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* Members may attend any or all meetings subject to space availability by RSVPing to the moderator. Discount Code: LALAW FEATURES 18 Crossing Borders BY JEFF DASTEEL AND NATALIA DE LA PARRA FERREIRO Foreign attorneys who represent parties in arbitrations in California risk criminal liability and nonpayment of fees 27 The Properties of Preemption BY RICHARD S. CONN The Probate Code’s mechanism for notice to creditors may provide protection against federal preemption Plus: Earn MCLE credit. MCLE Test No. 229 appears on page 29. 32 Questionable Classes BY KENNETH K. LEE California attorneys defending against dubious consumer class actions may seek removal to federal court

39 Special Section Semiannual Guide to Expert Witnesses

Los Angeles Lawyer D E PARTMENTS the magazine of the Los Angeles County 9 Barristers Tips 64 Computer Counselor Strategies for success in professional How to use an iPad to manage and Bar Association networking present trial exhibits November 2013 BY TIFFANY J. HOWARD BY HEATHER E. STERN Volume 36, No. 8 10 Practice Tips 68 Closing Argument The fraud exception to the parol evidence Honoring 100 years of the Los Angeles COVER PHOTOGRAPH: TOM KELLER rule after Riverisland public defender BY RYAN J. BARNCASTLE AND KENNETH E. MOORE BY ALAN H. SIMON

13 Practice Tips 66 Index to Advertisers The CDA as a safe harbor for interactive computer service providers 67 CLE Preview BY SHELLY ROSENFELD LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar Association, 1055 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailing offices. Annual sub- scription price of $14 included in the Association membership dues. Nonmember subscriptions: $28 annually; single copy price: $4 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 11.13 Judge Michael D. Marcus (Ret.) • “Daily Journal” Top 50 California Neutrals VISIT US ON THE INTERNET AT www.lacba.org/lalawyer 2007, 2009, 2010, 2011 & 2012 E-MAIL CAN BE SENT TO [email protected] • Super Lawyer, Dipute Resolution 2008-2013 EDITORIAL BOARD Chair Available to Mediate, Artitrate & Referee Disputes PAUL S. MARKS Including: Articles Coordinator • Employment • Legal Malpractice MARY E. KELLY • Business/commerican • Real Property JERROLD ABELES (PAST CHAIR) • Person Injury • Medical Malpractice K. LUCY ATWOOD ETHEL W. BENNETT Century City | Downtown LA | Orange County SCOTT BOYER (310) 201-0010 [email protected] ERIC BROWN www.marcusmediation.com CAROLINE BUSSIN PATRICIA H. COMBS CHAD C. COOMBS (PAST CHAIR) HON. MICHELLE WILLIAMS COURT ELIZABETH L. CROOKE BEN M. DAVIDSON AMERICAN LANGUAGE SERVICES GORDON K. ENG TRANSLATING&INTERPRETINGALLLANGUAGES DONNA FORD STUART R. FRAENKEL CERTIFIEDPROFESSIONALS CHRISTY GARGALIS MICHAEL A. GEIBELSON (PAST CHAIR) LEGAL CHRISTINE D. GILLE CORPORATE SHARON GLANCZ TED M. HANDEL TRANSCRIPTIONS JEFFREY A. HARTWICK EXPERTWITNESSTESTIMONY STEVEN HECHT (PAST CHAIR) NATIONWIDE OFFICES JOSHUA S. HODAS JOHN C. KEITH WORLDWIDECOVERAGE ERIC KINGSLEY KATHERINE KINSEY ESTABLISHED 1985 ~ EXCELLENT RATES Making theWorld a Little Smaller JENNIFER W LELAND STEPHANIE LEWIS DINASPEVACK 310.829.0741 x303 800.951.5020 alsglobal.net SANDRA MENDELL AMY MESSIGIAN MICHELLE MICHAELS COMM. ELIZABETH MUNISOGLU PAUL OBICO CARMELA PAGAY AMANDA PAWLYK DENNIS L. PEREZ (IMMEDIATE PAST CHAIR) GREGG A. RAPOPORT GARY RASKIN (PAST CHAIR) JACQUELINE M. REAL-SALAS (PAST CHAIR) A. JOEL RICHLIN DAVID SCHNIDER (PAST CHAIR) NANCY L. SCHROEDER STEVEN SCHWARTZ HEATHER STERN KENNETH W. SWENSON (PAST CHAIR) MATTHEW D. TAGGART DAMON THAYER THOMAS H. VIDAL ALEX M. WEINGARTEN STAFF Publisher and Editor (in memoriam) SAMUEL LIPSMAN Editor ERIC HOWARD Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA BEKAS Administrative Coordinator MATTY JALLOW BABY

Copyright © 2013 by the Los Angeles County Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. Printed by R. R. Donnelley, Liberty, MO. Member Business Publications Audit of Circulation (BPA). The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer November 2013 FIC E S OF L AW OF

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Los Angeles Lawyer November 2013 5 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION Law Firms 4 Sale We Collect Attorney Fee 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 Judgments Telephone 213.627.2727 / www.lacba.org Want to retire? Want to plan LACBA OFFICERS ZERO COSTS and ZERO RISK and President for your life after law! We only get paid if we collect! PATRICIA EGAN DAEHNKE See Ed Poll’s website Buffer yourself from State Bar Complaints and President-Elect www.lawbiz.com for the tools free up your time to do what you do best. LINDA L. CURTIS you need to make a transition. Senior Vice President Call us at 213-986-6020 or visit our website at PAUL R. KIESEL www.tjjudgments.com to learn more. Want to buy a practice? Vice President MARGARET P. STEVENS Ed can help! Treasurer Call today 800.837.5880 MICHAEL K. LINDSEY Assistant Vice President BRIAN S. CURREY Assistant Vice President CHRISTINE C. GOODMAN Assistant Vice President SAJAN KASHYAP Immediate Past President RICHARD J. BURDGE JR. Chief Executive Officer/Secretary SALLY SUCHIL Associate Executive Director/Chief Financial Officer BRUCE BERRA Associate Executive Director/General Counsel W. CLARK BROWN BOARD OF TRUSTEES HARRY W. R. CHAMBERLAIN BRIAN K. CONDON DUNCAN W. CRABTREE-IRELAND DANIEL M. CROWLEY REBECCA A. DELFINO ANTHONY DE LOS REYES HOWARD S. FISHER RICHARD B. GOETZ JACQUELINE J. HARDING MARK A. KRESSEL DEVON MYERS JUAN A. RAMOS DAVID K. REINERT DIANA K. RODGERS JENNIFER S. ROMANO HARVEY I. SAFERSTEIN SUSAN KOEHLER SULLIVAN TERESA TRACY SULLIVAN BRENDA E. SUTTON-WILLS DAVID A. TILEM

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6 Los Angeles Lawyer November 2013

ADR FOR THE WORLD’S MOST INTRACTABLE DISPUTES

BUSINESS • EMPLOYMENT • INTELLECTUAL PROPERTY FRANCHISE • INTERNATIONAL DEEP Subject Matter Knowledge EFFICIENT Party Driven Process t the approach of the holiday season, it is fitting that FIERCELY Fair and Impartial we lawyers consider the legal aspects of holidays in SUPERB Judicial Temperament ACalifornia. California law relating to holidays is a patchwork codified in the Civil Code, the Code of Civil Pro- cedure, and the Government Code. Government Code 6700

lists the official holidays in California, Code of Section 135 lists the “judicial” holidays, and Civil Code Sections 12a and 12b relate to how holidays are considered when computing time for legal acts. The law has its quirks. For example, while Sections 135 and 12a treat all of Saturday as a holiday, under the Government Code Saturday is a holiday only from noon to midnight. Good Friday is also listed as an official state holiday under Government Code 6700, but only from noon to 3 P.M. Strangely, under Civil Code Section 7.1(o) banks get to treat Good Friday as a holiday from noon to closing—yet another instance of the legislature’s currying favor with powerful financial interests. Perhaps the issue is moot, since back in 1976 in Mandel v. Hodges, the California appellate court ruled that treating Good Friday as a holi- day was unconstitutional as an excessive entanglement with religion. Still, one won- ders why Good Friday remains listed as an official holiday since Government Code “...Holmes is unsurpassed at customizing the Section 6700 and Civil Code Section 7.1 have been amended in other respects after parties' chosen resolution process to ensure speed, Mandel, but no one deleted “Good Friday.” In case you were wondering, Christmas economy and justice”—Russell Fransen, Esq., The Business Legal Group gets a pass as a legally recognized holiday since, as the U.S. Supreme Court stated in Lynch v. Donnelly, the holiday “contains both secular and sectarian elements.” • Large Complex Case Panel, American Arbitration Martin Luther King Day has its quirks too. Government Code Section 6700(c) makes Association (AAA) National Roster of Neutrals the third Monday in January the official state holiday—this year, it was January 21. • International Panel, International Center for But Government Code Section 6709 requires the governor to proclaim every January Dispute Resolution (ICDR) 15 as Dr. Martin Luther King, Jr., Day. So, most years we will get two King days, unless • Board of Directors, College of Commercial the third Monday in January of a particular year happens to be January 15. Arbitrators (CCA) The Government Code requires the governor to make proclamations for other • Board of Directors, California Dispute Resolution Council (CDRC) days that are not quite legal holidays. These days of commemoration reveal con- • Mediation Practice Director, Resolute Systems, flicting visions of who we are as a people. For example, September 28 of each year LLC is Cabrillo Day in California. Juan Rodriguez Cabrillo was the first European to lay • Fellow, California Academy of Distinguished eyes on harbor. Some—including the Library of Congress Web site—say Neutrals he “discovered” California. Before that, he was one of Cortez’s conquistadors. • President and Executive Director, Neutrals However, Friar Bartolome de las Casas, who witnessed and chronicled the early years Diversity Aliance of Spanish colonization of Central America and strove to end the abuse of natives, wrote of Cabrillo that “he broke up homes,” taking the indigenous women and girls THE HOLMES LAW FIRM and “giving them to the soldiers and sailors in order to keep them satisfied and to bring them into his fleet.” Ironically, the day before Cabrillo Day this year was Native American Day in California, a day of commemoration mandated by Government Code Section 6712. Some California legislators want to replace Columbus Day— an official California holiday every second Monday in October—with Native To schedule your Mediation, Arbitration or other American Day, yet Cabrillo Day remains intact. ADR process with Reg Holmes, please contact: California’s newest day of commemoration, first proclaimed by Governor Arnold For American Arbitration Association Schwarzenegger in 2010, is Ed Roberts Day. If you are unsure who Ed Roberts was, administered matters: Michael R. Powell I would urge you to look him up. I think you will agree that his life is worthy of com- ([email protected]) memoration. I For independently administrated matters: rholmes@theholmeslawfirm.com For Resolute Systems, LLC administered matters: Mike Weinzerl ([email protected] 1.877.FAIR.ADR (1.877.324.7237) Paul S.Marks is the chair of the Editorial Board of Los Angeles Lawyer magazine and a part- www.theholmeslawfirm.com ner with Neufeld Marks, a boutique law firm located in Little Tokyo. He serves as a commis- California • Chicagoland • New York Metro • Atlanta sioner on the California Commission on Access to Justice.

8 Los Angeles Lawyer November 2013 barristers tips BY TIFFANY J. HOWARD

Strategies for Success in Professional Networking

WHETHER A LIFE-OF-THE-PARTY extrovert or a couch potato intro- ular post, it is helpful to enter the recipient’s information into your vert, everyone would like to know how to take the work out of net- contact list and to include a photo to keep your memory of the per- working. Since it continues to be one of the best means to obtain clients son fresh. Use the Internet to find photographs. Nearly every lawyer and referrals, however, networking remains vitally important to new has a page or something similar on a Web site that comes with a photo. and experienced attorneys alike. A step-by-step strategy is advanta- Microsoft Outlook has a photo box with which you can attach the geous to preparing a case for trial or undertaking a corporate merger, photo to the contact. This procedure makes it much easier to remem- and it can make networking look easy, even if it still takes work. ber faces and names, and a photo serves to identify the person later When at a gathering, the first step is to find people who are when you reach out to him or her again. As a third step, before the alone. Even if one enjoys approaching and talking to small groups of next gathering, when it is important to remember names, review a con- people, it is much easier to relate with one person than with two or tact list with photos. This will help to avoid the embarrassing situa- more. A basketball analogy may help. When passing, it is counterproductive to throw the ball to a teammate who is guarded by oppos- Whether you are referring an expert witness or a plumber, help ing players. Finding the open player—or in this case, the open lawyer—tends to achieve greater success. It is less challenging to engage people make connections. Establish relationships among your in conversation with one person at a time. Even if one enjoys juggling dialogue with mul- tiple people, talking to one person allows for friends, family, and coworkers. Any time you hear someone say, a more focused discussion. This can be prefer- able to dividing one’s attention among several people, or worse, competing for attention. “I need a…” be prepared to seize the opportunity to assist. Once engaged in conversation, start with the fundamentals. Make an introduction and men- tion the name of the firm for which you work. After that, ask where the other person works and in what area of law tion of having to look at a person’s name tag or ask again for some- he or she specializes. Make small talk. This is not a deposition or a one’s name. witness interview, but it is nonetheless a good opportunity to obtain Everyday Networking basic personal and professional information. Sometimes, after exchang- ing the initial pleasantries, it may be difficult to know in which Networking does not need to occur only within the confines of direction to take the conversation, but because networking is about preestablished events. Whether you are referring an expert witness or building relationships, it is important to remain genuine. Therefore, a plumber, help people make connections. Establish relationships if the other person happens to mention anything that piques an among your friends, family, and coworkers. Any time you hear some- interest, start a discussion about that topic. From a hobby to children, one say, “I need a…” be prepared to seize the opportunity to assist. most people have a subject that they like to discuss. It helps to ask Your associates will come to you as a trusted wealth of knowledge, open-ended questions since these tend to elicit more information and possibly they will recommend you as an attorney within their own about the other person than yes-no questions. When parting, it is network. On a similar note, strike up a conversation with the person important to remember to exchange business cards. in front of you in line at the grocery store. Or the next time you dine As a second step, once the other person’s basic information is in at a restaurant alone, sit at the counter in order to talk to the person hand, follow up with an e-mail. In the message, try to include a spe- next to you. A valuable contact or client could materialize out of even cific detail from the initial conversation. Precise particulars will turn the most random conversation. the e-mail from an exercise in how to copy and paste into a personal With a plan in mind, networking can become a pleasurable and contact. Send an e-mail immediately after the event or first thing the profitable experience. Every new contact may have a client, col- next morning. Reaching out right away makes the right impression. league, or associate who needs a lawyer who specializes in your field To make an especially good impression, it can be preferable to send of law. Alternatively, the contact may have expertise that can contribute a handwritten note rather than e-mail. Taking the time to prepare a to your practice. Whatever one’s age or experience, networking is indis- communication by hand always demonstrates greater . pensable for obtaining new business. I The recipient will remember someone better after receiving a personal note card in the mail. Tiffany J. Howard is an associate at Kiesel Law in Beverly Hills, where she After establishing a first written contact, either by e-mail or reg- focuses on class actions and litigating wrongful death cases.

Los Angeles Lawyer November 2013 9 practice tips BY RYAN J. BARNCASTLE AND KENNETH E. MOORE

The Fraud Exception to the Parol Evidence Rule after Riverisland

THE PAROL EVIDENCE RULE, subject to certain exceptions, limits the interpretation of a contract to its “four corners” and excludes such extrinsic evidence as oral statements that conflict with the terms of the signed writing. The parol evidence rule and its exceptions are codified in California in Code of Civil Procedure section 1856. One well-estab- lished exception is fraud in the inducement of the agreement, but in 1935 the California Supreme Court, in Bank of America v. Pendergrass,1 held that the alleged false promise was inadmissible if it was directly at vari- ance with what was in the written contract. Since then, with regard to allegations of false promises, parties to written contracts have been able to rely on the signed agreement as a defense. However, earlier this year the supreme court reversed course and retired the Pendergrass rule. The court’s decision in Riverisland Cold Storage, Inc. v. Fresno- Madera Production Credit Association2 overruled this long- principle of law and may not only increase and prolong litigation but also may reshape the procedures for entering into valid and enforce- able written agreements. By overruling Pendergrass, the supreme court opened the door to challenges of written contracts with evidence of oral statements that conflict with the promises of performance set forth in the executed agreements. The significance of Riverisland is corroborated by the subsequent court of appeal decision in Julius Castle Restaurant, Inc. v. James Frederick Payne,3 which gave Riverisland an expansive interpretation. From a transactional stand- point, henceforth, parties that enter into sophisticated contractual arrangements need to exercise greater caution in executing agreements. From a litigation standpoint, Riverisland and its progeny will tend to make it harder to dispose of fraud claims on the pleadings. The two cases do explicitly leave the door open to pretrial challenges to a plaintiff’s justifiable reliance on promises that are at odds with those litigation. As the supreme court has noted, the parol evidence rule also stated in the written contract, but it is nonetheless hard to underes- protects the integrity of written contracts by making their terms the timate the possible impact the two cases will have on the formation exclusive evidence of the parties’ agreement.9 and enforcement of contracts in California. Nevertheless, the parol evidence rule does not always exclude extrinsic evidence, including oral agreements. Specifically, Code of Civil The Parol Evidence Rule Procedure Section 1856(f) states that “where the validity of the agree- The parol evidence rule prohibits the introduction of any extrinsic evi- ment is the fact in dispute, this section does not exclude evidence rel- dence to alter, vary, or add to the terms of a written agreement.4 Under evant to that issue.”10 As the Riverisland court noted, “This provision the rule, the terms of a writing intended by the parties as a final and rests on the principle that the parol evidence rule, intended to protect integrated expression of their agreement cannot be contradicted by the terms of a valid written contract, should not bar evidence chal- extrinsic evidence, including prior oral statements or contemporaneous lenging the validity of the agreement itself.”11 The court added, oral agreements.5 The rule is a longstanding, well-known principle “Evidence to prove that the instrument is void or voidable for mistake, that promotes fairness and predictability by encouraging parties to fraud, duress, undue influence, illegality, alteration, lack of consider- specify the entirety of their agreements in writing.6 As the court in ation, or another invalidating cause is admissible as such evidence. This Riverisland stated, “[W]hen the parties put all the terms of their agree- evidence does not contradict the terms of an effective integration, ment in writing, the writing becomes the agreement, and the written because it shows that a purported instrument has no legal effect.”12 terms supersede statements made during negotiations.”7 The parol It is an established exception to the parol evidence rule that a party evidence rule “is based on the assumption that written evidence is more accurate than human memory and the fear that fraud or unintentional Ryan J. Barncastle and Kenneth E. Moore are partners with Stuart|Moore, a invention by witnesses interested in the outcome of the litigation will transactional law firm that specializes in the representation of financial mislead the finder of facts.”8 Moreover, by limiting a dispute to the institutions, real estate businesses, emerging growth companies, and private

RICHARD EWING applicable written agreement, California courts benefit from reduced equity investment firms.

10 Los Angeles Lawyer November 2013 may present extrinsic evidence to show that from the terms that they had discussed with fraud relating to a lease agreement, citing the agreement was tainted by fraud.13 FMPCA’s executives.20 Riverisland.29 Specifically, the court noted However, despite this broad categorical excep- The plaintiffs alleged that FMPCA’s vice that Riverisland established that oral state- tion, Pendergrass restricted for nearly 80 years president met with them two weeks prior ments that conflicted with the lease terms the applicability of the fraud exception to to the execution of the agreement and told were admissible under the statutory exception cases of alleged promissory fraud—that is, them that FMPCA would extend the loan for fraud found in Section 1856(g).30 The cases in which the alleged misrepresentation agreement for two years and that two pieces court in Julius Castle Restaurant looked back is not of an existing fact but instead a promise of property were all that was needed for to the Riverisland decision and provided to act (or refrain from acting) in a certain collateral. Moreover, the plaintiffs alleged more direction for parties making contracts way in the future. that these assurances were repeated at the in a post-Riverisland world.31 execution of the forbearance agreement. The Julius Castle Restaurant court Pendergrass Although the plaintiffs defaulted under the rejected claims by the defendants that Riv- The court in Pendergrass restricted the applic- terms of the forbearance agreement, causing erisland requires that the circumstances of ability of the fraud exception as a means to FMPCA to initiate foreclosure proceedings, each case and the bargaining power and introduce extrinsic evidence by holding that they ultimately repaid the loan, and FMPCA sophistication of the parties to be considered “evidence offered to prove fraud must tend dismissed the foreclosure action. Despite in determining whether or not to admit to establish some independent fact or repre- this resolution, the alleged misrepresenta- extrinsic evidence concerning fraud.32 In de- sentation, some fraud in the procurement of tions of FMPCA’s officer concerning the terms ciding not to limit the application of Riv- the instrument or some breach of confidence of the agreement were the basis for the plain- erisland by excluding sophisticated parties concerning its use, and not a promise directly tiffs’ action for fraud and negligent misrep- the court observed, “[O]ur high court sought at variance with the promise of the - resentation.21 the opposite result, namely, to create cer- ing.”14 Thus, according to the Pendergrass FMPCA moved for summary judgment, tainty and consistency by eliminating alto- court, evidence of promissory fraud based arguing that any evidence contrary to the gether the judicially created exception to on oral agreements that conflicted with the terms of the written agreement was to be section 1856, subdivision (g).”33 The court terms of the written agreement was not admis- excluded pursuant to the parol evidence similarly rejected the notion that Riverisland sible under the fraud exception to the parol rule.22 The trial court agreed and, citing should only be applied to “contracts of adhe- evidence rule. This restriction, while not Pendergrass, ruled that the fraud exception sion where there is a disparity in bargaining directly overturned, was attacked and criti- to the parol evidence rule does not allow power,” stating that the Riverisland court cized by many California courts.15 As the parol evidence of promises that are at odds “did not limit its holding to contracts of court in Riverisland noted, “The primary with the terms of the written agreement.23 adhesion and we decline to read such a lim- ground of attack on Pendergrass has been that The court of appeal reversed, and the itation into the decision.” In short, the court it is inconsistent with the broad principle, supreme court affirmed the reversal, refer- was clear and adamant in declining “to carve reflected in Code of Civil Procedure Section ring to Pendergrass as an “aberration” and out an exception to the Riverisland holding 1856, that a contract may be invalidated by stating that such a restriction on the fraud that the court itself did not endorse.”34 a showing of fraud.”16 Another court has exception was inconsistent with the statute While the court declined to carve out observed that “One noted impact of the and settled .24 exceptions, it did provide some guidance to Pendergrass holding was that the parol evi- The court noted that “although a written those seeking to dispose of claims that pre- dence rule effectively immunized against lia- instrument may supersede prior negotiations viously would have been subject to the bility for both prior and contemporaneous and understandings leading up to it, fraud Pendergrass rule. The key, the court indi- statements at variance with the written con- may always be shown to defeat the effect of cated, lies in “addressing the heightened bur- tract, and it implied that the alleged wrong- an agreement.”25 In overturning Pendergrass, den of proving fraud in a civil action” and, doer is innocent of fraud.”17 In overruling the Riversland court added that Pendergrass in particular, in focusing on the “justifiable Pendergrass, the court in Riverisland aban- “failed to account for the fundamental prin- reliance element of fraud.” As the court doned this strict limitation. ciple that fraud undermines the essential stated, “Among the questions to ask are: validity of the parties’ agreement.”26 The What are the plausible reasons for the alleged Riverisland court continued, “When fraud is proven, it discrepancy between the claimed oral In Riverisland, the plaintiffs defaulted under cannot be maintained that the parties freely promises and the signed writing? Is there the terms of a loan obtained from defendant entered into an agreement reflecting a meet- compatibility between the oral representa- Fresno-Madera Production Credit Associa- ing of the minds.”27 In affirming the court of tions and the written document? What is the tion (FMPCA).18 The plaintiffs and FMPCA appeal’s reversal of a summary judgment evidence relating to whether the document agreed to a forbearance agreement whereby based on the exclusion of the oral statements was read and considered before signing?”35 FMPCA agreed that it would refrain from by FMPCA’s representatives, the court opined, Since these questions generally implicate taking enforcement action for three “the parol evidence rule should not be used issues of fact, pretrial battles over promissory months.19 In exchange, the plaintiffs agreed as a shield to prevent the proof of fraud.”28 fraud claims that once would have been sub- to make payments and pledged eight sepa- Thus, it is now established law in California ject to Pendergrass will likely shift from rate parcels of real property as additional that, even in cases of promissory fraud, extrin- pleadings to summary judgment. collateral. The plaintiffs initialed pages bear- sic evidence that differs from the terms of a After Riverisland ing the legal description of each piece of written agreement may be admitted to sup- property that was being pledged; however, port a cause of action for fraud. As a result of Riverisland and its progeny, the plaintiffs did not read the agreement Riverisland is a recent case that has not yet companies that routinely enter into com- but simply signed it at the locations tabbed been widely cited by other courts. Never- mercial contracts with their customers, ven- for signature. The plaintiffs alleged that theless, in Julius Castle Restaurant the court dors, clients, and strategic partners must be they did not know that the document they of appeal affirmed a trial court’s admission of more careful than before. Precontractual were signing contained terms that differed parol evidence in connection with alleged negotiations, discussions, and other oral state-

Los Angeles Lawyer November 2013 11 ments are made in connection with all writ- ommended that attorneys and clients take pressure tactics, 6) require that key contract ten agreements. The key to making deals the following precautionary measures: 1) provisions be initialed, 7) be sure that all after Riverisland is to ensure that the terms develop a systematic process with respect to contract agreement provisions clearly repre- of the arrangement are documented in a writ- preparing written agreements to document sent the terms of the deal, 8) include a clear ten contract that is the complete integration and accurately reflect deal terms, 2) limit the and understandable discussion of an inte- of the agreement and that there is no need to of company representatives that are gration clause that puts the other party on introduce oral statements or other extrinsic responsible for explaining and discussing notice that the written contract constitutes the evidence. agreements with customers, 3) provide all final terms of the deal and that prior oral dis- Practitioners with clients seeking to avoid parties with multiple opportunities for con- cussions that may conflict with the terms of fallout from Riverisland ought to advise them sultation with professional advisers and the written document are not a part of the to take significant steps to avoid misunder- include written representations in the agree- final agreement, 9) to the extent resources standings, confusion, and ambiguity regard- ment to that effect, 4) provide the client or allow, have more than one employee present ing deal terms, thereby decreasing the risk that customer with execution versions of all writ- during all contract discussions and negotia- a court may undercut the enforceability of a ten contracts well in advance of any scheduled tions, and 10) strenuously advise that all par- written contract. To mitigate risk, it is rec- signings, 5) avoid “take it or leave it” sales ties read the written contract. These precau- tionary measures, if properly implemented, will provide clients with added reassurance that they can rely on the terms of their writ- ten agreements. I

1 Bank of Am.v. Pendergrass, 4 Cal. 2d 258 (1935). 2 Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n, 55 Cal. 4th 1169 (2013). 3 Julius Castle Rest., Inc., et al. v. James Frederick Payne, et al., 216 Cal. App. 4th 1423 (2013). 4 Id. at 1439 (citing Casa Herrera, Inc. v. Beydoun, 32 Cal. 4th 336, 343 (2004)). 5 Julius Castle, 216 Cal. App. 4th at 1439 (citing Singh v. Southland Stone, U.S.A., Inc., 186 Cal. App. 4th 338, 352 (2010)). 6 Julius Castle, 216 Cal. App. 4th at 1439. 7 Riverisland, 55 Cal. 4th at 1174. 8 Julius Castle, 216 Cal. App. 4th at 1439. 9 Riverisland, 55 Cal. 4th at 1171-72. 10 See CODE CIV.PROC. §1856(f). 11 Riverisland, 55 Cal. 4th at 1174 (emphasis in orig- inal). 12 Id. at 1174-75 (citing 2 WITKIN, CAL.EVIDENCE §97, DOCUMENTARY EVIDENCE 242 (5th ed. 2012)). 13 Riverisland, 55 Cal. 4th at 1172; CODE CIV.PROC. §1856(g). 14 Riverisland, 55 Cal. 4th at 1172 (citing Bank of Am.v. Pendergrass, 4 Cal. 2d 258, 263 (1935)). 15 Riverisland, 55 Cal. 4th at 1172, 1176-77. 16 Id. at 1176. 17 Julius Castle, 216 Cal. App. 4th at 1440 (citing Casa Herrera, Inc. v. Beydoun, 32 Cal. 4th 336, 347 (2004)) (emphasis in original). Have You Heard? 18 Riverisland, 55 Cal. 4th at 1172. 19 Id. at 1172-73. DOUBLETREE HAS A NEW STATE OF THE ART WAR ROOM 20 Id. at 1173. 21 Id. Now you can achieve a new level of comfort and productivity at the DoubleTree By Hilton Los 22 Id Angeles Downtown. Our state of the art new venue is the ideal spot for everything from depositions . to war rooms to board meetings. Featuring high tech tools to ease the work at hand and a 23 Id. (citing Bank of Am.v. Pendergrass, 4 Cal. 2d 258, welcoming ambiance at an all inclusive price. Make your reservation by December 31, 2013 and 258 (1935)). earn Triple Hilton HHonors points. 24 Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n, 55 Cal. 4th 1169, 1181-82 (2013). 25 Id. at 1181 (citing Fleury v. Ramacciotti, 8 Cal. 2d 660, 662 (1937)). 26 Riverisland, 55 Cal. 4th at 1182. 27 Id. 28 Id. at 1182 (citing Ferguson v. Koch, 204 Cal. 342, 347 (1928)). 29 Where the little things mean everything.™ Julius Castle Rest., Inc., et al. v. James Frederick Payne, et al., 216 Cal. App. 4th 1423, 1439-40, 1441 DOUBLETREE BY HILTON LOS ANGELES DOWNTOWN (2013). 120 South Los Angeles Street, CA 90012 T (213) 629 1200 30 LosAngelesDowntown.DoubleTree.com Id. at 1439-40. 31 Id. at 1441. Restrictions may apply. May not be combined with any other oer. Hilton HHonors membership, earning of Points & Miles and redemption of 32 points are subject to HHonors Terms and Conditions. ©2013 Hilton Worldwide. Id. 33 Id. at 1442. 34 Id. 35 Id.

12 Los Angeles Lawyer November 2013 practice tips BY SHELLY ROSENFELD

The CDA as a Safe Harbor for Interactive Computer Service Providers

WHEN CECILIA BARNES BROKE UP WITH HER BOYFRIEND, he went AOL Bulletin Board advertising, “‘Naughty Oklahoma T-Shirts[]’”12 “post-all,” posting Barnes’s personal information, including nude pho- with slogans such as “‘Visit Oklahoma…. It’s a BLAST!!!,’” “‘Putting tos, in Yahoo profiles that he created without her permission. As the the kids to bed…Oklahoma 1995,’” and “‘McVeigh for President court in B arnes v. Yahoo! observed, “The profiles contained…solic- 1996.’”13 Interested parties were told to call Kenneth M. Zeran, whose itation…to engage in sexual intercourse.”1 “The ex-boyfriend then phone number was provided. Zeran had nothing to do with the ad. conducted discussions in Yahoo’s online ‘chat rooms,’ posing as Zeran received many angry phone calls, including death threats. Barnes and directing male correspondents to the fraudulent profiles Since he ran his business out of his home, he could not change his he had created.”2 The profiles included Barnes’s contact information, phone number. Zeran contacted AOL, which removed the offending including her work address and phone number. “Before long, men post. The message returned with additional slogans. In addition to whom Barnes did not know were peppering her office with emails, filing a separate suit against a radio station that aired the contents of phone calls, and personal visits, all in the expectation of sex.”3 the message, Zeran sued AOL seeking to hold it liable for the defam- In this situation, Section 230 of the Communications Decency Act atory postings of a third party. AOL asserted Section 230 as an affir- (CDA) would protect Yahoo from having to remove the content.4 The mative defense. Zeran claimed that he was unable to find the person CDA protects interactive computer services such as Yahoo from lia- who posted the messages since AOL “fail[ed] to maintain adequate bility when they publish a third party’s statements. The act establishes records of its users.”14 that interactive computer services providers are immune from liability Interpreting the CDA, the Fourth Circuit refused to subject com- regarding information provided to them by third parties.5 puter service providers to distributor liability, holding that Section 230 In April 2013, a false tweet from a hacked Twitter of the statute preempted Zeran’s defamation claims and that AOL account stated that the White House had been attacked and the pres- could not be held liable as the “publisher.”15 The court also held that ident was injured.6 This actually led to a dip in the stock market.7 A AOL could not be held liable based on the fact that it had received Pew Research Center report found that a quarter of Americans and “notice” of defamatory material because, in creating the immunity more than half of 18- to 29-year-olds got their news about the April in Section 230, Congress “made a policy choice…not to deter harm- 2013 Boston Marathon Bombing and its aftermath from social media.8 ful online speech through the separate route of imposing liabil- Twitter is most likely protected from a third party’s posts because of ity on companies that serve as intermediaries for other parties’ poten- Section 230(c) of the CDA. Recent cases interpreting the CDA help tially injurious messages.”16 Imposing this type of liability for explain the broad immunity afforded interactive service providers defamation, the court explained, would create an impossible burden and what steps providers should take to avoid losing that immunity. for computer service providers who: Section 230(c)(1) of the CDA offers service providers broad pro- would face potential liability each time they receive notice of tection by precluding courts from treating them as publishers of the a potentially defamatory statement—from any party, con- information on their sites: “No provider or user of an interactive com- cerning any message. Each notification would require a care- puter service shall be treated as the publisher or speaker of any ful yet rapid investigation of the circumstances surrounding the information provided by another information content provider.”9 posted information, a legal judgment concerning the infor- The statute defines an interactive computer service as “any infor- mation’s defamatory character, and an on-the-spot editorial deci- mation service, system, or access software provider that provides or sion whether to risk liability by allowing the continued pub- enables computer access by multiple users to a computer server, lication of that information. Although this might be feasible including specifically a service or system that provides access to the for the traditional print publisher, the sheer number of post- Internet and such systems operated or services offered by libraries or ings on interactive computer services would create an impos- educational institutions.”10 Examples of immunized interactive com- sible burden in the Internet context.17 puter service providers include Facebook, Twitter, Yahoo, and Reddit. Moreover, from a public policy perspective, the court was con- While Congress immunized providers of computer services, it cerned about a chilling effect against the First Amendment since ser- did not seek to prevent tort liability for those who actually provide vice providers would tend to err on the side of caution and remove or write the content. The CDA defines a nonimmunized information messages once they receive a notification, regardless of whether they content provider as “any person or entity that is responsible, in were actually defamatory. Anyone who disagreed with someone’s whole or in part, for the creation or development of information pro- unpopular message could contact AOL, and service providers such vided through the Internet or any other interactive computer service.”11 as AOL would be incentivized to remove the objectionable statement This may include a person who posts an allegedly defamatory com- in order to avoid liability. Finally, the court was concerned that dis- ment on a Web site or a reporter who publishes a news story online. One of the first cases to interpret the CDA came in the wake of the Shelly Rosenfeld is an associate in the Los Angeles office of Lewis Brisbois Oklahoma City bombing. In Zeran v. America Online, Inc., just days Bisgaard & Smith who specializes in intellectual property, technology, and after the Oklahoma City Bombing in 1995, a message appeared on an entertainment law.

Los Angeles Lawyer November 2013 13 tributor-based liability would lead to less More recently, in 2011, a woman sued the the article was published, Drudge had a licens- self-regulation by service providers since dating Web site Match.com after she met ing agreement with AOL whereby AOL mem- “[a]ny efforts by a service provider to inves- and dated a serial murderer through the site bers received the Drudge Report, and every tigate and screen material posted on its ser- who later attacked her. In Beckman v. month AOL paid Drudge a “‘royalty pay- vice would only lead to notice of potentially Match.com, the court held that Match.com ment’ of $3,000.”35 defamatory material more frequently and would not be subject to liability since it was The court noted that to the extent that thereby create a stronger basis for liability.”18 protected by Section 230.27 The court applied AOL contributed information to the story, as Courts have given wide latitude to com- the act’s three-part test for whether immunity in the case where two or more authors con- puter service providers who have some applies to a Web site operator: “(1) it is an tribute to an article, the CDA would not be involvement with the authors of defamatory ‘interactive computer services’ provider; (2) a safe harbor. However, the court found that material before considering the providers it is not an ‘information content provider’ AOL did not create the information in the themselves “publishers.” In Carafano v. with respect to the conduct at issue; and (3) Drudge Report and that the information was Metrosplash.com, Inc.,19 a Ninth Circuit the plaintiff seeks to hold the website oper- posted “without any substantive or editorial case, a man in Berlin created a fake profile on ator liable on account of information origi- involvement by AOL.”36 a dating Web site for a Star Trek actress, nating from a third-party user of its ser- However, unlike the other CDA cases Chase Masterson (her legal name is Christ- vices.”28 Although the pair met through the explored in this article, this was not just an ianne Carafano), with her photo and home site, the content originated from third parties anonymous individual with a rogue com- address.20 As a result of the profile created on who entered the profiles, not from the site. ment posted on a message board. AOL Match.com, Masterson “found a highly Thus, Match.com was not an information entered into a contract with Drudge and threatening and sexually explicit fax that content provider. Rather, the site was a “promoted it to its subscribers and potential also threatened her son.”21 Masterson con- provider of interactive computer services. subscribers as a reason to subscribe.”37 tacted the site to remove the profile, but “The fact that a website may have created cer- Moreover, AOL reserved the right to remove Matchmaker.com did not remove the profile tain features that enabled a user to post the or to ask Drudge to remove any material immediately, stating ironically that only pro- content in question is irrelevant.”29 In other that it determined violated its terms of service. file creators can authorize the removal of a words, Match.com was a passive forum The contract allowed AOL to “‘require rea- profile. The profile was eventually removed, where users could communicate and thus sonable changes to…content, to the extent and Masterson sued Matchmaker.com for could not be held responsible for what hap- such content will, in AOL’s good faith judg- several causes of action, including invasion of pens as a result of the information exchange. ment, adversely affect operations of the AOL privacy and defamation. The company In another case, Okeke v. Cars.com,30 a network.’”38 As the plaintiffs asked, “Why asserted the affirmative defense that under user who paid for a truck but never received should AOL be permitted to tout someone as “[Section] 230(c)…so long as a third party it sued Cars.com, the source site, based on a gossip columnist or rumor monger who willingly provides the essential published con- three negligence theories that the site: “failed will make such rumors and gossip ‘instantly tent, the interactive service provider receives to ensure the legitimacy of users’ listings or accessible’ to AOL subscribers, and then full immunity regardless of the specific edit- advertisements;…failed to post adequate and claim immunity when that person, as might ing or selection process.”22 Although some proper notices and/or warnings to users about be anticipated, defames another?”39 information in Carafano’s profile was entered responding to listings or advertisements on the The court was sympathetic to plaintiffs’ in response to questions posed by the site, website; and…failed to promptly remove a argument but rejected it based on the broad most of the content, such as personal details, listing after receiving notification that the language of the statute. The court explained, was up to the profile creator. “Matchmaker listing was fraudulent.”31 The New York “If it were writing on a clean slate, this Court was not responsible, even in part, for associ- state court held that Cars.com was an inter- would agree with plaintiffs.”40 While the ating certain multiple choice responses with a active computer service under Section 230 court saw AOL’s role much more like a pub- set of physical characteristics, a group of essay and thus immune from liability since it was a lisher than a common carrier with no liabil- answers, and a photograph.”23 forum in which consumers could make pur- ity for what is spoken over its wires “[b]ecause Although the user provided Carafano’s chases. The court also held that the content it has the right to exercise editorial control over address and other details through the Web originated with the users; thus, Cars.com was those with whom it contracts and whose site, they were “transmitted unaltered to pro- not an information content provider. Finally, words it disseminates, it would seem only file viewers.”24 Matchmaker.com did not have the court held that under the CDA a site such fair to hold AOL to the liability standards a role in editing the responses entered. as Cars.com is immune from the “traditional applied to a publisher or, at least, like a book “Similarly, the profile directly reproduced the editorial functions of a publisher…such as store owner or library, to the liability standards most sexually suggestive comments in the deciding whether to publish, withdraw, post- applied to a distributor.”41 But the court could essay section, none of which bore more than pone or alter content.”32 Thus, Cars.com is not reach its decision in a vacuum and there- a tenuous relationship to the actual questions protected from being responsible for fact- fore had to accede to the CDA, which immu- asked.”25 Since a user created the content, the checking postings to ensure they are accurate. nizes interactive service providers even when user rather than the interactive computer Section 230 immunity has even applied they take “an active, even aggressive role in service was responsible for the content. when an interactive computer service, AOL, making available content prepared by oth- Matchmaker.com therefore “did not play a had a contract and paid the author of the ers.”42 Thus, contemporary Drudges, bloggers significant role in creating, developing or ‘trans- alleged defamatory statements who even paid by a Web site, would thus still face lia- forming’ the relevant information.”26 The reserved the right to edit his reports. In bility under Section 230(c)(1), but their spon- court held that the dating Web site was not an Blumenthal v. Drudge,33 Matt Drudge’s site, soring Web site likely would not. information content provider but rather an the Drudge Report, published a story alleg- Limitations to CDA Protections interactive computer service since it allowed the ing that Sidney Blumenthal, an assistant to public to post information on its Web site. President Clinton, had physically abused his In Fair Housing Council v. Roommates Therefore, the court held that Section 230(c) wife, Jacqueline Jordan Blumenthal, who .com,43 the court held that the CDA did not provided a safe harbor to Matchmaker.com. also worked at the White House.34 When apply as a safe harbor to an interactive online

14 Los Angeles Lawyer November 2013 provider who had a questionnaire alleged material on its Web site. In Barnes v. Yahoo! to have violated the Fair Housing Act (FHA). the plaintiff contacted Yahoo to take the false JUDGE However, the provider, Roommates.com, was profile down and followed Yahoo’s policies LAWRENCE W. CRISPO immune under the CDA for its “Additional of mailing to Yahoo a copy of her photo ID (RETIRED) Comments” section of the questionnaire with a signed statement requesting the pro- because this was an open-ended essay. files be removed. After no response from Roommates.com offered searchable listings Yahoo for a month, Barnes mailed a letter for people looking for housing. In order to use requesting removal of the profiles and, a the Web site, a user was required to create a month later, sent two letters requesting that profile by answering the Web site’s queries. the profile be removed. Finally, a day before The questions were basic, but “[e]ach sub- a local TV news story would air Barnes’s scriber must also describe his preferences in story, Yahoo agreed to remove the profile. In roommates with respect to the same three cri- fact, Yahoo’s Director of Communications teria: sex, sexual orientation and whether notified Barnes that “she would ‘personally they will bring children to the household.”44 walk the statements over to the division Two Fair Housing Councils sued the company responsible for stopping unauthorized profiles that owned Roommates.com, claiming that and they would take care of it.’”52 Yet, it the site violated the FHA and the equivalent was not until Barnes sued the company that California law, which “prohibits discrimina- Yahoo took down the profiles.53 tion on the basis of sexual orientation, mar- In its defense, Yahoo asserted protection ital status” and other protected groups.45 If under Section 230(c) of the CDA. And, con- the Web site operator creates content, “or is sistent with other cases in which the statute was ‘responsible, in whole or in part’ for creating applied, the Ninth Circuit held that since plain- Mediator Arbitrator or developing content, the website is also a tiff’s claim of “negligent undertaking was content provider.”46 The court held that since premised on treating defendant as a ‘pub- Roommates.com created the questions and lisher’ of the unauthorized profiles,” Section answer choices, it was the “‘information con- 230(c)(1) did preclude liability.54 However, Referee tent provider’ as to the question and could the Ninth Circuit also noted that “insofar as 213.926.6665 claim no immunity for posting them on its Barnes alleges a breach of contract claim under www.judgecrispo.com website, or for forcing subscribers to answer the theory of promissory estoppel, subsection them as a condition of using its services.”47 230(c)(1) of the Act does not preclude her Although the case took a bold approach cause of action.”55 The promissory estoppel in carving out an area where Section 230(c) claim “derives not from defendant’s publish- did not apply, the court was careful to show ing conduct, but from defendant’s ‘manifest its decision was consistent with the statute, intention to be legally obligated to do some- VIGOROUS noting that “close cases…must be resolved in thing….’”56 This legal duty is distinct from the STATE BAR DEFENSE favor of immunity, lest we cut the heart out act of publishing, and thus falls outside of the of section 230 by forcing websites to face protections offered by Section 230(c)(1). JAMES R. DIFRANK death by ten thousand duck-bites.”48 The On remand, the District Court of Oregon A PROFESSIONAL LAW CORP. court compared the “Additional Comments” considered Barnes’s amended complaint alleg- TEL 562.789.7734 section to search engines since “both involve ing breach of contract based upon promissory www.BarDefense.net a generic text prompt with no direct encour- estoppel and rejected Yahoo’s motion to dis- E-MAIL [email protected] agement to perform illegal searches or to miss. The elements of promissory estoppel publish illegal content.”49 If a Web site oper- under Oregon law are “1) a promise; 2) ¥ Disciplinary Defense ator “passively displays content that is created which the promisor could reasonably foresee ¥ Reinstatements/Admissions entirely by third parties, then it is only a ser- inducing the sort of conduct which occurred; vice provider with respect to that content.”50 3) actual reliance on the promise; 4) result- ¥ Malpractice Defense This was the function that Roommates.com ing in a substantial change in the promisee’s ¥ Bankruptcy 57 served with respect to the “Additional Com- position.” As to the first prong, Barnes ¥ Criminal Defense ments” section, because it did not edit the asserted that Yahoo promised to remove the ¥ Representation within the comments before the publication nor even profiles. The court reasoned that the second State of California instruct users what content should be included prong was met because Yahoo’s Communi- in that section.51 While this case is significant cations director, in saying she “would per- in that it shows that courts are willing to sonally walk the statements over to the divi- FORMER: take a closer look at the boundaries of Section sion responsible for stopping unauthorized State Bar Sr. Prosecutor 230(c), the decision does not alter cyber- profiles and they would take care of it,… Sr. State Bar Court Counsel space. Most Web sites do not involve ques- intended for plaintiff to react to the promise tionnaires but rather open-ended sections by calling the reporter and diffusing the story” where people can express their thoughts. before it appeared on TV.58 After all, Yahoo Thus, social media sites still have broad knew about the story, since the reporter also immunity for what is published online. called Yahoo for comment. Another limitation on the CDA can occur For the third prong, despite the fact that Home of Sir Winston when a computer service provider promises Barnes never used “the term ‘reliance,’ one Pictured Above to take action in response to defamatory can infer that plaintiff called the reporter,

Los Angeles Lawyer November 2013 15 informing [the reporter] defendant was indeed TRUST DEED FORECLOSURES going to remove the profiles, in reliance on READY TO RETIRE? defendant’s promise to plaintiff that it would “Industry Specialists For Over 25 years” 59 We are a long established, boutique remove the profiles.” For the fourth prong, t Witkin & Eisinger we specialize in the Non-Judicial the court noted that despite the fact that the AForeclosure of obligations secured by real property Trusts and Estates firm handling Estate or real and personal property (mixed collateral). When Planning, Trust Administration, profiles were on the Web both before and after your clients needs a foreclosure done professionally and Probate, Tax Planning and Business the alleged promise and reliance at issue in the at the lowest possible cost, please call us at: Law, looking to grow its business case, “plaintiff’s position could have nonethe- 1-800-950-6522 through relationship with a Pasadena less substantially changed in that the pro- We have always offered free advice to all attorneys. or other So. Cal. Practitioner with a files remained on the web longer than they similar practice, who is looking to would have absent plaintiff’s reliance.”60 Fin- WITKIN downsize or retire. ally, the court held that “strangers viewed the , LLC E-mail [email protected] profiles and subsequently contacted plaintiff &EISINGER after the profiles would have been removed RICHARD G. WITKIN, ESQ. ! CAROLE EISINGER or call Jo Ann 626.792.2910 by defendant (had plaintiff not called the reporter).”61 Barnes demonstrates that a plaintiff can potentially circumvent the CDA’s broad protections if the interactive service provider promises to remove content. How- ever, had Yahoo never promised to remove the content, Barnes would not have been able to assert the breach of contract claim. Thus, although the Internet may no longer be described as “new and burgeoning,”62 courts would likely still reject a notice-liability framework. Interactive computer service sites present opportunities not only for the evo- lution of technology but also of the law. Zeran described an internet that was “bur- geoning”63 in 1997, but more than a decade later in Roommates.com the court said that “the Internet has outgrown its swaddling clothes and no longer needs to be so gently coddled.”64 Nevertheless, as courts have con- tinued to apply the CDA, in order for an EMPLOYMENT LAW REFERRALS interactive computer service provider to be Paying Highest Referral Fees (Per State Bar Rules) found liable and not shielded by the CDA, it would either have to appear to elicit the objectionable information or, potentially, to Honored to receive regular employment referrals from make a promise to remove the offending over 100 of Californiaʼs finest attorneys material and then break that promise. It is noteworthy in this context that Barnes had the leverage of an impending news story depict- Stephen Danz 877.789.9707 & Associates ing her experience. Thus, it is important to Main office located in Los Angeles and nearby offices in Pasadena, keep a close look at how the law can continue Orange County, & San Diego to incentivize interactive computer services to Stephen Danz, Senior Partner 11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049 promote the free exchange of ideas without the costly price of defamation and invasion of privacy suits. As the law currently stands, the CDA will continue to pose a challenge to victims of online revenge postings who turn Does LACBA have your current to the courts for help. I e-mail address? 1 Barnes v. Yahoo!, Inc., 570 F. 3d, 1096 (9th Cir. Or. 2009). 2 The Los Angeles County Bar Association is your resource for Id. at 1098. 3 Id. information delivered via e-mail on a number of subjects 4 47 U.S.C.S. §230. that impact your practice. 5 Id. 6 Molly Wood, Twitter needs to deal with the twitter Update your records online at www.lacba.org/myaccount or accuracy problem, CNET, Apr. 23, 2013, http://news .cnet.com/8301-31322_3-57580996-256/twitter-needs call Member Services at 213.896.6560. -to-deal-with-the-twitter-accuracy-problem/. 7 Heather Kelly, The power of one wrong tweet, CNN, Apr. 24, 2013, http://www.cnn.com/2013/04/23/tech /social-media/tweet-ripple-effect.

16 Los Angeles Lawyer November 2013 8 Laura Petrecca, After bombings, social media informs (and misinforms), USA TODAY, Apr. 23, 2013, http://www .usatoday.com/story/news/2013/04/23/social-media -boston-marathon-bombings/2106701/. Does LACBA have 9 47 U.S.C. §230(c)(1). ERISA 10 47 U.S.C. §230(f)(2). LAWYERS your current 11 47 U.S.C. §230(f)(3). 12 e-mail address? Zeran v. America Online, Inc., 129 F. 3d 327, 329 LONG TERM DISABILITY, LONG (4th Cir. Va. 1997). TERM CARE, HEALTH, The Los Angeles County Bar 13 Zeran v. America Online, 958 F. Supp. 1124, 1127 EATING DISORDER, AND LIFE Association is your resource n.3 (E.D. Va. 1997). for information delivered via e-mail 14 INSURANCE CLAIMS Zeran, 129 F. 3d at 329 n.1. on a number of subjects that 15 Id. at 332. impact your practice. 16 Id. ERISA & BAD FAITH 17 Id. at 333. Update your records online at 18 Id. MATTERS www.lacba.org/myaccount or 19 Carafano v. Metrosplash.com, Inc., 339 F. 3d 1119 call Member Services at 213.896.6560. (9th Cir. 2003).  California state and federal courts 20 Id. at 1121.  More than 20 years experience 21 Id.  Settlements, trials and appeals 22 Id. at 1124. 23 Id. Referral fees as allowed by 24 Carafano v. Metrosplash.com, Inc., 339 F. 3d 1119, State Bar of California BUSINESS 1125 (9th Cir. 2003). 25 Id. OPPORTUNITY 26 Id. 27 Beckman v. Match.com, 2013 U.S. Dist. LEXIS Kantor & Kantor LLP 78339 (D. Nev. May 29, 2013). 818.886.2525 TOLL FREE Want to purchase 28 Id. at *8. 29 Id. at *9. 877.783.8686 minerals and other 30 Okeke v Cars.com, 2013 N.Y. Misc. LEXIS 2250 www.kantorlaw.net oil/gas interests? (N.Y. Civ. Ct. May 28, 2013). 31 Id. at *4. 32 Id. at *8-9. Send details to: 33 Dedicated to Helping People Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. Receive the Insurance Benefits to P.O. Box 13557 1998). Which They Are Entitled. Denver, CO 80201 34 Id. at 46. 35 Id. at 47. 36 Id. at 50. 37 Id. 38 Id. at 51. 39 Blumenthal v. Drudge, 992 F. Supp. 44, 51 (D.D.C. Let Us Help You Overcome the 1998). Hurdles in Your Estate Disputes 40 Id. at 51. 41 Id. 42 Id. Estate Mediation 43 Fair Hous. Council v. Roommates.com, LLC, 521 Probates, Trusts & Estates F. 3d 1157, 1163 (9th Cir. 2008). LA County Volunteer Probate Mediator of the Year 44 Id. at 1161. 2010, 2011, 2012 45 Id. at 1162. 46 Id. 47 Id. at 1164. 48 Id. at 1174. 49 Fair Hous. Council v. Roommates.com, LLC, 521 CALL (626) 584-8000 F. 3d 1157, 1175 (2008). or visit us online 50 Id. at 1162. www.woodardmediation.com 51 Id. at 1173-74. 52 Barnes v. Yahoo!, Inc., 570 F. 3d 1096, 1099 (9th Cir. Or. 2009). 53 Id. - 54Barnes v. Yahoo!, Inc., 2009 U.S. Dist. LEXIS GREG DAVID DERIN MEDIATOR &ARBITRATOR 116274, at *7 (D. Or. Dec. 8, 2009) (referring to the 9th Cir. decision). HONESTY • FAIRNESS • COMMITMENT • CREATIVITY • EXCELLENCE 55 Barnes, 570 F. 3d, at 1109. 56 Barnes, 2009 U.S. Dist. LEXIS 116274, at *7 (inter- AREAS OF EXPERTISE: nal citations omitted). • Entertainment and • Contract and Business 57 Id. at *5. Intellectual Property • Real Property 58 Id. at *10, *11 n.4. • Employment • Corporate and Partnership 59 Id. at *10-11. 60 Id. at *13. “Power Mediator” - The Hollywood Reporter, ADR SuperLawyerTM 61 Id. Faculty - Harvard Negotiation Institute (2004-2012) 62 Zeran v. America Online, Inc., 129 F. 3d 327, 330 Fellow - Chartered Institute of Arbitrators (4th Cir. Va. 1197). 63 Id. 310.552.1062 I www.derin.com 64 Fair Hous. Council v. Roommates.com, LLC, 521 1925 CENTURY PARK EAST, LOS ANGELES, CALIFORNIA 90067 F. 3d 1157, 1175 (2008).

Los Angeles Lawyer November 2013 17 by JEFF DASTEEL and NATALIA DE LA PARRA FERREIRO CROSSING BORDERS The legislature should allow parties in international arbitrations in California to choose their preferred attorneys

A FUNDAMENTAL FEATURE of private attorneys licensed to practice law in the United preme Court determined that California’s arbitration is a party’s autonomy to design an States. The result is that, unlike all other attorney licensing requirement applies to rep- arbitration procedure suitable for resolving major international arbitration jurisdictions resentation in arbitration proceedings held in the dispute. A key procedural issue associated in the world, non-U.S. attorneys are not California: with party autonomy is the right to choose authorized to represent parties in interna- We decline Birbrower’s invitation to one’s representatives. Most arbitration rules tional arbitrations held in this state. In addi- craft an arbitration exception to section expressly provide for freedom of representa- tion, because the out-of-state attorney arbi- 6125’s prohibition of the unlicensed tion without regard to whether the repre- tration counsel program was established practice of law in this state. Any excep- sentative is an attorney licensed to practice under California’s domestic arbitration law, tion for arbitration is best left to the law in the jurisdiction where the arbitration it is questionable whether the program Legislature, which has the authority to takes place (or anywhere else).1 However, in extends to international arbitrations, which determine qualifications for admission California, except with respect to limited are governed by the California International to the State Bar and to decide what statutory exceptions, party representatives Arbitration and Conciliation Act. The constitutes the practice of law.4 to arbitrations either must be attorneys California State Bar’s implementation of the licensed to practice law in California or out- program is ambiguous on this point. Jeff Dasteel is an arbitrator, mediator, and adjunct of-state attorneys who have completed a California’s Business and Professional professor of law at UCLA Law School, where he required certificate and have gained the Code makes it a for an indi- teaches international commercial arbitration. approval of the arbitral tribunal before which vidual who is not an active member of the Natalia de la Parra Ferreiro specialized in interna- they wish to appear. State Bar to practice law in California.2 In tional and comparative law at UCLA School of Law The out-of-state attorney arbitration coun- Birbrower, Montalbano, Condon & Frank, and is a legal intern in the California Department sel certification process is available only to P.C. v. Superior Court,3 the California Su- of Justice. AMANE KANEKO

18 Los Angeles Lawyer November 2013

The attorneys in the Birbrower case did and “If the attorney has made repeated representatives appearing before the arbitral not actually participate in a California-based appearances, the certificate shall reflect the tribunal either are licensed to practice law in arbitration because the matter settled after special circumstances that warrant the California or have completed an appropriate having filed the arbitration demand but before approval of the attorney’s appearance in the certificate. It appears that no cases or attor- any hearings took place. The California arbitration.”10 The statute provides that “[i]n ney general opinions address this issue, but it Supreme Court’s dicta nonetheless were read the absence of special circumstances, repeated is probably best practice for arbitrators in to prohibit out-of-state attorneys from rep- appearances shall be grounds for disapproval California to confirm that, absent an excep- resenting parties in arbitrations in California of the appearance and disqualification from tion to either the Birbrower rule or the out- unless they satisfy the statutory requirements. serving as an attorney in the arbitration in of-state attorney arbitration counsel pro- which the certificate was filed.”11 Accordingly, gram, the attorneys who appear before them The Legislative Response at a minimum, the arbitrator must make a in a California arbitration either are licensed In response to the supreme court’s decision in determination that the out-of-state attorney in California or have completed the appro- Birbrower, the state legislature enacted Code meets the requirements to participate in the priate out-of-state attorney arbitration coun- of Civil Procedure Section 1282.4(b), which program, including, apparently, a factual sel application.15 provides a procedure so that “an attorney finding that special circumstances warrant Because the licensing requirements for the admitted to the bar of any other state may approval in the event of repeated appear- California State Bar are designed to protect represent the parties in the course of, or in ances in California arbitrations. It is unclear parties from being represented in legal mat- connection with, an arbitration proceeding in what recourse, if any, an out-of-state attorney ters by persons not qualified to do so, in the this state.” The procedure requires the com- has if the arbitral tribunal denies an appli- event an out-of-state attorney fails to obtain pletion of a certificate to be filed with the arbi- cation for a certificate. the arbitrator’s approval of an out-of-state trator, opposing counsel, and the State Bar attorney arbitration counsel certificate, there Consequences for Failure to Comply within a reasonable period after the out-of- is the potential risk that any arbitration award state attorney indicates an intent to appear in Attorneys or other persons who represent adverse to unlicensed attorney’s client may be the California arbitration.5 The State Bar parties in California-based arbitrations when set aside. No California cases address this receives about 800 certificates each year, they either are not licensed to practice law in issue, but, in an analogous case, an unli- reflecting a nontrivial level of compliance.6 California or have not obtained an approved censed attorney represented a party in a court The California Rules of Court also were out-of-state attorney arbitration counsel cer- proceeding. The court of appeal set aside the revised to reflect the creation of the Out-of- tificate violate Business and Professions Code judgment adverse to that party.16 On the state Attorney Arbitration Counsel program.7 Section 6125 and are guilty of a misdemeanor other hand, in two unpublished opinions, Under Rule of Court 9.43, an out-of-state punishable by up to one year in jail and a fine the court of appeal has refused to set aside attorney is eligible for the program if the of $1,000.12 Under the Birbrower rule, the arbitration awards in which the prevailing attorney is: attorney who fails to comply with the out-of- party’s attorney failed to timely comply with (1) Not a member of the State Bar of state attorney arbitration counsel certification the Out-of-State Attorney Arbitration Counsel California but who is a member in program also is not entitled to recover any fees Certification program.17 good standing of and eligible to prac- for work performed while in California.13 Statutory Exceptions tice before the bar of any United States In addition to the possibility of criminal court or the highest court in any state, sanctions against the unlicensed attorney, There are statutory exceptions to the require- territory, or insular possession of the there are potentially two other categories ments that party representatives in arbitration United States, and who has been of arbitration participants who may be comply with Business and Professions Code retained to appear in the course of, or vulnerable to discipline. First, to the extent Section 6125, Code of Civil Procedure Section in connection with, an arbitration pro- the out-of-jurisdiction attorney has retained 1282.4, and California Rule of Court 9.43. ceeding in this state; (2) Has served a licensed co-counsel in the California arbi- They are: 1) in an arbitration under a col- certificate in accordance with the tration, which is required by Section lective barging agreement, parties may be requirements of Code of Civil Pro- 1282.4(c)(11), the licensed counsel of record represented by any person, regardless of cedure section 1282.4 on the arbitra- may be subject to discipline under the whether that person is licensed to practice law tor, the arbitrators, or the arbitral California Rules of Professional Conduct 1- in California,18 2) any person, whether or not forum, the State Bar of California, and 300, which provides that “a member shall a licensed attorney, may represent an injured all other parties and counsel in the not aid any person or entity in the unau- employee under the workers’ compensation arbitration whose addresses are known thorized practice of law.” statutes,19 3) an out-of-state attorney needs to the attorney; and (3) Whose appear- A second category of arbitration partici- no certification and may engage in party rep- ance has been approved by the arbi- pant who may be vulnerable under Rule 1- resentation with respect to arbitration pro- trator, the arbitrators, or the arbitral 300 is the arbitrator. If the arbitrator know- ceedings held outside California,20 and 4) in forum.8 ingly permits an unlicensed attorney or other international conciliation (a form of media- The arbitrator’s decision to approve the person to represent a party in a California- tion) parties may be represented by the per- out-of-state attorney’s certificate appears to based arbitration without completion of the son of their choice.21 The Birbrower court be discretionary. Based on the information out-of-state attorney arbitration counsel cer- understood this last provision to be an excep- provided in the certificate, “The arbitrator, tificate, the arbitrator, if he or she is a mem- tion to Section 6125.22 arbitrators, or arbitral forum may approve the ber of the State Bar, also may be subject to Other than these limited statutory excep- attorney’s appearance if the attorney has Rule 1-300 if the arbitrator does not act tions, the Birbrower rule, as modified by the complied with subdivision (d).”9 The out- under Section 1284.2(d) to disqualify the out-of-state attorney arbitration counsel cer- of-state attorney must certify, among other unlicensed attorney from participating in the tification program, applies to all arbitrations things, that “the attorney is not regularly arbitration.14 In that regard, it is not clear conducted in California. When the statutory engaged in substantial business, professional, whether an arbitrator has the affirmative exceptions to the Birbrower rule are screened or other activities in the State of California” obligation to determine whether all party against the legislature’s response to Birbrower,

20 Los Angeles Lawyer November 2013 there remain two significant lacunae, whether ciliation Act’s limited exclusion from Business program. Rule 9.43 does not on its face dis- intended or not, that limit a party’s right to and Professions Code Section 6125 for con- tinguish between domestic and international select its attorney representative in arbitration. ciliation proceedings. The limited exclusion arbitration, nor does it require applicants The first concerns out-of-state attorneys applicable to conciliation proceedings by nec- to show they are seeking to represent a party representing parties in international arbitra- essary implication does not apply to inter- solely in a domestic arbitration. It appears tions that are based in California. The legis- national arbitrations. Accordingly, under the that the State Bar makes no distinction lature’s response to the Birbrower rule does current statute, out-of-state attorneys have no between domestic and international arbi- not appear to apply to arbitrations subject to means to gain an exception to Section 6125 trations under the out-of-state attorney arbi- California’s International Arbitration and when attempting to represent a party in an tration counsel program. The implication is Conciliation Act.23 That act applies to the fol- international arbitration held in California. that the State Bar may consider Rule 9.43 to lowing types of arbitrations: The inability of an out-of-state attorney to include both domestic and international arbi- (a) The parties to an arbitration or represent parties in an international arbitra- trations.26 The State Bar considers the appli- conciliation agreement have, at the tion in California probably is the unintended cations submitted under the program to be time of the conclusion of that agree- byproduct of the legislature’s confusion over private and not subject to review by the pub- ment, their places of business in different states. (b) One of the follow- ing places is situated outside the state in which the parties have their places of busi- ness: (i) The place of arbitration or concili- ation if determined in, or pursuant to, the arbitration or concili- ation agreement. (ii) Any place where a sub- stantial part of the obligations of the com- mercial relationship is to be performed. (iii) The place with which the subject matter of the dispute is most closely connected. (c) The parties have expressly agreed that the subject matter of the arbitration or con- ciliation agreement relates to commercial interests in more the Birbrower court’s comments on the pro- lic. Accordingly, it has not been possible to than one state. visions of California’s International Arbi- determine whether any certificates submitted (d) The subject matter of the arbitra- tration and Conciliation Act. It is likely that to the State Bar relate to arbitrations governed tion or conciliation agreement is oth- the legislature did not realize that Code of by the California International Arbitration erwise related to commercial interests Civil Procedure Section 1297.351, cited by the and Conciliation Act. in more than one state.24 Birbrower Court as a statutory exception to The second issue that limits a party to Once it is determined that an arbitration Section 6125 of the Business and Professions arbitration in choosing an attorney relates to proceeding is subject to the International Code, applies only to conciliation proceedings attorneys licensed to practice outside the Arbitration and Conciliation Act, Code of (mediation) and not to international arbi- United States. The out-of-state attorney arbi- Civil Procedures Section 1297.17 makes clear trations as well.25 There is no obvious policy tration counsel program created by Section that “this title supersedes Sections 1280 to reason to create an out-of-state attorney arbi- 1282.4 applies only to attorneys who are 1284.2, inclusive, with respect to interna- tration counsel program for domestic arbi- members “in good standing of and eligible to tional commercial arbitration and concilia- trations but not for international ones. practice before the bar of any United States tion.” The necessary implication is that Nonetheless, unless the state legislature court or the highest court in any state, terri- Section 1282.4’s out-of-state attorney arbi- extends the out-of-state attorney arbitration tory, or insular possession of the United tration counsel program (which is part of counsel program to international arbitra- States.”27 This definition necessarily excludes the exclusion of Sections 1280 to 1284.2) tions, as a matter of statute, only attorneys from the program attorneys who are not not only has not been included in the licensed in California may provide such rep- licensed to practice in the United States but International Arbitration and Conciliation resentation. are licensed to practice in a non-U.S. juris- Act but has been affirmatively excluded from Confusion over representation in inter- diction. its provisions. This conclusion is reinforced national arbitration continued when State An attorney licensed to practice in a for- by the International Arbitration and Con- Bar Rule 9.43 was adopted to implement the eign country is limited to two options to

Los Angeles Lawyer November 2013 21 practice law in California. First, the attorney licensed to practice in California, to represent in the United Kingdom wished to perform may qualify for, take, and pass the California parties in international arbitrations held in legal services in California for an arbitration bar exam. This is not a practical option for their jurisdictions.28 governed by the substantive law of France. In the kind of transitory representation expected There is no compelling rationale to that event, the foreign legal consultant pro- in arbitrations. Second, the foreign attorney require that an attorney be licensed to prac- visions of California law likely prohibit that may apply to become a registered foreign tice law in California when arbitrating a dis- attorney from rendering legal services in legal consultant under California Rule of pute under the substantive law of another California. Court 9.44. However, even if the registration country using an international arbitration Preemption is an alternative nonlegislative is successful, the foreign attorney is barred rule set. Nor is there any reason to believe way to allow choice of counsel in an arbi- from representing a party as an advocate in that a licensed California attorney has any tration proceeding. The Birbrower court ruled proceedings or practicing law other than to special or greater knowledge of international that California’s attorney licensing require- advise on the law of the jurisdiction where the arbitration rule sets or the foreign law that ments were not preempted by the Federal foreign attorney is licensed. This option does may be applicable to the California-based Arbitration Act.30 Relying on the Supreme not permit full participation in arbitration. international arbitration. Parties to interna- Court’s decision in Volt Information Sciences, The result is that there is no practical means tional arbitrations are not protected by the Inc. v. Leland Stanford Junior University, the for a foreign attorney to represent a party in California licensing rule. California simply court determined that there was no conflict a domestic or international arbitration seated becomes a venue inhospitable to interna- between federal and state law on this issue in California. tional arbitration proceedings. and that the parties’ agreement expressly The exclusion of foreign attorneys from adopted California procedural and substan- Nonlegislative Solutions the arbitration counsel program appears to be tive law.31 However, as noted by the dissent intentional, and the reason to exclude prob- Most international arbitrations held in Cal- in Birbrower, the majority’s broad procla- ably proceeds from the same justifications ifornia involve at least one party located out- mation regarding lack of preemption may for the limitations applied to foreign attorneys side California. As the law currently stands be overstated. generally. California has an interest in restrict- under the Birbrower rule and the legislature’s The Birbrower dissent noted that Cal- ing foreign attorneys to their area of legal limited modification of that rule, a party ifornia’s attorney licensing rules should not expertise, which presumably is the law of located outside California does not have the apply if a treaty specifically permits parties to the country where they are licensed. The pre- right under California law to use its regular choose by whom they want to be represented. sumption for a domestic arbitration held in arbitration counsel to represent it in Cali- Justice Joyce Kennard’s dissent cited as an California is that it proceeds, at least proce- fornia-based proceedings. There are two poten- example the Inter-American Convention on durally, under California law. tial nonlegislative solutions to this problem. International Arbitration: In contrast to domestic arbitrations, the First, the parties to the international or For instance, the Rules of Procedure of restriction on foreign attorneys engaged in the domestic arbitration simply can agree to the Inter-American Commercial Arbi- representation of parties in international arbi- change the venue of the arbitration to a juris- tration Commission, article IV pro- trations seated in California makes little sense. diction (virtually anywhere outside California) vides: “The parties may be represented If the rationale is based on the legislature’s that permits freedom of representation in or assisted by persons of their choice.” general exclusion of foreign attorneys from arbitrations. As noted above, the Birbrower By federal law, this rule applies in all practicing law in California, it proceeds from rule only applies to arbitrations held in arbitrations between a United States a misunderstanding of how international California, and there is a statutory excep- citizen and a citizen of another signa- arbitration generally operates. The location tion to the Birbrower rule for out-of-state tory to the Inter-American Convention of an international arbitration frequently is attorneys who render legal services in Calif- on International Commercial Arbi- selected for its lack of relationship to the ornia for an arbitration held outside Cal- tration, unless the arbitrating parties parties so that the international dispute is ifornia.29 California has nothing to say about have expressly provided otherwise.32 resolved in a neutral territory. Further, the sub- a party representative acting outside Cal- Preemption is possible, but not certain. As stantive law of the dispute frequently is unre- ifornia with regard to an arbitration held acknowledged by the language quoted above, lated to the seat of the arbitration, but rather outside California. the Inter-American Convention’s default rule is the law of one or the other party’s home This solution, however, has two basic permitting parties to select representatives jurisdiction or international law (e.g., the problems. First, it requires the agreement of of their choice does not preempt California’s United Nations Convention on the Inter- all parties to the arbitration to change venue Birbrower rule if the parties have elected to national Sale of Goods). International arbi- from what may be agreed in the arbitration be governed by California’s rules of proce- trations are most frequently conducted under agreement. Such an agreement may not be dure, something permitted by Article 3 of common international arbitration rule sets forthcoming for a number of reasons, includ- the Inter-American Convention.33 In that (e.g., UNCITRAL Arbitration Rules, ICC ing that an out-of-state forum may be incon- event, the parties would be required to com- Rules of Arbitration, AAA’s international venient to one of the parties. Second, this ply with California rules of procedure regard- arbitration rules) that require specialists in solution does not solve the problem of a for- ing attorney representation. Accordingly, for those rule sets and not in the local arbitration eign attorney (as distinguished from an out- preemption of the Birbrower rule to work procedures of the seat. All major interna- of-state attorney) rendering legal services in under the Inter-American Convention, the tional commercial arbitration jurisdictions California with regard to an arbitration held parties by selecting California as the seat of (of which California is not yet one) have rec- outside California. In that case, the foreign the arbitration must not be deemed to have ognized that freedom of choice in the selec- attorney would be required to apply to selected the procedural law of California as tion of representatives for international arbi- become a foreign legal consultant under the procedural law of the arbitration. To trations trumps local restrictions on who California Bar Rule 9.44. Even then, the avoid the inference that they have selected the may engage in the practice of law. These scope of permitted activities may be too lim- procedural law of California, the parties may major international arbitration jurisdictions ited, especially if, for example, an attorney expressly designate that their arbitration permit foreign attorneys, including those arbitration specialist licensed to practice law agreement is governed by Chapter 3 of the

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www.lacba.org / 213.896.6560 Federal Arbitration Act, including Section ICSID rely on its rule set unless the parties bano, Condon & Frank v. Superior 306, which incorporates by reference the otherwise agree.39 Thus, assuming the parties Court…and it is FURTHER RESOLV- Rules of Procedure of the Inter-American have not otherwise agreed, the ICSID rule on ED, that upon the recommendation of International Arbitration Commission or the party representation has the power of an the Stakeholder Relations Committee, Federal Arbitration Act.34 international treaty and, therefore, should the Board of Trustees endorses and Even if the Inter-American Convention is preempt California state law. Even in the promotes California as a favored venue found to offer limited preemption protec- absence of the ICSID rule set, the terms of for international arbitration and con- tion, it only applies to international arbitra- ICSID likely preclude application of Section ciliation proceedings.42 tions governed by that particular treaty. In that 6125. Articles 21 and 22 of the Convention While there may be good reasons not to regard, the Federal Arbitration Act provides grant the parties’ representatives immunity permit foreign attorneys to represent parties in that if the majority of the parties to the arbi- from legal process in connection with their California-based domestic arbitrations, there tration agreement are citizens of a nation that actions in the performance of their duties is no good reason to prohibit out-of-state is both a party to the Inter-American Con- with respect to any ICSID arbitration in attorneys or foreign attorneys from repre- vention and a member of the Organization of which they participate.40 senting parties in international arbitrations American States, the Inter-American Conven- Finally, the United States is a party to quite held in California. Instead, the out-of-state tion will apply. If those requirements are not a few bilateral investment treaties. To the arbitration counsel program either should be met, Chapter 2 of the Federal Arbitration extent those treaties permit the parties to select extended to cover international arbitrations and Act concerning implementation of the New arbitration rule sets for the resolution of their to foreign attorneys representing parties in York Convention on the Recognition and disputes that provide for free choice in the international arbitrations or, as suggested by Enforcement of Foreign Arbitral awards selection of party representatives, those treaties the State Bar Board of Trustees, the excep- applies. may also preempt California’s Birbrower rule. tion from Section 6125 for international con- The New York Convention has a much For example, the bilateral investment treaty ciliation in the California International Arbi- broader application to international arbitra- between the United States and Argentina per- tration and Conciliation Act as recognized by tions held in the United States. However, the mits the parties to select the UNCITRAL Birbrower should be extended to international New York Convention does not have a default Arbitration Rules, which provide, in Article 5, arbitration. However, until the California leg- rule set for the conduct of proceedings in the that “Each party may be represented or assisted islature affirmatively acts to permit non- same manner as the Inter-American Con- by persons chosen by it.” On the other hand, California attorneys to represent parties in vention. Instead, it generally is recognized as with the Inter-American treaty, if the parties international arbitration, parties must either that an arbitration covered by the New York to the arbitration elect, or are deemed to have accept application of the Birbrower rule or rely Convention is procedurally governed by the elected, to be governed by California’s rules of on nonlegislative solutions with the attendant laws of the jurisdiction where the arbitration arbitration procedure, then the parties must risks and limitations. I takes place or under the law of which the comply with California’s attorney representa- arbitration award is made.35 In that regard, the tion rules. 1 See, e.g., Commercial Rules of the Am. Arb. Ass’n, parties make the selection of the applicable R. 24; UNCITRAL Arb. Rules, Art. 5; ICC Arb. Rules, The Legislative Solution procedural law either by reference in the par- R. 26(4). 2 BUS.&PROF.CODE §6125. ties’ arbitration agreement or by designation Since the statutory exceptions and nonstatu- 3 Birbrower, Montalbano, Condon & Frank, P.C. v. of the seat of the arbitration. When an arbi- tory means to avoid the Birbrower Rule do Superior Court, 17 Cal. 4th 119 (Cal. 1998), cert tration subject to the New York Convention not provide a completely satisfactory answer denied, 525 U.S. 920 (1998) is held in California, it is possible for the to California’s prohibition against foreign or 4 Id. at 133-34. parties to designate California’s procedural out-of-state attorneys acting as counsel in 5 CODE CIV.PROC. §1282.4(c). The State Bar of rules as the rules of procedure or for those international arbitrations seated in California, California requires completion of the Certificate of Out-of-State Attorney Arbitration Counsel form, avail- rules to be deemed the governing rules by a legislative solution is the best and clearest able at http://admissions.calbar.ca.gov/LinkClick reason of California’s designation as the seat response. Toward that end, legislative solu- .aspx?fileticket=GyMRIC7tGa4%3d&tabid=766. Once of the arbitration. The New York Convention tions are being sought.41 approved by the arbitrator, the form must be submit- is implemented in the Federal Arbitration Act On May 10, 2013, the board of trustees ted to the California State Bar with a $50 filing fee for through Chapter 2 and, for those arbitrations of the California State Bar approved a reso- each arbitration. See http://admissions.calbar.ca.gov /Requirements/OutofStateAttorneyArbitrationCounsel seated in the United States, those portions of lution endorsing a legislative solution to the OSAAC/FAQ.aspx. Chapter 1 that do not conflict with Chapter international arbitration problem: 6 According to an e-mail from the State Bar dated July 2 or the New York Convention.36 However, RESOLVED, that upon the recom- 15, 2013, the State Bar received 800 certificates in there is nothing in Chapters 1 or 2 of the mendation of the Stakeholder Rela- 2009, 734 in 2011, and 780 in 2012. Data were not Federal Arbitration Act that expressly conflicts tions Committee, the Board of Trustees available for 2010. 7 See R. of Ct. 9.43. with and therefore preempts the Birbrower endorses amendments to California’s 8 Although not stated in Rule 9.43, Section 1282.4(c)(6) 37 rule. international arbitration and concili- requires that the out-of-state attorney not be a “resi- In addition to the possibility of preemp- ation statute to add language to Title dent of the state of California.” tion under the Inter-American Convention, 9.3 of the California Code of Civil Pro- 9 CODE CIV.PROC. §1282.4(c)(6) (emphasis added). international investment treaties are another cedure and amendments to other 10 CODE CIV.PROC. §1282.4(c). 11 Id. significant possible source of preemption. authorities as necessary to expressly 12 BUS.&PROF.CODE §6126. The United States is a party to the Inter- state in an international commercial 13 In Birbrower, the supreme court relied on Hardy v. national Convention on the Settlement of conciliation or arbitration proceeding, San Fernando Valley Chamber of Commerce, 99 Cal. Investment Disputes (ICSID). Under the Rules the person representing a party to the App. 2d 572, 576 (1950). of that Convention, “Each party may be rep- conciliation or arbitration is not 14 Code of Civil Procedure Section 1282.4(d) pro- resented or assisted by agents, counsel or required to be a licensed member of the vides, “Failure to timely file and serve the certificate described in subdivision (c) shall be grounds for dis- 38 advocates.” As with the Inter-American State Bar, consistent with the Supreme approval of the appearance and disqualification from Convention, parties arbitrating disputes under Court’s holding in Birbr ower, Montal- serving as an attorney in the arbitration in which the

24 Los Angeles Lawyer November 2013 certificate was filed.” ciliation of international commercial disputes.” 33 Inter-American Convention on International Com- 15 The Financial Industry Regulatory Authority Birbrower, 17 Cal. 4th at 130-31. This statement itself mercial Arbitration art. 3, June 9, 1978, 1438 U.N.T.S. (FINRA) arbitration rules provide guidelines for com- does not limit the exception to international concilia- 245. pliance with Section 1282.4, including a requirement tion proceedings. However, the very next sentence in 34 9 U.S.C. §306. that out-of-state attorneys complete the required certi- Birbrower notes that the exception is limited to con- 35 See Convention on the Recognition and Enforcement fication form for approval. See http://www.finra.org ciliation proceedings. of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. /ArbitrationAndMediation/Arbitration/Rules/Rule 26 Rule 9.43 does not distinguish between interna- 2517, 330 U.N.T.S. 38, Article V, §§1(d), (e). Guidance/NoticestoParties/P125353. In contrast, the tional and domestic arbitration, but it references Code 36 9 U.S.C. §208. American Arbitration Association (AAA) has no writ- of Civil Procedure §1282.4 as the source of the author- 37 Parties who elect to be governed by the Federal ten guidelines regarding the participation of out-of-state ity for the program and makes no mention of the Arbitration Act are electing to be governed by the fed- attorneys in California arbitrations. Indeed, AAA International Arbitration and Conciliation Act. eral on arbitration. See Buckeye Check Commercial Arbitration Rule 24 expressly permits 27 CODE CIV.PROC. §1282.4(c). Cashing, Inc. v. John Cardegna et al., 546 U.S. 440 any party to be represented by “counsel or other autho- 28 See, e.g., London international arbitration, United (2006). See also Stephen Smerek & Daniel Whang, rized representative.” Although the rule is contrary to Kingdom Arbitration Act 1996, §36; Paris interna- Preemption and the Federal Arbitration Act: What mandatory California law for California-based arbi- tional arbitration, http://www.parisarbitration.com/faq Law Will Govern Your Agreement to Arbitrate?, trations, AAA administrators do not take responsibil- .php; Swiss international arbitration, Swiss Arbitration NEWSLETTER OF THE ABA SECTION OF BUSINESS LAW ity for compliance. Instead, compliance is left to the par- Association, http://www.arbitration-ch.org/pages/en COMMITTEE ON CORPORATE COUNSEL (Mar. 2006), ties and the arbitral tribunal.. /arbitration-in-switzerland/switzerland-is-arbitration available at http://apps.americanbar.org/buslaw/com- 16 Russell v. Dopp, 36 Cal. App. 4th 765 (1995). -friendly/index.html; Singapore international arbitration, mittees/CL240000pub/newsletter/200603/home.shtml. 17 North by Northwest Prod. v. First Look Studios, No. Singapore International Arbitration Centre, http://www However, there is no clear statement of federal com- B219503, 2010 WL 4056851 (Cal. App. Oct. 18, .siac.org.sg/index.php?option=com_content&view mon law on arbitration that grants parties the unfet- 2010); Gerowitz v. Noll, No. G030308, 2003 WL =article&id=47&Itemid=65; Hong Kong international tered right to choose their representatives. 1711279 (Cal. App. Mar. 8, 2003). arbitration, Hong Kong International Arbitration Centre, 38 ICSID, Abritration (Additional Facility) Rules, Art. 18 CODE CIV.PROC. §1282.4(h). http://www.hkiac.org/index.php/en/arbitration/why 26(1). 19 CODE CIV.PROC. §§1282.4(i), 1282.4(j)(4). -hong-kong; and David D. Caron & Leah D. Harhay, 39 Id., Art. 44. 20 CODE CIV.PROC. §1282.4(g). A Call to Action: Turning the Golden State into a 40 But see id., Art. 1. 21 CODE CIV.PROC. §1297.351. Golden Opportunity for International Arbitration, 28 41 See Caron & Harhay, supra note 28; see also Yuval 22 Birbrower, Montalbano, Condon & Frank, P.C. v. BERKELEY J. INT’L L. 497, 502-504 (2010) [hereinafter Miller & M. Anderson Berry, Opening Up to Superior Court, 17 Cal. 4th 119, 130, 131 (1998). Caron & Harhay]. International Arbitration, THE DAILY JOURNAL, Jan. 11, 23 CODE CIV.PROC. §§1297.11-1297.432. 29 CODE CIV.PROC. §1282.4(g). 2010, at 7; Paul M. Lurie & Carl F. Ingwalson, 24 CODE CIV.PROC. §1297.13. 30 Birbrower, Montalbano, Condon & Frank, P.C. v. Arbitration and the Unauthorized Practice of Law, 25 Some confusion is understandable because the Superior Court, 17 Cal. 4th 119, 134-35 (1998). 27 CONSTR.LAWYER 14 (2007); Richard A. Eastman, California Supreme Court stated in Birbrower that 31 Volt Info. Sciences v. Leland Stanford Jr. U., 489 U.S. Birbrower, Montalbo, Condon & Frank v. Superior “[t]he Legislature has recognized an exception to sec- 468, 477 (1989). Court, 94 AM. J. INT’L. L. 400 (2010). tion 6125 in international disputes resolved in Cali- 32 Birbrower, 17 Cal. 4th 119, at 146 (Kennard, J. 42 Resolution of the Board of Trustees of the State Bar fornia under the state’s rules for arbitration and con- dissenting) (citations omitted). of California, May 10, 2013.

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Los Angeles Lawyer November 2013 25 Meet your mandatory CLE requirements for 2014

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by Richard S. Conn

The Properties of Preemption CERCLA may preempt state laws barring claims on the real property interests of heirs

TWO CALIFORNIA STATUTES promote the policy of certainty and finality in the transfer of property inter- ests to the lawful successors in interest of a person who dies. One is an expedited statute of limitations appli- cable to claims that could have been asserted against the decedent before death.1 The other policy is embod- ied in the Probate Code’s so-called nonclaim statutes, which require the decedent’s creditors, on actual or constructive notice of estate administration, to timely file and prosecute claims.2 A competing policy legitimates the interest of creditors in obtaining satisfaction of bona fide claims from the assets of the decedent before they pass to heirs or beneficiaries. Frequently, creditors have an interest in claims that arise from a decedent’s ownership of real property. When representing the administrators and trustees of estates with real property, practitioners may consider the potential liabilities unique to real estate but may be inclined to discount them and rely on statutes of limitation or repose. For example, unwary practitioners may think that the one-year statute of limitation found in Section 366.2 of the Code of Civil Procedure, which runs from the date of death of a decedent, and the 120-day claims filing requirements of Probate Code Sections 9100 (probate estates) and 19100 (applicable to trusts, when invoked by the trustee) adequately protect an estate from liability. Unfortunately, the law provides no such assurance. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides the fed-

Richard S. Conn is a partner in the Los Angeles office of Musick, Peeler & Garrett. He specializes in business, real estate, probate, and trust litigation.

Los Angeles Lawyer November 2013 27 eral government statutory authority to recover the death or dissolution of an original respon- contingent at the time of the decedent’s death. response costs and to compel owners, oper- sible party. While the opinion may be limited to claims ators, and other potentially responsible par- CERCLA is not limited to establishing arising in contract, certain language in the ties to clean up environmental contamination federal liability for specified damages and opinion is sufficiently broad to apply to any of real property.3 An owner of real property cleanup costs. Under 42 USC Section 9658, circumstance in which the claimant could is presumptively a potentially responsible state statutes of limitation respecting recovery not have sued the decedent for injuries sus- party, unless the owner can prove entitle- of damages for environmental torts may be tained at the time of death. In the case of ment to the status of innocent landowner. In extended. As the code states, “[I]f the appli- claims for contribution under CERCLA, if the general, this requires a showing that an unre- cable limitations period for such action (as contribution expenditures are incurred after lated party was the sole cause of the conta- specified in the State statute of limitations or the decedent’s death, Dacey raises the prospect mination and damage and that the landowner under common law) provides a commence- that Section 366.2 will not bar a claim guarded against the foreseeable acts and ment date which is earlier than the federally asserted against an administrator or trustee omissions of the responsible party.4 Potentially required commencement date, such period more than one year after the decedent’s death. responsible parties other than landowners shall commence at the federally required The application of the nonclaim statutes and operators include those who transport or commencement date in lieu of the date spec- is subject to less doubt. Dacey, for example, In Dacey v. Taraday, the court of appeal found that the administrator of an estate could not invoke the bar of Section 366.2 against a contract claim that was still contingent at the time of the decedent's death. dispose of hazardous materials.5 ified in such State statute.” recognizes that the statutes are clearly Under Section 9607(a), CERCLA liability Thus, in addition to providing federal intended to apply to claims that may be unac- includes: remedies, CERCLA potentially has a signif- crued, unliquidated, or contingent.11 How- A. All costs of removal or remedial icant effect on rights under state law. For ever, the nonclaim statutes may prove a dou- action incurred by the United States example, in Angeles Chemical Company Inc. ble-edged sword. In order to benefit from Government or a State or an Indian v. Spencer & Jones, the court of appeal held their protection, an administrator-trustee tribe not inconsistent with the national that California’s 10-year statute of limita- must serve notice of administration, includ- contingency plan; B. Any other neces- tion for construction defect claims was pre- ing the right to file a claim, on “all known or sary costs of response incurred by any empted. Negligence and breach-of-contract reasonably ascertainable creditors of the dece- other person consistent with the claims were therefore viable even though dent.”12 Any creditor not served may seek national contingency plan; C. Damages more than 10 years had passed since the leave of court to file a claim within 60 days for injury to, destruction of, or loss of occurrence that gave rise to liability.7 after the creditor “has actual knowledge of the natural resources, including the rea- administration of the estate.” Similarly, the One Year or More? sonable costs of assessing such injury, creditor may seek leave of court to file a destruction, or loss resulting from such California’s one-year statute of limitation claim if the creditor “had no knowledge of the a release; and D. The costs of any respecting postdeath lawsuits provides: facts reasonably giving rise to the existence of health assessment or health effects If a person against whom an action a claim more than 30 days prior to the time study carried out under section 9604(i) may be brought on a liability of the for filing a claim” and files its petition for of this title. person, whether arising in contract, leave to file a claim within 60 days after the Notably, in addition to empowering the tort, or otherwise, and whether accrued creditor has actual knowledge of facts rea- government to enforce removal and remedi- or not accrued, dies before the expi- sonably giving rise to the claim and of the ation of contaminants, CERCLA creates ration of the applicable limitations administration of the estate.13 While the non- causes of action in favor of private parties, period, and the cause of action sur- claim statutes appear to provide better pro- including for contribution and damages. vives, an action may be commenced tection under California law than Section Statutes of limitation vary depending on within one year after the date of death, 366.2, they require effective notice to poten- whether the action is for contribution or for and the limitations period that would tial environmental claimants and are not a cer- costs of responding to contamination, and have been applicable does not apply.8 tain bar to liability. whether funds have been expended for a This language would appear sufficiently In sum, an administrator or trustee who removal action or a remedial action, some broad to bar claims for contribution and relies on Section 366.2 risks exposure to being three years and others six years.6 Of damage to natural resources, whether accru- environmental claims that accrue after the material consequence, the various statutory ing before or after the decedent’s death. A decedent’s death. The nonclaim statutes do periods may run from the date of a judg- number of decisions have applied Section not provide sure protection against the risk ment, a court-approved settlement, an admin- 366.2 to bar claims.9 However, the general of claims by parties who were not notified istrative order, or from completion of work. application of these decisions has been called or were not aware of facts disclosing that a The limitations periods may span decades into question by the more recent holding in claim had accrued. Moreover, issues of lia- after the contamination is caused or discov- Dacey v. Taraday.10 In Dacey, the court of bility do not terminate on the distribution of ered. A viable claim for contribution or appeal found that the administrator of an assets to beneficiaries. To the extent that a response costs may be timely asserted under estate could not invoke the bar of Section distribution is made by a trustee without sat- a CERCLA statute of limitations years after 366.2 against a contract claim that was still isfaction of subsisting indebtedness, the dis-

28 Los Angeles Lawyer November 2013 MCLE Answer Sheet #229 MCLE Test No. 229 THE PROPERTIES OF PREEMPTION

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

1. Under California law, a creditor of a deceased per- 12. Two U.S. courts of appeal have held that CERCLA pro- Address son generally has one year from the date of death to visions that extend state statutes of limitations for City bring an action against the deceased person’s suc- environmental torts were intended to apply equally to State/Zip cessors. statutes of repose. True. True. E-mail False. False. Phone State Bar # 2. A nonclaim statute relieves a creditor of the oblig- 13. I n order for a probate administrator to be pro- ation to file a claim in a probate proceeding. tected by California’s nonclaim statutes, he or she INSTRUCTIONS FOR OBTAINING MCLE CREDITS True. must serve notice of the right to file a claim on all False. known or reasonably ascertainable creditors. 1. Study the MCLE article in this issue. True. 2. Answer the test questions opposite by marking 3. “CERCLA” refers to the Comprehensive Environmental False. the appropriate boxes below. Each question Response, Compensation, and Liability Act. has only one answer. Photocopies of this True. 14. A creditor who is not timely served with notice of answer sheet may be submitted; however, this False. the right to file a probate claim must file a claim within form should not be enlarged or reduced. six months of learning of the administration of the 3. Mail the answer sheet and the $20 testing fee 4. An owner of real property is presumptively a poten- estate. ($25 for non-LACBA members) to: tially responsible party under CERCLA unless the owner True. Los Angeles Lawyer can prove entitlement to innocent landowner status. False. MCLE Test True. P.O. Box 55020 False. 15. If a creditor does not have knowledge of facts rea- Los Angeles, CA 90055 sonably giving rise to a claim as of 30 days prior to the Make checks payable to Los Angeles Lawyer. 5. CERCLA only creates rights in the U.S. government, expiration of the claims filing period, and therefore 4. Within six weeks, Los Angeles Lawyer will a state, or an Indian tribe and does not affect the rights omits filing a claim, the creditor is forever barred from return your test with the correct answers, a of private parties against one another. pursuing recovery. rationale for the correct answers, and a True. True. certificate verifying the MCLE credit you earned False. False. through this self-assessment activity. 5. For future reference, please retain the MCLE 6. Code of Civil Procedure Section 366.2 bars actions 16. The court in Witko v. Beekhuis held that any state test materials returned to you. for breach of contract brought more than one year after statute of limitation running from the date of a respon- the death of a contracting party, even if the breach sible party’s death will be unaffected by CERCLA. ANSWERS had not occurred prior to the date of death. True. Mark your answers to the test by checking the True. False. appropriate boxes below. Each question has only False. one answer. 17. An administrator of a probate estate may rely on 7. Federal statutes always preempt state statutes Code of Civil Procedure Section 366.2 to protect against 1. I True I False addressing the same subject matter. all claims for damages based on environmental torts 2. I True I False True. committed by the decedent. I I False. True. 3. True False False. 4. I True I False 8. Federal courts have uniformly held that the CERCLA 5. I True I False statutes of limitation preempt state nonclaim statutes. 18. Federal statutes will only preempt state statutes on I I True. the same subject matter when Congress has expressed 6. True False False. a plain intent to preempt state law. 7. I True I False True. I I 9. Statutes of repose differ from statutes of limitation 8. True False False. in that statutes of repose may bar a suit before a cause 9. I True I False of action has accrued. 19. A court may infer preemption from federal regula- 10. I True I False True. tion that is sufficiently comprehensive to leave no room 11. I True I False False. for state regulation. 12. I True I False True. 10. CERCLA may extend the statute of limitation for False. 13. I True I False actions under state law to recover damages for envi- 14. I True I False ronmental torts. 20. Federal law may be deemed to preempt state law 15. I True I False True. to the extent it actually conflicts with federal law. False. True. 16. I True I False False. 17. I True I False 11. California’s 10-year statute of limitations for con- struction defects may be extended by CERCLA. 18. I True I False True. 19. I True I False False. 20. I True I False

Los Angeles Lawyer November 2013 29 tributees are liable for payment on a pro eral law may nonetheless pre-empt descent of property) Congress could not have rata basis.14 state law to the extent it actually con- intended to preempt state nonclaim statutes. Patchwork as the California protections flicts with federal law. Such a conflict Witco is cited with approval in M. arsh v may be, do they override CERCLA statutes occurs either because “compliance Rosenbloom, which rejects a claim that CER- of limitation? While a number of reported fed- with both federal and state regulations CLA preempted Delaware’s statute barring eral decisions have addressed whether specific is a physical impossibility,” or because claims against a corporation that are made statute of limitation provisions in CERCLA the state law stands “as an obstacle to more than three years after completion of preempt state law, they reach conflicting the accomplishment and execution of the corporation’s dissolution. Another case, results. The outcome appears in part to the full purposes and objectives of Boyle v. County of Kern, holds that filing of depend on the specific cause of action and Congress.”17 a federal civil rights complaint within the statute of limitation at issue. Without respect The Witco court noted that three federal claim filing period does not satisfy the non- to federal preemption, California statutes of district courts have found that the CERCLA claim statute filing requirement.19 limitation for damage to real property may statute of limitations affirmatively preempted McDonald v. Sun Oil Company range from as short as three years for negli- state nonclaim statutes on the ground that gently caused harm to 10 years for con- preemption is necessary to implement the In the context of claims for contribution, struction defects.15 overriding federal policy that those who are Witco makes a strong argument against fed- The leading federal decision relating to responsible for improper disposal of chemi- eral preemption of state nonclaim statutes. CERCLA’s three-year statute of limitations for cal poisons should bear the expense of This provides some reassurance to a probate contribution actions is Witco Corporation cleanup.18 Nevertheless, the Witco court pro- practitioner, but several contrary federal deci- v. Beekhuis.16 In Witco, the court of appeal ceeded to reach a contrary result on four sions leave the issue unsettled. Further, the considered whether Delaware’s eight-month grounds. First, the court found nothing in Ninth Circuit’s decision in McDonald v. Sun probate nonclaim filing statute insulated the CERCLA to indicate congressional intent to Oil Company puts Witco into some doubt.20 executor of a probate estate and derivative preempt state law governing claims against In particular, it is doubtful that Witco can be trusts from claims for contribution for envi- decedent’s estates, which is an area tradi- extended to Section 366.2, which is not specif- ronmental cleanup. Witco Corporation had tionally reserved to state law. Second, the ically tied to administration of estates and owned the land in question from 1972 to court found a justifiable inference that would not support Witco’s argument regard- 1977, been aware of the environmental issues Congress intended to leave state law respect- ing an executor’s lack of capacity to be sued. since at least 1985, and entered into a cleanup ing decedent’s estates unchanged. This rea- In McDonald, the court considered consent decree with the EPA in 1992. The soning is based on inclusion of an innocent whether Section 9658 preempts an Oregon decedent, Beekhuis, had owned and oper- landowner defense in Section 9607(b)(3). statute of repose that limits the right to bring ated a corporation that had merged into a Third, the court found that after the run- suit without respect to knowledge of accrual Witco subsidiary, eventually constituting ning of the eight-month nonclaim period, an of a claim.21 Specifically, the court found that Witco, an owner of the contaminated prop- executor lacks capacity to be sued, and that the Oregon statute that precluded action for erty. Beekhuis was presumably deemed a state law on capacity is determinative under negligent injury to a person or property more potentially responsible party because of his Rule 17(b) of the Federal Rules of Civil than 10 years from the date of the act or operation of the predecessor entity and his Procedure. Last, the court found that for omission complained of was preempted by actions as an officer of Witco. Beekhuis and pragmatic reasons (i.e. certainty governing the Section 9658. The court found in favor of pre- his insurer had allegedly been placed on notice of their liability in 1988. Ruling on Preemption The court in Witco cited language from California Federal Savings and Loan Asso- Federal courts are frequently called upon to determine whether a federal statute pre- ciation v. Guerra as setting forth the applic- empts a parallel state statute. When doing so, courts typically consider three factors. able standard for a finding of federal pre- First, if Congress has expressed a plain intent to preempt state law pertaining to a subject emption: matter governed by the supremacy clause of the U.S. Constitution, this is dispositive. In determining whether a state statute Second, in the absence of a clearly expressed intent, the court may infer preemption from is pre-empted by federal law and there- federal regulation that is sufficiently comprehensive to leave no room for state regulation. fore invalid under the Supremacy Third, federal law may be deemed to preempt state law to the extent it actually conflicts Clause of the Constitution, our sole with federal law.1 task is to ascertain the intent of Con- Some recent decisions reflect the range of judicial reasoning on preemption. In In re gress. Federal law may supersede state Western States Wholesale Natural Gas Antitrust Litigation,2 the court held that the federal law in several different ways. First, Natural Gas Act was not intended to preempt state police power to enforce state antitrust when acting within constitutional lim- laws on retail sales of natural gas. In Movsesian v. Victoria Versicherung AG,3 the court held its, Congress is empowered to pre- that a California statute vesting state courts with jurisdiction over insurance actions by empt state law by so stating in express Armenian Genocide victims and extending statutes of limitation for victims’ claims was pre- terms. Second, congressional intent to empted by the U.S. Constitution’s grant of exclusive authority in foreign affairs to the fed- preempt state law in a particular area eral government. In Castro v. Collecto Inc.,4 the court held that a four-year statute of limi- may be inferred where the scheme of tation under Texas law was not conflict-preempted by a two-year limit in the Federal federal regulation is sufficiently com- Communications Act, as applied to a claim respecting unlawful collection practices relating prehensive to make reasonable the to cellular phone bills.—R.S.C. inference that Congress “left no room” for supplementary state regula- 1 California Fed. Sav. and Loan Ass’n v. Guerra, 479 U.S. 272, 280-81 (1987). tion.…As a third alternative, those 2 In re W. States Wholesale Natural Gas Antitrust Litig., 715 F. 3d 716 (9th Cir. 2013). 3 areas where Congress has not com- Movsesian v. Victoria Versicherung AG, 670 F. 3d 1067 (9th Cir. 2011). 4 Castro v. Collecto Inc., 634 F. 3d 779 (5th Cir. 2011). pletely displaced state regulation, fed-

30 Los Angeles Lawyer November 2013 Statement of Ownership, Management emption notwithstanding a relatively minor of decedents’ estates routinely rely on Section and Circulation UNITED STATES POSTAL SERVICE injury to the plaintiff in the form of $70,000 366.2 and the nonclaim statutes in providing (Required by 39 USC 3685) in cleanup costs. their clients assurance that money or assets 1. Publication Title: Los Angeles Lawyer The court in McDonald explicitly rejected may be safely distributed without concern 2. Publication Number: 01622900 3. Filing Date: September 18, 2013 an argument that, as a statute of repose rather for later claims. Unfortunately, CERCLA casts 4. Issue Frequency: Monthly (Except combined than a statute of limitation, the Oregon statute a cloud over the ability of any executor or July/August) was not intended to be preempted. In hold- trustee to distribute real property with assur- 5. Number of Issues Published Annually: 11 6. Annual Subscription Price: $14.00 members; ing that Section 9658 was intended to apply ance that all viable claims have been satisfied $28.00 nonmembers to both statutes of repose and statutes of or are barred. Moreover, even purely per- 7. Complete Mailing Address of Known Office of limitation, the court defined statutes of lim- sonal liabilities of the decedent may survive. Publication: Los Angeles Lawyer, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017-2553 itation and repose: That being said, it is clear that, for trustees, 8. Complete Mailing Address of Headquarters or Statutes of limitations and repose are use of the notice to creditors mechanism set General Business Office of Publisher: Los Angeles Lawyer, 1055 West 7th Street, Suite distinct legal concepts with distinct forth in Sections 19100 et seq. potentially 2700, Los Angeles, CA 90017-2553 effects. “A statute of limitations re- provides significant protection. Use of this 9. Full Names and Complete Mailing Addresses of quires a lawsuit to be filed within a procedure would appear far preferable to pas- Publisher, Editor, and Managing Editor: Publisher: Samuel L. Lipsman, Los Angeles specified period of time after a legal sive reliance on the one-year statute of limi- Lawyer, 1055 West 7th Street, Suite 2700, Los right has been violated….On the other tations of Section 366.2. I Angeles, CA 90017-2553. Editor: Samuel L. hand, statutes of repose are designed Lipsman, Los Angeles Lawyer, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017-2553. to bar actions after a specified period 1 CODE CIV. PROC. §366.2. Managing Editor: Samuel L. Lipsman, Los of time has run from the occurrence of 2 PROB. CODE §§9000 et seq. (probate estates); PROB. Angeles Lawyer, 1055 West 7th Street, Suite some event other than the injury which CODE §§19000 et seq. (trust estates). 2700, Los Angeles, CA 90017-2553. Contact 3 42 U.S.C.A. §§9601-9675. Person: Samuel L. Lipsman. Telephone: (213) gave rise to the claim.” Statutes of lim- 896-6503 4 PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 itations preclude[ ] the plaintiff from 10. Owner: Los Angeles County Bar Association, F. 3d 161 (4th Cir. 2013). 1055 West 7th Street, Suite 2700, Los Angeles, proceeding….A statute of repose, how- 5 For a discussion of whether executors and trustees will CA 90017-2553 ever…can bar a suit even before the be treated as innocent landowners, see United States v. 11. Known Bondholders, Mortgagees, and Other cause of action could have accrued.…In Newmont USA Ltd., 504 F. Supp. 2d 1050, 1067 Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, proper circumstances, it can be said to (E.D. Wash. 2007) (noting 42 U.S.C.A. §9607). 6 See 42 U.S.C.A. §9607, §9613. or Other Securities. None 12. Tax Status. The purpose, function, and nonprofit destroy the right itself. It is not con- 7 Angeles Chem. Co. Inc. v. Spencer & Jones, 44 Cal. status of this organization and the exempt status cerned with the plaintiff’s diligence; it App. 4th 112 (1996). for federal income tax purposes: Has Not is concerned with the defendant’s 8 CODE CIV. PROC. §366.2(a). Changed During Preceding 12 Months. N/A peace.22 9 See Bradley v. Breen, 73 Cal. App. 4th 798 (1999); 13. PublicationTitle: Los Angeles Lawyer. 14. Issue Date for Circulation Data Below: Sept. 2013. In reaching this result, the court in Dawes v. Rich, 60 Cal. App. 4th 24, 32-36 (1997); cf. Battuello v. Battuello, 64 Cal. App. 4th 842 (1998). Extent and nature of circulation: (Column 1: Average No. Copies Each Issue During Preced- McDonald explicitly rejected a contrary find- 10 Dacey v. Taraday, 196 Cal. App. 4th 962, 984-87 ing by the Fifth Circuit in Burlington North- ing 12 months. Column 2: Number Copies of (2011). Single Issue Nearest to Filing Date.) ern & Santa Fe Railway Company v. Poole 11 Id. at 983; PROB. CODE §9000; CODE CIV. PROC. Column 1 Column 2 a. Total Number of Copies 23 §§338(b), 337.15. Chemical Company that Section 9658 was (Net Press Run) 23,349 25,350 12 not intended to apply to statutes of repose. PROB. CODE §9050. b. Paid Circulation 13 PROB. CODE §9103. The holding in McDonald has subsequently (1) Mailed Outside-County 14 PROB. CODE §§19103(d), 19400 et seq. Paid Subscriptions 21,643 24,059 been followed by the Fourth Circuit in 15 CODE CIV. PROC. §§338(b), 337.15. stated on PS Form 3541 Waldburger v. CTS Corporation,24 a case 16 Witco Corp. v. Beekhuis, 38 F. 3d 682 (1994); 42 (2) Mailed In-County Paid U.S.C.A. §9613(g)(3). Subscriptions stated on decided on similar facts. PS Form 3541 0 0 17 Witco Corp. v. Beekhuis, 38 F. 3d 682, 687 (1994) McDonald is noteworthy because Section (3) Paid Distribution Outside (quoting California Fed. Sav. and Loan Ass’n v. Guerra, 366.2 and the nonclaim statutes are arguably the Mails 0 0 479 U.S. 272, 280-81 (1987)). See also Florida Lime (4) Paid Distribution by Other statutes of repose. It is entirely conceivable & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142- Classes of Mail through that, if asked to rule on the issue of preemp- 143 (1963); Hines v. Davidowitz, 312 U.S. 52, 67 the USPS 0 0 tion pursuant to Section 9658 as applied to (1941); Michigan Canners & Freezers Ass’n, Inc. v. c. Total Paid Distribution 21,643 24,059 d. Free or Nominal Rate Distribution Agricultural Mktg. and Bargaining Bd., 467 U.S. 461, the California statutes, the Ninth Circuit (1) Free or Nominal Rate could reach a contrary result. Nevertheless, 478 (1984); Fidelity Fed. Sav. & Loan Ass’n v. De la Outside-County Copies Cuesta, 458 U.S. 141, 156 (1982); but see Maryland included on PS Form 3541 106 106 McDonald at least may be cited as dicta to v. , 451 U.S. 725, 746 (1981); see also 42 (3) Free of Nominal Rate Copies support the proposition that California state U.S.C. §9613(g)(3). Mailed at Other Classes 111 130 law negligence claims predicated on release of 18 See Freudenberg-NOK Gen. P’ship v. Thomopoulos, e. Total Free or Nominal Rate Distribution 236 1991 WL 325290, at *2 (D. N.H. 1991); Soo Line R.R. 217 pollutants are not barred by Section 366.2 or f. Total Distribution 21,860 24,295 Co. v. B.J. Carney & Co., 797 F. Supp. 1472 (D. the nonclaim statutes and that pursuant to g. Copies Not Distributed 1,489 1,055 Minn. 1992); Steego Corp. v. Ravenal, 830 F. Supp. 42 Probate Code Section 9658, the claims are h. Total 23,349 25,350 (D. Mass. 1993). i. Percent Paid 99% 99% governed by a hybrid federal-state statute of 19 Marsh v. Rosenbloom, 499 F. 3d 165 (2nd Cir. limitation that runs from the date of discov- 2007); Boyle v. County of Kern, No. 1:2003cv05162 16. This Statement of Ownership will be printed in ery. Further, the willingness of the McDonald (E.D. Cal. Feb. 7, 2003). the November 2013 issue of this publication. 20 McDonald v. Sun Oil Co., 548 F. 3d 774 (2008). 17. Signature and Title of Editor, Publisher, Business court to treat CERCLA preemption of statutes Manager, or Owner: Samuel L. Lipsman, 21 See 42 U.S.C. §9658(a)(1). of repose in a manner identical to statutes of Publisher. Date: 9/18/13. I certify that all informa 22 McDonald, 548 F. 3d at 779-80 (citing Underwood limitation raises a question as to whether the tion furnished on this form is true and complete. I Cotton Co., Inc. v. Hyundai, 288 F. 3d 405, 408-09 understand that anyone who furnishes false or Ninth Circuit would reach a result contrary (9th Cir. 2002)). misleading information on this form or who omits to Witco regarding claims of contribution for 23 Burlington N. & Santa Fe Ry. Co. v. Poole Chem. material or information requested on the form may costs of removal or remedial action. Co., 419 F. 3d 355, 363 (5th Cir. 2005). be subject to criminal sanctions (including fines 24 Waldburger v. CTS Corp., 2013 WL 3455775 (4th and imprisonment) and/or civil sanctions (including Practitioners representing administrators multiple damages and civil penalties). Cir. 2013).

Los Angeles Lawyer November 2013 31 by Kenneth K. Lee

Questionable CLASSES

IN RECENT YEARS, California has become a typical class action suit, plaintiffs’ lawyers Recent decisions in a haven for consumer class action lawsuits. allege that companies have deceived con- This surge in class action complaints led the sumers through false and misleading adver- American Tort Reform Foundation to dub the tisements or packaging on the product. false advertising Golden State as America’s number one “judi- For example, Ferrero, the company that cial hellhole.”1 Many factors account for makes Nutella spread, was hit with a class this spike in consumer class actions. One key action lawsuit alleging that it had misleadingly class actions have reason has been several high-profile pro- marketed its chocolate spread as “health- plaintiff decisions that the Ninth Circuit and ful.” According to the complaint, Ferrero the California Supreme Court have issued engaged in an ad campaign of “images and shown less favor in the past five years. videos of wholesome families and happy, The pendulum, however, may finally have healthy children enjoying Nutella for break- begun swinging the other way. Judges in fast before going to school.”3 Despite the rel- to plaintiffs California, especially federal judges, have atively scant evidence of wrongdoing, the taken a more skeptical view of many con- company recently entered into a $3 million sumer class action lawsuits.2 They have nar- settlement.4 Companies as diverse as Dell rowly interpreted the proplaintiff decisions and Diamond Foods have recently settled and have shown a willingness to apply com- multimillion dollar false advertising lawsuits mon sense in dismissing many of the more filed in California.5 dubious class action lawsuits at the pleading This recent wave of consumer class action stage. lawsuits can be attributed to several interre- Over the past several years, the plaintiffs’ lated factors. First, California’s consumer bar has challenged a wide swath of business protection laws—the Unfair Competition practices, ranging from the sending of unau- thorized text message advertisements to covert Kenneth K. Lee is a partner at Jenner & Block’s Los tracking of Internet web-surfing informa- Angeles office and has defended numerous con- tion, but most consumer class action lawsuits sumer class action lawsuits in California and else-

in California are still based on advertising. In where. KEN DORRAL

32 Los Angeles Lawyer November 2013

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The Academy is pleased to recognize over 60 neutrals across Southern California, including...

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To access our FREE National Directory of over 800 trusted mediators & arbitrators, please visit www.NADN.org/directory SmartPhone Link Selecting A Top-Tier Neutral Has Never Been Easier

The Academy is pleased to recognize over 60 neutrals across Southern California, including...

Lynne S. Bassis Michael J. Bayard Daniel Ben-Zvi Lee Jay Berman Viggo Boserup Ernest C. Brown Kenneth Byrum George Calkins R.A. Carrington Steven Cohen (213) 683-1600 (213) 383-9399 (310) 201-0010 (310) 203-0700 (310) 309-6205 (800) 832-6946 (661) 861-6191 (310) 309-6206 (805) 565-1487 (310) 315-5404

Greg Derin Michael Diliberto Randall Erickson Max Factor III William Fitzgerald Kenneth C. Gibbs Reginald Holmes Laurel Kaufer Joan Kessler Linda Klibanow (310) 552-1062 (310) 201-0010 (949) 263-8400 (310) 456-3500 (310) 440-9090 (310) 309-6205 (626) 432-7222 (818) 888-4840 (310) 552-9800 (626) 204-4000

Louise LaMothe Leonard Levy Ronald Mandell StevMehe ta Jeffrey Palmer Barry Ross Deborah Rothman Henry Silberberg John Leo Wagner Ivan Stevenson (805) 563-2800 (310) 201-0010 (310) 271-8912 (661) 284-1818 (626) 795-7916 (818) 840-0950 (800) 616-1202 (310) 276-6671 (800) 488-8805 (310) 540-2138

At www.CaliforniaNeutrals.org you can search by subject matter expertise, location and preferred ADR service in just seconds. You can also determine availability by viewing many members’ www.CaliforniaNeutrals.org The National Academy of Distinguished Neutrals, is an association of over 800 mediators and arbitrators who have substantial experience in the resolution of commercial and civil disputes. All members have been recognized for their accomplishments through the Academy’s peer nomination system and extensive attorney-client review process. Membership is by invitation only and is limited to individuals who devote substantially all of their professional efforts to ADR practice. Need a top-rated mediator /arbitrator outside of California? Visit www.NADN.org

To access our FREE National Directory of over 800 trusted mediators & arbitrators, please visit www.NADN.org/directory SmartPhone Link Law, the Consumer Legal Remedies Act, and particular, has been a boon to the plaintiffs’ The effect of the CAFA has served to neu- the False Advertising Law—are generally bar because it contains language that can be tralize many proplaintiff forums. For exam- considered to be more advantageous to plain- construed as making it difficult for a defen- ple, in Texas state court judges are often tiffs than similar laws of many other states. dant to prevail on a Rule 12(b) motion.8 more likely to favor class action plaintiffs For example, California, unlike many of the Specifically, some have read the opinion as than federal judges, many of whom have a other states, does not have a scienter require- precluding a dismissal on the pleadings even more probusiness bent. On the other hand, ment for false advertising claims. Moreover, if a product’s packaging accurately discloses the plaintiff’s bar views California’s federal many California courts have construed these all ingredients. The Ninth Circuit reversed the bench as more consumer-friendly, especially statutes broadly in favor of plaintiffs, even dismissal of a lawsuit challenging the pack- because California federal judges must decide though the plain language of California’s aging of Gerber’s Fruit Juice Snacks. Although cases under the penumbra of some of the statutes is not markedly different from the the ingredient list accurately disclosed all the Ninth Circuit’s more proplaintiff opinions. laws of other states. Some California courts, ingredients, the court held that the packaging Indeed, one plaintiffs’ lawyer who is han- for instance, have held that there is no need was potentially deceptive because it depicted dling over 30 food labeling cases in the Northern District of California told a legal newspaper, “The law is more favorable here in than in any other jurisdictions that we’ve looked at.”12 Finally, the U.S. Supreme Court’s deci- sion in AT&T Mobility v. Concepcion has made false advertising claims more enticing to plaintiffs’ lawyers.13 In Concepcion, the plaintiffs brought a putative class action suit against AT&T, alleging that it had falsely advertised its phones as “free” when in fact it had charged a sales tax on the full price of the phones.14 Relying on an arbitration pro- vision in the AT&T service agreement that barred class actions, AT&T moved to com- pel the case to arbitration. The district court and the Ninth Circuit held that the arbitra- tion provision was unconscionable and thus unenforceable, but the U.S. Supreme Court reversed and upheld the validity of such arbi- tration provisions.15 The Concepcion decision significantly reduced the power of class action lawsuits because companies can now insert arbitration provisions that bar class actions into their contracts with consumers. For most consumer goods involving claims of false advertisements, however, no written con- tracts (and thus no arbitration provisions) to show reliance or damages by unnamed a picture of a fruit that was not contained in are implicated. Accordingly, many plaintiffs’ members of the proposed class.6 the product. The Ninth Circuit thus held that lawyers have focused their attention on prod- More recently, the California Supreme there was a factual issue that would need to ucts that are sold without formal contracts. Court eroded the statutory standing require- be decided at a later stage.9 A High Burden for Dismissal ment for false advertising claims. In Kwikset Moreover, the Class Action Fairness Act Corporation v. Superior Court, the plaintiff (CAFA) may have had the unintended effect If false advertising cases can survive a motion bought a lockset that was labeled with the of encouraging a different form of forum- to dismiss, settlement leverage increases dra- words “Made in the U.S.A” but a small frac- shopping—not by state but by federal circuit. matically. Furthermore, if a class is certified, tion of the parts was made elsewhere.7 Concerned by plaintiffs’ lawyers who were a substantial class settlement becomes more Although there was no allegation that the forum-shopping for state courts that are noto- likely regardless of the merits of the case. lockset was defective, the plaintiff brought a rious for certifying classes even in dubious While a class action can be a useful and nec- putative class action lawsuit against the maker cases, Congress passed CAFA in 2005, mak- essary device to remedy certain wrongs, a of the lockset. The maker argued that the ing it easier for defendants to remove cases to large number of the recent false advertising plaintiff had suffered no real harm because the federal courts.10 Under CAFA, there is no suits arguably lack merit. They are essen- lockset performed as advertised and as one longer a requirement for “complete diver- tially lawyer-manufactured lawsuits in which would reasonably expect from a lockset. sity” (none of the plaintiffs can be from the there has been no real harm to the consumers, Nonetheless, the California Supreme Court same state as any of the defendants). Rather, and the supposedly misleading statement is in held that labeling does matter and that the “minimal diversity” (at least one plaintiff is reality marketing fluff that no reasonable plaintiff had suffered a sufficient injury to pur- from a state different from one defendant) is consumer would believe. sue the lawsuit. sufficient to confer federal jurisdiction as The Nutella case is a prime example. The Ninth Circuit has also played a role long as the proposed class has more than Notwithstanding the television ads, it seems in making California a haven for plaintiffs’ 100 members and the amount in controversy highly unlikely that most consumers believed lawyers. Its W illiams v. Gerber decision, in exceeds $5 million.11 that a hazelnut and chocolate spread is some-

36 Los Angeles Lawyer November 2013 how healthful. Fortunately for plaintiffs’ mindful of the onerous discovery costs “the unwary consumer” or “a least sophis- lawyers, it is generally difficult to prevail on imposed on defendants if a baseless case is ticated consumer.”29 a motion to dismiss under California’s con- allowed to move forward.21 As the Court These Ninth Circuit decisions are partic- sumer protection laws. On the grounds that put it, “the threat of discovery expense will ularly notable because they were decided a factual issue may exist, too many judges push cost-conscious defendants to settle even after Williams v. Gerber. The Ninth Circuit have declined to dismiss even highly ques- anemic cases.”22 The Court in Iqbal made in Williams refused to dismiss the case at the tionable class action lawsuits at the pleading clear that the plausibility standard applies pleading stage, even though the product’s stage. Further, it is comparatively cost-efficient beyond the antitrust context.23 ingredient list had accurately disclosed all of for plaintiffs’ lawyers to pursue a false adver- The policy rationale underlying Iqbal and the ingredients, but many federal courts in tising case, at least compared with other class Twombly is doubly persuasive in the class California have recognized that the holding action cases. For example, false advertising action context. Unlike most civil litigation, in Williams is actually much narrower. The lawsuits are not likely to involve expensive discovery costs in class actions are borne Ninth Circuit said that the case could not be expert analysis as those in mass tort cases. almost exclusively by the defendant com- dismissed at the pleading stage because there Despite this tilted playing field, companies pany. A named plaintiff likely will not have were alleged affirmative misrepresentations in are not defenseless against these false adver- substantial information or documents to pro- the front of the packaging. Thus, Williams tising lawsuits. Defense counsel can and duce. In contrast, that named plaintiff can reaffirms the unremarkable proposition that should vigorously contest these lawsuits at demand defendant companies to spend hun- a defendant cannot make a false statement in every stage, from motion to dismiss to class dreds of thousands of dollars to scour for the front of the packaging and “then rely on certification to summary judgment. But that internal documents. These discovery demands the ingredient list to correct those misinter- does not mean that companies have to slog on defendants can be particularly onerous pretations [to] provide a shield for liability for through years of attrition to defeat certifica- in today’s world of e-mail and other elec- the deception.”30 tion or prevail on summary judgment. tronic materials. Further, the decision not to Many court judges have Indeed, many judges, especially at the dismiss a class action case tilts the scale taken note that they need not let a question- federal level, have become more receptive to toward the plaintiffs greatly, given that class able case proceed merely because a plaintiff’s dismissing class action lawsuits at the plead- action cases rarely go to trial due to the enor- lawyer invokes the mantra that there sup- ing stage, often through preemption.16 Cer- mous potential liability. posedly is a factual dispute or that dismissals tain industries are highly regulated by the The Ninth Circuit recently demonstrated should supposedly be rare under California’s U. S. government, and many federal statutes the increased skepticism that federal judges consumer protections laws. The recent case of have broad preemption provisions that dis- are applying to class action cases. In Stuart v. Williamson v. Apple, Inc., is instructive.31 place any state law claims. For example, the Cadbury Adams, the plaintiff alleged that The plaintiff alleged that the iPhone’s glass cas- Nutrition Labeling and Education Act (NLEA) the statement that Trident White gum “re- ing cracked when dropped, despite Apple’s sets a uniform national standard for food moves stains” was misleading because the statements that it used “the same type of glass labeling and prevents states from enacting company had failed to mention that a con- used in the windshields of helicopters and any law that is “not identical” to the federal sumer must also practice oral hygiene to high-speed trains” and that it was “20 times standard.17 Accordingly, many federal courts maintain clean teeth.24 The district court dis- stiffer and 30 times harder than plastic.”32 have dismissed state law claims that are in- missed the case, ruling that the allegations The plaintiff’s counsel insisted that the consistent with federal law. A few years ago, “defied common sense.” The Ninth Circuit court should not decide this issue at the plead- many plaintiffs began filing lawsuits against affirmed the dismissal, reasoning that “[o]nly ing stage and should let it proceed further. The food companies alleging that the statement an unreasonable consumer would be con- court dismissed this case, noting that “it is a “0g trans fat” is false and misleading because fused or deceived by Cadbury’s failure to well-known fact of life that glass can break the food products purportedly had trace clarify that Trident White gum works only if under impact, even glass that has been rein- amounts of trans fat. FDA regulations, how- consumers continue to brush and floss regu- forced. This much is known to the ordinary, ever, expressly permit food manufacturers to larly.”25 reasonable consumer.…It seems a suspen- make the statement, even if there are trace The Ninth Circuit again emphasized last sion of logic to say that [Apple’s] marketing amounts of trans fat.18 year that courts need not indulge fanciful campaign…somehow erases these images class action theories. The plaintiff in Carrea from the collective experience such that the Common Sense Analysis v. Dreyer’s Grand Ice Cream, Inc., argued that reasonable consumer could expect that glass When no preemption provision is available, Dreyer had marketed its “original vanilla” ice could not break if dropped.”33 Other courts many judges have relied on common sense to cream as more nutritious than other brands.26 have similarly applied common sense in dis- dismiss class action lawsuits based on ques- The Ninth Circuit affirmed the dismissal, missing false advertising cases.34 tionable theories of liability. This increased holding that “it strains credulity to claim Another federal court in California re- assertiveness in disposing of class action law- that a reasonable consumer would be misled cently went further in indicating that indus- suits at the pleading stage is in keeping with to think that” an ice cream with “chocolate try norms and practices should be taken into the U.S. Supreme Court’s guidance in Iqbal coating topped with nuts” is healthier than account even at the pleading stage. The puta- and Twombly that federal judges must reject competing brands.27 tive class action complaint alleged that the implausible theories.19 In Twombly, the As the California Court of Appeal has product Sugar in the Raw misled consumers Supreme Court—in a 7-2 decision written explained, a claim of false advertising can be into believing that the product contained by Justice David Souter—affirmed the dis- sustained only if “it is probable that a sig- unprocessed and unrefined sugar.35 In dis- missal of an antitrust lawsuit because the nificant portion of the general consuming missing the complaint, the court held that “a plaintiffs had failed to allege sufficient facts public or of targeted consumers, acting rea- significant portion of the general consuming that “nudged their claims across the line from sonably in the circumstances, could be mis- public, acting reasonably, would [not] be led conceivable to plausible.”20 The Supreme led.”28 The court must view the challenged to believe that they are purchasing unpro- Court established this plausibility standard at advertisement or packaging from the per- cessed or unrefined sugar” because the prod- the pleading stage because the court was spective of a “reasonable consumer,” not uct is made of turbinado sugar, which is

Los Angeles Lawyer November 2013 37 “widely marketed” as “raw cane sugar,” not “With Garden Vegetables” on a packaged dip as mis- 6 See, e.g., Steroid Hormone Prod. Cases, 181 Cal. unprocessed and unrefined sugar.36 leading because dip does in fact contain dried vegeta- App. 4th 145 (2010). But see, e.g., Cohen v. DIRECTV, bles and “does not claim a specific amount of vegeta- As one court put it in dismissing a class Inc., 178 Cal. App. 4th 966 (2009); In re Vioxx Class bles in the product”); Red v. Kraft, No. 10-1028, Cases, 180 Cal. App. 4th 116 (2009). action complaint, allowing a questionable 2012 WL 5504011, at *4 (C.D. Cal. Oct. 25, 2012) 7 Kwikset v. Superior Ct., 51 Cal. 4th 310 (2011). case to survive a Rule 12(b) motion “would (ruling that it “strains credulity to imagine that a rea- 8 Williams v. Gerber Prods. Co., 552 F. 3d 934 (9th Cir. require this Court to ignore all concepts of sonable consumer will be deceived into thinking a box 2008). personal responsibility and common sense.”37 of crackers” has “huge amounts of vegetables simply 9 Id. at 940. 10 That court had it exactly right. Federal judges because there are pictures of vegetables and the true 28 U.S.C. §1332(d). phrase ‘Made with Real Vegetables’ on the box”). 11 Id. should and must serve as guardians against 3 In re Ferrero Litig., No. 3:11-CV-00205 at 27 (S.D. 12 Vanessa Blum, Welcome to Food Court, THE RECORD- I junk class action lawsuits. Cal. 2010). ER, Mar. 1, 2013. 4 See In re Ferrero Litig., No. 3:11-CV-00205; In re 13 AT&T Mobility v. Concepcion, 131 S. Ct. 1740 1 See http://www.judicialhellholes.org/2012-13 Nutella Marketing and Sales Practices Litig., No. 3:11- (2011). /california. cv-01086 (D. N.J. 2010). 14 Id. at 1744. 5 2 See, e.g., Henderson v. Gruma Corp., No. 10-4173, Zeisel v. Diamond Foods, Inc., 3:10-cv-1192-JSW 15 Id. at 1749-54. 2011 WL 1362188, at *1, *12 (C.D. Ca. April. 11, (N.D. Cal. 2010); Brazil v. Dell Inc., 5:07-cv-01700- 16 See, e.g., Young v. Johnson & Johnson, 2013 WL 2011) (dismissing a claim that challenged the statement RMW (N.D. Cal. 2007). 191177 (3rd Cir. 2013) (“zero cholesterol” claims pre- empted by federal law); Yumul v. Smart Balance, 752 F. Supp. 2d 1117 (C.D. Cal. 2010) (same); Chacanaca v. Quaker Oats, 752 F. Supp. 2d 1111 (N.D. Cal. 2010) (“0g trans fat” claims preempted under federal law). 17 21 U.S.C. §343-1(a) (“no State or political subdivi- sion of a State may directly or indirectly establish…any requirement for…labeling of food…that is not identi- cal to the requirement[s]” set forth in the NLEA). 18 Chacanaca, 752 F. Supp. 2d at 1111. 19 See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). 20 Id. at 1974. 21 Id. at 1967. 22 Id. (noting that “the success of judicial supervision in checking discovery abuse has been on the modest side”). 23 Iqbal, 129 S. Ct. at 1953 (noting that “Twombly expounded the pleading standard for ‘all civil actions’”). 24 Stuart v. Cadbury Adams, 458 F. App’x. 689, 690- 91 (9th Cir. 2011). 25 Id. at 691. 26 Carrea v. Dreyer’s Grand Ice Cream, Inc., 475 F. App’x. 113, at *1 (9th Cir. 2012). 27 Id. 28 Lavie v. Procter & Gamble Co., 105 Cal. App’x. 4th 496, 508 (2003). 29 Hill v. Roll Int’l Corp., 195 Cal. App’x. 4th 1295, 1304 (2011). 30 Williams v. Gerber Prods. Co., 552 F. 3d 934, 939 (9th Cir. 2008). See also, e.g., Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1117, 1129 (C.D. Cal. 2010). 31 Williamson v. Apple, Inc., No. 11-377, 2012 WL 3835104 (N.D. Cal. Sept. 4, 2012). 32 Id. at *6. 33 Id. 34 See, e.g., McKinniss v. Sunny Delight, No. 07-02034, 2007 WL 4766525, at *4-5 (C.D. Cal. Sept. 4, 2007) (“depictions of various fruits on Defendant’s product labels are simply not deceptive as a matter of law” because a reasonable consumer understands that SunnyD is merely a fruit-flavored drink and that a reasonable “consumer can readily and accurately determine the composition and nutritional value of a product”); Sugawara v. Pepsico, Inc., No. 08-1335, 2009 WL 1439115, at *2-4 (E.D. Cal. May 21, 2009) (dismiss- ing UCL, FAL, and CLRA claims challenging repre- sentations and images on Cap’n Crunch packaging as unlikely to deceive a reasonable consumer); Ross v. Sioux Honey Ass’n, Coop., No. 1645, 2013 WL 146367, at *11 (N.D. Cal. Jan. 14, 2013) (dismissing challenge to honey products for lack of pollen because a reasonable consumer would not necessarily expect pollen as an ingredient). 35 See Rooney v. Cumberland Packing Corp., No. 12- 33, 2012 WL 1512106, at *1 (S.D. Cal. Apr. 16, 2012). 36 Id. 37 Videtto v. Kellogg USA, No. 08-1324, 2009 WL 1439086, at *4 (E.D. Cal. May 21, 2009).

38 Los Angeles Lawyer November 2013 The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

ACCIDENT ANALYSIS/ animation and graphics, forensic engineering, failure CBIZ & MAYER HOFFMAN MCCANN PC RECONSTRUCTION analysis, and motorcycle dynamics. 10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268- 4X FORENSIC ENGINEERING ACCOUNTING 2001, e-mail: [email protected]. Contact Coral LABORATORIES, INC. Hansen. Web site: www.MHM-PC.com, www ADVISORS/EXPERTS @ MCS ASSOCIATES 5262 Oceanus Drive, Huntington Beach, CA 92649, .CBIZ.com. CBIZ & Mayer Hoffman McCann PC (714) 450-8500, fax (714) 450-8599, : www 18881 Von Karman, Suite 1175, Irvine, CA 92612, specializes in fraud investigations, forensic account- .4Xforensic.com. Contact Phil Van Herle. 4X (949) 263-8700, fax (949) 263-0770, e-mail: ing, business litigation, commercial damage and lost Forensic Engineering Laboratories is a full-service [email protected]. Web site: www profits computations, business valuation and forensic engineering laboratory. We provide expert .mcsassociates.com. Contact Norman Katz, appraisal, transactional due diligence, family limited witness and analytical and testing services in the fol- managing partner. Nationally recognized banking, partnerships, business interruption, and family law. lowing areas: fires and explosions: electrical and gas finance, insurance, and real estate consulting group We provide experienced expert testimony and tax product defect investigations, thermal and fire mod- (established 1973). Experienced litigation consul- controversy representation. eling and laboratory testing, water loss: materials, tants/experts include senior bankers, lenders, con- sultants, economists, accountants, insurance under- CORNERSTONE RESEARCH corrosion and failure analysis of plumbing products, st failure analysis: metallurgy, product testing, and writers/brokers. Specialties include: lending customs, 633 West Fifth Street, 31 Floor, Los Angeles, CA computerized stress analysis. Accident reconstruc- practices, policies, in all types of lending (real estate, 90071-2005, (213) 553-2500, fax (213) 553-2699. Contact George tion: automotive, trucks, construction equipment, subprime, business/commercial, construction, con- Web site: www.cornerstone.com. G. Strong, Jr., Richard W. Dalbeck, Katie J. and premises liability. sumer/credit card), banking operations/administra- tion, trusts and investments, economic analysis and Galley, Elaine Harwood, Carlyn Irwin, Erin MARTIN M. BALABAN, PHD, PE valuations/damages assessment, insurance claims, McGlogan or Ashish Pradhan. For more than 18075 Ventura Boulevard, Suite 209, Encino, CA coverages and bad faith, real estate brokerage, twenty-five years, Cornerstone Research staff have 91316. Cell (818) 389-2062, (818) 344-2700. appraisal, escrow, and title insurance. provided economic and financial analysis in all email: [email protected]. Web site: www phases of commercial litigation and regulatory pro- .jurispro.com/MartinBalaban. Contact Martin ceedings. We work with a broad network of testifying Balaban, PhD, PE. PhD Mechanical Engineering experts, including prominent faculty and industry UC Berkeley, MS Mechanics, BS Civil Engineering. practitioners, in a distinctive collaboration. The Licensed Safety Engineer. Extensive expert testi- experts with whom we work bring the specialized mony. Engineering, mechanics, biomechanics, expertise required to meet the demands of each safety, human factors. Premises liability: pedestrian assignment. Our areas of specialization include intel- slip/trip, coefficient of friction, stairs, ramps, lectual property, antitrust, securities, entertainment, handrails, guardrails, sidewalks, building codes, real estate, financial institutions, and general busi- ADA, electronic gates, lighting, glass, screens. ness litigation. Industrial/construction accidents: machine guarding, FULCRUM INQUIRY forklifts, conveyors, hoists, lifts, ladders, scaffolds, power tools, fasteners, construction vehicles, OSHA. 888 South Figueroa Street, Suite 2000, Los Angeles, Products: fitness equipment, chairs, consumer prod- CA 90017, (213) 787-4100, fax (213) 891-1300, ucts. Collisions: vehicles (all types), bicycles, pedes- e-mail: [email protected]. Web site: www  Contact David Nolte. trians, component failures 72. Litigation support .fulcrum.com. Our profession- als are experienced CPAs, MBAs, ASAs, CFAs, affili- WILLIAM KUNZMAN, PE  Expert witness ated professors, and industry specialists. Our analy- 1111 Town and Country #34, Orange, CA 92868, sis and research, combined with unique presentation (714) 973-8383, fax (714) 973-8821, e-mail:  Forensic accountants techniques, have resulted in an unequaled record of [email protected]. Web site: www.traffic successful court cases and client recoveries. Our -engineer.com. Contact William Kunzman, PE.  Family law matters expertise encompasses damages analysis, lost profit Traffic expert witness since 1979, both defense and studies, business and intangible asset valuations, plaintiff. Auto, pedestrian, bicycle, and motorcycle  Business valuations appraisals, fraud investigations, troubled company accidents. Largest plaintiff verdicts: 1) $12,200,000 consultation, statistics, forensic economic analysis, in pedestrian accident case against Caltrans, 2)  royalty audits, strategic and market assessments, $10,300,000 in case against Los Angeles Unified Loss of earnings computer forensics, electronic discovery, and analy- . Largest settlement: $2,000,000 solo sis of computerized data. Degrees/licenses: CPAs, vehicle accident case against Caltrans. Best defense  Damages CFAs, ASAs, PhDs, and MBAs in accounting, verdict: $0 while defending Caltrans and opposition finance, economics, and related subjects. See sought $16,000,000. Before becoming expert wit- display ad on back cover. ness, employed by Los Angeles County Road When you need more than just GLENN M. GELMAN & ASSOCIATES Department, Riverside County Road Department, CERTIFIED PUBLIC ACCOUNTANTS AND city of Irvine, and Federal Highway Administration. numbers... you can count on us... BUSINESS ADVISERS Knowledge of governmental agency procedures, design, geometrics, signs, traffic controls, mainte- 1940 East 17th Street, Santa Ana, CA 92705, nance, and pedestrian protection barriers. Hundreds Contact Michael Krycler (714) 667-2600, fax (714) 667-2636, e-mail: rsquar @gmgcpa.com. Web site: www.gmgcpa.com. of cases. Undergraduate work—UCLA, graduate PHONE (818) 995-1040 work—Yale University. Contact Richard M. Squar. Glenn M. Gelman and FAX (818) 995-4124 Associates provides superior litigation support ser- MOMENTUM ENGINEERING CORP vices, including expert witness testimony, strategy E-MAIL [email protected] 3860 Del Amo Boulevard, Suite 402, Torrance, development, document discovery, deposition assis- CA 90503, (310) 406-3657, fax (310) 542-9014, VISIT US @ www.KETW.COM tance, computation of damages, arbitration consult- e-mail: [email protected]. Web site: www ing, forensic accounting, investigative auditing, rebut- .momentum-eng.com. Contact Ed Fatziner. Expert 15303 VENTURA BOULEVARD, SUITE 1040 tal testimony, fiduciary accountings, and trial exhibit witness services, heavy truck, crash data recorder, SHERMAN OAKS, CALIFORNIA 91403 preparation. Our areas of expertise include business airbag control module, vehicle dynamics and testing, interruption, loss of earnings analysis, breach of con-

Los Angeles Lawyer November 2013 39 tract, partnership dissolution, profits distribution, tax ner to the trier of fact. Our findings allow a realistic ZIVETZ, SCHWARTZ & SALTSMAN, CPAS consequences of settlements, reconstruction of assessment of the case and support settlement 11900 West Olympic Boulevard, Suite 650, Los accounting records, embezzlement and fraud, con- efforts. Our work is designed to render conclusive Angeles, CA 90064-1046, (310) 826-1040, fax (310) tract costs, lost profits, construction claims, damage opinions and to withstand cross-examination. We 826-1065. Web site: www.zsscpa.com. Contact computations, and malpractice cases. Our compre- specialize in business damages (lost profits and loss Lester J. Schwartz, CPA/CFF, DABFE, DABFA, hensive case list is available upon request. Our prac- in value), personal damages (lost earnings), and busi- Michael D. Saltsman, CPA, MBA, David L. Bass, tice focuses on closely held entrepreneurial firms in ness valuation. CPA, David Dichner, CPA, ABV, CVA, Sandy the following industries: construction, real estate Green, CPA, Daljeet Kaur, CPA. Accounting development, equipment leasing, auto parts (whole- SCHULZE HAYNES LOEVENGUTH & CO. experts in forensic accounting, tax issues, business sale and retail), manufacturing, and professional ser- 660 South Figueroa Street, Suite 1280, Los Angeles, valuations, and appraisals, marital dissolutions, emi- vices. Honored by Construction Link as the “Best CA 90017, (213) 627-8280, fax (213) 627-8301, nent domain, insurance losses, business interruption, Accounting Firm for the construction industry.” Glenn e-mail: [email protected]. Web site: goodwill, economic analysis, investigative auditing, M. Gelman has been appointed and served as Spe- www.schulzehaynes.com. Contact Karl J. Schulze, loss of earning, commercial damages, and lost prof- cial Master in litigation support matters and has testi- president. Specialties: forensic business analysis and its. Expert witness testimony preparation, settlement fied over 30 times. Our comprehensive case list is accounting, lost profits, economic damages, expert negotiations, and consultations. See display ad on available upon request. See display ad on page 44. testimony, discovery assistance, business valuations, page 49. corporate recovery, financial analysis, and modeling. GURSEY/SCHNEIDER LLP Member of major professional organizations, experi- ADA/DISABILITY DISCRIMINATION 1888 Century Park East, Suite 900, Los Angeles, ence across a broad spectrum of industries and busi- CA 90067, (310) 552-0960, fax (310) 557-3468, ness issues. Degrees/licenses: CPA, CVA, CFE, ABV, HAIGHT CONSULTING e-mail: [email protected], kdolabson@gursey PhD-Economics. See display ad on page 49. 1726 Palisades Drive, Pacific Palisades, CA .com or [email protected]. Web site: www.gursey 90272, (310) 454-2988, fax (310) 454-4516. .com. Contact Naz Afshar, Keith Dolabson, or JAY SHAPIRO, CPA Contact Marcia Haight, SPHR—CA. Human Gary Krausz. Forensic accounting and litigation 10635 Santa Monica Boulevard Suite 190, Los resources expert knowledgeable in both federal and support services in the areas of marital dissolution, Angeles, CA 90025, (310) 441-3600, fax (310) 441- California law. Twenty-five years’ corporate human civil litigation, business valuation and appraisal, 3610, e-mail: [email protected]. Web site: resources management experience plus over 20 goodwill, business disputes, malpractice, tax mat- www.shapiromedia.com, www.jshapirocpa.com. Jay years as a Human Resources Compliance Consul- ters, bankruptcy, damage and cost-profit assess- Shapiro has specialized in accounting, income tax tant in California. Specializations include sexual ments, insurance claims, court accounting, tracing, preparation, and all special financial matters impact- harassment, ADA/disability discrimination, other Title and entertainment industry litigation. See display ad ing the entertainment and media industry for the VII and FEHA discrimination and harassment, retalia- on page 47. past 30 years and has clientele ranging from private individuals to partnerships and corporate entities tion, FMLA/CFRA, safety, and wrongful termination. HARGRAVE & HARGRAVE, AN across all sectors on a worldwide basis. Jay will pro- Courtroom testimony and deposition experience. ACCOUNTANCY CORPORATION vide you with a realistic financial assessment, Retained 60 percent by defense, 40 percent by plaintiff. Audit employer’s actions in preventing and 12121 Wilshire Boulevard, Suite 700, Los Angeles, expert, objective analysis, and clear and concise resolving discrimination, harassment, and retaliation CA 90025, (310) 576-1090, fax (310) 576-1080, testimony that stand up upon cross-examination. issues. Assess human resources policies and prac- e-mail: [email protected]. Web site: Jay has testified over 20 times in federal and state tices for soundness, for comparison to prevailing www.hargraveandhargrave.com. Contact Terry M. court. Jay’s financial expertise includes: tax issues, practices, and for compliance. Evaluate employer Hargrave, CPA/ABV/CFF, CFE. Forensic account- entertainment net profits, business litigation, busi- responsiveness to complaints and effectiveness of ing and business valuation services for family law and ness valuation and appraisal, forensic investigation, employer investigations. Assist counsel via prelimi- civil cases. Past chair of California Society of CPAs’ idea submissions, economic damages, contractual nary case analysis, discovery strategy, examination Family Law Section and business valuation instructor disputes, marital dissolutions, participations and of documents, and expert testimony. for California CPA Education Foundation. Services royalties, and lost earning capacity. include business valuations, income available for HRM CONSULTING, INC. support, tracing separate property, litigation consult- THOMAS NECHES & COMPANY LLP 633 West 5th Street, Suite 2800, Los Angeles, CA 1700 North First Street, San Jose, CA 95112, (209) ing, real estate litigation, mediation, fraud investiga- 728-8905, fax (209) 728-8970, e-mail: bdelima tions, damage calculation, and other forensic 90071-2039, (213) 624-8150, fax (213) 223-2304, e-mail: [email protected]. Web site: www @hrmconsulting.com. Web site: www.hrmconsult- accounting work. Contact Beth B. De Lima, SPHR-CA. .thomasneches.com. Contact Thomas M. Neches, ing.com. KRYCLER, ERVIN, TAUBMAN, AND CPA, ABV, CVA, CFE, CFF. Accounting, financial, Expert witness Beth De Lima, has testified for both WALHEIM business valuation, and statistical analyses to assist plaintiff and defense in the following areas: human resources standards of care, employment ADA 15303 Ventura Boulevard, Suite 1040, Sherman attorneys in litigation. Expert testimony in state and accommodation, FEHA, FMLA, CFRA, ADA & EEOC Oaks, CA 91403, (818) 995-1040, fax (818) 995- federal courts. Cases: antitrust, breach of contract, violations. Wrongful termination, performance man- 4124. Web site: [email protected]. Contact fraud, intellectual property, lost business value, lost agement, discrimination, sexual harassment, exempt Michael J. Krycler. Litigation support, including profits, wrongful death, and wrongful termination. analysis, labor market assessment, and vocational forensic accounting, business appraisals, family law Industries: banking, construction, entertainment, evaluations. She holds national and California spe- accounting, business and professional valuations, insurance, manufacturing, retail, securities, and cific certification—Senior Professional in Human damages, fraud investigations, and lost earnings. wholesale. Credentials: certified public accountant/ Resource (SPHR-CA), certified mediator, and con- Krycler, Ervin, Taubman and Walheim is a full-ser- accredited in business valuation, certified valuation sulting since 1992. vice accounting firm serving the legal community for analyst, certified fraud examiner and certified in finan- more than 20 years. See display ad on page 39. cial forensics. Education: BA (Mathematics) UC San Diego, MS (Operations Research) UCLA. Teaching: APPRAISAL & VALUATION DIANA G. LESGART, CPA, CFE, CVA, CFF, adjunct professor, Loyola Law School. See display AN ACCOUNTANCY CORP. ad on page 57. FULCRUM INQUIRY 22024 Lassen Street, Suite 106, Chatsworth, CA 888 South Figueroa Street, Suite 2000, Los Angeles, 91311, (818) 886-7140, fax (818) 886-7146, e-mail: WHITE, ZUCKERMAN, WARSAVSKY, CA 90017, (213) 787-4100, fax (213) 891-1300, [email protected]. Contact Diana G. Lesgart, LUNA & HUNT e-mail: [email protected]. Web site: www CPA, CFE, CVA, CFF. Specialized accounting and 15490 Ventura Boulevard, Suite 300, Sherman .fulcrum.com. Contact David Nolte. Our profession- litigation support services in the areas of family law Oaks, CA 91403, (818) 981-4226, fax (818) 981- als are experienced CPAs, MBAs, ASAs, CFAs, affili- litigation, including tracing of separate and commu- 4278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614, ated professors, and industry specialists. Our analy- nity property assets, pension plan tracing, forensic (949) 219-9816, fax (949) 219-9095, e-mail: expert sis and research, combined with unique presentation accounting, business valuations, goodwill calcula- @wzwlh.com. Web site: www.wzwlh.com. Contact techniques, have resulted in an unequaled record of tion, expert testimony, cash available for support, Barbara Luna. Expert witness testimony for com- successful court cases and client recoveries. Our Moore-Marsden calculations, fraud investigations, plex litigation involving damage analyses of lost prof- expertise encompasses damages analysis, lost profit real estate analysis, balance its, unjust enrichment, reasonable royalties, lost earn- studies, business and intangible asset valuations, sheet. Over 25 years of accounting experience with ings, lost value of business, forensic accounting, appraisals, fraud investigations, troubled company 20 years’ litigation support specialization. Appointed fraud investigation, investigative analysis of liability, consultation, statistics, forensic economic analysis, as Section 730 accounting expert. Ms. Lesgart’s and marital dissolution, and tax planning and prepa- royalty audits, strategic and market assessments, profile can be found at http://www.jurispro.com ration. Excellent communicators with extensive testi- computer forensics, electronic discovery, and analy- /DianaLesgartCPA. Expert is English/Spanish bilin- mony experience. Prior Big Four accountants. Spe- sis of computerized data. Degrees/licenses: CPAs, gual. See display ad on page 48. cialties include accounting, breach of contract, CFAs, ASAs, PhDs, and MBAs in accounting, breach of fiduciary duty, business interruption, busi- finance, economics, and related subjects. See dis- MICHAEL D. ROSEN, CPA, PHD, ABV ness dissolution, construction defects, delays, and play ad on back cover. 3780 Kilroy Airport Way, Suite 200, Long Beach, CA cost overruns, fraud, insurance bad faith, intellectual GURSEY/SCHNEIDER LLP 90806, (562) 256-7052, fax (562) 256-7001, property (including trademark, patent, and copyright e-mail: [email protected]. Web site: www infringement, and trade secrets), malpractice, marital 1888 Century Park East, Suite 900, Los Angeles, .mrosencpa.com. Contact Michael D. Rosen. We dissolution, personal injury, , real CA 90067, (310) 552-0960, fax (310) 557-3468, are litigation consultants, forensic accountants, estate, securities, tax planning and preparation, IRS e-mail: [email protected]. Web site: www expert witnesses. Our mission is to tell the financial audit defense, tracing, unfair advertising, unfair com- .gursey.com. Contact Stephan Wasserman. story that underlies every business litigation matter petition, valuation of businesses, and wrongful termi- Gursey|Schneider is an accounting firm specializing and to convey that story in a clear and concise man- nation. See display ad on page 43. in forensic accounting, litigation support services,

40 Los Angeles Lawyer November 2013 business valuation, and appraisal services for a vari- ety of purposes, including marital dissolution, gift and estate planning, eminent domain, goodwill loss, busi- ness disputes, malpractice, tax matters, bankruptcy, A & E FORENSICS damage and cost-profit assessments, insurance claims, and entertainment industry litigation. Steven B. Norris, AIA, PE, GE, CEG, GBC, CASp Gursey|Schneider has over 30 years of experience as expert witnesses in litigation support. See display ad 2121 Monel Road San Marcos, CA 92069 (877) 839-7302 on page 47.

HARGRAVE & HARGRAVE, AN ■ ■ ■ ACCOUNTANCY CORPORATION ARCHITECTURE CONSTRUCTION ADA 12121 Wilshire Boulevard, Suite 700, Los Angeles, CA 90025, (310) 576-1090, fax (310) 576-1080, ■ GEOTECHNICAL ■ CIVIL ■ STRUCTURAL e-mail: [email protected]. Web site: www.hargraveandhargrave.com. Contact Terry M. ENGINEERING ENGINEERING ENGINEERING Hargrave, CPA/ABV/CFF, CFE. Forensic account- ing and business valuation services for family law and civil cases. Past chair of California Society of CPAs’ www.aeforensics.com Family Law Section and business valuation instructor for California CPA Education Foundation. Services include business valuations, income available for support, tracing separate property, litigation consult- ing, real estate litigation, mediation, fraud investiga- tions, damage calculation, and other forensic accounting work. HIGGINS, MARCUS & LOVETT, INC. 800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, (213) 617-7775, fax (213) 617-8372, e-mail: [email protected]. Contact Mark C. Higgins, ASA. The firm has over 30 years of litiga- tion support and expert testimony experience in mat- ters involving business valuation, economic dam- ages, intellectual property, loss of business goodwill, and lost profits. Areas of practice include business disputes, eminent domain, bankruptcy, and corpo- rate and marital dissolution. See display ad on this page. KRYCLER, ERVIN, TAUBMAN, AND WALHEIM 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA 91403, (818) 995-1040, fax (818) 995- 4124. Web site: [email protected]. Contact Michael J. Krycler. Litigation support, including forensic accounting, business appraisals, family law accounting, business and professional valuations, damages, fraud investigations, and lost earnings. Krycler, Ervin, Taubman and Walheim is a full-service accounting firm serving the legal com- munity for more than 20 years. See display ad on page 39. WARONZOF ASSOCIATES, INC. 999 North Sepulveda Boulevard, Suite 440, El Segundo, CA 90245, (310) 322-7744, fax (310) 322-7755. Web site: www.waronzof.com. Contact Timothy R. Lowe, MAI, CRE. Waronzof provides real estate and land use litigation support services including economic damages, lost profits, financial feasibility, lease dispute, property value, enterprise value, partnership interest and closely-held share value, fair compensation, lender liability, and reorga- nization plan feasibility. Professional staff of five with advanced degrees and training in real estate, finance, urban planning, and accounting. See display ad on page 59. ARCHITECTURE Confidence At The Courthouse. A & E FORENSICS 2121 Montiel Road, San Marcos, CA 92069, Business litigation is increasingly complex. That is why we believe valuation (877) 839-7302, fax (760) 480-7477, e-mail: steve @aeforensics.com. Web site: www.aeforensics issues must be addressed with the same meticulous care .com. Steve Norris, AIA, PE, GE, HG, CEG, as legal issues. Analysis must be clear. Opinions must be CASp, LEED. Architect, engineer, contractor— defensible. Expert testimony must be thorough and standard of care expert. Retained over 200 times, articulate. HML has extensive trial experience and can deposed over 100 times, and testified in trial over 20 times. Waterproofing, water intrusion, building enve- provide legal counsel with a powerful resource for expert lope, zoning setbacks, concrete performance, path testimony and litigation support. of travel, structural analysis, earthquake-fire damage, and plan analysis. Landslides, retaining wall failure, settlement, flooding, grading, septic, expansive soils, For More Information Call 213-617-7775 mud flows, pavement distress, ground water evalua- tion, and slope analysis. Cost estimates, construc- Or visit us on the web at www.hmlinc.com tion management, delay analysis, and contracts. Serving all California, Hawaii, and Oklahoma. See BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS display ad on page 41.

Los Angeles Lawyer November 2013 41 AVIATION quacy of warnings, computer animation and simula- izes in fraud investigations, forensic accounting, tions, construction defect, criminal defense, criminal business litigation, commercial damage and lost ARGOS ENGINEERING prosecution, premises, productintegrity, product lia- profits computations, business valuation and 44 Argos, Laguna Niguel, CA 92677, (949) 363- bility, product testing, warnings, and lost income cal- appraisal, transactional due diligence, family limited 8205, fax (949) 429-5972, e-mail: johndpratt culations. Auto, bicycle, bus, chair, elevator, escala- partnerships, business interruption, and family law. @cox.net. Web site: www.argos-engineering.com. tor, forklift, gate, ladder, machinery, motorcycle, We provide experienced expert testimony and tax Contact John D. Pratt, PhD, PE. Litigation con- press, recreational equipment, rollercoaster, slip/trip controversy representation. and fall, stairs, swimming pool, and truck. Litigation sulting, inspections, expert reports, patent infringe- CMM, LLP ment and validity analysis, deposition, and trial testi- and claims; defense/plaintiff; educational seminars; mony. and mediation and arbitration services. 5700 Canoga Avenue, Suite 300, Woodland Hills, CA 91367, (818) 986-5070, fax (818) 986-5034, BANKING BUSINESS e-mail: [email protected]. Web site: www .cmmcpas.com. Contact Scott Mowrey. Special- ADVISORS/EXPERTS@ MCSASSOCIATES FORENSISGROUP ties: consultants who provide extensive experience, EXPERT WITNESS SERVICES SINCE 1991 litigation support, and expert testimony regarding 18881 Von Karman, Suite 1175, Irvine, CA 92612, 301 North Lake Avenue, Suite 420, Pasadena, CA forensic accountants, fraud investigations, economic (949) 263-8700, fax (949) 263-0770, e-mail: damages, business valuations, family law, bank- [email protected]. Web site: www 91101, (800) 555-5422, (626) 795-5000, fax: (626) 795-1950, email: [email protected]. Web ruptcy, and reorganization. Degrees/licenses: CPAs, .mcsassociates.com. Contact Norman Katz CFEs, MBAs. See display ad on page 45. managing partner. Nationally recognized banking, site: www.forensisgroup.com. Contact Mercy finance, insurance, and real estate consulting group Steenwyk. 10,000 cases ForensisGroup has pro- CORNERSTONE RESEARCH vided experts. 8,000 clients have retained experts (established 1973). Experienced litigation consul- st from us. We respond in one hour or less. Forensis- 633 West Fifth Street, 31 Floor, Los Angeles, CA tants/experts include senior bankers, lenders, con- 90071-2005, (213) 553-2500, fax (213) 553-2699. sultants, economists, accountants, insurance under- Group is an expert witness services and consulting company, providing experts, expert witnesses, and Web site: www.cornerstone.com. Contact George writers/brokers. Specialties include: lending customs, G. Strong, Jr., Richard W. Dalbeck, Katie J. practices, policies, in all types of lending (real estate, consultants to law firms, insurance companies, and other public and private firms in thousands of disci- Galley, Elaine Harwood, Carlyn Irwin, Erin subprime, business/commercial, construction, con- McGlogan or Ashish Pradhan. For more than sumer/credit card), banking operations/administra- plines: construction, engineering, business, account- ing, intellectual property, computers, IT, medical, real twenty-five years, Cornerstone Research staff have tion, trusts and investments, economic analysis and provided economic and financial analysis in all valuations/damages assessment, insurance claims, estate, insurance, product liability, premises liability, safety, and others, including experts in complex and phases of commercial litigation and regulatory pro- coverages and bad faith, real estate brokerage, ceedings. We work with a broad network of testifying appraisal, escrow, and title insurance. hard-to-find disciplines. Let us give you the technical advantage and competitive edge in your cases. experts, including prominent faculty and industry practitioners, in a distinctive collaboration. The BANKRUPTCY Referrals, customized searches, and initial phone consultations are free. See display ad on page 41. experts with whom we work bring the specialized expertise required to meet the demands of each FULCRUM INQUIRY ROBERT C. ROSEN assignment. Our areas of specialization include intel- 888 South Figueroa Street, Suite 2000, Los Angeles, Citigroup Center, 444 South Flower Street, 30th lectual property, antitrust, securities, entertainment, CA 90017, (213) 787-4100, fax (213) 891-1300, Floor, Los Angeles, CA 90071, (213) 362-1000, fax real estate, financial institutions, and general busi- e-mail: [email protected]. Web site: www (213) 362-1001, e-mail: robertrosen@rosen-law ness litigation. .fulcrum.com. Contact David Nolte. Our profes- .com. Web site: www.rosen-law.com. Specializing in FULCRUM INQUIRY sionals are experienced CPAs, MBAs, ASAs, CFAs, securities law, federal securities law enforcement, affiliated professors, and industry specialists. Our securities arbitration, and international securities, 888 South Figueroa Street, Suite 2000, Los Angeles, analysis and research, combined with unique pre- insider trading, NYSE, AMEX, FINRA, DOC discipli- CA 90017, (213) 787-4100, fax (213) 891-1300, sentation techniques, have resulted in an unequaled nary proceedings, broker-dealer, investment com- e-mail: [email protected]. Web site: www record of successful court cases and client recover- pany and investment adviser matters, liability under .fulcrum.com. Contact David Nolte. Our profes- ies. Our expertise encompasses damages analysis, federal and state securities laws, public and private sionals are experienced CPAs, MBAs, ASAs, CFAs, lost profit studies, business and intangible asset val- offerings, Internet securities, and law firm liability. AV affiliated professors, and industry specialists. Our uations, appraisals, fraud investigations, troubled rated. Former chair, LACBA Business and Corpora- analysis and research, combined with unique pre- company consultation, statistics, forensic economic tions Law Section. LLM, Harvard Law School. Forty sentation techniques, have resulted in an unequaled analysis, royalty audits, strategic and market assess- years practicing securities law, 12 years with the record of successful court cases and client recover- ments, computer forensics, electronic discovery, and U.S. Securities and Exchange Commission, Wash- ies. Our expertise encompasses damages analysis, analysis of computerized data. Degrees/licenses: ington, DC. Published author/editor of securities reg- lost profit studies, business and intangible asset val- CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, ulations, including multivolume treatises. See dis- uations, appraisals, fraud investigations, troubled finance, economics, and related subjects. See dis- play ad on page 53. company consultation, statistics, forensic economic play ad on back cover. analysis, royalty audits, strategic and market assess- BUSINESS APPRAISAL/VALUATION ments, computer forensics, electronic discovery, and BANKRUPTCY/TAX analysis of computerized data. Degrees/licenses: ADVISORS/EXPERTS @ MCS ASSOCIATES CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, ADVISORS/EXPERTS @ MCS ASSOCIATES finance, economics, and related subjects. See dis- 18881 Von Karman, Suite 1175, Irvine, CA 92612, play ad on back cover. 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: (949) 263-8700, fax (949) 263-0770, e-mail: [email protected]. Web site: www [email protected]. Web site: www GURSEY/SCHNEIDER LLP .mcsassociates.com. Contact Norman Katz, 1888 Century Park East, Suite 900, Los Angeles, .mcsassociates.com. Contact Norman Katz, managing partner. Nationally recognized banking, managing partner. Nationally recognized banking, CA 90067, (310) 552-0960, fax (310) 557-3468, finance, insurance, and real estate consulting group e-mail: [email protected]. Web site: www finance, insurance, and real estate consulting group (established 1973). Experienced litigation consul- (established 1973). Experienced litigation consul- .gursey.com. Contact Stephan Wasserman. tants/experts include senior bankers, lenders, con- Gursey|Schneider is an accounting firm specializing tants/experts include senior bankers, lenders, con- sultants, economists, accountants, insurance under- sultants, economists, accountants, insurance under- in forensic accounting, litigation support services, writers/brokers. Specialties include: lending customs, business valuation, and appraisal services for a vari- writers/brokers. Specialties include: lending customs, practices, policies, in all types of lending (real estate, practices, policies, in all types of lending (real estate, ety of purposes, including marital dissolution, gift and subprime, business/commercial, construction, con- estate planning, eminent domain, goodwill loss, busi- subprime, business/commercial, construction, con- sumer/credit card), banking operations/administra- sumer/credit card), banking operations/administra- ness disputes, malpractice, tax matters, bankruptcy, tion, trusts and investments, economic analysis and damage and cost-profit assessments, insurance tion, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, valuations/damages assessment, insurance claims, claims, and entertainment industry litigation. coverages and bad faith, real estate brokerage, Gursey|Schneider has over 30 years of experience as coverages and bad faith, real estate brokerage, appraisal, escrow, and title insurance. appraisal, escrow, and title insurance. expert witnesses in litigation support. See display ad BRIAN LEWIS & COMPANY on page 47. BIOMECHANICS/RECONSTRUCTION/HUMAN 10900 Wilshire Boulevard, Suite 610, Los Angeles, HAYNIE & COMPANY, CPAS FACTORS CA 90024, (310) 475-5676, fax (310) 475-5268, 4910 Campus Drive, Newport Beach, CA 92660- e-mail: [email protected]. Contact Brian 2119, (949) 724-1880, fax (949) 724-1889, e-mail: INSTITUTE OF RISK & SAFETY ANALYSES Lewis, CPA, CVA. Forensic accounting, business [email protected]. Web site: www KENNETH A. SOLOMON, PHD, PE, POST PHD, valuations, cash spendable reports, estate, trust, and .hayniecpa.com. Contact Steven C. Gabrielson. CHIEF SCIENTIST income tax services. Consulting and expert witness testimony in a variety 5324 Canoga Avenue, Woodland Hills, CA 91364, CBIZ & MAYER HOFFMAN MCCANN PC of practice areas: commercial damages, ownership (818) 348-1133, fax (818) 348-4484, e-mail: disputes, economic analysis, business valuation, lost [email protected]. Web site: www 10474 Santa Monica Boulevard, Suite 200, Los profits analysis, fraud/forensic investigations, taxa- .irsa.us. Specialized staff, broad range of consulting Angeles, CA 90025, (310) 268-2000, fax (310) 268- tion, personal injury, wrongful termination, profes- Contact Coral and expert testimony, 42 years of courtroom experi- 2001, e-mail: [email protected]. sional liability, and expert cross examination. Exten- Hansen. ence. Accident reconstruction, biomechanics, Web site: www.MHM-PC.com, www.CBIZ sive public speaking background assists in human factors, safety, accident prevention, ade- .com. CBIZ & Mayer Hoffman McCann PC special- courtroom presentations.

42 Los Angeles Lawyer November 2013

HAMPTON HEALTH, LTD. HIGGINS, MARCUS & LOVETT, INC. estate, securities, tax planning and preparation, IRS 800 South Figueroa Street, Suite 710, Los Angeles, audit defense, tracing, unfair advertising, unfair com- CA 90017, (213) 617-7775, fax (213) 617-8372, petition, valuation of businesses, and wrongful termi- nation. See display ad on page 43. - Internal Medicine - Toxicology/DUI as e-mail: [email protected]. Contact Mark C. MRO Higgins, ASA. The firm has over 30 years of litigation - Geriatrics support and expert testimony experience in matters ZIVETZ, SCHWARTZ & SALTSMAN, CPAS - Personal Injury - Addiction Medicine involving business valuation, economic damages, 11900 West Olympic Boulevard, Suite 650, Los - Adult Hospital - Capacity & Estate intellectual property, loss of business goodwill, and Angeles, CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web site: www.zsscpa.com. Contact Medicine Dispute lost profits. Areas of practice include business dis- Lester J. Schwartz, CPA/CFF, DABFE, DABFA, - Long Term Care - Legal Insanity putes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 41. Michael D. Saltsman, CPA, MBA, David L. Bass, - Medical Malpractice - Hospice, End-of-Life CPA, David Dichner, CPA, ABV, CVA, Sandy Care - Elder Abuse RGL FORENSICS Green, CPA, Daljeet Kaur, CPA. Accounting - Wound Care Los Angeles Office: 800 South Figueroa Street, Suite experts in forensic accounting, tax issues, business - Medicare Fraud for valuations, and appraisals, marital dissolutions, emi- DOJ, FBI, OIG 980, Los Angeles, CA 90017, (213) 996-0900. Con- tact Alan Lurie, [email protected]. Orange County nent domain, insurance losses, business interruption, Office: 625 City Drive South, Suite 290, Orange, CA goodwill, economic analysis, investigative auditing, 92868, (714) 740-2100. Contact Hank Kahrs, loss of earning, commercial damages, and lost prof- Testified in over [email protected]. RGL Forensics is an interna- its. Expert witness testimony preparation, settlement 200 cases and tional firm of forensic financial experts exclusively negotiations, and consultations. See display ad on reviewed more than dedicated to damage analysis, fraud investigation, page 49. 1,000 cases in the and valuation. Serving the legal, insurance, and busi- last 13 years. ness communities for more than 30 years, the firm is CHEMISTRY unique in its ability to combine investigative account- ing, business valuation, fraud, and forensic technol- CHEMICAL ACCIDENT RECONSTRUCTION BOARD CERTIFICATIONS: ogy expertise. For attorneys, we discover and define SERVICES, INC. Internal Medicine (ABIM), Geriatrics (ABIM) financial value in transactions and civil and criminal 9121 East Tanque Verde Road, Suite 105, Tucson, Hospice and Palliative Medicine (ABHPM) disputes, and when necessary provide expert wit- AZ 85749, (800) 645-3369, e-mail: service Addiction Medicine (ABAM), Licensed as a Medical Review ness testimony in court and arbitration proceedings. @chemaxx.com. Web site: www.chemaxx.com. Officer (MROCC), Certified Forensic Physician (CFP) For more information about RGL and its 23 offices Contact Dr. Michael Fox. Comprehensive chemi- worldwide, please visit www.rgl.com. cal accident investigation—specializing in complex industrial chemical accidents and chemical related CLINICAL FACULTY AT STANFORD, YALE, USC AND UCSF SCHULZE HAYNES LOEVENGUTH & CO. consumer product injuries, chemical fires and explo- MEDICAL SCHOOLS 660 South Figueroa Street, Suite 1280, Los Angeles, sions, chemical labeling, chemical packaging, han- CA 90017, (213) 627-8280, fax (213) 627-8301, dling and shipping, burns, warnings, labels, MSDSs, HAMPTON HEALTH, LTD. e-mail: [email protected]. Web site: disposal, safety, EPA, OSHA, DOT, propane, natural www.schulzehaynes.com. Contact Karl J. JOHN H. FULLERTON, MD, MRO gas, hydrogen, flammable liquids, hazardous chemi- CMD, CFP, FACP, AGSF, FAAHPM Schulze, president. Specialties: forensic business cals, aerosols (hairspray, spray paint, refrigerants). analysis and accounting, lost profits, economic dam- DOT certified (hazardous materials shipment). Certi- 415.460.5532 TEL | 415.459.2774 FAX ages, expert testimony, discovery assistance, busi- fied fire and explosion investigator, OSHA process 1700 CALIFORNIA STREET, SUITE 470, CA 94109 ness valuations, corporate recovery, financial analy- hazard analysis team leader. PhD physical chemistry. sis, and modeling. Member of major professional Extensive experience in metallurgy, corrosion, and http://hamptonhealthltd.com organizations, experience across a broad spectrum failure analysis. of industries and business issues. Degrees/licenses: CPA, CVA, CFE, ABV, PhD-Economics. See display CIVIL LITIGATION ad on page 49. GURSEY/SCHNEIDER LLP THOMAS NECHES & COMPANY LLP GLENN M. GELMAN 1888 Century Park East, Suite 900, Los Angeles, 633 West 5th Street, Suite 2800, Los Angeles, CA CA 90067, (310) 552-0960, fax (310) 557-3468, & ASSOCIATES 90071-2039, (213) 624-8150, fax (213) 223-2304, CERTIFIED PUBLIC ACCOUNTANTS e-mail: [email protected]. Web site: www.gursey e-mail: [email protected]. Web site: www .com. Contact Gary Krausz. Gursey|Schneider AND BUSINESS ADVISORS Contact Thomas M. Neches, .thomasneches.com. specializes in forensic accounting and litigation sup- CPA, ABV, CVA, CFE, CFF. Accounting, financial, port services in the areas of civil litigation, business business valuation, and statistical analyses to assist disputes, bankruptcy, damage and cost-profit insur- attorneys in litigation. Expert testimony in state and ance claims, court accountings, fraud investigations, federal courts. Cases: antitrust, breach of contract, accounting malpractice, intellectual property, con- fraud, intellectual property, lost business value, lost struction, government accounting, and entertainment profits, wrongful death, and wrongful termination. litigation. Gursey|Schneider has over 30 years of Industries: banking, construction, entertainment, experience as expert witnesses in accounting-related insurance, manufacturing, retail, securities, and matters. See display ad on page 47. wholesale. Credentials: certified public accountant/ accredited in business valuation, certified valuation COMPOSITE & FIBERGLASS MATERIALS analyst, certified fraud examiner and certified in finan- cial forensics. Education: BA (Mathematics) UC San Diego, MS (Operations Research) UCLA. Teaching: KARS’ ADVANCED MATERIALS, INC. adjunct professor, Loyola Law School. See display Testing and Research Labs, 2528 West Woodland ad on page 57. Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527-7169, e-mail: [email protected]. Web site: WHITE, ZUCKERMAN, WARSAVSKY, www.karslab.com. Contact Dr. Ramesh Kar, Dr. LUNA & HUNT Naresh Kar, Dr. Nikhil Kar. Southern California’s pre- 15490 Ventura Boulevard, Suite 300, Sherman mier materials/mechanical/metallurgical/structural/foren- Oaks, CA 91403, (818) 981-4226, fax (818) 981- sics laboratory. Registered professional engineers with 4278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614, 30-plus years in metallurgical/forensic/structural failure (949) 219-9816, fax (949) 219-9095, e-mail: expert analysis. Experienced with automotive, bicycles, tires, @wzwlh.com. Web site: www.wzwlh.com. Contact fire, paint, plumbing, corrosion, and structural failures. Barbara Luna. Expert witness testimony for com- We work on both plaintiff and defendant cases. Com- plex litigation involving damage analyses of lost prof- plete in-house capabilities for tests. Extensive deposition We provide you with the professional its, unjust enrichment, reasonable royalties, lost earn- and courtroom experience (civil and criminal investiga- results you need to support your case ings, lost value of business, forensic accounting, tions). Principals are Fellows of American Society for fraud investigation, investigative analysis of liability, Metals and Fellows, American College of Forensic and marital dissolution, and tax planning and prepa- Examiners. See display ad on page 61. ration. Excellent communicators with extensive testi- mony experience. Prior Big Four accountants. Spe- COMPUTER FORENSICS cialties include accounting, breach of contract, breach of fiduciary duty, business interruption, busi- DATACHASERS, INC. ness dissolution, construction defects, delays, and P.O. Box 2861, Riverside, CA 92516-2861, cost overruns, fraud, insurance bad faith, intellectual (877) DataExam, (877) 328-2392, (951) 780-7892, property (including trademark, patent, and copyright e-mail: [email protected]. Web site: www infringement, and trade secrets), malpractice, marital dissolution, personal injury, product liability, real .DataChasers.com. E-Discovery: Full e-discovery

44 Los Angeles Lawyer November 2013 services…you give us the mountain, we give you the mole hill: Tiff production, de-duplication, redaction, Bates-stamped data, and electronically stored infor- mation (ESI) production. Computer forensic: full forensic computer lab. Recovering deleted text files (documents), graphics (pictures), date codes on all files, e-mail, and tracing Internet activity. Intellectual property cases, family law, employment law, probate TM resolution, asset verification, (prosecu- CARPE DATUM ……SEIZE THE DATA tion or defense), etc. Litigation support, trial prepara- tion, experienced expert witnesses, and professional COMPUTER FORENSICS E-DISCOVERY courtroom displays. See display ad on page 44. • Recover Critical Data • De-Duplication FULCRUM INQUIRY • E-Mail Recovery • Redaction 888 South Figueroa Street, Suite 2000, Los Angeles, • Dates on All Files • Bates Stamped Data CA 90017, (213) 787-4100, fax (213) 891-1300, • Cell Phone Forensics • Electronic (ESI) Production e-mail: [email protected]. Web site: www .fulcrum.com. Contact David Nolte. Our profes- sionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our 951.780.7892 | DataChasers.com analysis and research, combined with unique pre- sentation techniques, have resulted in an unequaled record of successful court cases and client recover- ies. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset val- uations, appraisals, fraud investigations, troubled EXPERT WITNESS — Claims Consultant company consultation, statistics, forensic economic analysis, royalty audits, strategic and market assess- ments, computer forensics, electronic discovery, and OVER 45 YEARS EXPERIENCE as a claims adjuster, licensed in three states and analysis of computerized data. Degrees/licenses: qualified in state and federal courts. Expert in good faith/bad faith, CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, standards and practices and standard in the industry. Specialties in finance, economics, and related subjects. See display ad on back cover. property/casualty construction defect, fire/water, uninsured/underinsured motorist, warehouse and cargo claims. Failure to defend and/or indemnify. SETEC INVESTIGATIONS EXPERIENCE Litigation support, case review and evaluation claim consultation, coverage 8391 Beverly Boulevard, Suite 167, Los Angeles, q CA 90036, (800) 748-5440, fax (323) 939-5481, INTEGRITY review and valuations. Appraisal, Arbitration and Claims Rep. at MSC & MMC. e-mail: [email protected]. Web site: q Contact Gene Evans at E. L. Evans Associates www.setecinvestigations.com. Contact Todd HONESTY Stefan. Setec Investigations offers unparalleled Phone (310) 559-4005 / Fax (310) 559-4236 / E-mail [email protected] expertise in computer forensics and enterprise inves- tigations providing personalized, case-specific foren- sic analysis and litigation support services for law 3310 AIRPORT AVENUE, SUITE 7, SANTA MONICA, CALIFORNIA 90405 firms and corporations. Setec Investigations pos- sesses the necessary combination of technical expertise, understanding of the legal system, and specialized tools and processes enabling the discov- ery, collection, investigation, and production of elec- tronic information for investigating and handling com- puter-related crimes or misuse. Our expertise includes computer forensics, electronic discovery, lit- igation support, and expert witness testimony. COMPUTERS/INFORMATION SCIENCES

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

CONSTRUCTION DISPUTE RESOLUTION CONSULTANTS 312 Emerald Bay, Laguna Beach, CA 92651, (949) 300-2244, e-mail: [email protected]. Web site: www.constructionDRC.com. Contact Hanns U. Baumann, SE. Expert construction forensic consultation by licensed civil, structural, geotechnical/soil, engineering and licensed general contractor with many years of professional experi- ence in California.

Los Angeles Lawyer November 2013 45 FORENSISGROUP SECRETARIAT INTERNATIONAL EXPERT WITNESS SERVICES SINCE 1991 403 11th Street, Los Angeles, CA 90254, (213) 915- 301 North Lake Avenue, Suite 420, Pasadena, CA 8450, e-mail: [email protected]. Web site: 91101, (800) 555-5422, (626) 795-5000, fax: (626) www.secretariat-intl.com. Contact Ted Scott. Ted 795-1950, email: [email protected]. Web Scott is a professional Civil Engineer that specializes site: www.forensisgroup.com. Contact Mercy in providing independent expert witness services Steenwyk. 10,000 cases ForensisGroup has pro- relating to construction, scheduling, delay and pro- vided experts. 8,000 clients have retained experts ject controls. He has worked on large-scale infra- from us. We respond in one hour or less. Forensis- structure and commercial projects for multinational Group is an expert witness services and consulting owners, developers, contractors, lenders, insurers, company, providing experts, expert witnesses, and and attorneys across the globe. consultants to law firms, insurance companies, and other public and private firms in thousands of disci- URS plines: construction, engineering, business, account- 915 Wilshire Boulevard, Suite 700, Los Angeles, ing, intellectual property, computers, IT, medical, real CA 90017, (213) 996-2598, fax (213) 996-2521, estate, insurance, product liability, premises liability, e-mail: [email protected]. Contact Keith Kajiya. safety, and others, including experts in complex and Expert witness for entitlement, causation damages hard-to-find disciplines. Let us give you the technical on design, construction, and geotechnical environ- advantage and competitive edge in your cases. mental disputes. Experienced in all types of con- Referrals, customized searches, and initial phone struction projects. See display ad on page 61. consultations are free. See display ad on page 41. CONTRACTORS LICENSING (CSLB) GLENN M. GELMAN & ASSOCIATES CERTIFIED PUBLIC ACCOUNTANTS AND ROBERT B. BERRIGAN, ESQ. BUSINESS ADVISERS MATHENY SEARS LINKERT & JAIME LLP 1940 East 17th Street, Santa Ana, CA 92705, 3638 American River Drive, Sacramento, CA 95864- (714) 667-2600, fax (714) 667-2636, e-mail: rsquar 5901, (916) 978-3434, fax (916) 978-3430, e-mail: @gmgcpa.com. Web site: www.gmgcpa.com. [email protected]. Web site: www Contact Richard M. Squar. Exclusive LA and .mathenysears.com. Specialties: Contractor licensing Orange County representative for CICPAC (Con- issues, proper license classification to perform work, struction Industry CPA/Consultants Association). B & P section 7031 licensure issues. Contractor This is a nationwide network of CPA firms specifically State License Board (CSLB) investigations and disci- selected for their experience in and commitment to plinary proceedings, obtaining licenses or docu- serving the construction industry. We are one of only ments from CSLB. Experienced expert witness at six firms in all of California that are members of this trial/arbitration. Degrees/licenses: BA, JD, Commer- prestigious organization. We provide these litigation cial Pilot, SEL, MEL. support services: expert witness testimony, strategy development, document discovery, deposition assis- CORPORATE AND SECURITIES tance, computation of damages, arbitration consult- ing, forensic accounting, investigative auditing, rebut- PETILLON HIRAIDE & LOOMIS, LLP tal testimony, fiduciary accountings, and trial exhibit 21515 Hawthorne Boulevard, Suite 1260, Torrance, preparation. Our areas of expertise include: business CA 90503, (310) 543-0500, fax (310) 543-0550, interruption, loss of earnings analysis, breach of con- e-mail: [email protected]. Web site: www tract, partnership dissolution, profits distribution, tax .phlcorplaw.com. Contact Mark Hiraide. I served as consequences of settlements, reconstruction of an expert witness in the following areas: formation of accounting records, embezzlement and fraud, con- corporations, partnerships, and limited liability com- tract costs, lost profits, construction claims, and panies, governance, fiduciary duties of officers and damage computations cases. Honored by Construc- directors, and majority shareholders, venture and tion Link as the “Best Accounting Firm for the con- acquisition issues; violation of securities laws, legal struction industry.” Glenn M. Gelman has been malpractice of lawyers, and issues relating to forma- appointed and served as Special Master in litigation tion of venture capital funds, and private equity funds. support matters and has testified over 30 times. Our comprehensive case list is available upon request. CORPORATE INVESTIGATIONS See display ad on page 44. KGA, INC. FULCRUM INQUIRY Air Weather & Sea 1409 Glenneyre Street, Suite A, Laguna Beach, CA 888 South Figueroa Street, Suite 2000, Los Angeles, 92651, (949) 497-6000, fax (949) 494-4893, e-mail: CA 90017, (213) 787-4100, fax (213) 891-1300, Conditions, Inc. [email protected]. Web site: www.kgainc.com. e-mail: [email protected]. Web site: www Contact Kurt Grosz. Construction and environmen- .fulcrum.com. Contact David Nolte. Our profes- Clear, plain-language and convincing expert tal consultants since 1991. Licensed engineers and sionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our testimony, reports and analyses to reconstruct contractors. ICC building, plumbing, mechanical, concrete and accessibility inspectors. Certified pro- analysis and research, combined with unique pre- weather, climate, storm, and atmospheric sentation techniques, have resulted in an unequaled conditions at location and time of interest. fessional estimators. Trial experts, arbitrators, and insurance appraisers/umpires. record of successful court cases and client recover- ies. Our expertise encompasses damages analysis, Wind and rain and ice assessments, and THE MCMULLEN COMPANY, INC. lost profit studies, business and intangible asset val- indications of their normalcy, unusualness uations, appraisals, fraud investigations, troubled and foreseeability. 1260 Lake Boulevard, Suite 226, Davis, CA 95616, (888) 747-9857, fax (530) 757-1293, e-mail: tmc company consultation, statistics, forensic economic @themcmullencompany.com. Web site: www analysis, royalty audits, strategic and market assess- Authoritative, certified data acquisition, ments, computer forensics, electronic discovery, and preparation of exhibit materials, site visits .themcmullencompany.com. Contact James F. Mc-Mullen, California State Fire Marshal analysis of computerized data. Degrees/licenses: and evaluations of reports for legal and (retired). Senior associates available throughout CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, insurance matters including building projects, California (including Los Angeles County). Fire/ finance, economics, and related subjects. See dis- mold, accidents, wildfires, ice, homeland building code analysis and development, construc- play ad on back cover. security and alternative energy applications. tion defects, code compliance inspections, fire ori- WHITE, ZUCKERMAN, WARSAVSKY, Excellent client references provided on request. gin/cause/spread investigation, fire services manage- LUNA & HUNT ment/operations, fire safety-related product EXTENSIVE COURT EXPERIENCE analysis/evaluation, and forensic expert. 15490 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91403, (818) 981-4226, fax (818) 981- Jay Rosenthal CCM MEP CONSULTING & MORE, LLC 4278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614, AMS CERTIFIED CONSULTING METEOROLOGIST 5430 Trabuco Road, Suite 100, Irvine, CA 92620, (949) 219-9816, fax (949) 219-9095, e-mail: expert NATIONAL WEATHER SERVICE WEATHER SPOTTER (949) 246-2741, fax (949) 364-6385, e-mail: jflynn @wzwlh.com. Web site: www.wzwlh.com. Contact @mepcam.com. Web site: www.mepcam.com. Barbara Luna. Expert witness testimony for com- Phone 818.645.8632 or 310.454.7549 Contact John Flynn, principal. Consulting and plex litigation involving damage analyses of lost prof- Fax 310.454.7569 forensics for plumbing, mechanical (heating, ventilat- its, unjust enrichment, reasonable royalties, lost earn- E-mail [email protected] ing, A/C) and electrical (power, lighting), energy sys- ings, lost value of business, forensic accounting, www.weatherman.org tems, residential and commercial buildings, con- fraud investigation, investigative analysis of liability, struction defect, cost to repair, construction and and marital dissolution, and tax planning and prepa- P. O. Box 512, Pacific Palisades, CA 90272 development claims; delay analysis; licensed P.E.s. ration. Excellent communicators with extensive testi- Experienced testifiers. mony experience. Prior Big Four accountants. Spe-

46 Los Angeles Lawyer November 2013 cialties include accounting, breach of contract, dents, and malpractice. 60% plaintiff / 40% defense. DOGS breach of fiduciary duty, business interruption, busi- Have qualified in Superior Court over 30 times. Pub- ness dissolution, construction defects, delays, and lished and have been written about in print, radio, JILL KESSLER, GRAD. CERT., CPDT cost overruns, fraud, insurance bad faith, intellectual and TV over 116 times. Expert on issues including: 341 North Grenola Street, Pacific Palisades, CA property (including trademark, patent, and copyright standard of care, cosmetics, lasers, extractions, 90272, (310) 573-9615, fax (310) 573-1304, e-mail: infringement, and trade secrets), malpractice, marital nerve damage, valuation, informed consent, antibi- [email protected]. Web site: www.jillkessler dissolution, personal injury, product liability, real otic coverage, TMJ, orthodontics including Invisalign, .com. Opinion, consultation, reports, evaluations in estate, securities, tax planning and preparation, IRS sleep apnea, treatment planning, occlusion and verti- dog bites, aggression, behaviors, training, showing, audit defense, tracing, unfair advertising, unfair com- cal dimension, electrosurgery, abscess, resorption, breed tendencies, service and rescued dogs. Spe- petition, valuation of businesses, and wrongful termi- implants, crowns, root canal, veneers, periodontics, cializing in Rottweilers and pit-bull type dogs. See nation. See display ad on page 43. and patent infringement. Licensed in 42 states to display ad on page 61. opine on standard of care, with specific license in CREDIT DAMAGES EXPERT California, Nevada, and the Northeast as well as a ECONOMIC ANALYSIS Florida Expert Certification. Graduated NYU 1988; EASY CREDIT RELIEF, INC. Lieutenant, United States Navy 1989-91; private CBIZ & MAYER HOFFMAN MCCANN PC practice Brentwood, CA since 1991; faculty: Staff, 2625 Townsgate Road, Suite 330, Westlake 10474 Santa Monica Boulevard, Suite 200, Los attending—UCLA. Professor of Dental Medicine: Village, CA 91361, (805) 267-1118, fax (805) 299- Angeles, CA 90025, (310) 268-2000, fax (310) 268- Western University, Health Sciences College of Den- 4980, e-mail: [email protected]. Web site: 2001, e-mail: [email protected]. Contact Coral tal Medicine. www.creditdamagesexpert.com. Contact Doug Hansen. Web site: www.MHM-PC.com, www Minor. Credit damages expert witness/consultant DOCUMENT EXAMINER .CBIZ.com. CBIZ & Mayer Hoffman McCann PC with over 25 years of experience. He has passed the specializes in fraud investigations, forensic account- required examination to receive from the CDIA a Fair ing, business litigation, commercial damage and lost SANDRA L. HOMEWOOD, FORENSIC Credit Reporting Act Certification and can help with profits computations, business valuation and credit report evaluation preparing credit damages DOCUMENT EXAMINER appraisal, transactional due diligence, family limited report, including quantitative assessment, modern 1132 San Marino Drive, Suite 216, Lake San partnerships, business interruption, and family law. credit scoring types of credit damages, assessing Marcos, CA 92078, (760) 931-2529, fax (760) We provide experienced expert testimony and tax violations of the Fair Credit Reporting Act (FCRA), 510-8412, e-mail: [email protected]. controversy representation. review of residential mortgage loan application forms Contact Sandra L. Homewood. Highly skilled and 1003 and 1008. Modern credit scoring, unfair debt experienced document examiner and expert wit- ECONOMIC DAMAGES collections (FDCPA), evaluate testimony, and devel- ness in many complex and high-profile civil and oping questions for deposition and trial. criminal cases with fully equipped document labo- ADVISORS/EXPERTS @ MCS ASSOCIATES ratory. Specializing in handwriting and handprinting 18881 Von Karman, Suite 1175, Irvine, CA 92612, identification, handwriting of the elderly in financial (949) 263-8700, fax (949) 263-0770, e-mail: DENTIST elder abuse cases and will contests, and examina- [email protected]. Web site: www tion of altered medical and corporate records. .mcsassociates.com. Contact Norman Katz, JAY GROSSMAN DDS Trained in government laboratory including special- managing partner. Nationally recognized banking, 11980 San Vicente Boulevard, Suite 507, ized training by the FBI and Secret Service. Former finance, insurance, and real estate consulting group Brentwood, CA 90049, (310) 820-0123, e-mail: government experience includes document exam- (established 1973). Experienced litigation consul- [email protected]. Web site: www iner for the San Diego Police Department crime lab, tants/experts include senior bankers, lenders, con- .drjaydds.com. Contact Jay Grossman. Dental Arizona State crime lab, and San Diego County Dis- sultants, economists, accountants, insurance malpractice expert testimony. Have been deposed trict Attorney’s office. Currently in private, criminal, underwriters/brokers. Specialties include: lending over 80 times; reviewed over 400 cases for both and civil practice. defense and plaintiff including peer review, acci- customs, practices, policies, in all types of lending (real estate, subprime, business/commercial, con-

Los Angeles Lawyer November 2013 47 struction, consumer/credit card), banking opera- GURSEY/SCHNEIDER LLP federal courts. Cases: antitrust, breach of contract, tions/administration, trusts and investments, 1888 Century Park East, Suite 900, Los Angeles, fraud, intellectual property, lost business value, lost economic analysis and valuations/damages CA 90067, (310) 552-0960, fax (310) 557-3468, profits, wrongful death, and wrongful termination. assessment, insurance claims, coverages and bad e-mail: [email protected]. Web site: www.gursey Industries: banking, construction, entertainment, faith, real estate brokerage, appraisal, escrow, and .com. Contact Gary Krausz. Gursey|Schneider insurance, manufacturing, retail, securities, and title insurance. specializes in forensic accounting and litigation sup- wholesale. Credentials: certified public accountant/ port services in the areas of civil litigation, business accredited in business valuation, certified valuation CBIZ & MAYER HOFFMAN MCCANN PC disputes, bankruptcy, damage and cost-profit insur- analyst, certified fraud examiner and certified in finan- 10474 Santa Monica Boulevard, Suite 200, Los ance claims, court accountings, fraud investigations, cial forensics. Education: BA (Mathematics) UC San Angeles, CA 90025, (310) 268-2000, fax (310) 268- accounting malpractice, intellectual property, con- Diego, MS (Operations Research) UCLA. Teaching: 2001, e-mail: [email protected]. Contact Coral struction, government accounting, and entertainment adjunct professor, Loyola Law School. See display Hansen. Web site: www.MHM-PC.com, www litigation. Gursey|Schneider has over 30 years of ad on page 57. .CBIZ.com. CBIZ & Mayer Hoffman McCann PC experience as expert witnesses in accounting-related specializes in fraud investigations, forensic account- matters. See display ad on page 47. WARONZOF ASSOCIATES, INC. ing, business litigation, commercial damage and lost 999 North Sepulveda Boulevard, Suite 440, El profits computations, business valuation and HIGGINS, MARCUS & LOVETT, INC. Segundo, CA 90245, (310) 322-7744, fax (310) appraisal, transactional due diligence, family limited 800 South Figueroa Street, Suite 710, Los Angeles, 322-7755. Web site: www.waronzof.com. Contact partnerships, business interruption, and family law. CA 90017, (213) 617-7775, fax (213) 617-8372, Timothy R. Lowe, MAI, CRE. Waronzof provides We provide experienced expert testimony and tax e-mail: [email protected]. Contact Mark C. real estate and land use litigation support services controversy representation. Higgins, ASA. The firm has over 30 years of litiga- including economic damages, lost profits, financial tion support and expert testimony experience in mat- feasibility, lease dispute, property value, enterprise CORNERSTONE RESEARCH ters involving business valuation, economic dam- value, partnership interest and closely-held share st 633 West Fifth Street, 31 Floor, Los Angeles, CA ages, intellectual property, loss of business goodwill, value, fair compensation, lender liability, and reorga- 90071-2005, (213) 553-2500, fax (213) 553-2699. and lost profits. Areas of practice include business nization plan feasibility. Professional staff of five with Web site: www.cornerstone.com. Contact George disputes, eminent domain, bankruptcy, and corpo- advanced degrees and training in real estate, G. Strong, Jr., Richard W. Dalbeck, Katie J. rate and marital dissolution. See display ad on finance, urban planning, and accounting. See Galley, Elaine Harwood, Carlyn Irwin, Erin page 41. display ad on page 59. McGlogan or Ashish Pradhan. For more than twenty-five years, Cornerstone Research staff have MICHAEL D. ROSEN, CPA, PHD, ABV WHITE, ZUCKERMAN, WARSAVSKY, provided economic and financial analysis in all 3780 Kilroy Airport Way, Suite 200, Long Beach, LUNA & HUNT phases of commercial litigation and regulatory pro- CA 90806, (562) 256-7052, fax (562) 256-7001, 15490 Ventura Boulevard, Suite 300, Sherman ceedings. We work with a broad network of testifying e-mail: [email protected]. Web site: www Oaks, CA 91403, (818) 981-4226, fax (818) 981- experts, including prominent faculty and industry .mrosencpa.com. Contact Michael D. Rosen. We 4278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614, practitioners, in a distinctive collaboration. The are litigation consultants, forensic accountants, (949) 219-9816, fax (949) 219-9095, e-mail: experts with whom we work bring the specialized expert witnesses. Our mission is to tell the financial [email protected]. Web site: www.wzwlh.com. . expertise required to meet the demands of each story that underlies every business litigation matter Contact Barbara Luna. Expert witness testimony assignment. Our areas of specialization include intel- and to convey that story in a clear and concise man- for complex litigation involving damage analyses of lectual property, antitrust, securities, entertainment, ner to the trier of fact. Our findings allow a realistic lost profits, unjust enrichment, reasonable royalties, real estate, financial institutions, and general busi- assessment of the case and support settlement lost earnings, lost value of business, forensic ness litigation. efforts. Our work is designed to render conclusive accounting, fraud investigation, investigative analysis opinions and to withstand cross-examination. We of liability, and marital dissolution, and tax planning FULCRUM INQUIRY specialize in business damages (lost profits and loss and preparation. Excellent communicators with 888 South Figueroa Street, Suite 2000, Los Angeles, in value), personal damages (lost earnings), and busi- extensive testimony experience. Prior Big Four CA 90017, (213) 787-4100, fax (213) 891-1300, ness valuation. accountants. Specialties include accounting, breach e-mail: [email protected]. Web site: www of contract, breach of fiduciary duty, business inter- .fulcrum.com. Contact David Nolte. Our profes- JAY SHAPIRO, CPA ruption, business dissolution, construction defects, sionals are experienced CPAs, MBAs, ASAs, CFAs, 10635 Santa Monica Boulevard Suite 190, Los delays, and cost overruns, fraud, insurance bad faith, affiliated professors, and industry specialists. Our Angeles, CA 90025, (310) 441-3600, fax (310) 441- intellectual property (including trademark, patent, and analysis and research, combined with unique pre- 3610, e-mail: [email protected]. Web site: copyright infringement, and trade secrets), malprac- sentation techniques, have resulted in an unequaled www.shapiromedia.com, www.jshapirocp.com. Jay tice, marital dissolution, personal injury, product lia- record of successful court cases and client recover- Shapiro has specialized in accounting, income tax bility, real estate, securities, tax planning and prepa- ies. Our expertise encompasses damages analysis, preparation, and all special financial matters ration, IRS audit defense, tracing, unfair advertising, lost profit studies, business and intangible asset val- impacting the entertainment and media industry for unfair competition, valuation of businesses, and uations, appraisals, fraud investigations, troubled the past 30 years and has clientele ranging from wrongful termination. See display ad on page 43. company consultation, statistics, forensic economic private individuals to partnerships and corporate analysis, royalty audits, strategic and market assess- entities across all sectors on a worldwide basis. Jay ZIVETZ, SCHWARTZ & SALTSMAN, CPAS ments, computer forensics, electronic discovery, and will provide you with a realistic financial assess- 11900 West Olympic Boulevard, Suite 650, Los analysis of computerized data. Degrees/licenses: ment, expert, objective analysis, and clear and con- Angeles, CA 90064-1046, (310) 826-1040, fax (310) CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, cise testimony that stand up upon cross-examina- 826-1065. Web site: www.zsscpa.com. Contact finance, economics, and related subjects. See tion. Jay has testified over 20 times in federal and Lester J. Schwartz, CPA/CFF, DABFE, DABFA, display ad on back cover. state court. Jay’s financial expertise includes: tax Michael D. Saltsman, CPA, MBA, David L. Bass, issues, entertainment net profits, business litiga- CPA, David Dichner, CPA, ABV, CVA, Sandy GLENN M. GELMAN & ASSOCIATES tion, business valuation and appraisal, forensic Green, CPA, Daljeet Kaur, CPA. Accounting CERTIFIED PUBLIC ACCOUNTANTS AND investigation, idea submissions, economic dam- experts in forensic accounting, tax issues, business BUSINESS ADVISERS ages, contractual disputes, marital dissolutions, valuations, and appraisals, marital dissolutions, emi- 1940 East 17th Street, Santa Ana, CA 92705, participations and royalties, and lost earning nent domain, insurance losses, business interruption, (714) 667-2600, fax (714) 667-2636, e-mail: rsquar capacity. goodwill, economic analysis, investigative auditing, @gmgcpa.com. Web site: www.gmgcpa.com. loss of earning, commercial damages, and lost prof- Contact Richard M. Squar. Since 1983, our firm SCHULZE HAYNES LOEVENGUTH & CO. its. Expert witness testimony preparation, settlement has specialized in delivering forensic accounting and 660 South Figueroa Street, Suite 1280, Los Angeles, negotiations, and consultations. See display ad on litigation support services that give our clients an CA 90017, (213) 627-8280, fax (213) 627-8301, page 49. edge. We provide the quality and depth traditionally e-mail: [email protected]. Web site: associated with Big Four firms with the personal www.schulzehaynes.com. Contact Karl J. ECONOMICS attention and fee structure of a local firm. We are Schulze, president. Specialties: forensic business recognized throughout southern California for the analysis and accounting, lost profits, economic dam- ADVISORS/EXPERTS @ MCS ASSOCIATES effectiveness of our work. Areas of expertise include: ages, expert testimony, discovery assistance, busi- 18881 Von Karman, Suite 1175, Irvine, CA 92612, business interruption, loss of earnings analysis, ness valuations, corporate recovery, financial analy- (949) 263-8700, fax (949) 263-0770, e-mail: breach of contract, partnership dissolution, profits sis, and modeling. Member of major professional [email protected]. Web site: www distribution, tax consequences of settlements, recon- organizations, experience across a broad spectrum .mcsassociates.com. Contact Norman Katz, struction of accounting records, embezzlement and of industries and business issues. Degrees/licenses: managing partner. Nationally recognized banking, fraud, contract costs, lost profits, construction CPA, CVA, CFE, ABV, PhD-Economics. See display finance, insurance, and real estate consulting group claims, and damage computations cases. Our prac- ad on page 49. (established 1973). Experienced litigation consul- tice focuses on closely held entrepreneurial firms in tants/experts include senior bankers, lenders, con- the following industries: construction, real estate THOMAS NECHES & COMPANY LLP sultants, economists, accountants, insurance under- development, equipment leasing, auto parts (whole- 633 West 5th Street, Suite 2800, Los Angeles, CA writers/brokers. Specialties include: lending customs, sale and retail), manufacturing, and professional ser- 90071-2039, (213) 624-8150, fax (213) 223-2304, practices, policies, in all types of lending (real estate, vices. Glenn M. Gelman has been appointed and e-mail: [email protected]. Web site: www subprime, business/commercial, construction, con- served as Special Master in litigation support matters .thomasneches.com. Contact Thomas M. Neches, sumer/credit card), banking operations/administra- and has testified over 30 times. Our comprehensive CPA, ABV, CVA, CFE, CFF. Accounting, financial, tion, trusts and investments, economic analysis and case list is available upon request. See display ad on business valuation, and statistical analyses to assist valuations/damages assessment, insurance claims, page 44. attorneys in litigation. Expert testimony in state and

48 Los Angeles Lawyer November 2013 coverages and bad faith, real estate brokerage, appraisal, escrow, and title insurance. CMM, LLP DIANA G. LESGART, CPA, CFE, CVA, CFF 5700 Canoga Avenue, Suite 300, Woodland Hills, An Accountancy Corporation CA 91367, (818) 986-5070, fax (818) 986-5034, — — e-mail: [email protected]. Web site: www .cmmcpas.com. Contact Scott Mowrey. Special- ties: consultants who provide extensive experience, LITIGATION CONSULTING litigation support, and expert testimony regarding forensic accountants, fraud investigations, economic Certified Certified Certified Certified in damages, business valuations, family law, bank- Public Fraud Valuation Financial ruptcy, and reorganization. Degrees/licenses: CPAs, Accountant Examiner Analyst Forensics CFEs, MBAs. See display ad on page 45. FULCRUM INQUIRY 888 South Figueroa Street, Suite 2000, Los Angeles, TEL 818.886.7140 • FAX 818.886.7146 • E-MAIL [email protected] CA 90017, (213) 787-4100, fax (213) 891-1300, 22024 LASSEN STREET, SUITE 106, CHATSWORTH, CA 91311 e-mail: [email protected]. Web site: www .fulcrum.com. Contact David Nolte. Our profes- www.jurispro.com/DianaLesgartCPA sionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research, combined with unique pre- sentation techniques, have resulted in an unequaled record of successful court cases and client recover- ies. Our expertise encompasses damages analysis, Schulze Haynes Loevenguth & Co. lost profit studies, business and intangible asset val- uations, appraisals, fraud investigations, troubled company consultation, statistics, forensic economic FORENSIC/LITIGATION EXPERTS analysis, royalty audits, strategic and market assess- ments, computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: Designations include: • Financial Forensic Analysis CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,  Certified Public • Expert Testimony finance, economics, and related subjects. See Accountant (CPA) display ad on back cover.  Certified in Financial • Turnaround and Bankruptcy Forensics (CFF) • Business Valuation ELDER ABUSE  Certified Valuation Analyst/Accredited in CONTACT KARL J. SCHULZE HAMPTON HEALTH, LTD Business Valuation [email protected] • www.schulzehaynes.com JOHN H. FULLERTON, MD, MRO, CMD, CFP, (CVA/ABV) FACP, AGSF, FAAHPM  Certified Fraud 213.627.8280 1700 California Street, Suite 470, San Francisco, Examiner (CFE) 660 SOUTH FIGUEROA STREET, SUITE 1280, LOS ANGELES, CALIFORNIA 90017 CA 94109, (415) 460-5532, fax (415) 459-2774, e-mail: [email protected]. Web site: hamptonhealthltd.com. Contact Kate McElroy, PA-C. Services available: board certified in internal medicine, geriatrics, hospice, palliative medicine, addiction medicine, and home health; licensed med- ical review officer. Expertise: Medicare fraud cases for the government, toxicology/DUI, elder abuse Zivetz, Schwartz & Saltsman CPA’s including criminal defense of lay caregivers accused of homicide of demented relatives during end-of-life With more than thirty years of experience as expert witnesses phase. Hospital, ambulatory/outpatient, PI, medical malpractice, and LTC. Medical/hospice director- in testimony, pre-trial preparation, settlement negotiations, ships. Testified over 200 times and reviewed more consultations and court appointed special master. than 1,000 cases in the last 13 years. See display ad on page 44. ELECTRICAL ENGINEERING Some of our specialties consist of: MEP CONSULTING & MORE, LLC 5430 Trabuco Road, Suite 100, Irvine, CA 92620, (949) 246-2741, fax (949) 364-6385, e-mail: jflynn • Forensic Accounting • Marital Dissolutions @mepcam.com. Web site: www.mepcam.com. Contact John Flynn, principal. Consulting and • Business Valuation and Appraisal • Lost Profits forensics for plumbing, mechanical (heating, ventilat- ing, A/C) and electrical (power, lighting), energy sys- • Economic Damages • Accounting Malpractice tems, residential and commercial buildings, con- struction defect, cost to repair, construction and • Employee Benefit Plans • Entertainment Entities development claims; delay analysis; licensed P.E.s. Experienced testifiers. • Financial and Economic Analysis • Shareholder Disputes ELECTRONIC DISCOVERY • Wrongful Termination SETEC INVESTIGATIONS 8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90036, (800) 748-5440, fax (323) 939-5481, e-mail: [email protected]. Web site: Tel: (310) 826-1040 Lester J. Schwartz, CPA, CFF, DABFA, DABFE www.setecinvestigations.com. Contact Todd Fax: (310) 826-1065 Michael D. Saltsman, CPA, MBA Stefan. Setec Investigations offers unparalleled expertise in computer forensics and enterprise inves- E-mail: [email protected] David L. BASS, CPA tigations providing personalized, case-specific foren- www.zsscpa.com Dave Dichner, CPA, ABV, CVA sic analysis and litigation support services for law firms and corporations. Setec Investigations pos- 11900 W. Olympic Blvd. Sandy Green, CPA sesses the necessary combination of technical Suite 650 Daljeet Kaur, CPA expertise, understanding of the legal system, and Los Angeles, CA 90064-1046 specialized tools and processes enabling the discov- ery, collection, investigation, and production of elec- tronic information for investigating and handling com- puter-related crimes or misuse. Our expertise

Los Angeles Lawyer November 2013 49 includes computer forensics, electronic discovery, lit- ment, and vocational evaluations. She holds national EXPONENT igation support, and expert witness testimony. and California specific certification—Senior Profes- 5401 McConnell Avenue, Los Angeles, CA 90066, (310) sional in Human Resource (SPHR-CA), certified 754-2700, fax (310) 754-2799, e-mail: reza@exponent EMBEZZLEMENT AND FRAUD mediator, and consulting since 1992. .com. Web site: www.exponent.com. Contact Ali Reza. Specialties: fires and explosions, metallurgy and GLENN M. GELMAN & ASSOCIATES ENDOCRINOLOGY/INTERNAL MEDICINE mechanical engineering, structural and geotechnical, CERTIFIED PUBLIC ACCOUNTANTS AND accident reconstruction and analysis, human factors, BUSINESS ADVISERS JORDAN GELLER, M.D. risk and reliability assessment, toxicology and human 1940 East 17th Street, Santa Ana, CA 92705, 8920 Wilshire Boulevard, Suite 635, Beverly Hills, health, biomechanics, electrical and semiconductors, (714) 667-2600, fax (714) 667-2636, e-mail: rsquar CA 90211, e-mail: [email protected]. www aviation, materials science, HVAC, energy consulting, @gmgcpa.com. Web site: www.gmgcpa.com. .jordangeller.com. Contact Dr. Jordan Geller. construction defect, and scheduling. Contact Richard M. Squar. Glenn M. Gelman and Expert testimony in medical and endocrinology Associates provides a variety of high-quality services cases. Independent medical exams, records review, THOMAS L. LISTON, PE traditionally associated with the Big Four firms along and written opinions. 329 South San Antonio Road, Suite 5, Los Altos, with the personal attention that is the hallmark of CA 94022, (650) 948-1830, fax (650) 948-3030, local firms. Our litigation support services include: ENGINEER/TRAFFIC e-mail: [email protected]. Web site: embezzlement and fraud, expert witness testimony, www.tomlistoninc.com. Contact Tom Liston, PE. strategy development, document discovery, deposi- WILLIAM KUNZMAN, PE Carbon monoxide, HVAC, plumbing, fire, and explo- tion assistance, computation of damages, arbitration 1111 Town and Country #34, Orange, CA 92868, sions. consulting, forensic accounting, investigative audit- (714) 973-8383, fax (714) 973-8821, e-mail: bill ing, rebuttal testimony, fiduciary accountings, and @traffic-engineer.com. Web site: www.traffic SCS ENGINEERS trial exhibit preparation and reconstruction of -engineer.com. 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Largest settlement: $2,000,000 solo waste and air quality and industrial hygiene and litigation support matters and has testified over 30 vehicle accident case against Caltrans. Best defense safety services. We are a 43-year old consulting firm times. Our comprehensive case list is available upon verdict: $0 while defending Caltrans and opposition with 66 offices across the US and over 800 employ- See display ad on page 44. request. sought $16,000,000. Before becoming expert wit- ees. Our Long Beach office has more than 30 pro- ness, employed by Los Angeles County Road fessional engineers, scientists, and subject matter EMPLOYMENT/DISCRIMINATION/ Department, Riverside County Road Department, experts available on short notice to serve asbestos, HARASSMENT/RETALIATION city of Irvine, and Federal Highway Administration. lead-based paint, and other specialty areas requiring Knowledge of governmental agency procedures, expert witness services. BRIAN H. KLEINER, PHD, MBA design, geometrics, signs, traffic controls, mainte- Professor of Human Resource Management, Califor- nance, and pedestrian protection barriers. Hundreds ENGINEERING/GEOTECHNICAL nia State University, 551 Santa Barbara Avenue, of cases. Undergraduate work—UCLA, graduate Fullerton, CA 92835, (714) 879-9705, fax (714) 879- work—Yale University. COTTON, SHIRES AND ASSOCIATES, INC. 5600. Contact Brian H. Kleiner, PhD. Specialties: ENGINEERING Southern California branch, serving greater So. Cal. The evaluation of workplace policies and practices area, (805) 497-7999, fax (805) 497-7933, e-mail: pertaining to discrimination/harassment prevention 4X FORENSIC ENGINEERING [email protected]. Web site: www efforts (training, interactive process, reasonable Contact Michael Phipps LABORATORIES, INC. .cottonshires.com. or accommodation), investigations, corrective actions Patrick O. Shires. Full service geotechnical engi- (discipline, termination), hiring, compensation/wage 5262 Oceanus Drive, Huntington Beach, CA 92649, neering consulting firm specializing in investigation, and hours/ERISA, violence, OSHA, appraisal, pro- (714) 450-8500, fax (714) 450-8599, e-mail: 0.phil design, arbitration, and expert witness testimony motion, CFRA/FMLA, retaliation, and RIFS. Experi- @4Xforensic.com. Web Site: www.4Xforensic.com. with offices in Los Gatos, Thousand Oaks, and San ence: Former human resource manager for Ford Contact Phil Van Herle. 4X Forensic Engineering Andreas, California. Earth movement (settlement, soil Motor Company. Over 100 consulting clients. Laboratories is a full-service forensic engineering lab- creep, landslides, tunneling and expansive soil), Trained thousands of managers. 500+ publications. oratory. We provide expert witness and analytical foundation distress (movement and cracking of Have been retained in 500+ legal cases, have given and testing services in the following areas: fires and structures), drainage and grading issues (seepage deposition testimony 200+ times and trial/arbitration explosions: electrical and gas product defect investi- through slabs, moisture intrusion, nuisance water, testimony 65+ times. gations, thermal and fire modeling and laboratory and ponding water in crawlspace), pavement and testing, water loss: materials, corrosion and failure HAIGHT CONSULTING slab distress (cracking and separating), retaining analysis of plumbing products, failure analysis: walls (movement, cracking, and failures), pipelines, 1726 Palisades Drive, Pacific Palisades, CA 90272, metallurgy, product testing, and computerized flooding and hydrology, design and construction (310) 454-2988, fax (310) 454-4516. Contact stress analysis. Accident reconstruction: automo- deficiencies, aerial photo analysis; expert testimony Marcia Haight, SPHR—CA. Human resources tive, trucks, construction equipment, and premises at 77+ trials (municipal, superior, and federal), 207+ expert knowledgeable in both federal and California liability. depositions, 208+ settlement conferences in Califor- law. Twenty-five years’ corporate human resources nia, Nevada, Hawaii, and Michigan. management experience plus over 20 years as a A & E FORENSICS Human Resources Compliance Consultant in Califor- 2121 Montiel Road, San Marcos, CA 92069, ENVIRONMENTAL nia. Specializations include sexual harassment, (877) 839-7302, fax (760) 480-7477, e-mail: steve ADA/disability discrimination, other Title VII and @aeforensics.com. Web site: www.aeforensics KGA, INC. FEHA discrimination and harassment, retaliation, .com. Steve Norris, AIA, PE, GE, HG, CEG, FMLA/CFRA, safety, and wrongful termination. CASp, LEED. Architect, engineer, contractor—stan- 1409 Glenneyre Street, Suite A, Laguna Beach, CA Courtroom testimony and deposition experience. dard of care expert. Retained over 200 times, 92651, (949) 497-6000, fax (949) 494-4893, e-mail: Retained 60 percent by defense, 40 percent by deposed over 100 times, and testified in trial over 20 [email protected]. Web site: www.kgainc.com. plaintiff. Audit employer’s actions in preventing and times. Waterproofing, water intrusion, building enve- Contact Kurt Grosz. Construction and environmen- resolving discrimination, harassment, and retaliation lope, zoning setbacks, concrete performance, path tal consultants since 1991. Licensed engineers and issues. Assess human resources policies and prac- of travel, structural analysis, earthquake-fire damage, contractors. ICC building, plumbing, mechanical, tices for soundness, for comparison to prevailing and plan analysis. Landslides, retaining wall failure, concrete, and accessibility inspectors. Certified pro- practices, and for compliance. Evaluate employer settlement, flooding, grading, septic, expansive soils, fessional estimators. Trial experts, arbitrators, and responsiveness to complaints and effectiveness of mud flows, pavement distress, ground water evalua- insurance appraisers. employer investigations. Assist counsel via prelimi- tion, and slope analysis. Cost estimates, construc- THE REYNOLDS GROUP nary case analysis, discovery strategy, examination tion management, delay analysis, and contracts. P.O. Box 1996, Tustin, CA 92781-1996, (714) of documents, and expert testimony. Serving all California, Hawaii, and Oklahoma. See display ad on page 41. 730-5397, fax (714)730-6476, e-mail: edreynolds HRM CONSULTING, INC. @reynolds-group.com. Website: www.reynolds-group 1700 North First Street, Suite 120, San Jose, CA CONSTRUCTION DISPUTE RESOLUTION .com. Contact Ed Reynolds, principal. An environ- 95112, (209) 728-8905, fax (209) 728-8970, e-mail: CONSULTANTS mental consulting, contracting firm. Expertise: envi- [email protected]. Web site: www 312 Emerald Bay, Laguna Beach, CA 92651, (949) ronmental contamination, assessment, remediation, .hrmconsulting.com. Contact Beth B. De Lima, 300-2244, e-mail: [email protected]. reasonable value of construction, and related financial SPHR-CA. Expert witness Beth De Lima, has testi- Web site: www.constructionDRC.com. Contact matters. Degrees in Civil Engineering: USC (BS), Uni- fied for both plaintiff and defense in the following Hanns U. Baumann, SE. Expert construction versity of Houston (MS), Harvard MBA. California areas: human resources standards of care, employ- forensic consultation by licensed civil, structural, Registered Civil Engineer, Licensed A, B, HAZ Califor- ment ADA accommodation, FEHA, FMLA, CFRA, geotechnical/soil, engineering and licensed general nia Contractor. 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For more than twenty-five years, Cornerstone Research staff have provided economic and financial analysis in all phases of commercial litigation and regulatory pro- ceedings. We work with a broad network of testifying experts, including prominent faculty and industry practitioners, in a distinctive collaboration. The experts with whom we work bring the specialized STEVEN BURRES, MD, FAACS | MEDICAL EXPERT expertise required to meet the demands of each assignment. 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Web site: www.MHM-PC.com, www .CBIZ.com. CBIZ & Mayer Hoffman McCann PC specializes in fraud investigations, forensic account- AV Rated, Former Chair, LACBA Business & Corporations Law Section, LLM Harvard Law School. ing, business litigation, commercial damage and lost profits computations, business valuation and 40 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission, appraisal, transactional due diligence, family limited Washington D.C. Published Author of Securities Regulations, including eight volume treatise. partnerships, business interruption, and family law. We provide experienced expert testimony and tax controversy representation. FIRE/EXPLOSIONS Citigroup Center • 444 S. Flower Street, 30th Floor • Los Angeles, CA 90071 4X FORENSIC ENGINEERING LABORATORIES, INC. 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) 450-8500, fax (714) 450-8599, e-mail: 0.phil @4Xforensic.com. Web Site: www.4Xforensic.com.

Los Angeles Lawyer November 2013 53 Contact Phil Van Herle. 4X Forensic Engineering expertise required to meet the demands of each about RGL and its 23 offices worldwide, please visit Laboratories is a full-service forensic engineering assignment. Our areas of specialization include intel- www.rgl.com. laboratory. We provide expert witness and analyti- lectual property, antitrust, securities, entertainment, cal and testing services in the following areas: fires real estate, financial institutions, and general busi- WHITE, ZUCKERMAN, WARSAVSKY, and explosions: electrical and gas product defect ness litigation. 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Expert witness testimony for com- sionals are experienced CPAs, MBAs, ASAs, CFAs, plex litigation involving damage analyses of lost prof- CHEMICAL ACCIDENT RECONSTRUCTION affiliated professors, and industry specialists. Our its, unjust enrichment, reasonable royalties, lost earn- SERVICES, INC. analysis and research, combined with unique pre- ings, lost value of business, forensic accounting, 9121 East Tanque Verde Road, Suite 105, Tucson, sentation techniques, have resulted in an unequaled fraud investigation, investigative analysis of liability, AZ 85749, (800) 645-3369, e-mail: service record of successful court cases and client recover- and marital dissolution, and tax planning and prepa- @chemaxx.com. Web site: www.chemaxx.com. ies. Our expertise encompasses damages analysis, ration. Excellent communicators with extensive testi- Contact Dr. Michael Fox. Comprehensive chemi- lost profit studies, business and intangible asset val- mony experience. Prior Big Four accountants. Spe- cal accident investigation—specializing in complex uations, appraisals, fraud investigations, troubled cialties include accounting, breach of contract, industrial chemical accidents and chemical related company consultation, statistics, forensic economic breach of fiduciary duty, business interruption, busi- consumer product injuries, chemical fires and explo- analysis, royalty audits, strategic and market assess- ness dissolution, construction defects, delays, and sions, chemical labeling, chemical packaging, han- ments, computer forensics, electronic discovery, and cost overruns, fraud, insurance bad faith, intellectual dling and shipping, burns, warnings, labels, MSDSs, analysis of computerized data. Degrees/licenses: property (including trademark, patent, and copyright disposal, safety, EPA, OSHA, DOT, propane, natural CPAs, CFAs, ASAs, PhDs, and MBAs in accounting, infringement, and trade secrets), malpractice, marital gas, hydrogen, flammable liquids, hazardous chemi- finance, economics, and related subjects. See dis- dissolution, personal injury, product liability, real cals, aerosols (hairspray, spray paint, refrigerants). play ad on back cover. estate, securities, tax planning and preparation, IRS DOT certified (hazardous materials shipment). Certi- audit defense, tracing, unfair advertising, unfair com- fied fire and explosion investigator, OSHA process GLENN M. GELMAN & ASSOCIATES petition, valuation of businesses, and wrongful termi- hazard analysis team leader. PhD physical chemistry. CERTIFIED PUBLIC ACCOUNTANTS AND nation. See display ad on page 43. Extensive experience in metallurgy, corrosion, and BUSINESS ADVISERS failure analysis. 1940 East 17th Street, Santa Ana, CA 92705, FORENSIC ANALYSIS (714) 667-2600, fax (714) 667-2636, e-mail: rsquar THE MCMULLEN COMPANY, INC. @gmgcpa.com. Web site: www.gmgcpa.com. BRIAN LEWIS & COMPANY 1260 Lake Boulevard, Suite 226, Davis, CA 95616, Contact Richard M. Squar. Since 1983, our firm 10900 Wilshire Boulevard, Suite 610, Los Angeles, (888) 747-9857, fax (530) 757-1293, e-mail: tmc has specialized in delivering forensic accounting and CA 90024, (310) 475-5676, fax (310) 475-5268, @themcmullencompany.com. Web site: www litigation support services that give our clients an e-mail: [email protected]. Contact Brian .themcmullencompany.com. Contact James F. edge. We provide the quality and depth traditionally Lewis, CPA, CVA. Forensic accounting, business Mc-Mullen, California State Fire Marshal associated with Big Four firms with the personal valuations, cash spendable reports, estate, trust, and (retired). Senior associates available throughout attention and fee structure of a local firm. Our litiga- income tax services. California (including Los Angeles County). Fire/build- tion support services include forensic accounting, ing code analysis and development, construction investigative auditing, embezzlement and fraud, FORENSIC PATHOLOGY AND TOXICOLOGY defects, code compliance inspections, fire expert witness testimony, strategy development, origin/cause/spread investigation, fire services man- document discovery, deposition assistance, compu- BURR HARTMAN, DO, PHD agement/operations, fire safety-related product tation of damages, arbitration consulting, rebuttal BURR HARTMAN CONSULTING analysis/evaluation, and forensic expert testimony, fiduciary accountings, and trial exhibit Microcorre Dx Lab, 890 Cherry St, Tulare, CA preparation and reconstruction of accounting 93274, (559) 686 4000, fax (559) 686 9432, email: FOOD SAFETY/HACCP records. Our practice focuses on closely held entre- [email protected]. Contact Burr Hartman, preneurial firms in the following industries: construc- DO, PhD. Forensic pathologist with PhD in chem- FOOD SAFETY AND HACCP COMPLIANCE tion, real estate development, equipment leasing, istry. Board certified in anatomic, clinical and forensic auto parts (wholesale and retail), manufacturing, and 20938 De Mina Street, Woodland Hills, CA 91364, pathology. Practice provides services for Tulare professional services Glenn M. Gelman has been (818) 703-7147, e-mail: [email protected]. Web Regional Med Ctr, coroner’s pathology for three appointed and served as Special Master in litigation site: www.foodsafetycoach.com. Contact Jeff sheriff-coroner departments and consultation for support matters and has testified over 30 times. Our Nelken, BS, MA. Forensic food safety expert knowl- Mineral King Toxicology Laboratory. Broad-based comprehensive case list is available upon request. edgeable in both food safety, accident prevention scientific background and longstanding interest in See display ad on page 44. and hazard analysis critical control point program toxicology. Testified/deposed 100 times in last four development. Specializes in expert witness testimony years. Interested in technical and scientific issues and litigation consultant in matters regarding food GURSEY/SCHNEIDER LLP 1888 Century Park East, Suite 900, Los Angeles, encountered and not usually encountered in clinical safety, Q.A., standards of performance, HACCP, cri- practice. See display ad on page 51. sis management, food-borne illness, burns, foreign CA 90067, (310) 552-0960, fax (310) 557-3468, object, accidents, health department representation, e-mail: [email protected]. Web site: www.gursey.com. FRAUD INVESTIGATIONS food spoilage, allergy, and customer complaints. Contact Gary Krausz. Gursey|Schneider special- izes in forensic accounting and litigation support ser- Performs inspections, vendor audits, and training. CBIZ & MAYER HOFFMAN MCCANN PC Hands-on food safety consultant for restaurants, vices in the areas of civil litigation, business disputes, 10474 Santa Monica Boulevard, Suite 200, Los manufacturers, distributors, country clubs, schools, bankruptcy, damage and cost-profit insurance Angeles, CA 90025, (310) 268-2000, fax (310) 268- nursing homes, and casinos. NRA SERVSAFE certi- claims, court accountings, fraud investigations, 2001, e-mail: [email protected]. Contact Coral fied instructor. Thirty years of food and hospitality accounting malpractice, intellectual property, con- Hansen. Web site: www.MHM-PC.com, www experience. Registered as a food handler provider struction, government accounting, and entertainment .CBIZ.com. CBIZ & Mayer Hoffman McCann PC with the Los Angeles County Health Department. litigation. Gursey|Schneider has over 30 years of specializes in fraud investigations, forensic account- Provider # 015. Forensic food safety expert. Food experience as expert witnesses in accounting-related ing, business litigation, commercial damage and lost safety expert for CBS, NBC, Inside Edition, and matters. See display ad on page 47. profits computations, business valuation and CNN. Epidemiologist consultant available—UCLA RGL FORENSICS appraisal, transactional due diligence, family limited and LA County Health Dept. Free Consultation. Los Angeles Office: 800 South Figueroa Street, partnerships, business interruption, and family law. FORENSIC ACCOUNTING Suite 980, Los Angeles, CA 90017, (213) 996- We provide experienced expert testimony and tax 0900. Contact Alan Lurie, [email protected]. controversy representation. CORNERSTONE RESEARCH Orange County Office: 625 City Drive South, Suite 290, Orange, CA 92868, (714) 740-2100. Contact GEOLOG 633 West Fifth Street, 31st Floor, Los Angeles, CA Hank Kahrs, [email protected]. RGL Forensics is CONSULTING ENGINEERING 90071-2005, (213) 553-2500, fax (213) 553-2699. an international firm of forensic financial experts 4653 Carmel Mountain Road, Suite 308-258, Web site: www.cornerstone.com. Contact George exclusively dedicated to damage analysis, fraud San Diego, CA 92130, (858) 243-4438, e-mail: G. Strong, Jr., Richard W. Dalbeck, Katie J. investigation, and valuation. Serving the legal, insur- [email protected]. Consulting engineering, Galley, Elaine Harwood, Carlyn Irwin, Erin ance, and business communities for more than 30 geologist, analysis of the adverse effects of site McGlogan or Ashish Pradhan. For more than years, the firm is unique in its ability to combine preparation and geologic hazards on engineered twenty-five years, Cornerstone Research staff have investigative accounting, business valuation, fraud, structures including subcode grading, differential set- provided economic and financial analysis in all and forensic technology expertise. For attorneys, tlement, expansive soils, subsidence, mine and phases of commercial litigation and regulatory pro- we discover and define financial value in transac- quarry blasting, pile driving, earthquakes, liquefac- ceedings. We work with a broad network of testifying tions and civil and criminal disputes, and when nec- tion, surface fault rupture and causation of ground experts, including prominent faculty and industry essary provide expert witness testimony in court fractures and structure cracks. practitioners, in a distinctive collaboration. The and arbitration proceedings. For more information experts with whom we work bring the specialized

54 Los Angeles Lawyer November 2013 GEOTECHNICAL ENGINEERING

A & E FORENSICS 2121 Montiel Road, San Marcos, CA 92069, (877) 839-7302, fax (760) 480-7477, e-mail: steve Life Care @aeforensics.com. Web site: www.aeforensics .com. Steve Norris, AIA, PE, GE, HG, CEG, Planning CASp, LEED. Architect, engineer, contractor— standard of care expert. Retained over 200 times, deposed over 100 times, and testified in trial over 20 • LIFE CARE PLANS Comprehensive (Trial) – Mini (Mediation/ times. Waterproofing, water intrusion, building enve- Settlement Conference) – Critique lope, zoning setbacks, concrete performance, path • EXPERT TESTIMONY Trial – Arbitration – Mediation/Settlement of travel, structural analysis, earthquake-fire damage, and plan analysis. Landslides, retaining wall failure, JAN ROUGHAN, RN • VIDEO SERVICE Day in Life – Mediation/Settlement Documentary settlement, flooding, grading, septic, expansive soils, • MEDICAL RECORDS Review – Chronology mud flows, pavement distress, ground water evalua- www.linc.biz tion, and slope analysis. Cost estimates, construc- • IME Attendance Report/Critique tion management, delay analysis, and contracts. Serving all California, Hawaii, and Oklahoma. See 114 W. COLORADO BLVD., MONROVIA, CA 91016 | 626.303.6333 EXT. 16 OR 17 display ad on page 41. CONSTRUCTION DISPUTE RESOLUTION CONSULTANTS 312 Emerald Bay, Laguna Beach, CA 92651, (949) 300-2244, e-mail: [email protected]. Web site: www.constructionDRC.com. Contact Hanns U. Baumann, S.E. Expert construction Anita Rae Shapiro forensic consultation by licensed civil, structural, geotechnical/soil, engineering and licensed general SUPERIOR COURT COMMISSIONER, RET. contractor with many years of professional experi- ence in California. PRIVATE DISPUTE RESOLUTION GERIATRICS PROBATE, CIVIL, FAMILY LAW HAMPTON HEALTH, LTD ROBATE XPERT ITNESS JOHN H. FULLERTON, MD, MRO, CMD, CFP, P E W FACP, AGSF, FAAHPM 1700 California Street, Suite 470, San Francisco, TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 CA 94109, (415) 460-5532, fax (415) 459-2774, E-MAIL: [email protected] e-mail: [email protected]. Web site: http://adr-shapiro.com hamptonhealthltd.com. Contact Kate McElroy, PA-C. Services available: board certified in internal medicine, geriatrics, hospice, palliative medicine, addiction medicine, and home health; licensed med- ical review officer. Expertise: Medicare fraud cases for the government, toxicology/DUI, elder abuse including criminal defense of lay caregivers accused of homicide of demented relatives during end-of-life phase. Hospital, ambulatory/outpatient, PI, medical malpractice, and LTC. Medical/hospice director- I ships. Testified over 200 times and reviewed more EVALUATION than 1,000 cases in the last 13 years. See display ad on page 44. I TESTING HANDWRITING I SANDRA L. HOMEWOOD, FORENSIC TREATMENT DOCUMENT EXAMINER 1132 San Marino Drive, Suite 216, Lake San Marcos, CA 92078, (760) 931-2529, fax (760) 510- 8412, e-mail: [email protected]. Neurology and Contact Sandra L. Homewood. Highly skilled and experienced document examiner and expert witness Electromyography in many complex and high-profile civil and criminal cases with fully equipped document laboratory. Spe- cializing in handwriting and handprinting identifica- Neurotoxicology tion, handwriting of the elderly in financial elder abuse cases and will contests, and examination of altered medical and corporate records. Trained in Occupational/ government laboratory, including specialized training by the FBI and Secret Service. Former government Environmental experience includes document examiner for the San Diego Police Department crime lab, Arizona State Medicine crime lab, and San Diego County District Attorney’s office. Currently in private, criminal, and civil practice. HOSPICE/PALLIATIVE MEDICINE CA Medical Practice Since 2000 JONATHAN S. RUTCHIK, MD, MPH HAMPTON HEALTH, LTD JOHN H. FULLERTON, MD, MRO, CMD, CFP, FACP, AGSF, FAAHPM TEL 415.381.3133 | FAX 415.381.3131 | E-MAIL [email protected] 1700 California Street, Suite 470, San Francisco, CA 94109, (415) 460-5532, fax (415) 459-2774, e-mail: [email protected]. Web site: www.neoma.com hamptonhealthltd.com. Contact Kate McElroy, 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941 PA-C. Services available: board certified in internal medicine, geriatrics, hospice, palliative medicine, Offices in San Francisco, Richmond, Petaluma, Sacramento and Eureka/Arcata addiction medicine, and home health; licensed med- ical review officer. Expertise: Medicare fraud cases

Los Angeles Lawyer November 2013 55 for the government, toxicology/DUI, elder abuse including criminal defense of lay caregivers accused As an Expert Witness in Real Estate Litigation, Attorney of homicide of demented relatives during end-of-life phase. Hospital, ambulatory/outpatient, PI, medical LAWRENCE H. JACOBSON malpractice, and LTC. Medical/hospice director- has consistently been on the Winning Team ships. Testified over 200 times and reviewed more than 1,000 cases in the last 13 years. See display ad on page 44. • Real estate and • Lawyer malpractice in • Interpretation mortgage brokers’ ethics, business and real of real estate HUMAN FACTORS standard of care estate transactions documents ANALYTICA SYSTEMS INTERNATIONAL, INC. Practicing real estate law in California since 1968. Past President, Beverly Hills Bar Association. 9390 North Calle Buena Vista, Tucson, AZ 85704, Former Vice President-Legal Affairs, California Association of Realtors. California Real Estate Broker since 1978. (520) 882-5494, fax (520) 882-2067, e-mail: asi @asi-az.com. Web site: www.asi-az.com. Contact Gary M. Bakken, P.D, CPE; BSE—Mechanical LAWRENCE H. JACOBSON AB, UCLA 1964, JD UCLA SCHOOL OF LAW 1967 Engineering, MS—Safety, PhD—Industrial Engi- Tel 310.271.0747 Fax 310.271.0757 email [email protected] www.lawrencejacobson.com neering (Human factors/ergonomics/biome- chanics). We analyze, from an engineering perspec- LAW OFFICES: 9401 WILSHIRE BLVD. SUITE 1250, BEVERLY HILLS, CA 90212 tive, human cause and effect relationships for claimed personal injury incidents using human fac- tors, ergonomics, biomechanics, and safety princi- ples. Areas of personal injury and product liability expertise includes accident investigation and analysis regarding driver behavior involving cars, tractor- trailer, motorcycles, ATC-ATV, bicycles; falling objects, slips-trips-missteps-falls, occupational injuries, low-speed impacts, illumination, play- grounds, and warnings. HARRELL & ASSOCIATES 250 Pacific Avenue, Suite 407, Long Beach, CA 90802, (805) 549-7745, e-mail: [email protected]. Web site: www.kidsaccident.com. Contact W. A. Harrell. International reputation in human factors, accident analysis, children’s injuries/fatalities, defec- tive warnings, shopping carts, product liability, pedestrians, recreational products/facilities, drown- ings, negligent caretakers, testing medical devices, slips/falls, eyewitness problems, injuries/fatalities involving the elderly, analyses of labels, signage, manuals, age discrimination analyses, vehicle acci- dents, farming accidents and readability analyses. INSURANCE BOARD CERTIFIED ORTHOPEDIC SURGEON ADVISORS/EXPERTS @ MCS ASSOCIATES 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: [email protected]. Web site: www .mcsassociates.com. Contact Norman Katz, MARC J. FRIEDMAN, M.D. managing partner. Nationally recognized banking, 6815 Noble Avenue, Van Nuys, California 91405 finance, insurance, and real estate consulting group (established 1973). Experienced litigation consul- Tel. 818.901.6600 ext. 2810 ¥ Fax: 818.901.6685 ¥ Email: [email protected] tants/experts include senior bankers, lenders, con- sultants, economists, accountants, insurance under- Web Site: www.scoi.com writers/brokers. Specialties include: lending customs, practices, policies, in all types of lending (real estate, Education: Princeton University and Cornell Medical School subprime, business/commercial, construction, con- sumer/credit card), banking operations/administra- Certicate: Board Certified Orthopedic Surgeon tion, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, Memberships: coverages and bad faith, real estate brokerage, Fellowship Sports Medicine appraisal, escrow, and title insurance. Fellow American Academy of Orthopedic Surgeons Fellow in the Arthroscopy Association of North America E.L. EVANS ASSOCIATES Fellow in the International Arthroscopy Association 3310 Airport Avenue, Suite # 7, Santa Monica, CA 90405, (310) 559-4005, fax (310) 559-4236, e-mail: Fellow in the International Knee Society [email protected]. Contact Gene Evans. Fellow in the American Orthopedic Society of Sports Medicine Good faith/bad faith. Over 45 years’ experience— ACL Study Group claims adjuster. Standards and practices in the Certified QME, IME, AME industry, litigation support, claims consultation, case review and evaluation, property/casualty claims, con- Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of struction claims, uninsured/underinsured motorist claims, general liability, fire/water/mold claims, dam- the Knee and Shoulder, and Knee Replacement age assessment, professional liability claims, appraisal under policy, arbitration, , Appointments: Assistant Clinical Professor, Division of Orthopedics advertising claims, coverage applications, and sus- UCLA School of Medicine pected fraud claims. CV available on request. See World Cup Soccer Team Physician display ad on page 45. Physician Specialist XXIII Olympiad 1984 INSURANCE EXPERT NETWORK, LLC Orthopedic Consultant–New York Knicks and Jets 1978-1985 364 West Trenton Avenue, Suite 3, Morrisville, PA 19067, (215) 736-2980, fax (215) 736-2986, e-mail: Publications: 60 Publications including handbook for Orthopedic Surgeons [email protected]. Web site: on Prosthetic Ligament Reconstruction of the Knee www.insuranceexpertnetwork.com. Contact Douglas R. Emerick. Claims, underwriting, actuary, Presentations: Lectures extensively with over 375 presentations worldwide bad faith, captives, casualty, credit, directors and officers, excess and umbrella, general liability, fidelity, health, industry standards, inland marine, insurance

56 Los Angeles Lawyer November 2013 broker E&O, life, marine, misrepresentation, OCIP, both personal lines and commercial property insur- INTELLECTUAL PROPERTY professional liability, property, rescission, reinsur- ance claims. Has testified for insurers, insureds, and ance, surety, title, workers compensation and more. brokers. Practiced law in property insurance spe- CORNERSTONE RESEARCH Services available: The Insurance Expert Network, cialty since 1971. Also acts as Insurance Code 633 West Fifth Street, 31st Floor, Los Angeles, CA LLC is the premier provider of experts for insurance Section 2071 appraiser, adviser, and consultant. 90071-2005, (213) 553-2500, fax (213) 553-2699. litigation, arbitration, and mediation. IEN has Web site: www.cornerstone.com. Contact George processed and placed thousands of referrals all over RICHARD MASTERS INSURANCE SERVICES, INC. G. Strong, Jr., Richard W. Dalbeck, Katie J. the United States. Attorneys who have worked with Galley, Elaine Harwood, Carlyn Irwin, Erin IEN know that each request for referral is meticu- 35 West Main Street, #B170, Ventura, CA 93001, McGlogan or Ashish Pradhan. For more than lously reviewed by the IEN staff of insurance profes- (805) 377-2688, fax (805) 830-0432, e-mail: twenty-five years, Cornerstone Research staff have Contact Richard sionals. The experts IEN refers are all highly qualified, [email protected]. provided economic and financial analysis in all Masters. selected for their particular insurance expertise. For Forty-seven years of experience. Agent phases of commercial litigation and regulatory pro- further information call (215) 736-2980 or visit and broker standard of care. Claims handling, under- ceedings. We work with a broad network of testifying www.insuranceexpertnetwork.com. writing and claims, specialty lines, custom and prac- experts, including prominent faculty and industry tice of industry, certificate and additional insured LAUNIE ASSOCIATES, INC. practitioners, in a distinctive collaboration. The issues. experts with whom we work bring the specialized 2627 Tunnel Ridge Lane, Santa Barbara, CA 93105, ROBERT HUGHES ASSOCIATES, INC. expertise required to meet the demands of each (805) 569-9175, fax (805) 687-8597, e-mail: jlaunie assignment. Our areas of specialization include intel- Contact Joseph J. Launie, PhD, 508 Twilight Trail, #200, Richardson, TX 75080, @cox.net. lectual property, antitrust, securities, entertainment, CPCU, insurance professor, author, and consul- (972) 980-0088, fax (972) 233-1548, e-mail: real estate, financial institutions, and general busi- tant. [email protected]. Web site: www Over 30 years of experience as expert witness ness litigation. in state and federal courts. Coauthor of books and .roberthughes.com. Contact John Oakley. articles on underwriting, insurance company opera- Founded in 1979, RHA is an international insurance FULCRUM INQUIRY tions, and punitive damages. Consulting, expert wit- and risk management consulting company based in 888 South Figueroa Street, Suite 2000, Los ness on underwriting, company and agency opera- Dallas. Our consultants’ experience in the insurance Angeles, CA 90017, (213) 787-4100, fax (213) 891- tions, and bad faith. industry allows us to provide highly qualified expert 1300, e-mail: [email protected]. Web site: www witness and litigation support services. Our expertise .fulcrum.com. Contact David Nolte. Our profes- CLINTON E. MILLER, JD, BCFE includes property/casualty insurance, life/health INSURANCE BAD FAITH EXPERT sionals are experienced CPAs, MBAs, ASAs, CFAs, insurance, Lloyd’s, London Market Research, claims affiliated professors, and industry specialists. Our 502 Park Avenue, San Jose, CA 95110, (408) 279- handling, bad faith, decision analysis, agency man- analysis and research, combined with unique pre- 1034, fax (408) 279-3562, e-mail: [email protected]. agement and practices, insurance laws and regula- sentation techniques, have resulted in an unequaled Contact Clint Miller. Insurance expert regarding tions, statistical forecasting, insurance sales and record of successful court cases and client recover- claims, underwriting, agent and brokers errors and marketing practices, insurance archaeology and pol- ies. Our expertise encompasses damages analysis, omissions, coverage disputes, customs and prac- icy interpretation and analysis. lost profit studies, business and intangible asset val- tices, and bad faith. See display ad on page 51. BARRY ZALMA, ZALMA INSURANCE uations, appraisals, fraud investigations, troubled JANICE A. RAMSAY, ESQ CONSULTANTS company consultation, statistics, forensic economic analysis, royalty audits, strategic and market 5 Saros, Irvine, CA 92603, (949) 854-9375, 4441 Sepulveda Boulevard, Culver City, CA 90230, assessments, computer forensics, electronic dis- (949) 400-5040 (cell), fax (949) 854-0073, e-mail: (310) 390-4455, fax (310) 391-5614, e-mail: zalma covery, and analysis of computerized data. [email protected]. Contact Janice A. Ramsay, @zalma.com. Web site: www.zalma.com. Contact Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and Esq. Experienced in testifying in depositions and at Barry Zalma. Insurance bad faith, insurance claims MBAs in accounting, finance, economics, and bad-faith trials as an expert in the customs and handling, insurance coverage, insurance fraud and related subjects. See display ad on back cover. practices of the insurance industry in evaluating cov- consulting, internationally recognized expert, consul- erage and handling claims. Knowledgeable about tants and insurance author, arbitrator and blogger.

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

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Los Angeles Lawyer November 2013 57 WHITE, ZUCKERMAN, WARSAVSKY, Floor, Los Angeles, CA 90071, (213) 362-1000, fax HAMPTON HEALTH, LTD LUNA & HUNT (213) 362-1001, e-mail: robertrosen@rosen-law JOHN H. FULLERTON, MD, MRO, CMD, CFP, 15490 Ventura Boulevard, Suite 300, Sherman .com. Web site: www.rosen-law.com. Specializing in FACP, AGSF, FAAHPM Oaks, CA 91403, (818) 981-4226, fax (818) 981- securities law, federal securities law enforcement, 1700 California Street, Suite 470, San Francisco, 4278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614, securities arbitration, and international securities, CA 94109, (415) 460-5532, fax (415) 459-2774, (949) 219-9816, fax (949) 219-9095, e-mail: expert insider trading, NYSE, AMEX, FINRA, DOC discipli- e-mail: [email protected]. Web site: @wzwlh.com. Web site: www.wzwlh.com. Contact nary proceedings, broker-dealer, investment com- hamptonhealthltd.com. Contact Kate McElroy, Barbara Luna. 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58 Los Angeles Lawyer November 2013 board certified in both Neurology and Occupational [email protected]. Web site: www.neoma.com. and Environmental Medicine. He provides clinical Jonathan S. Rutchik, MD, MPH is a physician who is TASAmed Has evaluations and treatment, including electromyogra- board certified in both Neurology and Occupational phy, of individuals and populations with suspected and Environmental Medicine. He provides clinical Your Medical Expert. neurological illness secondary to workplace injuries evaluations and treatment, including electromyogra- or chemical exposure. Services include medical phy, of individuals and populations with suspected record and utilization review and consulting to indus- neurological illness secondary to workplace injuries trial, legal, government, pharmaceutical, and acade- or chemical exposure. Services include medical mic institutions on topics such as metals and sol- record and utilization review and consulting to indus- vents, pesticides, mold exposures, product liability, trial, legal, government, pharmaceutical, and acade- musicians’ injuries, and others. Offices in SF, Rich- mic institutions on topics such as metals and sol- mond, Petaluma, Sacramento, and Eureka/Arcata. vents, pesticides, mold exposures, product liability, See display ad on page 55. musicians’ injuries, and others. Offices in SF, Rich- mond, Petaluma, Sacramento, and Eureka/Arcata. , See display ad on page 55. SAN FRANCISCO 110 Lomita Drive, Mill Valley, CA 94941, (415) 465- MEDICAL COSMETIC SURGERY 3301, fax (415) 383-6919, e-mail: carmel6237 • Outstanding local and national Experts @comcast.net. Contact John Engstrom MD. 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Over 40 years on page 53. SPECIALIST IN: in physical therapy practice (acute, rehab and outpa- • Broker Duties; Standard of Care tient); certified electroneuromyographer, professor of MEDICAL LEGAL PT in DPT curriculum, peer review/ expert consultant • Disclosure Issues – Buyer/Seller and witness since 1978 (both defense and plaintiff). ROUGHAN & ASSOCIATES AT LINC, INC. • Agency Obligations Expertise/research: musculoskeletal, neuromuscular, 114 West Colorado Boulevard, Monrovia, CA 91016, • Real Estate Malpractice peripheral and central nervous system disorders (626) 303-6333, fax (626) 303-8080, e-mail: janr • Mortgage Brokerage Law (CVA, TBI, SCI, CP, MS, peripheral neuropathy), and @linc.biz. Contact Jan Roughan at ext. 16. Spe- • Residential & Commercial Transactions clinical applications of electrical stimulation. cialties: Roughan and Associates at LINC is a case management and medical/legal consulting firm. 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Experienced with PEDIATRIC EXPERT WITNESS Testing and Research Labs, 2528 West Woodland automotive, bicycles, tires, fire, paint, plumbing, cor- Drive, Anaheim, CA 92801-2636, (714) 527-7100, rosion, and structural failures. We work on both MICHAEL WEINRAUB, MD, FAAP fax (714) 527-7169, e-mail: [email protected]. Web plaintiff and defendant cases. Complete in-house 515 South Flower Street, Suite 3600, Los Angeles, site: www.karslab.com. Contact Dr. Ramesh Kar, capabilities for tests. Extensive deposition and court- CA 90071, (213) 236-3662, fax (213) 236-3663, Dr. Naresh Kar, Dr. Nikhil Kar. Southern Californi- room experience (civil and criminal investigations). e-mail: [email protected]. Web site: www a’s premier aterials/mechanical/metallurgical/ Principals are fellows of American Society for Metals .michaelweinraubmd.com. Experience in general structural/forensics laboratory. Registered profes- and board-certified diplomates, American Board of pediatrics applied to your legal questions. Contact sional engineers with 30-plus years in metallurgical/ Forensic Examiners. See display ad on page 61. Dr. Michael Weinraub. Board Certified Pediatrician. forensic/structural failure analysis. Experienced with Child abuse and neglect, Munchausen syndrome by automotive, bicycles, tires, fire, paint, plumbing, cor- METEOROLOGY proxy, shaken baby syndrome (SBS), lead poisoning, rosion, and structural failures. We work on both fetal alcohol spectrum disorder (FASD), pediatric plaintiff and defendant cases. Complete in-house AIR, WEATHER, AND SEA CONDITIONS, INC. malpractice, childhood injury and product liability, capabilities for tests. Extensive deposition and court- P.O. Box 512, Pacific Palisades, CA 90272, (818) developmental disabilities (autism), healthcare of fos- room experience (civil and criminal investigations). 645-8632, fax (310) 454-7569, e-mail: AirWeather ter children, and adoption/custody evaluation for Principals are fellows of American Society for Metals @aol.com. Web site: www.weatherman.org. Con- health supervision concerns. and board-certified diplomates, American Board of Forensic Examiners. See display ad on page 61.

60 Los Angeles Lawyer November 2013 PLUMBING

4X FORENSIC ENGINEERING LABORATORIES, INC. Do You Have A Case 5262 Oceanus Drive, Huntington Beach, CA 92649, (714) 450-8500, fax (714) 450-8599, e-mail: [email protected]. Web Site: www Involving Dogs? .4Xforensic.com. Contact Phil Van Herle. 4X Forensic Engineering Laboratories is a full-service forensic engineering laboratory. We provide expert • dog bites • service dogs witness and analytical and testing services in the fol- • evaluations • behavior Specializing in lowing areas: fires and explosions: electrical and gas Rottweilers and product defect investigations, thermal and fire mod- • animal cruelty • aggression eling and laboratory testing, water loss: materials, Pit Bulls corrosion and failure analysis of plumbing products, failure analysis: metallurgy, product testing, and — CASE REVIEW, CONSULTATION, TESTIMONY — computerized stress analysis. Accident reconstruc- Jill Kessler• Dog Expert | 310-573-9615 | e-mail: [email protected] tion: automotive, trucks, construction equipment, and premises liability. www.jillkessler.com MEP CONSULTING & MORE, LLC 5430 Trabuco Road, Suite 100, Irvine, CA 92620, (949) 246-2741, fax (949) 364-6385, e-mail: jflynn @mepcam.com. Web site: www.mepcam.com. Contact John Flynn, principal. Consulting and Keith Kajiya forensics for plumbing, mechanical (heating, ventilat- 213-996-2598 ing, A/C) and electrical (power, lighting), energy sys- [email protected] tems, residential and commercial buildings, con- struction defect, cost to repair, construction and development claims; delay analysis; licensed P.E.s. URS is the nation’s largest engineering, consulting and construction Experienced testifiers. services firm. URS specializes in the resolution of construction disputes. PODIATRY—FOOT SPECIALIST Dispute Resolution & Forensic Analysis Technical Expertise STEVEN L. ROSENBERG, DPM Design/Construction Claims Architecture 2901 Wilshire Boulevard, Suite 110, Santa Environmental Claims Engineering Monica, CA 90403, (310) 828-3336, fax (310) 828- Bid/Cost/Damage Analysis Scheduling 0096, e-mail: [email protected]. Web site: www Construction Defect Analysis Construction Management .rosenbergstevendpm.com. Expert witness, plaintiff Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing and defense, IME, podiatric surgery, medicine, Expert Witness Testimony Environmental sports medicine, trauma injuries and pain manage- Insurance/Bond Claims Geotechnical ment. Second opinion reports, x-ray review, and evaluations. Treating all ages, infants, children and adults. Over 29 years of experience. POLYGRAPH

JACK TRIMARCO & ASSOCIATES POLYGRAPH INC. 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, THE BEST LEGAL MINDS CA 90212, (310) 247-2637, e-mail: jtrimarco@aol .com. Web site: www.jacktrimarco.com. Contact IN THE COUNTRY Jack Trimarco. Former manager of the Federal Bureau of Investigation’s polygraph program in Los Angeles. Former Inspector General Polygraph Pro- TALK TO US gram—Department of Energy. Nationally known and respected polygraph expert. I have the credentials you would want when you have a client polygraphed, a case reviewed, or a motion made regarding poly- ¥Metallurgical Failures ¥ Bio-Medical/Orthopedic graph. My unique background allows me to bring the Implants highest levels of service and expertise to any poly- ¥Corrosion & Welding Failures graph situation. Current member of the Ethics Com- ¥ Plumbing/Piping/ABS Failures mittee, California Association of Polygraph Examiners ¥Glass & Ceramic Failures (CAPE). Hundreds of appearances on national TV, ¥Chairs/Ladders / Tires ¥ Complete In-House Laboratory including Dr. Phil, Oprah, Greta, Nancy Grace, Testing & Analysis Facilities O’Reilly Factor, and Hannity and Colmes. Degrees/ ¥Automobile /Aerospace licenses: BS Psychology, Certified APA, AAPP, ¥ Expert Witnesses/Jury Verdicts CAPE, AAFE. See display ad on page 5. Accident Investigations ¥ Plastics, Composites, ¥ Licensed Professional Engineers PROBATE LAW Fiberglass Failures ¥ Materials & Mechanical Testing HONORABLE ANITA RAE SHAPIRO Superior Court commissioner (Retired), P.O. Box Contact: Dr. Naresh Kar, Fellow ASM, Fellow ACFE 1508, Brea, CA 92822-1508, e-mail: privatejudge @adr-shapiro.com. Web site: http://adr-shapiro Dr. Ramesh Kar, Fellow ASM, Fellow ACFE .com. Retired Los Angeles Superior Court commis- sioner (15 years) available to serve as a probate Dr. Nikhil Kar expert witness in cases involving wills and trust issues. Presided in Long Beach Probate Department five years. See display ad on page 55. ADVANCED MATERIALS, INC. PSYCHIATRY Testing & Research Labs MARIA T. LYMBERIS, MD, INC. 2528 WEST WOODLAND DRIVE, ANAHEIM, CA 92801 1500 Avenue, Suite 201, Santa Monica, CA 90403, (310) 451-3152, fax (310) 310-2620, e-mail: I TEL (714) 527-7100 I FAX (714) 527-7169 [email protected]. Web site: www.lymberis.com. I www.karslab.com I E-MAIL [email protected] Contact Maria T. Lymberis, MD. Clinical Professor of Psychiatry, UCLA School of Medicine. Board Certified

Los Angeles Lawyer November 2013 61 in adult, child/adolescent psychiatry, expert consultant Diego Police Department crime lab, Arizona State research, forensic title, title engineering, oil, gas, min- Medical Board of California, forensic expert for psychi- crime lab and San Diego County District Attorney’s eral and geothermal consulting, wind and solar land atric malpractice, sexual harassment, posttraumatic office. Currently in private, criminal, and civil practice. consulting, regulatory/permit compliance, subdivi- stress cases, and divorce/child custody and psychiatric sions, right-of-way consulting, water rights, autoCAD evaluations for: fitness for duty and competency to REAL ESTATE map drafting. Petru Corporation has provided its ser- stand trial. vices on multimillion-dollar projects and matters ADVISORS/EXPERTS @ MCS ASSOCIATES involving court litigation. PSYCHIATRY/PSYCHOLOGY 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: REAL ESTATE VALUATION BRIAN P. JACKS, MD [email protected]. Web site: www .mcsassociates.com. Contact Norman Katz, ACCRUED FINANCIAL SERVICES, INC. 9730 Wilshire Boulevard, Suite 108, Beverly Hills, managing partner. Nationally recognized banking, 2901 Pacific Coast Highway, 2nd Floor, Signal Hill, CA 90212, (310) 274-0684, e-mail: [email protected]. finance, insurance, and real estate consulting group CA 90755, (562) 983-6700, fax (562) 983-1622, Contact Patricia Valenzuela. Clinical Professor of (established 1973). Experienced litigation consul- e-mail: [email protected]. Web site: www Psychiatry USC. Over 25 years of trial experience in tants/experts include senior bankers, lenders, con- .markmalantherealestateman.com. Contact Mark child sex abuse, workers’ compensation, personal sultants, economists, accountants, insurance under- S. Malan, MAI, SRA, MBA. Trusts, estates, pro- injury, malpractice, PTSD, psychopharmacology, sex writers/brokers. Specialties include: lending customs, bates, divorce, commercial and residential. Mark S. harassment, bullying, discrimination, child custody, practices, policies, in all types of lending (real estate, Malan, MAI has been servicing Southern California neuropsychiatry and (head injury). Board Certified: subprime, business/commercial, construction, con- with current, prospective, and historic values for over adult, 1974, child-adolescent, 1976. sumer/credit card), banking operations/administra- 25 years. Expert witness testimony has been honed PSYCHOLOGY tion, trusts and investments, economic analysis and by 15 years as a college instructor that allows as valuations/damages assessment, insurance claims, easy and credible way to inform the trier-of-fact FORENSIC EXPERT coverages and bad faith, real estate brokerage, about the issues of the matter at hand. Additional STEFANIE STOLINSKY, PHD appraisal, escrow, and title insurance. experience as a general contract and real estate investor has added credible evidence in cases of 9300 Wilshire Boulevard, Suite 320, Beverly Hills, LAWRENCE H. JACOBSON, ESQ. CA 90212, (310) 788-3436, e-mail: stefstol diminution in case of undisclosed defects and sev- 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, @prodigy.net. Web site: www.act-it-out.com. eral types of construction losses. CA 90212, (310) 271-0747, fax (310) 271-0757, Contact Stefanie Stolinsky, PhD. Specialties: e-mail: [email protected]. Web site: www Adults sexually, physically, emotionally abused as RECEIVER .lawrencejacobson.com. Expert witness: lawyer children; PTSD; depression; trauma. Dr. Stolinsky malpractice in business and real estate transactions, has a private practice in Beverly Hills in addition to SALTZBURG, RAY & WEISSMAN, LLP standard of care for real estate brokers and mort- her work on television and her numerous published 12121 Wilshire Boulevard, Suite 600, Los Angeles, gage brokers, and real estate document custom and works. She is a recognized expert in the fields of CA 90025, (310) 481-6780, fax (310) 481-6707, usage. Practicing real estate and business law in family relations, child abuse, and PTSD. Born and e-mail: [email protected]. Web site: California since 1968. See display ad on page 59. raised in San Francisco, California, she is a graduate www.srblaw.com. Contact Richard Weissman, of UCLA and USC in psychology. Dr. Stolinsky has ALAN D. WALLACE, ESQ. Esq. Specializes in handling complex receivership matters, such as partnership and corporate dissolu- also been a lecturer at the California Graduate 14011 Ventura Boulevard, Suite 406, Sherman School in forensics, neuropsychology, and play ther- tions, including law firm dissolutions, and govern- Oaks, CA 91423, (818) 501-0133, fax (818) 905- ment enforcement receivership actions, including apy. She is the author of Act It Out: 25 Acting Exer- 6091, e-mail: [email protected]. Contact cises to Heal from Childhood Abuse, which is in its actions brought by the California Department of Cor- Alan D. Wallace, Esq. Expert witness and litigation porations, Department of Real Estate, Commodities second edition from Praeclarus Press. She also has consulting for general real estate matters, including been referenced in Jane Velez-Mitchell’s book, I Future Trading Commission, and Federal Trade law, custom and practice, agency, disclosure, broker Commission. Nationally recognized in both the Want. Dr. Stolinsky is regularly called on by a num- malpractice, standards of care for brokers, buyers ber of lawyers, as well as television and radio pro- lender and litigation communities as qualified to and sellers. Broker and attorney. Involved as broker assist in complicated and commercially sophisticated grams to serve as an adviser on various psychologi- in more than 7,500 real estate transactions. Depart- cal issues. liquidations, reorganizations, and ongoing business ment of Real Estate master instructor and author, operations. See display ad on page 51. PSYCHOLOGY/PSYCHOLOGICAL Adjunct Professor Loyola Law School, former CAR Hotline attorney, University Law Professor in real RETALIATION ASSESSMENT estate. Successfully testified in dozens of cases. See display ad on page 56. BRIGHT MINDS HAIGHT CONSULTING JUDY HO, PHD, ABPP WARONZOF ASSOCIATES, INC. 1726 Palisades Drive, Pacific Palisades, CA 90272, 12011 San Vicente Boulevard, Suite 402, Los Angeles, 999 North Sepulveda Boulevard, Suite 440, El (310) 454-2988, fax (310) 454-4516. Contact CA 90049, (310) 745-8887, e-mail: drjudyho@gmail Segundo, CA 90245, (310) 322-7744, fax (310) Marcia Haight, SPHR—CA. Human resources .com. Web site: www.drjudyho.com. Dr. Ho provides 322-7755. Web site: www.waronzof.com. Contact expert knowledgeable in both federal and California forensic evaluations used in legal settings to document a Timothy R. Lowe, MAI, CRE. Waronzof provides law. Twenty-five years’ corporate human resources wide variety of psychologically relevant information, real estate and land use litigation support services management experience plus over 20 years as a Human Resources Compliance Consultant in Califor- including personal injury, work-related emotional injury, including economic damages, lost profits, financial nia. Specializations include sexual harassment, worker’s compensation, fitness for duty for high-stress feasibility, lease dispute, property value, enterprise ADA/disability discrimination, other Title VII and jobs, child custody, the capacity to adequately parent a value, partnership interest and closely-held share FEHA discrimination and harassment, retaliation, minor child, evaluation of malingering and deception, value, fair compensation, lender liability, and reorga- FMLA/CFRA, safety, and wrongful termination. employment discrimination and harassment, and profes- nization plan feasibility. Professional staff of five with advanced degrees and training in real estate, Courtroom testimony and deposition experience. sional licensing disputes. She provides expert testimony Retained 60 percent by defense, 40 percent by regarding psychological testing methods, results, and finance, urban planning, and accounting. See display ad on page 59. plaintiff. Audit employer’s actions in preventing and conclusions. Dr. Ho has a specialty board certification resolving discrimination, harassment, and retaliation through ABPP, has published empirical studies and REAL ESTATE APPRAISAL issues. Assess human resources policies and prac- book chapters, provides clinical consultations, and is a tices for soundness, for comparison to prevailing tenure-track faculty member at Pepperdine University CURTIS-ROSENTHAL, INC. practices, and for compliance. Evaluate employer Graduate School of Psychology. responsiveness to complaints and effectiveness of 5959 West Century Boulevard, Suite 1010, Los employer investigations. Assist counsel via prelimi- Angeles, CA 90045, (310) 215-0482, fax (310) 215- nary case analysis, discovery strategy, examination QUESTIONED DOCUMENTS 3089, e-mail: [email protected]. Web of documents, and expert testimony. site: www.curtisrosenthal.com. Contact David SANDRA L. HOMEWOOD, FORENSIC Rosenthal, MAI, FRICS, or Dawn Olson, MRICS. ROOFING AND WATERPROOFING DOCUMENT EXAMINER Appraisal of commercial real estate for estate plan- 1132 San Marino Drive, Suite 216, Lake San ning, eminent domain, bankruptcy, divorce, and gen- KGA, INC. Marcos, CA 92078, (760) 931-2529, fax (760) 510- eral litigation. Accepted in local, state, and federal 8412, e-mail: [email protected]. courts. 1409 Glenneyre Street, Suite A, Laguna Beach, CA Contact Sandra L. Homewood. Highly skilled and 92651, (949) 497-6000, fax (949) 494-4893, e-mail: experienced document examiner and expert witness REAL ESTATE TITLE CONSULTING [email protected]. Web site: www.kgainc.com. in many complex and high-profile civil and criminal Contact Kurt Grosz. Construction and environmen- cases with fully equipped document laboratory. Spe- PETRU CORPORATION tal consultants since 1991. Licensed engineers and contractors. ICC building, plumbing, mechanical, cializing in handwriting and handprinting identifica- 250 Hallock Drive, Suite 100, Santa Paula, CA concrete and accessibility inspectors. Certified pro- tion, handwriting of the elderly in financial elder 93060, (805) 933-1389, fax (805) 933-1380, e-mail: fessional estimators. Trial experts, arbitrators, and abuse cases and will contests, and examination of [email protected]. Web site: www insurance appraisers. altered medical and corporate records. Trained in .PetruCorporation.com. Contact Tim Truwe. Incor- government laboratory, including specialized training porated in 1986, Petru Corporation is a full service by the FBI and Secret Service. Former government land consulting company including: title searching/ experience includes document examiner for the San

62 Los Angeles Lawyer November 2013 SAFETY nia. Specializations include sexual harassment, professor, consultant, industrial research. Seventy- ADA/disability discrimination, other Title VII and five plus publications. SCS ENGINEERS FEHA discrimination and harassment, retaliation, 3900 Kilroy Airport Way, Suite 100, Long Beach, FMLA/CFRA, safety, and wrongful termination. TRAFFIC ENGINEERING CA 90806, (562) 426-9544, fax (562) 427-0805, Courtroom testimony and deposition experience. e-mail: [email protected]. Web site: www Retained 60 percent by defense, 40 percent by WILLIAM KUNZMAN, PE .scsengineers.com. Contact Julio Nuno, VP. SCS plaintiff. Audit employer’s actions in preventing and 1111 Town and Country #34, Orange, CA 92868, provides expert witness services related to environ- resolving discrimination, harassment, and retaliation (714) 973-8383, fax (714) 973-8821, e-mail: bill ment studies and engineering, water resources, solid issues. Assess human resources policies and prac- @traffic-engineer.com. Web site: www.traffic waste and air quality and industrial hygiene and tices for soundness, for comparison to prevailing -engineer.com. Contact William Kunzman, PE. safety services. We are a 43-year old consulting firm practices, and for compliance. Evaluate employer Traffic expert witness since 1979, both defense and with 66 offices across the US and over 800 employ- responsiveness to complaints and effectiveness of plaintiff. Auto, pedestrian, bicycle, and motorcycle ees. Our Long Beach office has more than 30 pro- employer investigations. Assist counsel via prelimi- accidents. Largest plaintiff verdicts: 1) $12,200,000 fessional engineers, scientists, and subject matter nary case analysis, discovery strategy, examination in pedestrian accident case against Caltrans, 2) experts available on short notice to serve asbestos, of documents, and expert testimony. $10,300,000 in case against Los Angeles Unified School District. Largest settlement: $2,000,000 solo lead-based paint, and other specialty areas requiring HRM CONSULTING, INC. expert witness services. vehicle accident case against Caltrans. Best defense 1700 North First Street, Suite 120, San Jose, verdict: $0 while defending Caltrans and opposition SECURITIES CA 95112, (209) 728-8905, fax (209) 728-8970, sought $16,000,000. Before becoming expert wit- e-mail: [email protected]. Web site: ness, employed by Los Angeles County Road CORNERSTONE RESEARCH www.hrmconsulting.com. Contact Beth B. De Department, Riverside County Road Department, Lima, SPHR-CA. Expert witness Beth De Lima, has 633 West Fifth Street, 31st Floor, Los Angeles, CA city of Irvine, and Federal Highway Administration. testified for both plaintiff and defense in the following Knowledge of governmental agency procedures, 90071-2005, (213) 553-2500, fax (213) 553-2699. areas: human resources standards of care, employ- Web site: www.cornerstone.com. Contact George design, geometrics, signs, traffic controls, mainte- ment ADA accommodation, FEHA, FMLA, CFRA, nance, and pedestrian protection barriers. Hundreds G. Strong, Jr., Richard W. Dalbeck, Katie J. ADA & EEOC violations. Wrongful termination, per- Galley, Elaine Harwood, Carlyn Irwin, Erin of cases. Undergraduate work—UCLA, graduate formance management, discrimination, sexual work—Yale University. McGlogan or Ashish Pradhan.For more than harassment, exempt analysis, labor market assess- twenty-five years, Cornerstone Research staff have ment, and vocational evaluations. She holds national TRANSACTIONAL DUE DILIGENCE provided economic and financial analysis in all and California specific certification—Senior Profes- phases of commercial litigation and regulatory pro- sional in Human Resource (SPHR-CA), certified CBIZ & MAYER HOFFMAN MCCANN PC ceedings. mediator, and consulting since 1992. We work with a broad network of testifying experts, 10474 Santa Monica Boulevard, Suite 200, Los including prominent faculty and industry practition- TITLE SEARCHING/REPORTS Angeles, CA 90025, (310) 268-2000, fax (310) 268- ers, in a distinctive collaboration. The experts with 2001, e-mail: [email protected]. Contact Coral Hansen. Web site: www.MHM-PC.com, www whom we work bring the specialized expertise PETRU CORPORATION required to meet the demands of each assignment. .CBIZ.com. CBIZ & Mayer Hoffman McCann PC Our areas of specialization include intellectual prop- 250 Hallock Drive, Suite 100, Santa Paula, CA specializes in fraud investigations, forensic account- erty, antitrust, securities, entertainment, real estate, 93060, (805) 933-1389, fax (805) 933-1380, e-mail: ing, business litigation, commercial damage and lost financial institutions, and general business litigation. [email protected]. Web site: www profits computations, business valuation and .PetruCorporation.com. Contact Tim Truwe. Incor- appraisal, transactional due diligence, family limited MARKET CONSULTING CORPORATION porated in 1986, Petru Corporation is a full service partnerships, business interruption, and family law. (213) 627-0440, (888) 397-9867, e-mail: info land consulting company including title searching/ We provide experienced expert testimony and tax @market-consulting.com. Web site: www.market research, forensic title, title engineering, oil, gas, min- controversy representation. -consulting.com. Contact Dr. Ronald W. Cornew. eral and geothermal consulting, wind and solar land Twenty plus years as consultants in investment and consulting, regulatory/permit compliance, subdivi- WASTEWATER trading litigation. Asset management, pension invest- sions, right-of-way consulting, water rights, autoCAD ments, securities and futures tax matters including map drafting. Petru Corporation has provided its ser- JOHN SHAW CONSULTING, LLC vices on multimillion-dollar projects and matters IRS examinations, appeals, U.S. Tax Court appear- Tel: (530) 550-1576, e-mail: [email protected]. involving court litigation. ances. Broker/customer disputes: stocks and Website: www.shaweng.com. Contact John Shaw, bonds, options, commodity futures, currency trad- PE. Water/wastewater/sewer industry—unique com- ing, derivatives including swaps, limited partnerships, TOXICOLOGY bination of operations and engineering background. hedge funds, managed futures. Consultants to Sanitary engineering including water (potable) and NYSE, Options Clearing Corporation, CBOT, CME, HAMPTON HEALTH, LTD wastewater (industrial and domestic) treatment, con- COMEX, TIAA/CREF, banks, other major clients. JOHN H. FULLERTON, MD, MRO, CMD, CFP, veyance, hydraulics, storage, reuse, master planning, Arbitrator NASD (now FINRA), NYSE, AAA, NFA, FACP, AGSF, FAAHPM operations, maintenance, and expert witness and mediator with NASD (now FIRNA) training. Member: 1700 California Street, Suite 470, San Francisco, forensic (mode of failure and standard of care analy- Compliance and Legal Division, Securities Industry CA 94109, (415) 460-5532, fax (415) 459-2774, sis, engineering analysis, product suitability and con- Association. e-mail: [email protected]. Web site: struction defect issues). Wastewater treatment hamptonhealthltd.com. Contact Kate McElroy, plants, disposal/reuse facilities, sewage lift station ROBERT C. ROSEN PA-C. Services available: board certified in internal design, sewer collection systems, and sludge treat- Citigroup Center, 444 South Flower Street, 30th medicine, geriatrics, hospice, palliative medicine, ment. Water treatment plants, pipelines, and swim- Floor, Los Angeles, CA 90071, (213) 362-1000, addiction medicine, and home health; licensed med- ming pools. fax (213) 362-1001, e-mail: robertrosen@rosen-law ical review officer. Expertise: Medicare fraud cases .com. Web site: www.rosen-law.com. Specializing in for the government, toxicology/DUI, elder abuse WRONGFUL TERMINATION securities law, federal securities law enforcement, including criminal defense of lay caregivers accused securities arbitration, and international securities, of homicide of demented relatives during end-of-life HAIGHT CONSULTING phase. Hospital, ambulatory/outpatient, PI, medical insider trading, NYSE, AMEX, FINRA, DOC discipli- 1726 Palisades Drive, Pacific Palisades, CA 90272, malpractice, and LTC. Medical/hospice director- nary proceedings, broker-dealer, investment com- (310) 454-2988, fax (310) 454-4516. Contact ships. Testified over 200 times and reviewed more pany and investment adviser matters, liability under Marcia Haight, SPHR—CA. Human resources than 1,000 cases in the last 13 years. See display ad federal and state securities laws, public and private expert knowledgeable in both federal and California on page 44. offerings, Internet securities, and law firm liability. AV law. Twenty-five years’ corporate human resources rated. Former chair, LACBA Business and Corpora- PRINCETON-SOMERSET GROUP, INC. management experience plus over 20 years as a tions Law Section. LLM, Harvard Law School. Forty Human Resources Compliance Consultant in Cali- years practicing securities law, 12 years with the 4 Carroll Drive, Hillsborough, NJ 08844, (800) 597- 8836, (908) 369-6890, fax (908) 369-6881. Web site: fornia. Specializations include sexual harassment, U.S. Securities and Exchange Commission, Wash- ADA/disability discrimination, other Title VII and ington, DC. Published author/editor of securities reg- www.PrincetonSomerset.com. Contact Dr. Dennis Stainken. Expert witness, toxicology, health issues, FEHA discrimination and harassment, retaliation, ulations, including multivolume treatises. See dis- FMLA/CFRA, safety, and wrongful termination. play ad on page 53. chemical exposure, mold issues, worker exposure, contamination issues, causation assessment, prop- Courtroom testimony and deposition experience. SEXUAL HARASSMENT/DISCRIMINATION erty damage/contamination and remediation, Retained 60 percent by defense, 40 percent by sewage, gasoline and oil issues and age determina- plaintiff. Audit employer’s actions in preventing and tion, petroleum releases, chemicals/products, risk resolving discrimination, harassment, and retaliation HAIGHT CONSULTING issues. Assess human resources policies and prac- 1726 Palisades Drive, Pacific Palisades, CA 90272, assessment, indoor air quality/health effects, toxic tort evaluation, chemistry, site assessment, regula- tices for soundness, for comparison to prevailing (310) 454-2988, fax (310) 454-4516. Contact practices, and for compliance. Evaluate employer Marcia Haight, SPHR—CA. Human resources tory issues, environmental toxicology, environmental issues, and wetland/ecological. Services nationwide. responsiveness to complaints and effectiveness of expert knowledgeable in both federal and California employer investigations. Assist counsel via prelimi- law. Twenty-five years’ corporate human resources Thirty-plus years of industrial and government experi- ence in pollution under NPDES, CERCLA, RCRA, nary case analysis, discovery strategy, examination management experience plus over 20 years as a of documents, and expert testimony. Human Resources Compliance Consultant in Califor- SDWA and CWA. Former federal and state regulator,

Los Angeles Lawyer November 2013 63 computer counselor BY HEATHER E. STERN

How to Use an iPad to Manage and Present Trial Exhibits

IN ONE FORM OR ANOTHER, technology has permeated and improved out the nuisance of repeated mouse clicks. Further, thanks to its virtually every aspect of both my personal and my professional life. flash memory and efficient operating system, the iPad has the bene- Until recently, however, I had not yet had an opportunity to experi- fit of being always on, so it is ready to use in the blink of an eye. ence what happens when technology does the same with trial practice. Compare that to the multiminute boot-up we are all accustomed to In a recent case, opposing counsel hired a trial presentation ven- with the PC. Even launching apps on the iPad typically happens in dor. If you are thinking Elmo, which I did when opposing counsel first mere seconds instead of the tortoiselike launch of its counterparts. proposed the idea, you can imagine my surprise when I found out that While, at times, the display on the monitors lagged, my under- the vendor would be bringing 10 computer monitors into the con- standing is that the lag is a function not of the application but instead ference room where the matter was being heard—one for the judge, of the connection, which in my case was VGA rather than HDMI. another for the witness, and the six lawyers in the room would share Neither the app nor the iPad ever crashed or had any fatal errors dur- the rest. For what purpose? All the trial exhibits— and there were over 2,000—had been imaged I could zoom in on all or part of the document, highlight, and loaded into a software program on oppos- ing counsel’s laptop computer. Whenever he wanted to examine a witness about a particu- underline, or circle parts of it, create a cutout that popped out of lar document, his associate would call up the document on the laptop and it instantaneously appeared on the monitors in front of everyone. the screen at the viewer, or even use my finger to create a laser Then, at his direction, she would manipulate the exhibit—highlighting key language, blow- ing up small but critical text, or electronically pointer on the screen to direct the viewer’s attention. displaying the exhibit next to another for com- parison—so as to complement and emphasize the lawyer’s examination of the witness. Contrary to my expectations, it was not distracting. Instead, it was ing trial, unlike opposing counsel’s Windows-based laptop. In the rare effective and sped the examination along smoothly. event of a crash, relaunching the app and returning to where you left So, of course, I had to master this technique myself. Opposing coun- off takes seconds, in contrast to the cumbersome, time-consuming, sel was using Trial Director software on a Windows-based laptop, but, and therefore frustrating crashes experienced on a laptop. In my after some quick research, I decided to try an application called experience, iPad app crashes, besides being rare, are less likely to result TrialPad for the iPad (version 3.0.11). It worked like a charm. So, here in data loss than is the case with a laptop. I also appreciated the light- is what you need to know. weight nature of the iPad when I was carrying it to and from trial along Capabilities. As far as I could tell, the TrialPad app had virtually with several heavy boxes. the same capabilities as the competing software used by opposing coun- Cost. The application costs only $89.99. In addition, we used an sel. For any given exhibit, I could zoom in on all or part of the doc- iPad 4 with 128 gigabytes of memory and a VGA adapter that also ument, highlight, underline, or circle parts of it, create a cutout that contained a power cable input, so the device could be simultaneously popped out of the screen at the viewer, or even use my finger to cre- plugged in for power and connected to the monitors. The vendor ate a laser pointer on the screen to direct the viewer’s attention. I could charged the parties a collective total of $1,000 per week for the set- also display two different exhibits side by side. up, rental, and takedown of the 10 computer monitors. Display Flexibility. My vendor’s setup tethered the iPad to the mon- Dependency on Internet Connection. There are other iPad trial apps itors with a cable. This was not problematic for us, but it may pose in which the trial exhibits are stored in the cloud and accessed and logistical issues depending upon the room configuration. If tethering displayed via an Internet connection to that cloud-based database. I is a problem, it may be possible to attain greater flexibility by utiliz- was reluctant to use those applications because I was told that the Wi- ing an Apple TV and a Wi-Fi network to take advantage of the Fi Internet connection at my trial’s location was not reliable. With iPad’s native wireless display capabilities. The Apple TV serves as an TrialPad for iPad, in contrast, the trial exhibits are loaded onto the intermediary between the iPad and the display by routing the data in iPad itself and accessed and displayed in the application without the real time over the Wi-Fi network. With this alternate setup, you can need for an Internet connection. Thus, the location’s unreliable con- move about the room while manipulating documents live on screen. Ease of Use. The functions were easy and intuitive to use—just like Heather E. Stern is a partner with the law firm of Kralik & Jacobs LLP, where the iPhone or iPad in general—all at the touch of a finger and with- she handles lender liability defense and real estate-related litigation.

64 Los Angeles Lawyer November 2013 nection was not a problem. It is worth not- ing, however, that in order to load the trial exhibits onto the iPad in the first place, we used an Internet connection from our office computers to upload the exhibits to a Dropbox account and then we used the iPad’s REFER CLIENTS WITH Internet connection at a location with more reliable Wi-Fi-to download the exhibits from Dropbox to the iPad. CONFIDENCE! Limitations. The content of the exhibits is not searchable via the application. Even though the documents that we had loaded were, in their native form, OCR-searchable PDF files, the TrialPad application did not have a way to search the content of the exhibits, only the file names. To correct this issue, we additionally loaded all the exhibits into a free iPad appli- cation called Documents by Readdle, which does feature content searching as one of its main functions. Although Documents could not display and manipulate the exhibits for presentation purposes as TrialPad does, it proved a useful backup application for search- ing content to locate a trial exhibit. Transcripts. I also used the iPad to display written deposition transcripts electronically on the same bank of computer monitors for impeachment and other purposes. However, the application I used for this purpose was not HAVE A PAYING CLIENT OUTSIDE OF TrialPad but TranscriptPad (version 1.5). TranscriptPad, which uses text, rather than YOUR LEGAL EXPERTISE? fi PDF, files of deposition transcripts, allows a user to run key word searches within one or Refer to the Los Angeles County Bar Association Lawyer Referral Service. more transcript files in order to locate and All LRIS lawyers are vetted for experience, insurance, and good standing. then display the desired testimony. The tes- timony can also be highlighted or flagged; oth- erwise, the application is fairly limited in the options offered for manipulating what is dis- played. The transcript can also be set to auto- matically scroll downward on the screen at a predetermined speed so that large portions of text can be read by everyone at once. Los Angeles County Bar Association Because the input is an unformatted text file, the display lacks the look and feel of an LAWYER REFERRAL & original deposition transcript. In order to show the original transcript in all of its for- INFORMATION SERVICE matted glory, you can use a PDF image of the transcript and display it using TrialPad just (213) 243-1525 as you would display a trial exhibit. However, because TrialPad does not allow a file to be searched for content, it is necessary to know LACBA LOS ANGELES in advance the pages of the transcript that you COUNTY BAR plan to display. My trial did not feature any SmartLaw videotaped deposition testimony and there- ASSOCIATION fore I cannot offer any advice on features smartlaw.org relating to displaying media files. LACBA.org The bottom line is that whatever we needed to be able to do, there seemed to be an application for it, and each one was easy to use. My experience was wholeheartedly positive, and I encourage attorneys to check State Bar of California and American Bar Association Certified out the iPad as an excellent option for trial presentation. I

Los Angeles Lawyer November 2013 65 A & E Forensic, p. 41 Higgins, Marcus & Lovett, Inc., p. 41 Jonathan S. Rutchik, M.D., p. 55 Tel. 877-839-7302 www.aeforensics.com Tel. 213-617-7775 www.hmlinc.com Tel. 415-381-3133 www.neoma.com

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66 Los Angeles Lawyer November 2013 Federal Practice in the TAP: Deposition Skills Workshop Central District ON MONDAY, NOVEMBER 11, Trial Advocacy and the Litigation Section will host a ON TUESDAY, NOVEMBER 12, the workshop to provide instruction on how to take and defend depositions in California Litigation Section will present state court actions. The first part of the program will be a lecture covering the rules relating to oral depositions as well as how to “pin down” the deponent, defend a Southern California’s signature event deposition, use deposition testimony in trial, and develop a deposition strategy. on practicing law in federal district The second part is a workshop in which participants practice taking and defending court. Highlights include a candid the deposition of a plaintiff in a civil action for negligence and receive constructive two-part panel in which local district feedback. Participants receive a deposition outline that organizes the deposition process for ease of reference. Course materials will be distributed via e-mail prior to and magistrate judges reveal likes the first class, so a correct e-mail address is needed at the time of registration. The and dislikes and what it takes to win program will take place at the Los Angeles County Bar Association, 1055 West 7th at critical junctures of a case. In Street, 27th floor, Downtown. Parking is available at 1055 West 7th and nearby lots. addition, the event will include the On-site registration begins at 1 P.M., with the workshop continuing from 1:30 to 5:30. judges’ report card on the Patent Pilot The registration code number is 011862. $250—CLE+ member Program. Three years after this $350—LACBA member program began, the district judges $500—all others most involved in the Patent Pilot 3.75 CLE hours Program will report on its progress and prognosticate on the future of patent litigation in the Central TAP: Evidence Skills Workshop District. On-site registration will ON MONDAY, NOVEMBER 11, Trial Advocacy and the Litigation Section will host the evidence begin at 3:30 P.M., with the program skills workshop, which is based on the premise that the best way to learn the rules of evi- dence is to argue them in an evidentiary hearing. In this workshop, participants argue the continuing from 4 to 6:30, followed by admissibility of evidence in 21 different evidentiary vignettes based on a breach-of-employ- a meal and reception. The event will ment-contract fact pattern. No preparation is necessary for this unique program. Within five take place at the Hilton DoubleTree minutes participants are on their feet arguing the admissibility of evidence. The evidentiary vignettes include witness competency, foundations for exhibits, chain of custody, authen- Hotel, 120 South Los Angeles Street, ticity, relevance, undue prejudice, the secondary evidence rule, the better evidence rule, the Downtown. Valet parking is available reliability of scientific evidence, nonhearsay, hearsay, party admissions, prior inconsistent for $10. The prices below include the deposition testimony, business records, judicial notice, lay opinion, expert qualifications, expert opinion, and cross-examination of experts on treatises. Written course materials will reception. The registration code be distributed via e-mail prior to the first class. Please provide a correct e-mail address at number is 012134. the time of registration. The program will take place at the Los Angeles County Bar $65—CLE+ member Association, 1055 West 7th Street, 27th floor, Downtown. Parking is available at 1055 West $160—Litigation Section member 7th and nearby lots. On-site registration will begin at 8:00 A.M., with the program continuing from 8:30 A.M. to 12:30 P.M. The registration code number is 011973. $185—LACBA member $250—CLE+ member $220—all others $350—LACBA member 2.5 CLE hours $500—all others 3.75 CLE hours

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

Los Angeles Lawyer November 2013 67 closing argument BY ALAN H. SIMON

Honoring 100 Years of the Los Angeles Public Defender

IT IS A WELL-KNOWN ADMONITION: “You have the right to the are charged, in the Superior Court, with the commission of any presence of an attorney before and during questioning, and if you can- contempt, misdemeanor, felony or other offense. He shall also, not afford an attorney, one will be appointed for you free of charge.” upon request, give counsel and advice to such persons, in and This warning only dates back to the 1960s, but the concept of pro- about any charge against them upon which he is conducting the viding defense attorneys who are paid by the state can be traced back defence, and he shall prosecute all appeals to a higher court or to the Roman Empire, when the papal government appointed a pau- courts, of any person who has been convicted upon any such perus procurator to act as counsel for indigents. In the late 1400s in charge, where, in his opinion, such appeal will, or might rea- Spain an advocate for the poor was provided at public expense. In sonably be expected to, result in a reversal or modification of the early years of the twentieth century, Los Angeles judges commonly the judgment of conviction. appointed what were called jail lawyers, attorneys who made them- He shall also, upon request, prosecute actions for the col- selves available by hanging around the courts. Clara Shortridge Foltz, who served as the first woman prosecutor for the Los Angeles County district attorney in 1911, provided the Clara Shortridge Foltz, the first woman prosecutor for Los Angeles rationale for public support of defendants in her description of how defense in criminal cases was handled at the time: County, provided the rationale for public support of defendants. In criminal trials, as at present con- ducted, counsel for the defense is an absolute essential to the just examination of a case. The unfor- lection of wages and other demands of persons who are not tunate prisoner is not denied counsel; he is told that he may sup- financially able to employ counsel, in cases in which the sum ply himself with this essential to justice if he wishes, and if he involved does not exceed $100, and in which, in the judgment pleads poverty and announces himself a pauper it is the duty of the Public Defender, the claims urged are valid and enforce- of the court to appoint counsel for him. able in the courts. Now, without detracting from the able men who some- He shall also, upon request, defend such persons in all civil times do offer their services in behalf of a penniless prisoner, the litigation in which, in his judgment, they are being persecuted rule is that the court appointees are wholly unable to cope with or unjustly harassed. the public prosecutor. Those whose ability commands a law prac- In June 1915, the Los Angeles City Council created the City Police tice are seldom chosen. The appointees come from the failures Court Defender and appointed James H. Pope to handle the defense of the profession who hang about the courts for a stray fee from in misdemeanor cases. The City Public Defender handled Municipal the unfortunate, or youths just admitted to the bar and anxious Court filings, including felony preliminary hearings, while the County for practical experience. They have no money to spend in a Public Defender handled felony cases in Superior Court. The City Public proper investigation of the case and come to trial wholly Defender merged into the County Public Defender Department in 1965. unequipped either in ability, skill or preparation to cope with In 1993 the Los Angeles Board of Supervisors appointed Bruce the man hired by the state to marshall the evidence for the pros- Hoffman to head a new Alternate Public Defender Office to represent ecution. This system works untold evil. criminal defendants in cases in which a conflict of interest prevented This dismal state of affairs moved Los Angeles County voters in the public defender from undertaking the representation. 1913 to approve a county charter that created the Office of the Public Today, Los Angeles County Public Defender Ronald L. Brown heads Defender, a law firm to be paid for by the public. The charter was rat- a law office of 1,100-plus attorneys, paralegals, investigators, social ified by the California Legislature, and in January 1914 the nation’s workers, secretaries, and administrative staff. The office provides first public defense law firm paid for by taxpayers opened its doors on superior, cost-effective representation and is an innovative, award-win- the 11th floor of the old Hall of Records on Broadway, just west of ning national leader in defense advocacy on behalf of adults and chil- where the Clara Shortridge Foltz Criminal Justice Center now stands. dren in the criminal, juvenile, and mental health justice systems. Walton J. Wood was the first appointed public defender, and his The public defender is proud of its 100 years and its status as the entire original staff consisted of four deputies and a secretary. preeminent publicly funded criminal defense office in the United States. The charter spelled out the scope of the public defender’s duties, Its lawyers and staff strive to exemplify the public defender’s motto: “To which included representation in some civil matters: enrich lives through effective and caring service.” I Upon request by the defendant or upon order of the Court, the Public Defender shall defend, without expense to them, all Now retired, Alan H. Simon was a bureau chief of the law office of the Los persons who are not financially able to employ counsel and who Angeles County Public Defender.

68 Los Angeles Lawyer November 2013

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