive action and to not deplete their limited energy and financial resources to do so.32 Therefore, allowing the elder to bring a cross-claim for financial elder abuse in a suit for specific per- formance is most consistent with the legisla- ture’s intent that contracts with elders be subject to special scrutiny.33 Given the broad interpretation of “taking” in Bounds, should a party fear that any con- tract with an elder will be subject to claims for financial elder abuse? Although a contract does not have to be fully performed for a tak- ing to be alleged, only contracts that were

34 Los Angeles Lawyer April 2015 obtained in a way that may give rise to an alle- for financial elder abuse. Holding that a tak- 472 n.7 (2014) (citing Estate of Sigourney v. American gation of undue influence or knowingly ing not does not require a fully performed Psychoanalytic Ass’n, 93 Cal. App. 4th 593, 604 wrongful use necessitate caution. agreement—but instead occurs if at the (2001)). 15 Bounds, 229 Cal. App. 4th at 472. The standard for undue influence in the moment of signing any property right is 16 Id. at 473-77. financial elder abuse statute may be found in infringed—does not mean all contracts with 17 Id. at 480; Lingsch v. Savage, 213 Cal. App. 2d 729, California Welfare and Institutions Code persons over age 65 have the potential for lia- 735 (1963). Section 15610.70. Undue influence is defined bility under the financial elder abuse schemes. 18 Bounds, 229 Cal. App. 4th at 480. 19 there as “excessive persuasion that causes However, this holding does subject contracts Zimmer v. Nawabi, 566 F. Supp. 2d 1025 (E.D. Cal. 2008). another person to act or refrain from acting with elders to special scrutiny and puts per- 20 Consumer Solutions REO, LLC v. Hillery, 658 F. by overcoming that person’s free will and sons contracting on notice that if the contract Supp. 2d 1002 (N.D. Cal. 2009). results in inequity.”34 The statute then lists is obtained by undue influence or wrongful 21 CIV. CODE §47; Silberg v. Anderson, 50 Cal. 3d several factors courts should consider to use they are potentially subject to height- 205, 212 (1990). 22 determine whether that definition is met. ened penalties. I Bounds, 229 Cal. App. 4th at 484. 23 Id. Wrongful use, as defined in Welfare and 24 See id. at 483. Institutions Code Section 15610.30(b), occurs 1 Bounds v. Superior Court, 229 Cal. App. 4th 468 25 Hillery, 658 F. Supp. 2d at 1017-19. when “the person or entity knew or should (2014); WELF. & INST. CODE §15610.30(a)(1), (3). 26 Unlike the Bounds action, which was governed by 2 have known that this conduct is likely to be WELF. & INST. CODE §15610.30(a)(1), (3). CIV. CODE §47, this action took place under CIV. CODE 3 WELF. & INST. CODE §15610.30(c). harmful to the elder.”35 However, wrongful §2429(d), which only provides for a qualified, not 4 WELF. & INST. CODE §15610.30(b). absolute, privilege. See Hillery, 658 F. Supp. 2d at use does not occur if a party is merely assert- 5 Intrieri v. Superior Court, 117 Cal. App. 4th 72, 82 1018. ing its contractual rights on a lawfully (2004). 27 See Pynoos v. Massman, 2014 Cal. App. Unpub. obtained contract.36 Accordingly, as long as 6 WELF. & INST. CODE §15610.27. LEXIS 7391 (Oct. 16, 2014). 7 the underlying contract was lawfully obtained Bonfigli v. Strachan, 192 Cal. App. 4th 1302 (2011). 28 WELF. & INST. CODE §15657.5. 8 and not for a wrongful use or by undue Assem. Comm. on Judiciary, Analysis of A.B. No. 140 29 WELF. & INST. CODE §15610.30(a)(1), (2). (2012-2013 Reg. Sess.); Bounds v. Superior Court, 30 influence, contracting with a person over CIV. CODE §1575. 229 Cal. App. 4th 468, 478 (2014). 31 See CODE CIV. PROC. §426.30. age 65 should not give rise to a claim for 9 WELF. & INST. CODE §15657. 32 Sen. Comm. on Judiciary, Analysis of S.B. No. 1140 financial elder abuse or fear in contracting 10 Sen. Comm. on Judiciary, Analysis of S.B. No. 1140 (2007-2008 Reg. Sess.). with an elder. (2007-2008 Reg. Sess.). 33 Assem. Comm. on Judiciary, Analysis of A.B. No. 11 Bounds has brought clarity not only to the Id. 140 (2012-2013 Reg. Sess.). 12 Id. 34 WELF. & INST. CODE §15610.70. meaning of “taking” in the financial elder 13 Bonfigli v. Strachan, 192 Cal. App. 4th 1302, 1313- 35 WELF. & INST. CODE §15610.30. abuse statute but also to when litigation priv- 17 (2011). 36 Stebly v. Litton Loan Servicing, LLP, 202 Cal. App. ilege attaches to a taking underlying a claim 14 Bounds v. Superior Court, 229 Cal. App. 4th 468, 4th 522, 528 (2011).

36 Los Angeles Lawyer April 2015

The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

ACCIDENT ANALYSIS/RECONSTRUCTION CARL SHERIFF, PE, FORENSIC ENGINEER bankers, lenders, consultants, economists, accountants, 10153? Riverside Drive, Suite 365, Toluca Lake, CA insurance underwriters/brokers. Specialties include: lend- 4X FORENSIC ENGINEERING 91602, (818) 766-9259, fax (818) 908-9301, e-mail: carl- ing customs, practices, policies, in all types of lending (real LABORATORIES, INC. [email protected]. Contact Carl Sheriff, PE, estate, subprime, business/commercial, construction, 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) forensic engineer. Degrees in law and engineering. consumer/credit card), banking operations/administration, 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic Licensed safety engineer, general contractor, real estate trusts and investments, economic analysis and valua- .com. Web Site: www.4Xforensic.com. Contact Phil Van broker, and certified building and playground inspector. tions/damages assessment, insurance claims, coverages Herle. 4X Forensic Engineering Laboratories is a full- Licensed truck driver. Consulting and expert testimony on and bad faith, real estate brokerage, appraisal, escrow, service forensic engineering laboratory. We provide expert premises liability, product defects, and traffic accidents. and title insurance. witness and analytical and testing services in the following Construction and industrial accidents. Building and OSHA areas: fires and explosions: electrical and gas product code compliance. Slip, trip, and falls. Human factors. CORNERSTONE RESEARCH defect investigations, thermal and fire modeling and labo- Safety evaluation. Computerized analysis and exhibits. 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- ratory testing; water loss: materials, corrosion, and failure Free initial file review. 2005, (213) 553-2500, fax (213) 553-2699. Web site: analysis of plumbing products; failure analysis: metallurgy, www.cornerstone.com. Contact George G. Strong, Jr., product testing, and computerized stress analysis; acci- Richard W. Dalbeck, Katie J. Galley, Elaine Har- dent reconstruction: automotive, trucks, construction ACCOUNTING wood, Carlyn Irwin, Erin McGlogan, or Ashish Prad- equipment, and premises liability. See display ad on ADVISORS/EXPERTS @ MCS ASSOCIATES han. For more than 25 years, Cornerstone Research staff page 41. 18881 Von Karman, Suite 1175, Irvine, CA 92612, have provided economic and financial analysis in all (949) 263-8700, fax (949) 263-0770, e-mail: experts phases of commercial litigation and regulatory proceed- WILLIAM KUNZMAN, PE @mcsassociates.com. Web site: www.mcsassociates ings. We work with a broad network of testifying experts, 1111 Town and Country #34, Orange, CA 92868, .com. Contact Norman Katz, managing partner. including prominent faculty and industry practitioners, in a (714) 973-8383, fax (714) 973-8821, e-mail: bill@traffic Nationally recognized banking, finance, insurance, and distinctive collaboration. The experts with whom we work -engineer.com. Web site: www.traffic-engineer.com. real estate consulting group (established 1973). Experi- bring the specialized expertise required to meet the Contact William Kunzman, PE. Traffic expert witness enced litigation consultants/experts include senior demands of each assignment. Our areas of specialization since 1979, both defense and plaintiff. Auto, pedestrian, include intellectual property, antitrust, securities, entertain- bicycle, and motorcycle accidents. Largest plaintiff ver- ment, real estate, financial institutions, and general busi- dicts: 1) $12,200,000 in pedestrian accident case against ness litigation. Caltrans, 2) $10,300,000 in case against Los Angeles Uni- fied School District. Largest settlement: $2,000,000 solo FULCRUM INQUIRY vehicle accident case against Caltrans. Best defense ver- 888 South Figueroa Street, Suite 2000, Los Angeles, dict: $0 while defending Caltrans and opposition sought CA 90017, (213) 787-4100, fax (213) 891-1300, $16,000,000. Before becoming expert witness, employed e-mail: [email protected]. Web site: www.fulcrum by Los Angeles County Road Department, Riverside .com. Contact David Nolte. Our professionals are expe- County Road Department, City of Irvine, and Federal High- rienced CPAs, MBAs, ASAs, CFAs, affiliated professors, way Administration. Knowledge of governmental agency and industry specialists. Our analysis and research com- procedures, design, geometrics, signs, traffic controls, bined with unique presentation techniques have resulted maintenance, and pedestrian protection barriers. Hun- in an unequaled record of successful court cases and dreds of cases. Undergraduate work—UCLA, graduate client recoveries. Our expertise encompasses damages work—Yale University. analysis, loss profit studies, business and intangible asset valuations, fraud investigations, statistics, forensic eco- MOMENTUM ENGINEERING CORP nomic analysis, royalty audits, strategic and market 2862 Columbia Street, Torrance, CA 90503, (310) 618- assessments, competitive surveys, analysis of computer- 8017, fax (310) 618-8194, e-mail: ecf@momentum-eng ized data, injury and employment damages, and a wide .com. Web site: www.momentum-eng.com. Contact Ed range of other financial advisory services. Fatziner. Expert witness services, airbag control module, Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs vehicle dynamics and testing, animation and graphics, in accounting, finance, economics, and related subjects. forensic engineering, failure analysis, and motorcycle See display ad on back cover. dynamics. GLENN M. GELMAN & ASSOCIATES NASH FORENSIC CERTIFIED PUBLIC ACCOUNTANTS AND 434 East Haley Street, Suite A, Santa Barbara, CA BUSINESS ADVISERS 93101, (855) 808-1500, fax (866) 443-9227, e-mail: 1940 East 17th Street, Santa Ana, CA 92705, [email protected]. Web site: www.nashforensic (714) 667-2600, fax (714) 667-2636, e-mail: rsquar .com. Contact William Nash. Nash Forensic delivers @gmgcpacom. Web site: www.gmgcpa.com. Contact motorcycle related expert witness testimony and consulta- Richard M. Squar. Glenn M. Gelman and Associates tion services concerning the complexities of motorcycles provides superior litigation support services, including and ATVs, rider action/inaction, motorcycle accidents/inci- expert witness testimony, strategy development, docu- dents, motorcycle systems and dynamics, mechanical ment discovery, deposition assistance, computation of reconstruction, inclusive of testing and analysis. William damages, arbitration consulting, forensic accounting, Nash has over three decades of experience, knowledge, investigative auditing, rebuttal testimony, fiduciary background, and training, including motorcycle operation, accountings, and trial exhibit preparation. Our areas of design, functionality, mechanical, theory, dynamics, build, expertise include business interruption, loss of earnings failure(s), research and design, destructive testing, warn- analysis, breach of contract, partnership dissolution, prof- ings, reconstruction and rider error, motorcycle shop its distribution, tax consequences of settlements, recon- practices, and industry standards, not all inclusive. struction of accounting records, embezzlement and fraud, www.nashforensic.com. contract costs, lost profits, construction claims, damage computations, and malpractice cases. Our comprehensive

38 Los Angeles Lawyer April 2015 case list is available upon request. Our practice focuses SCHULZE HAYNES LOEVENGUTH & CO. ADA/disability discrimination, other Title VII and FEHA dis- on closely held entrepreneurial firms in the following indus- 660 South Figueroa Street, Suite 1280, Los Angeles, CA crimination and harassment, retaliation, FMLA/CFRA, tries: construction, real estate development, equipment 90017, (213) 627-8280, fax (213) 627-8301, e-mail: safety, and wrongful termination. Courtroom testimony leasing, auto parts (wholesale and retail), manufacturing, [email protected]. Web site: www.schulze- and deposition experience. Retained 60 percent by and professional services. Honored by Construction Link haynes.com. Contact Karl J. Schulze, president. Spe- defense, 40 percent by plaintiff. Audit employer’s actions as the “Best Accounting Firm for the construction indus- cialties: forensic business analysis and accounting, lost in preventing and resolving discrimination, harassment, try.” Glenn M. Gelman has been appointed and served as profits, economic damages, expert testimony, discovery and retaliation issues. Assess human resources policies Special Master in litigation support matters and has testi- assistance, business valuations, corporate recovery, finan- and practices for soundness, for comparison to prevailing fied over 30 times. Our comprehensive case list is avail- cial analysis, and modeling. Member of major professional practices, and for compliance. Evaluate employer respon- able upon request. See display ad on page 44. organizations, experience across a broad spectrum of siveness to complaints and effectiveness of employer industries and business issues. Degrees/licenses: CPA, investigations. Assist counsel via preliminary case analysis, GURSEY | SCHNEIDER LLP CVA, CFE, ABV, PhD-Economics. See display ad on discovery strategy, examination of documents, and expert page 45. 1888 Century Park East, Suite 900, Los Angeles, CA testimony. 90067, (310) 552-0960, fax (310) 557-3468, e-mail: nafshar @gursey.com, [email protected], or gk@gursey THOMAS NECHES & COMPANY LLP HRM CONSULTING, INC. .com. Web site: www.gursey.com. Contact Naz Afshar, 633 West 5th Street, Suite 2800, Los Angeles, CA 90071- 2050 Gateway Place, Suite 100-177, San Jose, Keith Dolabson, or Gary Krausz. Forensic accounting 2039, (213) 624-8150, fax (213) 223-2304, e-mail: tom CA 95110, (209)728-8905, fax (209) 728-8970, and litigation support services in the areas of marital dis- @thomasneches.com. Web site: www.thomasneches e-mail: [email protected]. Web site: www solution, civil litigation, business valuation and appraisal, .com. Contact Thomas M. Neches, CPA, ABV, CVA, .hrmconsulting.com. Contact Beth B. De Lima, goodwill, business disputes, malpractice, tax matters, bank- CFE, CFF. Accounting, financial, business valuation, and SPHR-CA. Expert witness Beth De Lima, has testified for ruptcy, damage and cost-profit assessments, insurance statistical analyses to assist attorneys in litigation. Expert both plaintiff and defense in the following areas: human claims, court accounting, tracing, and entertainment indus- testimony in state and federal courts. Cases: antitrust, resources standards of care, employment ADA accom- try litigation. See display ad on page 51. breach of contract, fraud, intellectual property, lost busi- modation, FEHA, FMLA, CFRA, ADA & EEOC violations. ness value, lost profits, wrongful death, and wrongful ter- Wrongful termination, performance management, discrimi- HARGRAVE & HARGRAVE, AN ACCOUNTANCY mination. Industries: banking, construction, entertainment, nation, sexual harassment, exempt analysis, labor market CORPORATION insurance, manufacturing, retail, securities, and wholesale. assessment, and vocational evaluations. She holds Credentials: certified public accountant/accredited in busi- 12121 Wilshire Boulevard, Suite 700, Los Angeles, national and California specific certification—Senior Pro- ness valuation, certified valuation analyst, certified fraud CA 90025, (310) 576-1090, fax (310) 576-1080, e-mail: fessional in Human Resource (SPHR-CA), certified media- examiner and certified in financial forensics. Education: BA [email protected]. Web site: www tor, and consulting since 1992. (Mathematics) UC San Diego, MS (Operations Research) .hargraveandhargrave.com. Contact Terry M. Hargrave, UCLA. Teaching: adjunct professor, Loyola Law School. CPA/ABV/CFF, CFE. Forensic accounting and business APPRAISAL & VALUATION valuation services for family law and civil cases. Past chair See display ad on page 56. of California Society of CPAs’ Family Law Section and BTI APPRAISAL business valuation instructor for California CPA Education WHITE, ZUCKERMAN, WARSAVSKY, 605 West Olympic Boulevard, Suite 820, Los Angeles, Foundation. Services include business valuations, income LUNA & HUNT CA 90015, (213) 532-3800, fax (213) 532-3807, e-mail: available for support, tracing separate property, litigation 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA [email protected] or [email protected]. Web consulting, real estate litigation, mediation, fraud investi- 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, site: www.btiappraisal.com. Contact Ben F. Tunnell III, gations, damage calculation, and other forensic account- 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) Chairman or Megan O’Rourke, Vice Chairman. BTI ing work. 219-9095, e-mail: [email protected]. Web site: www Appraisal has been providing litigation and appraisal ser- .wzwlh.com. Contact Barbara Luna. Expert witness tes- vices since 1974 in the areas of real estate, machinery and KRYCLER, ERVIN, TAUBMAN, AND KAMINSKY timony for complex litigation involving damage analyses of equipment, personal property, and business valuation. lost profits, unjust enrichment, reasonable royalties, lost 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA Well written and documented reports reduce litigation earnings, lost value of business, forensic accounting, fraud 91403, (818) 995-1040, fax (818) 995-4124. Web site: costs and speed dispute resolution. Our work has passed investigation, investigative analysis of liability, and marital www.ketkcpa.com. Contact Michael J. Krycler. Litiga- the most rigorous scrutiny of the IRS, the SEC, govern- dissolution, and tax planning and preparation. Excellent tion support, including forensic accounting, business ment condemning agencies, state and federal courts. The communicators with extensive testimony experience. Prior appraisals, family law accounting, business and profes- collective experience of our nationally regarded profes- Big Four accountants. Specialties include accounting, sional valuations, damages, fraud investigations, and lost sionals can address projects of all sizes and locations. breach of contract, breach of fiduciary duty, business earnings. Krycler, Ervin, Taubman, and Kaminsky is a full- interruption, business dissolution, construction defects, service accounting firm serving the legal community for FULCRUM INQUIRY delays, and cost overruns, fraud, insurance bad faith, more than 25 years. See display ad on page 44. 888 South Figueroa Street, Suite 2000, Los Angeles, intellectual property (including trademark, patent, and CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: copyright infringement, and trade secrets), malpractice, [email protected]. Web site: www.fulcrum.com. DIANA G. LESGART, CPA, CFE, CVA, CFF, AN marital dissolution, personal injury, product liability, real Contact David Nolte. Our professionals are experienced ACCOUNTANCY CORP. estate, securities, tax planning and preparation, IRS audit CPAs, MBAs, ASAs, CFAs, affiliated professors, and 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, defense, tracing, unfair advertising, unfair competition, val- industry specialists. Our analysis and research combined (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 uation of businesses, and wrongful termination. See dis- with unique presentation techniques have resulted in an @msn.com. Contact Diana G. Lesgart, CPA, CFE, play ad on page 47. CVA, CFF. Specialized accounting and litigation support unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analy- services in the areas of family law litigation, including trac- ZIVETZ, SCHWARTZ & SALTSMAN, CPAS ing of separate and community property assets, pension sis, loss profit studies, business and intangible asset valu- 11900 West Olympic Boulevard, Suite 650, Los Angeles, plan tracing, forensic accounting, business valuations, ations, fraud investigations, statistics, forensic economic CA 90064-1046, (310) 826-1040, fax (310) 826-1065. goodwill calculation, expert testimony, cash available for analysis, royalty audits, strategic and market assess- Web site: www.zsscpa.com. support, Moore-Marsden calculations, fraud investiga- Contact Lester J. ments, competitive surveys, analysis of computerized tions, real estate analysis, community property balance Schwartz, CPA/CFF, DABFE, DABFA, Michael D. data, injury and employment damages, and a wide range sheet. Over 25 years of accounting experience with 20 Saltsman, CPA, MBA, JB Rizzo, CPA, ABV, CFF, of other financial advisory services. Degrees/licenses: years’ litigation support specialization. Appointedas Sec- CVA, David L. Bass, CPA, David Dichner, CPA, ABV, CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, Accounting tion 730 accounting expert. Ms. Lesgart’s profile can be Sandy Green, CPA, Silva Hakobyan, CPA. finance, economics, and related subjects. See display ad experts in forensic accounting, tax issues, business valua- found at http://www.jurispro.com/DianaLesgartCPA. on back cover. tions, and appraisals, marital dissolutions, eminent Expert is English/Spanish bilingual. See display ad on domain, insurance losses, business interruption, goodwill, page 57. GURSEY | SCHNEIDER LLP economic analysis, investigative auditing, loss of earning, 1888 Century Park East, Suite 900, Los Angeles, CA commercial damages, and lost profits. Expert witness tes- 90067, (310) 552-0960, fax (310) 557-3468, e-mail: MICHAEL D. ROSEN, CPA, PHD, ABV timony preparation, settlement negotiations, and consulta- [email protected]. Web site: www.gursey.com. 3780 Kilroy Airport Way, Suite 200, Long Beach, CA tions. See display ad on page 49. 90806, (562) 256-7052, fax (562) 256-7001, e-mail: Contact Stephan Wasserman. Gursey|Schneider is [email protected]. Web site: www.mrosencpa.com. an accounting firm specializing in forensic accounting, l Contact Michael D. Rosen. We are litigation consul- ADA/DISABILITY DISCRIMINATION itigation support services, business valuation, and tants, forensic accountants, expert witnesses. Our mission appraisal services for a variety of purposes, including HAIGHT CONSULTING is to tell the financial story that underlies every business liti- marital dissolution, gift and estate planning, eminent gation matter and to convey that story in a clear and con- 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) domain, goodwill loss, business disputes, malpractice, cise manner to the trier of fact. Our findings allow a realis- 454-2988, fax (310) 454-4516. Contact Marcia Haight, tax matters, bankruptcy, damage and cost-profit assess- tic assessment of the case and support settlement efforts. SPHR—CA. Human resources expert knowledgeable in ments, insurance claims, and entertainment industry litiga- Our work is designed to render conclusive opinions and to both federal and California law. Twenty-five years’ corpo- tion. Gursey|Schneider has over 35 years of experience as withstand cross-examination. We specialize in business rate human resources management experience plus over expert witnesses in litigation support. See display ad on damages (lost profits and loss in value), personal damages 20 years as a Human Resources Compliance Consultant page 51. (lost earnings), and business valuation. in California. Specializations include sexual harassment,

40 Los Angeles Lawyer April 2015 HARGRAVE & HARGRAVE, AN ACCOUNTANCY CORPORATION 12121 Wilshire Boulevard, Suite 700, Los Angeles, CA 90025, (310) 576-1090, fax (310) 576-1080, e-mail: [email protected]. Web site: www .hargraveandhargrave.com. Contact Terry M. Hargrave, CPA/ABV/CFF, CFE. Forensic accounting and business valuation services for family law and civil cases. Past chair of California Society of CPAs’ Family Law Section and business valuation instructor for California CPA Education Foundation. Services include business valuations, income available for support, tracing separate property, litigation consulting, real estate litigation, mediation, fraud investiga- tions, damage calculation, and other forensic accounting work.

HIGGINS, MARCUS & LOVETT, INC. 800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, (213) 617-7775, fax (213) 617-8372, e-mail: [email protected]. Contact Mark C. Higgins, ASA. The firm has over 30 years of litigation support and expert tes- timony experience in matters involving business valuation, economic damages, intellectual property, loss of business goodwill, and lost profits. Areas of practice include busi- ness disputes, eminent domain, bankruptcy, and corpo- rate and marital dissolution. See display ad on page 41.

KRYCLER, ERVIN, TAUBMAN, AND KAMINSKY 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA 91403, (818) 995-1040, fax (818) 995-4124. Web site: www.ketkcpa.com. Contact Michael J. Krycler. Litiga- tion support, including forensic accounting, business appraisals, family law accounting, business and profes- sional valuations, damages, fraud investigations, and lost earnings. Krycler, Ervin, Taubman, and Kaminsky is a full- service accounting firm serving the legal community for more than 25 years. See display ad on page 44

WARONZOF ASSOCIATES, INC. 400 Continental Boulevard, Sixth Floor, El Segundo, CA 90245, (310) 322-7744, fax (424) 285-5380. Web site: www.waronzof.com. Contact Timothy R. Lowe, MAI, CRE. Waronzof provides real estate and land use litigation support services including economic damages, lost prof- its, financial feasibility, lease dispute, property value, enter- prise value, partnership interest and closely held share value, fair compensation, lender liability, and reorganiza- tion plan feasibility. Professional staff of five with advanced degrees and training in real estate, finance, urban plan- ning, and accounting. See display ad on page 53.

ARCHITECTURE A & E FORENSICS 2121 Montiel Road, San Marcos, CA 92069, (877) 839- 7302, fax (760) 480-7477, e-mail: steve@aeforensics .com. Web site: www.aeforensics.com. Contact Steve Norris, AIA, PE, GE, HG, CEG, CASp, LEED. Architect, engineer, contractor—standard of care expert. Retained over 200 times, deposed over 100 times, and testified in trial over 20 times. Waterproofing, water intrusion, build- ing envelope, zoning setbacks, concrete performance, path of travel, structural analysis, earthquake-fire dam- age, and plan analysis. Landslides, retaining wall failure, settlement, flooding, grading, septic, expansive soils, mud flows, pavement distress, ground water evaluation, Confidence At The Courthouse. and slope analysis. Cost estimates, construction manage- ment, delay analysis, and contracts. Serving all California, Business litigation is increasingly complex. That is why we believe valuation Hawaii, and Oklahoma. See display ad on page 49. issues must be addressed with the same meticulous care as legal issues. Analysis must be clear. Opinions must be BANKING defensible. Expert testimony must be thorough and ADVISORS/EXPERTS @ MCS ASSOCIATES articulate. HML has extensive trial experience and can 18881 Von Karman, Suite 1175, Irvine, CA 92612, provide legal counsel with a powerful resource for expert (949) 263-8700, fax (949) 263-0770, e-mail: experts testimony and litigation support. @mcsassociates.com. Web site: www.mcsassociates .com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and For More Information Call 213-617-7775 real estate consulting group (established 1973). Experi- Or visit us on the web at www.hmlinc.com enced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS insurance underwriters/brokers. Specialties include: lend- ing customs, practices, policies, in all types of lending (real estate, subprime, business/commercial, construction,

Los Angeles Lawyer April 2015 41 consumer/credit card), banking operations/administration, analysis and weather analysis. Degrees/license: BA, Cap- credible information is what we provide to every client. trusts and investments, economic analysis and valua- tain, U.S. Merchant Marine, 5,000 tons—all oceans, any tions/damages assessment, insurance claims, coverages waters. CBIZ & MAYER HOFFMAN MCCANN PC and bad faith, real estate brokerage, appraisal, escrow, 10474 Santa Monica Boulevard, Suite 200, Los Angeles, and title insurance. BUSINESS CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected]. Contact Coral Hansen. Web site: BANKRUPTCY FORENSISGROUP www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer EXPERT WITNESS SERVICES SINCE 1991 Hoffman McCann PC specializes in fraud investigations, FULCRUM INQUIRY 301 North Lake Avenue, Suite 420, Pasadena, CA 91101, forensic accounting, business litigation, commercial 888 South Figueroa Street, Suite 2000, Los Angeles, (800) 555-5422, (626) 795-5000, fax: (626) 795-1950, damage and lost profits computations, business valua- CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: email: [email protected]. Web site: www tion and appraisal, transactional due diligence, family [email protected]. Web site: www.fulcrum.com. .forensisgroup.com. Contact Mercy Steenwyk. 10,000 limited partnerships, business interruption, and family Contact David Nolte. Our professionals are experienced cases ForensisGroup has provided experts. 8,000 clients law. We provide experienced expert testimony and tax CPAs, MBAs, ASAs, CFAs, affiliated professors, and have retained experts from us. We respond in one hour or controversy representation. industry specialists. Our analysis and research combined less. ForensisGroup is an expert witness services and with unique presentation techniques have resulted in an consulting company providing experts, expert witnesses, CMM, LLP unequaled record of successful court cases and client and consultants to law firms, insurance companies, and With office in Woodland Hills and El Segundo (818) 986- recoveries. Our expertise encompasses damages analy- other public and private firms in thousands of disciplines: 5070, fax (818) 986-5034, e-mail: sallen@cmmcpas sis, loss profit studies, business and intangible asset valu- construction, engineering, business, accounting, intellec- .com. Web site: www.cmmcpas.com. Contact Stuart ations, fraud investigations, statistics, forensic economic tual property, computers, IT, medical, real estate, insur- Allen. Specialties: consultants who provide extensive analysis, royalty audits, strategic and market assess- ance, product liability, premises liability, safety, and others, experience, litigation support, and expert testimony ments, competitive surveys, analysis of computerized including experts in complex and hard-to-find disciplines. regarding forensic accountants, fraud investigations, data, injury and employment damages, and a wide range Let us give you the technical advantage and competitive economic damages, business valuations, family law, of other financial advisory services. Degrees/licenses: edge in your cases. Referrals, customized searches, and bankruptcy, and reorganization. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, initial phone consultations are free. See display ad on CPAs, CFEs, MBAs. See display ad on page 45. finance, economics, and related subjects. See display page 45. ad on back cover. CORNERSTONE RESEARCH ROBERT C. ROSEN 633 West Fifth Street, 31st Floor, Los Angeles, CA BANKRUPTCY/TAX Citigroup Center, 444 South Flower Street, 30th Floor, 90071-2005, (213) 553-2500, fax (213) 553-2699. Web Los Angeles, CA 90071, (213) 362-1000, fax (213) 362- site: www.cornerstone.com. Contact George G. ADVISORS/EXPERTS @ MCS ASSOCIATES 1001, e-mail: [email protected]. Web site: Strong, Jr., Richard W. Dalbeck, Katie J. Galley, 18881 Von Karman, Suite 1175, Irvine, CA 92612, www.rosen-law.com. Specializing in securities law, federal Elaine Harwood, Carlyn Irwin, Erin McGlogan, or (949) 263-8700, fax (949) 263-0770, e-mail: experts securities law enforcement, securities arbitration, and Ashish Pradha For more than 25 years, Cornerstone @mcsassociates.com. Web site: www.mcsassociates international securities, insider trading, NYSE, AMEX, Research staff have provided economic and financial .com. Contact Norman Katz, managing partner. FINRA, DOC disciplinary proceedings, broker-dealer, analysis in all phases of commercial litigation and regula- Nationally recognized banking, finance, insurance, and investment company and investment adviser matters, lia- tory proceedings. We work with a broad network of tes- real estate consulting group (established 1973). Experi- bility under federal and state securities laws, private offer- tifying experts, including prominent faculty and industry enced litigation consultants/experts include senior ings, Internet securities, and law firm liability. AV rated. practitioners, in a distinctive collaboration. The experts bankers, lenders, consultants, economists, accountants, Former chair, LACBA Business and Corporations Law with whom we work bring the specialized expertise insurance underwriters/brokers. Specialties include: lend- Section. LLM, Harvard Law School. Forty years practicing required to meet the demands of each assignment. Our ing customs, practices, policies, in all types of lending (real securities law, 12 years with the U.S. Securities and areas of specialization include intellectual property, estate, subprime, business/commercial, construction, Exchange Commission, Washington, DC. Published antitrust, securities, entertainment, real estate, financial consumer/credit card), banking operations/administration, author/editor of securities regulations, including multivol- institutions, and general business litigation. trusts and investments, economic analysis and valua- ume treatises. See display ad on page 63. tions/damages assessment, insurance claims, coverages FULCRUM INQUIRY and bad faith, real estate brokerage, appraisal, escrow, BUSINESS APPRAISAL/VALUATION and title insurance. 888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: ADVISORS/EXPERTS @ MCS ASSOCIATES [email protected]. Web site: www.fulcrum.com. BIOMECHANICS/RECONSTRUCTION/HUMAN 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) Contact David Nolte. Our professionals are experi- FACTORS 263-8700, fax (949) 263-0770, e-mail: experts@mcsas- enced CPAs, MBAs, ASAs, CFAs, affiliated professors, sociates.com. Web site: www.mcsassociates.com. and industry specialists. Our analysis and research com- INSTITUTE OF RISK & SAFETY ANALYSES Contact Norman Katz, managing partner. Nationally bined with unique presentation techniques have resulted KENNETH A. SOLOMON, Ph.D., P.E., POST recognized banking, finance, insurance, and real estate in an unequaled record of successful court cases and Ph.D., CHIEF SCIENTIST consulting group (established 1973). Experienced litiga- client recoveries. Our expertise encompasses damages 5324 Canoga Avenue, Woodland Hills, CA 91364, (818) tion consultants/experts include senior bankers, lenders, analysis, loss profit studies, business and intangible 348-1133, fax (818) 348-4484, e-mail: kennethsolomon consultants, economists, accountants, insurance under- asset valuations, fraud investigations, statistics, forensic @mac.com. Web site: www.irsa.us. Specialized staff, writers/brokers. Specialties include: lending customs, economic analysis, royalty audits, strategic and market broad range of consulting and expert testimony, 43 years practices, policies, in all types of lending (real estate, assessments, competitive surveys, analysis of comput- of courtroom experience. Accident reconstruction, biome- subprime, business/commercial, construction, con- erized data, injury and employment damages, and a chanics, human factors, safety, accident prevention, ade- sumer/credit card), banking operations/administration, wide range of other financial advisory services. quacy of warnings, computer animation and simulations, trusts and investments, economic analysis and valua- Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs construction defect, criminal defense, criminal prosecu- tions/damages assessment, insurance claims, cover- in accounting, finance, economics, and related subjects. tion, premises, product integrity, product liability, product ages and bad faith, real estate brokerage, appraisal, See display ad on back cover. testing, warnings, and lost income calculations. Auto, bicy- escrow, and title insurance. cle, bus, chair, elevator, escalator, forklift, gate, ladder, GURSEY | SCHNEIDER LLP machinery, motorcycle, press, recreational equipment, BRIAN LEWIS & COMPANY 1888 Century Park East, Suite 900, Los Angeles, CA rollercoaster, slip/trip and fall, stairs, swimming pool, and 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 90067, (310) 552-0960, fax (310) 557-3468, e-mail: truck. Litigation and claims, defense/plaintiff, educational 90024, (310) 475-5676, fax (310) 475-5268, e-mail: [email protected]. Web site: www.gursey.com. seminars, and mediation and arbitration services. [email protected]. Contact Brian Lewis, Contact Stephan Wasserman. Gursey|Schneider is CPA, CVA. Forensic accounting, business valuations, an accounting firm specializing in forensic accounting, lit- BOATING cash spendable reports, estate, trust, and income tax igation support services, business valuation, and services. appraisal services for a variety of purposes, including CAPTAIN TOM CARNEY marital dissolution, gift and estate planning, eminent 980 Orma Drive, San Diego, CA 92106, (619) 417-6766, CAPATA & CO. domain, goodwill loss, business disputes, malpractice, fax (619) 225-8141, e-mail: [email protected]. Web site: 28202 Cabot Road, Suite 245, Laguna Niguel, CA tax matters, bankruptcy, damage and cost-profit www.sandiegoyachtdelivery.com. Contact Tom Carney. 92677, (949) 364-0334, fax (949) 364-0362, e-mail: assessments, insurance claims, and entertainment Experienced consultant and expert witness in the marine [email protected]. Web site: www.capatax.com. industry litigation. Gursey|Schneider has over 35 years of industry representing plaintiff or defendant, testimony for Contact Gary Capata, CPA. Litigation support and experience as expert witnesses in litigation support. See recreational or commercial boats, power and sail, accident services including forensic accounting and investiga- display ad on page 51. reconstruction, damage analysis, collision causes, rules of tions, economic damages, business valuation, lost prof- the road, insurance investigation, fraud, proper seaman- its analysis, fraud investigation, and expert witness ser- HAYNIE & COMPANY, CPAS ship, navigation, marine propulsion, mechanical and elec- vices. Our extensive experience, expertise, and 4910 Campus Drive, Newport Beach, CA 92660-2119, trical systems on vessels, proper boat handling, liability unparalleled dedication to providing meticulous and (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson

42 Los Angeles Lawyer April 2015 • 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 @hayniecpa.com. Web site: www.hayniecpa.com. Con- ness testimony for complex litigation involving damage tact Steven C. Gabrielson. Consulting and expert wit- analyses of lost profits, unjust enrichment, reasonable ness testimony in a variety of practice areas: commercial royalties, lost earnings, lost value of business, forensic damages, ownership disputes, economic analysis, busi- accounting, fraud investigation, investigative analysis of ness valuation, lost profits analysis, fraud/forensic inves- liability, and marital dissolution, and tax planning and tigations, taxation, personal injury, wrongful termination, preparation. Excellent communicators with extensive and professional liability. testimony experience. Prior Big Four accountants. Spe- cialties include accounting, breach of contract, breach of HIGGINS, MARCUS & LOVETT, INC. fiduciary duty, business interruption, business dissolu- 800 South Figueroa Street, Suite 710, Los Angeles, CA tion, construction defects, delays, and cost overruns, 90017, (213) 617-7775, fax (213) 617-8372, e-mail: fraud, insurance bad faith, intellectual property (including [email protected]. Contact Mark C. Higgins, ASA. trademark, patent, and copyright infringement, and trade The firm has over 30 years of litigation support and secrets), malpractice, marital dissolution, personal injury, expert testimony experience in matters involving busi- product liability, real estate, securities, tax planning and ness valuation, economic damages, intellectual property, preparation, IRS audit defense, tracing, unfair advertis- loss of business goodwill, and lost profits. Areas of prac- ing, unfair competition, valuation of businesses, and tice include business disputes, eminent domain, bank- wrongful termination. See display ad on page 47. ruptcy, and corporate and marital dissolution. See dis- play ad on page 41. ZIVETZ, SCHWARTZ & SALTSMAN, CPAS 11900 West Olympic Boulevard, Suite 650, Los Ange- RGL FORENSICS les, CA 90064-1046, (310) 826-1040, fax (310) 826- Los Angeles Office: 800 South Figueroa Street, Suite 1065. Web site: www.zsscpa.com. Contact Lester J. 980, Los Angeles, CA 90017, (213) 996-0900. Contact Schwartz, CPA/CFF, DABFE, DABFA, Michael D. Alan Lurie, [email protected]. Rich Holstrom, rhol- Saltsman, CPA, MBA, JB Rizzo, CPA, ABV, CFF, [email protected]. Orange County Office: 625 City Drive CVA, David L. Bass, CPA, David Dichner, CPA, South, Suite 290, Orange, CA 92868, (714) 740-2100. ABV, Sandy Green, CPA, Silva Hakobyan, CPA. Contact Hank Kahrs, [email protected]. San Diego Accounting experts in forensic accounting, tax issues, Office: 11440 W Bernardo Court Suite 300, San Diego, business valuations, and appraisals, marital dissolutions, CA 92127, (619) 236-0377, Contact Rich Holstrom, eminent domain, insurance losses, business interruption, [email protected]. RGL Forensics is an international goodwill, economic analysis, investigative auditing, loss firm of forensic financial experts exclusively dedicated to of earning, commercial damages, and lost profits. Expert damage analysis, fraud investigation, and valuation. witness testimony preparation, settlement negotiations, Serving the legal, insurance, and business communities and consultations. See display ad on page 49. for more than 30 years, the firm is unique in its ability to combine investigative accounting, business valuation, CHEMISTRY fraud, and forensic technology expertise. For attorneys, we discover and define financial value in transactions CHEMICAL ACCIDENT RECONSTRUCTION and civil and criminal disputes, and when necessary pro- SERVICES, INC. vide expert witness testimony in court and arbitration 9121 East Tanque Verde Road, Suite 105, Tucson, AZ proceedings. For more information about RGL and its 24 85749, (800) 645-3369, e-mail: [email protected]. offices worldwide, please visit www.rgl.com. Web site: www.chemaxx.com. Contact Dr. Michael Fox. Comprehensive chemical accident investigation— SCHULZE HAYNES LOEVENGUTH & CO. specializing in complex industrial chemical accidents and 660 South Figueroa Street, Suite 1280, Los Angeles, chemical related consumer product injuries, chemical fires CA 90017, (213) 627-8280, fax (213) 627-8301, and explosions, chemical labeling, chemical packaging, e-mail: [email protected]. Web site: handling and shipping, burns, warnings, labels,MSDSs, www.schulzehaynes.com. Contact Karl J. Schulze, disposal, safety, EPA, OSHA, DOT, propane, butane, nat- president. Specialties: forensic business analysis and ural gas, hydrogen, flammable liquids, hazardous chemi- accounting, lost profits, economic damages, expert tes- cals, aerosols (hairspray, spray paint, refrigerants). DOT timony, discovery assistance, business valuations, cor- certified (hazardous materials shipment). Certified fire and porate recovery, financial analysis, and modeling. Mem- explosion investigator, OSHA process hazard analysis ber of major professional organizations, experience team leader. PhD physical chemistry. Extensive experi- across a broad spectrum of industries and business ence in metallurgy, corrosion, and failure analysis. Richard M. Squar issues. Degrees/licenses: CPA, CVA, CFE, ABV, PhD- CPA, MS-Tax, CVA, ABV, CFF Economics. See display ad on page 45. CIVIL LITIGATION Tax & Litigation Support Director THOMAS NECHES & COMPANY LLP GURSEY | SCHNEIDER LLP 633 West 5th Street, Suite 2800, Los Angeles, CA 1888 Century Park East, Suite 900, Los Angeles, CA 90071-2039, (213) 624-8150, fax (213) 223-2304, 90067, (310) 552-0960, fax (310) 557-3468, e-mail: gk e-mail: [email protected]. Web site: www @gursey.com. Web site: www.gursey.com. Contact Gursey|Schneider specializes in forensic .thomasneches.com. Contact Thomas M. Neches, Gary Krausz. accounting and litigation support services in the areas of CPA, ABV, CVA, CFE, CFF. Accounting, financial, business valuation, and statistical analyses to assist civil litigation, business disputes, bankruptcy, damage and attorneys in litigation. Expert testimony in state and fed- cost-profit insurance claims, court accountings, fraud eral courts. Cases: antitrust, breach of contract, fraud, investigations, accounting malpractice, intellectual prop- intellectual property, lost business value, lost profits, erty, construction, government accounting, and entertain- wrongful death, and wrongful termination. Industries: ment litigation. Gursey|Schneider has over 35 years of banking, construction, entertainment, insurance, manu- experience as expert witnesses in accounting related mat- facturing, retail, securities, and wholesale. Credentials: ters. See display ad on page 51. certified public accountant/accredited in business valua- tion, certified valuation analyst, certified fraud examiner COMPOSITE & FIBERGLASS MATERIALS and certified in financial forensics. Education: BA (Math- ematics) UC San Diego, MS (Operations Research) KARS’ ADVANCED MATERIALS, INC. UCLA. Teaching: adjunct professor, Loyola Law School. Testing and Research Labs, 2528 West Woodland Drive, See display ad on page 56. Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- 7169, e-mail: [email protected]. Web site: www.karslab WHITE, ZUCKERMAN, WARSAVSKY, .com. Contact Dr. Ramesh Kar, Dr. Naresh Kar, Dr. LUNA & HUNT Nikhil Kar. Southern California’s premier materials/ 15490 Ventura Boulevard, Suite 300, Sherman Oaks, mechanical/metallurgical/structural/forensics laboratory. CA 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Registered professional engineers with 30+ years in metal- Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax lurgical/forensic/structural/mechanical failure analysis. (949) 219-9095, e-mail: [email protected]. Web site: Experienced with automotive, bicycles, tires, fire, paint, www.wzwlh.com. Contact Barbara Luna. Expert wit- plumbing, corrosion, and structural failures. We work on both plaintiff and defendant cases. Complete in-house

44 Los Angeles Lawyer April 2015 capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals are Fellows of American Society for Metals and Fellows, American College of Forensic Examiners. See display ad on page 61.

COMPUTER FORENSICS DATACHASERS, INC. P.O. Box 2861, Riverside, CA 92516-2861, (877) DataExam, (877) 328-2392, (951) 780-7892, e-mail: [email protected]. Web site: www.DataChasers .com. E-Discovery: Full e-discovery services; you give us the mountain, we give you the mole hill: Tiff production, de-duplication, redaction, Bates-stamped data, and elec- tronically stored information (ESI) production. Computer forensic: full forensic computer lab. Recovering deleted text files (documents), graphics (pictures), date codes on all files, e-mail, and tracing Internet activity. Intellectual property cases, family law, employment law, probate reso- lution, asset verification, criminal law (prosecution or defense), etc. Litigation support, trial preparation, experi- enced expert witnesses, and professional courtroom dis- plays. See display ad on page 53.

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 analy- sis, loss profit studies, business and intangible asset valu- ations, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assess- ments, competitive surveys, analysis of computerized data, injury and employment damages, and a wide range of other financial advisory services. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, finance, economics, and related subjects. See display ad on back cover.

SETEC INVESTIGATIONS 8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90036, (800) 748-5440, fax (323) 939-5481, e-mail: tstefan @setecinvestigations.com. Web site: www.setecinvestiga- tions.com. Contact Todd Stefan. Setec Investigations offers unparalleled expertise in computer forensics and enterprise investigations providing personalized, case- specific forensic analysis and litigation support services for law firms and corporations. Setec Investigations pos- sesses the necessary combination of technical expertise, understanding of the legal system, and specialized tools and processes enabling the discovery, collection, investi- gation, and production of electronic information for investi- gating and handling computer-related crimes or misuse. Our expertise includes computer forensics, electronic dis- covery, litigation support, and expert witness testimony.

COMPUTERS/INFORMATION SCIENCES COSGROVE COMPUTER SYSTEMS, INC. 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823-9448, fax (310) 821-4021, e-mail: jcosgrove @computer.org. Web site: www.cosgrovecomputer.com. Contact John Cosgrove. John Cosgrove, PE, has over 50 years of experience in computer systems and has been a self-employed, consulting software engineer since 1970. He was a part-time lecturer in the UCLA School of Engineering and LMU graduate schools. He provided an invited article, “Software Engineering and Litigation,” for the Encyclopedia of Software Engineering. He is a Certi- fied Forensic Consultant (CFC), holds the CDP, is a mem- ber of ACM, ACFEI, FEWA, a life senior member of IEEE Computer Society, NSPE, a Fellow of the National Acad- emy of Forensic Engineers (an affiliate of NSPE), and a professional engineer in California. Formal education includes a BSEE from Loyola University (now LMU) and a master of engineering from UCLA. He currently serves as President of the UCLA Engineering Alumni Association.

Los Angeles Lawyer April 2015 45 CONSTRUCTION 90503, (310) 543-0500, fax (310) 543-0550, e-mail: be counted on to being ethical, competent, prepared, and [email protected]. Web site: www.phlcorplaw analytical as well as articulate and persuasive at deposi- FORENSISGROUP .com. Contact Mark Hiraide. Expert witness in the fol- tions and court appearances. Published and have been EXPERT WITNESS SERVICES SINCE 1991 lowing areas: formation of corporations, partnerships, and written about in print, radio, and TV over 116 times. Expert 301 North Lake Avenue, Suite 420, Pasadena, CA 91101, limited liability companies, governance, fiduciary duties of on issues including: standard of care, cosmetics, lasers, (800) 555-5422, (626) 795-5000, fax: (626) 795-1950, officers and directors, and majority shareholders, venture extractions, nerve damage, valuation, informed consent, email: [email protected]. Web site: ww and acquisition issues; violation of securities laws; and antibiotic coverage, TMJ, orthodontics including Invisalign, w.forensisgroup.com. Contact Mercy Steenwyk. legal malpractice of lawyers. sleep apnea, treatment planning, occlusion and vertical 10,000 cases ForensisGroup has provided experts. 8,000 dimension, electrosurgery, abscess, resorption, implants, clients have retained experts from us. We respond in one CORPORATE INVESTIGATIONS crowns, root canal, veneers, periodontics, and patent hour or less. ForensisGroup is an expert witness services infringement. Licensed in 42 states to opine on standard and consulting company providing experts, expert wit- FULCRUM INQUIRY of care, with specific license in California, Nevada, and the nesses, and consultants to law firms, insurance compa- 888 South Figueroa Street, Suite 2000, Los Angeles, CA Northeast as well as a Florida Expert Certification. Gradu- nies, and other public and private firms in thousands of dis- 90017, (213) 787-4100, fax (213) 891-1300, e-mail: ated NYU 1988; Lieutenant, United States Navy 1989-91; ciplines: construction, engineering, business, accounting, [email protected]. Web site: www.fulcrum.com. private practice Brentwood, CA since 1991; faculty: Clini- intellectual property, computers, IT, medical, real estate, Contact David Nolte. Our professionals are experienced cal Professor at UCLA College of Dentistry as well as insurance, product liability, premises liability, safety, and CPAs, MBAs, ASAs, CFAs, affiliated professors, and Western University College of dental medicine. others, including experts in complex and hard-to-find disci- industry specialists. Our analysis and research combined plines. Let us give you the technical advantage and com- with unique presentation techniques have resulted in an petitive edge in your cases. Referrals, customized DEVELOPMENT unequaled record of successful court cases and client searches, and initial phone consultations are free. See recoveries. Our expertise encompasses damages analy- THE SIMMONS GROUP, INC. display ad on page 45. sis, loss profit studies, business and intangible asset valu- 5023 Butterfield Court, Culver City, CA 90230, (310) ations, fraud investigations, statistics, forensic economic 439-4119, fax (310) 300-3020, e-mail: phil.simmons252 GLENN M. GELMAN & ASSOCIATES analysis, royalty audits, strategic and market assess- @gmail.com. Web site: www.simmonsgroupconsulting CERTIFIED PUBLIC ACCOUNTANTS AND ments, competitive surveys, analysis of computerized .com. Contact Philip Simmons, Esq. Decades of exec- BUSINESS ADVISERS data, injury and employment damages, and a wide range utive land use, development, and real estate law expertise 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- of other financial advisory services. Degrees/licenses: provides a unique combination of skills providing expert 2600, fax (714) 667-2636, e-mail: [email protected]. CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, witness issues analysis, case preparation, and testimony. Web site: www.gmgcpa.com. Contact Richard M. finance, economics, and related subjects. See display ad Over 30 years of experience in corporate mixed-use real Squar. Exclusive LA and Orange County representative on back cover. estate and development operations, specializing in all for CICPAC (Construction Industry CPA/Consultants aspects of land acquisition, major project entitlement, pro- Association) This is a nationwide network of CPA firms WHITE, ZUCKERMAN, WARSAVSKY, ject design, development, finance, marketing, and disposi- specifically selected for their experience in and commit- LUNA & HUNT tion. In-depth legal expertise in complex negotiations, ment to serving the construction industry. We are one of 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA reviewing and implementing ordinances, drafting agree- only six firms in all of California that are members of this 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, ments, structuring compliance, and directing teams of prestigious organization. We provide these litigation sup- 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) consultants and outside counsel. port services: expert witness testimony, strategy develop- 219-9095, e-mail: [email protected]. Web site: www ment, document discovery, deposition assistance, com- .wzwlh.com. Contact Barbara Luna. Expert witness tes- putation of damages, arbitration consulting, forensic DOCUMENT EXAMINER timony for complex litigation involving damage analyses of accounting, investigative auditing, rebuttal testimony, fidu- lost profits, unjust enrichment, reasonable royalties, lost SANDRA L. HOMEWOOD, FORENSIC DOCU- ciary accountings, and trial exhibit preparation. Our areas earnings, lost value of business, forensic accounting, fraud MENT EXAMINER of expertise include: business interruption, loss of earnings investigation, investigative analysis of liability, and marital 1132 San Marino Drive, Suite 216, Lake San Marcos, analysis, breach of contract, partnership dissolution, prof- dissolution, and tax planning and preparation. Excellent CA 92078, (760) 931-2529, fax (760) 510-8412, e-mail: its distribution, tax consequences of settlements, recon- communicators with extensive testimony experience. Prior [email protected]. Contact Sandra L. struction of accounting records, embezzlement and fraud, Big Four accountants. Specialties include accounting, Homewood. Highly skilled and experienced document contract costs, lost profits, construction claims, and dam- breach of contract, breach of fiduciary duty, business examiner and expert witness in many complex and high age computations cases. Honored by Construction Link interruption, business dissolution, construction defects, profile civil and criminal cases with fully equipped docu- as the “Best Accounting Firm for the construction indus- delays, and cost overruns, fraud, insurance bad faith, ment laboratory. Specializing in handwriting and hand- try.” Glenn M. Gelman has been appointed and served as intellectual property (including trademark, patent, and printing identification, handwriting of the elderly in financial Special Master in litigation support matters and has testi- copyright infringement, and trade secrets), malpractice, elder abuse cases and will contests, and examination of fied over 30 times. Our comprehensive case list is avail- marital dissolution, personal injury, product liability, real altered medical and corporate records. Trained in govern- able upon request. See display ad on page 44. estate, securities, tax planning and preparation, IRS audit ment laboratory including specialized training by the FBI defense, tracing, unfair advertising, unfair competition, val- and Secret Service. Former government experience KGA, INC. uation of businesses, and wrongful termination. See dis- includes document examiner for the San Diego Police 1409 Glenneyre Street, Suite A, Laguna Beach, CA play ad on page 47. Department crime lab, Arizona State crime lab, San Diego 92651, (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg County District Attorney’s office and San Luis Obispo and @kgainc.com. Web site: www.kgainc.com. Contact Kurt Santa Barbara District Attorney offices. Currently in private Grosz. Construction and environmental consultants since DENTIST criminal and civil practice. 1991. Licensed engineers and contractors. ICC building, RICHARD BENVENISTE, DDS, MSD plumbing, mechanical, concrete, and accessibility inspec- 19231 Victory Boulevard, Suite 256, Reseda, CA 91335, tors. Certified professional estimators. Trial experts, arbi- ECONOMIC ANALYSIS (818) 881-7337, fax (818) 881-6183, e-mail: yourgums trators, and insurance ppraisers/umpires. @gamil.com. Contact Richard Benveniste, DDS, MSD. CBIZ & MAYER HOFFMAN MCCANN PC Previous three-term officer of State Dental Board of Cali- 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CONTRACT SOLUTIONS fornia, having ruled on all phases of dental practice. Prac- CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: ticing as an expert, consultant, evaluator and teacher in [email protected]. Contact Coral Hansen. Web site: ARCADIS the treatment of TMJ, personal injury (PI), lien cases, and www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer 445 South Figueroa Street, Suite 3650, Los Angeles, dental injury. Multiple distinguished service citations from Hoffman McCann PC specializes in fraud investigations, CA 90071, (213) 797-5275, fax (213) 486-9894, email: California State Department of Consumer Affairs. Provider forensic accounting, business litigation, commercial dam- [email protected]. Web site: www.arcadis-us. of continuing education courses on oral diagnosis, oral age and lost profits computations, business valuation and com. Contact Christi Fu, PE, LEED AP. ARCADIS is an medicine, treatment modalities, TMJ diagnosis and ther- appraisal, transactional due diligence, family limited part- industry leader in the analysis of construction claims and apy. Multiple long-term professional organization member- nerships, business interruption, and family law. We pro- specializes in the avoidance, litigation and resolution of ships. Degrees/licenses: Doctor of Dental Surgery, (DDS); vide experienced expert testimony and tax controversy construction disputes. Our firm offers a full range of ser- Master of Science in Dentistry (MSD). representation. vices, including litigation support, expert testimony, schedule analysis, change order evaluation, delay/impact JAY GROSSMAN DDS ECONOMIC DAMAGES analysis, discovery/deposition assistance, causeeffect- 11980 San Vicente Boulevard, Suite 507, Brentwood, impact analysis, contractor financial audits, merit analysis, CA 90049, (310) 820-0123, e-mail: jaygrossmandds ADVISORS/EXPERTS @ MCS ASSOCIATES document database evelopment/management, and per- @gmail.com. Web site: www.drjaydds.com. Contact Jay 18881 Von Karman, Suite 1175, Irvine, CA 92612, formance audits. Grossman. Dental malpractice expert testimony. Have (949) 263-8700, fax (949) 263-0770, e-mail: been deposed over 85 times; reviewed over 420 cases for [email protected]. Web site: www CORPORATE AND SECURITIES both defense and plaintiff including peer review, accidents, .mcsassociates.com. Contact Norman Katz, and malpractice. 60% plaintif/40% defense. Have qualified managing partner. Nationally recognized banking, PETILLON HIRAIDE LLP in Superior Court over 30 times and never been disquali- finance, insurance, and real estate consulting group 21515 Hawthorne Boulevard, Suite 1260, Torrance, CA fied. At least 95% of my time is spent in patient care. I can (established 1973). Experienced litigation consultants/

46 Los Angeles Lawyer April 2015 experts include senior bankers, lenders, consultants, forensic accounting and litigation support services that ness value, lost profits, wrongful death, and wrongful ter- economists, accountants, insurance underwriters/brokers. give our clients an edge. We provide the quality and depth mination. Industries: banking, construction, entertainment, Specialties include: lending customs, practices, policies, in traditionally associated with Big Four firms with the per- insurance, manufacturing, retail, securities, and wholesale. all types of lending (real estate, subprime, business/com- sonal attention and fee structure of a local firm. We are Credentials: certified public accountant/accredited in busi- mercial, construction, consumer/credit card), banking recognized throughout southern California for the effec- ness valuation, certified valuation analyst, certified fraud operations/administration, trusts and investments, eco- tiveness of our work. Areas of expertise include: business examiner and certified in financial forensics. Education: BA nomic analysis and valuations/damages assessment, interruption, loss of earnings analysis, breach of contract, (Mathematics) UC San Diego, MS (Operations Research) insurance claims, coverages and bad faith, real estate partnership dissolution, profits distribution, tax conse- UCLA. Teaching: adjunct professor, Loyola Law School. brokerage, appraisal, escrow, and title insurance. quences of settlements, reconstruction of accounting See display ad on page 56. records, embezzlement and fraud, contract costs, lost CBIZ & MAYER HOFFMAN MCCANN PC profits, construction claims, and damage computations WARONZOF ASSOCIATES, INC. cases. 10474 Santa Monica Boulevard, Suite 200, Los Angeles, Our practice focuses on closely held entrepreneur- 400 Continental Boulevard, Sixth Floor, El Segundo, CA CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: ial firms in the following industries: construction, real estate 90245, (310) 322-7744, fax (424) 285-5380. Web site: development, equipment leasing, auto parts (wholesale [email protected]. Contact Coral Hansen. Web site: www.waronzof.com. Contact Timothy R. Lowe, MAI, and retail), manufacturing, and professional services. www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer CRE. Waronzof provides real estate and land use litigation Hoffman McCann PC specializes in fraud investigations, Glenn M. Gelman has been appointed and served as Spe- support services including economic damages, lost prof- forensic accounting, business litigation, commercial dam- cial Master in litigation support matters and has testified its, financial feasibility, lease dispute, property value, enter- age and lost profits computations, business valuation and over 30 times. Our comprehensive case list is available prise value, partnership interest and closely held share appraisal, transactional due diligence, family limited part- upon request. See display ad on page 44. value, fair compensation, lender liability, and reorganiza- nerships, business interruption, and family law. We pro- tion plan feasibility. Professional staff of five with advanced vide experienced expert testimony and tax controversy GURSEY | SCHNEIDER LLP degrees and training in real estate, finance, urban plan- representation. 1888 Century Park East, Suite 900, Los Angeles, CA ning, and accounting. See display ad on page 53. 90067, (310) 552-0960, fax (310) 557-3468, e-mail: CORNERSTONE RESEARCH [email protected]. Web site: www.gursey.com. Contact WHITE, ZUCKERMAN, WARSAVSKY, Gursey|Schneider specializes in forensic 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- Gary Krausz. LUNA & HUNT accounting and litigation support services in the areas of 2005, (213) 553-2500, fax (213) 553-2699. Web site: 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA civil litigation, business disputes, bankruptcy, damage and www.cornerstone.com. Contact George G. Strong, Jr., 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, cost-profit insurance claims, court accountings, fraud Richard W. Dalbeck, Katie J. Galley, Elaine Har- 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) investigations, accounting malpractice, intellectual prop- wood, Carlyn Irwin, Erin McGlogan, or Ashish Prad- 219-9095, e-mail: [email protected]. Web site: www erty, construction, government accounting, and entertain- han. For more than 25 years, Cornerstone Research staff .wzwlh.com. Contact Barbara Luna. Expert witness ment litigation. Gursey|Schneider has over 35 years of have provided economic and financial analysis in all testimony for complex litigation involving damage analyses experience as expert witnesses in accounting related mat- phases of commercial litigation and regulatory proceed- of lost profits, unjust enrichment, reasonable royalties, lost ters. ings. We work with a broad network of testifying experts, See display ad on page 51. earnings, lost value of business, forensic accounting, fraud including prominent faculty and industry practitioners, in a investigation, investigative analysis of liability, and marital distinctive collaboration. The experts with whom we work HIGGINS, MARCUS & LOVETT, INC. dissolution, and tax planning and preparation. Excellent bring the specialized expertise required to meet the 800 South Figueroa Street, Suite 710, Los Angeles, CA communicators with extensive testimony experience. Prior demands of each assignment. Our areas of specialization 90017, (213) 617-7775, fax (213) 617-8372, e-mail: info Big Four accountants. Specialties include accounting, include intellectual property, antitrust, securities, entertain- @hmlinc.com. Contact Mark C. Higgins, ASA. The firm breach of contract, breach of fiduciary duty, business ment, real estate, financial institutions, and general busi- has over 30 years of litigation support and expert testi- interruption, business dissolution, construction defects, ness litigation. mony experience in matters involving business valuation, delays, and cost overruns, fraud, insurance bad faith, economic damages, intellectual property, loss of business intellectual property (including trademark, patent, and CORPORATE SCIENCES, INC. goodwill, and lost profits. Areas of practice include busi- copyright infringement, and trade secrets), malpractice, ness disputes, eminent domain, bankruptcy, and corpo- marital dissolution, personal injury, product liability, real 3215 East Foothill Boulevard, Pasadena, CA 91107, (626) rate and marital dissolution. See display ad on page 41. estate, securities, tax planning and preparation, IRS audit 440-7200, fax: (626) 440-1800, e-mail: jsdantoni@hotmail defense, tracing, unfair advertising, unfair competition, val- .com. Web site: www.corporatesciences.com. Contact uation of businesses, and wrongful termination. See dis- Dr. Joseph S. D’Antoni, Managing Principal. Corpo- MICHAEL D. ROSEN, CPA, PHD, ABV rate Sciences, Inc., provides over 40 years of financial 3780 Kilroy Airport Way, Suite 200, Long Beach, CA play ad on page 47. analysis and expert testimony in all types of commercial lit- 90806, (562) 256-7052, fax (562) 256-7001, e-mail: igation. Extensive experience in a broad range of indus- [email protected]. Web site: www.mrosencpa.com. ZIVETZ, SCHWARTZ & SALTSMAN, CPAS tries for computing economic damages, lost profits, valua- Contact Michael D. Rosen. We are litigation consul- 11900 West Olympic Boulevard, Suite 650, Los Angeles, tion and appraisal, fraud, breach of contract, partnership tants, forensic accountants, expert witnesses. Our mission CA 90064-1046, (310) 826-1040, fax (310) 826-1065. disputes, and bankruptcy-related matters. Professionals is to tell the financial story that underlies every business liti- Web site: www.zsscpa.com. Contact Lester J. also serve as mediators, arbitrators, special masters, and gation matter and to convey that story in a clear and con- Schwartz, CPA/CFF, DABFE, DABFA, Michael D. third-party administrators as well as consulting and testify- cise manner to the trier of fact. Our findings allow a realis- Saltsman, CPA, MBA, JB Rizzo, CPA, ABV, CFF, ing experts. tic assessment of the case and support settlement efforts. CVA, David L. Bass, CPA, David Dichner, CPA, ABV, Our work is designed to render conclusive opinions and to Sandy Green, CPA, Silva Hakobyan, CPA. Accounting FULCRUM INQUIRY withstand cross-examination. We specialize in business experts in forensic accounting, tax issues, business valu- damages (lost profits and loss in value), personal damages 888 South Figueroa Street, Suite 2000, Los Angeles, ations, and appraisals, marital dissolutions, eminent (lost earnings), and business valuation. CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: domain, insurance losses, business interruption, goodwill, [email protected]. Web site: www.fulcrum.com. economic analysis, investigative auditing, loss of earning, commercial damages, and lost profits. Expert witness Contact David Nolte. Our professionals are experienced SCHULZE HAYNES LOEVENGUTH & CO. CPAs, MBAs, ASAs, CFAs, affiliated professors, and 660 South Figueroa Street, Suite 1280, Los Angeles, testimony preparation, settlement negotiations, and con- industry specialists. Our analysis and research combined CA 90017, (213) 627-8280, fax (213) 627-8301, sultations. See display ad on page 49. with unique presentation techniques have resulted in an e-mail: [email protected]. Web site: www unequaled record of successful court cases and client .schulzehaynes.com. Contact Karl J. Schulze, presi- ECONOMICS recoveries. Our expertise encompasses damages analy- dent. Specialties: forensic business analysis and account- sis, loss profit studies, business and intangible asset valu- ing, lost profits, economic damages, expert testimony, ADVISORS/EXPERTS @ MCS ASSOCIATES ations, fraud investigations, statistics, forensic economic discovery assistance, business valuations, corporate 18881 Von Karman, Suite 1175, Irvine, CA 92612, analysis, royalty audits, strategic and market assess- recovery, financial analysis, and modeling. Member of (949) 263-8700, fax (949) 263-0770, e-mail: experts ments, competitive surveys, analysis of computerized major professional organizations, experience across a @mcsassociates.com. Web site: www.mcsassociates data, injury and employment damages, and a wide range broad spectrum of industries and business issues. .com. Contact Norman Katz, managing partner. of other financial advisory services. Degrees/licenses: Degrees/licenses: CPA, CVA, CFE, ABV, PhD-Economics. Nationally recognized banking, finance, insurance, and CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, See display ad on page 45. real estate consulting group (established 1973). Experi- finance, economics, and related subjects. See display enced litigation consultants/experts include senior ad on back cover. THOMAS NECHES & COMPANY LLP bankers, lenders, consultants, economists, accountants, 633 West 5th Street, Suite 2800, Los Angeles, CA 90071- insurance underwriters/brokers. Specialties include: lend- GLENN M. GELMAN & ASSOCIATES 2039, (213) 624-8150, fax (213) 223-2304, e-mail: tom ing customs, practices, policies, in all types of lending CERTIFIED PUBLIC ACCOUNTANTS AND @thomasneches.com. Web site: www.thomasneches (real estate, subprime, business/commercial, construc- tion, consumer/credit card), banking operations/adminis- BUSINESS ADVISERS .com. Contact Thomas M. Neches, CPA, ABV, CVA, tration, trusts and investments, economic analysis and 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- CFE, CFF. Accounting, financial, business valuation, and valuations/damages assessment, insurance claims, cov- 2600, fax (714) 667-2636, e-mail: [email protected]. statistical analyses to assist attorneys in litigation. Expert erages and bad faith, real estate brokerage, appraisal, Web site: www.gmgcpa.com. Contact Richard M. testimony in state and federal courts. Cases: antitrust, escrow, and title insurance. Squar. Since 1983, our firm has specialized in delivering breach of contract, fraud, intellectual property, lost busi

48 Los Angeles Lawyer April 2015 CMM, LLP With office in Woodland Hills and El Segundo (818) 986- 5070, fax (818) 986-5034, e-mail: [email protected]. Web site: www.cmmcpas.com. Contact Stuart Allen. A & E FORENSICS Specialties: consultants who provide extensive experi- ence, litigation support, and expert testimony regarding Steven B. Norris, AIA, PE, GE, CEG, GBC, CASp forensic accountants, fraud investigations, economic damages, business valuations, family law, bankruptcy, 2121 Monel Road San Marcos, CA 92069 (877) 839-7302 and reorganization. Degrees/licenses: CPAs, CFEs, MBAs. See display ad on page 45. ■ ARCHITECTURE ■ CONSTRUCTION ■ ADA FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, ■ GEOTECHNICAL ■ CIVIL ■ STRUCTURAL CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Web site: www.fulcrum.com. ENGINEERING ENGINEERING ENGINEERING Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research combined www.aeforensics.com with unique presentation techniques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analy- sis, loss profit studies, business and intangible asset valu- ations, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assess- EXPERT WITNESS I CLAIMS CONSULTANT ments, competitive surveys, analysis of computerized data, injury and employment damages, and a wide range — Over 45 Years Experience as a Claims Adjuster — of other financial advisory services. Degrees/licenses: LICENSED IN THREE STATES AND QUALIFIED IN STATE AND FEDERAL COURTS CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, finance, economics, and related subjects. See display ad on back cover. EXPERT IN GOOD FAITH/BAD FAITH, STANDARDS AND PRACTICES and standard in the industry. Specialties in property/casualty construction defect, ELDER ABUSE fire/water, uninsured/un d er insured motorist, warehouse and cargo claims. Failure EXPERIENCE to defend and/or indemnify. Litigation support, case review and evaluation claim HAMPTON HEALTH, LTD — consultation, coverage review and valuations. Appraisal, Arbitration and Claims JOHN H. FULLERTON, MD, MRO, CMD, CFP, Rep. at MSC & MMC. FACP, AGSF, FAAHPM INTEGRITY 1700 California Street, Suite 470, San Francisco, CA — Contact Gene Evans at E. L. Evans Associates 94109, (415) 460-5532, fax (415) 459-2774, e-mail: HONESTY Tel 310.559.4005 • Fax 310.559.4236 • E-mail [email protected] [email protected]. Web site: hamptonhealthltd .com. Contact Kate McElroy, PA-C. Services available: 9854 NATIONAL BOULEVARD, SUITE #225, LOS ANGELES CA 90034 Board Certified in Internal Medicine, Geriatrics, Hospice, Palliative Medicine, Addiction Medicine, and Home Health; Licensed Medical Review Officer. Expertise: Medicare fraud cases for the government, toxicology/DUI, elder abuse including criminal defense of lay caregivers accused of homicide of demented relatives during end-of- life phase. Hospital, ambulatory/outpatient, PI, medical malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more than 1,500 cases, including Medicare audits for the government. See display ad on page 58.

ELECTRONIC DISCOVERY 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 personal- ized, case-specific forensic analysis and litigation support services for law firms and corporations. Setec Investiga- tions possesses the necessary combination of technical expertise, understanding of the legal system, and special- ized tools and processes enabling the discovery, collec- tion, investigation, and production of electronic informa- tion for investigating and handling computer-related crimes or misuse. Our expertise includes computer foren- sics, electronic discovery, litigation support, and expert witness testimony.

EMBEZZLEMENT AND FRAUD GLENN M. GELMAN & ASSOCIATES CERTIFIED PUBLIC ACCOUNTANTS AND BUSINESS ADVISERS 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- 2600, fax (714) 667-2636, e-mail: [email protected]. Web site: www.gmgcpa.com. Contact Richard M. Squar. Glenn M. Gelman and Associates provides a vari- ety 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

Los Angeles Lawyer April 2015 49 include: embezzlement and fraud, expert witness testi- County Road Department, City of Irvine, and Federal High- moisture intrusion, nuisance water, and ponding water in mony, strategy development, document discovery, depo- way Administration. Knowledge of governmental agency crawlspace), pavement and slab distress (cracking and sition assistance, computation of damages, arbitration procedures, design, geometrics, signs, traffic controls, separating), retaining walls (movement, cracking, and fail- consulting, forensic accounting, investigative auditing, maintenance, and pedestrian protection barriers. Hun- ures), pipelines, flooding and hydrology, design and con- rebuttal testimony, fiduciary accountings, and trial exhibit dreds of cases. Undergraduate work—UCLA, graduate struction deficiencies, aerial photo analysis; expert testi- preparation and reconstruction of accounting records. work—Yale University. mony at 78+ trials (municipal, superior, and federal), 207+ Our practice focuses on closely held entrepreneurial firms depositions, 208+ settlement conferences in California, in the following industries: construction, real estate devel- ENGINEERING Nevada, Hawaii, and Michigan. opment, equipment leasing, auto parts (wholesale and retail), manufacturing, and professional services. Glenn M. 4X FORENSIC ENGINEERING ENVIRONMENTAL Gelman has been appointed and served as Special Mas- LABORATORIES, INC. ter in litigation support matters and has testified over 30 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) SCS ENGINEERS times. Our comprehensive case list is available upon 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic 3900 Kilroy Airport Way, Suite 100, Long Beach, CA request. See display ad on page 44. .com. Web Site: www.4Xforensic.com. Contact Phil Van 90806, (562) 426-9544, fax (562) 427-0805, e-mail: Herle. 4X Forensic Engineering Laboratories is a full-ser- [email protected]. Web site: www.scsengineers EMPLOYMENT/DISCRIMINATION/ vice forensic engineering laboratory. We provide expert .com. Contact Julio Nuno, VP. SCS provides expert wit- HARASSMENT/RETALIATION witness and analytical and testing services in the following ness services related to environmental studies and engi- areas: fires and explosions: electrical and gas product neering, water resources, solid waste and air quality and HAIGHT CONSULTING defect investigations, thermal and fire modeling and labo- industrial hygiene and safety services. We are a 43-year 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) ratory testing; water loss: materials, corrosion, and failure old consulting firm with 71 offices across the US and 454-2988, fax (310) 454-4516. Contact Marcia Haight, analysis of plumbing products; failure analysis: metallurgy, nearly 800 employees. Our Long Beach office has more SPHR—CA. Human resources expert knowledgeable in product testing, and computerized stress analysis; acci- than 30 professional engineers, scientists, and subject both federal and California law. Twenty-five years’ corpo- dent reconstruction: automotive, trucks, construction matter experts available on short notice to serve asbestos, rate human resources management experience plus over equipment, and premises liability. See display ad on lead-based paint, and other specialty areas requiring 20 years as a Human Resources Compliance Consultant page 41. expert witness services. in California. Specializations include sexual harassment, ADA/disability discrimination, other Title VII and FEHA dis- A & E FORENSICS THE REYNOLDS GROUP crimination and harassment, retaliation, FMLA/CFRA, 2121 Montiel Road, San Marcos, CA 92069, (877) 839- P.O. Box 1996, Tustin, CA 92781-1996, (714)730-5397, safety, and wrongful termination. Courtroom testimony 7302, fax (760) 480-7477, e-mail: steve@aeforensics fax (714)730-6476, e-mail: edreynolds@reynolds-group and deposition experience. Retained 60 percent by .com. Web site: www.aeforensics.com. Contact Steve .com. Website: www.reynolds-group.com. Contact Ed defense, 40 percent by plaintiff. Audit employer’s actions Norris, AIA, PE, GE, HG, CEG, CASp, LEED. Architect, Reynolds, principal. An environmental consulting, con- in preventing and resolving discrimination, harassment, engineer, contractor—standard of care expert. Retained tracting firm. Expertise: environmental contamination, and retaliation issues. Assess human resources policies over 200 times, deposed over 100 times, and testified in assessment, remediation, reasonable value of construc- and practices for soundness, for comparison to prevailing trial over 20 times. Waterproofing, water intrusion, building tion, standard of care, and related financial matters. practices, and for compliance. Evaluate employer respon- envelope, zoning setbacks, concrete performance, path of Degrees in Civil Engineering: USC (BS), University of siveness to complaints and effectiveness of employer travel, structural analysis, earthquake-fire damage, and Houston (MS), (MBA) Harvard. California Registered Civil investigations. Assist counsel via preliminary case analysis, plan analysis. Landslides, retaining wall failure, settlement, Engineer, Licensed A, B, HAZ California Contractor. discovery strategy, examination of documents, and expert flooding, grading, septic, expansive soils, mud flows, Adjunct Faculty Member USC School of Engineering testimony. pavement distress, ground water evaluation, and slope (Construction Management) and Member USC’s Board of analysis. Cost estimates, construction management, delay Councilors. HRM CONSULTING, INC. analysis, and contracts. Serving all California, Hawaii, and 2050 Gateway Place, Suite 100-177, San Jose, CA Oklahoma. See display ad on page 49. ENVIRONMENTAL ENGINEER 95110, (209)728-8905, fax (209) 728-8970, e-mail: bdelima @hrmconsulting.com. Web site: www.hrmconsulting EXPONENT WZI INC. (ENVIRONMENTAL ENGINEERS) .com. Contact Beth B. De Lima, SPHR-CA. Expert 5401 McConnell Avenue, Los Angeles, CA 90066, (310) 1717 28th Street, Bakersfield, CA 93301, (661) 326-1112, witness Beth De Lima, has testified for both plaintiff and 754-2700, fax (310) 754-2799, e-mail: reza@exponent fax (661) 326-6480, e-mail: [email protected]. Web defense in the following areas: human resources stan- .com. Web site: www.exponent.com. Contact Ali site: www.wziinc.com. Contact Mary Jane Wilson. BS, dards of care, employment ADA accommodation, FEHA, Reza. Specialties: fires and explosions, metallurgy and petroleum engineering environmental assessor REPA FMLA, CFRA, ADA & EEOC violations. Wrongful termina- mechanical engineering, structural and geotechnical, 450065. Specialties include regulatory compliance, petro- tion, performance management, discrimination, sexual accident reconstruction and analysis, human factors, leum, and power generation. harassment, exempt analysis, labor market assessment, risk and reliability assessment, toxicology and human and vocational evaluations. She holds national and Califor- health, biomechanics, electrical and semiconductors, ESCROW nia specific certification—Senior Professional in Human aviation, materials science, HVAC, energy consulting, Resource (SPHR-CA), certified mediator, and consulting construction defect, and scheduling. ADVISORS/EXPERTS @ MCS ASSOCIATES since 1992. 18881 Von Karman, Suite 1175, Irvine, CA 92612, SCS ENGINEERS (949) 263-8700, fax (949) 263-0770, e-mail: experts EMPLOYMENT/WAGE EARNING CAPACITY 3900 Kilroy Airport Way, Suite 100, Long Beach, CA @mcsassociates.com. Web site: www.mcsassociates 90806, (562) 426-9544, fax (562) 427-0805, e-mail: .com. Contact Norman Katz, managing partner. CALIFORNIA CAREER SERVICES [email protected]. Web site: www.scsengineers Nationally recognized banking, finance, insurance, and 8727 West Third St., Suite 204, Los Angeles, CA .com. Contact Julio Nuno, VP. SCS provides expert wit- real estate consulting group (established 1973). Experi- 90048, (310) 550-6047, fax (310) 550-6053 e-mail: ness services related to environmental studies and engi- enced litigation consultants/experts include senior [email protected]. Web site: www neering, water resources, solid waste and air quality and bankers, lenders, consultants, economists, accountants, .californiacareerservices.com. Contact Susan Wise industrial hygiene and safety services. We are a 43-year insurance underwriters/brokers. Specialties include: lend- Miller, MA. Career Counselor/Vocational Expert Special- old consulting firm with 71 offices across the US and ing customs, practices, policies, in all types of lending (real izing in divorce cases. Conduct vocational examinations, nearly 800 employees. Our Long Beach office has more estate, subprime, business/commercial, construction, labor market research, and testify on employability and than 30 professional engineers, scientists, and subject consumer/credit card), banking operations/administration, earning capacity issues. matter experts available on short notice to serve asbestos, trusts and investments, economic analysis and valua- lead-based paint, and other specialty areas requiring tions/damages assessment, insurance claims, coverages ENGINEER/TRAFFIC expert witness services. and bad faith, real estate brokerage, appraisal, escrow, and title insurance. WILLIAM KUNZMAN, PE ENGINEERING/GEOTECHNICAL 1111 Town and Country #34, Orange, CA 92868, LAW OFFICE OF LORE HILBURG (714) 973-8383, fax (714) 973-8821, e-mail: bill@traffic COTTON, SHIRES AND ASSOCIATES, INC. 1943 Buckingham Road, Los Angeles, CA 90016, (323) -engineer.com. Web site: www.traffic-engineer.com. Southern California branch, serving greater So. Cal. area, 934-4443, fax (323) 934-4034, e-mail: lore@hilburglaw Contact William Kunzman, PE. Traffic expert witness (805) 497-7999, fax (805) 497-7933, e-mail: mphipps .com or [email protected]. Contact Richard since 1979, both defense and plaintiff. Auto, pedestrian, @cottonshires.com. Web site: www.cottonshires.com. Reinhardt. Lore Hilburg, Esq., is a seasoned professional bicycle, and motorcycle accidents. Largest plaintiff ver- Contact Michael Phipps or Patrick O. Shires. Full ser- who has served as an expert witness as to escrow issues, dicts: 1) $12,200,000 in pedestrian accident case against vice geotechnical engineering consulting firm specializing and real property title dispute such as easements, con- Caltrans, 2) $10,300,000 in case against Los Angeles Uni- in investigation, design, arbitration, and expert witness structive notice, and grantor/grantee index searches. Ms. fied School District. Largest settlement: $2,000,000 solo testimony with offices in Los Gatos, Thousand Oaks, and Hilburg also serves as a consultant on these issues vehicle accident case against Caltrans. Best defense ver- San Andreas, California. Earth movement (settlement, soil whether they arise in litigation involving a tort claim, legal dict: $0 while defending Caltrans and opposition sought creep, landslides, tunneling and expansive soil), founda- malpractice, or breach of contract, or a transactional setting. $16,000,000. Before becoming expert witness, employed tion distress (movement and cracking of structures), by Los Angeles County Road Department, Riverside drainage and grading issues (seepage through slabs,

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Los Angeles Lawyer April 2015 51 dent reconstruction: automotive, trucks, construction dissolution, including business valuation, tracing and Schwartz, CPA/CFF, DABFE, DABFA, Michael D. equipment, and premises liability. See display ad on apportionment of real property and assets, net spendable Saltsman, CPA, MBA, JB Rizzo, CPA, ABV, CFF, page 41. evaluations, determination of gross cash flow available for CVA, David L. Bass, CPA, David Dichner, CPA, ABV, support and analysis of reimbursement claims and marital Sandy Green, CPA, Silva Hakobyan, CPA. Accounting CHEMICAL ACCIDENT RECONSTRUCTION standards of living. 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Hargrave, CPA/ and explosions, chemical labeling, chemical packaging, ABV/CFF, CFE. Forensic accounting and business valua- FAMILY MEDICINE handling and shipping, burns, warnings, labels, MSDSs, tion services for family law and civil cases. Past chair of Cali- disposal, safety, EPA, OSHA, DOT, propane, butane, nat- fornia Society of CPAs’ Family Law Section and business ELLIOT D. FELMAN, MD ural gas, hydrogen, flammable liquids, hazardous chemi- valuation instructor for California CPA Education Founda- 1821 Wilshire Boulevard, Suite 301, Santa Monica, CA cals, aerosols (hairspray, spray paint, refrigerants). DOT tion. Services include business valuations, income available 90403, (310) 260-2525, fax (310) 260-7575, e-mail: certified (hazardous materials shipment). Certified fire and for support, tracing separate property, litigation consulting, [email protected]. Contact Dr. Felman. Expert explosion investigator, OSHA process hazard analysis real estate litigation, mediation, fraud investigations, dam- review and testimony, plaintiff or defense, teaching faculty team leader. PhD physical chemistry. Extensive experi- age calculation, and other forensic accounting work. UCLA School of Medicine and Western University School ence in metallurgy, corrosion, and failure analysis. of Health Sciences. Former expert reviewer for California HAYNIE & COMPANY, CPAS Medical Board. KARS’ ADVANCED MATERIALS, INC. 4910 Campus Drive, Newport Beach, CA 92660-2119, Testing and Research Labs, 2528 West Woodland Drive, (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson FEES & ETHICS Anaheim, CA 92801-2636, (714) 527- 7100, fax (714) @hayniecpa.com. Web site: www.hayniecpa.com. 527-7169, e-mail: [email protected]. Web site: www Contact Steven C. Gabrielson. Consulting and expert NORMAN DOWLER, LLP .karslab.com. 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See appraisals, family law accounting, business and profes- Court, State Bar MFA Presiding Arbitrator (2009-2012); display ad on page 61. sional valuations, damages, fraud investigations, and lost State Bar of California Special Deputy Trial Counsel for earnings. Krycler, Ervin, Taubman, and Kaminsky is a full- Disciplinary Matters (2010-present). Membership in pro- service accounting firm serving the legal community for FAMILY LAW fessional societies: LACBA, Ventura County Bar Associa- more than 25 years. See display ad on page 44. BRIAN LEWIS & COMPANY tion; State Bar of California. Degrees/license: UC Berkeley (AB, 1969), UC Berkeley: Hastings College of Law (JD, 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA PAMELA WAX-SEMUS, CFE 1972); Admitted California 1972, Colorado, 1994. 90024, (310) 475-5676, fax (310) 475-5268, e-mail: brian 107 North Reino Road, #402, Newbury Park, CA 91320, @brianlewis-cpa.com. Contact Brian Lewis, CPA, CVA. 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Web site: expertise expands to trust and probate accountings, Nationally recognized banking, finance, insurance, and www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer fraud, and other litigation-related matters. real estate consulting group (established 1973). Experi- Hoffman McCann PC specializes in fraud investigations, enced litigation consultants/experts include senior forensic accounting, business litigation, commercial dam- WHITE, ZUCKERMAN, WARSAVSKY, bankers, lenders, consultants, economists, accountants, age and lost profits computations, business valuation and LUNA & HUNT insurance underwriters/brokers. Specialties include: lend- appraisal, transactional due diligence, family limited part- 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA ing customs, practices, policies, in all types of lending (real nerships, business interruption, and family law. We pro- 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, estate, subprime, business/commercial, construction, vide experienced expert testimony and tax controversy 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) consumer/credit card), banking operations/administration, representation. 219-9095, e-mail: [email protected]. Web site: www trusts and investments, economic analysis and valua- .wzwlh.com. Contact Barbara Luna. Expert witness tes- tions/damages assessment, insurance claims, coverages CMM, LLP timony for complex litigation involving damage analyses of and bad faith, real estate brokerage, appraisal, escrow, With office in Woodland Hills and El Segundo (818) 986- lost profits, unjust enrichment, reasonable royalties, lost and title insurance. 5070, fax (818) 986-5034, e-mail: [email protected]. earnings, lost value of business, forensic accounting, fraud Web site: www.cmmcpas.com. Contact Stuart Allen. investigation, investigative analysis of liability, and marital CORNERSTONE RESEARCH Specialties: consultants who provide extensive experi- dissolution, and tax planning and preparation. Excellent 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- ence, litigation support, and expert testimony regarding communicators with extensive testimony experience. Prior 2005, (213) 553-2500, fax (213) 553-2699. Web site: forensic accountants, fraud investigations, economic dam- Big Four accountants. Specialties include accounting, www.cornerstone.com. Contact George G. Strong, Jr., ages, business valuations, family law, bankruptcy, and breach of contract, breach of fiduciary duty, business Richard W. Dalbeck, Katie J. Galley, Elaine Har- reorganization. Degrees/licenses: CPAs, CFEs, MBAs. interruption, business dissolution, construction defects, wood, Carlyn Irwin, Erin McGlogan, or Ashish Prad- See display ad on page 45. delays, and cost overruns, fraud, insurance bad faith, han. For more than 25 years, Cornerstone Research staff intellectual property (including trademark, patent, and have provided economic and financial analysis in all copyright infringement, and trade secrets), malpractice, GURSEY | SCHNEIDER LLP phases of commercial litigation and regulatory proceed- marital dissolution, personal injury, product liability, real 1888 Century Park East, Suite 900, Los Angeles, CA ings. We work with a broad network of testifying experts, estate, securities, tax planning and preparation, IRS audit 90067, (310) 552-0960, fax (310) 557-3468, 20355 including prominent faculty and industry practitioners, in a defense, tracing, unfair advertising, unfair competition, val- Hawthorne Boulevard, First Floor, Torrance, CA 90503, distinctive collaboration. The experts with whom we work uation of businesses, and wrongful termination. See dis- (310) 370-6122, fax (310) 370-6188, 2211 Michelson bring the specialized expertise required to meet the play ad on page 47. Drive, Suite 830, Irvine, CA 92612, (949) 265-9900, fax demands of each assignment. Our areas of specialization (949) 265-9901, e-mail: [email protected], include intellectual property, antitrust, securities, entertain- [email protected] or [email protected]. Web site: ZIVETZ, SCHWARTZ & SALTSMAN, CPAS ment, real estate, financial institutions, and general busi- www.gursey.com. Contact Stephan Wasserman, 11900 West Olympic Boulevard, Suite 650, Los Angeles, ness litigation. Robert Watts or Tracy Katz. Forensic accounting and CA 90064-1046, (310) 826-1040, fax (310) 826-1065. litigation support services in all areas relating to marital Web site: www.zsscpa.com. Contact Lester J.

52 Los Angeles Lawyer April 2015 FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, REAL ESTATE DISPUTE CONSULTING 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 WARONZOF ASSOCIATES industry specialists. Our analysis and research combined Timothy R. Lowe, MAI, CRE, FRICS with unique presentation techniques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analy- •economic damages •lease disputes sis, loss profit studies, business and intangible asset valu- • ations, fraud investigations, statistics, forensic economic fair compensation •land use disputes analysis, royalty audits, strategic and market assess- •property valuation •partnership interest value ments, competitive surveys, analysis of computerized data, injury and employment damages, and a wide range •lost profits •reorganization plan feasibility of other financial advisory services. Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, Waronzof Associates, Incorporated 310.322.7744 T 424.285.5380 F finance, economics, and related subjects. See display ad 400 Continental Boulevard, Sixth Floor [email protected] on back cover. El Segundo, CA 90245 www.waronzof.com

HAYNIE & COMPANY, CPAS 4910 Campus Drive, Newport Beach, CA 92660-2119, (949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson @hayniecpa.com. Web site: www.hayniecpa.com. Contact Steven C. Gabrielson. Consulting and expert witness testimony in a variety of practice areas: commer- cial damages, ownership disputes, economic analysis, business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termina- TM tion, and professional liability. CARPE DATUM ……SEIZE THE DATA

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Los Angeles Lawyer April 2015 53 THE MCMULLEN COMPANY, INC. ations, fraud investigations, statistics, forensic economic WHITE, ZUCKERMAN, WARSAVSKY, 1260 Lake Boulevard, Suite 226, Davis, CA analysis, royalty audits, strategic and market assess- LUNA & HUNT 95616, (888) 747-9857, fax (530) 757-1293, ments, competitive surveys, analysis of computerized 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA e-mail: [email protected]. Web site: data, injury and employment damages, and a wide range 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, www.themcmullencompany.com. Contact James F. of other financial advisory services. Degrees/licenses: 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) Mc-Mullen, California State Fire Marshal (retired). CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, 219-9095, e-mail: [email protected]. Web site: www Senior associates available throughout California. finance, economics, and related subjects. See display ad .wzwlh.com. Contact Barbara Luna. Expert witness tes- Fire/building code analysis and development, construction on back cover. timony for complex litigation involving damage analyses of defects, code compliance inspections, fire origin/cause/ lost profits, unjust enrichment, reasonable royalties, lost spread investigation, fire services management/opera- GLENN M. GELMAN & ASSOCIATES earnings, lost value of business, forensic accounting, fraud tions, fire safety-related product analysis/evaluation, and CERTIFIED PUBLIC ACCOUNTANTS AND investigation, investigative analysis of liability, and marital forensic expert. BUSINESS ADVISERS dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- Big Four accountants. Specialties include accounting, FOOD SAFETY/HACCP 2600, fax (714) 667-2636, e-mail: [email protected]. breach of contract, breach of fiduciary duty, business Web site: www.gmgcpa.com. Contact Richard M. interruption, business dissolution, construction defects, FOOD SAFETY AND HACCP COMPLIANCE Squar. Since 1983, our firm has specialized in delivering delays, and cost overruns, fraud, insurance bad faith, 20938 De Mina Street, Woodland Hills, CA 91364, (818) forensic accounting and litigation support services that intellectual property (including trademark, patent, and 703-7147, e-mail: [email protected]. Web site: www give our clients an edge. We provide the quality and depth copyright infringement, and trade secrets), malpractice, .foodsafetycoach.com. Contact Jeff Nelken, BS, MA. traditionally associated with Big Four firms with the per- marital dissolution, personal injury, product liability, real Forensic food safety expert knowledgeable in both food sonal attention and fee structure of a local firm. Our litiga- estate, securities, tax planning and preparation, IRS audit safety, accident prevention and hazard analysis critical tion support services include forensic accounting, inves- defense, tracing, unfair advertising, unfair competition, val- control point program development. Specializes in expert tigative auditing, embezzlement and fraud, expert witness uation of businesses, and wrongful termination. See dis- witness testimony and litigation consultant in matters testimony, strategy development, document discovery, play ad on page 47. regarding food safety, Q.A., standards of performance, deposition assistance, computation of damages, arbitra- HACCP, crisis management, food-borne illness, burns, tion consulting, rebuttal testimony, fiduciary accountings, foreign object, accidents, health department representa- and trial exhibit preparation and reconstruction of FORENSIC ANALYSIS tion, food spoilage, allergy, intentional contamination and accounting records. Our practice focuses on closely held customer complaints. Performs inspections, vendor entrepreneurial firms in the following industries: construc- BRIAN LEWIS & COMPANY audits, training and public speaking. Hands-on food safety tion, real estate development, equipment leasing, auto 10900 Wilshire Boulevard, Suite 610, Los Angeles, CA consultant for restaurants, manufacturers, distributors, parts (wholesale and retail), manufacturing, and profes- 90024, (310) 475-5676, fax (310) 475-5268, e-mail: brian country clubs, schools, nursing homes, and casinos. NRA sional services Glenn M. Gelman has been appointed and @brianlewis-cpa.com. Contact Brian Lewis, CPA, CVA. SERVSAFE certified instructor. Thirty years of food and served as Special Master in litigation support matters and Forensic accounting, business valuations, cash spendable hospitality experience. Registered as a food handler has testified over 30 times. Our comprehensive case list is reports, estate, trust, and income tax services. provider with the Los Angeles County Health Department. available upon request. See display ad on page 44. Provider # 015. Forensic food safety expert. Food safety FORENSIC ENGINEERING expert for CBS, NBC, Inside Edition, and CNN. Free con- GURSEY | SCHNEIDER LLP sultation for law firms and insurance companies. 1888 Century Park East, Suite 900, Los Angeles, CA ACORN CONSULTING SERVICES, LLC 90067, (310) 552-0960, fax (310) 557-3468, e-mail: P.O. Box 68395, Tucson, AZ 85737, (520) 322-6150, fax FORENSIC ACCOUNTING [email protected]. Web site: www.gursey.com. Contact (520) 577-0851, e-mail: [email protected]. Gary Krausz. Gursey|Schneider specializes in forensic Web site: www.asc-eng.com. Contact Rebecca Morin. CBIZ & MAYER HOFFMAN MCCANN PC accounting and litigation support services in the areas of William Acorn is founder and principal of Acorn Consulting 10474 Santa Monica Boulevard, Suite 200, Los Angeles, civil litigation, business disputes, bankruptcy, damage and Services, LLC. As a consulting mechanical engineer, Bill CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: cost-profit insurance claims, court accountings, fraud has more than 35 years of experience as a professional [email protected]. Contact Coral Hansen. Web site: investigations, accounting malpractice, intellectual prop- engineer and is a recognized expert in assessing, evaluat- www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer erty, construction, government accounting, and entertain- ing, remediation, and providing testimony on complex pro- Hoffman McCann PC specializes in fraud investigations, ment litigation. Gursey|Schneider has over 35 years of ject design, construction, and operational matters. His forensic accounting, business litigation, commercial dam- experience as expert witnesses in accounting related mat- consulting expertise has been influential in shaping age and lost profits computations, business valuation and ters. See display ad on page 51. approaches to code compliance and life safety in semi- appraisal, transactional due diligence, family limited part- conductor and similar advanced technology facilities. He nerships, business interruption, and family law. We pro- RGL FORENSICS represents both plaintiff and defendants. See display ad vide experienced expert testimony and tax controversy on page 57. Los Angeles Office: 800 South Figueroa Street, Suite 980, representation. Los Angeles, CA 90017, (213) 996-0900. Contact Alan Lurie, [email protected]. Rich Holstrom, rholstrom FORENSIC PATHOLOGY AND TOXICOLOGY CORNERSTONE RESEARCH @rgl.com. Orange County Office: 625 City Drive South, 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- Suite 290, Orange, CA 92868, (714) 740-2100. Contact BURR HARTMAN, DO, PHD 2005, (213) 553-2500, fax (213) 553-2699. Web site: Hank Kahrs, [email protected]. San Diego Office: 11440 BURR HARTMAN CONSULTING www.cornerstone.com. Contact George G. Strong, Jr., W Bernardo Court Suite 300, San Diego, CA 92127, Microcorre Dx Lab, 890 Cherry St, Tulare, CA 93274, Richard W. Dalbeck, Katie J. Galley, Elaine Har- (619) 236-0377, Contact Rich Holstrom, rholstrom (559) 686 4000, fax (559) 686 9432, email: burr.hartman wood, Carlyn Irwin, Erin McGlogan, or Ashish Prad- @rgl.com. RGL Forensics is an international firm of foren- @gmail.com. Contact Burr Hartman, DO, PhD. Foren- han. For more than 25 years, Cornerstone Research staff sic financial experts exclusively dedicated to damage sic pathologist with PhD in chemistry. Board certified in have provided economic and financial analysis in all analysis, fraud investigation, and valuation. Serving the anatomic, clinical and forensic pathology. Practice pro- phases of commercial litigation and regulatory proceed- legal, insurance, and business communities for more than vides services for Tulare Regional Med Ctr, coroner’s ings. We work with a broad network of testifying experts, 30 years, the firm is unique in its ability to combine inves- pathology for three sheriff-coroner departments and con- including prominent faculty and industry practitioners, in a tigative accounting, business valuation, fraud, and forensic sultation for Mineral King Toxicology Laboratory. Broad- distinctive collaboration. The experts with whom we work technology expertise. For attorneys, we discover and based scientific background and longstanding interest in bring the specialized expertise required to meet the define financial value in transactions and civil and criminal toxicology. Testified/deposed 100 times in last 4 yrs. Inter- demands of each assignment. Our areas of specialization disputes, and when necessary provide expert witness tes- ested in technical and scientific issues encountered and include intellectual property, antitrust, securities, entertain- timony in court and arbitration proceedings. For more not usually encountered in clinical practice. See display ment, real estate, financial institutions, and general busi- information about RGL and its 24 offices worldwide, ad on page 55. ness litigation. please visit www.rgl.com. FRAUD INVESTIGATIONS FULCRUM INQUIRY PAMELA WAX-SEMUS, CFE 888 South Figueroa Street, Suite 2000, Los Angeles, CA 107 North Reino Road, #402, Newbury Park, CA 91320, CBIZ & MAYER HOFFMAN MCCANN PC 90017, (213) 787-4100, fax (213) 891-1300, e-mail: (805) 499-3035, fax (805) 498-0468, e-mail: tracing 10474 Santa Monica Boulevard, Suite 200, Los Angeles, [email protected]. Web site: www.fulcrum.com. [email protected]. Web site: www.tracingqueen.net. CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: Contact David Nolte. Our professionals are experienced Contact Pamela Wax-Semus, CFE. I am experienced [email protected]. Contact Coral Hansen. Web site: CPAs, MBAs, ASAs, CFAs, affiliated professors, and in most areas of litigation support services with a particular www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer industry specialists. Our analysis and research combined emphasis in tracing, property allocation, reimbursements, Hoffman McCann PC specializes in fraud investigations, with unique presentation techniques have resulted in an stock options, and related allocations issues. I have vast forensic accounting, business litigation, commercial dam- unequaled record of successful court cases and client experience not only in marital dissolution matters. My age and lost profits computations, business valuation and recoveries. Our expertise encompasses damages analy- expertise expands to trust and probate accountings, appraisal, transactional due diligence, family limited part- sis, loss profit studies, business and intangible asset valu- fraud, and other litigation-related matters. nerships, business interruption, and family law. We pro-

54 Los Angeles Lawyer April 2015 vide experienced expert testimony and tax controversy representation.

GEOTECHNICAL ENGINEERING A & E FORENSICS 2121 Montiel Road, San Marcos, CA 92069, (877) 839- 7302, fax (760) 480-7477, e-mail: steve@aeforensics .com. Web site: www.aeforensics.com. Steve Norris, AIA, PE, GE, HG, CEG, CASp, LEED. Architect, engi- neer, contractor—standard of care expert. Retained over 200 times, deposed over 100 times, and testified in trial over 20 times. Waterproofing, water intrusion, build- ing envelope, zoning setbacks, concrete performance, path of travel, structural analysis, earthquake-fire dam- age, and plan analysis. Landslides, retaining wall failure, settlement, flooding, grading, septic, expansive soils, mud flows, pavement distress, ground water evaluation, and slope analysis. Cost estimates, construction man- agement, delay analysis, and contracts. Serving all Cali- fornia, Hawaii, and Oklahoma. See display ad on page 49.

SHEPARDSON ENGINEERING GROUP, INC. FORENSIC PATHOLOGY AND TOXICOLOGY 10035 Prospect Avenue, Suite 101, Santee, CA 92071- BURR HARTMAN, DO, PHD | BURR HARTMAN CONSULTING 4398, (619) 449-9830, fax (619) 449-5824, e-mail: des @shepardson.com. Contact Don Shepardson. Over Forensic pathologist with PhD in chemistry. Board 50 years as a geotechnical engineer of record on resi- certified in anatomic, clinical and forensic pathology. dential, commercial, and governmental projects. Pro- Practice provides services for Tulare Regional Medical Center, coroner’s jects range from 6,000 AC subdivisions to multistory pathology for three sheriff-coroner departments, and consultation for Mineral commercial buildings. Over 40 years of experience as a King Toxicology Laboratory. Broad-based scientific background and long- designated expert with extensive court experience, standing interest in toxicology. Testified/deposed 100 times in last 4 years. including electronic data presentations. Professional engineer license in 10 states, prior contractor license in Interested in technical and scientific issues encountered and not usually engineering, concrete, and grading (inactive). encountered in clinical practice.

Contact Burr Hartman, DO, PhD TEL 559.686.4000 | FAX 559.686.9432 GERIATRICS Burr Hartman Consulting EMAIL [email protected] HAMPTON HEALTH, LTD MICROCORRE DX LAB, 890 CHERRY STREET, TULARE, CALIFORNIA 93274 JOHN H. FULLERTON, MD, MRO, CMD, CFP, FACP, AGSF, FAAHPM 1700 California Street, Suite 470, San Francisco, CA 94109, (415) 460-5532, fax (415) 459-2774, e-mail: [email protected]. Web site: hamptonhealthltd .com. Contact Kate McElroy, PA-C. Services available: Board Certified in Internal Medicine, Geriatrics, Hospice, Palliative Medicine, Addiction Medicine, and Home Health; Licensed Medical Review Officer. Expertise: Medicare fraud cases for the govern- ment, toxicology/DUI, elder abuse including criminal defense of lay caregivers accused of homicide of demented relatives during end-of-life phase. Hospital, ambulatory/outpatient, PI, medical malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more than 1,500 cases, including Medicare audits for the government. See display ad on page 58.

GOLF MICHAEL S. JOHNSTONE, AIA 15 Southern Fairway Court, Etowah Valley, NC 28729, (828) 891-7990,e-mail: [email protected]. Web site: www.johnstonearch.com. Contact Michael S. Johnstone, AIA. Golf course architect, expert wit- ness and forensic study for wrongful death, accident, injury, errant ball shot, drowning, golf cart rollover, slip and fall, premises liability, golf course design, safety, construction, nets and barriers, property damage. 100+ golf course accident investigations across the United States, including testimony, reports, site surveys, graph- ics, construction analysis, and replacement estimates. Thirty years of architectural design and construction management experience for golf courses and club- houses, driving ranges, learning centers, and parking lots.

HANDWRITING SANDRA L. HOMEWOOD, FORENSIC DOCU- MENT EXAMINER 1132 San Marino Drive, Suite 216, Lake San Marcos, CA 92078, (760) 931-2529, fax (760) 510-8412, e-mail: [email protected]. Contact Sandra L.

Los Angeles Lawyer April 2015 55 Homewood. Highly skilled and experienced document Engineering (human factors, ergonomics, biomechanics). claims consultation, case review and evaluation, prop- examiner and expert witness in many complex and high (520) 882-5494, e-mail: [email protected]. Web site: www erty/casualty claims, construction claims, uninsured/ profile civil and criminal cases with fully equipped docu- .asi-az.com. Analysis of personal injury and product underinsured motorist claims, general liability, fire/water/ ment laboratory. Specializing in handwriting and hand- design matters from an engineering and human perfor- mold claims, damage assessment, professional liability printing identification, handwriting of the elderly in financial mance perspective. Exemplar applications: transportation claims, appraisal under policy, arbitration, duty to defend, elder abuse cases and will contests, and examination of operators (railroad, trucks, cars, motorcycles, bicycles, advertising claims, coverage applications, and suspected altered medical and corporate records. Trained in govern- ATVs, carts, forklifts), occupant kinematics & biomechan- fraud claims. CV available on request. See display ad on ment laboratory including specialized training by the FBI ics, low-speed impacts, pedestrians, slips-trips-missteps, page 49. and Secret Service. Former government experience falls, lighting, visibility, warnings-instructions, decision- includes document examiner for the San Diego Police making and risk, work and design procedures, customer MITCHELL L. LATHROP Department crime lab, Arizona State crime lab, San Diego and employee injuries, playgrounds (public, schools, 401 B Street, Suite 1200, San Diego, CA 92101-4295, County District Attorney’s office and San Luis Obispo and theme parks), hotels, casinos, construction, machine (619) 955-5951, fax (619) 566-4034, e-mail: mllathrop Santa Barbara District Attorney offices. Currently in private guards, trash transfer stations, falling objects, workplace @earthlink.net. Web site: www.LathropADR.com. criminal and civil practice. and ADA issues. Contact Mitchell L. Lathrop. Expert consulting and testimony in insurance matters, including claim handling, HOSPICE/PALLIATIVE MEDICINE INSURANCE bad faith, standard of care, property and casualty, D&O, primary and excess, and reinsurance disputes. Also, HAMPTON HEALTH, LTD ADVISORS/EXPERTS @ MCS ASSOCIATES lawyers’ professional responsibility, and malpractice. JOHN H. FULLERTON, MD, MRO, CMD, CFP, 18881 Von Karman, Suite 1175, Irvine, CA 92612, Curriculum vitae will be supplied upon request. Over 45 FACP, AGSF, FAAHPM (949) 263-8700, fax (949) 263-0770, e-mail: experts years of experience. Former Presiding Referee of the 1700 California Street, Suite 470, San Francisco, CA @mcsassociates.com. Web site: www.mcsassociates State Bar Court. A.M. Best recommended expert. 94109, (415) 460-5532, fax (415) 459-2774, e-mail: .com. Contact Norman Katz, managing partner. [email protected]. Web site: hamptonhealthltd. Nationally recognized banking, finance, insurance, and LAUNIE ASSOCIATES, INC. com. . Services available: real estate consulting group (established 1973). Experi- Contact Kate McElroy, PA-C 2627 Tunnel Ridge Lane, Santa Barbara, CA 93105, (805) Board Certified in Internal Medicine, Geriatrics, Hospice, enced litigation consultants/experts include senior 569-9175, fax (805) 687-8597, e-mail: [email protected]. Palliative Medicine, Addiction Medicine, and Home Health; bankers, lenders, consultants, economists, accountants, Contact Joseph J. Launie, PhD, CPCU, insurance Licensed Medical Review Officer. Expertise: Medicare insurance underwriters/brokers. Specialties include: lend- professor, author, and consultant. Over 30 years of fraud cases for the government, toxicology/DUI, elder ing customs, practices, policies, in all types of lending (real experience as expert witness in state and federal courts. abuse including criminal defense of lay caregivers accused estate, subprime, business/commercial, construction, Coauthor of books and articles on underwriting, insurance of homicide of demented relatives during end-of-life consumer/credit card), banking operations/administration, company operations, and punitive damages. Consulting, phase. Hospital, ambulatory/outpatient, PI, medical mal- trusts and investments, economic analysis and valua- expert witness on underwriting, company and agency practice, and LTC. Medical/hospice directorships. Testi- tions/damages assessment, insurance claims, coverages operations, and bad faith. fied over 200 times and reviewed more than 1,500 cases, and bad faith, real estate brokerage, appraisal, escrow, including Medicare audits for the government. See and title insurance. display ad on page 58. CLINTON E. MILLER, JD, BCFE INSURANCE BAD FAITH EXPERT E. L. EVANS ASSOCIATES 502 Park Avenue, San Jose, CA 95110, (408) 279-1034, 3310 Airport Avenue, Suite # 7, Santa Monica, CA 90405, HUMAN FACTORS fax (408) 279-3562, e-mail: [email protected]. Contact (310) 559-4005, fax (310) 559-4236, e-mail: elevans66 Clint Miller. Insurance expert regarding claims, under- ANALYTICA SYSTEMS INTERNATIONAL, INC. @yahoo.com. Good faith/bad Contact Gene Evans. writing, agent and brokers errors and omissions, coverage Gary M. Bakken, PhD, CPE, Adjunct Associate Professor faith. Over 45 years’ experienceclaims adjuster. Stan- disputes, customs and practices, and bad faith. See BSE-Mechanical Engineering, MS-Safety, PhDIndustrial dards and practices in the industry, litigation support, display ad on page 55.

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

Certified Public Accountant Thomas Neches & Company LLP Accredited in Business Valuation 633 West 5th Street, Suite 2800 Certified Valuation Analyst Los Angeles, California 90071-2039 Certified Fraud Examiner voice: (213) 624-8150 Certified in Financial Forensics e-mail: [email protected] www.thomasneches.com

56 Los Angeles Lawyer April 2015 JANICE A. RAMSAY, ATTORNEY 5 Saros, Irvine, CA 92603, (949) 854-9375, fax (949) 854-0073, e-mail: [email protected]. Web site: www .JaniceARamsay.com. Contact Janice A. Ramsay. Property insurance consultation and testimony as to the customs and practices of the insurance industry in han- dling property insurance claims in insurance bad faith cases.

RICHARD MASTERS INSURANCE SERVICES, INC. 35 West Main Street, #B170, Ventura, CA 93001, (805) 377-2688, fax (805) 830-0432, e-mail: richard.masters @mac.com. Contact Richard Masters. Forty-seven years of experience. Agent and broker standard of care. Claims handling, underwriting and claims, specialty lines, custom and practice of industry, certificate and additional insured issues.

ROBERT HUGHES ASSOCIATES, INC. 508 Twilight Trail, #200, Richardson, TX 75080, (972) 980-0088, fax (972) 233-1548, e-mail: joakley @roberthughes.com. Web site: www.roberthughes.com. Contact John Oakley. Founded in 1979, RHA is an international insurance and risk management consulting company based in Dallas. Our consultants’ experience in the insurance industry allows us to provide highly qualified expert witness and litigation support services. Our exper- tise includes property/casualty insurance, life/health insur- ance, Lloyd’s, London Market Research, claims handling, bad faith, insurance coverage, agency management and practices, insurance laws and regulations, statistical fore- casting, and marketing practices, insurance archaeology, and policy interpretation and analysis.

BARRY ZALMA, ZALMA INSURANCE CONSULTANTS 4441 Sepulveda Boulevard, Culver City, CA 90230, (310) 390-4455, fax (310) 391-5614, e-mail: zalma@zalma .com. Web site: www.zalma.com. Blog: http://zalma.co m/blog. Contact Barry Zalma. Insurance bad faith, insurance claims handling, insurance coverage, insurance fraud and consulting, internationally recognized expert, consultants and insurance author, arbitrator and blogger.

INTELLECTUAL PROPERTY EVALUATION CORNERSTONE RESEARCH 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- TESTING 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 Har- TREATMENT wood, Carlyn Irwin, Erin McGlogan, or Ashish Prad- han. For more than 25 years, Cornerstone Research staff have provided economic and financial analysis in all Neurology and phases of commercial litigation and regulatory proceed- ings. We work with a broad network of testifying experts, Electromyography including prominent faculty and industry practitioners, in a distinctive collaboration. The experts with whom we work bring the specialized expertise required to meet the Neurotoxicology demands of each assignment. Our areas of specialization include intellectual property, antitrust, securities, entertain- ment, real estate, financial institutions, and general busi- Occupational/Environmental ness litigation. Medicine FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, Associate Professor UCSF CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail: [email protected]. Web site: www.fulcrum.com. Contact David Nolte. Our professionals are experi- enced CPAs, MBAs, ASAs, CFAs, affiliated professors, CA Medical Practice Since 2000 JONATHAN S. RUTCHIK, MD, MPH and industry specialists. Our analysis and research com- bined with unique presentation techniques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, loss profit studies, business and intangible asset TEL 415.381.3133 | FAX 415.381.3131 | E-MAIL [email protected] valuations, fraud investigations, statistics, forensic eco- nomic analysis, royalty audits, strategic and market www.neoma.com assessments, competitive surveys, analysis of computer- ized data, injury and employment damages, and a wide 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941 range of other financial advisory services. Degrees Offices in San Francisco, Richmond, Petaluma, Sacramento and Eureka/Arcata /licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, finance, economics, and related subjects. See display ad on back cover.

Los Angeles Lawyer April 2015 57 WHITE, ZUCKERMAN, WARSAVSKY, [email protected]. Web site: www.omlaw.com. LUNA & HUNT Contact Mark I. Harrison, Esq. Available for expert 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA and consulting engagements involving the legal profession 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, and judiciary, including: legal ethics, and judicial ethics. 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) Retained as a testifying and/or consulting expert witness 219-9095, e-mail: [email protected]. Web site: www in legal or judicial ethics matters in more than 175 cases. .wzwlh.com. Contact Barbara Luna. Expert witness tes- Deposed and testified in more than 20 matters over the timony for complex litigation involving damage analyses of past 12 years. lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting, fraud investigation, investigative analysis of liability, and marital LEGAL MALPRACTICE dissolution, and tax planning and preparation. Excellent LAWRENCE H. JACOBSON, ESQ. communicators with extensive testimony experience. Prior 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA Big Four accountants. Specialties include accounting, 90212, (310) 271-0747, fax (310) 271-0757, e-mail: breach of contract, breach of fiduciary duty, business [email protected]. Web site: www.lawrencejacobson interruption, business dissolution, construction defects, .com. Past President, Beverly Hills Bar Association. Expert delays, and cost overruns, fraud, insurance bad faith, witness: lawyer malpractice in business and real estate intellectual property (including trademark, patent, and transactions, standard of care for real estate brokers and copyright infringement, and trade secrets), malpractice, mortgage brokers, and real estate document custom and marital dissolution, personal injury, product liability, real usage. Practicing real estate and business law in California estate, securities, tax planning and preparation, IRS audit since 1968. See display ad on page 59. defense, tracing, unfair advertising, unfair competition, val- uation of businesses, and wrongful termination. See display ad on page 47. OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100, Phoenix, AZ 85012, (602) 640-9324, fax (602) 640-9050, e-mail: INTERNAL MEDICINE [email protected]. Web site: www.omlaw.com. HAMPTON HEALTH, LTD Contact Mark I. Harrison, Esq. Available for expert JOHN H. FULLERTON, MD, MRO, CMD, CFP, and consulting engagements involving the legal profession FACP, AGSF, FAAHPM and judiciary, including: legal ethics, and judicial ethics. Retained as a testifying and/or consulting expert witness 1700 California Street, Suite 470, San Francisco, CA in legal or judicial ethics matters in more than 175 cases. 94109, (415) 460-5532, fax (415) 459-2774, e-mail: Deposed and testified in more than 20 matters over the [email protected]. Web site: hamptonhealthltd past 12 years. .com. Contact Kate McElroy, PA-C. Services available: Board Certified in Internal Medicine, Geriatrics, Hospice, Palliative Medicine, Addiction Medicine, and Home Health; LITIGATION Licensed Medical Review Officer. Expertise: Medicare fraud cases for the government, toxicology/DUI, elder CAPATA & CO. abuse including criminal defense of lay caregivers accused 28202 Cabot Road, Suite 245, Laguna Niguel, CA of homicide of demented relatives during end-of-life 92677, (949) 364-0334, fax (949) 364-0362, e-mail: gary phase. Hospital, ambulatory/outpatient, PI, medical mal- @capatax.com. Web site: www.capatax.com. Contact practice, and LTC. Medical/hospice directorships. Testi- Gary Capata, CPA. Litigation support and services fied over 200 times and reviewed more than 1,500 cases, including forensic accounting and investigations, eco- including Medicare audits for the government. See nomic damages, business valuation, lost profits analysis, display ad on page 58. fraud investigation, and expert witness services. Our extensive experience, expertise, and unparalleled dedica- tion to providing meticulous and credible information is JUDICIAL ETHICS what we provide to every client. OSBORN MALEDON, P.A. 2929 North Central Avenue, Suite 2100, Phoenix, AZ ROBERT C. ROSEN 85012, (602) 640-9324, fax (602) 640-9050, e-mail: Citigroup Center, 444 South Flower Street, 30th Floor, [email protected]. Web site: www.omlaw.com. Los Angeles, CA 90071, (213) 362-1000, fax (213) 362- Contact Mark I. Harrison, Esq. Available for expert and 1001, e-mail: [email protected]. Web site: consulting engagements involving the legal profession and www.rosen-law.com. Specializing in securities law, federal judiciary, including: legal ethics, and judicial ethics. securities law enforcement, securities arbitration, and Retained as a testifying and/or consulting expert witness international securities, insider trading, NYSE, AMEX, in legal or judicial ethics matters in more than 175 cases. FINRA, DOC disciplinary proceedings, broker-dealer, Deposed and testified in more than 20 matters over the investment company and investment adviser matters, lia- past 12 years. bility under federal and state securities laws, private offer- ings, Internet securities, and law firm liability. AV rated. Former chair, LACBA Business and Corporations Law LAND USE Section. LLM, Harvard Law School. Forty years practicing THE SIMMONS GROUP, INC. securities law, 12 years with the U.S. Securities and Exchange Commission, Washington, DC. Published 5023 Butterfield Court, Culver City, CA 90230, (310) author/editor of securities regulations, including multivol- 439-4119, fax (310) 300-3020, e-mail: phil.simmons252 ume treatises. See display ad on page 63. @gmail.com. Web site: www.simmonsgroupconsulting .com. Contact Philip Simmons, Esq. Decades of exec- utive land use, development, and real estate law expertise MARKETING provides a unique combination of skills providing expert witness issues analysis, case preparation, and testimony. DR. MICHAEL A. KAMINS Over 30 years of experience in corporate mixed-use real 6401 Warner Drive, Los Angeles CA 90048, (323) 868- estate and development operations, specializing in all 9507, fax (631) 632-9412, email: michael.kamins aspects of land acquisition, major project entitlement, pro- @stonybrook.edu. Services offered include expert survey ject design, development, finance, marketing, and disposi- research/questionnaires design on Lanham act issues of tion. In-depth legal expertise in complex negotiations, confusion, secondary hearing, and dilution. I have knowl- reviewing and implementing ordinances, drafting agree- edge of consumer behavior, marketing strategy, and mar- ments, structuring compliance, and directing teams of keting resources. I have worked on false advertising cases consultants and outside counsel. and misappropriation of celebrity identity.

LEGAL ETHICS MARKETING/ADVERTISING/BUSINESS OSBORN MALEDON, P.A. LARRY STEVEN LONDRE/LONDRE 2929 North Central Avenue, Suite 2100, Phoenix, AZ MARKETING CONSULTANTS, LLC/ USC/ CSUN 85012, (602) 640-9324, fax (602) 640-9050, e-mail: 6000 South Para Way, Los Angeles, CA 90094, (310) 889-

58 Los Angeles Lawyer April 2015 0220, fax (310) 889-0221, e-mail: LSL@LondreMarketing .com. Web site: http://LondreMarketing.com. Contact Larry Steven Londre. Experienced expert in marketing, advertising, media, communication, advertising agencies, business, trademarks, and global marketing. Also senior lecturer at USC, CSUN, UCLA, and Pepperdine Universities.

MECHANICAL ENGINEERING 4X FORENSIC ENGINEERING LABORATORIES, INC. 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic .com. Web Site: www.4Xforensic.com. Contact Phil Van Herle. 4X Forensic Engineering Laboratories is a full-ser- vice forensic engineering laboratory. We provide expert witness and analytical and testing services in the following areas: fires and explosions: electrical and gas product defect investigations, thermal and fire modeling and labo- ratory testing; water loss: materials, corrosion, and failure analysis of plumbing products; failure analysis: metallurgy, product testing, and computerized stress analysis; accident reconstruction: automotive, trucks, construction equipment, and premises liability. See display ad on page 41.

MEDICAL ALLERGY, ASTHMA, RESPIRATORY CARE MEDICAL CENTER 3545 Howard Way, Costa Mesa, CA 92626, (714) 457- 1333, fax (562) 997-8884, e-mail: [email protected]. Web site: www.theallergyasthma.com. Contact Rose Certeza. Dr Kim has served as a medical legal expert in over 800 cases in the areas of allergy and asthma stan- dard of care, latex allergy, mold allergy and pulmonary medicine.

AMFS MEDICAL EXPERTS NATIONWIDE 6425 Christie Avenue, Suite 260, Emeryville, CA 94608, (800) 275-8903. Web site: www.AMFS.com. Welcome to AMFS where our in-house staff of attorneys and physi- cians are on-call to discuss your most important medical legal matters, advise you as to their merit, and locate/engage the best and most suitable specialists to serve as expert witnesses and advisors. Based in Califor- nia, AMFS has a 25-year history as the trusted medical expert partner to thousands of law firms across the coun- try and over 15,000 physicians, surgeons, nurses, and related experts located in every U.S. jurisdiction. Please call Dan Sandman, Esq., at (800) 275-8903 to discuss your matter alongside one of our medical directors for a candid assessment and lightning-fast expert placement. AMFS: world class medical specialists in over 5,000 areas of expertise. See display ad on page 63.

HAMPTON HEALTH, LTD JOHN H. FULLERTON, MD, MRO, CMD, CFP, FACP, AGSF, FAAHPM 1700 California Street, Suite 470, San Francisco, CA 94109, (415) 460-5532, fax (415) 459-2774, e-mail: [email protected]. Web site: hamptonhealthltd .com. Contact Kate McElroy, PA-C. Services available: Board Certified in Internal Medicine, Geriatrics, Hospice, Palliative Medicine, Addiction Medicine, and Home Health; Licensed Medical Review Officer. Expertise: Medicare fraud cases for the government, toxicology/DUI, elder abuse including criminal defense of lay caregivers accused of homicide of demented relatives during end-of-life phase. Hospital, ambulatory/outpatient, PI, medical mal- practice, and LTC. Medical/hospice directorships. Testi- fied over 200 times and reviewed more than 1,500 cases, including Medicare audits for the government. See dis- play ad on page 58.

TASAMED (A DIVISION OF THE TASA GROUP, INC.) LOCAL, NATIONAL AND GLOBAL. PLAINTIFF/DEFENSE. CIVIL/CRIMINAL. Contact Linda Bartorillo. (800) 659-8464, fax (800) 850-8272, e-mail: [email protected]. Web site: www.TASAmed.com. Customized Expert Referrals in all Medical Practice Areas! We refer a variety of quality, inde- pendent and experience medical experts—including hard-

Los Angeles Lawyer April 2015 59 to-find specialists – for case merit reviews, testimony at MEDICAL/NEUROLOGY/PERSONAL INJURY orthopedic surgeon, subspecialty in spinal disorders deposition or trial, research, IMEs, and more in 1,000+ affecting adults and children. Examples of spinal disorders medical fields. Our skilled referral advisors offer excep- ANDREW WOO, MD, PHD treated by Dr. Purcell include disc diseases, stenosis, tional personal service to target your criterial, forward 2021 Santa Monica Boulevard, Suite 525-E, Santa Mon- infections, tumors, injuries, and deformities including scol- resumes for your review and help arrange your initial tele- ica, CA 90404, (310) 829-2126, fax (310) 998-8887. iosis. He possesses 34 years of orthopedic and 27 years phone screening interviews with experts. There is no Contact Gail. Board-certified neurology, clinical assistant of med-legal experience, including defense, plaintiff, insur- charge unless you designate or engage an expert we professor UCLA, personal injury, pain, carpal tunnel, ance carriers, United States Attorney General’s office, CA refer. Visit our website and search expert profiles by spine, memory, seizure, sleep, and clinical protocols. Mul- Attorney General’s office and Public Defender’s office. expertise keyword, order due diligence research reports tiple sclerosis, migraine, and stroke. Education: AB Cornell Expert testimony pertains to med-mal, personal injury, and on your expert witness or opposing counsel’s, request an University, MD and PhD Brown University, residency + workers’ compensation cases. As a qualified medical eval- expert through our online form, and check out our e-Dis- EMG/EEG fellowship UCLA, Advisory Boards: L.A. Neuro- uator, Dr. Purcell has extensive experience in performing covery Solutions that now include social media collection logic Society, St. John’s Sleep Lab, honors: America’s QMEs, AMEs, IMEs, WC evals. See display ad on and preservation. Call now for sample medical categories! Top Physicians (Consumer Research Consul of America) page 55. Save $175 (admin fee) on your first expert witness 2006-2013, Who’s Who in Medicine (2001) and designation with Promo Code: LATM415, expires science/engineering (1993), international electrophysiology METALLURGICAL AND CORROSION 10/30/2015. Be sure to check out our insert and display Young Investigator (1997), UCLA Neurology Teaching ENGINEER ad in this issue!. Please see our insert in this issue and Awards (1994, 1996, 2006, 2012), American Academy display ad on page 38. Neurology Research (1991), Brown University Sigma XI 4X FORENSIC ENGINEERING (1989), and research/publications (22), lectures (>1000). LABORATORIES, INC. MEDICAL LEGAL 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) MEDICAL/PHYSICAL THERAPY 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic ROUGHAN & ASSOCIATES AT LINC, INC. .com. Web Site: www.4Xforensic.com. Contact Phil Van 114 West Colorado Boulevard, Monrovia, CA 91016, DR. JOYCE M. CAMPBELL, PHD, PT, EN Herle. 4X Forensic Engineering Laboratories is a full-ser- (626) 303-6333, fax (626) 303-8080, e-mail: janr@linc 3336 Winlock Road, Torrance, CA 90505, (310) 539- vice forensic engineering laboratory. We provide expert .biz. Contact Jan Roughan at ext. 216. Specialties: 3143, e-mail: [email protected]. Over 40 years in witness and analytical and testing services in the following Roughan and Associates at LINC is a case management physical therapy practice (acute, rehab and outpatient); areas: fires and explosions: electrical and gas product and medical/legal consulting firm. Services/products certified electroneuromyographer, professor of PT in DPT defect investigations, thermal and fire modeling and labo- offered include: 1) Expert Testimony, 2) Life Care Plan curriculum, peer review/expert consultant and witness ratory testing; water loss: materials, corrosion, and failure (LCP) Construction/LCP Critique, 3) Medical Record Orga- since 1978 (both defense and plaintiff). Expertise/ analysis of plumbing products; failure analysis: metallurgy, nization/Summarization/Analysis, 4) Medical Bill Auditing, research: musculoskeletal, neuromuscular, peripheral and product testing, and computerized stress analysis; acci- 5) Expert Witness Identification, 6) IME Attendance, 7) central nervous system disorders (CVA, TBI, SCI, CP, MS, dent reconstruction: automotive, trucks, construction Video Services (e.g., Day In Life, Settlement Brief, IME peripheral neuropathy, effects of botulinum toxin), and equipment, and premises liability. See display ad on Evaluation, NDT/PT Evaluation, etc.), 8) Questions for: clinical applications of electrical stimulation. page 41. Deposition/Cross Examination , 9) Medical/Psychiatric Case Management. See display ad on page 41. MEDICAL/TOXICOLOGY CHEMICAL ACCIDENT RECONSTRUCTION SERVICES, INC. MEDICAL/CARDIOVASCULAR DISEASES JONATHAN S. RUTCHIK, MD, MPH, QME, AME 9121 East Tanque Verde Road, Suite 105, Tucson, AZ 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941, 85749, (800) 645-3369, e-mail: [email protected]. HAROLD L. KARPMAN, MD, FACC, FACP (415) 381-3133, fax (415) 381-3131, e-mail: jsrutch Web site: www.chemaxx.com. Contact Dr. Michael Cardiovascular Medical Group of Southern California, Inc., @neoma.com. Web site: www.neoma.com. Jonathan S. Fox. Comprehensive chemical accident investigation— Clinical Professor of medicine, David Geffen School of Rutchik, MD, MPH is a physician who is board certified in specializing in complex industrial chemical accidents and Medicine, UCLA. 414 North Camden Drive #1100, Beverly both Neurology and Occupational and Environmental chemical related consumer product injuries, chemical fires Hills, CA 90210, (310) 278-3400, fax (310) 887-2979. Medicine, and an Associate Professor at UCSF. He pro- and explosions, chemical labeling, chemical packaging, Contact Harold L. Karpman, MD, FACC, FACP. Car- vides clinical evaluations and treatment, including elec- handling and shipping, burns, warnings, labels, MSDSs, diovascular diseases (cardiology and medical vascular tromyography, of individuals and populations with sus- disposal, safety, EPA, OSHA, DOT, propane, butane, nat- problems), and internal medicine. Special expertise in pected neurological illness secondary to workplace injuries ural gas, hydrogen, flammable liquids, hazardous chemi- coronary disease, valvular heart disease, arrhythmias, or chemical exposure. Services include medical record cals, aerosols (hairspray, spray paint, refrigerants). DOT devices, hypertension, drug studies, product liability, bac- and utilization review and consulting to industrial, legal, certified (hazardous materials shipment). Certified fire and terial endocarditis, angioplasty, CABG, etc. Expert and government, pharmaceutical, and academic institutions on explosion investigator, OSHA process hazard analysis reviewer with 40+ years of experience. topics such as metals and solvents, pesticides, mold team leader. PhD physical chemistry. Extensive experi- exposures, product liability, musicians’ injuries, and oth- ence in metallurgy, corrosion, and failure analysis. MEDICAL/DERMATOLOGY ers. Offices in SF, Richmond, Petaluma, Sacramento, and Eureka/Arcata. Licensed in CA, NY, MA, NM and ID. See KARS’ ADVANCED MATERIALS, INC. display ad on page 57. DANIEL A. GROSS, MD Testing and Research Labs, 2528 West Woodland Drive, 18364 Clark Street, Tarzana, CA 91356, (818) 345-7122, Anaheim, CA 92801-2636, (714) 527- 7100, fax (714) fax (818) 345-7448, e-mail: [email protected]. MEDICAL MALPRACTICE 527-7169, e-mail: [email protected]. Web site: www Contact Daniel A. Gross, MD. Board certified practicing .karslab.com. Contact Dr. Ramesh Kar, Dr. Naresh dermatologist. Experienced forensic witness and consul- HAMPTON HEALTH, LTD Kar, Dr. Nikhil Kar. Southern California’s premiermateri- tant. Comparable experience in plaintiff and defense JOHN H. FULLERTON, MD, MRO, CMD, CFP, als/mechanical/metallurgical/structural/forensics labora- cases. UCLA Medical School, Honorary Clinical Professor. FACP, AGSF, FAAHPM tory. Registered professional engineers with 30+ years in 1700 California Street, Suite 470, San Francisco, CA metallurgical/forensic/structural/mechanical failure analy- MEDICAL/NEUROLOGY 94109, (415) 460-5532, fax (415) 459-2774, e-mail: sis. Experienced with automotive, bicycles, tires, fire, [email protected]. Web site: hamptonhealthltd paint, plumbing, corrosion, and structural failures. We JONATHAN S. RUTCHIK, MD, MPH, QME, AME .com. Contact Kate McElroy, PA-C. Services available: work on both plaintiff and defendant cases. Complete in- Board Certified in Internal Medicine, Geriatrics, Hospice, 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941, house capabilities for tests. Extensive deposition and Palliative Medicine, Addiction Medicine, and Home Health; (415) 381-3133, fax (415) 381-3131, e-mail: jsrutch courtroom experience (civil and criminal investigations). Licensed Medical Review Officer. Expertise: Medicare @neoma.com. Web site: www.neoma.com. Jonathan S. Principals are Fellows of American Society for Metals and fraud cases for the government, toxicology/DUI, elder Rutchik, MD, MPH is a physician who is board certified in Fellows, American College of Forensic Examiners. See abuse including criminal defense of lay caregivers accused both Neurology and Occupational and Environmental display ad on page 61. of homicide of demented relatives during end-of-life Medicine, and an Associate Professor at UCSF. He pro- phase. Hospital, ambulatory/outpatient, PI, medical mal- vides clinical evaluations and treatment, including elec- practice, and LTC. Medical/hospice directorships. Testi- METALLURGY tromyography, of individuals and populations with sus- fied over 200 times and reviewed more than 1,500 cases, pected neurological illness secondary to workplace injuries KARS’ ADVANCED MATERIALS, INC. including Medicare audits for the government. See dis- or chemical exposure. Services include medical record play ad on page 58. Testing and Research Labs, 2528 West Woodland Drive, and utilization review and consulting to industrial, legal, Anaheim, CA 92801-2636, (714) 527- 7100, fax (714) government, pharmaceutical, and academic institutions on 527-7169, e-mail: [email protected]. Web site: www topics such as metals and solvents, pesticides, mold GRAHAM A. PURCELL, MD, INC. .karslab.com. Contact Dr. Ramesh Kar, Dr. Naresh exposures, product liability, musicians’ injuries, and oth- ASSISTANT CLINICAL PROFESSOR Kar, Dr. Nikhil Kar. Southern California’s premier materi- ers. Offices in SF, Richmond, Petaluma, Sacramento, and ORTHOPEDIC SURGERY, UCLA als/mechanical/metallurgical/structural/forensics labora- Eureka/Arcata. Licensed in CA, NY, MA, NM and ID. See 3600 Wrightwood Drive, Studio City, CA 91604, (818) tory. Registered professional engineers with 30+ years in display ad on page 57. 985-3051, fax (818) 985-3049, e-mail: gpurcellmd metallurgical/forensic/structural/mechanical failure analy- @gmail.com. Web site: gpurcellmd.com. Contact sis. Experienced with automotive, bicycles, tires, fire, Graham A. Purcell, MD. Dr. Purcell is a board-certified paint, plumbing, corrosion, and structural failures. We

60 Los Angeles Lawyer April 2015 work on both plaintiff and defendant cases. Complete in- of med-legal experience, including defense, plaintiff, insur- @kgainc.com. Web site: www.kgainc.com. Contact Kurt house capabilities for tests. Extensive deposition and ance carriers, United States Attorney General’s office, CA Grosz. Construction and environmental consultants since courtroom experience (civil and criminal investigations). Attorney General’s office and Public Defender’s office. 1991. Licensed engineers and contractors. ICC building, Principals are Fellows of American Society for Metals and Expert testimony pertains to med-mal, personal injury, plumbing, mechanical, concrete, and accessibility inspec- Fellows, American College of Forensic Examiners. See and workers’ compensation cases. As a qualified medical tors. Certified professional estimators. Trial experts, arbi- display ad on page 61. evaluator, Dr. Purcell has extensive experience in per- trators, and insurance appraisers/umpires. forming QMEs, AMEs, IMEs, WC evals. See display ad METEOROLOGY on page 55. GRAHAM A. PURCELL, MD, INC. ASSISTANT CLINICAL PROFESSOR AIR, WEATHER, AND SEA CONDITIONS, INC. WILLIAM B. STETSON, MD ORTHOPEDIC SURGERY, UCLA P.O. Box 512, Pacific Palisades, CA 90272, (818) 645- 191 South Buena Vista Street, Suite 470, Burbank, 3600 Wrightwood Drive, Studio City, CA 91604, (818) 8632, fax (310) 454-7569, e-mail: [email protected]. CA 91505, (818) 848-3030, fax (818) 848-2228, e-mail: 985-3051, fax (818) 985-3049, e-mail: gpurcellmd@gmail Web site: www.weatherman.org. Contact Jay Rosen- [email protected]. Web site: www .com. Web site: gpurcellmd.com. Contact Graham A. thal, AMS Certified Consulting Meteorologist (CCM). .sportsmedicinedr.com. Contact W. Stetson, MD. Dr. Purcell, MD. Dr. Purcell is a board-certified orthopedic Experienced and authoritative expert testimony, reports Stetson is fellowship trained in arthroscopic surgery of the surgeon, subspecialty in spinal disorders affecting adults and analyses of wind, rain, storms, lightning, climatic con- shoulder, knee, elbow, and ankle. He is an Associate Clini- and children. Examples of spinal disorders treated by Dr. ditions, flooding, waves, specialist in wildfires, ice, dust, cal Professor of orthopedic surgery at the USC Keck Purcell include disc diseases, stenosis, infections, tumors, auto/boat/ship/aircraft accident reconstruction, property School of Medicine. He also has extensive experience in injuries, and deformities including scoliosis. He possesses damage, slip and falls, construction, mold issues, home- sports medicine and orthopedic trauma. 34 years of orthopedic and 27 years of med-legal experi- land security applications, air pollution, transport, and risk ence, including defense, plaintiff, insurance carriers, identification. Movie industry applications, cinematogra- PEDIATRIC EXPERT WITNESS United States Attorney General’s office, CA Attorney Gen- phy, and visual effects. Determining unusualness, nor- eral’s office and Public Defender’s office. Expert testimony malcy, and foreseeability. Official data, site visits, clear and MICHAEL WEINRAUB, MD, FAAP pertains to med-mal, personal injury, and workers’ com- convincing testimony. See display ad on page 63. 515 South Flower Street, Suite 3600, Los Angeles, pensation cases. As a qualified medical evaluator, Dr. Pur- CA 90071, (213) 236-3662, fax (213) 236-3663, cell has extensive experience in performing QMEs, AMEs, MOTORCYCLE e-mail: [email protected]. Web site: www IMEs, WC evals. See display ad on page 55. .michaelweinraubmd.com. Experience in general pedi- NASH FORENSIC atrics applied to legal matters involving children. Contact WHITE, ZUCKERMAN, WARSAVSKY, 434 East Haley Street, Suite A, Santa Barbara, CA 93101, Dr. Michael Weinraub. Board Certified Pediatrician. LUNA & HUNT (855) 808-1500, fax (866) 443-9227, e-mail: wnash Child abuse and neglect, Munchausen syndrome by 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA @nashforensic.com. Web site: www.nashforensic.com. proxy, shaken baby syndrome (SBS), lead poisoning, fetal 91403, (818) 981-4226, fax (818) 981-4278, 4 Park Plaza, Contact William Nash. Nash Forensic delivers motorcy- alcohol spectrum disorder (FASD), pediatric malpractice, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) cle related expert witness testimony and consultation ser- childhood injury and product liability, developmental dis- 219-9095, e-mail: [email protected]. Web site: www vices concerning the complexities of motorcycles and abilities (autism), healthcare of foster children, and adop- .wzwlh.com. Contact Barbara Luna. Expert witness tes- ATVs, rider action/inaction, motorcycle accidents/inci- tion/custody evaluation for health supervision concerns. timony for complex litigation involving damage analyses of dents, motorcycle systems and dynamics, mechanical lost profits, unjust enrichment, reasonable royalties, lost reconstruction, inclusive of testing and analysis. William PERSONAL INJURY earnings, lost value of business, forensic accounting, fraud Nash has over three decades of experience, knowledge, investigation, investigative analysis of liability, and marital background, and training, including motorcycle operation, KGA, INC. dissolution, and tax planning and preparation. Excellent design, functionality, mechanical, theory, dynamics, build, 1409 Glenneyre Street, Suite A, Laguna Beach, CA communicators with extensive testimony experience. Prior failure(s), research and design, destructive testing, warn- 92651, (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg Big Four accountants. Specialties include accounting, ings, reconstruction and rider error, motorcycle shop practices, and industry standards, not all inclusive. www.nashforensic.com.

NURSING/SURGERY/MEDSURG MED-LINK CONSULTATION 3362 Budleigh Drive, Hacienda Heights, CA 91745, (626) 333-5110, fax (626) 968-0064, e-mail: dorothypollock @roadrunner.com. Contact Dorothy Pollock, RN, LNCC. Registered nurse with over 40 years of clinical experience. Nontestifying services include case analysis, chronology, written reports, medical record organization. DME/IME accompaniment including CD recording and written report. Expert witness and testifying services, including affidavit, arbitration, declaration, opinion letters, and trial. Courtroom experienced both plaintiff and defense.

ORTHOPEDIC SURGEON MARC J. FRIEDMAN, MD 6815 Noble Avenue, Van Nuys, CA 91405, (818) 901- 6600, fax (818) 901-6685, e-mail: [email protected]. Web site: www.scoi.com. Contact Vanessa Espinal, ext 2810/2910. Orthopedic shoulder and knee, consult- ing, and expert witness testimony. IME, AME, QME, and workers’ compensation evaluations. See display ad on page 59.

GRAHAM A. PURCELL, MD, INC. ASSISTANT CLINICAL PROFESSOR ORTHOPEDIC SURGERY, UCLA 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985-3051, fax (818) 985-3049, e-mail: gpurcellmd @gmail.com. Web site: gpurcellmd.com. Contact Graham A. Purcell, MD. Dr. Purcell is a board-certified orthopedic surgeon, subspecialty in spinal disorders affecting adults and children. Examples of spinal disorders treated by Dr. Purcell include disc diseases, stenosis, infections, tumors, injuries, and deformities including scol- iosis. He possesses 34 years of orthopedic and 27 years

Los Angeles Lawyer April 2015 61 breach of contract, breach of fiduciary duty, business product testing, and computerized stress analysis; acci- real estate consulting group (established 1973). Experi- interruption, business dissolution, construction defects, dent reconstruction: automotive, trucks, construction enced litigation consultants/experts include senior delays, and cost overruns, fraud, insurance bad faith, equipment, and premises liability. See display ad on bankers, lenders, consultants, economists, accountants, intellectual property (including trademark, patent, and page 41. insurance underwriters/brokers. Specialties include: lend- copyright infringement, and trade secrets), malpractice, ing customs, practices, policies, in all types of lending (real marital dissolution, personal injury, product liability, real PODIATRY—FOOT SPECIALIST estate, subprime, business/commercial, construction, estate, securities, tax planning and preparation, IRS audit consumer/credit card), banking operations/administration, defense, tracing, unfair advertising, unfair competition, STEVEN L. ROSENBERG, DPM trusts and investments, economic analysis and valua- valuation of businesses, and wrongful termination. See 2901 Wilshire Boulevard, Suite 110, Santa Monica, CA tions/damages assessment, insurance claims, coverages display ad on page 47. 90403, (310) 828-3336, fax (310) 828-0096, e-mail: and bad faith, real estate brokerage, appraisal, escrow, [email protected]. Web site: www.rosenbergstevendpm and title insurance. ZIVETZ, SCHWARTZ & SALTSMAN, CPAS .com. Expert witness, plaintiff and defense, IME, podiatric 11900 West Olympic Boulevard, Suite 650, Los Angeles, surgery, medicine, sports medicine, trauma injuries, and FORRY LAW GROUP; FORRY REALTY CA 90064-1046, (310) 826-1040, fax (310) 826-1065. pain management. Second opinion reports, x-ray review, GROUP INC. Web site: www.zsscpa.com. Contact Lester J. and evaluations. Treating all ages, infants, children and 15501 San Fernando Mission Boulevard, Suite 309, Mis- Schwartz, CPA/CFF, DABFE, DABFA, Michael D. adults. Over 30 years of experience. sion Hills, CA 91345, (818) 361-1321, fax (818) 365-6522, Saltsman, CPA, MBA, JB Rizzo, CPA, ABV, CFF, e-mail: [email protected]; [email protected]. Web site: CVA, David L. Bass, CPA, David Dichner, CPA, ABV, POLYGRAPH www.forrylaw.com. Contact Craig B. Forry, JD, GRI, Sandy Green, CPA, Silva Hakobyan, CPA. Accounting Realtor. Expert witness/consultant, broker/agent stan- experts in forensic accounting, tax issues, business valua- JACK TRIMARCO & ASSOCIATES dard of care, escrow, real estate damages, foreclosure, tions, and appraisals, marital dissolutions, eminent POLYGRAPH INC. real estate disclosure, HOA, landlord-tenant, leases, mort- domain, insurance losses, business interruption, goodwill, 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA gages, transactions, residential and commercial, business economic analysis, investigative auditing, loss of earning, 90212, (310) 247-2637, e-mail: [email protected]. agent/broker standard of care, and legal malpractice. commercial damages, and lost profits. Expert witness tes- Web site: www.jacktrimarco.com. Contact Jack Available for consultations, depositions, and courtroom timony preparation, settlement negotiations, and consulta- Trimarco. Former manager of the Federal Bureau of testimony. Degrees/licenses: BA, JD; California attorney tions. See display ad on page 49. Investigation’s polygraph program in Los Angeles. Former for 29 years. California broker for 9 years, Realtor; Gradu- Inspector General Polygraph Program—Department of ate Realtor Institute. Memberships: National and California Energy. Nationally known and respected polygraph Association of Realtors; Southland Regional Association of PLASTIC AND COSMETIC RECONSTRUCTIVE Realtors; California State Bar; LACBA. SURGERY expert. I have the credentials you would want when you have a client polygraphed, a case reviewed, or a motion BRENT MOELLEKEN, MD, FACS. made regarding polygraph. My unique background allows FORSTER REALITY ADVISORS 120 South Spalding Drive, Suite 110, Beverly Hills, CA me to bring the highest levels of service and expertise to 11400 West Olympic Boulevard, Suite 200, Los Angeles, 90212, (310) 273-1001, fax: (310) 205-4881. Web site: any polygraph situation. Current member of the Ethics CA 90064, (888) 977-8989, fax: (424) 203-2038, www.drbrent.com. Contact Penny. IME, deposition, trial, Committee, California Association of Polygraph Examiners e-mail: [email protected]. Web site: www medical record review, plastic and reconstruction surgery, (CAPE). Hundreds of appearances on national TV, includ- .realtyforensics.com. Contact Eric Forster, MBA, and laser scar services. ing Dr. Phil, Oprah, Greta, Nancy Grace, O’Reilly Factor, MAFF. Real estate and mortgage fraud, industry stan- and Hannity and Colmes. Degrees/licenses: BS Psychol- dards and practices. Commercial damages and loss of ogy, Certified APA, AAPP, CAPE, AAFE. See display ad profits. Eric Forster has served as a special master of the PLASTIC SURGERY/BURN SPECIALIST on page 39. court in a massive mortgage fraud case and is former JEFFREY L. ROSENBERG, MD chair of the ABA Expert Witness subcommittee. 1245 Wilshire Boulevard, Suite 601, Los Angeles, CA PSYCHIATRY/PSYCHOLOGY 90017, (213) 977-0257, fax (213) 977-0501, e-mail: SAMUEL K. FRESHMAN, BA, JD [email protected]. Web site: www.jrosenbergmd BRIAN P. JACKS, MD, F.A.A.C.P. 6151 West Century Boulevard, Suite 300, Los Angeles, .com. Contact Jackie or Judy. Plastic and reconstruc- 9730 Wilshire Boulevard, Suite 108, Beverly Hills, CA CA 90045, (310) 410-2300, fax (310) 410-2919. tive surgery, burn specialist. Diplomate, American Board 90212, (310) 274-0684, e-mail: [email protected]. Contact Contact Samuel K. Freshman. Attorney and real estate of Plastic Surgery. Member, American Burn Association Serena LeeDaniela Rios. Clinical Professor of Psy- broker since 1956, banker, professor legal malpractice, and American Society of Plastic Surgeons. chiatry USC. Over 25 years of trial experience in child sex arbitration, brokerage malpractice, leases, syndication, abuse, workers’ compensation, personal injury, malprac- construction, property management, finance, due dili- tice, PTSD, psychopharmacology, sex harassment, bully- gence, conflict of interest, title insurance, banking, escrow, PLASTICS ing, discrimination, child custody, neuropsychiatry, and and development. Expert witness 30-plus years in state (head injury). Board Certified: adult, 1974, child-adoles- KARS’ ADVANCED MATERIALS, INC. and federal courts. Twenty-one published articles, arbitra- cent, 1976. tor and mediator, general partner $300,000,000+, shop- Testing and Research Labs, 2528 West Woodland Drive, ping centers, apartments, and industrial property. JD Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- Stanford (1956). See display ad on page 59. 7169, e-mail: [email protected]. Web site: www.karslab QUESTIONED DOCUMENTS .com. Contact Dr. Ramesh Kar, Dr. Naresh Kar, Dr. Nikhil Kar. Southern California’s premier materials/ SANDRA L. HOMEWOOD, FORENSIC LAW OFFICE OF LORE HILBURG mechanical/metallurgical/structural/forensics laboratory. DOCUMENT EXAMINER 1943 Buckingham Road, Los Angeles, CA 90016, (323) Registered professional engineers with 30+ years in metal- 1132 San Marino Drive, Suite 216, Lake San Marcos, CA 934-4443, fax (323) 934-4034, e-mail: lore@hilburglaw lurgical/forensic/structural/mechanical failure analysis. 92078, (760) 931-2529, fax (760) 510-8412, e-mail: .com or [email protected]. Contact Richard Experienced with automotive, bicycles, tires, fire, paint, [email protected]. Contact Sandra L. Reinhardt. Lore Hilburg, Esq., is a seasoned professional plumbing, corrosion, and structural failures. We work on Homewood. Highly skilled and experienced document who has served as an expert witness as to escrow issues, both plaintiff and defendant cases. Complete in-house examiner and expert witness in many complex and high and real property title dispute such as easements, con- capabilities for tests. Extensive deposition and courtroom profile civil and criminal cases with fully equipped docu- structive notice, and grantor/grantee index searches. Ms. experience (civil and criminal investigations). Principals are ment laboratory. Specializing in handwriting and hand- Hilburg also serves as a consultant on these issues whether Fellows of American Society for Metals and Fellows, printing identification, handwriting of the elderly in they arise in litigation involving a tort claim, legal malprac- American College of Forensic Examiners. See display ad financial elder abuse cases and will contests, and tice, or breach of contract, or a transactional setting. on page 61. examination of altered medical and corporate records. Trained in government laboratory including specialized LAWRENCE H. JACOBSON, ESQ. training by the FBI and Secret Service. Former govern- 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA PLUMBING ment experience includes document examiner for the San 90212, (310) 271-0747, fax (310) 271-0757, e-mail: Diego Police Department crime lab, Arizona State crime 4X FORENSIC ENGINEERING [email protected]. Web site: www.lawrencejacobson lab, San Diego County District Attorney’s office and San LABORATORIES, INC. .com. Past President, Beverly Hills Bar Association. Expert Luis Obispo and Santa Barbara District Attorney offices. witness: lawyer malpractice in business and real estate 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) Currently in private criminal and civil practice. 450-8500, fax (714) 450-8599, e-mail: phil@4Xforensic transactions, standard of care for real estate brokers and .com. Web Site: www.4Xforensic.com. Contact Phil Van mortgage brokers, and real estate document custom and Herle. 4X Forensic Engineering Laboratories is a full-ser- REAL ESTATE usage. Practicing real estate and business law in California vice forensic engineering laboratory. We provide expert since 1968. See display ad on page 59. witness and analytical and testing services in the following ADVISORS/EXPERTS @ MCS ASSOCIATES areas: fires and explosions: electrical and gas product 18881 Von Karman, Suite 1175, Irvine, CA 92612, RODINO ASSOCIATES (949) 263-8700, fax (949) 263-0770, e-mail: experts defect investigations, thermal and fire modeling and labo- 11661 San Vicente Boulevard, Suite 306, Los Angeles, @mcsassociates.com. Web site: www.mcsassociates ratory testing; water loss: materials, corrosion, and failure CA 90049, (310) 459-9474, e-mail: [email protected]. .com. Contact Norman Katz, managing partner. analysis of plumbing products; failure analysis: metallurgy, Web site: www.RodinoAssociates.com. Contact Robert Nationally recognized banking, finance, insurance, and

62 Los Angeles Lawyer April 2015 J. Rodino, Ph.D. Research, report preparation, deposi- tion, court testimony in all major property types, for multi- family residential, retail, office and light industrial, acquisi- tion & disposition, development, management, leasing, investment analysis, brokerage, and market research.

THE SIMMONS GROUP, INC. 5023 Butterfield Court, Culver City, CA 90230, (310) 439-4119, fax (310) 300-3020, e-mail: phil.sim- [email protected]. Web site: www.simmonsgroup- consulting.com. Contact Philip Simmons, Esq. Decades of executive land use, development, and real estate law expertise provides a unique combination of skills providing expert witness issues analysis, case prepa- ration, and testimony. Over 30 years of experience in cor- porate mixed-use real estate and development operations, specializing in all aspects of land acquisition, major project entitlement, project design, development, finance, market- ing, and disposition. In-depth legal expertise in complex negotiations, reviewing and implementing ordinances, drafting agreements, structuring compliance, and directing teams of consultants and outside counsel.

WARONZOF ASSOCIATES, INC. 400 Continental Boulevard, Sixth Floor, El Segundo, CA 90245, (310) 322-7744, fax (424) 285-5380. Web site: www.waronzof.com. Contact Timothy R. Lowe, MAI, CRE. Waronzof provides real estate and land use litigation support services including economic damages, lost prof- its, financial feasibility, lease dispute, property value, enter- prise value, partnership interest and closely held share value, fair compensation, lender liability, and reorganiza- tion plan feasibility. Professional staff of five with advanced degrees and training in real estate, finance, urban plan- ning, and accounting. See display ad on page 53.

REAL ESTATE TITLE CONSULTING PETRU CORPORATION 250 Hallock Drive, Suite 100, Santa Paula, CA 93060, (805) 933-1389, fax (805) 933-1380, e-mail: [email protected]. Web site: www .PetruCorporation.com. Contact Tim Truwe. Incorpo- rated in 1986, Petru Corporation is a full service land con- sulting company including: title searching/research, title reports, title engineering, oil, gas, mineral and geothermal land consulting, wind and solar land consulting, regula- tory/permit compliance, subdivisions, right-of-way con- sulting, water rights. Petru Corporation has provided its services on multimillion-dollar projects and matters involv- ing court litigation.

RECONSTRUCTIVE SURGERY JOHN M. SHAMOUN, MD, FACS, INC. 360 San Miguel, Suite 406, Newport Beach, CA 92660, (949) 759-3077, fax (949) 759-5458, e-mail: jmshamoun @aol.com. Web site: www.ideallook.com. Contact Yvonne. Specialties: only plastic surgeon in the United States board certified by the 1) American Board of Surgery, 2) American Board of Plastic Surgery, 3) Ameri- can Board of Facial Plastic and Reconstructive Surgery, and 4) American Board of Forensic Medicine. Extensive experience in all aspects of cosmetic, plastic, and recon- structive surgery of the breast, nose, face, eye, and body. Well-published author of several textbook chapters and journal articles related to above topics. Extensive experi- ence in medical malpractice case review, consultation, written evaluation and testimony in depositions and trial for plaintiff and defense. Articulate subspecialty consultant with up-to-date knowledge and expertise of plastic surgery literature and standards of care. Opinions sup- ported by extensive subspecialty education, training, and experience.

RETALIATION HAIGHT CONSULTING 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) 454-2988, fax (310) 454-4516. Contact Marcia Haight, SPHR—CA. Human resources expert knowledgeable in both federal and California law. Twenty-five years’ corpo- rate human resources management experience plus over

Los Angeles Lawyer April 2015 63 20 years as a Human Resources Compliance Consultant Court appearances. Broker/customer disputes: stocks pool construction field as owner of Aqua Concepts, Inc. in California. Specializations include sexual harassment, and bonds, options, commodity futures, currency trading, involving the planning, design, construction and remodels ADA/disability discrimination, other Title VII and FEHA dis- derivatives including swaps, limited partnerships, hedge of many thousands of residential and commercial swim- crimination and harassment, retaliation, FMLA/CFRA, funds, managed futures. Consultants to NYSE, Options ming pools/spas. Applied decades of swimming pool con- safety, and wrongful termination. Courtroom testimony Clearing Corporation, CBOT, CME, COMEX, TIAA/CREF, struction knowledge towards performing as an expert wit- and deposition experience. Retained 60 percent by banks, other major clients. Arbitrator NASD (now FINRA), ness in legal actions. Expertise in litigation relating to site defense, 40 percent by plaintiff. Audit employer’s actions NYSE, AAA, NFA, mediator with NASD (now FIRNA) train- inspections, documentation/deposition review, and testi- in preventing and resolving discrimination, harassment, ing. Member: Compliance and Legal Division, Securities mony for depositions, mediation, arbitration, and trial. and retaliation issues. Assess human resources policies Industry Association. Swimming pool construction, although my expertise and practices for soundness, for comparison to prevailing expands to other areas as you can see in my active practices, and for compliance. Evaluate employer respon- PETILLON HIRAIDE LLP licenses: CA Contractors 419698, B General Builders, siveness to complaints and effectiveness of employer 21515 Hawthorne Boulevard, Suite 1260, Torrance, CA C53 Swimming Pools, C27 Landscaping, and C8 investigations. Assist counsel via preliminary case analysis, 90503, (310) 543-0500, fax (310) 543-0550, e-mail: Concrete. discovery strategy, examination of documents, and expert [email protected]. Web site: www.phlcorplaw testimony. TITLE SEARCHING/REPORTS .com. Contact Mark Hiraide. Expert witness in the following areas: formation of corporations, partnerships, PETRU CORPORATION ROOFING AND WATERPROOFING and limited liability companies, governance, fiduciary 250 Hallock Drive, Suite 100, Santa Paula, CA duties of officers and directors, and majority shareholders, KGA, INC. 93060, (805) 933-1389, fax (805) 933-1380, venture and acquisition issues; violation of securities laws; e-mail: [email protected]. Web site: 1409 Glenneyre Street, Suite A, Laguna Beach, CA and legal malpractice of lawyers. www.PetruCorporation.com. Contact Tim Truwe. 92651, (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg Incorporated in 1986, Petru Corporation is a full service @kgainc.com. Web site: www.kgainc.com. Contact Kurt ROBERT C. ROSEN land consulting company including: title searching/ Construction and environmental consultants since Grosz. Citigroup Center, 444 South Flower Street, 30th Floor, research, title reports, title engineering, oil, gas, mineral 1991. Licensed engineers and contractors. ICC building, Los Angeles, CA 90071, (213) 362-1000, fax (213) 362- and geothermal land consulting, wind and solar land plumbing, mechanical, concrete, and accessibility inspec- 1001, e-mail: [email protected]. Web site: consulting, regulatory/permit compliance, subdivisions, tors. Certified professional estimators. Trial experts, arbi- www.rosen-law.com. Specializing in securities law, right-of-way consulting, water rights. Petru Corporation trators, and insurance appraisers/ federal securities law enforcement, securities arbitration, has provided its services on multimillion-dollar projects umpires. and international securities, insider trading, NYSE, AMEX, and matters involving court litigation. FINRA, DOC disciplinary proceedings, broker-dealer, SAFETY investment company and investment adviser matters, TOXICOLOGY liability under federal and state securities laws, private KGA, INC. offerings, Internet securities, and law firm liability. AV HAMPTON HEALTH, LTD 1409 Glenneyre Street, Suite A, Laguna Beach, CA rated. Former chair, LACBA Business and Corporations JOHN H. FULLERTON, MD, MRO, CMD, CFP, 92651, (949) 497-6000, fax (949) 494-4893, e-mail: Kurtg Law Section. LLM, Harvard Law School. Forty years FACP, AGSF, FAAHPM @kgainc.com. Web site: www.kgainc.com. Contact Kurt practicing securities law, 12 years with the U.S. Securities 1700 California Street, Suite 470, San Francisco, CA Construction and environmental consultants since Grosz. and Exchange Commission, Washington, DC. Published 94109, (415) 460-5532, fax (415) 459-2774, e-mail: 1991. Licensed engineers and contractors. ICC building, author/editor of securities regulations, including multivol- [email protected]. Web site: hamptonhealthltd plumbing, mechanical, concrete, and accessibility inspec- ume treatises. See display ad on page 63. .com. Contact Kate McElroy, PA-C. Services available: tors. Certified professional estimators. Trial experts, arbi- Board Certified in Internal Medicine, Geriatrics, Hospice, trators, and insurance appraisers/umpires. SEXUAL HARASSMENT/DISCRIMINATION Palliative Medicine, Addiction Medicine, and Home Health; Licensed Medical Review Officer. Expertise: Medicare SCS ENGINEERS HAIGHT CONSULTING fraud cases for the government, toxicology/DUI, elder 3900 Kilroy Airport Way, Suite 100, Long Beach, CA 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) abuse including criminal defense of lay caregivers accused 90806, (562) 426-9544, fax (562) 427-0805, e-mail: 454-2988, fax (310) 454-4516. Contact Marcia Haight, of homicide of demented relatives during end-of-life [email protected]. Web site: www.scsengineers SPHR—CA. Human resources expert knowledgeable in phase. Hospital, ambulatory/outpatient, PI, medical mal- .com. Contact Julio Nuno, VP. SCS provides expert wit- both federal and California law. Twenty-five years’ corpo- practice, and LTC. Medical/hospice directorships. Testi- ness services related to environmental studies and engi- rate human resources management experience plus over fied over 200 times and reviewed more than 1,500 cases, neering, water resources, solid waste and air quality and 20 years as a Human Resources Compliance Consultant including Medicare audits for the government. See industrial hygiene and safety services. We are a 43-year in California. Specializations include sexual harassment, display ad on page 58. old consulting firm with 71 offices across the US and ADA/disability discrimination, other Title VII and FEHA dis- nearly 800 employees. Our Long Beach office has more crimination and harassment, retaliation, FMLA/CFRA, PRINCETON-SOMERSET GROUP, INC. than 30 professional engineers, scientists, and subject safety, and wrongful termination. Courtroom testimony 4 Carroll Drive, Hillsborough, NJ 08844, (800) 597-8836, matter experts available on short notice to serve asbestos, and deposition experience. Retained 60 percent by (908) 369-6890, fax (908) 369-6881. Web site: www lead-based paint, and other specialty areas requiring defense, 40 percent by plaintiff. Audit employer’s actions .PrincetonSomerset.com. Contact Dr. Dennis Stainken. expert witness services. in preventing and resolving discrimination, harassment, Expert witness, toxicology, health issues, chemical expo- and retaliation issues. Assess human resources policies sure, mold issues, worker exposure, contamination issues, SECURITIES and practices for soundness, for comparison to prevailing causation assessment, property damage/contamination practices, and for compliance. Evaluate employer respon- and remediation, sewage, gasoline and oil issues and age CORNERSTONE RESEARCH siveness to complaints and effectiveness of employer determination, petroleum releases, chemicals/products, 633 West Fifth Street, 31st Floor, Los Angeles, CA 90071- investigations. Assist counsel via preliminary case analysis, risk assessment, indoor air quality/health effects, toxic tort 2005, (213) 553-2500, fax (213) 553-2699. Web site: discovery strategy, examination of documents, and expert evaluation, chemistry, site assessment, regulatory issues, www.cornerstone.com. Contact George G. Strong, Jr., testimony. environmental toxicology, environmental issues, and wet- Richard W. Dalbeck, Katie J. Galley, Elaine land/ecological. Services nationwide. Thirty-plus years of Harwood, Carlyn Irwin, Erin McGlogan, or Ashish SURVEY RESEARCH industrial and government experience in pollution under Pradhan. For more than 25 years, Cornerstone Research NPDES, CERCLA, RCRA, SDWA, and CWA. Former fed- staff have provided economic and financial analysis in all DR. MICHAEL A. KAMINS eral and state regulator, professor, consultant, industrial phases of commercial litigation and regulatory proceed- 6401 Warner Drive, Los Angeles CA 90048, (323) 868- research. Seventy-five plus publications. ings. We work with a broad network of testifying experts, 9507, fax (631) 632-9412, email: michael.kamins including prominent faculty and industry practitioners, in a @stonybrook.edu. Services offered include expert survey distinctive collaboration. The experts with whom we work research/questionnaires design on Lanham act issues of TRAFFIC ENGINEERING bring the specialized expertise required to meet the confusion, secondary hearing, and dilution. I have knowl- WILLIAM KUNZMAN, PE demands of each assignment. Our areas of specialization edge of consumer behavior, marketing strategy, and mar- 1111 Town and Country #34, Orange, CA 92868, include intellectual property, antitrust, securities, entertain- keting resources. I have worked on false advertising cases (714) 973-8383, fax (714) 973-8821, e-mail: bill@traffic ment, real estate, financial institutions, and general busi- and misappropriation of celebrity identity. -engineer.com. Web site: www.traffic-engineer.com. ness litigation. Contact William Kunzman, PE. Traffic expert witness SWIMMING POOLS/SPAS since 1979, both defense and plaintiff. Auto, pedestrian, MARKET CONSULTING CORPORATION bicycle, and motorcycle accidents. Largest plaintiff ver- (213) 627-0440, (888) 397-9867, e-mail: info@market- AQUA CONCEPTS, INC dicts: 1) $12,200,000 in pedestrian accident case consulting.com. Web site: www.market-consulting.com. 5938 Wilbur Avenue, Tarzana, CA 91356, (818) 705- against Caltrans, 2) $10,300,000 in case against Los Contact Dr. Ronald W. Cornew. Twenty plus years as 2233, fax: (818) 345-1923, e-mail: Aquaconcepts@ Angeles Unified School District. Largest settlement: consultants in investment and trading litigation. Asset hotmail.com. Web site: www.Aquaconcepts.com. $2,000,000 solo vehicle accident case against Caltrans. management, pension investments, securities and futures Contact Richard Schwag. Swimming Pool and Spa Best defense verdict: $0 while defending Caltrans and tax matters including IRS examinations, appeals, U.S. Tax Expert Witness and Consultant. Thirty-seven years in the opposition sought $16,000,000. Before becoming expert

64 Los Angeles Lawyer April 2015 witness, employed by Los Angeles County Road THE APPLICATION OF FOLEY IN RECENT LENDER to describe the developing pattern in the 1980s of Department, Riverside County Road Department, City LIABILITY DECISIONS using tort damages to remedy contract breaches. See, of Irvine, and Federal Highway Administration. Knowl- Continued from page 13. e.g., Matthew J. Barrett, “Contort’’: Tortious Breach edge of governmental agency procedures, design, of the Implied Covenant of Good Faith and Fair geometrics, signs, traffic controls, maintenance, and Dealing in Noninsurance, Commercial Contracts— pedestrian protection barriers. Hundreds of cases. chance to repay the loan and earn $10 mil- Undergraduate work—UCLA, graduate work—Yale Its Existence and Desirability, 60 NOTRE DAME L. 36 University. lion. Plaintiffs sued HSBC, pleading four REV. 510, 518 (1985). claims sounding in tort and quasicontract: 8 See, e.g., Koehrer v. Superior Court, 181 Cal. App. WASTEWATER negligence, negligent interference, negligent 3d 1155 (1986); Khanna v. Microdata Corp., 170 Cal. App. 3d 250 (1985); Commercial Cotton Co., Inc. misrepresentation, and promissory estoppel. JOHN SHAW CONSULTING, LLC v. United Cal. Bank, 163 Cal. App. 3d 511 (1985) Tel: (530) 550-1576, e-mail: [email protected]. The trial court found that Mitsui and (lender liability case); Rulon-Miller v. International Website: www.shaweng.com. Contact John Shaw, Foley, read together, applied to all four of Business Machines Corp., 162 Cal. App. 3d 241 (1984); PE. Water/wastewater/sewer industry—unique combi- those claims and thereby sustained a demur- Shapiro v. Wells Fargo Realty Advisors, 152 Cal. App. nation of operations and engineering background. 37 3d 467 (1984); and Crosier v. United Parcel Service, Sanitary engineering including water (potable) and rer without leave to amend. On appeal, Inc., 150 Cal. App. 3d 1132 (1983). wastewater industrial and domestic) treatment, con- the borrower argued that Mitsui was limited 9 Foley v. Interactive Data Corp., 47 Cal. 3d 654, 689 veyance, hydraulics, storage, reuse, master planning, to its facts and did not extend to any cause operations, maintenance, and expert witness and (1988). forensic (mode of failure and standard of care analysis, of action besides tortious breach of the 10 Id. engineering analysis, product suitability and construc- implied covenant.38 The court disagreed: 11 Id. at 683. tion defect issues). Wastewater treatment plants, dis- The Cappello parties’ attempt to limit 12 Id. posal/reuse facilities, sewage lift station design, sewer 13 Mitsui to the specific cause of action at Id. at 688 (majority opinion), 702 n.14 (dissenting collection systems, and sludge treatment. Water treat- opinion). ment plants, pipelines, and swimming pools. issue (tortious breach of the covenant 14 Id. at 689. of good faith and fair dealing) is unper- 15 Chief Justice Rose Bird, Associate Justice Grodin, and WORKERS’ COMPENSATION suasive. As noted above, Mitsui relied Associate Justice Cruz Reynoso are the only three sit- ting California Supreme Court Justices ever removed GRAHAM A. PURCELL, MD, INC. heavily on Foley, applying its concepts ASSISTANT CLINICAL PROFESSOR to the lender-borrower relationship. from office. 16 Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal. 4th ORTHOPEDIC SURGERY, UCLA And Foley broadly disapproved of 3600 Wrightwood Drive, Studio City, CA 91604, (818) 85, 93 (1995). 985-3051, fax (818) 985-3049, e-mail: gpurcellmd extending tort damages to contract 17 Id. at 93 (rev’g Seaman’s and eliminating the tort of @gmail.com. Web site: gpurcellmd.com. Contact cases in general.39 bad faith denial of the existence of a contract).) Graham A. Purcell, MD. Dr. Purcell is a board-certi- The analysis in Cappello stands in firm 18 Erlich v. Menezes, 21 Cal. 4th 543, 552-53 (1999) fied orthopedic surgeon, subspecialty in spinal disor- (refusing to recognize tort damages for “negligent” ders affecting adults and children. Examples of spinal opposition to an overbroad reading of Hol- breach). disorders treated by Dr. Purcell include disc diseases, comb as applying to anything beyond the 19 Mitsui Mfrs. Bank v. Superior Court , 212 Cal. stenosis, infections, tumors, injuries, and deformities depositor context.40 Thus, a lender (or suc- including scoliosis. He possesses 34 years of orthope- App. 3d 726 (1989). dic and 27 years of med-legal experience, including cessor in interest to a noteholder) facing the 20 Id. at 730. defense, plaintiff, insurance carriers, United States broad array of creative tort or fraud actions 21 Id. Attorney General’s office, CA Attorney General’s office should remember that Foley and Mitsui retain 22 Id. at 729. and Public Defender’s office. Expert testimony pertains 23 broad implications. I Price v. Wells Fargo, 213 Cal. App. 3d 465, 479 to med-mal, personal injury, and workers’ compensa- (1989). tion cases. As a qualified medical evaluator, Dr. Purcell 24 Id. at 478. has extensive experience in performing QMEs, AMEs, 1 Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988). 25 IMEs, WC evals. See display ad on page 55. Copesky v. Superior Court, 229 Cal. App. 3d 678, 2 Some recent experience suggests that lenders do not 688 (1991). use this line of cases to full effect. See, e.g., Zigner v. 26 Stop Loss Ins. Brokers, Inc. v. Brown & Toland Med. WRONGFUL TERMINATION Pacific Mercantile Bank, Orange County Case No. Group, 143 Cal. App. 4th 1036 (2006). HAIGHT CONSULTING 30-2010-00337433 (filed Jan. 21, 2010) (entering a 27 Id. at 1041. 1726 Palisades Drive, Pacific Palisades, CA 90272, judgment against the lender for setting off accounts and 28 Id. (310) 454-2988, fax (310) 454-4516. Contact Marcia refusing to extend loan maturity as orally promised); 29 Holcomb v. Wells Fargo, N.A., 155 Cal. App. 4th Haight, SPHR—CA. Human resources expert knowl- Avila v. Wells Fargo Bank, No. C 12-01237 WHA, 490 (2007). edgeable in both federal and California law. Twenty-five 2012 WL 2953117, at *12 (N.D. Cal. July 19, 2012) 30 Id. at 498. years’ corporate human resources management (negligence action passed the motion to dismiss stage 31 Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal. experience plus over 20 years as a Human Resources based upon an allegation that the bank promised a loan App. 3d 1089 (1991). Compliance Consultant in California. Specializations modification but never provided one). 32 On its facts, the lender in Nymark prepared an include sexual harassment, ADA/disability discrimina- 3 Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809 tion, other Title VII and FEHA discrimination and harass- appraisal that failed to identify severe structural prob- ment, retaliation, FMLA/CFRA, safety, and wrongful (1979). lems with the property. The plaintiff allegedly relied on termination. Courtroom testimony and deposition expe- 4 Id. at 817-19 (“Insurers hold themselves out as fidu- the appraisal and ended up under water on his mort- rience. Retained 60 percent by defense, 40 percent by ciaries…[t]he special relationship between the insurer gage after making the repairs. The court found that this plaintiff. Audit employer’s actions in preventing and and the insured illustrates the public policy consider- did not create a tort claim. resolving discrimination, harassment, and retaliation ations that may support exemplary damages in cases 33 Cappello v. HSBC Bank USA, N.A., No. BC428453 issues. Assess human resources policies and practices such as this…[t]he availability of punitive damages is (L.A. Super. Ct. 2011). for soundness, for comparison to prevailing practices, thus compatible with recognition of insurers’ underlying 34 and for compliance. Evaluate employer responsiveness HSBC Bank USA, N.A. v. Cappello, B236346, public obligations.”). to complaints and effectiveness of employer investiga- B240491, 2014 WL 814275 (Feb. 25, 2014). 5 tions. Assist counsel via preliminary case analysis, Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167 35 Id. at *1-2. discovery strategy, examination of documents, and (1980). 36 Id. at *2. (Comments made by the loan officer, expert testimony. 6 Id. at 179 n.12 (gathering out-of-state cases sup- Colman, supposedly “killed the deal.”) In addition, porting tort damages for breach of the implied covenant). “Cappello had other favorable, professional and bank- 7 Seaman’s Direct Buying Serv., Inc. v. Standard Oil Co., ing relationships. Based on Colman’s promise to pro- 36 Cal. 3d 752, 769 (1984) (“[A] party to a contract vide a positive reference, Cappello did not seek addi- may incur tort remedies when, in addition to breach- tional references.” Id. ing the contract, it seeks to shield itself from liability 37 Id. by denying, in bad faith and without probable cause, 38 Id. that the contract exists”) overruled by Freeman & 39 Id. at *4. Mills, Inc. v. Belcher Oil Co., 11 Cal. 4th 85 (1995). 40 Id. (“that case is distinguishable” as a case regard- Some commentators derisively used the word “contort” ing “a representation” about a deposit).

Los Angeles Lawyer April 2015 65 by the book REVIEWED BY ERIC HOWARD

A World More Concrete

Like Los Angeles, Miami once was a placing hope in “outsiders who picked fights with white business lead- small town with a racially mixed pop- ers” and for avoiding “civil rights celebrities” such as the NAACP’s ulation that experienced real estate Walter White. Instead, she favored “commonsense entrepreneurs” booms after the world wars.1 In A who could “hammer out the deals and build the communities that made World More Concrete, N. D. B. Con- Jim Crow work in daily life.” nolly traces the hows and the whos Connolly labels the approach typified by Range and Hurston as behind the redlining, restrictive cov- “soft power” and its opposite, characterized by protest and disruption, enants, eminent domain, and other as “hard power.” These two options could also be characterized as land use policies that created Miami the dilemma of whether to try to change a system from within or from suburbs and neighborhoods in which without. In the book’s introduction, Connolly frames this with a story segregation enforced economic in- of a “ribbon-cutting ceremony” attended by Range for a park under equality. To ensure real estate devel- a freeway, one year after the 1968 riots. The park, created on “dead opment in South Florida, Connolly land” where homes had once stood before being bulldozed to “make argues, black and white community room for I-95,” was Range’s “brainchild” and received “endorsements By N. D. B. Connolly leaders all had roles to play in pursuit from an influential, interracial coalition that included the city’s University of Chicago Press, 2014 of the American dream of a single fam- mayor,” who with “what was likely unintended irony,” spoke of how $40.50, 361 pages ily home in a suburban neighborhood “Miami does not shove socio-economic problems under the rug.” close to the jobs of the city. At the ceremony for the park under the freeway, Range noted that In Miami, jobs were as segregated as land. Connolly writes: “[t]hese are still explosive times,” in reference to the riots of 1968. What “Beginning in the 1910s and continuing well into the 1940s, white lay behind those riots? Connolly recounts how “During the late 1940s union members enforced ‘whites only’ membership rules within the and 1950s, Liberty City and Brownsville attracted upwardly mobile sectors of carpentry and entertainment.” But “across the verdant West Indians, Spanish-speaking Caribbean folk, and American grounds of the Royal Palm and other new hotels,” black men were blacks....in search of parks, swimming pools, homeownership, and free- preferred for pedaling guests about on “Afromobiles,” which featured dom from downtown slums.” This promise of the suburban good life wicker chairs mounted on three-wheeled cycle frames. In the new went unrealized, however. “By the early 1960s…the promise of sub- houses, moreover, “[r]oughly between 1900 and 1930, the number urbia seemed unmade. White rental speculators and a wave of rezon- of white women engaged in domestic employment declined by 40 per- ing initiatives had turned much of Brownsville, and especially Liberty cent,” while the number of black women engaged in domestic employ- City, into a suburban ghetto.” Residents were “trapped in a web of ment increased by roughly the same amount. stop-and-frisk policing…unemployment…and worsening rental con- While Connolly provides many such statistics, he enlivens the book ditions.” In Miami, which had dubbed itself “America’s playground” with portrayals of the people who made money from the racial divide. in real estate booster campaigns, the opening of a playground under M. Athalie Range, for example, “owned several houses in…Liberty City a freeway “might seem absurd,” but it was also an expression of gov- and Brownsville….including a house at 1184 NW Sixty-Second Street ernance, capitalism, and a demonstration of “neighborhood pride.” [that] suffered from several violations of the minimum housing code, In his book, Connolly argues that to realize the economic poten- including sizable holes in the floor and walls.” Yet, as Connolly points tial of sunny Miami’s real estate, white and nonwhite Americans both out, Range “also fought for school integration when it was highly unpop- invested governance in which Jim Crow was inescapable. As Connolly ular and potentially dangerous to do so,” and she “built an impressive puts it, “Property continued to be both things and entitlements.” When record of legislative success as a city commissioner.” blacks owned real estate, they also enjoyed property rights, and the As Miami’s first black city commissioner, Range promulgated hous- fight to “line up black property rights with black merit…is what ing reform, helping to strengthen the city’s housing code in 1967 and prompted Negro businessmen and white city officials, in 1957, to opposing white landlords who refused to rent to blacks. As Connolly desegregate Miami’s municipal golf course.” It was Elmer Ward, “a puts it, “Miami’s newest and most visible housing reformer...stood in wealthy black landlord and pharmacist,” who brought suit. Even in violation of her own housing code.” Connolly explains such contra- a “community that still lacked electricity and sanitation services,” there dictions as the result of a pragmatic approach to dealing with Jim Crow. was “no contradiction at all” between suing for admittance to a golf For example, when discussing Zora Neale Hurston (the author of the course and hoping for a house with solid floors. I novel Their Eyes Were Watching God), who “spent several years in 1 Miami collecting folklore and working as a domestic” in the home of See, e.g., JOSH SIDES, L.A. CITY LIMITS: AFRICAN AMERICAN LOS ANGELES FROM THE GREAT the son of a judge, Connolly recounts that Hurston would regularly get DEPRESSION TO THE PRESENT (U. of Cal. Press 2006). into “fiery exchanges” with her employer. On the other hand, in let- ters and articles written at the Smathers house, Hurston argued against Eric Howard is the editor of Los Angeles Lawyer.

66 Los Angeles Lawyer April 2015 2015 California and Thirty-Hour Basic Mediation Training Delaware Law Update STARTING ON MONDAY, APRIL 20, and continuing until April 24, the Center for Civic ON THURSDAY, APRIL 30, the Business and Mediation and LACBA will host a program to introduce the core principles and Corporations Law and Corporate Law methods of alternative dispute resolution. Speakers Talin S. Bahadarian, Lynne S. Departments Sections will host a program Bassis, and Gail Nugent will provide a strong foundation in mediation skills on recent developments in Delaware and through lecture, small group exercises, and role-playing. Rich in theory and California business law, which will include practice, the training covers the nature of conflict, the history of mediation, the a keynote speech from Delaware Supreme structure and management of the mediation process, intake and convening, Court Justice Karen Valihura. Keith Paul mediation models, cultural awareness and diversity, legal requirements and Bishop, a partner at Allen Matkins Leck ethics, maintaining neutrality, communication skills, negotiation, breaking Gamble Mallory & Natsis LLP in Irvine and impasses, closure, and drafting agreements. Participants receive an overview of C. Stephen Bigler, a senior director at various practice settings. The training fulfills the requirements of the California Richards, Layton & Finger, P.A., in Dispute Resolution Programs Act. Early bird discount applies when registering 21 Wilmington, Delaware, will discuss recent days prior to the start of the program, which will take place in the Fireside Room at developments in California and Delaware the Long Beach Police Academy, 7290 Carson Street in Long Beach. Parking is legislation and case law, respectively, located at the 605 Freeway & Carson Street behind Lowe’s Hardware in the Long applicable to business lawyers. Beach Towne Center (westbound on Carson Street from the 605 Freeway). The Immediately following the symposium will be a cocktail reception during which the program will take place from 9 A.M. to 4 P.M. each day. Discounts are available for Marvin Greene Distinguished Service groups of five. The registration code is 012570. Award will be presented to Martin $645—Center for Civic Mediation Associates member Murphy, a longtime member of the $675—LACBA member Business and Corporations Section $690—all others (early bird) Executive Committee who recently retired 26.75 CLE hours, including 2.75 hours of ethics and 1 hour of elimination of bias from his position as Examinations Director in the SEC’s Los Angeles Regional Office. The program will take place in the Bank of America Auditorium at the 2015 Labor and Employment Law Section Annual Retreat Arclight Theatre Hollywood at 6360 West ON FRIDAY, APRIL 24, the Labor and Employment Law Section will sponsor its annual Sunset Boulevard in Hollywood. retreat in beautiful Ojai. You will have an opportunity to mix and mingle with other Registration begins at 11:45 A.M., with labor and employment law practitioners and members of the judiciary in social and lunch at 12:15 P.M., and the program other informal activities. This retreat will take place at the Ojai Valley Inn and Spa on continuing from 1:15 to 4:30 P.M. Discounts Country Club Road in Ojai. There will be a reception and meal on Friday, April 24, with are available for groups of five. Parking at the CLE program running on Saturday through Sunday from 9 A.M. until 12:30 P.M.each the Bank of America Plaza is available for day. The program will feature segments on labor and employment law jeopardy, tips $14 with parking validation. The in employment cases, appealing strategies, and ethical considerations in social registration code is 012528. media. Speakers include experts from several leading law firms and a superior court $140—CLE+ member judge. Call (888) 697-9116 to reserve a room at the negotiated rate. Registration and $225—Barristers Section member breakfast is at 8:30 A.M. with dinner at 6:30 P.M. The registration code is 012489. $225—Litigation Section member $210—Spouse or guest of Labor and Employment Law Section member $225—Business and Corporations Law $260—CLE+ member Section member $310—Labor and Employment Law Section member $225—Corporate Law Section member $360—LACBA member $265—LACBA member with meal $410—all others $315—All others with meal 3.5 CLE hours 7 CLE hours, including 1 hour substance abuse credit

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 website at http://calendar.lacba.org, where you will find a full listing of this month’s Association programs.

Los Angeles Lawyer April 2015 67 closing argument BY JAN FRANKEL SCHAU

Six Examples to Counter the Allegation That Mediators Lie

GIVEN THE SECRECY that surrounds the mediation process, it may be expresses concern that by making an opening demand of over $1 mil- no surprise that some suggest that mediators lie in mediation. On that lion the demand may trigger coverage issues, but that if the opening issue, it is time to reveal some truths. First, secrets are not lies. For demand was something under $1 million, the defendant had assured example, consider a plaintiff’s attorney who confides to me that he the mediator that a meaningful initial offer would be made, that is has yet to discover any corroborating evidence to substantiate the alle- not a lie. That is simply coaching towards successful negotiation based gation of his client that she was teased at work due to her temporary upon information presented. disability. The attorney asks me expressly not to reveal the lack of evi- Fourth, mediators do not lie when they predict the outcome of a dence supporting the plaintiff’s discrimination claim. It would be a dispute. Occasionally, a trusting advocate will admit what his or her lie to advise the employer that the mediator has seen evidence sup- “top authority” or “bottom line” is to a mediator in confidence and porting the plaintiff’s case, but it would not be a lie to suggest that encourage the mediator to negotiate within that number. Failing to evidence may be revealed. The stock in trade of mediators is the uncertainty of litigation. Keeping a secret is not lying. Some outliers will not conform to predictions. It is not a lie As I once heard Professor Hal Abramson put it, a trial is performed under the full lights of transparency, with direct examination, to be wrong about the outcome of the dispute. cross-examination and written, documentary evidence, while a mediation is done in the darkness cloaked by confidentiality and the parties are at liberty to decide just how much light they are willing to accomplish a particular outcome is not a lie. Experienced mediators let in. The slow drip of information that regularly takes place during can often predict the outcome of a negotiation after a certain point, a mediation hearing is not deception but nuance. but as Daniel Ariely points out in his bestselling book, human behav- Second, assuring the parties of the confidentiality of the media- ior is predictably irrational, and some outliers will not conform to pre- tion process is not a lie. It is the duty of the advocates, not the medi- dictions. It is not a lie to be wrong about the outcome of the dispute. ator, to be explicit about those harmful facts that cannot be revealed Fifth, encouraging each side to agree to a mediator’s proposal is to the adversary during the mediation process. Most professional medi- not a lie. By the time a mediator makes a proposal, he or she usually ators know that they cannot promise strict confidentiality on all has a good idea that at least one side will agree. The more reluctant communications. What they can promise is confidentiality on those party should accept that encouragement. It is not a lie to express the issues that an attorney wants not to be disclosed. Mediators do not likelihood of success of a mediator’s proposal. lie about their promise to maintain the confidential communications Finally, mediators are not lying when they recommend—but do not made to them, but if they are going to have sufficient latitude to rec- insist—that the parties take the time to document the agreement before oncile two diverse versions of the same conflict, they need to be leaving the mediation session. The mediator is entitled to rely upon coun- given a green light to reveal some of the evidence and legal theories sel to make sure that all terms of a settlement are fully documented in that each side holds. order to bind all of the parties. If the parties and their counsel elect to Third, mediators are not lying when they predict a particular rely on a handshake, it is not the mediator’s role to stop them. response to an offer or demand. A mediator’s hunch or guess about While some advocates question the conduct of some mediators and an anticipated response or reaction to an initial offer that is just that: express concern that some bad experiences mean that all mediators a hunch or guess, expressed as opinion, not fact. When a mediator lie, that is simply untrue. Real mediators do not lie. They persuade. tells an attorney about the other side’s attitude or concerns, that is They may withhold some facts or evidence in favor of crafting a deal also not a lie. Within the confines of confidential communication, the that can be enforced without feeling the need to turn over every stone mediator’s own impression of the triggers and motivators of the par- and show all of the good, bad, and the ugly that lead the disputants ties waiting in the other room is perhaps the greatest truth an attor- into the conflict. It is in the name of peacemaking, diplomacy, and ney may obtain once each side is in separate caucus. nuance that mediators do not lie. They use whatever means are per- Consider, in the same discrimination disability case described missible within the bounds of ethical practice to aid the parties to reach above, that the plaintiff wants to make an initial demand of $2 mil- an enforceable resolution of a conflict that the parties were unable lion, although her lawyer reveals confidentially that he values this case to resolve on their own. Most mediators are ever vigilant to be hon- at something in the low to mid-six figures. Consider that the defense est brokers of lasting agreements between conflicting parties. I attorney, who has been hired through the employer’s EPLI carrier, con- fides to the mediator that there is a $1 million policy of insurance and Jan Frankel Schau is a neutral with ADR Services, specializing in mediation no excess coverage. If the mediator returns to the plaintiff and of matters arising out of tort, business, and employment.

68 Los Angeles Lawyer April 2015

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