LAWYER TO LAWYER THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION REFERRAL GUIDE2018

JUNE 2018 / $5

EARN MCLE CREDIT PLUS OPPOSITION RECOVERING TO SB 277 NAZI-LOOTED page 26 ART page 34 Indemnitor Liability page 14 Alimony Deduction Eliminated page 18

On Direct: Michael E. Meyer A Bridge page 10 to Justice

Los Angeles Superior Court Judge Mark A. Juhas and attorney Maria E. Hall present a compelling case for the use of limited scope legal assistance page 20

FEATURES 20 A Bridge to Justice BY THE HONORABLE MARK A. JUHAS AND MARIA E. HALL Limited scope representation, or “unbundling,” offers a significant alternative for clients who require affordable legal assistance with partial or specific matters

26 Health First BY DENNIS F. HERNANDEZ The passage of SB 277 to eliminate the personal belief exemption for mandatory childhood vaccination raises serious issues about an individual’s right to liberty Plus: Earn MCLE credit. MCLE Test No. 279 appears on page 29.

34 Restoring Lost Legacies BY MARK I. LABATON Although legal hurdles remain, the Holocaust Expropriated Art Recovery Act of 2016 gives victims of Nazi plunder and their heirs a better opportunity to open the historical record and achieve a measure of justice

42 Special Section 2018 Lawyer-to-Lawyer Referral Guide

Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 8 LACBA Matters 18 Tax Tips Bar Association New study shows lawyers are America’s New federal law eliminates the alimony June 2018 loneliest professionals deduction BY STAN BISSEY BY PETER M. WALZER Volume 41, No. 4

10 On Direct 50 By the Book COVER PHOTOS CREDIT: TOM KELLER Michael E. Meyer To Establish Justice for All: The Past and INTERVIEW BY DEBORAH KELLY Future of Civil Legal Aid in the United States 12 Barristers Tips REVIEWED BY DAVID A. LASH The importance of self-care in balancing life and work 52 Closing Argument BY SABA ZAFAR Coaching clients to healthier and more LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the optimal outcomes Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period - 14 Practice Tips BY PHILIP J. DAUNT AND AREZOU KOHAN icals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Determination of indemnity obligation Association membership dues. Nonmember subscriptions: under California law $38 annually; single copy price: $5 plus handling. Address changes must be submitted six weeks in advance of next BY JEREMY A. LAWRENCE issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 06.18 Visit us on the internet at www.lacba.org/lalawyer E-mail can be sent to [email protected] Follow Los Angeles Lawyer on Twitter at @LALawyerMag

EDITORIAL BOARD Chair JOHN C. KEITH Articles Coordinator SANDRA MENDELL Assistant Articles Coordinator TYNA ORREN Secretary RENA KREITENBERG Immediate Past Chair TED M. HANDEL REAL ESTATE DISPUTE CONSULTING JERROLD ABELES (PAST CHAIR) TOM K. ARA WARONZOF ASSOCIATES SCOTT BOYER Timothy R. Lowe, MAI, CRE, FRICS CHAD C. COOMBS (PAST CHAIR) THOMAS J. DALY GORDON K. ENG •economic damages •lease disputes DONNA FORD (PAST CHAIR) •fair compensation •land use disputes STUART R. FRAENKEL •property valuation •partnership interest value MICHAEL A. GEIBELSON (PAST CHAIR) •lost profits •reorganization plan feasibility SHARON GLANCZ GABRIEL G. GREEN Waronzof Associates, Incorporated 310.322.7744 T 424.285.5380 F STEVEN HECHT (PAST CHAIR) 400 Continental Boulevard, Sixth Floor [email protected] DENNIS F. HERNANDEZ El Segundo, CA 90245 www.waronzof.com JUSTIN KARCZAG MARY E. KELLY (PAST CHAIR) KATHERINE KINSEY JENNIFER W. LELAND CAROLINE SONG LLOYD PAUL S. MARKS (PAST CHAIR) COMM’R ELIZABETH MUNISOGLU CARMELA PAGAY GREGG A. RAPOPORT JACQUELINE M. REAL-SALAS (PAST CHAIR) LACEY STRACHAN THOMAS H. VIDAL

STAFF Editor-in-Chief SUSAN PETTIT Senior Editor JOHN LOWE Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA BEKAS Senior Manager MELISSA ALGAZE Administrative Coordinator MATTY JALLOW BABY

Copyright © 2018 by the Los Angeles County Bar Assoc - iation. All rights reserved. Reproduction in whole or in part without permission is pro hibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer June 2018 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

LACBA EXECUTIVE COMMITTEE President MICHAEL E. MEYER President-Elect BRIAN S. KABATECK Senior Vice President TAMILA C. JENSEN Vice President PHILIP H. LAM Assistant Vice President JESSE A. CRIPPS Assistant Vice President JO-ANN W. GRACE Assistant Vice President ANN PARK Treasurer JOHN F. HARTIGAN Immediate Past President MARGARET P. STEVENS Barristers President JEANNE NISHIMOTO Barristers President-Elect JESSICA GORDON Executive Director STANLEY S. BISSEY Chief Financial & Administrative Officer BRUCE BERRA

BOARD OF TRUSTEES KRISTIN ADRIAN HON. SHERI A. BLUEBOND SUSAN J. BOOTH RONALD F. BROT TANYA FORSHEIT JENNIFER W. LELAND MATTHEW W. MCMURTREY F. FAYE NIA BRADLEY S. PAULEY ANGELA REDDOCK DIANA K. RODGERS MARC L. SALLUS MICHAEL R. SOHIGIAN EDWIN C. SUMMERS III KENDRA THOMAS KEVIN L. VICK WILLIAM L. WINSLOW FELIX WOO AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER MARINA BAR ASSOCIATION GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION JOHN M. LANGSTON BAR ASSOCIATION THE LGBT BAR ASSOCIATION OF LOS ANGELES MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH BAY BAR ASSOCIATION SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

Los Angeles Lawyer June 2018 5 hen I set out to write the “From the Chair” col- umn, my last, as this magazine’s outgoing W Editorial Board Chair, my mind drifted back over prior columns. In my first “From the Chair,” I wrote of the sea change in recent decades in the legal profession,

which has, in the view of many, exited its golden age and entered an era of diminished prospects and greater instability. Looking over my subsequent columns, I discerned a theme: the need for us attorneys, practicing in the wake of this sea change, to find a greater sense of community with our fellow attorneys and a greater sense of meaning in the practice. Hopefully, you can see this too, in the columns in which I proposed that the State Bar help increase mobility for young California attorneys (who have a tougher road ahead than prior generations); that (especially those young) attorneys acknowledge but also look beyond their role as advocates for others and find meaning in their work product itself and their membership in the legal profession; that attorneys reconnect with the pure love of learning that led them to the profession by taking MCLE outside their practice areas; and that attorneys stand together firmly against the threats to the profession’s inde- pendence represented by partisan attacks on judges and the public tendency to punish or shame attorneys who represent unpopular clients. It is crucial for us attorneys to find meaning and connection through our work and membership in the legal profession. I am not alone in thinking those benefits may now be harder to find elsewhere. In a recent piece for New York magazine, Andrew Sullivan saw in America’s opioid epidemic “a sign of a civilization in more acute crisis than we knew, a nation overwhelmed by a warp-speed, postindustrial world” marked by “a sense of permanent economic insecurity and spiritual emptiness,” and “an accelerated waning of all the traditional American supports for a meaningful, collective life”— religion, family, communities and the local businesses that supported them and provided stable, fairly-paid work—“and their replacement with various forms of cheap distraction.” In two recent pieces for The New Yorker, Jia Tolentino connects this sense of alienation and insecurity to the gig economy (which I have also discussed in this space) and America’s deification of self-promotion and entrepreneurialism. Tolentino decries the gig economy’s “essentially cannibalistic nature” and the “contrast between [its] rhetoric (everyone is always connecting, having fun, and killing it!) and the conditions that allow it to exist (a lack of dependable employment that pays a living wage).” She also finds our love for self-promotion and entrepreneurialism unnervingly captured by Teen Boss, a magazine aimed at budding teen girl tycoons looking to “establish a brand—or make themselves into a brand—with their social media channels.” Our profession is not yet primarily a gig economy, but it seems to be moving that way, and I’ve seen countless ads for legal marketing services aimed at enhancing my “personal brand.” Maybe this just means that, even as learned professionals, we’re not immune to the forces reshaping so much else around us. So, let’s all try to connect a bit more while we can (but maybe those of you with kids should tell them to start honing their brands now). n

John Keith is the 2017-18 chair of the Los Angeles Lawyer Editorial Board. He practices business litigation with the law firm of Fenigstein & Kaufman in Century City.

6 Los Angeles Lawyer June 2018

LACBA matters BY STAN BISSEY, LOS ANGELES COUNTY BAR ASSOCIATION EXECUTIVE DIRECTOR

New Study Shows Lawyers Are America’s Loneliest Professionals

ACCORDING TO AN ARTICLE in the April Reflecting on the statistic further, and ment of a trial or a successful resolution. 2018 ABA Journal, lawyers are the loneliest as the article points out, the isolating na- These relationships—forged through good professionals in America. The article points ture of technology and information readily times and bad—and the reminder that at to research showing that lawyers ranked available online has made lawyers and the every stage of professional and personal life highest (61 percent) on the UCLA Loneli- practice of law often a solitary and isolating you are not alone are why we stay. ness Scale, which measures subjective feel- profession. That may be the case but it For over 140 years the LACBA family ings of loneliness and social isolation. doesn’t have to be the rule. has worked to help you build and sustain Lawyers, the data revealed, outranked engi- LACBA members receive cutting edge a practice through the many challenges that neers (57 percent) and research scientists CLE programming, discounts on insur - come our way. You chose a career of service (55 percent) in loneliness. ance, car rentals, office products, specialty and commitment to the law, dedicated to That the practice of law is a lonely pro- expertise, mentoring, pro bono opportuni- justice, fairness, and the realization that fession may be surprising. It certainly was ties, e-filing preferred providers, and more, what you do matters a great deal to the for me. I had often heard the same com - but, to my mind, the single and most com- lives of your clients and your peers. That is plaint for years from judicial officers as the pelling reason you should become a member why you should be a member and hopefully move from a law firm environment seem- and stay a member is the fellowship of why you have re mained. It is why, as lonely ingly full of camaraderie and collaboration friends old and new. Those who have expe- as the practice of law may sometimes be, to the bench was the hardest part of becom- rienced what you are experiencing have felt you are not alone—you are family, and ing a judicial officer. the same insecurities and savored the excite- we’ve got your back. n

8 Los Angeles Lawyer June 2018 on direct INTERVIEW BY DEBORAH KELLY

Michael E. Meyer Partner, DLA Piper

make some positive changes to the world Michigan Avenues for $1.15 per hour. I by being a lawyer. have my employee identification card in my wallet to keep me grounded. You grew up in Chicago. Why did you move to Los Angeles? My father was a lawyer What was your worst job? I never had a in Chicago, and everybody expected I bad job. I’d just throw myself into it no would go into practice with him. I want- matter what it was. ed to see if I could make it on my own. It was a hard decision; I loved my par- Lots of accolades: Named as one of the Top ents very much. 100 of all Super Lawyers in Southern Cali- fornia, LACBA Real Estate Lawyer of the Were you frightened the first time you ap- Year, and one of the 100 Most Influential peared before a judge? No, I was terrified. Lawyers in California. What’s next? I just don’t want a lifetime achievement award You’re a partner at DLA Piper, a global firm because that means I’m dead. with lawyers located in 40 countries. Who is your typical client? They are almost all Your firm provided nearly 200,000 pro tenants. bono hours in 2017. Do you have a pro bono case close to your heart? An immi- Michael E. Meyer is a real estate partner in the You’ve represented huge corporations, grant from El Salvador came here illegal- Los Angeles office of DLA Piper and the current such as City National Bank, Nestlé, and ly to escape a vicious gang. He was to be president of the Los Angeles County Bar Asso - ICM. What is one commonality these com- killed by them because they thought he ciation (LACBA). He developed the definition panies look for in their leases? They want witnessed a murder. We needed the kid of fair market rental rate. His accolades include: to make sure that they’re protected. to be able to stay. Real Estate Profes sion al of the Year (CoreNet You developed the definition of fair market Global), one of the 25 most powerful attorneys As part of a reform slate, you were elected rental rate, which is used in numerous in Los Angeles (Los Angeles Busi ness Journal), president of the Los Angeles County Bar lease transactions. What is it? It’s a full- one of the 100 most influential lawyers in Association in the first contested ballot in page definition because it’s not just a more than 30 years. What needed reform- California (Los An geles Daily Journal and San dollar amount. Francisco Daily Journal), among the 500 leading ing? The association had become inces- tuous, and everything was a secret. lawyers in the United States for five years (Law - What do you think the future of office dragon), and Best of the Best for over 20 years space is in Los Angeles? The old saying, LACBA is a voluntary bar association with (Wood ward White Inc.). In 2011, LACBA named “location, location, location” needs to approximately 15,000 members. Can it Meyer Real Estate Lawyer of the Year, as did be changed to “flexibility, flexibility, afford the pro bono projects it maintains? Woodward White Inc. in 2014. In addition to flex ibility.” Tenants sign shorter leases Our projects do amazing things. People serving as a judge pro tem in the Los Angeles with options to renew because the world need a chance, and our programs give Municipal Courts, he is also a member of the is chang ing so quickly that what they them a chance. The projects were floun- board of directors of the Jackie Robinson need today may not be what they need dering because they were running out of Foundation, the Los Angeles Police Foundation, years from now. money. and the Los Angeles Sports and Entertainment What is the biggest misconception about Commission. Hasn’t bar membership across the country your job? A lot of people think it’s just a diminished? Yes, 40 years ago, they lease—I hate that expression. A lease is a could survive because they were a prima- What is the perfect day? I feel blessed. I very complicated document. I got to like ry source of errors and omissions insur- have a great family, I love practicing law, most of the landlords I negotiated with, ance and CLE. That is no longer the and I get to do a lot of great things be- but I had to pretend that tomorrow they case. cause of the various foundations I’m on. were going to sell the building to Attila Life has been good. the Hun. The only thing that was going LACBA was dipping into its reserves before save my clients was what was written on you became president. Have you been able At first you studied social work but later those pages. to stem the tide? Yes. went to the University of Chicago Law School. Why did you want to become a What was your best job? I worked for What does LACBA do to engage young pro- lawyer? I actually thought that I could Walgreen’s on the corner of Chicago and fessionals? The association had become

10 Los Angeles Lawyer June 2018 tired and kept on doing the same old, tion and the other half to eight other their prime, and it was humbling. I was same old. We want to become more rele- charities. delusional. vant and more proactive. Do you have a favorite song? “My Girl.” What is your favorite meal and where? How? For instance, in April, at Loyola Spago, for their smoked salmon pizza. Law School, we facilitated a program If you could have dinner with just one au- called “Bridging the Gap: From Books to thor, who would it be? Michael Connel- What is your Starbucks’s order? Venti Billables.” ly—I am in love with his Harry Bosch Double Cup Sleeve with Room, with ei- character. ther dark or Pike—whichever is hottest. One of your goals upon becoming LACBA president was to embrace change. Has Which are your favorite magazines? The What are your retirement plans? None. there been a change? We’re becoming New Yorker and Vanity Fair. If just President Trump and you had a more financially solvent, and our meet- What is your favorite vacation spot? Paris. beer together, what would you ask him? ings are more productive and organized. I’d ask him to choose his words more I don’t want people to tell me what they Do you answer your e-mail while you’re carefully. think I want to hear. Don’t be afraid to away? Yes. get in my face. Tell me how we can do What do you make sure you have in your things better. What do you do on a three-day weekend? briefcase? The two current documents Go to Chicago to watch the Cubs play. I’m working on, my iPad, and my check- You said your grandfather, a hardworking book. immigrant from Minsk, taught you how to The Cubs vs. the Dodgers—who do you treat people. What was his lesson? He root for? The Dodgers. I made my deal What are the three phrases that best de- came here without speaking English and with God when he let the Cubs win the scribe you? Little boy (I still think there’s had no money. He told me to treat every - World Series in 2016. a lot of kid in me), twinkle in the eye, one with the same degree of courtesy. and irreverent. Mr. Cub—Ernie Banks—was a client, and What trait do you wish you could change in you are a director for the Jackie Robinson Who are you two favorite world leaders? yourself? I’d like to be a little bit more Foundation. Is baseball your favorite Churchill and Truman, because they patient. sport? Yes. I played at various levels and both did more with less. always thought I could hit, but that was If you were handed $10 million dollars to- because I never really faced true major What is the one thing you would like to morrow, what would you do with it? I’d league pitching. In exhibition games, I change in the world? I wish that every- give half to the Jackie Robinson Founda- faced major league pitchers way past body could become color-blind.

Los Angeles Lawyer June 2018 11 barristers tips BY SABA ZAFAR

The Importance of Self-Care in Balancing Life and Work

WE HAVE ALL BEEN GUILTY of not sleeping well, not eating well, sations will actually subside, allowing you to feel more focused not being well, and not spending our time well—except for work, and ready to take on the next task. that is. Such is the life of most attorneys. As important as our To assist with the process, there are also apps specifically work is, the better we take care of ourselves, the better we can designed for body scan meditation. Try Headspace, Smiling perform in life and work. It is especially difficult for newer attor- Mind, iMindfulness, or Mindfulness Daily. neys to find this balance when there is so much to learn, so Breathing. Too often, with the fast pace of being lawyers, we much to prove, and so much work to do. How then do we take scarf down food, barely bothering to breathe. As obvious as it care of ourselves while pursuing our careers? Different things sounds, it is important to take time to breathe throughout the work for different people. day. While some people swear by and benefit from deep breathing, One purely technical procedure that can greatly facilitate bal- others swear by the Buteyko method of breathing to create more ancing life and work is using a project man- agement software. In addition to software that the firm may use to track cases and There are many forms of meditation techniques. Body scan tasks, there is a personal project management software that can track and schedule both life and work tasks. meditation works well for high-stress careers in law. Asana is an efficient software for project management that is free, and there is also an app for it. With Asana, projects can be created by case and for each life project, including individual oxygen flow to the organs. Either way, it is crucial to pay attention tasks for each project. Moreover, a realistic deadline can be to breathing in a way that allows you to stay relaxed (as much assigned to each project. Asana will send a gentle reminder as we can under tight deadlines). when deadlines are near or when a task is overdue. The app’s Eating. The tacos many of us surely ingested for lunch this visual representation of tasks helps determine whether there is week attest that it is not always easy to eat well and fast. Between overscheduling during any week or month. Apps like Asana wondering whether the organic chicken I am buying is really are preferable to other calendars that have more limited capa- organic—since it looks just as plump as the nonorganic chicken— bilities. In working with a team, it is possible to collaborate, and whether I will actually have time to cook a healthy meal add files, and write comments for each task. Using project from it, I buy at least three types of vegetables each week that management software is a good step toward creating a better require no cooking but make great snacks. I find this to be a work/life balance. great way to absorb vitamins and fiber, as well as to complement As helpful as external devices and procedures can be to main- my otherwise questionable diet. Keep vegetables in the work taining harmony in our lives, the tried and true method involves refrigerator or take them to work every day. Just do it. Your how we process daily input within our own bodies. Transcultural doctor will be impressed at your next physical. I guarantee it. experience has validated attention to three main components. The long and the short of it is: self-care is important to a Meditation. There are many forms of meditation techniques. happy and healthy life. So, do things that make you happy. This Body scan meditation works well for high-stress careers in law. is the best form of self-care and absolutely necessary to sustain Unlike meditation aimed at miraculously clearing the mind of a long and successful career. The first question I ask myself after all thoughts, body scan meditation trains one to take the time to I wake up (even before checking my work e-mail) is: “What can notice the physical manifestation of thoughts and emotions in I do today that will make me happy?” Sometimes what will the body. Here is a quick summary: make me happy is something as simple as getting coffee at my 1. Find a quiet location and take 10 minutes to lie or sit down. neighborhood mom-and-pop café, and sometimes it’s carving 2. Take a few deep breaths. out 15 minutes to go for a walk. 3. Now, focus on each part of the body, step by step, starting Create a plan with the project management software, breathe, with the head. Notice the sensation you are feeling. Then, meditate, eat well, and do things to make yourself happy, or, in move to the face, following the same process. Repeat the pro- the words of the Sufi mystic, Rumi: “Let yourself be silently cedure throughout the entire body, spending five to 10 seconds drawn by the strange pull of what you really love. It will not on each part of your body. lead you astray.” n The point of body scan meditation is to become aware that the sensations of your body are manifestations of your thoughts Saba Zafar is the principal attorney of Playa Law Firm, APC, in Manhattan and emotions. With increased awareness, these feelings and sen- Beach, California.

12 Los Angeles Lawyer June 2018

practice tips BY JEREMY A. LAWRENCE

Determination of Indemnity Obligation Under California Law

A CRITICAL QUESTION in interpreting indemnity contracts is whether the indemnity obligation is a fault-based obligation or whether it creates a form of strict liability for the indemnitor. This issue arises most commonly in construction defect litigation but is by no means limited to that context. California courts have taken three approaches to this issue. In the first group of cases, there is a presumption that an indemnity clause applies only if the indemnitor is at fault, and the parties must include clear language if they intend for the clause to apply when the indemnitor is not at fault. In the second group of cases, the contract is applied as written (and it is typically written to sweep as broadly as possible), without any presumptions or rules of interpretation relating to the indemnitor’s fault. In the third group, which actually comprises only a single case, the court narrowly construed the entire indemnity agreement because it required the indemnitor to pay even when it was not at fault. While it is difficult to reconcile these three lines of analysis, all of the cases reflect the courts’ skepticism about interpreting indemnity clauses literally without taking into account the com- mercial context of the parties’ relationship. However, this judi- cial skepticism has not yet created a concrete rule of general applicability. Ultimately, the courts will need to provide greater clarity to allow contract drafters to ensure their contractual language reflects their mutual intent and to help parties satisfy contractual obligations without resorting to expensive and un - certain litigation. Indemnitor Fault Required The clearest application of the rule requiring fault by the indem- nitor occurred around 20 years ago in Heppler v. J.M. Peters Company.1 The court stated that given the “commercial context” of the parties’ indemnity agreements, “indemnitor fault was a 4) the indemnitees were the project developers, who are better prerequisite for indemnity.”2 The agreements at issue contained able to insure against the underlying liabilities, and who (un - broadly worded indemnity clauses. One version of the clause like the indemnitors/subcontractors) were strictly liable for con- required the construction subcontractor to indemnify the project struction defects.4 (This final point no longer applies as broadly developer for “‘damage to property arising out of or in connection following Jimenez v. Superior Court, which held that manufac- with Subcontractor’s…performance of the Work’” (as well as turers of products used in construction projects can be held for “‘any breach or default’” by the subcontractor) and the other strictly liable for product defects that cause harm to other parts version required another subcontractor to indemnify the developer of the project.)5 for damage “‘growing out of the execution of the work….’”2 In light of these key facts, the court said that in order to The court relied on a number of facts to distinguish an earlier render the contracts’ terms “reasonable and capable of being decision, Continental Heller Corporation v. Amtech Mechanical put into effect,” the subcontractors’ obligation to indemnify the Services, and concluded that the indemnity clauses were triggered developer for claims “arising out of” and “growing out of” their only when the indemnitors (the subcontractors) were negligent.3 work applied only if they performed that work negligently.6 These facts included: 1) the indemnity agreements were contained In addition to the fact-specific aspects of its analysis, the court in preprinted form contracts; 2) the indemnitors were subcon- also relied on a few sweeping statements about California indem- tractors who had limited scopes of work on a residential con- struction project (such as grading or roofing) and did not have Jeremy A. Lawrence is a litigation attorney in the San Francisco office of complete control over the final product; 3) the indemnitors might Munger Tolles & Olson LLP whose practice includes a focus on insurance and

RICHARD EWING suffer “‘ruinous liability’” from their indemnity obligations; and indemnity law.

14 Los Angeles Lawyer June 2018 nity law. The court endorsed the view that needed to be at fault for its indemnity Superior Court,23 is sometimes cited to “[i]ndemnity provisions are to be strictly obligations to apply.13 The court held that support the notion that indemnitor fault construed against the indemnitee” and, on summary adjudication regarding the indem- is required, but the case does not actually the basis of this expansive rule of inter- nitor’s duty to defend was premature support that conclusion.24 The court stated pretation (which comes up from time to because “[n]o determination has yet been that the indemnitees were required “to time in the cases, though it is not univer- made as to whether the [indemnitors] were prove the amount that has been paid by sally accepted), the court suggested that negligent in the performance of their work, virtue of injury caused by [the indemnitor’s] the parties “would have had to use specific, giving rise to a duty to indemnify and a fault.”25 However, the court was addressing unequivocal contractual language” in order related duty to defend.”14 (The court’s equitable indemnity, not contractual indem- for an indemnity provision to “apply re - analysis of the duty to defend has since nity, so this comment should have no bear- gardless of the subcontractor’s negligence… been superseded by the Supreme Court’s ing on cases involving contractual indem- .”7 The court could not cite any authority decision in Crawford.)15 While one might nity.26 As one court noted, Gouvis is “pure specifically on point; instead, it relied on assume that this conclusion was based on dictum” to the extent that it could be read cases addressing the interpretation of in - an indemnification provision that expressly to suggest that fault is required to trigger demnity contracts with respect to the required indemnitor fault, in fact the contractual indemnification obligations in indemnitee’s fault.8 This is a very different clauses provided broadly that the indem- all cases.27 issue that has a long lineage of support in nitors (various subcontractors on a con- Finally, various courts have given effect California law.9 Heppler appears to be the struction project) agreed to indemnify the to contractual provisions clearly requiring first decision to articulate this rule. Based project’s developer for claims “of any indemnitor fault as a trigger for indemni- in part on its newly articulated “unequiv- nature or kind arising out of or in any fication. For example, in Peter Culley & ocal” statement rule, the court held that way connected with [the indemnitors’] per- Associates v. Superior Court, the indem- the parties’ contracts did not contain the formance” of their subcontracts.16 The nification clause required the indemnitor requisite clear statement providing that court offered a single explanation for why to cover losses “‘resulting from [its] negli- the indemnitors could be held strictly liable such an expansive clause was triggered gent performance of services provided’” to for indemnification.10 only when the indemnitors were negli- the indemnitee.28 In UDC-Universal Devel - gent—it was “unclear” whether the indem- opment, L.P. v. CH2M Hill, the agreement Crawford Case nitors (who were subcontractors) should required the indemnitor to cover losses In the most recent California Supreme indemnify the developer for claims in which that “‘arise out of or are in any way con- Court case addressing the fault of contrac- the developer was strictly liable but the nected with any negligent act or omission tual indemnitors, Crawford v. Weather subcontractors were not.17 In other words, by’” the indemnitor.29 Although the issue Shield Manufacturing Inc., the court wrote: the court was simply raising the question was not disputed in those cases (likely [I]t has been said that if one seeks, of indemnitor fault without deciding it.18 because of the clauses’ clarity), this lan- in a noninsurance agreement, to be (Indeed, the Heppler court did not cite guage seems to clearly require indemnitor indemnified for his or her own active Regan Roofing as precedent on this issue.) negligence as a prerequisite for indemni- negligence, or regardless of the in - Following Heppler, the court in Baldwin fication and provides a good model for demnitor’s fault—protections be - Builders v. Coast Plastering Corporation parties looking to draft a clause that unam- yond those afforded by the doctrines stated that “an indemnitor/subcontractor biguously requires the indemnitor to be of implied or equitable indemn- generally will not be liable or have a duty at fault. ity—language on the point must be to defend its general contractor pursuant Fault Not Required particularly clear and explicit, and to the terms of an indemnity agreement will be construed strictly against the unless it was negligent in performing its The opposite position—that an indemnitor indemnitee.11 work under the subcontract.”19 The court does not necessarily need to be at fault to This assertion was dictum, as the court concluded that the parties’ contract did be held liable—was explained most com- did not examine whether or not the lan- not include “unequivocal language” requir- prehensively in Continental Heller.30 The guage in the parties’ indemnity agreement ing the indemnitors to indemnify “in the plaintiff was a general contractor that over- required the indemnitor to be at fault (the absence of their fault or negligence,” even saw the expansion of a meat packing plant. trial court had ruled that the agreement though the contract required the indemn- After a valve in the plant’s refrigeration did require a showing of indemnitor fault, itors to cover any claims “arising out of system caused an explosion, the plaintiff and the indemnitor did not appeal that acts or omissions [of the indemnitors] in was sued, and sought indemnification from order12). Nonetheless, the court’s endorse- any way connected with the performance the subcontractor that had installed the ment of a “clear statement” rule should of the subcontract….”20 In light of the system.31 The subcontract’s indemnification be influential as the issue comes up in the presumption identified in Heppler, the clause required the subcontractor to indem- future, particularly because it is supported court concluded that the indemnification nify the general contractor for loss that by the decision in Heppler. provision could be enforced only if the “arises out of or is in any way connected Other appellate courts have pointed in indemnitors were at fault.21 The decision with the performance of work under this the same direction but offered less reason- is thus a faithful application of Heppler, Subcontract.”32 The clause added that the ing in support of their conclusions. Along though, technically, the court was not indemnification obligation applied “to any with Crawford, these cases suggest that deciding the scope of the indemnity oblig- acts or omissions, willful misconduct or the presumption requiring fault by the ation. Instead, it was addressing the rea- negligent conduct, whether active or pas- indemnitor may be gaining acceptance in sonableness of the attorneys’ fees the puta- sive, on the part of the Subcontractor.”33 the courts. Several years prior to Heppler, tive indemnitors incurred to prove that The trial court found that although the in Regan Roofing Company v. Superior they were not negligent and thus had no subcontractor was not negligent, it owed Court, the court raised, but did not defin- indemnification obligation.22 a duty to indemnify the contractor for itively decide, whether the indemnitor Another case, Gouvis Engineering v. losses arising from its work.34 The Second

Los Angeles Lawyer June 2018 15 District Court of Appeal agreed, holding watered-down version of the “specific, repeated in the same way as the long-stand- that the general contractor’s “entitlement unequivocal contractual language” rule ing rules about indemnitee fault. It is also to indemnity does not depend on a showing stated in Heppler. The “some expression” curious that courts often purport to exam- [that the subcontractor-indemnitor] was test can presumably be satisfied by a broad ine whether the contract language is “clear” at fault in performing its work on the indemnity clause that does not mention while relying heavily on notions of “com- refrigeration system.”35 The court empha- fault (such as the clause covering claims mercial context” and “reasonableness” sized a number of points that supported relating to “all work” by the indemnitor), rather than express contractual language. its conclusion: 1) the general canons of as long as the result is reasonable in light The Heppler rule that indemnitors are construction that require contracts to be of the commercial context. not liable without fault can also be criti- interpreted in accordance with their plain Another Second District case, Morlin cized on the ground that it tends to blur meaning; 2) the allocation of risk was Asset Management LP v. Murachanian, the distinction between express contractual “commercially reasonable” because the suggests yet another line of interpretation: indemnity and implied equitable indemnity. subcontractor was in a better position than when an indemnity clause does not require Equitable indemnity is available only when the general contractor to avoid risks caused indemnitor negligence or fault, the entire the indemnitor is at fault (or at least is by its own work (notably, it was the sub- indemnity clause should be read strictly more culpable than the indemnitee).50 If contractor who selected and installed the in favor of the indemnitor.44 the default rule for interpreting contractual valve that failed);36 3) the parties were In Morlin, the indemnitees were the indemnities requires indemnitors to be at “large, sophisticated construction enter- owner and manager of a commercial build- fault, express indemnity clauses have rel- prises”; and 4) the clause was not un - ing who were sued by a janitorial worker atively little significance. For potential conscionable as it did not involve a “small- who had been injured in the building’s indemnitors, this is obviously a good thing time subcontractor being saddled with common area while cleaning one of the because when courts require a showing of ruinous liability for the mere privilege tenant’s units.45 The indemnitees sought fault on the indemnitor’s part, the indem- of installing a valve in a meat packing indemnification from that tenant under a nitor will be in a better position to obtain plant.”37 The court accordingly held the clause that required the tenant to cover insurance coverage for its liabilities to the subcontractor liable for indemnification “‘any and all’” claims “‘arising out of, indemnitee.51 regardless of its own fault in causing the involving or in connection with, the use Reviewing the mixed holdings, one explosion. and/or occupancy of the’” unit.46 The court could reasonably ask whether the results agreed with the indemnitees that, but for are driven more by concerns about impos- Centex Case the tenant’s hiring of a janitorial service to ing heavy liability on less affluent defen- Three years after Continental Heller, the clean its unit, the worker would not have dants (such as construction subcontrac- Fourth District Court of Appeal in Centex been injured.47 Nevertheless, the court held tors) than about faithful application of Golden Construction Company v. Dale that the accident “did not arise out of the clear contract language. Perhaps one can Tile Company38 adopted the same rule. tenant’s use of the” unit for purposes of argue that these holdings should be limited In Centex, the contract at issue provided the indemnification clause because the link to disputes between general contractors that the work of the indemnitor (a tile between the tenant’s use of the unit was and subcontractors in light of the dynamics subcontractor) was done “exclusively” at “too remote” from the accident, which oc - of that commercial relationship.52 Since the indemnitor’s own risk, and the indem- curred in a part of the building over which Contin ental Heller and Centex, each of nitor agreed to indemnify the indemnitee it had no control.48 The court reached this which rejected a “clear statement” rule, (the general contractor) “with respect to conclusion based in part on a narrow con- involved disputes between a general con- all work which is covered by or incidental struction of the indemnity clause that was tractor and subcontractor, it would be hard to this subcontract.”39 Under that language, informed by Crawford’s dictum that when to say that a general contractor-subcon- the court concluded that the clause did an indemnity clause purports to apply tractor relationship is the decisive factor. not require the indemnitee to prove that “‘regardless of the indemnitor’s fault…lan- Moreover, indemnity clauses often appear the indemnitor was negligent in order to guage on the point must be particularly in other contexts in which the indemnitee recover under the contract.40 The court clear and explicit, and will be construed may have greater bargaining power than emphasized that this conclusion was “con- strictly against the indemnitee.’”49 The the indemnitor, particularly when the in - sistent with the particular commercial set- court thus appears to have extended Craw - demnitor provides unique goods or services ting in which it was executed.”41 The pro- ford’s strict-construction rule to apply to that are not easily substituted (in licensing ject was a single commercial building rather an entire indemnity clause, not simply to contracts for highly specialized technology than a large residential housing project as the portion of the clause purporting to products, for example). In addition, Morlin, in Heppler, which meant both that the require an indemnitor to cover losses which which involved a commercial landlord- indemnitee was not subject to strict liability it did not negligently cause. tenant relationship, did not try to distin- (as the indemnitee-developer was in guish Crawford’s strict-construction rule More Questions Heppler) and that the indemnitor-subcon- on the ground that it applies only in con- tractor had greater control “over [its] own Taken as a whole, these three groups of struction contracts. work and the impact of other subcontrac- cases raise more questions than they an - Until courts provide further guidance tors on it.”42 Curiously, the court quoted swer. Is there a general rule requiring that on the issue, litigants will be left guessing Heppler for the proposition that courts indemnification clauses clearly state wheth- whether their obligation to indemnify “any “require some expression in the agreement er they apply regardless of the indemnitor’s and all claims” actually means that they which indicates that ‘the indemnitor’s con- fault? Crawford suggests that there is, and have to indemnify “any and all claims, duct or fault is of no consequence in deter- no case has clearly rejected that proposi- but only if the indemnitor was at fault.” mining whether the indemnity obligation tion. It seems odd, though, that such a sig- Contract drafters will have to fight over is triggered.’”43 However, a “some expres- nificant rule first appeared less than 20 whether the indemnitor’s obligations will sion” rule seems to be a significantly years ago and has not been continuously apply “regardless of the indemnitor’s fault”

16 Los Angeles Lawyer June 2018 or “only if the indemnitor is at fault”— had been made that such a defense existed notwith- Heppler emphasized these considerations in the course and if they are not able to reach agreement standing fault. We did not suggest that an agreement of distinguishing Continental Heller on the question which required indemnity from a faultless indemnitor of indemnitor fault, which suggests that these consid- on the language, they will probably just was in any manner improper or unusual.” Centex erations are relevant to determining whether the indem- leave the contract silent on the issue and Golden Constr. Co. v. Dale Tile Co., 78 Cal. App. nitor must be at fault. let the litigators sort it out. Perhaps most 4th 992, 997 n.1 (2000). 38 Centex Golden Constr. Co. v. Dale Tile Co., 78 troublingly of all, indemnitors on tighter 19 Baldwin Builders v. Coast Plastering Corp., 125 Cal. App. 4th 992 (2000). budgets—who are most likely to benefit Cal. App. 4th 1339, 1347 (2005). 39 Id. at 995. 20 Id. at 1342, 1347. 40 Id. at 997-98. from a “clear statement” or “strict con- 21 Id. at 1347. 41 Id. at 998. struction” rule that limits their obliga- 22 Id. at 1347-48. 42 Id. at 999. tions—are at a disadvantage if they fail to 23 Gouvis Eng’g v. Superior Ct., 37 Cal. App. 4th 642 43 Id. at 998 (quoting Heppler v. J.M. Peters Co., 73 hire knowledgeable counsel to advise them (1995). Cal. App. 4th, 1265, 1280 (1999)). that their promise to pay “any and all” 24 E.g., Continental Heller Corp. v. Amtech Mech. 44 Morlin Asset Mgmt. LP v. Murachanian, 2 Cal. losses might not actually require them to Serv, Inc, 53 Cal. App. 4th 500, 505 (1997) (noting App. 5th 184 (2016). one of the parties relied on Gouvis for this proposi- 45 Id. at 187. pay anything. Until these questions are tion). 46 Id. at 188 (italics omitted). cleared up by the courts, it will be difficult 25 Gouvis, 37 Cal. App. 4th at 651. 47 Id. at 193. to predict how a particular clause will be 26 Id. at 648 n.3. 48 Id. interpreted. n 27 Continental Heller, 53 Cal. App. 4th at 505. 49 Id. at 191 (quoting Crawford v. Weather Shield 28 Peter Culley & Assocs. v. Superior Ct., 10 Cal. Mfg. Inc., 44 Cal. 4th 550, 552 (2008)). The court App. 4th 1484, 1488 (1992). also emphasized that its holding was consistent with 1 Heppler v. J.M. Peters Co., 73 Cal. App. 4th 1265 29 UDC-Universal Development, L.P. v. CH2M Hill, prior holdings involving tenants’ indemnification of (1999). 181 Cal. App. 4th 10, 19 (2010). owners/managers. Id. 2 Id. at 1277. 30 Continental Heller, 53 Cal. App. 4th at 505-07. 50 See, e.g., Bailey v. Safeway, Inc., 199 Cal. App. 4th 3 Continental Heller Corp. v. Amtech Mech. Serv, 31 Id. at 503. 206, 215 (2011) (defendant found not to be at fault Inc., 53 Cal. App. 4th 500 (1997). 32 Id. at 505 (italics omitted). since the defendant had no equitable indemnity oblig- 4 Heppler, 73 Cal. App. 4th at 1277-81 (quoting 33 Id. (italics omitted). ations to at-fault co-defendant). Continental Heller, 53 Cal. App. 4th at 507). Cur i - 34 Id. at 503. 51 See, e.g., Val’s Painting & Drywall, Inc. v. Allstate ously, the court relegated to a footnote a key ad - 35 Id. at 505. Ins. Co., 53 Cal. App. 3d 576, 584 (1975) (contractual mission by the indemnitees’ counsel that “negligence 36 Presumably the subcontractor could have asserted liability exclusion in general liability insurance policy was an element his clients were required to prove….” a claim against the manufacturer of the valve if the did not prevent indemnitor from obtaining defense Heppler, 73 Cal. App. 4th at 1281 n.9. The court’s valve was the underlying cause of the accident. coverage where indemnitee sought both contractual entire anal ysis is arguably dictum in light of that 37 Id. at 506-07. The court discussed some of these and equitable indemnification). concession. points in connection with its analysis of whether the 52 See generally CIV. CODE §2782(c) (establishing spe- 5 Jimenez v. Superior Ct., 29 Cal. 4th 473, 481 (2002). subcontractor’s conduct needed to be the proximate cific rules governing indemnity provisions in construc- 6 Heppler, 73 Cal. App. 4th at 1277-78 (citing CIV. cause in order to trigger indemnification; however, tion contracts). CODE §1643). 7 Id. at 1278. 8 Id. (citing Goldman v. Ecco-Phoenix Elec. Corp., 62 Cal. 2d 40, 44 (1964); Continental Heller, 53 Cal. App. 4th at 505; Smoketree-Lake Murray, Ltd. v. Mills Concrete Constr. Co., 234 Cal. App. 3d 1724, 1737 (1991)). 9 See, e.g., Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal. 3d 622, 628 (1975) (noting that where “an indemnity clause does not address itself to the issue of an indemnitee’s negligence,” it “may be construed to provide indemnity for a loss resulting in part from an indemnitee’s passive negligence” but “will not be interpreted to provide indemnity if an indemnitee has been actively negligent”). 10 Heppler, 73 Cal. App. 4th at 1278. 11 Crawford v. Weather Shield Mfg. Inc., 44 Cal. 4th 541, 552 (2008) (citing E.L. White, Inc. v. City of Huntington Beach, 21 Cal. 3d 497, 507 (1978); Rossmoor, 13 Cal. 3d at 628; Goldman, 62 Cal. 2d at 44; Centex Golden Constr. Co. v. Dale Tile Co., 78 Cal. App. 4th 992, 998 (2000); Heppler, 73 Cal. App. 4th at 1278). 12 Crawford, 44 Cal. 4th at 550; see also id. at 560, 561 n.9. 13 Regan Roofing Co. v. Superior Ct., 24 Cal. App. 4th 425, 436 (1994). 14 Id. 15 Crawford, 44 Cal. 4th at 565. 16 Regan Roofing, 24 Cal. App. 4th at 430 (italics omitted). 17 Id. at 436-37. 18 Six years later, a panel from the division that decided Regan Roofing (including the justice who authored the decision) offered the following clarification: “In Regan Roofing we merely held that it was premature to decide whether a subcontractor could be required to contribute to the defense of a claim before either its fault had been established or any determination

Los Angeles Lawyer June 2018 17 tax tips BY PETER M. WALZER

New Federal Law Eliminates the Alimony Deduction

THE TAX CUTS AND JOBS ACT1 has a major impact on tax rates is over $41,000 per month ($500,000 annually), including any and deductions, but it also has a significant effect on separating spousal support, he or she is going to be in the same tax bracket and divorcing spouses. This act repeals Internal Revenue Code as the payor, so the alimony tax deduction simply shifts the tax Section 71 and related sections, which defined alimony and from the payor to the payee. For these high earners, there may allowed an above-the-line tax deduction to the payor spouse be no benefit to the deduction. On the other hand, when there is and requires the receiving spouse to declare this as income on his a differential between the payor’s higher tax bracket and the or her tax return. This provision of the new act becomes effective payee’s lower tax bracket, there is a tax savings, and in some as to “(1) any divorce or separation instrument (as defined in cases it is significant. section 71(b)(2) of the Internal Revenue Code of 1986 as in effect The software used by family lawyers to determine temporary before the date of the enactment of this Act) executed after spousal support5 (and often permanent spousal support6), shows December 31, 2018, and (2) any divorce or separation instrument (as so defined) exe- cuted on or before such date and modified after such date if the modification expressly It is likely that some divorcing spouses will accelerate their provides that the amendments made by this section apply to such modification.”2 This means that agreements and orders made divorces so they can enter a judgment before the end of this after January 1, 2019, will be affected by the new law. Until then, alimony can still be deductible to the payor and includible in year to be able to deduct spousal support. the recipient’s income. If a pre-2019 order or agreement is modified after January 1, 2019, it will be deductible to the payor and includible as income the tax savings and in “recommending” an amount of spousal to the payee as long as the post January 1, 2019, order or agreement support it divides the tax savings between the parties. Many expressly states that it is deductible to the payor and includible couples benefited from the savings. With the tax savings, payors as income to the payee. of spousal support could pay more support (than if there was It was not known until virtually a couple of days before the no deduction at all). Consequently, there was more money Tax Cuts and Jobs Act was signed that there would be a one- available to the family than there will be after January 1, 2019, year period before this part of the act would be effective. Before when the alimony deduction is eliminated. practitioners in the field knew there would be delay in the elim- Support software is one of the essential tools of family law ination of the alimony deduction, they were advising their clients practice. In order to calculate spousal support, the support to obtain a judgment of dissolution of marriage by the end of software is programmed with an algorithm that calculates the last year to take advantage of the alimony tax deduction. Now, tax savings for the alimony deduction. It then recalculates the couples have the rest of this year to obtain a judgment of disso- net income available for support and repeats this process again lution of marriage or legal separation that will allow them to and again until an internal stasis is reached. The algorithm take advantage of the alimony deduction. It is likely that some could be turned off by hitting the “B” key on a computer key- divorcing spouses will accelerate their divorces so they can enter board. The spousal support number is lower without the algo- a judgment before the end of this year to be able to deduct rithm engaged. Some attorneys (and maybe some judge and spousal support on their tax returns and obtain the corresponding mediators) might take the average of the “B” key output and tax benefits. the temporary spousal support guideline output to arrive at a Spousal support, however, is not going away. It is a fundamental settlement number for permanent spousal support. Some in the element of any divorce when there is a disparity of income. For industry call this algorithm “the bump.” The case of In re marriages less than 10 years long, the duration of spousal support Marriage of Schulze7 makes it clear that the guideline cannot typically is one-half the length of the marriage.3 For marriages be used to determine permanent spousal support, and it has a of more than 10 years, there is no presumption with regard to scathing attack on the software, calling the manner in which it duration. A court must determine how long spousal support is calculates spousal support an “Alice in Wonderland…hybrid needed and justify any reductions (step-downs) in the amount of spousal support.4 Courts are reluctant to terminate jurisdiction Peter M. Walzer is the founding partner of the Southern California law firm over spousal support in marriages of more than 10 years long. Walzer Melcher LLP, a practice focused exclusively on family law. He also is Roughly speaking, if the receiving spouse’s net taxable income president-elect of the American Academy of Matrimonial Lawyers.

18 Los Angeles Lawyer June 2018 of quantum physics and Zen philosophy… ily support beginning in 2019. reminiscent of an attempt to pin down an Another quirk relating to the tax de - electron or the image of a snake eating its ductibility of alimony that will be elim - own tail.” Soon, this method of recalcu- inated are the recapture rules.13 The draft - lating spousal support to maximize the ers of the laws allowing for de ductibility benefits of deductibility will be a relic of of alimony wanted to prevent parties to family law history. a divorce from disguising a property set- tlement as alimony to obtain a significant County Guidelines tax deduction. The rules were arcane at The spousal support calculation built into best and trapped many an un wary party the software applies Santa Clara, Alameda, to a divorce, not to mention the attorneys Marin, Yolo, Humboldt, or Kings County that represented them. Es sentially, if the guidelines depending on which county the order for alimony re duced in amount (i.e., case resides. The Santa Clara County guide- were stepped down) too much in the first line,8 used by the Los Angeles County three years that spousal support was paid, Superior Court, states as follows: the deduction would be disallowed and Temporary spousal or partner sup- recaptur ed later. No one should miss this port is generally computed by taking arcane provision of the Internal Revenue 40% of the net income of the payor, Code, except the family law test examiners minus 50% of the net income of the who loved to stump the so-called experts. payee, adjusted for tax consequences. According to Mother Jones,14 elimi- If there is child support, temporary nating the deduction for alimony will spousal or partner support is calcu- save the government less than $1 billion lated on net income not allocated to a year. That is very little compared with child support and/or child-related the enormity of this $1 trillion tax bill. expenses. The temporary spousal If that is so, why did Congress seek to support calculations apply these terminate the alimony tax deduction? assumptions.9 Mother Jones speculates that some repub- Because this formula was developed licans saw this deduction as a divorce when spousal support was tax deductible, subsidy and that it encouraged people to leaders in the field believe it will have to get a divorce. Re gardless of the politics, be adjusted to reduce the 40 percent of the because of the loss of the alimony deduc- payor’s income now that the payor will tion, it will be more costly for many peo- have less net income available to pay ple to live after divorce. Divorce was spousal support under the new tax law. never good financial planning. Now it is Changes are anticipated to be coming to even worse because there will be less local court guidelines soon. In the mean- money to support a divided family. n time, practitioners should be prepared to argue that the guideline does not any longer 1 An Act to Provide for Reconciliation Pursuant to represent a fair allocation of the financial Titles II and V of the Concurrent Resolution on the resources between the payor and the payee. Budget for Fiscal Year 2018, Pub. L. No: 115-97, 131 available at The rule in Los Angeles states that the court Stat. 2054 (2017), https://www.congress .gov/bill/115th-congress/house-bill/1/text. may use the Santa Clara County guideline, 2 Id. §11051(c). not that it must apply the guideline. 3 FAM. CODE §4320(l). Another consequence of the loss of 4 In re Marriage of Richmond, 105 Cal. App. 3d 352 alimony deductibility will be that there (1980). 5 is going to be no need for family support Dissomaster™, available at https://childsupportca .com/the-dissomaster-program; Family Law Soft ware, 10 orders (also known as Lester Agree ments). available at http://www.familylawsoftware.com Family support is a combination of undif- /fls_test/ca/index.html (both last viewed Apr. 25, ferentiated child support and spousal sup- 2018). port.11 The benefit was that the entirety 6 In re Marriage of Zywiciel, 83 Cal. App. 4th 1078 of the combination of the support was (2000) (the court cannot use temporary spousal support guidelines in setting permanent spousal support). deductible (and thereby taxable to the recip- 7 In re Marriage of Schulze, 60 Cal. App. 4th 519 ient). In some cases the differential in the (1997). tax brackets of the payor and the payee 8 L.A. COUNTY SUPER. CT. FAM. DIV. R. 5.10. resulted in more money to take care of the 9 SANTA CLARA SUPER. CT. FAM. L.R. 3.C. family. The caveat of drafting these orders 10 C.I.R. v. Lester, 366 U.S. 299 (1961). 11 FAM. CODE §92. was that the order for family support could 12 I.R.C. §71(c), Treas. Reg. §1.71-1T, Q 16. not change in amount when a child reached 13 I.R.C. §71(f). the age of majority, graduated from high 14 Kevin Drum, The Peculiar Story of the Republican school, or graduated from college.12 These War on Alimony, MOTHER JONES, Nov. 4, 2017, avail- orders were difficult to draft properly. able at http://www.motherjones.com/kevin-drum These orders are essentially a thing of the /2017/11/the-peculiar-story-of-the-republican-war-on -alimony. past—there will be no deductions for fam-

Los Angeles Lawyer June 2018 19 BY THE HON. MARK A. JUHAS AND MARIA E. HALL

A BRIDGE TO JUSTICE MANY CALIFORNIA BAR ASSOCIATIONS, INCLUDING LACBA, HAVE ESTABLISHED LAWYER REFERRAL SERVICE PANELS FOCUSING ON LIMITED SCOPE REPRESENTATION

substantial numbers In addition to Department 94, there is usually a sea EVERY DAY, of litigants in Los of nervous, tense faces at the window that accepts Angeles courtrooms represent themselves. For example, restraining order applications. Also, in the family law in Department 94 (more commonly known as “eviction courts, a young mother may be trying to cross-examine court”) in the Stanley Mosk Courthouse in downtown an expert witness about the effects of alleged child abuse Los Angeles, dozens of unrepresented tenants nervously by her soon-to-be ex-husband, or a father may be await their turn for what promises to be a rough and attempting to establish the proper amount of child sup- confusing ride. In contrast, many (though not all) land- port he should receive from the reluctant other parent. lords have an attorney, or at least a practiced property These scenarios are played out every day in courthouses manager, by their side. Although tenants with little or all over Southern California. The stakes for these pro no income may be eligible for free legal aid lawyers, se litigants, for their future, and for their children are and others are able to hire lawyers at market rates, the extraordinarily high. vast majority will go it alone. One wrong move—a Some resources for these litigants do exist. For ex - blown deadline, a misunderstanding, some misplaced ample, on the fourth floor at Stanley Mosk, near the paperwork, or bad Internet advice—could result in an small claims department, the court’s self-help center eviction judgment and, ultimately, homelessness for the is perpetually abuzz with activity. The self-help center unrepresented tenant. provides information on family law matters, conser-

The Honorable Mark A. Juhas is a family law judge with the Los Angeles Superior Court. He is also the chair of the California Commission on Access to Justice. Maria E. Hall is a Beverly Hills attorney and attorney development director of the Los Angeles

Incubator Consortium. She serves as copresident of the Los Angeles chapter of the National Lawyers Guild and as vice president of KEN CORRAL the board of the Mexican American Bar Foundation.

20 Los Angeles Lawyer June 2018 vatorship, evictions, and restraining orders. Across the street, Californians need the opportunity to get help from an attorney in the Los Angeles County Law Library, patrons from all socioe- and should not simply fend for themselves in a court of law. conomic backgrounds forage through law books, attend infor- Recently, the Conference of Chief Justices and Conference of mational classes, perform computerized research, prepare State Court Administrators acknowledged that “the promise of appeals, and draft all sorts of motions and pleadings based on equal justice is not realized for individuals and families who have samples they can find with the help of the law librarians. Far no meaningful access to the justice system.”4 The conference too often, the law library or the court’s self-help center and resolved to support the “aspirational goal of 100% access to website are the only places a litigant of modest means can turn effective assistance for essential civil legal needs.”5 The resolution for legal information. noted that this goal could only be met through assuring the pro- However, what of the old adage that the person who represents vision of a continuum of meaningful and appropriate services. himself or herself has a fool for a client? Why are so many people Some litigants, for a number of reasons, are capable of handling defying common wisdom and going to court without an attorney their legal needs with either little or no guidance from an attorney. by their side? Why have the lawyers that used to fill the halls of In Los Angeles, self-help centers are available in or near the Los Angeles courthouses disappeared? It would seem that because courts to give people information and assistance with forms in there are plenty of attorneys in Los Angeles, finding representation family law, restraining orders, eviction, and a few other limited should be a simple task. Paradoxically, it is true that there are areas. While basic information is available, it tends to be general, more lawyers than ever in California. Why, then, the disconnect and not tailored to the individual’s particular situation. Even between attorneys and the clients that so desperately need their then, many litigants are unable to handle their matters without services? It is certainly not a result of lack of work or too few an attorney present every step of the way, either because the clients. Rather, it is a symptom of a legal marketplace that has issues are too complicated, or the litigant’s knowledge and skill undergone a radical change over the last few years. Many new set call for more detailed guidance. law graduates, for example, are unable to secure a job at a law Indeed, much ink has been spilled over the past several years firm—especially those who have recently passed the bar exami- identifying the justice gap problem and expressing various ways nation. Thus, to make their student loan payments, they accept to solve it. For example, there are at least five separate legal incu- jobs that underutilize their law licenses, such as document review bator programs in California that collaborate with law schools or performing low-paid hourly work for other attorneys. Some and legal aid organizations to help recent law school graduates even find themselves employed outside of the legal profession, navigate the waters of establishing their own solo practices, with which is surely not their first choice. Even those lawyers who an emphasis on solving the problems of low- and middle-income have practiced for a while are not immune to drastic professional folks.6 Last year, the legislature added an additional $5 million change in the form of consolidation, downsizing, outsourcing, dollars to the Equal Access Fund, giving legal aid a much-needed and other shifts in the legal landscape.1 economic boost. While these and other efforts show promise toward moving society closer to full access, none of them standing Demand for Low-Cost Legal Services alone will bridge the justice gap. Of critical importance is the fact that over the past decade, the On January 1, 2010, the then-chief justices of New Hampshire demand for low-cost legal services has spiked. This is a result of and California opined in The New York Times that “unbundling,” numerous factors, including severe cuts to legal aid funding. At or limited scope representation, was a critical part of connecting the same time, online legal technology companies are selling litigants with the attorneys they need to assist them with their legal document services directly to consumers at a price that legal problems.7 The limited scope concept is simple. An individual appear to be less costly than hiring an attorney in the short run. can employ an attorney for assistance in a legal dispute for as Yet, by their own admission, these services “are not a substitute much or as little legal help as the client desires. For example, in for the advice of an attorney.”2 They urge clients to consult an California, a client can retain an attorney to represent him or attorney for legal advice on a specific or complex matter. It is her in a single court hearing, or for a specific issue in a case, or not uncommon for consumers then to be referred back to a state for a specific out-of-court event, or to draft pleadings. bar or legal aid office to find information on obtaining “free or The procedures for limited scope representations are set forth low cost representation.”3 in Rule 5.425 of the California Rules of Court for family law The recent weak economy also knocked many for a financial cases, and Rules 3.35 through 3.37 for civil cases. The process is loop that has been difficult to overcome, even now that the econ- intended to be relatively simple and straightforward, with court omy is improving. In many cases, lawyers may have priced them- filings largely form-based, with (in many cases) mandatory forms selves out of reach for most Californians. Too few litigants can promulgated by the Judicial Council. With these tools, limited afford the typical up-front retainer and then bear the uncertain scope representation presents another option for individuals who cost of unpredictable litigation. are able and willing to handle some of the work on their case by Despite the seemingly ample supply of willing lawyers, many themselves but would appreciate having a lawyer’s perspective litigants cannot find affordable representation. The chasm that and counsel at critical junctures. exists between lawyers wanting to serve and Californians needing Initial Distrust legal services is often referred to as the “justice gap.” There is no real dispute that the disconnect between service providers and At first, the limited scope concept was met with suspicion: would customers exists or that it must be confronted before we can it be possible for attorneys to meet fiduciary duties to clients and have any meaningful impact on bridging the “justice gap.” We, duties of candor to the courts if they did not control the trajectory as legal professionals, must find ways to connect people to afford- of their cases? After an exhaustive analysis of state, local, and able legal services, even if it means offering those services a la ABA ethics opinions, as well as ABA Model Rules and interviews carte, or on a limited scope basis, rather than taking on traditional, with real-life practitioners, ABA’s Modest Means Task Force full-scope representation. Closing the justice gap is critical because answered in the affirmative. Their findings were published in a the justice system should allow everyone the ability to confidently 2003 Handbook on Limited Scope Legal Assistance.8 In a nutshell, resolve their legal disputes and order their lives. This means that the task force recognized that without limited scope help, people

22 Los Angeles Lawyer June 2018 who cannot afford full-scope representation go to court without licenses and professional licenses are often at risk in administrative counsel. The task force concluded, “We believe that in the great hearings. There may be a noncourt hearing with the city attorney’s majority of the situations some legal help is better than none. An office to resolve an issue or a tax-related hearing, either of which informed pro se litigant is more capable than an uninformed could benefit from an attorney’s limited scope appearance. Any one. A partially represented litigant is more effective than a of these administrative settings may not require a full-service wholly unrepresented litigant.”9 The Handbook provides the attorney. A limited scope attorney would not only assist the two standards that govern limitations on the scope of services— administrative hearing officer but also would be able to explore the client must give informed consent and the services should be the entirety of potential outcomes before a final result is reached. reasonable under the circumstances—and gives practical advice A number of years ago, the California Commission on Access about how to fashion retainer agreements and court documents to Justice prepared a lengthy package of materials entitled “General consistent with those standards.10 Civil Limited Scope Representation Risk Management Mate - From a judicial standpoint, judges are well aware of the rials.”11 These materials provide numerous sample fee agreements, various aspects of limited scope representation, including its checklists, and best practices. In fact, from a practitioner’s point advantages for all concerned. As time has progressed since the of view, these materials provide an almost complete guide to Judicial Council first adopted limited scope forms in 2003, most conducting a limited scope representation. As a result, with some judicial concerns have been addressed and mitigated. Judges are minor revisions, a limited scope practice is easy to establish. The not only pleased to see a limited scope attorney but they are risk management materials are already in existence and freely equally willing to let the attorney go, once the appropriate work available on the California courts website (www.courts.ca.gov), has been accomplished. and the forms are clear and easy to use. All an attorney needs to On the bar side, there is a significant amount of good work do is to select the proper case for limited scope and start providing being done locally to assist modest means litigants on the limited legal services. scope front. The State Bar of Cali fornia’s annual meeting has Safety Net had limited scope presentations for at least the last three years. The Los Angeles County Bar Association (LACBA), among other Los Angeles family law attorney Michelle Hopkins equates unbun- bar associations, has established a panel on its Lawyer Referral dled legal services to a “safety net” for self-represented litigants. Service (LRS) that focuses on limited scope representation and After working with the Los Angeles Superior Court’s self-help the needs of modest means litigants. In addition, LACBA’s programs for ten years and as a supervising attorney in the Self- www.smartlaw.org connects clients with attorneys who are willing Help Center at Stanley Mosk Courthouse, she saw that most to do certain tasks on an unbundled basis or for a flat fee. people are able to understand fundamental legal concepts, follow Smartlaw.org was launched in April 2016 to provide Southern step-by-step procedures, and complete the Judicial Council forms. Californians with an alternative to full representation. Options However, many people need advice and counsel related to the like Smartlaw.org allow clients a broader range of more affordable development of a legal strategy with consideration of issues such services, allowing attorneys to better compete with online legal as the relevance and admissibility of evidence, the burden of service firms. Additionally, the LRS provides attorneys with expo- proof, and the standard for review. She observes that many people sure to more clients in a broader geographic area than the attorney in family law cases are shell-shocked as well as filled with grief would otherwise reach. and panic. These emotions create confusion not to mention impair memory and good decision-making. Others are simply terrified Limited Scope Practice to appear in front of a judge alone. Thus, Hopkins offers legal Increasingly, individual attorneys are seeing real value in a limited coaching, help with document preparation, and one-time court scope practice. Attorneys with a thriving limited scope practice appearances to otherwise self-represented litigants for affordable have been able to provide efficient service while drawing the flat fees that clients “pay as they go.” appropriate time boundaries. Further, many limited scope attorneys Hopkins emphasizes, however, that unbundled services are report higher client satisfaction rates and frequent conversions not a fit for all attorneys. She cautions that the best limited scope from limited scope to full representation on a paid basis. Limited attorneys are the ones with the most experience who have handled scope service also provides some real advantages: when done a variety of cases from start-to-finish and understand how all properly, there are no collectables, bills, or other financial pinch the complex pieces fit together. There can be unfavorable results points, and both lawyer and client know exactly what is to be for litigants who act on short-sighted advice from paralegals and done and how much it will cost. attorneys without the requisite experience. To date, most attorneys have focused their limited scope Millennial attorneys like Brooke Moore are embracing the services on family law, but as a society we need to think in limited scope concept. After serving on the Arkansas Access to broader terms. There are many landlords, tenants, and small Justice Task Force on Self-Represented Litigants, Brooke founded businesses that need legal representation in one or two areas, or MyVirtual.Law yer in Arkansas.12 There is no “brick and mortar” with one or two issues in a case. A small business owner may office. Instead, self-represented litigants interface with attorneys need help in negotiating a settlement, drafting a purchase agree- and support staff via the website client portal, e-mail, telephone, ment, or responding to a threat of litigation. A landlord who and video. owns just a few units may only need assistance in an occasional The bulk of the firm’s work relates to family law. However, unlawful detainer hearing or in negotiating with the city over self-represented litigants can also purchase guidance on drafting some tax or regulatory issue. An individual who has arguably wills, trusts, and basic business contracts. Prices are listed on been defamed may need nothing more than a cease-and-desist the website (e.g., a divorce case with property but no children letter. A consumer may need help negotiating or mediating a con- is listed at $1,000 and $1,500 if there are children).13 Help tract dispute. with basic contracts like operating agreements also can be pur- Finally, while most attorneys think in terms of court-based chased “a la carte.” Potential clients may also purchase a monthly litigation, the wide world of administrative hearings occurring subscription. every day in Southern California cannot be ignored. Driver’s At an Access to Justice Conference in Atlanta in April 2018,

Los Angeles Lawyer June 2018 23 Moore explained that a fully virtual, limited do not come with permanent handcuffs. are able to receive the justice that they scope law firm model is working so well Limited scope representations are not seek. Limited scope is a “win-win” for all: that she is now expanding into other states, for every attorney, nor are they for every clients get needed legal assistance while with attorneys currently offering services client. In order to conduct a successful and attorneys get more clients, and society in Arkansas, Georgia, and California (San satisfying representation, attorney and moves closer to the ideal we all share of Diego County, Orange County, and Los client must be willing to cede some control equal justice for all. n Angeles County). to the other limited scope participant. As a result, the attorney must be willing to 1 See, e.g., Staci Zaretsky, Recent Grads Are Drowning Real-World Examples take responsibility only for those parts of In Debt, Think It’s Too Easy To Get Into Law School, In practice, consumers like “Olivia”14 ap - the case that are covered in the scope and ABOVE THE LAW (Apr. 12, 2017), https://abovethelaw preciated the two limited-scope “coaching” allow the client to “go it alone” in uncov- .com/2017/04/recent-grads-are-drowning-in-debt-think -its-too-easy-to-get-into-law-school; David Segal, Is sessions she had with a family law special - ered areas. Further, the attorney must be Law School a Losing Game?, N.Y. TIMES, Jan. 8, ist. As a professional woman who had been willing to draw boundaries around inter- 2011, available at https://www.nytimes.com/2011 through a divorce before, and whose actions with the client. /01/09/business/09law.html; RICHARD SUSSKIND, THE divorce was mostly amicable, Olivia was It defeats the purpose of limited scope END OF LAWYERS? RETHINKING THE NATURE OF LEGAL not interested in spending thousands of representations if the attorney allows the SERVICES (2008). 2 See, e.g., Legalzoom, https://www.legalzoom.com dollars to have a lawyer represent her in client the same level of access and ser - /disclaimer.html. court. What she wanted, and what she vice that the client would receive under a 3 E.g., id. received, was a calm and knowledgeable full-service representation. Conversely, the 4 Resolution 5, Reaffirming the Commitment to Mean - female lawyer to walk her through the clients must have sufficient self-con fi- ingful Access to Justice for All, Conference of Chief Jus - process, answer some specific questions, dence and ability to represent themselves t ices, Conference of State Court Admin istrators, avail- able at https://www.ncsc.org/~/media/Microsites/Files and review her paperwork. The divorce in the other parts of the legal matter. A /access/5%20Meaningful%20Access%20to%20Justice remained amicable, expenses were kept client may not want the attorney involved %20for%20All_final.ashx (last viewed Jan. 5, 2018). low, and the lawyer was paid for her time. in every aspect of the matter; the client 5 Id. Family law is not the only context in may want the ability to control at least 6 California legal incubators include, but are not limited which limited scope representation is use - part of the outcome. to: Bay Area Legal Incubator (https://www.acbanet .org/volunteer-legal-services/bay-area-legal-incubator ful. For example, a young couple whose Ethical and Legal Rules -bali), California Lawyers for the Arts Modest Means landlord refused to return their security Incubator Program (https://www.calawyersforthearts deposit when they moved paid a lawyer It is crucial for lawyers to understand that .org/modest-means-incubator-program.html), Com - $250 to explain the small claims process, limited scope representations do not limit munity Law Practice Incubator (https://www.sfbar.org court decorum, and help organize their an attorney’s professional liability—the /about/initiatives/clpi.aspx), Los Angeles Incubator exhibit binder. The couple not only won same general ethical and legal rules apply Consortium (https://www.laincubatorconsortium.com), and The Center for Solo Practitioners in San Diego their security deposit plus penalties, but as if it were a full scope representation. (https://www.tjsl.edu/tjsl-alumni/incubator-program. were also awarded the $250 they paid for California law is quite clear: an attorney More information about California’s legal incubators attorney’s fees. has a duty of care to advise a client of is available at http://www.calbarjournal.com/April2016 There still remains a lingering concern available remedies beyond the scope of his /TopHeadlines/TH1.aspx. 7 about an attorney’s ability to seamlessly retention.17 As a result, while a limited John T. Broderick Jr. And Ronald M. George, A Nation of Do-It-Yourself Lawyers, N.Y. TIMES, Jan. withdraw from a limited scope represen- scope lawyer may not have a duty to actu- 1, 2010, available at https://www.nytimes.com/2010 tation. Over the years, it has become ap - ally perform a specific legal act, the lawyer /01/02/opinion/02broderick.html. parent that the current withdrawal process may very well have an obligation to at 8 HANDBOOKON LIMITED SCOPE LEGAL ASSISTANCE: is somewhat cumbersome.15 Accordingly, least advise the client of legal remedies A REPORTOFTHE MODEST MEANS TASK FORCE, the Judicial Council sent out for public that are outside of the limited scope’s ABA, available at www.amercanbar.org/content/dam /aba/administrative/legal_aid_indigent_defendants/ls comment a new withdrawal procedure boundaries. _sclaid_handbook_on_limited_scope_legal_assistance for family law limited scope services. As The legal system we have today is far .authcheckdam.pdf. a result, because of comments from various different from the legal system of 10, 15, 9 Id. at 12. bar organizations, the process has been or 20 years ago. The number of self-rep- 10 Id. at 90-91. streamlined and put into effect. Under the resented litigants is most likely not going 11 GENERAL CIVIL LIMITED SCOPE REPRESENTATION: RISK new procedure, if a client fails to sign a to decrease. According to a recent judicial MAN AGEMENT MATERIALS, Limited Representation Com - mittee, Cal. Comm’n on Access to Justice, available at formal “substitution” document relieving needs assessment, California requires at http://www.courts.ca.gov/partners/documents/Risk the attorney of further responsibility, the least 2,050 judges to adequately meet the _Management_Materials _Civil.pdf (last viewed Jan. attorney will be able to file and serve the population’s legal needs, yet we currently 5, 2018). basic Judicial Council form FL-955 titled have only 1,960.18 While the needs of the 12 Homepage, myvirtual.lawyer, https://myvirtual “Notice of Completion of Limited Scope courts are constantly changing, there are .lawyer 13 Id. (click on “Divorce”) (last viewed Jan. 5, 2018). 16 Re presentation.” Unless the client objects simply not enough judicial resources. 14 A pseudonym is used to protect confidentiality. that the attorney has not completed the Limited judicial resources necessarily lead 15 See, e.g., CAL. RULES OF COURT R. 3-700, describing agreed upon scope of representation, the to larger calendars, resulting in more stress procedures for mandatory and permissive withdrawal. notice of completion will formally end on the resources that exist. Having a limit - 16 Form FL-955 can be downloaded at http://www.courts the representation, and will allow the ed scope attorney provide guidance and .ca.gov/documents/fl955.pdf (last viewed January 5, 2018). attorney to leave the case. If there is an representation for a litigant may make all 17 Nichols v. Keller, 15 Cal. App. 4th 1677 (1993). objection, the matter will rapidly go to a the difference in outcome and process. 18 The Need for New Judgeships in the Superior hearing, and the judge presiding over the While limited scope representation alone Courts: 2016 update of the Judicial Needs Assessments, case will decide the issue. These new pro- will not solve all of the justice gap problems available at www.courts.ca.gov/documents/lr-2016 cedures should give comfort to bench and we face in California, it is an important -judicial-needs-assessment.pdf (last viewed April 16, 2018). bar alike that limited scope representations tool designed to assure that Californians

24 Los Angeles Lawyer June 2018

MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 29.

BY DENNIS F. HERNANDEZ HEALTH FIRST

In Whitlow v. AMERICANS value their personal freedom, and most Americans are skeptical when government attempts to legislate in the realm of personal freedom. When the government passed a law to require cyclists to wear a helmet, for instance, California Department some Americans objected to the government’s authority to pass such a law. This tension between personal freedom and governmental authority plays out at the beginning of of Education, parents every school year when parents are told their children must be immunized before they can enroll in school. There are few decisions more person al than a parent’s decisions relating to his or her children. opposed the enforce - Until recently, California parents could exempt their school-age children from mandatory immunizations for philosophical reasons or based on their personal belief ment of SB 277 as a that vaccinations may be harmful to their children. However, because of the increasing number of parents refusing to immunize their school-age children, the legislature passed SB 277 in 2016 to eliminate the personal belief exemption (PBE) for mandatory violation of their childhood vaccination. In response to this legislation, a very vocal and well-organized group of parents opposed to mandatory vaccination filed Whitlow v. California children's rights to due Department of Education,1 an action seeking to enjoin the enforcement of SB 277 on the grounds that eliminating the PBE violates the parents’ rights to equal protection process, equal and due process, as well as various other claims. Background According to the Centers for Disease Control and Prevention (CDC), vaccination is protection, and one of the “Ten Great Public Health Achievements in the 20th Century” due to its sig-

education Dennis F. Hernandez is of counsel to the Los Angeles firm of Alvarado Smith. He also serves as a member of the Editorial Board of Los Angeles Lawyer magazine. AMANE KANEKO

26 Los Angeles Lawyer June 2018 nificant impact on morbidity and mortality tuted an unconstitutional invasion of his since 1889.14 Currently, state law man - in the United States.2 Vaccination is one liberty and that compulsory vaccination dates immunization of school-age children of the means of protecting the public’s is unreasonable, arbitrary, oppressive, and against 10 specific diseases.15 Each of the health through disease prevention and one hostile to the inherent right of every free- 10 diseases was added to the California of the goals of public health is community man to care for his own body and health code after careful consideration of the pub- immunity. Community or “herd” immunity in such a way as to him seems best.8 The lic health risks, costs to the state and health occurs when a significant proportion of Court reasoned that “the liberty secured system, communicability, and rates of trans- the population is vaccinated, which provides by the Constitution of the United States mission. greater protection for unprotected individ- to every person within its jurisdiction does Prior to 2014, obtaining a PBE was uals.3 The larger the number of people who not import an absolute right in each person rather simple. All that was required was are vaccinated in a population, the lower to be, at all times and in all circumstances, signing a form stating a personal objection the likelihood that a susceptible (unvacci- wholly freed from restraint.”9 An orderly to vaccination based on a parent’s personal nated) person will come into contact with society and the common good require beliefs. In 2014, however, the legislature the infection. Disease is thereby less likely “manifold restraints to which every per - required parents to obtain the signature to spread between individuals if large num- son is necessarily subject”; otherwise “dis- of a health care provider attesting to the bers of people are already immune. order and anarchy” would prevail without fact that they were given information about All 50 states require children to receive “safety to its members.” The Court stated the risks of vaccine-preventable diseases certain vaccinations before attending unequivocally that “[R]eal liberty for all before making the decision not to vaccinate public school, and some states extend could not exist under the operation of a their child.16 In his signing statement, these requirements to day care and private principle which recognizes the right of Governor Jerry Brown rrecognized a reli- schools.4 Generally, there are three types each individual person to use his own, gious exemption when he directed the of exemptions to the requirement that chil- whether in respect of his person or his Department of Public Health “to oversee dren be vaccinated before entering school: property, regardless of the injury that may this policy so parents are not overly bur- medical, religious, and philosophical or be done to others.”10 dened in its implementation…[and] to personal belief. The medical exemption, The Court concluded that even liberty allow for a separate religious exemption which is recognized in all 50 states, requires is regulated by law: on the form. In this way, people whose a written statement by a licensed physician The possession and enjoyment of all religious beliefs preclude vaccinations will to the effect that the condition of the child rights are subject to such reasonable not be required to seek a health care prac- or the medical circumstances of the child conditions as may be deemed by the titioner’s signature.”17 are such that immunization is not consid- governing authority of the country After the passage of AB 2109, legislators ered safe.5 essential to the safety, health, peace, remained concerned that the rate of PBEs Religious exemptions allow parents to good order, and morals of the com- had increased dramatically since 1994. In exempt their children from vaccination if munity. Even liberty itself, the great- 1994, approximately 0.6 percent of kinder- it contradicts their sincere religious beliefs. est of all rights, is not unrestricted garten students claimed PBEs. By 2009, In order to qualify for these exemptions, license to act according to one’s own the percentage had increased to 2.3 percent families have to demonstrate that vacci- will. It is only freedom from restraint and in the 2013-14 school year, the number nations violate the teachings of a recog- under conditions essential to the had increased to 3.15 percent, with some nized religion to which they belong. In equal enjoyment of the same right school districts showing much higher some cases, state health boards ask parents by others. It is, then, liberty regulated rates.18 While the information requirement to get notes from a clergyman. In Calif - by law.11 of AB 2109 helped to decrease the per- ornia, there was not a separately recognized The Court’s opinion was based in large centage of PBEs, the overall immunization exemption based on religious beliefs; the measure on the principle of self-defense rates went up only slightly, leading legis- religious exemption was included in the that the community had the right to pro- lators to conclude that informed refusal personal belief exemption. Most states tect itself against an epidemic of disease was not sufficient to achieve effective grant exemptions for persons who have that threatens the safety of its members. immunization rates.19 The measles out- bona fide religious beliefs against immu- Because “every well-ordered society” has break that triggered the event causing leg- nization.6 “the duty of conserving the safety of its islators to move to eliminate PBEs led to The legal basis for mandatory vaccina- members,” an individual’s liberty interest 131 confirmed measles cases with 19 per- tion is well established. For more than 100 “may at times, under the pressure of great cent of those infected requiring hospital- years, the U.S. Supreme Court has upheld dangers, be subjected to such restraint, ization.20 the right of the states to enforce laws to be enforced by reasonable regulations, SB 277 requiring citizens to be vaccinated. An out- as the safety of the general public may break of small pox and the state’s manda- demand.”12 Therefore, an individual’s On June 30, 2015, Governor Brown tory vaccination response caused the Fourteenth Amendment liberty interest signed SB 277 into law abolishing PBEs Supreme Court to consider the competing does not preclude the state from compelling to school immunization requirements. interests of the individual’s liberty interest individuals to “submit to reasonable reg- The law provided that if a parent had on and the public’s need for safety. In Jacobson ulations established by the constituted file or filed a PBE prior to January 1, v. Commonwealth of Massachusetts,7 the authorities, under the sanction of the state, 2016, his or her child could be enrolled Supreme Court considered a criminal com- for the purpose of protecting the public in school or day care, unless that child plaint alleging Mr. Jacobsen’s failure to collectively against such danger.”13 was at a “checkpoint,” i.e., was a first- comply with the Board of Health’s regu- time enrollee in day care or kindergarten California’s Immunization Law lation that required citizens to be vacci- or was enro lling in the seventh grade.21 nated against smallpox. The Court rejected California has had some form of manda- Those first-time enrollees and students the arguments that the regulation consti- tory vaccination for school age children entering seventh grade were no longer

28 Los Angeles Lawyer June 2018 MCLE Answer Sheet #279 MCLE Test No. 279 HEALTH FIRST

The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Name Legal Education credit by the State Bar of California in the amount of 1 hour. You may take tests from back issues online at http://www.lacba.org/mcleselftests. Law Firm/Organization

1. Community or “herd” immunity occurs when a sig- 11. The personal belief exemption (PBE) to mandatory Address nificant proportion of the population is vaccinated. childhood vaccination was eliminated under SB 277. City True. True. State/Zip False. False. E-mail 2. All 50 states require children to receive certain vac- 12. The religious exemption to mandatory childhood Phone cinations before attending public school. vaccination was eliminated by SB 277. State Bar # True. True. False. False. INSTRUCTIONS FOR OBTAINING MCLE CREDITS

3. Generally speaking, there are three types of exemp- 13. Under SB 277, children are able to attend school if 1. Study the MCLE article in this issue. tions to the requirement that children be vaccinated they either receive the immunizations required by law 2. Answer the test questions opposite by marking before entering school: medical, religious, and philo- or obtain a medical exemption from the requirement the appropriate boxes below. Each question has only one answer. Photocopies of this sophical or personal belief. from an authorized health care provider. answer sheet may be submitted; however, this True. True. form should not be enlarged or reduced. False. False. 3. Mail the answer sheet and the $20 testing fee ($25 for non-LACBA members) to: 4. Not all states grant exemptions from mandatory 14. Authorized health care providers include school Los Angeles Lawyer vaccination of children for medical reasons. nurses and certain naturopaths, in addition to medical MCLE Test True. and osteopathic doctors. P.O. Box 55020 False. True. Los Angeles, CA 90055 False. Make checks payable to Los Angeles Lawyer. 5. Most states grant exemptions for persons who have 4. Within six weeks, Los Angeles Lawyer will bona fide religious beliefs against immunization. 15. The regulations enacted under SB 277 do not apply return your test with the correct answers, a True. to private schools or day care centers. rationale for the correct answers, and a False. True. certificate verifying the MCLE credit you earned False. through this self-study activity. 6. All states grant exemptions for persons who have 5. For future reference, please retain the MCLE personal or philosophical beliefs against immuniza- 16. Kindergartners are allowed to conditionally enroll test materials returned to you. tion. in school if they have not completed the required vac- ANSWERS True. cinations under certain conditions. False. True. Mark your answers to the test by checking the appropriate boxes below. Each question has only False. one answer. 7. An individual’s Fourteenth Amendment liberty inter- est always precludes the state from compelling indi- 17. After SB 277, parents with personal or philosophical 1. True False viduals to submit to reasonable regulations for the objections to vaccinations may homeschool their chil- n n purpose of protecting the public. dren on their own or in collaboration with a few other 2. n True n False True. families, or participate in certain independent study 3. n True n False False. programs offered by public schools. 4. n True n False True. 5. n True n False 8. California’s immunization law is codified in Health False. and Safety Code Section 120325 et seq. 6. n True n False True. 18. The courts have found that SB 277 violates due 7. n True n False False. process and equal protection under the U.S. Consti - 8. n True n False tution. 9. n True n False 9. Health & Safety Code Section 120325 mandates True. immunization of school-age children against 10 specific False. 10. n True n False diseases: diphtheria, hepatitis B, haemophilus influen- 11. n True n False zae type b, measles, mumps, pertussis (whooping 19. Education is a fundamental interest under the 12. n True n False cough), poliomyelitis, rubella, tetanus and varicella California Constitution. 13. n True n False (chickenpox). True True. False. 14. n True n False False. 15. n True n False 20. After the passage of SB 277, the number of children 16. n True n False 10. Before SB 277, parents could exempt their child claiming PBEs declined, but the rate of children claiming 17. n True n False from immunization based on their personal belief. medical exemption increased dramatically. True. True. 18. n True n False False. False. 19. n True n False 20. n True n False

Los Angeles Lawyer June 2018 29 allowed ad mi ssion to the state’s public a mandatory vaccine requirement on school constitution. In Serrano v. Priest, the and private schools and day-care centers children as a condition of enrollment does California Supreme Court found in a series unless they complied with the vaccination not violate substantive due process. The of cases that the state’s financing of Calif - requirements.22 court in Whitlow noted that this case is ornia schools denied equal protection to Under SB 277, children are able to even one more step removed from a due some students on the basis of income dis- attend school or daycare—public or pri- process violation since it involves the re - tribution.35 The court held in this case that vate—if they either receive the immuniza- moval of an exemption that is not required education is a fundamental interest.36 tions required by law or obtain a medical under the law. The removal of the PBE The state in Whitlow stipulated that exemption from the requirement from a subjects the children to mandatory vacci- education is a fundamental interest and licensed physician.23 The medical exemp- nation, but the state is well within its pow- that the heightened “compelling interest” tion requires a written statement by a ers to condition school enrollment on vac- test is the applicable standard.37 Applying licensed physician to the effect that the cination.31 this standard, the court cited a long line condition of the child or the medical cir- Equal Protection. The plaintiffs claimed of cases that held society has a compelling cumstances of the child are such that immu- that SB 277 was a denial of equal protection interest in fighting the spread of contagious nization is not considered safe.24 Children under the law because it treats children diseases through mandatory vaccination may also be conditionally accepted into a with PBEs differently from other children of school-aged children.38 The court school or day-care program if they are in in denying them an education. The court observed that this was the legislature’s the process of completing a series of vac- noted, however, that the Equal Protection intent in enacting SB 277.39 The plaintiffs cinations. In other words, if parents wish Clause of the U.S. Constitution does not attempted to distinguish these cases on the to leave their children unvaccinated, absent forbid classifications. “It simply keeps gov- grounds that the vaccine mandates in some an acknowledged medical reason to do so, ernmental decision makers from treating of those cases were enacted during times they cannot send them to school or day differently persons who are in all relevant of outbreaks. The court responded that care. After enactment of SB 277, the respects alike.” The court found that chil- the state’s interest in protecting the public options for parents with personal or philo- dren with PBEs are not similarly situated health and safety of children does not sophical objections to vaccinations were to children without PBEs.32 depend on or need to correlate with the to homeschool their children on their own The plaintiffs also argued that children existence of a public health emergency.40 or in collaboration with a few other fam- with PBEs were treated differently from The safety interest exists regardless of the ilies or to participate in certain independent children who were not yet vaccinated but circumstances of the day and is equally study programs offered by public schools.25 at a “checkpoint.” The “checkpoints” pro- compelling whether it is being used to pre- The law also provided an option for stu- vision in the law provides a grace period vent outbreaks or eradicate diseases. dents who qualify for an individualized for children with PBEs to remain in their Finally, the plaintiffs argued that SB education program, or IEP.26 grade span while their parents comply with 277 was not narrowly tailored because the new law. Rather than drawing legisla- the previous law, which allowed for PBEs, The Challenge tion that would have immediately impacted served the same purpose as SB 277 and In July 2016, a group of parents and orga- all children with PBEs (approximately was a less restrictive means of achieving nizations filed Whitlow v. California Depart - 200,000, according to the plaintiffs), the that purpose.41 The court stated that com- ment of Education,27 seeking to block the legislation has a more limited effect by ini- paring new law to old has nothing to do implementation of SB 277. The lawsuit tially focusing only on those children with with heightened scrutiny analysis and that claimed, among other things, that the law PBEs who are advancing to the next grade the correct analysis is whether removal of would deprive their children and families level (approximately 33,000, according to the PBE by SB 277 is narrowly tailored to of due process and equal protection, as the plaintiffs). The “checkpoints” provision address the identified interest, that is, “a well as violate their rights of access to a therefore provides parents with an orderly means for the eventual achievement of public education under Serrano v. Priest.28 opportunity to comply with the law and total immunization” of appropriate school- Due Process. In their complaint, the softens the impact of SB 277 through grad- aged children.42 plaintiffs in Whitlow alleged that SB 277 uated application. The court therefore con- The court stated: “The objective of total impinges on fundamental liberties by deny- cluded that the law is rational.33 immunization is not served by a law that ing children with PBEs the opportunity to The court also determined these clas- allows for PBEs, whether the PBE rate is attend school and stigmatizing children sifications did not burden any fundamental 2% or 25%. Con ditioning school enroll- with PBEs as “vectors of disease” and by right and are therefore subject to rational ment on vaccina tion has long been ac - violating both parental rights regarding basis, not strict scrutiny, review. Under cepted by the courts as a permissible way decision-making concerning their child’s this test, the Equal Protection Clause is for states to innoculate large numbers of health and education and childrens’ rights sat is fied so long as there is a plausible young people and prevent the spread of to bodily integrity. In response, the court policy reason for the classification. First, contagious diseases.” Mor over, states can cited Zucht v. King, a 1922 decision in the court found a rational basis for treating impose those vaccination requirements which the court rejected arguments that children with PBEs differently from other without providing religious or conscien- vaccination laws denied the plaintiffs due children: children with PBEs are not com- tious exemptions. While removing the PBE process and equal protection when the pletely vaccinated, if at all, while the latter is an aggressive step, so, too, is the goal plaintiff’s children were excluded from a are fully vaccinated. Allowing the latter of providing a means for the eventual Texas public school because they were not to attend school and excluding the former achievement of total immunization. An vaccinated.29 Based on the reasoning in is rationally related to the state’s interest aggressive goal requires aggressive mea- Jacobson, the court stated it was “settled in protecting public health and safety.34 sures, and the State of California has opted that it is within the police power of a State Serrano Claim. The plaintiffs in Whitlow for both here.43 to provide for compulsory vaccination.”30 also claimed that SB 277 violates their The court concluded that the right of The court additionally found that imposing rights to education under the California education—fundamental as it may be—is

30 Los Angeles Lawyer June 2018 no more sacred than any of the other fun- damental rights that have readily given way to a state’s interest in protecting the S, health and safety of its citizens, particularly GL Howard and Company CPA LLP school children. Because a personal belief exemption is not required in the first in - stance, the state can remove it—and im - EFFECTIVE pinge on education rights—in light of the SUPPORT FOR compelling interest here. In this context, removal of the PBE is necessary or nar- WHITE COLLAR rowly drawn to serve the compelling objec- ISSUES tive of SB 277.44 Religion Exemption Claim. The plaintiffs additionally argued that SB 277 violates 562.431.9844 • www.glhowardandcompanycpas.com their free exercise of religion under the First Amendment by failing to provide a religious exemption to the vaccine mandate and by forcing parents to choose between their faith and their children’s education. They also contended that their religious liberty was infringed by the state by allow- ing for “secular” exemptions, such as med- ical reasons, an IEP or home schooling, but not for religious reasons.45 The court first held that the strict scru - tiny standard was not applicable in this case because SB 277 was, as the plaintiffs conceded, a neutral law of general appli- cation and, as such, was subject to rational basis review, “even when ‘the law has the incidental effect of burdening a particular religious practice.’”46 The court thereafter found that the plaintiffs were unlikely to succeed on the merits of their free exercise claims, citing the authorities to the effect that the right to practice religion freely does not include the liberty to expose the community or the child to communicable diseases. Epilogue The plaintiffs’ efforts to prevent the en- forcement of SB 277 in Whitlow were sum- marily rejected by the court, and, after the court denied their application for injunc- tion, the plaintiffs in Whitlow quickly dis- missed their complaint. That is not to say, however, that the opposition to mandatory vaccination has disappeared. Some parents have sought other means to avoid vacci- nation of their school-age children. After the passage of SB 277, the number of chil- dren claiming PBEs declined, but the rate of children claiming medical exemption increased dramatically. A study published in the Journal of American Medical Associ - a tion found that the percentage of kin - dergartners with medical exemptions was mostly stable between .15 percent and .17 percent between 2005 and 2015; however, between 2015 and 2016, the rate jump ed from .17 percent to .51 percent.47 The authors noted: The increase in the number of [med-

Los Angeles Lawyer June 2018 31 ical exemptions] granted in 2016 (Briceland), Ch. 24; see S.B. 277 Senate Third Reading to enact such laws as it may deem necessary, not further weakens the immediate effect Bill Summary, http://www.leginfo.ca.gov/pub/15 repugnant to the constitution to secure and maintain -16/bill/sen/sb_0251-0300/sb_277_cfa_20150407 the health and prosperity of the state, by subjecting of S.B. 277 and may limit its long- _101248_sen_comm.html [hereinafter S.B. 277 Senate both person and property to such reasonable restraints term benefits if sustained…. More - Third Reading]. and burdens as will effectuate such objects.”); Zucht over, because the largest increases 15 Health & Safety Code §120325 requires immu- v. King, 260 U.S. 174, 176 (1922) (stating it is “settled in medical exemptions percentage nization of appropriate age groups against diphtheria, that it is within the police power of a state to provide occurred in regions with high past hepatitis B, haemophilus influenzae type b, measles, for compulsory vaccination.”); Jacobson v. Com - mumps, pertussis (whooping cough), poliomyelitis, monwealth of Mass., 197 U.S. 11 (1905) (“[T]he [personal belief exemption] use, por- rubella, tetanus and varicella (chickenpox). police power of a State must be held to embrace, at tions of California remain susceptible 16 A.B. 2109, 2011-12 Leg. Reg. Sess. (Cal. 2012), least, such reasonable regulations established directly to vaccine-preventable disease out- Ch. 821, 2012 Cal. Stat 94, codified at HEALTH AND by legislative enactment as will protect the public breaks in the near future.48 SAFETY CODE §210365. “Authorized health care health and the public safety.”); Workman v. Mingo As a result, additional measures may providers” was broadly defined to include school County Bd. of Ed., 419 Fed. Appx. 348 (4th Cir. be required to ensure optimum immuniza- nurses and certain naturopaths, in addition to MD’s 2011) (holding that there is a “‘compelling interest and osteopathic doctors. HEALTH AND SAFETY CODE of society in fighting the spread of contagious diseases tion in the school-age population. One §210365(b), (f). through mandatory inoculation programs.’”); Brown option is to increase scrutiny of and enforce- 17 Letter from Governor Edmund G. Brown, Jr. to the v. Stone, 378 So. 2d 218, 223 (Miss. 1979) (holding ment against doctors who help parents cir- Members of the California State Assembly on signing that “protection of the great body of school children cumvent the vaccination requirements. of A.B. 2109 (Sept. 30, 2012), available at https: attending the public schools” against diseases through Another is to further amend the law to //www.ca.gov/wp-content/uploads/2017/09/AB-2109 mandatory vaccination serves a “compelling public -signing-message.pdf. purpose”); Cude v. State, 237 Ark. 927, 932 (1964) clarify what constitutes a valid medical rea- 18 Dorit Rubinstein Reiss, Vaccines, School Mandates, (holding that mandatory vaccination of school children 49 son for exemption from vac cination. and California’s Right to Education, 63 UCLA L. REV. “does not violate the constitutional rights of anyone, Other approaches are more extreme. DISC. 98 (2015) (citing Cal. Dep’t Health, Im muniza - on religious grounds or otherwise.”); Board of Educ. For instance, a school district could con- tion Branch, 2014-2015 Kindergarten Immun ization v. Maas, 56 N.J. Super. 245, 164 (1959) (similar); ceivably be held liable for negligently allow- As sess ment Results (Feb. 2015)), available at http:// Viemeister v. White, 84 N.Y.S. 712 (1903). www.uclalawreview.org/vaccines-school-mandates 39 See HEALTH AND SAFETY CODE §20325 (“In enacting ing an infected child to attend school. -californias-right-education [hereinafter Rubenstein this chapter…it is the intent of the Legislature to pro- Alternatively, there may be potential lia- Reiss]. vide: (a) A means for the eventual achievement of total bility of a parent who fails to vaccinate 19 S.B. 277 Senate Third Reading, supra note 14. immunization of appropriate age groups against the his or her child. Physicians and law pro- 20 L. Barraza et al., The Latest in Vaccine Policies: following childhood diseases….”). fessors have written extensively about the Selected Issues in School Vaccinations, Healthcare 40 See Maricopa County Health Dept. v. Harmon, potential legal ramification of not vacci- Worker Vaccinations, and Pharmacist Vaccination 156 Ariz. 161, 166 (1987) (rejecting argument that Authority Laws, 45 J. LAW, MEDICINE & ETHICS 16,17 “there is no compelling state interest in taking limited nating a child, including civil or criminal (2017). and temporary steps to combat a reasonably perceived liability of parents who refuse to vaccinate 21 HEALTH AND SAFETY CODE §120335(g). risk of the spread of measles absent a serologically their children to the detriment of the health 22 HEALTH AND SAFETY CODE §120335(g)(3). confirmed case[.]”); Sadlock v. Bd. of Educ., 137 N.J.L. of other school children or the commu- 23 HEALTH AND SAFETY CODE §120370. S.B. 277 added 85, 90 (1948) (rejecting argument that compulsory nity.50 At present, it is not clear what steps a requirement that the doctor consider medical history, vaccination law could not stand “since at the time of though it’s unclear what effect that will have, if any. its adoption, there was no epidemic or threatened are necessary. What is clear is that children The provision seems to give doctors broad discretion epidemic of smallpox…and that, therefore the reso- have a right to attend school in a safe envi- to grant medical exemptions, and there is currently lution performed no reasonable exercise of the police ronment and parents have a responsibility no real path to oversee that discretion. See Rubenstein power.”); Mosier v. Varren County Bd. of Health, to ensure that their children do not pose Reiss, supra note 18. 308 Ky. 829, 831 (1948) (“the health authorities are 24 a risk to the safety of others. n HEALTH AND SAFETY CODE §120370. not required to wait until an epidemic exists before 25 HEALTH AND SAFETY CODE §20335(f). acting, but it is their duty to adopt timely measures to 26 HEALTH AND SAFETY CODE §20335(h). prevent one.”). 1 Whitlow v. Cal. Dep’t of Educ., 203 F. Supp. 3d 27 Whitlow v. Cal. Dep’t of Education, 203 F. Supp. 41 Id. at 1091. 1079 (S.D. Cal 2016). 3d 1079 (S.D. Cal. 2016). 42 Id. (citing HEALTH AND SAFETY CODE §120325(a)). 2 Ten Great Public Health Achievements—United 28 Id.; Serrano v. Priest, 18 Cal. 3d 728 (1976). 43 Id. States, 1900-1999, Centers for Disease Control and 29 Zucht v. King, 260 U.S. 174, 176 (1922). 44 Id. Prevention, https://www.cdc.gov (last visited Apr. 26, 30 Id. 45 Id. at 1085-86. 2018). 31 Whitlow, 203 F. Supp. 3d at 1089. 46 Id. at 1086-87. 3 Vaccines Protect Your Community, U.S. Dep’t of 32 Id. at 1088 (citing Nordlinger v. Hahn, 505 U.S. 1, 47 Paul L. Delamater et al., Change in Medical Ex - Health & Human Servs., www.vaccines.gov/basics 10 (1992)) (“‘Evidence of different treatment of unlike emptions From Immunization in California After /work/protection/index.html (last visited Feb. 15, 2018). groups does not support an equal protection claim.’”); Elimination of Personal Belief Exemptions, 318 J. 4 Public Health Law: State School Immunization Wright v. Incline Village Gen. Improvement Dist., 665 AM. MED. ASS’N 863 (2017). Requirements and Vaccine Exemption Laws, https:// F.3d 1128, 1140 (9th Cir. 2011). 48 Amina Khan, After California got rid of personal www.cdc.gov/phlp/docs/school-vaccintaions.pdf at 33 Whitlow, 203 F. Supp. 3d at 1088. exemptions for vaccines, medical exemptions went n.1. & Appendix A (last visited Feb. 15. 2018) (listing 34 Id. way up, L.A. TIMES, Sep. 5, 2017, available at various states’ requirements). 35 Serrano, 18 Cal. 3d at 766. http://latimes.com. 5 HEALTH AND SAFETY CODE §120370. 36 Id.; see Butt v. State of California, 4 Cal. 4th 668 49 Editorial, “Anti-vaxxers have found a way around 6 Id. at 2 (cataloguing 9 attributes in exemptions within (1994). California’s strict new immunization law. They need various states). 37 The court assumed, without necessarily agreeing to be stopped” L.A. TIMES, Nov. 8, 2017, available at 7 Jacobson v. Commonwealth of Massachusetts, 197 that the heightened standard was the correct standard. http://latimes .com. U.S. 11 (1905). Looking at the issue more closely, Professor Rubenstein 50 Anthony Ciolli, Mandatory School Vaccinations: 8 Id. at 26. Reiss concluded that the heightened standard was not The Role of Tort Law, 81 YALE J. BIOLOGY & MED. 9 Id. the appropriate standard, arguing that the class of 129 (2008), available at https://www.ncbi.nlm.nih 10 Id. children intentionally unvaccinated does not constitute .gov/pmc/articles/PMC2553651; Dorit Ruben stein 11 Id. at 26-27 (quoting Crowley v. Christensen 137 a suspect classification, since it is a choice not to vac- Reiss & Lois A. Weithorn, Responding to the Child - U.S. 86, 89 (1890)). cinate, as opposed to an income status or ethnic group hood Vaccination Crisis: Legal Frameworks and Tools 12 Jacobson, 197 U.S. at 28. whose status is immutable. Rubinstein Reiss, supra in the Context of Parental Vaccine Refusal, 63 BUFF. 13 Id. at 29-30. note 18. L. REV. 881 (2015), available at https://repository 14 In 1889, students who were not vaccinated against 38 Among the cases cited by the court are Abeel v. .uchastings.edu/cgi/viewcontent.cgi?article=2480& smallpox were not allowed to attend school. S.B. 92 Clark, 84 Cal. 230 (1906) (“The legislature has power context=faculty_scholarship.

32 Los Angeles Lawyer June 2018 Los Angeles Lawyer June 2018 33 by MARK I. LABATON

RESTORING LOST LEGACIES Absent statute of limitations defenses, the United States is a favorable venue for Nazi-looted art claims, even when the art is located abroad

MORE THAN 70 YEARS AFTER THE FALL OF GERMANY’S THIRD REICH, many victims of Nazi-art looting and their families still have neither recovered their stolen art nor been compensated for it. This is attributable to the extent of Nazi-art looting, historical circumstances, and inadequate efforts to provide justice to these families and their heirs. However, recent bipartisan legislation, the Holocaust Expropriation Art Recovery Act (HEAR Act),1 aims to remedy the injustice by preempting and extending state statutes of limitations (SOLs). Congress passed the act after finding that lawsuits in the United States to recover art looted and confiscated by the Nazis during World War II have faced “significant procedural obstacles” due to SOLs.2 The act establishes a six-year statute triggered upon actual discovery of stolen art, preempting a patchwork of state SOLs, some of which only required constructive notice.3 In what has been described as the “great est displacement of art in human history,”4 the Nazis and their collaborators pillaged approximately 20 percent of European art5 between 1933 and 1945, worth $2.5 billion in 19456 ($34 billion today). Occupying much of Europe, they plundered museums, galleries, castles, and private collections.7 The looting took various forms, including outright plunder, coerced transfers, and other sham sales, some of which appeared “legal in form.” 8 Dehumanizing Jews and other “undesirables” opened the door to stealing without restraint.9 For example, legislation during the Nazi era (such as the Nuremberg Laws enacted in Germany in 1935), sometimes called “Aryanization laws,” barred Jews from owning property with more than nominal value.10 Moreover, the need for cash by persecuted people fleeing Germany and Nazi-occupied countries led to duress sales.11 Property belonging to Jews sent to death camps was free for the taking, and the Nazis sometimes even forced Jews to sign over their rights to artworks and other property while in, or en route to, death camps.12 Indeed, this looting spree was part of the “Final Solu tion”: “We must kill all the Jews because if we don’t…their grandchildren will ask for their property back,” SS Reich Leader Heinrich Himmler, Adolf Hitler’s henchman, explained.13 The sheer numbers illustrate the scale of Nazi theft. From France alone, 26,000 railway wagons of paintings and sculptures were shipped from France to Germany,14 including 16,000 artworks stolen from Paris.15 Many of these works were simply expropriated by the Nazi leadership, e.g., 8,500 artworks amassed by Hitler16 and 5,000 paintings,

Mark I. Labaton is a partner in the law firm Cypress, LLP, and also of counsel at Glancy, Progany & Murray, LLP. The author wishes to HADI FARAHANI thank his colleague Daniel McClean for introducing him to looted-art litigation.

34 Los Angeles Lawyer June 2018 sculptures and tapestries17 by Nazi Reichsmarschall Hermann the war. This was the dirty secret of the postwar art world, and Goering (a collection worth approximately $2.7 billion today).18 people who should have known better were part of it.”40 Allied troops also discovered 2,000 looted artworks in a sealed Against this backdrop and at a time of rising nationalism— salt mine in Altanusee, Austria.19 More recently, 1,406 artworks exemplified by neo-Nazi rallies in Europe and the United States, worth more than $1 billion were stumbled upon by German the growing influence of Nazi sympathi zers in Austria’s parliament, officials in the 1,076-square foot Munich flat of octogenarian and new laws in Poland severely restricting restitution prospects41— Cornelius Gurlitt during an unpaid tax investigation in 2012.20 efforts to locate and restitute Nazi-looted art continue. In particular, Worldwide, the Nazis looted approximately 650,000 art- the HEAR Act gives victim families and their heirs a better oppor- works.21 Thus, soon after World War II ended in 1945, art tunity to open the historical record, reclaim their familial and markets around the world were saturated with stolen art.22 Some cultural legacy, and achieve a measure of justice. It preempts curators, art dealers, and collectors knew they were buying Nazi- existing state and federal SOLs for “a civil claim…to recover tainted art while others lacked diligence in investigating the prove- any artwork or other property that was lost…because of Nazi nance of art they bought.23 persecution” in any case pending at the time of the HEAR Act’s enactment and for 20 years going forward.42 (California had a Recovery Efforts to Date narrower six-year statute, which recently expired.)43 The proliferation of Nazi-looted art prompted The New York “Portrait of Wally” Times in 1943 to publish a front-page article titled “Eu rope’s Looted Art: Can it be Recovered?”24 In 1947, The New Yorker Although Nazi-looted art began flooding worldwide art markets carried a three-part series by Janet Flanner called “Beautiful Spoils.” decades ago, the victims did not view American courts as vehicles These and other press reports shined a spotlight on the issue,25 for redress until late in the twentieth century when claimants and and in 1951 and 1954 the U.S. State Department issued warnings their lawyers were able to take advantage of renewed interest in of widespread Nazi-looted art trafficking.26 Nevertheless, looted restoration, technical advances, and serendipitous events to bring art ended up in the United States where buyers took advantage of a number of groundbreaking lawsuits.44 Such a seminal and suc- bargain prices.27 An estimated 100,000 Nazi-looted artworks cessful lawsuit was sparked by a New York Times exposé and the eventually entered the United States with a current value of $7 seizure of Austrian painter Egon Schiele’s “Portrait of Wally” from billion. 28 Collectors like Theo dore Rousseau—curator at the a New York museum, which captured international attention and Metropolitan Museum of Art—said it was “absurd” not to take led to the Bondi family’s 10-year quest to recover that painting.45 advantage of the fire sales and let only “the Germans have the Prior to 1925, Lea Bondi (Jaray), a Viennese art gallery owner, paintings that Nazi big-wigs got.”29 bought Schiele’s oil portrait of his one-time lover, “Wally” Neuzil, During World War II, the State Depart ment’s Monuments, to hang in her apartment.46 In March 1938, Germany annex ed Fine Arts, and Archives Section employed Army officers known Austria with the overwhelming support of Austrians.47 Because as the “Monuments Men”30 to return Nazi-looted art to the of Aryanization laws preventing Jews from owning businesses, countries of the art’s origin so these countries could return the Bondi had to sell her gallery (though not “Portrait of Wally,” as it art to families from whom it had been stolen.31 Yet, many of was part of her private collection) to Frederick Welz, an art dealer these countries never did.32 Furthermore, by 1951, with attention and Nazi, for $5,44148 (today $91,245). Shortly afterward, she turned to the Cold War, the section closed shop.33 Ardelia Hall, and her husband moved to London.49 On the eve of departure, the State Department’s cultural affairs officer at the time, expressed Welz demanded “Portrait of Wally,”50 which Bondi reluctantly hope that restitution efforts would con tinue,34 but for the next parted with after her husband reminded her that Welz could 45 years there was scant interest in restoring art to families from prevent their escape,51 no idle fear since they knew that Welz had whom it had been looted. In effect, these nations and other col- coerced Dr. Heinrich Reiger, a Jewish dentist, to give him two lectors more interested in maintaining their collections than restor- Schiele paintings52 before the Nazis sent Reiger to Theresienstadt ing stolen art committed a second theft to the detriment of the descendants and other rightful heirs of Holocaust-era victims. By the 1990s, efforts to restore looted art once again gathered momentum, and some European countries, pushed to make amends for the past, opened archives im proving access to World War II-era records, which enabled journalists, scholars, and interested families to reexamine the past. The information uncov- ered led to articles and books, such as Lynn H. Nicholas’s The Rape of Europa,35 renewing interest in Nazi-era art restitution.36 In addition, new electronic registries and databases helped fam- ilies, art historians, and private investigators track down missing art.37 A growing movement for justice also led to the Washington Principles on Nazi-Con fiscated Art (1998) and the Tere zin Declar ation on Holocaust Era Assets of 2007—international accords encouraging the resolution of claims and the return of Nazi-confiscated art to its rightful owners.38 Despite these developments, recovery efforts were hindered by the loss and destruc tion of documents, false and incomplete prove- nance records, serial sales, black-market trafficking, indifference, and greed.39 As U.S. Ambassador Ronald Lauder, chairman of the Commission for Art Recovery, noted: What makes the Nazis’ crime “even more despicable” is that it “was continued by governments, Egon Schiele, Portrait of Wally Neuzil, 1912 , oil on panel, Leopold museums, and many knowing collectors in the decades following Museum, Vienna.

36 Los Angeles Lawyer June 2018 concentration camp, where he died.53 Bondi, who died in 1969, battle followed, pitting Altmann against the Republic of Austria. unsuccessfully sought for three decades to recover her beloved Austria challenged the court’s jurisdiction, but the U.S. Supreme “Portrait of Wally,” a mission continued by her children.54 Court disagreed and held that the Foreign Sovereign Immunities After World War II, the United States imprisoned Welz for Act (FSIA) did not bar an American court from adjudicating the war crimes and sent “Portrait of Wally” to Austria to be r eturned dispute.78 (See sidebar “FSIA-Related Reclamation Cases” on to Bondi.55 Instead, Austria kept the painting56 and later traded page 39.) it to Dr. Rudolph Leopold for another Schiele painting. Leopold The FSIA exempts foreign governments, and “agencies” and sold “Portrait of Wally” to the Leopold Museum in Vienna, “instrumentalities” of such governments, from the jurisdiction which he had founded.57 Also, Leopold had earlier pretended of American courts unless one of the act’s exceptions applies.79 that he was going to help Bondi recover the painting but instead One exception applies to property stolen by a foreign country surreptitiously acquired it.58 during wartime as part of genocidal policy.80 There is also a In 1997, while the painting was on loan to the Museum of requirement that a country, or its agents or instruments, be Modern Art (MoMA) in New York, Judith H. Dob rzynski wrote engaged in a related commercial activity in the United States81 an article for the New York Times exposing its history along In Altmann, the Supreme Court held that the FSIA and its with Leopold’s dark past as a collector of Nazi-looted art.59 Her exemptions applied retroactively to conduct that occurred before article prompted the Manhattan district attorney to subpoena the Act’s 1976 enactment.82 As a result, Altmann was not barred “Portrait of Wally” as stolen property one day before the MoMA from suing Austria in the United States. Despite winning this was to return the painting to the Leopold Museum.60 battle—given her age and years of potential litigation ahead of Although the New York Court of Ap peals, the state’s highest her—Altmann took a calculated risk and submitted her claims court, quashed that subpoena,61 the U.S. Attorney’s Office for the to arbitration in Austria,83 where she recovered the Klimt Southern District of New York seized “Portrait of Wally” and paintings.84 She then sold them collectively for $325 million, started a forfeiture action.62 Finally, after years of litigation, the with some of the proceeds covering legal services.85 The remainder district court held that Welz had stolen the painting and that the was devised upon her death five years later at 94 to her heirs Leopold Museum knowingly imported stolen art into the United and various charities.86 States.63 This finding made the painting subject to forfeiture and HEAR Act and Ongoing Litigation shifted the burden onto the Leopold Museum to establish a legitimate ownership interest.64 In 2010, on the eve of trial, the Restrictive SOLs deny claimants the opportunity to litigate their museum settled the dispute by buying “Portrait of Wally” for $19 cases on the merits, deter potential claimants, and reduce the million, which was paid to the Bondis, and agreed to post signage value of claims. Side litigation over SOLs also has been costly to when the painting was exhibited telling the story of its theft.65 claimants. Absent steep SOLs hurdles, courts in the United States are a favorable jurisdiction for Holocaust-era looting cases. The Woman in Gold availability of contingent fee arrangements, a lack of fee-shifting, Recounted in the film titled Woman in Gold, Altmann v. Austria66 the absence of litigation bond requirements, a common-law tra- was a case in which Maria Altmann sought to recover from dition, the right to appeal, and the rule that a thief cannot obtain Austria two Gustav Klimt portraits of her aunt Adele Bloch- good title via adverse possession make the United States a favorable Bauer and three Klimt landscape paintings purchased by her jurisdiction for such cases.87 (In Europe, restitution claims typically uncle Ferdinand Bloch-Bauer, a Jewish Viennese sugar magnate.67 are decided by governmental restitution commissions.) The most fam ous of these paintings, “Portrait of Adele Bloch- The HEAR Act aims to ensure “claims to Nazi-confiscated Bauer I,” portrays an elegant Adele wearing a gold dress and art are fairly adjudicated”88—a goal internationally espoused by standing in front of a gold background. Altmann, Ferdin and’s the Washington Principles on Nazi-Confiscated Art and the niece and heir, saw the Klimt paintings as a girl and sued to Terezin Declaration on Holocaust Era Assets. “The unique and recover them when she was 82.68 horrific circumstances of World War II and the Holocaust make Prior to Germany’s annexation of Austria, Ferdinand Bloch- statutes of limitations…defenses especially burdensome,” Congress Bauer, an opponent of the Nazis, fled Austria and settled in Zurich, stated in explaining the need for the legislation.89 Congressional Switzerland.69 Hitler, Goering, and Reinhard Heyrich—the architect reports add: “Those seeking recovery of Nazi-confiscated art of the Final Solution—divided up Ferdinand’s paintings and real must painstakingly piece to gether their cases from a fragmentary properties—including his refinery—which at the time processed historical record ravaged by persecution, war, and genocide. This 20 percent of Austria’s sugar.70 Bloch-Bauer died in 1945, the costly process often cannot be done within the time constraints same year that Altmann became an American citizen. 71 Altmann imposed by existing law.”90 had immigrated to America after she and her husband, Fritz, flew Court decisions have reduced the barrier posed by the FSIA, to Cologne, Germany, making “their way to the Dutch border, and similarly the HEAR Act seeks to limit SOLs barriers. Con - where, on a moonless night, a peasant guided them across a brook, sequently, the HEAR Act already has been proven useful in under barbed wire and into Holland.”72 pending cases. In 1998, pressured by the Austrian Green Party to make One such case is Cassirer v. Thyssen-Bornemisza Collection amends for its Nazi past, Austria opened its archives.73 Journal - (TBC), in which for 18 years—including 12 years of litigation— ist Hubertus Czernin discovered Austria had falsely claimed to two generations of the Cassirer family have assiduously sought have received as donations art expropriated by Austria, including to recover the Camille Pissarro painting of a rain-swept Paris the Klimt paintings.74 Czernin gave this evidence to Altmann street, “Rue Saint-Honoré dans l’apres-midi. Effet de Pluie” who used it to sue Austria.75 (“Saint-Honoré Street in the Afternoon. Effect of Rain”) that Retaining Randol Schoenberg, an idealistic young Los Angeles Lilly and Fritz Cassirer were forced to sell to a Berlin dealer in lawyer, family friend, and the grandson of the Austrian-expatriate 1939 because of German Aryanization laws.91 Following three composer Arnold Schoenberg,76 Altmann sued in California Ninth Circuit appeals reversing dismissals, their case heads because she could not afford Austria’s $350,000 litigation bond toward a bench trial in Los Angeles (as the FSIA bars jury trials imposed as a precondition to litigate there.77 A seven-year legal for extraterritorial cases).

Los Angeles Lawyer June 2018 37 are shorter than six years and are triggered based on constructive, not actual, notice.)104 The Ninth Circuit also held that the HEAR Act did not govern substantive legal issues.105 Thus, California law under which thieves cannot pass good title did not apply because Spanish ownership rules applied instead.106 Nevertheless, the Ninth Circuit overturned the district court’s holding that Spain acquired the painting by acquisitive prescription (continuous possession)107 because the district court ignored a Spanish law provision pre- venting an encubridor (accessory) who receives stolen property from acquiring valid title.108 Whether the Thyssen-Bornemisza family were encubridores is a triable issue, with the Cassirer family contending that the defendants ignored red-flag warnings that the painting they acquired was looted.109 These warnings included: 1) the low pur- chase price indicative of “dubious provenance”; 2) the fact that the Stephen Hahn Gallery, which brokered the sale, sold other Nazi-looted art; and 3) the fact that the back of the painting had a torn label from the “Cassirer Gallery,” owned by renowned Berlin collectors related to the plaintiffs,110 and which noted trial lawyer David Boies, who represented the family in their recent appeal, calls the “smoking gun.”111 In Philipp v. Federal Republic of Germ any, the heirs of three Jewish art dealers sued in federal court in Washington, D.C., alleging that by forced sales instigated in 1935, Prussia (then part of Germany) ac quired 42 ancient church artifacts for ap - proximately 35 percent of their value.112 The dealers were forced to deposit some of these funds into a blocked account subject to 113 Camille Pissarro: Rue Saint-Honoré in the Afternoon. Effect of Rain, 1897, “flight taxes” that Jews paid to escape from Germany. Afterwards, oil on canvas, Museo Thyssen-Bornemisza. Goering gave the artifacts to Hitler as a “sur prise present.”114 These jewel-encrusted, intricately wrought artifacts, known as the Purchased in 1898 by Julius Cassirer, this Impressionist painting “Guelph Treasure,” are worth more than $250 million.115 remained in the Cassirer family for 40 years before passing to In 2017, based on Altmann, the D.C. district court held that Lilly Cassirer (Neubauer), who fled Germany.92 In 1939, she it had jurisdiction to adjudicate Philipp,116 and that the HEAR and her husband, Fritz, exchanged their Pissarro painting for Act applied to the action.117 Germany has appealed. safe passage to England.93 The Nazis appraised the painting to A recent case, Zuckerman v. The Met ropolitan Museum of be worth $360, which was deposited into a blocked ac count Art, was brought in late 2016 by the estate of Alice Lef ferman— before the painting was sold at an auction.94 who, with her husband Paul, fled Nazi persecution and eventually In 1976, Baron Hans Heinrich Thyssen-Bornemisza purchased moved to Brazil—against the Metropolitan Museum of Art for the painting from the Stephen Hahn Gallery in New York for $100 million based on the distressed sale of Pablo Picasso’s oil $275,000 ($1.2 million today).95 The painting has since been painting, “The Actor.”118 The estate alleged the museum accepted appraised at approximately $30 million.96 In 1993, the Kingdom it as a donation in 1952 without investigating its provenance.119 of Spain purchased the Thyssen-Bornemisza collection (TBC) for The defendants asserted a SOL defense based on a three-year New $350 million and converted its Villahermosa Palace in Madrid York statute that the estate contends the HEAR Act mooted.120 into the Thyssen-Bornemisza Museum.97 Dismissal of SOLs Cases In December 1999, Claude Cassirer, Lilly’s grandson, learned that the Pissarro painting was displayed there.98 After unsuccess- Despite the finding in Altmann, there are a number of subsequent fully petitioning for its return, he sued in Los Angeles to recover art-looting cases brought in the United States that have been dis- the painting.99 Subsequent to Claude Cassirer’s death in 2010, missed or sidetracked because of SOLs defenses. One such case, his son David and daughter Ava took control of the case.100 Orkin v. Taylor, was particularly high-profile since it in volved a The Ninth Circuit has reversed jurisdictional, SOL, and sum- dispute between actress Elizabeth Taylor and Margarete Mauthner’s mary judgment decisions favoring the TBC. In the first appeal, heirs, the Orkins, over ownership of Van Gogh’s “Vue de l’asile et expanding on Altmann, the Ninth Circuit held the FSIA’s juris- de la Chapelle de Saint-Remy” (“View of the Asylum and Chapel dictional exemption applied to the TBC even though the defendants of Saint-Remy”).121 had not looted the painting,101 but instead were alleged beneficiaries Mauthner, a Jewish art collector, left the painting behind when of the looting. In the second appeal, the Ninth Circuit upheld she fled Berlin in 1939 and moved to South Africa.122 It then passed the constitutionality of a revised six-year California SOL for through various hands before Taylor’s father—an art dealer—pur- Nazi-looted art (subsequently expired) as a proper exercise of chased it for her in 1963 at a London Sotheby’s auction.123 state power that was not preempted by the foreign policy doctrine, In 2003, Mauthner’s descendants de manded its return.124 which gives the executive branch exclusive authority to conduct Taylor immediately responded by bringing a declaratory action foreign policy.102 In the third appeal, the Ninth Circuit partly in Los Angeles to establish title in her name. 125 The Orkins then held the HEAR Act applies both retroactively and prospectively.103 asserted restitution counterclaims alleging: 1) they began inves- (While retroactive application helps claimants in existing cases, tigating Mauthner’s collection in 1998 after passage of the prospective application is important be cause many state SOLs Holocaust Victims Redress Act126 and later learned that Mauthner

38 Los Angeles Lawyer June 2018 owned “Vue de l’asile et de la Chapelle de Saint–Rémy” 127 and ed his eldest son to Lodz, Poland—where he was killed—and sent 2) in 2002, they discovered Taylor possessed the painting through his wife to the Theresienstadt concentration camp. His wife survived, an Internet rumor that she sought to sell it.128 The Ninth Circuit but Reichel died of natural causes in 1943.132 affirmed a district court ruling barring the Orkins’s counterclaims Kallir, a Jewish art dealer who arranged art deals for Hitler based on a three-year SOL accruing at the time of the 1963 and was investigated by the FBI for being a Nazi agent,133 was Sotheby auction.129 more fortunate. He opened a New York gallery, and sold art to In another dispute involving Oskar Kokoschka’s “Two Nudes MoMA and the Guggenheim as well as to the National Gallery (Lovers),” Muse um of Fine Arts, Boston v. Seger-Thom schitz, the in Washington, D.C.134 Museum of Fine Arts in Boston (MFA) successfully invoked a Although the details are sketchy, Kal lir supposedly sent the SOL defense to avoid merits-based adjudication.130 Oskar Reichel, Reichel children $250 in 1941 or 1942 for five Kokoschka paint- a Jewish Viennese doctor who owned “Two Nudes,” lent it to ings including “Two Nudes,” 135 a tiny fraction of the paintings’ Otto Kallir for display in Kallir’s Vienna gallery and possible value. Then, in 1945, Kallir sold “Two Nudes” to the Nierendorf sale.131 After annexing Austria, the Nazis forced Jews to file dec- Gallery in New York for $1,500 (now $20,300). The painting larations listing their property as a prelude to confiscation. Reichel later changed hands before being donated to the MFA. 136 listed “Two Nudes” and other paintings Kallir held. The Nazis In 2003, Claudia Seger-Thomschitz, heir to the last surviving closed Reichel’s practice, stole his home and other property, deport- Reichel son, Raimund, received four Nazi-looted Reichel paintings FSIA-Related Reclamation Cases

Von Saher v. Norton Simon Museum of Art at Pasadena. This case concerns became the property of the Dutch government after World War II, giving two life-size Lucas Cranach paintings (the Cranachs).1 One, titled “Adam,” that government the right to sell them.16 Von Saher has appealed. stands under the Tree of Knowledge holding the apple of temptation. The deCsepel v. Republic of Hungary. This case stems from the Herzog other Cranach depicts “Eve” also cradling an apple while listening to a family’s decades-long efforts to recover more than two thousand paintings, serpent.2 The Nazis stole these paintings from Jacques Goudstikker, who including works by El Greco, Velazquez, Renoir, and Monet, looted by bought them from the Soviet Union in 1931 at auction.3 Hungary while allied with the Nazis. The Herzogs fled Hungary in 1944, Goudstikker owned a preeminent Am ster dam gallery specializing in and the government required them to leave their art behind. Hitler hench- European masters. In May 1940, fearing for their safety, Goudstikker, his man Adolf Eichmann shipped his favorite pieces to Germany. Other wife, Desi, and their son, Edo, fled Holland to board a freightliner bound artworks were left in Hungary, and some exported artworks were returned for South America.4 At sea, Goud stikker fell through an uncovered hatch to Hungary after World War II, where they were placed in Hungarian muse- in the ship’s deck, broke his neck, and died.5 However, he had kept a ums and the Budapest University of Technology and Economics.17 pocket-size notebook describing 1,113 artworks, later relied upon by his Before suing in D.C., Herzog descendants unsuccessfully attempted daughter-in-law Marei Von Saher to recover some family art.6 to recover much of this art by petitioning Hungary and pursuing litigation With the Goudstikkers gone, Hermann Goering and Alois Miedl, a there.18 In June 2017, the D.C. Court of Appeals held that: Nazi collaborator, expropriated their property. In sham sales, Goering • The Herzog heirs could sue the Hungarian entities holding family acquired 779 masterpieces, including the Cranachs along with Goud- artworks, but not Hungary. stikker-owned paintings by Rembrandt, Rubens, Van Dyck, Van Gogh, • The FSIA did not bar U.S. jurisdiction because the artwork was taken in and others for $1.1 million (now $19 million), a fraction of their value.7 violation of international law and is possessed by instrumentalities or Miedl purchased 334 paintings and Goudstikker’s canal-side gallery, agents of a foreign state engaged in U.S. commerce. twelfth-century castle, Amsterdam home, and country estate for a total of • A treaty with the United States barred some, but not all, claims. $307,000 (now $5.3 mi llion).8 Without authorization, Goud stik ker employees • The heirs could amend their complaint “in light of” the HEAR Act.19 negotiated these sham sales.9 While Goering and Miedl sold many Goudstikker paintings, after 1 Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F. 3d 712, 715 (9th Cir. 2014). World War II the Allies recovered and returned 400 paintings to the Dutch 2 Bert Demarsin, The Third Time is Not Always a Charm: The Troublesome Legacy of a Dutch government with the understanding that the artworks would be returned Art Dealer—The Limitation and Act of State Defenses in Looted Art Cases, 28 CARDOZO ARTS & ENT. L.J. 255, 280 (2010) [hereinafter Demarsin]. to the Goudstikkers. Character izing the Goering and Miedl “sales” as 3 Id. at 276; Von Saher, 754 F. 3d at 276; Alan Riding, Goering, Rembrandt and the Little 10 valid, though, the Dutch government kept everything. Black Book, N.Y. TIMES, Mar. 26, 2006 [hereinafter Riding]. In the 1950s, the Dutch government sold dozens of Goudstikker paint- 4 Demarsin, supra note 2, at 276; Benjamin Genocchio, Seized, Reclaimed and Now on ings,11 and in 1966 it sold the Cranachs for an undisclosed price to a Russian View, N.Y. TIMES, Apr. 27, 2008. whose family had once owned them. He sold them in 1971 to the Norton 5 Von Saher, 754 F. 3d at 715.6 Demarsin, supra note 2, at 277; Riding, supra note 3. 7 Simon Foundation for $800,000 (now $4.8 million). Today, the paintings Id. 8 Demarsin, supra note 2, at 277. 12 are estimated to be worth approximately $30 million. 9 Von Saher, 754 F. 3d at 715. Von Saher and her two daughters (Goud stikker’s granddaughters)— 10 Id. at 716-17. all now Amer icans—spearhead family efforts to recover the Cranachs. 11 Id. at 716. Thus, in 2006, the Dutch government returned 200 artworks plundered 12 Carolina A. Miranda, Court Rules Museum Can Keep Nazi-looted Adam and Eve Masterpieces by Goering to Von Saher after determining its earlier restitution policy with a Hidden Past, L.A. TIMES, Aug. 22, 2016. 13 Von Saher, 754 F. 3d at 718, 722-23. was “legalistic, bureaucratic, cold and often even callous”—a decision 14 Demarsin, supra note 2, at 280. 13 that came too late to recover the Cranachs. In 2007, after unsuccessful 15 Von Saher, 754 F. 3d at 721-22 (holding conversion and replevin claims were not pre- settlement negotiations, Von Saher sued the Norton Simon Found ation empted). to recover “Adam” and “Eve.”14 16 Von Saher v. Norton Simon Museum of Art at Pasadena, CV 07-2866-JFW(SSx) 2016 WL The case is now before the Ninth Circuit for the third time.15 Most 7626153 at *3, 10, 12-13 (C.D. Cal. 2016). 17 deCsepel v. Hungary, 859 F. 3d 1094, 1097-98 (2017). recently, the district court granted summary judgment in Norton Simon’s 18 Id. favor upon deciding the Cranachs were lawfully acquired by Goer ing and 19 Id. at 1100-10.

Los Angeles Lawyer June 2018 39 from the Museum of Vienna sold at “the Grosz’s estate, prior to filing suit on and Binding Intervention to Balance the Interests of same time” as “Two Nudes” and “under April 10, 2009,151 demanded the return of Victims and Museums, 15 VAND. J. ENT. AND TECH. L. 673, 679 (2013). similar circumstances.”137 The return of the caricatures, and the following events 9 See generally LUCY DAWIDOWITCZ, THE WAR AGAINST 152 these paintings prompted Seger-Thomschitz occurred: 1) the MoMA retained counsel THE JEWS, 1933-1945 (1975). to investigate the provenance of “Two to recommend disposition;153 2) on July 10 U.S. v. Portrait of Wally, 663 F. Supp. 2d 232, 239 Nudes” and demand its return. In re sponse, 20, 2005, the museum represented that (S.D. N.Y. 2009). the MFA sued in Boston to obtain quiet even though its counsel had not made a 11 See, e.g., Alex Shoumatoff, The Devil and the Art Dealer, VANITY FAIR, Apr. 2014 [hereinafter Shouma- title. Seger-Thomschitz counterclaimed recommendation, it believed it had supe- toff]; Jennifer A. Kreder, Fighting Corruption of the 154 for conversion and replevin, and the MFA rior title; and 3) on April 12, 2006, the Historical Record: Nazi-Looted Art Litigation, 61 moved for summary judgment. The First museum accepted counsel’s recommenda- KAN. L. REV. 75, 97 (2012) [hereinafter Kreder II]. Circuit affirmed a district court ruling that tion to keep the art.155 Under New York 12 See, e.g., Kreder II, supra note 11, at 126. her counterclaims accrued when the Mu- law, a buyer of stolen property becomes a 13 BAZYLER, supra note 6, at 295. 14 se um of Vienna contacted her and were wron gdoer after refusing the owner’s Martin Gayford, Cracking the Case of Nazis’ Stolen Art, THE TELEGRAPH, Nov. 9, 2013 [hereinafter 156 time-barred pursuant to Mas sachu setts’ demand to return the property. Whether Gayford]. controlling three-year SOL.138 this case was barred by the applicable three- 15 Kenneth Turan, War’s Forgotten Casualty: Art, In yet another circumstance, the heirs year SOL, therefore, turned on when the L.A. TIMES, Sept. 28, 2007; Sarah Wildman, The of Martha Nathan brought two cases, Tol - MoMA’s refusal occurred. Revelations of a Nazi Art Catalogue , NEW YORKER, edo Museum of Art v. Ullin and Detroit The district court held that the museum’s Feb. 12, 2016 (requiring requisitioning of the Galerie nationale du Jeu de Paume to store their stolen trove) Institute of Arts v. Ullin. In the Toledo case, July 20, 2005, letter coupled with its re - [hereinafter Wildman] Gayford, supra note 14 (The they sought Paul Gauguin’s “Street Scene tention of the caricatures constituted a Nazis also confiscated avant-garde artworks to display in Tahiti,”139 and in the Detroit case, Vincent refusal, meaning the statute expired July as “degenerate art” or sell); Kreder II, supra note 11, van Gogh’s “Les Becheurs.”140 Nathan, the 20, 2008, barring the case filed April 10, at 95. 16 wife of a Jewish art collector who died in 2009.157 The district court rejected the FREDERIC SPOTTS, HITLER AND THE POWER OF AES - 141 THETICS, 216-17 (2002) (Hitler planned to open the 1922, fled Nazi Germany in 1937. Grosz’s estate’s arguments that the SOL Führermuseum, a mega-museum in his hometown of In 1999, the American Association of should have been tolled during the parties’ Linz, Austria.). Museums adopted guidelines for handling extended settlement discussions and that 17 Henry Samuel, Hermann Goering’s ‘Full Catalogue’ Nazi-era art.142 Pursuant to these guide- it had not started to run until April 12, Of Looted Nazi Art Published for First Time, THE lines, museums listed on their websites 2006, when the museum accepted counsel’s TELEGRAPH, Sept. 30, 2015. 18 paintings in their collections with Nazi- recommendation.158 The Second Circuit Wildman, supra note 15. 19 Von Saher v. Norton Simon Museum of Art at 159 era provenances, leading to these law- affirmed. Pasadena, 592 F. 3d 954, 962 (9th Cir. 2010). (Allies suits.143 District courts dismissed both Ullin As is evident from the cases that have discovered looted caches in castles, bank vaults and cases, based on similar three- and four- been dismissed due to SOLs, the struggle mines). year SOLs, holding Nathan had construc- to see justice done in the arena of Nazi- 20 Cornelius Gurlitt is the son of Hidebrand Gurlitt, a tive notice (imputed to her heirs) of any looted artwork is far from over. Never - German Jew who assisted Nazi Propaganda Minister Josef Goebbels to sell looted art. Shoumatoff, supra 144 claims in the 1940s during the chaos of theless, the HEAR Act holds out hope that note 11. When former Gestapo Captain Bruno Lohse, World War II, when no court would have in the future victims may have recourse to 95, died in Munich, authorities discovered his stash entertained either action. reclaim family art that had been lost due of looted art. Jonathan Petropoulos, Inside the Secret Grosz v. Museum of Modern Art is a to the extreme conditions of that era, includ- Market for Nazi-Looted Art, ARTNEWS, Jan. 2014. 21 case that concerns George Grosz, a Dadaist ing art located overseas.160 As actress Helen See, e.g., Shoumatoff, supra note 11. The heist depleted numerous European family collections. Alan known for his caricatures depicting 1920s Mirren, who portrayed Maria Altmann in Riding, Goering, Rembrandt and the Little Black Berlin life. His work typified the “degen- the film, Wo m an in Gold, testified before Book, N.Y. TIMES, Mar. 26, 2006 [hereinafter Riding]. erate” art that Hitler hated.145 Although the U.S. Senate for adoption of the HEAR 22 Jennifer A. Kreder, Guarding the Historical Record not Jewish, the Nazis branded Grocz a Act: The Act “gives Jewish people and other from the Nazi-Era Art Litigation Tumbling Toward state enemy, revoked his citizenship, and victims of the Nazi terror the opportunity the Supreme Court, 159 U. PA. L. REV., 253, 253 (2011) (many museums and collectors knowingly forced him to emigrate.146 After living in to re claim their history, their culture, their acquired Nazi-looted art); Kreder II, supra note 11, New York, he returned to Berlin where, memories and, most importantly, their at 97 (2012) (since the 1930s, warnings of a contam- in 1959, he died.147 families.”161 n inated market have been pervasive). Following an investigation and unsat- 23 Id. 24 isfactory settlement discussions, Grosz’s 1 22 U.S.C. §6. Francis Henry Taylor, Europe’s Looted Art: Can it son Martin sued in New York on behalf 2 Id. be Recovered?, N.Y. TIMES, Sept. 19, 1943 (“Not since…Napoleon Bonaparte has there been the whole- of Grosz’s estate to recover three carica- 3 Id. 4 Jennifer A. Kreder, State Law Holocaust-Era Art sale looting…going on today”). tures, “Hermann-Neisse with Cognac,” 25 Claims and Federal Executive Power, 105 Nw. U. L. Janet Flanner, The Beautiful Spoils, NEW YORKER, “Self-Portrait with Model,” and “Repub - Rev. 315, 317 (2011) [hereinafter Kreder I]. Feb. 22, March 1, March 8, 1947. Decades later, in li can Automatons” created and owned by 5 Id. 1964, The New York Times ran a front-page story pointing out that the art world remained insensitive Grosz from the MoMA.148 The lawsuit 6 MICHAEL J. BAZYLER, HOLOCAUST JUSTICE: THE BATTLE to the proliferation of Nazi-looted art. See Milton FOR RESTITUTIONIN AMERICA’S COURTS 205 (2005) alleged that Grosz had left his art with a Esterow, Europe Is Still Hunting Its Plundered Art: [hereinafter BAZYLER]. Jewish art dealer, whom the Nazis also Hundreds of Millions in Treasures Elude Postwar 7 See generally LYNN H. NICHOLAS, THE RAPEOF Search, N.Y. TIMES, Nov. 16, 1964. forced to flee Berlin, whereupon the paint- EUROPA: THE FATEOF EUROPE’S TREASURESINTHE 26 Ardelia R. Hall, The Recovery of Cultural Objects ings “fell prey to unscrupulous art pro - THIRD REICH AND THE SECOND WORLD WAR (1995) Dispersed During World War II, 25 DEP’T ST. BULL. fessionals, who took advantage of the [hereinafter NICHOLAS]. 8 Article 46 of The Hague Convention forbids confis- 337, 339 (1951); Ardelia R. Hall, U.S. Program for political climate” to “divest Grosz of his Return of Historic Objects to Countries of Origin, ownership.”149 Years later, MoMA received cation of private property. Article 56 forbids seizure of “works of art.” The Nazis sometimes left phony 1944-1954, 31 DEP’T ST. BULL. 493, 496 (Oct. 4, 1954). 27 “Self-Portrait of a Model” as a donation paper trails to disguise distress sales. Katharine Skinner, Riding, supra note 21. 150 28 and purchased the other caricatures. Restituting Nazi-Looted Art: Domestic, Legislative, Kreder I, supra note 4 at 317-18.

40 Los Angeles Lawyer June 2018 29 NICHOLAS, supra note 7 at 438-39. 65 Press Release, U.S. Attorney S. Dist. N.Y., United 115 Melissa Eddy, German Panel Says Medieval Trea - 30 Jim Morrison, The True Story of the Monuments States Announces $19 Million Settlement in Case of sure Should Not be Returned to Heirs of Jewish Own - Men, Smithsonian.com (Feb. 7, 2014), available at Painting Stolen by Nazi, July 20, 2010. ers, N.Y. TIMES, March 20, 2014. http://www.smithsonianmag.com/history/true-story 66 Austria v. Altmann, 541 U.S. 677 (2004). 116 Philipp, 2017 WL 1207408, at *5-10. -monuments-men-180949569. 67 Id. at 681-84. 117 Id. at *11 n.11. 31 See, e.g., Von Saher v. Norton Simon Museum of Art 68 Sharon Waxman, A Homecoming, in Los Angeles, 118 Graham Bowley, Met Picasso Belonged to Family at Pasadena, 754 F. 3d 712, 716 (9th Cir. 2014) (“In for Five Klimts Looted by Nazis, N.Y. TIMES, Apr. 6, that Fled Nazis, Suit Says, N.Y. TIMES, Sept. 30, 2016. 1946, the Allies returned much of the Goudstikker 2006. 119 Id. Collection to the Dutch government so that the art- 69 Altmann, 541 U.S. at 682. 120 See Zuckerman v. Metropolitan Museum of Art, works could be held in trust for their lawful owners: 70 Id. 16-cv-07665, available at https://www.sdnyblog.com Desi, Edo and Emilie [Goudstikker].”) 71 LERNER AND BRESLER, supra note 45, at 761. /files/2016/10/16-Civ.-7665-Complaint.pdf. 32 Id.; see also “Hear Act and Ongoing Litigation,” 72 William Grimes, Maria Altmann, Pursuer of Family’s 121 Orkin v. Taylor, 487 F. 3d 734, 736 (2007). infra 37-38, and sidebar “FSIA Reclamation Cases,” Stolen Paintings, Dies at 94, N.Y. TIMES, Feb. 9, 2011. 122 Id. infra 39. 73 Waxman, supra note 68. 123 Id. at 737. 33 Julia Edwards, “Monuments Men” veteran predicts 74 Id. 124 Id. more Nazi-seized art will surface, Reuters, Nov. 21, 75 Altmann, 541 U.S. at 680. 125 Id. at 738. 2013, https://www.reuters.com. 76 Tom Tugend, Meet the L.A. Attorney Whose Success - 126 Holocaust Victims Redress Act, Pub. L. No. 105- 34 See Hall, supra note 26. ful Restitution Effort Inspired “Woman in Gold,” 158, 112 Stat. 15 (1998). 35 NICHOLAS, supra note 7. JEWISH TELEGRAPHIC AGENCY, Apr. 3, 2015. 127 Id. at 739, 742. 36 Jennifer A. Kreder, The New Battleground of 77 Altmann, 541 U.S. at 685. 128 Id. Museum Ethics and Holocaust-Era Claims, 88 OREGON 78 Id. 129 Id. at 742. L. REV. 37, 39 (2009). 79 28 U.S.C. §1330 (a). 130 Museum of Fine Arts, Boston v. Seger-Thomschitz, 37 Skinner, supra note 8 at 677. 80 28 U.S.C. §1605(a)(3) Cf. deCsepel v. Hungary, 623 F. 2d 1, 3 (2010). 38 Washington Conference on Holocaust-Era Assets 859 F. 3d 1094 (2017). 131 Id. at 3. Pro ceedings (1998), U.S. Dep’t State, available at https:// 81 deCsepel, 859 F. 3d at 1094. 132 Id. 19972001.state.gov/regions/eur/wash_conf_material 82 Altmann, 541 U.S. at 694-700, 133 Shoumatoff, supra note 11; Kreder II, supra 11 at .html (last viewed Apr. 20, 2018); Prague Holocaust 83 LERNER AND BRESLER, supra note 45, at 763. 126. Era Assets Conference: Terezin Declaration (2009), 84 Id. 134 Museum of Fine Arts, Boston, 623 F. 2d at 4. U.S. Dep’t State, available at https://www.state.gov/p 85 Id. at 764. 135 Id. at 3-4. /eur/rls/or/126162.htm (last viewed Apr. 20, 2018). 86 Waxman, supra note 68. 136 Id. at 4. 39 Kreder II, supra note 11 at 75, 76, 83, 97, 98, 100, 87 Since Altmann, more than 250 claimants worldwide 137 Id. 101, 110, 115, 117, 127. have settled Nazi-tainted art claims. See Resolved 138 Id. at 8-10. 40 Ronald Lauder, Helen Mirren Testify Before US Stolen Art Claims: Claims for Art Stolen During the 139 Toledo Museum of Art v. Ullin, 447 F. Supp. 2d Senate Committee on Nazi-looted Art, WORLD JEW- Nazi Era and World War II, Including Nazi-Looted 802, 803 (N.D. Ohio 2006). ISH CONGRESS, June 8, 2016, available at http://www Art and Trophy Art, Herrick, Feinstein LLP, http://www 140 Detroit Inst. of Arts v. Ullin, No. 06-10333, 2007 .worldjewishcongress.org/en. .herrick.com/content/uploads/2016/01/Resolved-Stolen- WL 1016996, at *1 (E.D. Mich. 2007). 41 Sheryl Gay Stolberg and Brian M. Rosenthal, Man Art-Claims.pdf (last viewed Apr. 23, 2018). 141 Toledo Museum of Art, 447 F. Supp. 2d at 804. Charged After White Nationalist Rally in Charlottesville 88 S. 2763, 114th Cong. (2016); H.R. 6130, 114th 142 Raymond J. Dowd, Nazi Looted Art and Cocaine: Ends in Deadly Violence, N.Y. TIMES, Aug. 12, 2017; Cong. (2016). When Museum Directors Take It, Call the Cops, 14 Austria’s Kurz Strike Deal to Bring Far Right into Gov - 89 Id. RUTGERS J. L. & RELIGION, 529, 541(guidelines adopted ernment, Reuters, Dec. 15, 2017; Debbie Maimon, New 90 Id. to stave off legislation). Polish Law Blocks Holocaust Survivors from Reclaiming 91 Cassirer v. Thyssen-Bornemisza Collection Found., 143 Toledo Museum of Art, 447 F. Supp. 2d at 805; Stolen Property, YATED NE’EMAN, Oct. 25, 2017. No. 2:05-cv-03459-JFW-E, 2017 WL 2925000 (9th Detroit Inst. of Arts, 2007 WL 1016996, at *2. 42 The HEAR Act applies to all artwork lost due to Cir. 2017). 144 Toledo Museum of Art, 447 F. Supp. 2d at 803- Nazi persecution. S. 2763, 114th Cong. (2016); H.R. 92 Cassirer v. Kingdom of Spain, 616 F. 3d 1019, 09; Detroit Inst. of Arts, 2007 WL 1016996, at *3. 6130, 114th Cong. (2016). 1022-23 (9th Cir. 2010). 145 Grosz v. Museum of Modern Art, 772 F. Supp. 2d 43 California’s expired statute only applied to art in 93 Id. at 1023. 473, 476 (S.D. N.Y. 2010) museums and galleries. CIV. PROC. CODE §338(c)(3)(A). 94 Id. 146 Id. 44 But see Menzel v. List, 49 Misc. 2d 300, 304-05 95 Cassirer, 2017 WL 2925000, at *3. 147 Id. at 481. (N.Y. Sup. Ct. 1966) (couple successfully sued for the 96 Associated Press, Family Can Seek Return of Nazi- 148 Id. at 476. return of a looted Marc Chagall painting). looted Pissarro in Court, LA. TIMES, July 10, 2017. 149 Id. at 477. 45 RALPH E. LERNER AND JUDITH BRESLER, ART LAW 97 Cassirer, 2017 WL 2925000, at *3. 150 Id. at 477, 480. Vol. 1 743 (4th ed. 2012). 98 Id. at *4 n.5. 151 Id. at 482. 46 United States v. Portrait of Wally, 663 F. 2d 232, 99 Id. 152 Id. 238 (S.D. N.Y. 2009). 100 Id. at *1. 153 Id. 47 Id. 101 Cassirer v. Kingdom of Spain, 616 F. 3d 1019, 154 Id. at 486-88. 48 Id. 1031-32 (9th Cir. 2010). 155 Id. at 485. 49 Judith H. Dobryzynski, The Zealous Collector—A 102 Cassirer v. TBC, 737 F. 3d 613, 617-19 (9th Cir. 156 Id. at 482. Singular Passion for Amassing Art, One Way or An - 2013). 157 Id. at 486, 490. other, N.Y. TIMES, Dec. 24, 1997. 103 Cassirer, 2017 WL 2925000, at *6. 158 Id. at 483-90. 50 Wally, 663 F. 2d at 238. 104 Id. at *2. 159 Grosz v. MEmmm of Modern Art, 403 F. App’x 51 Dobryzynski, supra note 49. 105 Id. at *6-7. 575 (2d Cir. 2010). 52 Id. 106 Id. 160 Reif v. Nagy, Index No. 1617799/2015, decided 53 Wally, 663 F. 2d at 239. 107 Id. at *10-17. April 5, 2018, by the New York Supreme Court in 54 Id. at 245. 108 Id. plaintiffs’ favor with summary judgment holding deny- 55 Id. at 239-41. 109 Id. at * 19. ing a laundry list of eighteen defenses, including two 56 Id. at 241-44. 110 Id. timeliness defenses, further illustrates the potential 57 Id. 111 Jenny Bourne, Court Battle for Recovery of Im - impact of the HEAR Act, offering hope to other families 58 Dobryzynski, supra note 49. pres sionist Painting Stolen from Jewish Family by victimized by Nazi looting. The decision liberally 59 Id. Nazis, http://www.kusi.com/court-battle-for-recovery quotes from the HEAR Act and its legislative history. 60 LERNER AND BRESLER, supra note 45 at 761; Wally, -of-impressionist-painting-stolen-from-jewish-family It stands in contrast to earlier post-Altmann cases, 663 F. 2d at 246. -by-nazis, July 12, 2017. where other families apparently similarly situated never 61 Wally, 663 F. 2d at 246. 112 Philipp v. Germany, N. 15-266 (CKK), 2017 WL were able to litigate their cases on the merits. 62 Id. at 246, 251-52, 256-76. 1207408, at *2 (D. D.C. Mar. 31, 2017). 161 Emmarie Heitteman, Senate Bill Would Help 63 Id. 113 Id. Recover Art Stolen by Nazis, N.Y. TIMES, June 7, 64 Id. 114 Id. 2016.

Los Angeles Lawyer June 2018 41 2018 to referral guide

has written and lectured extensively in the area of beforehand. Please refer to the testimonials on my ADMINISTRATIVE LAW appellate law. website from clients for whom I have handled com- plex matters of many years’ duration. LAW OFFICES OF MICHAEL GOCH, P.C. 5850 Canoga Avenue, Suite 400, Woodland Hills, BAD FAITH LITIGATION CA 91367, (818) 710-7190, fax (818) 710-7191, CIVIL RIGHTS e-mail: [email protected]. Website: KELLER/ANDERLE LLP michaelgochlaw.com. 18300 Von Karman Avenue, Suite 930, Irvine, THE LAW OFFICES OF DALE K. GALIPO Contact Michael Goch. Licensing and disciplinary proceedings with CA 92612, (949) 476-8700, fax (949) 476-0900, 21800 Burbank Boulevard, Suite 310, Woodland emphasis on health-care practitioners, as well as e-mail: [email protected]. Website: Hills, CA 91367, (818) 347-3333, fax (818) 347- www.kelleranderle.com. 4118. Specializing in police shootings, excessive Department of Health Care Services matters and Contact Kay Anderle. Keller/Anderle LLP is among the premier boutique force, and other police negligence. related issues, from investigatory stage through See display trial firms in California. The firm handles high- trial and writ proceedings. Degrees/licenses: JD ad on page 45. Southwestern University School of Law, Cum stakes litigation of all types including commercial, Laude, 1978; admitted in California since 1978. intellectual property, securities, bad faith, class ac- CLASS ACTIONS Also admitted in Central, Eastern, Northern, South- tions, white collar criminal defense, and entertain- ern Districts and Ninth Circuit. ment/sports. Keller/Anderle LLP attorneys have KELLER/ANDERLE LLP won over $925 million in judgments, and success- 18300 Von Karman Avenue, Suite 930, Irvine, fully defended many other clients. Members of the CA 92612, (949) 476-8700, fax (949) 476-0900, ADOPTION—DOMESTIC, STEPPARENT, firm have over 300 jury trials among them. Keller/ e-mail: [email protected]. Website: ADULT, INDEPENDENT, RELATIVE, Anderle is rated Tier One by U.S. News and World www.kelleranderle.com. Report. The firm is 100% women-owned. Contact Kay Anderle. AGENCY AND SURROGACY See dis- Keller/Anderle LLP is among the premier boutique play ad on page 2. trial firms in California. The firm handles high- THE LAW OFFICES OF DAVID H. BAUM, stakes litigation of all types including commercial, APLC BUSINESS LITIGATION intellectual property, securities, bad faith, class ac- 16255 Ventura Boulevard, Suite 840, Encino, CA tions, white collar criminal defense, and entertain- 91436-2317, (818) 501-8355, fax (818) 5018465, GIRARDI | KEESE ment/sports. Keller/Anderle LLP attorneys have e-mail: [email protected]. Websites: www.adopt- 1126 Wilshire Boulevard, Los Angeles, CA 90017, won over $925 million in judgments, and success- law.com www.adoptionhelp.com, and www.pro- (213) 977-0211, fax (213) 481-1554. Website: www fully defended many other clients. Members of the batelawca.com. .girardikeese.com. Special- firm have over 300 jury trials among them. Keller/ Contact David H. Baum, APLC. Contact Tom Girardi. More than 38 years of expertise in representation ties: ADR, class action practice, and product liabil- Anderle is rated Tier One by U.S. News and World of adoptive parents, stepparents, and birth parents ity. Recognized as one of the leading trial firms in Report. The firm is 100% women-owned. See dis- in all forms of adoption, guardianship, family for- the country. Professional affiliations: LACBA; Bev- play ad on page 2. mation, probate law, and assisted reproduction erly Hills Bar Association; American Board of Trial technology law. Fellow and Past President, Acade- Advocates; International Academy of Trial COMMERCIAL LITIGATION my of California Adoption Lawyers (1996-2005, Lawyers; Inner Circle. 2008-2011); Fellow and President, Academy of See display ad on page 43. California Family Formation Lawyers (2001-2005, KELLER/ANDERLE LLP 2008-2011); Fellow, American Academy of Assist- CERTIFIED FAMILY LAW SPECIALIST 18300 Von Karman Avenue, Suite 930, Irvine, ed Reproduction Technology Attorneys (2009- CA 92612, (949) 476-8700, fax (949) 476-0900, 2017); Fellow, American Academy of Adoption At- BRANDON LAW GROUP e-mail: [email protected]. Website: 3020 Old Ranch Parkway, Suite 300, Seal Beach, www.kelleranderle.com. torneys (1992-2017). A-V rated by Martindale- Contact Kay Anderle. Hubbell for more than 33 years. Member of Bar CA 90740, (562) 901-9800, fax (562) 799-5700, Keller/Anderle LLP is among the premier boutique Register of Preeminent Lawyers. Super Lawyer de- e-mail: [email protected]. Website: trial firms in California. The firm handles high- www.brandonlaw.net. stakes litigation of all types including commercial, signee (2007- present). Recipient of U.S. Congress Contact Lisa Brandon. Angel in Adoption Award 2004. Dissolution of marriage/legal separation; custody intellectual property, securities, bad faith, class ac- and/or child support issues; spousal support; and tions, white collar criminal defense, and entertain- marital agreements (litigation and mediation). ment/sports. Keller/Anderle LLP attorneys have APPELLATE LAW/CIVIL APPEAL won over $925 million in judgments, and success- LAW OFFICE OF KAREN S. BROWN fully defended many other clients. Members of the HONEY KESSLER AMADO 10866 Wilshire Boulevard, Suite 400, Los firm have over 300 jury trials among them. 261 South Wetherly Drive, Beverly Hills, CA Angeles, CA 90024, (323) 274-2697, e-mail: Keller/Anderle is rated Tier One by U.S. News and 90211, (310) 550-8214, fax (310) 274-7384, [email protected]. Website: www World Report. The firm is 100% women-owned. email: [email protected]. Website: .KSBFamlaw.com. www.amadolaw.com. Contact Karen S. Brown. See display ad on page 2. Contact Honey Kessler Certified family law specialist handling divorce, Ms. Amado (AV-rated) is a Certified Ap- Amado. complex custody, and financial matters for working COPYRIGHT LAW pellate Law Specialist (California State Bar Board families and high net worth individuals. I provide of Legal Specialization). On the trial level, she joins quality service for my clients and have extensive LAW OFFICE OF PAUL D. SUPNIK the litigation team to assist with identifying issues, experience as a civil litigator and trial attorney for 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, creating a sufficient record for appeal, and draft- all family law related matters both prior to dissolu- CA 90212, (310) 859-0100; fax (310) 388-5645, ing complex briefs or postjudgment pleadings and tion and postjudgment. Also, I handle prenuptial e-mail: [email protected]. Website: supnik.com; motions. On the appellate level, Ms. Amado pre- and postnuptial agreements. I work toward resolu- www.NotSoBIGLAW.com. Federal court litigation; pares the briefs and argues the case to the court. tion of all matters and resort to litigation only when local counsel for out-of-town firms; infringement, When retained as a consultant on appeal, Ms. necessary. If that is the only option, I am a tena- fair use, subject matter issues, ownership, registra- Amado assists counsel with identifying issues, cious litigator and strive to get my clients the very tion, public domain, termination of transfer and du- strategizing the appeal, and drafting or editing the best results in the court system after fully explain- ration issues; past chair of both LACBA’s Entertain- appellate briefs and motions. Ms. Amado has ing the process and reviewing cost/benefit issues been counsel in a number of landmark cases and ment and Intellectual Property Section as well as

42 Los Angeles Lawyer June 2018

International Law Section; past chair Los Angeles .bononilawgroup.com. We LACBA; Beverly Hills Bar Association; American Contact Lisa Bononi. Copyright Society; author “Copyright Infringement” are California’s leaders in employment law. We are Board of Trial Advocates; International Academy in CEB publication Proof in Competitive Business highly experienced in handling negotiations and in of Trial Lawyers; Inner Circle. See display ad on Litigation. litigating cases in court. When you need experi- See display ad on page 45. page 43. enced counsel for an employment dispute, call CORPORATE, SECURITIES, Bononi Law Group, LLP. ERISA BENEFITS & GOVERNANCE LAW OFFICE OF ELI M. KANTOR KANTOR & KANTOR LLP 9595 Wilshire Boulevard, Suite 405, Beverly Hills, GIRARDI | KEESE 19839 Nordhoff Street, Northridge, CA 91324, CA 90212, (310) 274-8216, fax (310) 273-6016, 1126 Wilshire Boulevard, Los Angeles, CA 90017, (818) 886-2525, fax (818) 350-6272, e-mail: gkan- e-mail: [email protected]. Website: www (213) 977-0211, fax (213) 481-1554. Website: [email protected]. Website: www.kantorlaw.net. .beverlyhillsemploymentlaw.com. www.girardikeese.com. Contact Eli or Adminis- Contact Tom Girardi. We specialize in all aspects of labor and Contact Glenn Kantor Alan Kassan. Specialties: ADR, class action practice, and prod- Kantor. trative appeals, litigation, state and federal court, employment law, including sexual harassment, uct liability. Recognized as one of the leading trial appellate work. Free consultations and all cases wrongful discharge, employment discrimination, firms in the country. Professional affiliations: are taken on a contingency fee basis. wage and hour, as well as class action litigation. See display LACBA; Beverly Hills Bar Association; American ad on page 5. Board of Trial Advocates; International Academy of STEPHEN DANZ & ASSOCIATES Trial Lawyers; Inner Circle. See display ad on 11661 San Vicente Boulevard, Suite 500, Los EXPERT WITNESS page 43. Angeles, CA 90049, (877) 789-9707, fax (310) 207-5006, e-mail: stephen.danz OSTROVE, KRANTZ & ASSOCIATES CRIMINAL DEFENSE/WHITE COLLAR @employmentattorneyca.com. Website:www 5757 Wilshire Boulevard, Suite 535, Los Angeles, .employmentattorneyca.com. CA 90036, (323) 939-3400, fax (323) 939-3500, Contact Stephen KELLER/ANDERLE LLP Over 30 years of trial and settlement experi- e-mail: [email protected]. Website: www Danz. 18300 Von Karman Avenue, Suite 930, Irvine, ence Stephen Danz and Associates is California’s .lawyers.com/ok&alaw. . Contact David Ostrove. CA 92612, (949) 476-8700, fax (949) 476-0900, largest employee-only, statewide law firm with of- Expert witness for over 47 years. Specializes in e-mail: [email protected]. Website: fices in Los Angeles, San Diego, Sacramento, lawyer/accountant malpractice, forensic account- www.kelleranderle.com. Fresno, Orange County, San Bernardino, and San ing, tax matters, business valuation, value of ser- Contact Kay Anderle. Keller/Anderle LLP is among the premier boutique Francisco. Our firm is dedicated to representing vices, computation of damages, mediator, and ar- bitrator. Professor of law accounting. trial firms in California. The firm handles high- employees in disputes against their employers. See display stakes litigation of all types including commercial, Our attorneys represent employees and workers in ad on page 45. intellectual property, securities, bad faith, class ac- class actions, wrongful termination cases, discrimi- tions, white collar criminal defense, and entertain- nation (age, sex, race, national origin, religion, and FAMILY LAW ment/sports. Keller/Anderle LLP attorneys have physical or medical condition) harassment cases, won over $925 million in judgments, and success- wage disputes, overtime pay cases, and rest and WALZER MELCHER LLP fully defended many other clients. Members of the meal period cases. 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Keller/Anderle LLP is among the premier boutique Inc. is a multi-practice law firm in Century City. It EMPLOYEES WORKERS’ trial firms in California. The firm handles high- proudly offers efficient, innovative, and proactive stakes litigation of all types including commercial, legal services throughout the USA. Representative COMPENSATION BENEFITS intellectual property, securities, bad faith, class ac- cases or clients: Burger King, Quiznos, Vestar, tions, white collar criminal defense, and entertain- Carl’s Jr., Jack in the Box, Medicine Shoppe, Pizza GOODCHILD AND DUFFY PLC ment/sports. Keller/Anderle LLP attorneys have Man, Peter Piper Pizza. Professional affiliations: 16133 Ventura Boulevard, Suite 1250, Encino, won over $925 million in judgments, and success- Franchise Law Committee of State Bar, INTA, ABA, CA 91346, (818) 380-1600, fax (818) 380-1616. fully defended many other clients. Members of the Super Lawyer 2008-2013. 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44 Los Angeles Lawyer June 2018 HEALTHCARE LAW GIRARDI | KEESE trial firms in California. The firm handles high- 1126 Wilshire Boulevard, Los Angeles, CA 90017, stakes litigation of all types including commercial, intellectual property, securities, bad faith, class ac- LAW OFFICES OF MICHAEL GOCH, P.C. (213) 977-0211, fax (213) 481-1554. Website: www.girardikeese.com. tions, white collar criminal defense, and entertain- 5850 Canoga Avenue, Suite 400, Woodland Hills, Contact Tom Girardi. ment/sports. Keller/Anderle LLP attorneys have CA 91367, (818) 710-7190, fax (818) 710-7191, Specialties: ADR, class action practice, and prod- uct liability. Recognized as one of the leading trial won over $925 million in judgments, and success- e-mail: [email protected]. Website: www. fully defended many other clients. Members of the michaelgochlaw.com. firms in the country. Professional affiliations: Contact Michael Goch. LACBA; Beverly Hills Bar Association; American firm have over 300 jury trials among them. Keller/ Licensing and disciplinary proceedings with U.S. News and World Board of Trial Advocates; International Academy of Anderle is rated Tier One by emphasis on healthcare practitioners, as well as Report. Trial Lawyers; Inner Circle. The firm is 100% women-owned. Department of Health Care Services matters and See display ad on See dis- related issues, from investigatory stage through page 43. play ad on page 2. trial and writ proceedings. Degrees/licenses: JD Southwestern University School of Law, Cum KELLER/ANDERLE LLP INTERNATIONAL Laude, 1978; admitted in California since 1978. 18300 Von Karman Avenue, Suite 930, Irvine, CA Also admitted in Central, Eastern, Northern, South- 92612, (949) 476-8700, fax (949) 476-0900, e-mail: TANIGUCHI GJB OFFICE ern Districts and Ninth Circuit. [email protected]. Website: www 3-20-1 Minami Azabu, Daiwa Azabu Terrace 5F, .kelleranderle.com. MinatoKu, Tokyo, Japan, (81) 3-6859-8548, Contact Kay Anderle. IMMIGRATION AND NATIONALITY LAW Keller/Anderle LLP is among the premier boutique fax (81) 3-6859-8401, e-mail: taniguchilaw@gmail

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Los Angeles Lawyer June 2018 45 .com. California lawyer admitted to practice in training, and experience combine to create a for- Japan as a foreign legal consultant, along with LONG-TERM DISABILITY midable litigation team. correspondent Japanese law firms. Provide legal KANTOR & KANTOR LLP services to U.S. and other foreign businesses in PLAINTIFFS’ PERSONAL INJURY Japan. 19839 Nordhoff Street, Northridge, CA 91324, (818) 886-2525, fax (818) 350-6272, e-mail: [email protected]. Website: www.kantorlaw PANISH SHEA & BOYLE LLP LABOR AND EMPLPLOYMENT— .net. 11111 Santa Monica Boulevard, Suite 700, Los Contact Glenn Kantor or Alan Kassan. MANAGEMENT SIDE Administrative appeals, litigation, state and federal Angeles, CA 90025, (310) 477-1700, fax (310) 477- 1699. Website: www.psblaw.com. court, appellate work. Free consultations and all Contact Brian MOHAJERIAN APLC cases are taken on a contingency fee basis. 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Website: www.psblaw.com. See display ad clients: Burger King, Quiznos, Vestar, Carl’s Jr., Contact Brian Panish Shea & Boyle LLP represents inside front cover. Jack in the Box, Medicine Shoppe, Pizza Man, Panish. plaintiffs in wrongful death, catastrophic personal Peter Piper Pizza. Professional affiliations: Fran- injury, product liability, mass tort and business liti- PRODUCT LIABILITY chise Law Committee of State Bar, INTA, ABA, gation cases. Consistently ranked among the best Super Lawyer 2008-2013. Law school attended: plaintiffs law firms in the country. Firm attorneys PANISH SHEA & BOYLE LLP UWLA. Billing arrangements: Hourly. See display have obtained some of the most significant ver- 11111 Santa Monica Boulevard, Suite 700, Los ad on page 47. dicts and settlements for plaintiffs in United States Angeles, CA 90025, (310) 477-1700, fax (310) 477- 1699. Website: www.psblaw.com. history and are frequently recognized as among Contact Brian Panish Shea & Boyle LLP represents LIFE INSURANCE CLAIMS the best trial lawyers in California. Panish. See display ad plaintiffs in wrongful death, catastrophic personal KANTOR & KANTOR LLP inside front cover. injury, product liability, mass tort and business liti- 19839 Nordhoff Street, Northridge, CA 91324, MEDIATION gation cases. Consistently ranked among the best (818) 886-2525, fax (818) 350-6272, e-mail: plaintiffs law firms in the country. Firm attorneys have obtained some of the most significant ver- [email protected]. Website: www.kantorlaw AIKINS MEDIATION .net. or dicts and settlements for plaintiffs in United States Contact Glenn Kantor Alan Kassan. 4401 Atlantic Avenue, 2nd Floor, Long Beach, Administrative appeals, litigation, state and federal history and are frequently recognized as among CA 90807, (877) 495-4529, e-mail: aikins court, appellate work. Free consultations and all the best trial lawyers in California. @aikinsmediation.com. Website: www See display ad cases are taken on a contingency fee basis. See .aikinsmediation.com. inside front cover. Contact Dr. Lenton display ad on page 5. Mediation services in the following areas Aikins. of law: employment law; personal injury; real REGULATORY COMPLIANCE LITIGATION estate; elder law; school/education, and police misconduct mediation. MOHAJERIAN APLC KELLER/ANDERLE LLP See display ad on 1901 Avenue of the Stars, Suite 1100, Los Angeles, page 6. 18300 Von Karman Avenue, Suite 930, Irvine, CA 90067, (310) 556-3800, fax (310) 556-3817, CA 92612, (949) 476-8700, fax (949) 476-0900, e-mail: [email protected]. Website: www PATENT, TRADEMARK, AND COPY- .mohajerian.com. Special- e-mail: [email protected]. Website: Contact Al Mohajerian. www.kelleranderle.com. RIGHT PROSECUTION AND LITIGATION ties: franchising & licensing. Mohajerian Inc. is a Contact Kay Anderle. Keller/Anderle LLP is among the premier boutique multipractice law firm in Century City. It proudly of- CISLO & THOMAS LLP trial firms in California. The firm handles high- fers efficient, innovative, and proactive legal ser- stakes litigation of all types including commercial, 12100 Wilshire Boulevard, Suite 1700, Los vices throughout the USA. Representative cases or intellectual property, securities, bad faith, class ac- Angeles, CA 90025, (310) 979-9190, fax (310) clients: Burger King, Quiznos, Vestar, Carl’s Jr., tions, white collar criminal defense, and entertain- 394-4477, e-mail: [email protected]. Website: www Jack in the Box, Medicine Shoppe, Pizza Man, .cislo.com. Cislo & Peter Piper Pizza. Professional affiliations: Fran- ment/sports. Keller/Anderle LLP attorneys have Contact Daniel M. Cislo, Esq. won over $925 million in judgments, and success- Thomas LLP is a full-service intellectual property chise Law Committee of State Bar, INTA, ABA, fully defended many other clients. Members of the law firm, specializing in patent, copyright, and Super Lawyer 2008-2013. Law school attended: trademark litigation and providing Quality Client UWLA. Billing arrangements: Hourly. firm have over 300 jury trials among them. See display Care® throughout Southern California since 1979. Keller/Anderle is rated Tier One by U.S. News and ad on page 47. World Report. The firm is 100% women-owned. We have offices in West Los Angeles/Santa Moni- ca, Westlake Village, Santa Barbara, Pasadena, SECURITIES See display ad on page 2. and San Diego to serve our clients’ intellectual property needs from Santa Barbara to Orange KELLER/ANDERLE LLP LONG-TERM CARE County. See display ad on page 6. 18300 Von Karman Avenue, Suite 930, Irvine, KANTOR & KANTOR LLP CA 92612, (949) 476-8700, fax (949) 476-0900, 19839 Nordhoff Street, Northridge, CA 91324, PERSONAL INJURY EXPERT e-mail: [email protected]. Website: (818) 886-2525, fax (818) 350-6272, e-mail: www.kelleranderle.com. MICHAEL LOUIS KELLY Contact Kay Anderle. [email protected]. Website: www.kantorlaw Keller/Anderle LLP is among the premier boutique .net. or 1638 South Pacific Coast Highway, Redondo trial firms in California. The firm handles high- Contact Glenn Kantor Alan Kassan. Administrative appeals, litigation, state and federal Beach, CA 90277, (310) 536-1000, fax (310) 536- stakes litigation of all types including commercial, court, appellate work. Free consultations and all 1001, e-mail: [email protected]. Website: intellectual property, securities, bad faith, class ac- www.KirtlandPackard.com. cases are taken on a contingency fee basis. Contact Michael tions, white collar criminal defense, and entertain- See Mr. Kelly is recognized as one of the Louis Kelly. ment/sports. Keller/Anderle LLP attorneys have display ad on page 5. leading 500 plaintiff lawyers in the United States, won over $925 million in judgments, and success- and year after year is voted a Southern California fully defended many other clients. Members of the Super Lawyer. His numerous record-setting jury firm have over 300 jury trials among them. verdicts have dramatically impacted the legal Keller/Anderle is rated Tier One by U.S. News and landscape in California. Mr. Kelly utilizes a team of World Report. The firm is 100% women-owned. talented lawyers whose varying backgrounds, See display ad on page 2.

46 Los Angeles Lawyer June 2018

nesses, and creating LLCs and exempt organiza- ing of documents to meet their needs, but also SPECIAL EDUCATION LAW tions. Dan was the last chair of the State Bar Tax helping with their tax planning. Dan and his firm Committee, and with Bob Kopple and Judd Klein, have also excelled in settling disputes with family VALERIE VANAMAN formed the Tax Section, and was involved in bar members in trust administrations and thereby Newman Aaronson Vanaman, 14001 Ventura association tax committees for many years. avoiding litigation. The firm has also been involved Boulevard, Sherman Oaks, CA 91423, (818) 990- in large estate administration issues involving vari- 7722, fax (818) 501-1306, e-mail: vvanaman ous complex matters. @navlaw.net. Website: www.navlaw.net. TRADEMARK LAW Contact For four decades, Valerie Intake Department. Vanaman has been providing knowledgeable and LAW OFFICE OF PAUL D. SUPNIK WATER LAW compassionate representation to people who 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, need help obtaining services from school districts CA 90212, (310) 859-0100; fax (310) 388-5645, BEST BEST & KRIEGER LLP and regional centers. Since the inception of her e-mail: [email protected]. Website: www.supnik 300 South Grand Avenue, 25th Floor, Los Ange- firm, Newman Aaronson Vanaman, in 1981, she .com www.NotSoBIGLAW.com. Trademark litiga- les, CA 90071, (213) 617-8100, fax (213) 617- has been the acknowledged leader in represent- tion in federal courts; local counsel for out-of-town 7480, e-mail [email protected]. Website: firms; trademark registration in the United States; www.BBKlaw.com. From ing clients at IEP meetings, due process media- Contact Eric L. Garner. tions and hearings, and related federal court ac- trademark registration internationally in associa- its roots helping to implement the California State tions. She also assists families with school disci- tion with foreign counsel; trademark availability Water Project, Best Best & Krieger is now a na- pline matters and in securing eligibility and ser- searches; Trademark Trial and Appeal Board pro- tionally and internationally recognized force in vices from regional centers. ceedings; licensing; right of publicity; domain water law. The firm represents agencies that serve name matters. Past chair of both LACBA’s Enter- water to more than 21 million people, in addition tainment and Intellectual Property Section as well to advising developer, agricultural and manufac- TAXATION LAW as International Law Section. turing clients. We aid in the acquisition, develop- See display ad on ment, and maintenance of surface and groundwa- page 45. OLINCY & KARPEL ter rights, and navigate issues related to regional 10866 Wilshire Boulevard, Suite 375, Los Angeles, TRUSTS AND ESTATES management of water supplies and water trans- CA 90024, (310) 478-1213, fax (310) 478-1215, fers. BB&K also provides critical counsel in regu- e-mail: [email protected]. Website: www OLINCY & KARPEL lation compliance, and identifying and developing .olincykarpel.com. As noted innovative funding strategies for water supply, Contact Dan Olincy. 10866 Wilshire Boulevard, Suite 375, Los Angeles, under the Trusts and Estates category, Dan Olincy conveyance, quality, treatment and reclamation, CA 90024, (310) 478-1213, fax (310) 478-1215, is also a certified tax specialist. With Dan at the flood control, investment and recycling projects. helm, Olincy & Karpel have done sophisticated e-mail: [email protected]. Website: www. olincykarpel.com. Dan Olin- tax planning for many clients—both inter vivos Contact Dan Olincy. and after death. The firm offers a full spectrum of cy is one of approximately 53 lawyers in Los Ange- WRONGFUL DEATH tax preparation and tax planning, but refers out les County dually certified as both a tax specialist foreign, complicated tax controversy, and com- and trust and estates attorney. This duality offers THE LAW OFFICES OF DALE K. GALIPO plex corporate tax matters. The firm has advised Olincy & Karpel’s clients full-service in their estate 21800 Burbank Boulevard, Suite 310, Woodland clients on other tax issues, including going busi- planning process by careful and imaginative draft- Hills, CA 91367, (818) 347-3333, fax (818) 347- 4118. Specializing in police shootings, excessive force, and other police negligence. See display ad on this page. MICHAEL LOUIS KELLY 1638 South Pacific Coast Highway, Redondo Beach, CA 90277, (310) 536-1000, fax (310) 536- 1001, e-mail: [email protected]. Website: www.KirtlandPackard.com. Contact Michael Mr. Kelly is recognized as one of the Louis Kelly. leading 500 plaintiff lawyers in the United States, and year after year is voted a Southern California Super Lawyer. His numerous record-setting jury verdicts have dramatically impacted the legal landscape in California. Mr. Kelly utilizes a team of talented lawyers whose varying backgrounds, training, and experience combine to create a for- midable litigation team.

PANISH SHEA & BOYLE LLP 11111 Santa Monica Boulevard, Suite 700, Los Angeles, CA 90025, (310) 477-1700, fax (310) 477-1699. Website: www.psblaw.com. Contact Panish Shea & Boyle LLP repre- Brian Panish. sents plaintiffs in wrongful death, catastrophic per- sonal injury, product liability, mass tort and busi- ness litigation cases. Consistently ranked among the best plaintiffs law firms in the country. Firm at- torneys have obtained some of the most significant verdicts and settlements for plaintiffs in United States history and are frequently recognized as among the best trial lawyers in California. See display ad inside front cover.

48 Los Angeles Lawyer June 2018 by the book REVIEWED BY DAVID A. LASH

To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States

To Establish Justice for All: The Past Andrew Carnegie and Theodore Roosevelt agreed to serve as and Future of Civil Legal Aid in the honorary vice-presidents of the organization, with Roosevelt United States reads like an historical ultimately taking a seat on the board of directors. Later, Charles novel full of intrigue and masterful sto- Evans Hughes, future chief justice of the United States, became rytelling. The cast of characters appear- chair of that board shortly after narrowly losing the presidency ing throughout the book includes star- to Woodrow Wilson. ring roles and cameo appearances from Among many other prominent names who pass through the an amazing array of well-known and pages of Johnson’s work, the reader will find an array of bipar- surprising guest stars. If anyone ever tisan supporters of legal aid for the poor. Weaving a thread thought the Pentagon Papers would throughout the book, Justice Johnson ably recounts the repeated make for a good movie, the history of efforts by politicians and others to stymie the growth and avail- legal aid would make for an even better ability of legal services to low-income litigants facing the loss By Earl Johnson Jr. one. of housing, medical care, and custody of their children. The Praeger, November 2013 In a three-volume work covering the stories of political and social measures intended to thwart the $194, 3 volumes development, successes, challenges, and rise and viability of legal aid are ripe with intrigue, twists and shockers in the history of the effort to turns, and ultimately a cast of disparate heroes who stepped up ensure access to justice for the poor, Earl Johnson, Jr., retired to defend the defenseless. justice of the California Court of Appeal, has woven a storytelling Johnson’s book tells the stories of many different attempts to masterpiece of passion and dedication. At more than 900 pages, establish and then disestablish support for legal services. He he brings to life a little-known tale of the mountains so many himself was at the forefront of the modern effort to formalize have had to climb in order to establish the need for, and grow government support for poor people who find themselves facing the will for, providing lawyers to represent poor people when an overwhelmingly complex judicial system. At the age of 33, the basic necessities of life are at stake and only the judicial he was named by Sargent Shriver to be first the deputy director, system can protect them. Justice Johnson makes us, as readers, then interim acting director, and finally permanent director of believe in a precept of democracy that maybe not enough of us the Office of Economic Opportunity-Legal Services Program, had previously considered. And he does it simply by telling com- the country’s first federally funded legal aid project. As part of pelling stories. the war on poverty, the OEO set policies and precedents that The book begins by reminding us that “to establish justice” continue to evolve and to be the subject of political and funding is the first goal set out in the Constitution for the fledgling United challenges today. States of America. It is the basis for creating a “more perfect Surprise Guest Star union.” Justice Johnson then embarks on a history of civil legal aid that parallels the history of the country over the past 140 One of the surprise guest stars in the story is Richard Nixon. years. The struggle for equal access to justice, through ensuring In 1962, the former vice-president and future president gave legal representation for those most in need, turns out to be a a speech in which he resoundingly endorsed the mission of microcosm of our modern political issues, including the trajectory legal aid for the poor. As his presidency was teetering in 1974, of our economy, our priorities, and our conscience. he signed legislation creating the Legal Services Corporation, which today remains the country’s single largest source of Leading Figures of the Day funding for a network of legal aid organizations providing The beginnings of the civil legal aid movement featured some of life-saving legal representation to thousands of indigent clients the most well-known figures of the day. The first legal aid orga- every year. Johnson recounts the history behind the Legal nization to offer free representation to the poor was the German Services Cor poration, painting a picture of intrigue surround - Legal Aid Society, started in 1876 and headed by Edward Solomon, ing the then-president’s decision to enact the legislation. Was the former governor of Wisconsin. In 1901, foreshadowing issues there a deal in the works? Or was Nixon’s support a logical that remain prominent in this day of “#Me Too,” Rosalie Loew outgrowth of that 1962 speech? While Democrats such as became the first attorney-in-chief of the New York Legal Aid Walter Mon dale, Ted Kennedy, and Alan Cranston were stal- Society, overseeing a male-dominated staff in a male-dominated wart supporters of the movement to create the Legal Services profession at a time when it was very difficult for women to be Corporation, it was Nixon who signed it into law, and it was accepted into law school—and even impossible for them to vote. And who donated space for one of the Legal Aid Society offices? David A. Lash is the managing counsel for pro bono and public interest None other than John D. Rockefeller. No less well-known figures services at O’Melveny & Myers LLP.

50 Los Angeles Lawyer June 2018 his chief of staff, Alexander Haig, who in support of creating a permanent stand - role that legal aid plays in the battle against made sure it happened. ing committee on legal aid). John Levi, poverty. The personalities and stories keep the current chair of the Legal Services the reader turning the pages, and the his- Funding Threatened Corpor ation board and a partner at Sidley tory lessons, one after the next, never fail In recounting the challenges launched by Austin, hired a young Barack Obama as a to keep the reader engaged. But it is the the Reagan administration to the con - summer associate at the firm and asked a cause, the litigated cases, and the life stories tinuation of the Legal Services Corpor - young associate, Michelle Robinson, to of the clients that make it all so real and ation, To Establish Justice for All details oversee the future president’s orientation important. Justice Johnson is at his most the strategies and personalities involved at the firm. When they ascended to the eloquent in using the many well-known on both sides of the dispute. Spoiler alert: White House, President Obama gave Sen - names and tales to paint a picture of the the program was saved by a bipartisan ate Republican leader Mitch McConnell legal aid landscape and its often unseen coalition that included House Republi- unfettered discretion to name five of the and underappreciated impact on the lives cans Tom Railsback, Caldwell Butler, and 11 Legal Serv ices Corporation board mem- of so many. Harold Sawyer, as well as Democrats Barn- bers, further underscoring the importance At a time when attacks on legal aid ey Frank and Robert Kastenmeier. In the of bipartisan support for what the president have reached another crescendo and the Senate, Republican Lowell Weicker teamed believed was a cornerstone of our dem - defunding of the Legal Services Cor por - with Democrat Fritz Hollings to help save ocracy. Dur ing the recent era, the George ation remains a policy goal among pow- the program. Later, it was Senator Warren W. Bush and Barack Obama administra- erful governmental factions, the voice for Rud man, Republican from New Hamp - tions saw relatively few attacks on legal justice that the Honorable Earl Johnson shire, who fought long and hard to protect aid. Harriet Meier and Alberto Gonzalez, Jr. brings to the national discourse is per- the Legal Service Corporation from elim- two high-ranking White House officials haps his magnum opus’s most vital accom- ination in 1986. He wrote, “In the Spring during the Bush years, were both strong plishment. To Establish Justice for All is of 1981, I began a twelve-year battle with advocates for legal aid. President Obama a must-read for every lawyer who wants the Reagan and Bush administrations created within the Department of Justice to better understand the impact of the to keep the Legal Services Cor poration an office specifically dedicated to overseeing law on government, the lives of the indi- alive…. Equal justice under the law is a efforts to ensure equal access to justice for gent, and the strength of our democratic meaningless slogan if you can’t afford a the poor. institutions. It also should be read by any- lawyer…. I thought that providing legal one interested in historical novels and Battle Against Poverty services to the poor was profoundly con- potential screenplays. Hollywood, are servative. What kind of country would Naturally, throughout Justice Johnson’s you listening? The casting alone will be this be if a third of our people had no treatise there is a constant reminder of the momentous. n access to justice?” As Justice Johnson recounts, hopes ran high for support of legal aid during the Clinton Administration. Hillary Clinton had earlier served on the board of directors of the Legal Services Corporation and was known for her strong belief in the orga- nization’s mission. Of course, Speaker of the House Newt Gingrich had other ideas and proposed a three-year schedule for phasing out and completely defunding the LACBA Introduces Legal Services Corporation. Again, a bipar- tisan compromise saved the program. Republican Senator Pete Domenici of New Mexico pushed for an agreement that, BRING A GUEST while severely restricting the scope of work Legal Services Corporation attorneys would be permitted to accept on behalf of their clients, preserved the existence of the orga- nization and ensured its survival. Invite Non-Members Unforgettable Stories Others who appear in unforgettable sto- to LACBA CLE Programs ries throughout the book include Spiro Agnew, Howard Baker, Cesar Chavez at Discounted Rates (who looked to legal aid to challenge the use of the “short hoe” in the fields as an unsafe, back breaking agricultural tool), For more information, visit John Ehr lich man, Orrin Hatch, Jerry Brown, Ted Kennedy, Lewis Powell, Janet http://www.lacba.org/calendar/bring-a-guest Reno, Don ald Rumsfeld, Cyrus Vance, and William Howard Taft (who agreed to speak before the American Bar Association

Los Angeles Lawyer June 2018 51 closing argument BY PHILIP J. DAUNT AND AREZOU KOHAN

Coaching Clients to Healthier and More Optimal Outcomes

IN MARCH 2017, the State Bar Board of Trustees approved a proposed be legal grounds to take action, but that does not mean it is nec- new set of ethics rules for California attorneys. Of particular interest essarily in the client’s best interests to do so. A client may be is Chapter 2 of the Proposed Rules of Professional, titled “Counselor.” attempting to “process” negative feelings through the litigation Rule 2.1, titled “Advisor,” states, “In representing a client, a lawyer process. shall exercise independent professional judgment and render candid Creating an environment in which the lawyer can listen to the advice.” As drafted, the proposed rules appear to acknowledge the client speak openly about the conflict can help the strong emotions current movement in the law to permit a lawyer to delve deeper dissipate. Practicing empathy may be useful to demonstrate that into the heart of the matter, i.e., employ the “coach approach.” This the client is being heard. However, uncritically identifying with a approach goes beyond advocacy and includes counseling clients. client’s initial position can be a disservice. Feeding a client’s negative Coaching is about honest, heart-to-heart conversations with the perspective, in fact, can lead the client to believe that the story he intention of empowering clients to break through self-limiting beliefs and patterns. Unlike therapy, which is past-oriented, the coach approach is future-oriented. Coach and As lawyers, we are more than our technical expertise. We are the client collaborate in moving the client forward from place A (where the client is) to place B (where the client wants to be). wisdom that comes with experience. In a transactional context, for instance, the coach approach can be applied by asking the client a series of open-ended questions. The client’s responses or she has created about the conflict is the absolute truth instead to the questions permit the lawyer to serve the clients more dutifully of one interpretation of the facts. One exercise that may be helpful by obtaining a greater understanding of what is important to the is for the client to write about the conflict from the perspective of client and what the client truly needs from a transaction. Questions the person with whom they are in conflict. may include: What do you hope to achieve by completing this A client can look at circumstances from a victim’s perspective, deal? What makes you want to enter into the transaction? What believing that things have happened to him or her, or choose to do you need from the other party in order for the deal to be worth- look at circumstances from a more empowered perspective, believing while? What are you willing to give up in exchange for receiving that there are lessons to be learned. Similar to reframing a health the benefit that you seek? What are your deal-breakers, i.e., what challenge as a “health opportunity,” clients can choose to believe are you not willing to give up? What do you think are the other that conflicts appear in their lives to help them grow and transcend party’s deal-breakers? And so on. unhealthy patterns and self-defeating behaviors. Indeed, a good predictor of whether the transaction will be As lawyers, we are more than our technical expertise. We are successful in the corporate context is whether the client and the the wisdom that comes with experience. The coach approach other party share similar corporate cultures. Are their vision, addresses the human being who is experiencing the legal issue. In mission, and values compatible? If so, the better the odds are that that sense, instead of enabling our clients, we can counsel them they will enter an agreement that serves them both well. toward more empowered choices. The attorney-client relationship The coach approach may be applied to the attorney-client rela- itself becomes more collaborative and enjoyable, leading to a more tionship itself by asking transparent and direct questions such as: bonded experience. What are your expectations of me as your lawyer? What has been While there may be times when it is appropriate for a lawyer your past experience working with lawyers, if any? What worked to be a “gladiator in a suit,” for the vast majority of matters, early for you? What did not work for you? What is the best thing that resolution is the preferred path. By encouraging clients to explore I can do for you as your lawyer?” When assumptions are exposed, more peaceful ways of resolving conflict, we are honoring our the practitioner can meet the client’s expectations head on. fiduciary duty to put their interests before ours. If our clients are In the litigation context, the coach approach might be used unable to choose to resolve their conflicts in this manner, the more to ask clients what they hope to achieve through litigation. What expensive, more stressful, and more time-consuming methods are is the desired outcome? What is the dispute really about? Are always available as an alternative. n they looking for justice or seeking revenge? Emotions need to be acknowledged. However, they need not be amplified. During Philip J. Daunt is an attorney-mediator in Monterey, California, who uses a high-stress situations, the brain’s fear-based anger response may coach approach in his small business and real estate practice. Arezou Kohan be hijacking decision-making. Consequently, the client’s ability is a Los Angeles-based litigator turned certified professional coach and the to make rational decisions might be compromised. There may author of Coaching Your Client.

52 Los Angeles Lawyer June 2018