November-2005.Pdf

Semiannual Guide to Expert Witnesses

November 2005 / $4

EARN MCLE CREDIT State Federal versus State Disability Lines Law page 31 Los Angeles lawyer Paul J. Watford discusses the commerce clause and the Rehnquist Court page 24

PLUS

Allocating Repair Costs page 14 Lemon Law Arbitrations page 19 Trademark Law and the Internet page 38

November 2005 Vol. 28, No. 9

FEATURES

24 State Lines BY PAUL J. WATFORD The Supreme Court’s evolving commerce clause jurisprudence seems to have taken a U-turn in Raich

31 Challenging Barriers BY EVE HILL AND SHEILA KHAN-VARIBA Unlike the Americans with Disabilities Act, California law allows parties to seek damages for discrimination by private businesses

Plus: Earn MCLE credit. MCLE Test No. 142 appears on page 33.

38 Search Terms BY STEVEN D. ATLEE AND BRIAN F. MCMAHON The lawful use of trademarks in search engines may ultimately hinge on evolving standards of “initial interest confusion”

45 Special Section Semiannual Guide to Expert Witnesses The magazine of The Los Angeles County LosAngelesLawyerBar Association DEPARTMENTS

10 Barristers Tips 85 Computer Counselor Working with court-appointed attorneys in Useful legal Web sites for California probate matters lawyers BY JOHN F. L. POMEROY BY NANCY A. KAISER

14 Practice Tips 88 LACB Foundation The allocation of repair obligations in form 2004-2005 Fund Drive Results leases BY WALTER R. ZAGZEBSKI 92 Closing Argument The unmasking of a legal urban legend 19 Practice Tips BY DAVID HAZELKORN Handling Better Business Bureau vehicle claims 87 Classiﬁeds Cover photograph by Tom Keller BY MICHAEL B. RAINEY 90 Index to Advertisers

91 CLE Preview TOSHIBA digital copier, a law office's best friend! LosAngelesLawyer VISIT US ON THE INTERNET AT www.lacba.org/lalawyer E-MAIL CAN BE SENT TO [email protected] EDITORIAL BOARD Chair R. J. COMER Articles Coordinator JACQUELINE M. REAL-SALAS ELAINE R. ABBOTT JERROLD ABELES DANIEL L. ALEXANDER HONEY KESSLER AMADO ETHEL W. BENNETT CHAD C. COOMBS ANGELA J. DAVIS KERRY A. DOLAN GORDON ENG DANIEL A. FIORE JOSEPH S. FOGEL STUART R. FRAENKEL MICHAEL A. GEIBELSON AIMEE H. GOLD TED HANDEL JEFFREY A. HARTWICK STEVEN HECHT KATHERINE M. HIKIDA ROXANNE HUDDLESTON LAWRENCE J. IMEL SCOTT KLOPERT JOEL T. KORNFELD JOHN P. LECRONE HYACINTH E. LEUS JOHN C. MCBRIDE PAUL MARKS SEAN MORRIS ELIZABETH MUNISOGLU RICHARD H. NAKAMURA JR. DENNIS PEREZ GARY RASKIN DAMON RUBIN COPYFAX COMMUNICATIONS SVITLANA E. SANGARY offers "NEW LACBA Member KURT L. SCHMALZ DAVID SCHNIDER Benefit." Automatic 30% Off GRETCHEN D. STOCKDALE KENNETH W. SWENSON on all models of new TOSHIBA CARMELA TAN BRUCE TEPPER Copiers that Copy, Fax, Print PATRIC VERRONE and Scan to E-mail. MICHAEL WISE STAFF Publisher and Editor AUTOMATIC 30% DISCOUNT SAMUEL LIPSMAN Quick and Easy - No Pricing Battle! Senior Editor LAUREN MILICOV LIMITED TIME PROMO Senior Editor FREE Print and Scan Enabler for ERIC HOWARD Art Director Networking Printing and Scanning! LES SECHLER Director of Design and Production SPECIAL LEASE PATRICE HUGHES 0 Down - 0 Interest Lease Advertising Director Includes All Service and Supplies. LINDA LONERO Turn Key! Account Executive MARK NOCKELS FULL REPLACEMENT WARRANTY Marketing and Sales Coordinator It Runs Right Always or It's Replaced! TAL EDELSTEIN Advertising Coordinator WILMA TRACY NADEAU Administrative Coordinator MATTY JALLOW BABY

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Attorney # 4B2AV005 CA License #0795465 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 261 S. Figueroa St., Suite 300, Los Angeles, CA 90012-2533 Telephone 213.627.2727 / www.lacba.org ASSOCIATION OFFICERS: President EDITH R. MATTHAI President-Elect JudgmentsEnforcedJudgmentsEnforced CHARLES E. MICHAELS Senior Vice President GRETCHEN M. NELSON Vice President Law Office of Donald P. Brigham DANETTE E. MEYERS Treasurer 23232 Peralta Dr., Suite 204, Laguna Hills, CA 92653 DON MIKE ANTHONY P: 949.206.1661 Assistant Vice President F: 949.206.9718 MICHAEL E. MEYER Assistant Vice President [email protected] AV Rated ALAN K. STEINBRECHER Assistant Vice President LINDA D. BARKER Immediate Past President JOHN J. COLLINS Executive Director STUART A. FORSYTH Associate Executive Director/Chief Financial Officer BRUCE BERRA Associate Executive Director/General Counsel W. CLARK BROWN BOARD OF TRUSTEES GEORGE F. BIRD JR. DANIEL S. BISHOP JOHN M. BYRNE PATRICIA EGAN DAEHNKE ANTHONY PAUL DIAZ STACY L. DOUGLAS JEFFREY W. ERDMAN ANTONIO J. GONZALEZ TOMAS A. GUTERRES MITCHELL A. KAMIN NANCY KNUPFER ROBERT N. KWAN JENNIFER ALTFELD LANDAU ELISHA FARA LANDMAN DAVID A. LASH ROCCO J. LIBERIO CINDY J. MACHO ELAINE W. MANDEL PATRICK MCNICHOLAS ELLEN A. PANSKY MICHAEL JAMES PEARCE CHRISTOPHER Q. PHAM SUSAN KOHN ROSS ALICE A. SALVO DEBORAH C. SAXE KIM TUNG JOHN D. VANDEVELDE ROBERT G. VAN SCHOONENBERG GAVIN HACHIYA WASSERMAN ERIC A. WEBBER JULIE K. XANDERS AFFILIATED BAR ASSOCIATIONS BEVERLY HILLS BAR ASSOCIATION BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC. CENTURY CITY BAR ASSOCIATION CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES CULVER/MARINA BAR ASSOCIATION EASTERN BAR ASSOCIATION GLENDALE BAR ASSOCIATION IRANIAN AMERICAN LAWYERS ASSOCIATION ITALIAN AMERICAN LAWYERS ASSOCIATION JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES JOHN M. LANGSTON BAR ASSOCIATION JUVENILE COURTS BAR ASSOCIATION KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA LAWYERS' CLUB OF LOS ANGELES COUNTY LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES LONG BEACH BAR ASSOCIATION MEXICAN AMERICAN BAR ASSOCIATION PASADENA BAR ASSOCIATION SAN FERNANDO VALLEY BAR ASSOCIATION SAN GABRIEL VALLEY BAR ASSOCIATION SANTA MONICA BAR ASSOCIATION SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC. SOUTHEAST DISTRICT BAR ASSOCIATION SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WHITTIER BAR ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

6 Los Angeles Lawyer November 2005

From the Chair BY R. J. COMER

hy did you become a lawyer? “To help people,” many have answered— some of them honestly. “To make money,” a few confess—all of them honestly. Litigators sometimes claim that they love to argue. Few W lawyers say that they thought becoming a lawyer would make them happy, but an expectation of happiness lay beneath all the ostensible reasons for becoming a lawyer. The “pursuit of happiness” ranks right up there with the other unalienable rights of life and liberty. Yet, attorneys are notoriously unhappy. Perhaps the Declaration of Independence should have included an explanatory footnote that the pursuit of happiness is alienable from some classes of people—such as lawyers and failed screenwriters, and especially lawyers who are also failed screenwriters. Admittedly, some lawyers are deeply fulfilled by representing deserving clients on meaningful cases. How many of those lawyers do you know? Contrary to popular cliché, the money some lawyers make does buy happiness, for a time. Purchased happiness, however, loses value faster than a new house sliding down a hill, because we quickly get used to the money. Our families get used to our money. Our kids really get used to our money. And soon it’s not about having money, it’s about making money. At this point, for many lawyers, what was once a calling slips past being a career and becomes merely a job. None of this is news. In her 2004 book Lawyer, Know Thyself, Susan Swaim Daicoff provides a survey of studies done over two decades showing that attorneys suffer from diagnosable depression at a rate that is at least twice the rate in the general popula- tion. Attorney dissatisfaction manifests itself in substance abuse, legal malpractice, professional incivility, medical complications attributable to stress, and family problems. Daicoff suggests adapting one’s professional life to fit the not-very-endearing personality traits that she claims lawyers tend to have in common. By contrast, the manda- Professional tory CLE sections on stress management typically accept without question that practicing law is stressful. Instead of sympathizing with your secret desire to transform Arbitrator your in-box chores into a Burning Man festival, CLE providers typically offer relaxation techniques that are about as useful as a horse expert providing emergency and Mediator management during a hurricane. The bottom line is that sometimes, oftentimes, being a lawyer just blows. Should we, therefore, abandon all hope ye who enter here? Yes. So long as we think prac- Steven Richard Sauer, Esq. ticing law should bring happiness, we are bound to be dissatisfied. Steven Richard Sauer, Esq. Having abandoned that pesky rascal hope, we can now pursue satisfaction as a scientifically attainable outcome of practicing law. This year Emory University neu- roscientist Gregory Berns, in his book Satisfaction: The Science of Finding True “He is truly a master Fulfillment, distinguished satisfaction from happiness because achieving satisfaction requires us to engage in activities that present us with novelty and challenge. in his art.” According to Berns, the neurotransmitter most associated with pleasure, dopamine, is released when we encounter and overcome something novel and challenging. A lawyer can easily create a professional rut by remaining too long in the comfort Settled over 5,000 Federal zone of what that lawyer knows and does well. We are in demand. The work becomes and State Litigated Cases routine as the demands increase exponentially. Then we feel overwhelmed. So we work harder at the same old thing until we have dug a deeper, increasingly boring hole. Thus, the “feel good” goal of our profession should be finding evermore novel and challenging ways to practice law within our areas of expertise and focus. Consider teach- 323.933.6833 ing a CLE course in your practice area. Defense attorneys might consider taking on a plaintiff’s case—very selectively, of course. Here’s an idea: Write an article for Los Angeles Fax 323.933.3184 Lawyer magazine. Satisfaction awaits. ■ E-mail [email protected] R. J. Comer is a partner at Allen Matkins Leck Gamble & Mallory LLP, where he specializes in land use law and municipal advocacy. He is the chair of the 2005-06 Los Angeles Lawyer Editorial Board. 4929 Wilshire Blvd., Suite 740 Los Angeles, CA 90010

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Working with Court-Appointed Attorneys in Probate Matters

PROBATE MATTERS OFTEN INVOLVE parties who lack, or are asserted either in favor of or against the continued service of the PVP. If the to lack, the mental capacity to make financial decisions or personal PVP has recommended against your client’s position, and the matter care decisions. In these situations, courts typically appoint an attor- is ongoing, you may get better results in the future if that PVP is no ney to represent the allegedly incapacitated party. These attorneys, longer involved. taken from the Probate Volunteer Panel,1 are referred to as PVP counsel. Attorneys whose work involves conservatorships, guardian- Role of the PVP ships, or any other proceeding in which the capacity of a party is at The PVP counsel performs several functions. The primary function issue will encounter PVP counsel. Attorneys may encounter PVP of a PVP is to represent the interests of the client. After that, how- counsel in other situations as well, because a court may appoint a PVP ever, the PVP also acts as the “eyes and ears of the court.” This role in one of various roles in a matter in which the court determines that was so described by Judge Thomas Stoever, who recently retired such an appointment is necessary to protect the interests of a party from the probate department in the Central District. The PVP reports or an estate. to the court on the condition of the client and on the person’s wishes Working with PVP attorneys presents challenges and opportu- regarding a pending matter. In some cases, this overlaps with the duties nities. Among the challenges are determining how the PVP fits into of the court investigator. For example, when a petition for appoint- the overall picture: Is the PVP an ally? An adversary? An extension ment of a conservator is pending, the proposed conservatee will of the court? While the matter proceeds, how may the relationship likely be visited separately by a court investigator as well as a PVP, with the PVP be conducted so as to best serve the client? If the PVP who separately report to the court. is opposed to the client’s position, how can an attorney work around The PVP also recommends to the court how to rule on a pending the PVP? petition. The PVP’s assistance to the court in resolving a matter, PVP attorneys are appointed and discharged upon order of the however, remains the PVP’s secondary duty after representing the best court. If there is a significant estate, the PVP’s fees are paid out of the interests of the client. This recommendation carries great weight. For estate. In general, a PVP counsel is appointed whenever there are ques- this reason alone, you should treat the PVP well. tions as to a party’s capacity. This occurs most often in conservator- The PVP’s recommendation is usually provided to the court in the ship matters and in the various matters that can be described as form of a written report as well as an appearance at the relevant hear- conservatorship substitutes (for example, petitions for approval of a ing. The preparation of the report is often the most important func- transaction when a party is asserted to lack capacity and petitions tion of the PVP. To prepare that report, the PVP reviews the evidence, related to healthcare decisions). PVP counsel will always be appointed speaks with parties, and visits with the client. There are a number of to represent a proposed conservatee when a petition for appointment ways that an attorney can assist the PVP in preparing that report, pri- of a conservator of the person or estate is pending or when a sub- marily by ensuring that evidence and witnesses are available. stituted judgment petition is pending. In matters that substitute for In contested matters, the PVP may be called upon to assist in res- conservatorships, a PVP counsel will be appointed to represent the olution, including engaging in negotiations and even mediation with person who is asserted to lack capacity. PVP counsel are sometimes the opposing parties. Finally, in unusual cases in which the PVP appointed in guardianship of the estate proceedings but rarely in determines that the client is in danger of either physical harm or immi- guardianship of the person proceedings. Appointment may also be nent loss of assets, the PVP may commence proceedings on behalf of made in any other case in which the court determines that it would the client. The PVP may, for example, seek the appointment of a con- be in the best interests of any party or estate. servator, removal of a conservator, or orders protecting the client’s For example, a recent guardianship of the estate matter involved assets from dissipation. a dispute between parents over how to manage the significant income The manner in which you should work with the PVP depends earned by the minor. On an attorney’s recommendation, the court on the circumstances. As with all probate matters, the situation appointed a PVP counsel for the minor while the guardianship peti- changes dramatically when a matter becomes contested. In addition, tion was pending because of danger that the minor’s estate would be the circumstances depend on which parties are involved and who dissipated. Had the estate been smaller, the appointment likely would has retained counsel. When working with the PVP, it is important not have been made. to see the attorney as an extension—the eyes and ears—of the The appointment lasts while a particular petition is pending, and court. Although the PVP will advocate a position before the court the PVP is often discharged upon resolution of the pending petition. (and you should be prepared to advocate a contrary position if nec- In some matters, however, the PVP will stay on after the petition is essary), the PVP may also assist the court in deciding the pending determined, particularly if disputes between the parties remain, or if matter. In a contested matter, you may even find that the PVP is hav- another petition will soon be filed about which the court would pre- fer a report from the PVP who is already familiar with the matter. Upon John F. L. Pomeroy is a Los Angeles attorney with practice experience in determination of a petition, you may have the opportunity to argue estate planning, conservatorships, and guardianships.

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51525_LA_Lawer.indd 1 10/4/05 12:52:32 PM ing too much contact with one party, to such an extent that a judge may consider it ex parte. If you treat the PVP as an adver- David L. Ray sary, however, you may later find that the Saltzburg, Ray & Bergman, LLP PVP’s recommendation to the court is not in Partnerships and Corporate Dissolutions line with your client’s wishes. For this rea- Government Enforcement Receivership Actions son, the PVP should be treated with respect. Receivership In uncontested matters in which you rep- Partition Actions/Marital Dissolution resent the petitioner, your goal is for the PVP to do two things: report that there are sufficient factual grounds for the relief that you TEL (310) 481-6700 e-mail: [email protected] • www.srblaw.com seek and recommend approval of your peti- FAX (310) 481-6707 12121 Wilshire Boulevard, Suite 600, Los Angeles CA 90025 tion. You should provide the PVP with as much information as needed and make all parties to the matter and all documents and other sources of evidence available. Initially, you may find that the PVP has not received all pleadings. It is good practice to send the PVP copies of all pleadings immediately upon appointment. In many cases, the appointment happens a short time before the hearing. The PVP will be appreciative if, thanks to the pleadings you provided, he or she has an extra day or two to work on the matter. For the same reason, it is important to be responsive to requests from the PVP. If the matter is contested, you may need to be more persuasive with the PVP, while remaining deferential and respectful. This can be a tricky balance. You should try to move the PVP to your client’s position and against the position taken by an adversarial party. Having a PVP on your side can make matters easier for your client. You may find that the PVP takes positions, in opposition to an adversary, that your client would otherwise take. In effect, the PVP can fight your battle for you and allow your client to save capital for a different dispute. On the other hand, if the PVP opposes your client’s position, you may find yourself arguing at a hearing against opposing counsel and the PVP. This is an uphill battle, and your client may best be served with a settlement that leaves as little as possible for the court to decide. Working with a PVP provides an attorney with less experience in probate matters good opportunities for education. Attorneys on the panel have years of experience in the field and are appointed by the court because they are respected. With regard to the matter at hand, the PVP may educate you about solutions that you had not considered. More generally, you may also learn new procedures or approaches that you can apply to other matters. The bottom line is that you should treat the PVP with the professional courtesy that you would provide to a colleague and the deference that you would provide to a judicial officer. ■

1 See generally LOS ANGELES SUPER. CT. R. 10.173, and app. E.

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The Allocation of Repair Obligations in Form Leases

NATURAL DISASTERS such as earthquakes and mudslides are an ever-present risk in California. When they happen, landlords and tenants in leased property are often left fighting over who is required to pay the repair bills and government-mandated upgrades. Before 1994, the terms of a typical net lease expressly provided that a tenant was required to pay for all repairs to leased property, regardless of whether the tenant was big or small, regardless of the length of the lease or amount of rent paid under the lease, and regardless of the cost. Thus, when an earthquake or hazard damaged leased property, many small tenants faced repair bills that were huge in comparison to the rents paid under their leases. The California Supreme Court sought to remedy this problem in Hadian v. Schwartz1 and Brown v. Green2 by creating a judicial balancing test that allowed certain tenants to escape onerous repair burdens despite express lease terms to the contrary. This balancing test forced courts to look at the total repair cost in comparison to the total rents payable under the term of the lease and the length of the lease, among other factors, to decide whether the landlord or tenant should pay the cost of repair. However, it opened the door for protracted litigation because neither landlords nor tenants could rely solely on the terms of their leases to determine who was required to repair leased property. The appellate courts have not 6) The likelihood that the parties anticipated the application of the curtailed the uncertainty created by this balancing test because there particular law or order involved.4 is no reported court of appeal decision that gives additional guidance.3 In Hadian, the tenant leased a very small space to operate a bar In an apparent attempt to respond to this test and restore confi- and cabaret. The lease was for three years at $650 per month with dence that their leases would be applied according to their terms, the one five-year option to renew at a $800 per month, which the ten- AIR Commercial Real Estate Association amended its form net leases ant exercised. During the five-year option period, the city issued an twice—once in 2001 and again in 2004—to make the provisions deal- order requiring a seismic upgrade of the property. The cost of the ing with code compliance and repair obligations more tenant-friendly. upgrade was more than $30,000. The supreme court held that the land- But neither the 2001 nor the 2004 AIR Multi-Tenant Net Leases fore- lord was required to make the repairs despite the fact that the express close the possibility of litigation under Hadian and Brown; instead, terms of the lease imposed the burden on the tenant. they create new ambiguities that raise the likelihood of litigation. In applying that six-factor test, the court found that the repair cost However, adopting a more simple and streamlined approach to the amounted to about 150 percent of the amount of the total lease pay- language of form net leases may provide landlords and tenants with ments under the initial three-year lease term and nearly half the total more confidence that the language of their form leases will be applied lease payments under the extended term. The initial lease was also a by the courts without alteration. relatively short-term lease. As a result, the court decided that the first two factors weighed in the tenant’s favor. The court decided that the The Supreme Court Balancing Test third factor also favored the tenant because the landlord stood to gain In Hadian and Brown, the California Supreme Court developed a six- far more benefit over the life of the repairs than the tenant. Further, factor test to invoke when deciding whether the tenant or landlord because the repairs were structural in nature and the tenant’s busi- should pay for government-mandated repairs and upgrades, even when ness suffered as a result of the repairs, the court decided that the fourth a lease expressly provides that the tenant must pay for all repairs: and fifth factors favored the tenant. Finally, because the tenant was 1) The ratio of the total cost of the repair to the total rent payments unsophisticated and did not contemplate incurring the repairs at required for the term of the lease. issue, the court determined that the sixth factor also favored the ten- 2) The length of the lease. ant. As a result, the court held that the tenant could not be required 3) A comparison of the benefit of the repairs to the lessee versus the to incur the costs of the repairs. reversionary benefit to the landlord. 4) Whether the repair is structural or nonstructural. Walter R. Zagzebski is a partner with Gaims, Weil, West & Epstein, LLP, and 5) The degree to which the lessee’s use and enjoyment of the premises practices real estate litigation. He thanks his colleagues Kenneth Feingold,

RICHARD EWING will be interfered with during the repair. Damon Rubin, Marc Epstein, and Sander Zagzebski for their input.

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By contrast, in Brown, the tenant operated modification, remediation of hazardous sub- tion formula does not apply unless a replace- a large furniture business and was the sole ten- stances, or any other type of upgrade to the ment is required because the repair cost is ant of the leased property. The tenant entered property mandated by the Applicable greater than 50 percent of the replacement into a 15-year lease with a total of $5 million Requirements. In the 2001 form, the landlord cost. Does this mean that the tenant must pay in rent paid over the term of the lease. During absolutely warrants that the property was the entire cost for all Capital Expenditures the lease term, public officials inspected the in compliance with the Applicable Require- that are less 50 percent of replacement cost, property and determined that asbestos had ments at the time each improvement was just as the tenant would be required to do begun to flake in one area of the leased prop- made. The tenant is advised to inspect the with utility costs under Paragraph 7.1(d)? erty, requiring a repair and cleanup costing property and is given six months after the Or, was it the intention of the 2001 and 2004 $250,000. The repair cost was only 5 percent commencement of the lease to notify the forms to skip the 50 percent triggering lan- of the rent paid under the lease, and the lease landlord if the property does not fully com- guage in Paragraph 7.1(d) and assume that the was relatively long term. Therefore, the court ply. If the tenant notifies the landlord, the allocation formula applies to all Capital Ex- decided that the first and second factors landlord is required to make any necessary penditures made necessary by changes to the weighed in the landlord’s favor. The court repair at its expense. Otherwise, the tenant Applicable Requirements that are not caused considered the third factor, a comparison of must make the repair.5 In the 2004 form, the by a tenant’s special use? This ambiguity benefits, to be neutral. There was substantial landlord’s absolute warranty is replaced by a leaves the door open for the courts to apply time remaining on the lease, thus providing warranty limited to the best of the landlord’s Hadian and Brown. the tenant with substantial benefit of the knowledge,6 meaning that the landlord is Second, the 2004 form has created a new repair. But the court also recognized a rever- only required to repair property for prior problem with the change from an absolute sionary benefit to the landlord because the noncompliance if it had knowledge that the warranty of the landlord’s prior compliance repair would permanently remove an envi- property did not comply. to a warranty limited to the best of the land- ronmental hazard from the property. The Under both the 2001 and 2004 forms, if lord’s knowledge. Under the 2001 form, if a court considered the fourth factor to be in the the Applicable Requirements change when the repair became necessary because the property tenant’s favor because the repair at issue was tenant is in possession, requiring a Capital was not in compliance as warranted, the structural. The court found the fifth factor to Expenditure, the following two rules apply: landlord was forced to incur the costs of the be in the landlord’s favor because the tenant 1) If the required expenditure is caused by a repair, assuming the tenant gave proper notice. was able to mitigate the effects of the repair specific and unique use by the tenant, a change Otherwise, the the tenant had to bear the on its business by closing off the affected in the intensity of the tenant’s use, or the cost. There was no possibility of a third portion of the property and continuing oper- tenant’s alteration of the premises, the tenant option. But under the 2004 form, it is unclear ations with little disruption. The court also must either cease the changed use or pay for which party is responsible when the property considered the sixth factor to favor the land- the repair (with some minor exceptions).7 was not in compliance with the Applicable lord because, although there was no evidence 2) If the required expenditure is not caused Requirements at the time each improvement that the parties contemplated the exact repair by a tenant’s specific or unique use, such as was made, but the warranty was not breached at issue, the tenant was an experienced lessee a seismic upgrade, the parties shall “allocate because the landlord had no knowledge. who fully understood the terms of commer- the obligation to pay for the portion of such Nothing in Paragraph 2.3 addresses who cial leases. In weighing the factors, the court costs reasonably attributable to the premises must pay for these repairs. Even Paragraph required the tenant to incur the cost of the pursuant to the formula set out in Paragraph 2.3(b), the section that makes reference to the repair. 7.1(d).”8 cost-sharing formula in Paragraph 7.1(d), The Hadian and Brown balancing test Paragraph 7.1 addresses which party must does not apply because by its terms it only resulted in a rule of thumb that big anchor pay for general repairs and maintenance to the applies when the Applicable Requirements tenants with sophisticated management were property, such as maintaining heating and have changed during the tenancy. Thus, generally required to undertake substantial ventilation, boiler and pressure valves, and Paragraph 7, which addresses general repair repair obligations, while smaller, short-term, any other type of utility equipment.9 Para- burdens, apparently applies. unsophisticated tenants could likely escape graph 7.1(d) states that if any utility equip- Paragraph 7 imposes a general repair bur- even potentially small repair burdens. As for ment covered by Paragraph 7.1 cannot be den on the tenant but also provides that the the numerous tenants who fell in the middle, repaired at a cost that is less than 50 percent landlord must keep the “foundations, exterior the court created uncertainty and the likeli- of the amount it would cost to replace it as walls, [and] structural conditions” in good hood of protracted litigation. new, the item shall be replaced and the repair.11 Thus, when the landlord does not replacement cost prorated between the par- breach its warranty for noncompliance under The New AIR Cost-Sharing Formula ties with the tenant’s share equal to 1/144th the 2004 form, it appears that if the mandated After Hadian and Brown, the AIR forms the total cost times the number of months repair is structural the landlord must incur the were amended in 2001 and 2004 to create a remaining on the lease.10 entire cost, and if the repair is nonstructural new approach to allocating repair burdens. Both the 2001 and 2004 forms are vul- the tenant will have to pay the entire cost. This The repair burdens under the new forms nerable to judicial redrafting under Hadian all-or-nothing approach raises the risk that a were addressed in two separate lease provi- and Brown. First, the language in Paragraph court would apply Hadian and Brown, allow- sions: Paragraph 2.3, addressing legal com- 2.3 that attempts to incorporate the costing smaller tenants to escape repairs that are pliance, and Paragraph 7, addressing main- sharing formula in Paragraph 7.1(d) is onerous in comparison to the rent they pay. tenance and repairs. ambiguous. It would seem that the drafters Finally, the cost-sharing allocation for- Paragraph 2.3 of the 2001 form provides intended that the allocation formula of mula expressed in Paragraph 7.1(d) is not tied a definition of “Applicable Requirements” Paragraph 7.1(d) apply to all capital expen- to the factors that the supreme court found which essentially includes every type of law, ditures other than those involving prior non- most important in Hadian and Brown and ordinance, code, or order that could possibly compliance for which the landlord breached thus remains vulnerable to judicial revision. affect the property. It also defines “Capital its warranty. But the express language of If the tenant in Hadian had been subject to Expenditure” as every type or alteration, Paragraph 7.1(d) provides that the alloca- the 2001 or 2004 form (and assuming that the

16 Los Angeles Lawyer November 2005 cost-allocation formula in Paragraph 7.1(d) 2.3(b), which addresses all other Capital 2 Brown v. Green, 8 Cal. 4th 812 (1994). applied despite its ambiguity) the tenant’s Expenditures, should be amended to include 3 Lower court decisions that have cited Hadian and share of the repair cost would have been language similar to the following: Brown have not relied upon, expanded upon, or provided any further guidance for applying their balanc- $15,550 (a total repair bill of $34,450.26 The cost of any Capital Expenditure or ing test. See, e.g., SDC/Pullman Partners v. Tolo Inc., divided by 144 and multiplied by the 65 repair (other than a Capital Expend- 60 Cal. App. 4th 37 (1998) (holding that a lease term months remaining on the lease). That is a iture or repair involving a breach of requiring a tenant to clean up all toxic substances did pretty stiff bill for a tenant that was paying warranty or the tenant’s special use not require a tenant to clean up soil that had minimal $650 per month in rent and had just exercised as set forth above) shall be allocated toxicity and was not subject to a clean-up order). The court of appeal relied on Hadian and Brown solely for a renewal option at $850 per month for ﬁve between the landlord and tenant with the proposition that the circumstance surrounding a years. It is likely that the supreme court would the tenant’s share of the cost being lease must be examined to determine the scope of lease have struck down this repair burden. either the total cost or an amount obligations. For these reasons, even when the 2001 and equal to 5 percent of the total amount See also Prudential Ins. Co. of Am. v. L.A. Mart, 2004 forms are used, courts are likely to of rent payable under the entire term 68 F. 3d 370 (1995), in which a landlord obtained engineering reports recommending seismic upgrades to look to Hadian and Brown to resolve disputes of the lease (excluding unexercised leased property. The property was in compliance with between landlords and tenants regarding gov- options), whichever is less. all statutory laws and was not subject to a repair ernment-mandated repairs. This means that The exact percentage used in the above order. The landlord demanded that the tenant make and the likelihood of protracted litigation con- paragraph can, of course, be negotiated pay for the recommended upgrades, the tenant refused, tinues to exist. However, it is possible to between the parties. The landlord, however, and the landlord sued, claiming the tenant was respon- overcome the danger of judicial intervention should be advised not to demand too high a sible for the upgrades under Hadian and Brown. The court of appeal ruled against the landlord and distin- by creating a cost-sharing formula that focuses percentage, or a court may find it over- guished Hadian and Brown, holding that in both of on the factor the supreme court found most reaching and strike it down. The parties can those cases there was a government-mandated repair important in Hadian and Brown—the ratio also negotiate other factors, such as the extent order. of the cost of repair to the total rent paid or of the landlord’s warranty of existing com- 4 Brown, 8 Cal. 4th at 830-33. 5 to be paid under the lease. If the tenant’s pliance and repairs and upgrades caused by 2001 AIR Multi-Tenant Net Lease [hereinafter 2001 Lease] ¶¶2.3, 2.4 (on ﬁle with author). share of a repair obligation is reasonable in the tenant’s use. If landlords and tenants 6 2004 AIR Multi-Tenant Net Lease [hereinafter 2004 comparison to the lease payments, it will adopt this approach to allocating repair bur- Lease] ¶2.3, available at http://www.airea.com/Forms most likely be upheld. Paragraph 2.3(a), dens, the likelihood of protracted litigation _PDF/Multi-Tenant-Lease%20Net%2005.PDF. which requires the tenant to pay for all and the risk of a court rewriting the lease 7 2001 Lease, supra note 5, ¶¶2.3(a), (c). 8 Capital Expenditures made necessary by the should be minimized. ■ Id. at ¶2.3(b). 9 Id. at ¶7.1(a). tenant’s special use of the premises, should 10 Id. at ¶¶2.3(b), 7.1(d). withstand judicial scrutiny. But Paragraph 1 Hadian v. Schwartz, 8 Cal. 4th 836 (1994). 11 2004 Lease, supra note 6, ¶7.1(a), (b).

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18 Los Angeles Lawyer November 2005 Practice Tips BY MICHAEL B. RAINEY

Handling Better Business Bureau Vehicle Claims

A CALIFORNIA ATTORNEY MAY at some time represent a client in a for repair, if the manufacturer has conspicuously disclosed the pro- Better Business Bureau (BBB) arbitration for a vehicle alleged to be visions of the Lemon Law and provided a contact address, the con- defective. The requirements of California Civil Code Section 1793.22, sumer must notify the manufacturer of the need for the repair. commonly called the Lemon Law, are of primary importance in this The second category of nonconformity is defined as service on the representation. When representing a client in a Lemon Law arbitra- vehicle for the “same nonconformity” that requires four or more tion, counsel should build the case around the requirements and repairs. Like the first category of more serious or potentially fatal educate the client as much as possible regarding the legal standards defects, if the manufacturer met its notice responsibility, the consumer of a Lemon Law arbitration. When these standards are met, the has the responsibility to put the manufacturer on notice of the repair. client is prepared, and the typical defenses presented by the manu- Finally, under either category, the vehicle must be out of service facturer’s representative are adequately addressed, counsel may feel for a cumulative period of 30 days. This period is measured in cal- more confident of a successful resolution. The Lemon Law, formally known as the Tanner Consumer Protection Act, applies to new vehicles registered in California. A new There are three critical components or elements that give rise to a vehicle is one primarily used for personal or household transportation; a business vehicle with a gross vehicle weight of less than 10,000 rebuttable presumption a new vehicle is a lemon. These elements pounds (as long as the buyer/lessee does not have more than five other vehicles registered in California); the chassis, cab, and propulsion are time/mileage, the number of attempts to repair and the time part of a motor home; dealer owned vehicles; demonstration vehicles; other vehicles sold with a new car warranty; and new purchased the vehicle has been out of service, and materiality of the defect. or leased vehicles.1 The Lemon Law does not apply to off-road vehicles, the part of a motor home primarily used for human habitation, or vehicles that have been endar days and is not required to be consecutive. abused. Examples of abuse would be street or off-road racing, seri- Material defect. As Civil Code Section 1793.22(e)(1) states, the ously overloading a vehicle, and avoiding necessary maintenance. nonconformity must adversely affect the “use, value, or safety of the There are three critical components or elements that give rise to vehicle.” The critical element of materiality is usually the most dif- a rebuttable presumption a new vehicle is a lemon. These elements ficult to prove. Plastic body trim that is out of alignment, for exam- are time/mileage, the number of attempts to repair and the time the ple, is not material. A failed antilock braking system or failed engine vehicle has been out of service, and materiality of the defect. If the clearly is. consumer meets the statutory criteria of Section 1792.22, he or she Minor body defects, rattles, squeaks, and interior defects routinely is entitled to a presumption that the vehicle is defective. If the man- do not qualify. However, in one case, a vehicle was presented to the ufacturer cannot rebut the presumption, the consumer is entitled to dealer on numerous occasions for a squeak. At every presentation, a replacement vehicle or refund of the purchase price minus the rea- the dealer carefully inspected, analyzed, and repaired the vehicle. One sonable use expense.2 time the dealer replaced a right control arm. The next time it replaced Time/mileage. The statutory period of the presumption is 18 the left control arm. On another occasion it found chafing brake lines. months or 18,000 miles, whichever occurs first. The time runs from The vehicle was out of service for 37 days in one year. The defect was the date of delivery, which is usually on the sales contract or parts order not considered material in the BBB arbitration, but when counsel if the car was purchased with cash. If the last repair event comes brought suit, the manufacturer offered to repurchase the vehicle.4 toward the end of the statutory time period, the statute is satisfied if The defect must be the primary reason for returning the vehicle. the vehicle enters the repair facility before the deadline of 18 months The squeak in the example, one should note, appeared to be only a or 18,000 miles. The crucial date is the date the vehicle enters the repair symptom of a number of defects. Often, whether the BBB arbitrator facility. sees the defect as material may depend upon the persuasive power of Number of attempts to repair. There are two general categories counsel. The gravity of some dangerous defects may not be obvious. of nonconformity.3 The first category of nonconformity is a condition that is likely to lead to death or serious bodily harm. The man- Michael B. Rainey is an attorney in Woodland Hills and a professor at ufacturer or its agent, usually a dealership, has two or more oppor- Pepperdine University. His practice focuses on mediation and arbitration, tunities to fix the vehicle. In conjunction with presenting the vehicle including products, real estate, personal injury, and transactions.

Los Angeles Lawyer November 2005 19 For example, if the alleged defect is that the the vehicle to the manufacturer or its agent Camry brake problems. This file is 62 vehicle stalls at inopportune times, it may for the requisite number of times and it has pages long from 1997-2004 Toyota require explanation as to why this problem been out of service for the required days; Camrys. Many have resulted in acci- adversely affects the use, value, or safety of and the nonconformity adversely affects the dents. My question is why are these the vehicle. The car may stall on train tracks use, value, or safety of the vehicle. vehicles still on the road? Why hasn’t or on a busy freeway. Assuming counsel has prepared the proper the NHTSA recalled these vehicles? If Once the consumer meets the statutory cri- BBB paperwork, on the date of the arbitra- I were GM, Ford or Chrysler I would teria, the vehicle is presumed defective and the tion, the consumer will have to show the be asking the NHTSA if Toyota is manufacturer has the burden to rebut the BBB a valid driver’s license, vehicle registra- exempt from recalls. Do you want presumption. tion, and proof of insurance. It is probable the your family riding or driving in these arbitrator and/or the manufacturer will want vehicles? Steering problems, brake sys- The Arbitration Process to take a test drive. For all parties, it is impor- tem failures.…If you or someone you The BBB is separate from the California tant to have proof of current license, vehicle know has had brake problems and Department of Consumer Affairs and is a ownership, and current insurance. Toyota denies any problems[,] have private business entity that engages in treaties The first step—the statutory period—is [that person] print out this file and and agreements with dealers and manufac- adequately proven by presenting the arbi- present it to Toyota. turers to provide arbitration. There is no cost trator and manufacturer with copies of the The author of this message provides the for the consumer. If he or she prevails, the sales contract to indicate the date of delivery. full report. The following is an example of the manufacturer is bound by the award. If the Photos of the odometer, repair orders, or information contained therein: consumer loses, he or she has alternatives. making the vehicle available to the arbitrator Make: Toyota In conjunction with the process of notifi- can establish the mileage. This is usually the Model: Camry cation required under Civil Code Section easiest element to prove. Year: 1998 1792.22, the claimant can also request a sep- The next element is proof of the duration Complaint Number: 745143 arate BBB hearing. The claimant can handle and notice to the manufacturer. Copies of SINCE BUYING MY TOYOTA IN the case by himself or herself or engage coun- the repair order or orders, in chronological APRIL OF 1998, I HAVE NEEDED sel. The claim can be processed in several order, with a summary of the number of days TO REPLACE THE BRAKES AND ways. The consumer or counsel can call the the car was out of service will be required for ROTORS 3 TIMES. I STILL CON- BBB Auto Line at (800) 955-5100. A claim the consumer to prove the time the vehicle TINUE TO HAVE SCREECHING can also be processed online at http://www.dr was out of service. The consumer will also AND GRINDING NOISES. I HAVE .bbb.org/autoline/caprocess.asp. The BBB have to provide evidence that he or she put BEEN TOLD BY TOYOTA DEAL- can also be contacted in writing at BBB Auto the manufacturer on notice. A copy of the let- ERSHIPS THAT THIS NOISE HAS Line, 4200 Wilson Boulevard, Suite 800, ter should suffice. BEEN A NOTED PROBLEM. I FIND Arlington, VA 22203-1838. The last element—showing that the non- THIS TO BE UNACCEPTABLE FOR The arbitration process can involve both conformity adversely affects the use, value, A “NEW” CAR, I BOUGHT A NEW parties presenting their cases in person, but and safety—is often the most difficult. The CAR TO AVOID MAKING REPAIRS there are alternatives. The consumer can consumer has purchased an expensive com- AND I HAVE MADE MORE ON request to present his or her statement and evi- modity. When the consumer discovers a THIS TOYOTA AND ITS BAD dence by phone or in writing. If the con- defect, he or she does not want to be placated. BREAKS THAN I WOULD HAVE sumer appears in person, the manufacturer He or she does not want to be told the man- SPENT ON KEEPING MY USED has the choice of appearing in person, by ufacturer has a range in which the vehicle can RODEO. I MEAN WITH REGULAR phone, or in writing. If the consumer chooses be conforming.5 The consumer wants action. MAINTENANCE CHECK, OIL the phone, the manufacturer is restricted to The consumer wants redress. These desires do CHANGE, CAR PAYMENTS, $200 the phone or writing. If the consumer chooses not translate, however, into a legal require- BRAKE JOBS EVERY 8 TO 12 to present his or her case only in writing, ment that a car be replaced. MONTHS, THIS IS RIDICULOUS. I the manufacturer is likewise limited to pre- In order to show the problem is a statu- HAVE ALSO HAD PROBLEMS senting its case in writing. When one of the tory nonconformity, counsel may have to do WITH CLUNKING NOISES COM- parties does not appear in person, the BBB some research. Online research on the ING FROM MY FRONT SUSPEN- Arbitration Rules, which are available online, Highway Data Loss Institute (HDLI), the SION, ESPECIALLY IF I GO OVER A require the arbitrator to provide a speaker National Highway Traffic Safety Administra- ROUGH ROAD. FOR A COMPANY phone or conference call so all the parties can tion (NHTSA), and Google can yield infor- THAT HAS A REPUTATION FOR effectively participate in the hearing. mation. A number of very valuable Web sites SUPERIOR CARS, THIS HAS BEEN The consumer presents his or her case, yield highly valuable information. For exam- A DISAPPOINTING FIRST BUY AS rests, and then the manufacturer presents its ple, http://www.theautochannel.com/news I FIND THE CAR TO HAVE A VERY, case. The key to a successful resolution is /recalls, http://www.internetautoguide VERY POOR BRAKING SYSTEM how the consumer or his or her counsel pre- .com/auto-recalls/index.html, and http:/ AND SUSPENSION. FROM READ- sents the facts. /groups.msn.com/ToyotaOwnersUniteforReso ING YOUR TECHNICAL BUL- lution are all sites worthy of bookmarks for LETINS, THERE HAS BEEN 90 The Consumer’s Presentation research into how a given defect affects the REPORTED COMPLAINTS ON The statutory presumption arises when the use, value, or safety of a motor vehicle. The THE BRAKES.… consumer or the consumer’s counsel has MSN group site requires the researcher to Another helpful source is a skilled shown the three criteria called for in Section join. This takes time, but the information mechanic or a dealer. Often they will provide 1793.22. They are that the new vehicle falls available is tremendous. One excerpt from the you with copies of the manufacturer’s notices, within the claim period; the consumer has put site, for example, concerns brake defects: intercompany repair messages, or recall the manufacturer on notice and has presented Please see attached file on Toyota notices.

20 Los Angeles Lawyer November 2005

There have been “secret” problems regard- — LEMON LAW SPECIALISTS — ing which customers were informed only when they presented their vehicles for repair. We have obtained recoveries totaling millions of ✔ Automobiles These problems are difficult, but not impos- dollars for defective and unsafe vehicles. We ✔ Motorcycles sible, to uncover. A good example from the enjoy a superb success rate and obtain speedy and ✔ Motor Homes late 1980s involved the alleged self-accelera- ✔ full recoveries without litigation in nearly all cases. Boats tion of the Nissan 280ZX and 300ZX. The NHTSA complaint file contained numerous Delsack & Associates is known for experience, positive relationships with manufacturers, claims. The first paragraph of Nissan’s and speedy and satisfactory settlements. answering letters expresses sympathy for the DELSACK & ASSOCIATES, P.C. person’s plight and explains how this is the 1801 CENTURY PARK EAST, SUITE 2400, LOS ANGELES CA 90067 “first incident of this nature” concerning the model.6 PH (310) 475-1700 • FAX (310) 475-1799 • E-MAIL [email protected] WEBSITE www.lemonlawspecialists.com Finally, it can be very helpful to know about cars. Sometimes the danger of a defect may not be obvious to a person who is unfamiliar with the mechanical and electrical operations of cars. The customer and counsel must consider how to present the claimed defect so that it falls within the statutory definitions. Anyone presenting a Lemon Law claim should be completely familiar with the various codes that are found on the repair orders. Often, a visit to a local dealer (even the dealer that did the work) can help deci- pher the codes. It is a worthwhile exercise.

The Manufacturer’s Presentation The manufacturer’s representative may present his or her case by phone or in person. A local service manager or mechanic may also be present as a live witness. At the hearing, the manufacturer’s representative may examine the local service manager or mechanic. The client’s attorney must assume that the representative and witness are very well prepared. Depending on the relationship among the SERVING THE COMMUNITY consumer, the dealership, and its employees, THROUGH YOUR BETTER the service manager or mechanic may be BUSINESS BUREAU friendly and willing to talk to counsel before the hearing. At this stage of the proceeding, the witness is not usually represented by counsel, so there is no ethical violation to talk Successful completion of a one and a half-day to the witness. A conversation at this time can training will qualify you to become a volunteer be crucial. If counsel carefully probes and arbitrator for the BBB AUTO LINE program and actively listens, he or she can glean a great deal other consumer/business disputes for your local of information. Counsel can sense whether Better Business Bureau. Training sessions are this witness will be hostile. Counsel can also being held throughout the state of California as ask the witness about his or her feeling as to early as November 2005 and continuing into the whether there is a real problem with the car year 2006. or if the heart of the problem is nothing more than one customer’s dissatisfaction. If the Applications can be completed online at former scenario seems more likely, probe for www.dr.bbb.org and click on Training. some facts. If the latter does, try to determine the basis for the opinion: What does this or that repair code mean? How many other Please call 1.800.334.2406 ext. 374 or e-mail vehicles has the witness worked on with the [email protected]. BBB certiﬁed arbitrators are same or similar problem? What was done offered an honorarium of $100 for each while the vehicle was in the shop? Frequently, completed BBB AUTO LINE case they hear. the witness will give valuable information that can be helpful in the hearing. Do not make the witness become recalcitrant by being too aggressive. Counsel should also consider the ramiﬁcations of what happens

22 Los Angeles Lawyer November 2005 after the arbitration. If counsel takes an information all goes to show what a great and arbitrator. That way, all can follow the aggressive stance against the witness and the vehicle the consumer has purchased. testimony without the distraction of passing consumer loses the arbitration, where will The manufacturer’s representative will a document around the room. Third, the he or she get the vehicle serviced? then call his or her witness—typically, the manufacturer is given the opportunity to The consumer should understand that service manager or mechanic. The represen- cross-examine the witness. Fourth, when the whether appearing by phone or in person, the tative will introduce the work orders. His or consumer finishes his or her case, the manu- manufacturer’s representative will be pol- her job is to show how diligently the dealer facturer presents its defense. Finally, when ished and professional at the arbitration. The worked on the vehicle and that the problems both sides rest, the arbitrator will give them representative has the technical expertise of were normal. This is why it is important for the opportunity to give a closing argument. a large corporation at his or her disposal and the consumer to have read and understood all In the closing statement counsel for the can muster statistics, copies of all repair the repair orders, including the repair codes. consumer client may reiterate the statutory orders, and a number of persuasive stories. If the manufacturer’s witness dismisses elements, then specifically connect the testi- The consumer and counsel will need some the seriousness of the problem, cross-exam- mony and evidence to each element to show help to offset this technological asymmetry. ination should concentrate on how the defect that the burden of proof has been met. The First, counsel should usually not attempt to diminished the vehicle’s use, value, and safety effectiveness of this last step of the arbitration go head-to-head with the manufacturer’s rep- as viewed by a reasonable person or the gen- process is a function of prearbitration prepa- resentative, who, as a practical matter, is an eral public. Counsel may even ask the witness ration. It is a usual tactic for the manufac- expert with unlimited resources. The con- if he or she would take the vehicle on a busy turer’s representative to restate the statistics sumer’s attorney also should be prepared for highway with his or her family. This may and information showing how the model of the manufacturer’s representative to shower make the allegation of defect or poor repair vehicle that the defective one came from is the the arbitrator with statistical data such as, personal. The witness may become so defen- greatest ever made. This is not relevant, but “The manufacturer has assembled 1,234,587 sive that he or she becomes adversarial. In the the arbitrator often allows it without com- models of this vehicle in 17 countries in the process, the witness may inadvertently com- ment. The manufacturer’s representative will world. This vehicle has been badged as X in promise his or her credibility and objectivity. usually close by trying to show the consumer North America, Y in South America, and Z did not prove the case. It is predictable the in Europe. There have been no recalls and no Preparing the Client defense will focus on the defect, trying to governmental actions against any of the Many consumers are emotional when it con- show it was not material, because the other badged vehicles.” cerns their vehicles. This emotional relation- elements are generally easier to establish. Most of this information will be irrelevant ship can play havoc with their objectivity. Unless very gifted, the consumer is not to the particular case at hand; however, the Counsel’s best tactic is to thoroughly educate likely to be able to compete on the same statistical display is very influential. In essence, the client about the Lemon Law. Counsel technical level as the manufacturer’s repre- the manufacturer is attempting with this should explain what the presumption in Civil sentative. It is also unlikely the arbitrator argument to make the car’s failings statistically Code Section 1793.22 means and take time can work at that heightened technical level insignificant. The consumer’s attorney should to fully inform the client how important it is either. It is incumbent upon the consumer or not try to win a numbers-quoting contest to show that the defect is material. Once the counsel to make the case simple, straight- with a manufacturer’s representative. Instead, client understands the factual and legal forward, and within the Lemon Law criteria. the facts concerning the particular car in requirements, counsel must outline the plan Materiality of the alleged defect is the question, whether or not they are part of a to gather the necessary evidence. Achilles heel of the typical Lemon Law case, larger pattern, may be what ultimately mat- Most owners do not maintain complete and building a solid foundation of material- ters under the law. vehicle service records. It is not a good idea ity is the most crucial part of a Lemon Law Another tactic that manufacturer’s repre- to rely on the consumer’s recollection regard- arbitration. Although the BBB arbitration is sentatives sometimes rely on, especially if the ing the number of times the vehicle was pre- a helpful forum for the consumer, it requires vehicle is not top of the line, is to imply that sented for repair or how long it was kept in adequate evidentiary showing. The BBB is a if the consumer had purchased the top-of-the- the shop. Consequently, it is absolutely nec- business funded by businesses, and it is not line model, he or she would not have had the essary to get copies of all work orders. An prone to distributing the assets of its partic- alleged problems. It is common for the man- attorney should not even consider filing for ipants without an adequate showing. ■ ufacturer to take the position that if the con- a BBB arbitration until he or she has a com- sumer had purchased a more expensive plete history of the allegedly defective vehi- 1 See CIV. CODE §1793.22(e)(2). model, it would have had better construction, cle. Counsel must assume that the manufac- 2 Civil Code §1793.2(d)(2)(C) provides the statutory insulation, or electronics. The consumer’s turer will have all relevant documents. formula. The variables may be any significant modifications (sound system, new tires, or mechanical repairs attorney can call attention to the obvious Next, counsel should educate the client on or upgrades). The manufacturer will also credit license, flaw in this argument. the arbitration process. It can be confusing to title, registration, and sales and use tax. It is likely the arbitrator has previously someone who has never participated in an 3 Civil Code §1793.22(e)(1) defines “nonconformity” dealt with the manufacturer’s representative arbitration. It can be productive to do some as what substantially impairs the use, value, or safety and anticipates dealing with him or her in the role-playing. The BBB arbitration generally of the new motor vehicle to the buyer or lessee. This future. It is common for the arbitrator to adheres to the traditional arbitration mode of is also referred to as a “material defect.” 4 Griffey v. Chevrolet, GM offer Mar. 18, 2005 Service show deference to the manufacturer’s repre- question and answer. Request/File Number 1-239874049 (VIN- sentative. The consumer’s counsel should First, both parties are given an opportu- 1G1JH52FX47172523) (2005). therefore be prepared to object and to be nity to present an opening statement. Second, 5 See UNIFORM COMMERCIAL CODE §2314(2)(d), war- overruled. The consumer’s counsel may ask the consumer presents his or her case-in-chief ranty of merchantability. To be merchantable, “goods” the representative how any of the statistics with witnesses, evidence, and exhibits. It is may “run, within the variations permitted by the agreement, of even kind, quality and quantity within each presented or comments offered are relevant, prudent to make sufficient copies of any unit and among all units involved.” for example, but should be prepared for a exhibits. Usually four copies are sufficient: one 6 See NHTSA Investigation PE85-08 and 85-029, response to the effect that the cumulative each for the witness, counsel, other party, 1976-87 280Z & 300Z Recall, 87V-090.

Los Angeles Lawyer November 2005 23 by Paul J. Watford State Lines Redeﬁning the reach of the COMMERCE CLAUSE may be one of the important legacies of the Rehnquist Court

eshaping the Supreme Court’s federalism jurisprudence ruling that effectively nullifies California’s medical marijuana statute. may be one of the central legacies of William Rehnquist’s The Raich decision calls into question the notion, widely accepted until tenure as chief justice, particularly over the course of the now, that the Rehnquist Court has initiated a dramatic realignment past decade. Beginning in the mid-1990s, the Court of the legislative powers held by Congress and those reserved to the issued a series of decisions that curtailed the power of states. RCongress to legislate under the commerce clause1 and shielded states The commerce clause delegates to Congress the power “[t]o reg- from the enforcement of federal mandates.2 These decisions have led ulate Commerce with foreign Nations, and among the several many to credit the Rehnquist Court with bringing about a funda- States….”5 Although the clause would eventually become a major mental shift in the balance of power between the states and the fed- source of federal legislative authority, it played only a limited role in eral government. defining the size and scope of the national government for the first Recent decisions, however, suggest that it is still too early to tell century following the ratification of the U.S. Constitution. Its prin- how lasting a legacy the Rehnquist Court has left in this area. In the cipal purpose was to ensure that Congress had the power to prevent latest case pitting state sovereignty interests against the commerce individual states from erecting trade barriers that would hinder the clause powers of Congress—Gonzales v. Raich,3 which was decided formation of a unified national market, and most of the early com- last term—the Court dealt a decisive defeat to those advocating merce clause cases that reached the Supreme Court arose in precisely stronger protection of states’ rights.4 In Raich the Court held that application of the federal Controlled Substances Act (CSA) to the intrastate Paul J. Watford is a partner at Munger, Tolles & Olson LLP, where he special- cultivation and possession of marijuana for medicinal purposes does izes in appellate litigation. From 1995 to 1996, he served as a law clerk to U.S. not exceed the authority of Congress under the commerce clause, a Supreme Court Justice Ruth Bader Ginsburg. DENNIS IRWIN

24 Los Angeles Lawyer November 2005 that context.6 In these cases the Supreme Court was asked to inval- ulatory scheme could be undercut unless the intrastate activity idate state laws that allegedly discriminated against interstate com- were regulated.”21 merce.7 Thus the authority of Congress to enact legislation of its own Justices Stevens, Souter, Ginsburg, and Breyer dissented. They noted under the commerce clause was not at issue. that the objective of Congress in passing the act was to reduce the The first significant exercise of the “affirmative” commerce clause prevalence of school violence, which lowers educational attainment powers of Congress did not come until late in the nineteenth century, among students and thus poses a substantial threat to economic with the enactment of laws such as the Interstate Commerce Act in productivity and commerce generally.22 The majority, however, found 18878 and the Sherman Antitrust Act in 1890.9 For the next half cen- the act’s effects on interstate commerce too attenuated to satisfy the tury, the Supreme Court struggled to develop a workable standard demands of the commerce clause.23 for determining which legislative enactments fell within the power of The Court’s decision five years later in United States v. Morrison24 Congress to regulate interstate commerce and which did not. The suggested that Lopez might have marked the beginning of a dramatic Court started from the premise that, because the Constitution created reassessment of the Court’s commerce clause jurisprudence. In a national government of enumerated powers, the authority granted Morrison, the Court struck down a provision of the Violence Against to Congress pursuant to the commerce clause had to be meaningfully Women Act that allowed victims of gender-motivated violence to bring constrained. Otherwise, the Court feared, “there would be virtually a civil suit against the perpetrators in state or federal court.25 The Court no limit to the federal power and for all practical purposes we should split 5-4 along the same lines as in Lopez, with the chief justice have a completely centralized government.”10 Acting on that concern, again writing for the Court. The majority rejected the extensive find- the Court showed no hesitation in striking down federal laws on the ings Congress had compiled to show the substantial effect violence ground that the legislation in question exceeded Congress’s author- against women has on the national economy.26 According to the ity under the commerce clause.11 majority, the civil remedy provision of the Violence Against Women By all accounts, however, the Court’s efforts to develop a coher- Act, like the Gun-Free School Zones Act, did not regulate commer- ent doctrine for limiting the scope of the commerce clause powers of cial conduct. Instead, the Court held, the Violence Against Women Congress were unsuccessful. The Court initially attempted to distin- Act addressed noneconomic acts of violence that had no connection guish between “production” or “manufacturing” and commerce with interstate commerce and were therefore beyond Congress’s and held that Congress had no authority to regulate activities on the power to regulate under the commerce clause.27 production side of the line—that is, prior to the point when goods enter the stream of commerce.12 When that distinction proved Medical Marijuana unworkable in subsequent cases, the Court abandoned it and adopted Lopez and Morrison set the stage for the next major test of the instead a test that attempted to distinguish between “direct” and “indi- Rehnquist Court’s apparent shift toward pre-New Deal conceptions rect” effects on interstate commerce. Under this test, those activities of the commerce clause authority of Congress. That test came last term that had merely indirect effects on interstate commerce fell outside in Raich,28 which involved a conflict between California’s desire to Congress’s power to regulate.13 But in time that test, too, proved legalize medicinal marijuana use and the federal government’s inter- unworkable. est in establishing a uniform national drug policy. Finally, in 1937, under pressure from President Franklin Roosevelt The respondents in Raich were California residents who sought to uphold the major legislative components of the New Deal, the Court to use marijuana for medicinal purposes in compliance with backed away from its earlier attempts to confine Congress’s commerce California’s Compassionate Use Act,29 an initiative measure passed clause authority within narrow channels. Beginning with NLRB v. by California voters in 1996. The Compassionate Use Act authorizes Jones & Laughlin Steel Corporation,14 the Court issued a series of the cultivation and possession of marijuana for medicinal purposes decisions upholding legislation that significantly expanded the size and pursuant to a doctor’s recommendation.30 The federal Controlled power of the federal government.15 The Court ultimately adopted a Substances Act, however, classifies marijuana as a Schedule I controlled test for assessing the constitutionality of legislation enacted under the substance and renders essentially any possession of marijuana illegal commerce clause that asked only whether Congress had a rational basis under federal law. The CSA reflects the judgment of Congress that there for concluding that the regulated activity “substantially affects” are no currently acceptable medical uses of the drug.31 The respon- interstate commerce.16 dents in Raich argued that Congress lacked authority under the commerce clause to extend the CSA’s reach to their intrastate culti- Guns and Gender-Motivated Violence vation and possession of marijuana for medicinal use in compliance For almost 60 years after Jones & Laughlin, the Supreme Court did with state law. They argued that the CSA, as applied to those activ- not strike down a single federal law on the ground that the enactment ities, was therefore unconstitutional. The Ninth Circuit accepted exceeded Congress’s authority under the commerce clause. This this argument, relying on the Supreme Court’s earlier decisions in period of more relaxed commerce clause scrutiny saw the Court sus- Lopez and Morrison. tain the validity of a wide range of federal legislation that is now largely To the disappointment of medical marijuana advocates, as well as taken for granted, such as the provisions of the Civil Rights Act of those who hoped Raich would further limit the commerce clause pow- 1964 prohibiting racial discrimination in hotels, restaurants, and ers of Congress, the Supreme Court reversed the lower court in a 6- other places of public accommodation.17 3 decision authored by Justice John Paul Stevens. The majority was The tide appeared to turn in 1995, however, in United States v. composed of the four dissenters in Lopez and Morrison—Justices Lopez.18 In that case, by a 5-4 vote, the Court struck down the Stevens, Souter, Ginsburg, and Breyer—and two defectors from the Gun-Free School Zones Act of 1990, which prohibited possession of Lopez/Morrison majorities—Justices Scalia and Kennedy. Justice a firearm within 1,000 feet of any public, parochial, or private Kennedy joined the opinion of the Court in full without setting forth school.19 Writing for the majority, Rehnquist explained that the separate views of his own. Although Scalia authored an opinion Gun-Free School Zones Act did not regulate commercial or eco- concurring only in the judgment, he appeared to articulate an even nomic activity; it simply banned possession of a firearm within close broader view of Congress’s authority under the commerce clause than proximity to a school—an activity that had nothing to do with com- that embraced by the majority. merce.20 Moreover, the majority noted, the act was not “an essen- Given the ostensible similarities between Lopez and Raich, the tial part of a larger regulation of economic activity, in which the reg- immediate question confronting the Court was how the purely

26 Los Angeles Lawyer November 2005 intrastate cultivation and possession of marijuana differed in any mate- The majority in Raich held that the respondents stood in the rial respect from the purely intrastate possession of a gun in Lopez. same shoes as the farmer in Wickard. Although the respondents’ own Indeed, the respondents in Raich seemed to have a stronger hand, given intrastate cultivation and possession of marijuana did not have a sub- that they were acting in compliance with an otherwise valid state law. stantial effect on interstate commerce, the majority held that Congress The defendant’s possession of a gun on school grounds in Lopez con- had a rational basis for concluding that, in the aggregate, these activ- stituted a violation of applicable state law, and thus the case did not ities could have a substantial effect on the interstate market for mar- involve a clash between competing state and federal interests.32 The ijuana.39 That conclusion would be open to question if the relevant effect of rejecting the commerce clause challenge by the respondents subclass of regulated conduct had been defined narrowly to include in Raich was the nullification (or at least a substantial undermining) only the intrastate cultivation and possession of marijuana for med- of California’s policy judgment concerning a matter within a core area icinal use in compliance with state law, as the respondents urged.40 of state sovereignty— There was no evi- the protection of the dence in the record health and welfare of demonstrating the the state’s citizens. impact, if any, that an Despite the strong exemption of this state sovereignty inter- small subclass of ests at stake in Raich, activities from the the majority had lit- CSA’s reach would tle difficulty rejecting likely have on the the arguments ad- interstate market for vanced by the respon- marijuana.41 But the dents and the dis- majority avoided this senters. The majority problem by defining noted initially that the the relevant subclass challenge asserted by of regulated conduct the respondents in more broadly—name- Raich regarding the ly, possession of lo- application of the cally grown mari- CSA differed from the juana for personal use facial challenges as- of any kind.42 Ex- serted in Lopez and empting all personal Morrison.33 In Raich, use of marijuana from no one disputed that the CSA’s general ban, the CSA was a valid the majority con- exercise of Congress’s cluded, would clearly commerce clause pow- have a substantial ers. The respondents effect on the interstate contended only that, market for mari- given the purely in- juana.43 trastate nature of their Although there are activities, Congress similarities between had no authority to Raich and Wickard, sweep those activities the parallels between within the reach of the CSA.34 Moreover, unlike the legislation at issue the two cases are by no means perfect. The purpose of the regulatory in Lopez and Morrison, which regulated a single class of activities, scheme at issue in Wickard was price control, and it was thus easy the CSA’s ban on the cultivation and possession of marijuana was to see how allowing an exemption for intrastate activities that sig- arguably part of a larger regulatory scheme whose overall effective- nificantly reduced demand for wheat sold in the interstate market ness would be thwarted if particular subclasses of activities were would thwart the achievement of the broader regulatory objective. exempted from its scope.35 It is far less clear that the same can be said for the narrow exemp- After noting these distinctions, the majority concluded that Raich tion from the CSA sought by the respondents in Raich. The CSA’s pur- was controlled not by Lopez and Morrison but by Wickard v. pose is to ban the interstate market for marijuana altogether. If a state Filburn,36 in which the Court upheld federal restrictions on wheat pro- decides in limited circumstances to authorize possession of mari- duction as applied to a small farmer who grew wheat that was used juana that is not intended for the interstate market at all, it is diffi- solely for personal consumption. In Wickard, the Court declared that cult to argue that this state action undermines the entire regulatory Congress’s power under the commerce clause extends to purely objective of the CSA. intrastate activities if those activities, in the aggregate, will have a sub- Thus the real conflict in Raich concerned the differing state and fed- stantial effect on interstate commerce.37 That test was met in Wickard, eral policy judgments as to whether medicinal use of marijuana should the Court held, because the regulatory scheme at issue was designed be permitted. The federal government, despite a long-running campaign to stabilize the price of wheat by limiting output, and exempting all by advocates of medical marijuana, has refused to remove marijuana wheat produced for home consumption would undermine the gov- from Schedule I under the CSA, reflecting the judgment of federal ernment’s regulatory objective: “[Home-grown wheat] supplies a policymakers that marijuana has not yet been shown to have any need of the man who grew it which would otherwise be reflected by legitimate medical uses.44 The citizens of California have made the pre- purchases in the open market. Home-grown wheat in this sense cisely opposite policy judgment, declaring that marijuana does have legit- competes with wheat in commerce.”38 imate and acceptable medicinal uses in certain circumstances.45

Los Angeles Lawyer November 2005 27 This conflict between state and federal Power Volvo South Bay EXPERIENCED PSYCHOTHERAPIST legislative policies formed the principal basis INDIVIDUAL, COUPLE & FAMILY THERAPY for Justice O’Connor’s dissent in Raich. She argued that California’s Compassionate Use Lowest prices in town. Act was an exercise of the state’s core sover- • Anger Management eign power to “define criminal law and to pro- Scheduled maintenance for • Depression 36 months/36,000 miles FREE tect the health, safety, and welfare of [its] on new 2005’s. • Relationship Conflict citizens.”46 She questioned whether the fed- • Parenting eral government should be permitted to FREE AIRFARE FOR • Effective Communication occupy this realm to the exclusion of the EURO DELIVERY! states. In O’Connor’s view, the federalism Call John Sonne at (310) 325-3255 CALL 310.550.7818 concerns that had animated the Rehnquist for details and to schedule a Court’s decisions in prior cases provided a test drive. ELAINE VERCHICK, MA, MFT fully sufficient justification for construing (Lic.# MFC 33928) narrowly the commerce clause powers of Congress in this instance: “We enforce the ‘outer limits’ of Congress’s Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fun- damental to our federalist system of government.”47 As the outcome in Raich reflects, these federalism concerns were simply not strong enough to hold together the five-justice majority that had successfully defended state sovereignty interests from federal intrusion during much of the Rehnquist Court’s tenure.

Post-Raich Developments Following the Court’s decisions in Lopez and Morrison, advocates relied on those cases to attack a surprisingly diverse array of federal enactments as exceeding Congress’s commerce clause powers, and lower courts were at least somewhat receptive. In the wake of Raich, however, whatever momen- Your attendance at this program NITA’S BUILDING TRIAL tum Lopez and Morrison had generated for will qualify for one credit toward SKILLS PROGRAM curtailing the commerce clause powers of the NITA Advocate Designation Congress seems to have been halted. At the January 2–8, 2006 listed on LexisNexis® Martindale- very least, Raich will likely cause lower Hubbell®. Loyola Law School courts to proceed with more caution as they Los Angeles, California NITA estimates this program to ponder further commerce clause challenges provide 46.0 CLE credit hours, to federal legislation, a result perhaps fore- Learn from the best trial lawyers, of which 2.0 hours will apply to shadowed by the cases the Supreme Court judges, and law professors. This legal ethics. NITA is a State Bar of disposed of immediately after issuing its deci- hands-on, intense program will California MCLE approved provider. sion in Raich. enhance your skills in: In a closely watched case from the Fifth • Case analysis Scholarships and interest-free Circuit, a developer asserted a commerce payment plans are available. clause challenge to the Endangered Species • Jury selection Act on the ground that Congress had no • Communication To register or for more authority to extend the act’s coverage to sev- • Opening statements information call: eral species of small insects that have no commercial value and live entirely within a • Direct and cross-examination 800-225-6482 single state.48 Relying on Lopez and • Examination of lay witnesses Morrison, the developer argued that Congress • Impeachment and rehabilitation lacks authority to regulate species with no conceivable connection to interstate com- • Introduction of evidence and merce. One week after its decision in Raich, demonstrative exhibits National Institute for Trial Advocacy however, the Supreme Court denied the devel- • Closing arguments E-mail: [email protected] • www.nita.org oper’s petition for certiorari without a single dissent. The case had been viewed by many as the next logical battleground in the ﬁght

28 Los Angeles Lawyer November 2005 over the proper scope of Congress’s commerce clause authority.49 In another closely watched case, the Ninth Circuit relied on Lopez and Morrison to reverse a criminal conviction for possession of a homemade machine gun.50 Because the machine gun had not moved in interstate commerce, and because the mere possession of the gun could not be said to “substantially affect” interstate commerce, the Ninth Circuit concluded that the application of federal firearms laws in the case exceeded Congress’s commerce clause powers. The Supreme Court vacated that decision and remanded the case to the Ninth Circuit for reconsideration in light of Raich. Finally, the Eleventh Circuit reversed a federal criminal conviction for production and possession of child pornography in a case involving a defendant who took sexually explicit photographs of underage girls and kept them at his home. Relying on Lopez and Morrison, the Eleventh Circuit held that “purely intrastate, noncommercial production and possession of child pornography” falls outside the regulatory authority of Congress under the commerce clause.51 The Supreme Court vacated that decision as well and remanded the case for reconsideration in light of Raich. As even this small sampling of cases reflects, the commerce clause powers of Congress remain highly relevant to the federal government’s ability to regulate a wide range of conduct. The Supreme Court’s decisions construing the power of Congress to “regulate Commerce…among the several States” thus continue to have considerable importance, despite the somewhat arcane nature of the subject. Raich has left the direction of the law very much in ﬂux in this area, and the current changes in the Court’s com- position only add to the uncertainty. It may be that following the intervening events of September 11, Raich signals a shift away from the curtailment of Congress’s commerce clause powers that began in Lopez and Morrison. This type of shift would not be without historical precedent. In the late 1930s the Court responded to the exigen- cies created by the Great Depression by relax- ing the limits it had earlier placed on Congress’s authority to legislate under the commerce clause. A post-September 11 world, in which many have called for the national government to assume a more dominant role, may similarly influence the direction the Court’s commerce clause jurisprudence takes in the years ahead. ■

1 United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). 2 See, e.g., Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001); Kimel v. Florida Bd. of Regents, 528

Los Angeles Lawyer November 2005 29 U.S. 62 (2000); Seminole Tribe of Fla. v. Florida, 517 Laughlin, 301 U.S. 1 (upholding National Labor 40 Id. at 2224 (O’Connor, J., dissenting). U.S. 44 (1996). Relations Act). 41 Id. at 2208; id. at 2226 (O’Connor, J., dissenting). 3 Gonzales v. Raich, 545 U.S. __, 125 S. Ct. 2195 16 See United States v. Lopez, 514 U.S. 549, 559 (1995). 42 Id. at 2212. (2005). 17 Katzenbach v. McClung, 379 U.S. 294 (1964); Heart 43 Id. at 2206-07. 4 Advocates of greater state autonomy also suffered a of Atlanta Motel, Inc. v. United States, 379 U.S. 241 44 Schedule I drugs “are categorized as such because of defeat in last term’s Granholm v. Heald, 544 U.S. __, (1964). their high potential for abuse, lack of any accepted med- 125 S. Ct. 1885 (2005). In Granholm, the Court inval- 18 Lopez, 514 U.S. 549. ical use, and absence of any accepted safety for use in idated state laws that permitted in-state wineries to ship 19 18 U.S.C. §§921(a)(25), 922(q)(1)(A). medically supervised treatment.” Id. at 2204; see directly to consumers but precluded out-of-state winer- 20 Lopez, 514 U.S. at 561. Alliance for Cannabis Therapeutics v. DEA, 15 F. 3d ies from doing so. The Court held that these conced- 21 Id. 1131, 1133 (D.C. Cir. 1994). edly discriminatory state laws were not saved by the 22 Id. at 623-24 (Breyer, J., dissenting). 45 This term, the Court will confront another conflict Twenty-first Amendment, which grants states signifi- 23 Id. at 565-66. between differing federal and state policy judgments. cant control over the regulation of liquor within their 24 United States v. Morrison, 529 U.S. 598 (2000). The subject this time is assisted suicide. The case borders. 25 42 U.S.C. §13981. involves federal efforts to block the implementation of 5 U.S. CONST. art. I, §8, cl. 3. 26 Morrison, 529 U.S. at 614-15; see id. at 628-36 Oregon’s Death With Dignity Act. Oregon v. Ashcroft, 6 Raich, 125 S. Ct. at 2205. (Souter, J., dissenting). 368 F. 3d 1118 (9th Cir. 2004), cert. granted sub 7 See, e.g., Gibbons v. Ogden, 22 U.S. 1 (1824). 27 Id. at 617-18. nom. Gonzales v. Oregon, 125 S. Ct. 1299 (2005) 8 The Interstate Commerce Act, 24 Stat. 379 (1887). 28 Gonzales v. Raich, 545 U.S. __, 125 S. Ct. 2195 (No. 04-623). 9 The Sherman Antitrust Act, 26 Stat. 209 (1890). (2005). 46 Raich, 125 S. Ct. at 2221 (O’Connor, J., dissenting). 10 A.L.A. Schechter Poultry Corp. v. United States, 29 HEALTH & SAFETY CODE §§11362.5, 11362.7- 47 Id. at 2220 (O’Connor, J., dissenting). 295 U.S. 495, 548 (1935). 11362.9 (2005). 48 GDF Realty Invs., Ltd. v. Norton, 326 F. 3d 622 (5th 11 See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 30 HEALTH & SAFETY CODE §11362.5(d). Cir. 2003), cert. denied, 125 S. Ct. 2898 (2005). (1936) (invalidating law that prohibited unfair labor 31 21 U.S.C. §812(c); see Raich, 125 S. Ct. at 2204, 49 The Court was presented with a somewhat similar practices in the coal industry); Hammer v. Dagenhart, 2211. commerce clause challenge in Solid Waste Agency of 247 U.S. 251 (1918) (invalidating law that banned 32 See United States v. Lopez, 514 U.S. 549, 552 (1995). Northern Cook County v. Army Corps of Engineers, shipment of goods in interstate commerce that had 33 Raich, 125 S. Ct. at 2209. 531 U.S. 159 (2001). The case focused on whether pro- been manufactured using child labor); Adair v. United 34 Id. at 2204-05. visions of the Clean Water Act could be applied to non- States, 208 U.S. 161 (1908) (invalidating law that pro- 35 Id. at 2210. navigable, intrastate bodies of water that provided tected membership in labor unions). 36 Wickard v. Filburn, 317 U.S. 111 (1942). habitat for migratory birds. The Court held that 12 See, e.g., United States v. E.C. Knight Co., 156 U.S. 37 Id. at 127-28 (“That appellee’s own contribution to Congress never intended to extend the Clean Water Act 1, 12 (1895) (“Commerce succeeds to manufacture, and the demand for wheat may be trivial by itself is not that far, thereby avoiding the need to decide whether is not a part of it.”). enough to remove him from the scope of federal reg- Congress had exceeded its authority under the com- 13 See, e.g., A.L.A. Schechter, 295 U.S. at 548. ulation where, as here, his contribution, taken together merce clause. 14 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 with that of many others similarly situated, is far from 50 United States v. Stewart, 348 F. 3d 1132 (9th Cir. (1937). trivial.”). 2003), vacated, 125 S. Ct. 2899 (2005). 15 See, e.g., United States v. Darby, 312 U.S. 100 38 Id. at 128. 51 United States v. Smith, 402 F. 3d 1303, 1315 (11th (1942) (upholding Fair Labor Standards Act); Jones & 39 Raich, 125 S. Ct. at 2206-07. Cir.), vacated, 125 S. Ct. 2938 (2005).

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30 Los Angeles Lawyer November 2005 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 33.

by Eve Hill and Sheila Khan-Variba Challenging Barriers

California’s more California has prohibited discrimination inconsistencies have led to disparate results on the basis of disability for over 30 years1 in cases alleging disability discrimination, through such laws as the Fair Employment specifically in the context of claims about and Housing Act (FEHA),2 the Unruh Civil physical access and academic testing. Rights Act,3 and the Blind and Other Phy- The first challenge in applying the laws expansive definition sically Disabled Persons Act.4 As other juris- prohibiting disability discrimination is to dictions develop antidiscrimination laws of determine who is entitled to protection by for- their own, California continues to aggres- mulating an appropriate definition of a “dis- sively prohibit discrimination, including disability.” Fortunately, a wealth of case law ability discrimination. shows that courts have done just that. The of disability Federal law—including the Rehabilitation cases have centered on whether the protected Act of 1973,5 the Fair Housing Amendments group should be 1) large, with the court Act of 1988,6 and the Americans with focusing the legal inquiry on whether the Disabilities Act of 1990 (ADA)7—embodies plaintiff was treated unfairly, or 2) small, principles similar to those found in California with the court focusing on whether the plain- provides protection law on the issue of disability rights. However, tiff is so significantly limited in his or her federal law has taken an approach funda- abilities that a reasonable accommodation mentally different from California’s regard- is justified. The U.S. Supreme Court has inter- ing the redress of disability discrimination, preted the federal Americans with Disabilities specifically in the definition of what consti- Act8 to protect a limited class of people with for more people tutes a “disability.” disabilities: those whose impairments “sub- Moreover, while federal law preempts stantially” limit major life activities.9 state laws that provide lesser protection from discrimination, state laws that exceed federal Eve Hill is the executive director of the Western Law requirements remain in force. As a result, Center for Disability Rights. Sheila Khan-Variba than federal law the application of disability discrimination is an in-house counsel in the Fox Group Legal laws has varied from state to state. These Department.

Los Angeles Lawyer November 2005 31 In Sutton v. United Airlines, Inc.10 the impairment is limiting. California thereby plaintiff encountering disability discrimination Supreme Court held that the ADA only pro- avoids the Catch-22 that federal law imposes may pursue damages under either the Unruh tects people whose physical or mental impair- on people with disabilities—mitigate an Act or the Blind and Other Physically ments currently (that is, at the time of the impairment and lose protection, or do not Disabled Persons Act, both of which pro- alleged discrimination) limit a major life activ- mitigate and lose the ability to perform a hibit the same forms of discrimination cov- ity substantially. The court reasoned that if a job. Therefore, employees in California may ered by the ADA. person was using mitigating measures—such take their medication, for instance, and still The ADA does not provide for damages as glasses, hearing aids, or medication—to be considered persons with a disability under for discrimination by private businesses.23 reduce the effects of his or her impairment at the law. However, under federal and California law, the time of the alleged discrimination, the Under California law, discrimination on a prevailing plaintiff may recover his or her limitation caused by the impairment should the basis of minor impairments is considered reasonable attorney’s fees.24 be balanced against the mitigating measures. irrational and thus prohibited. On the other In California, when access violations are Thus the plaintiffs in Sutton, whose vision hand, the complexity and expense of the unremedied, damages are available based on impairment was rectified by glasses, were accommodations required for the disability statutory liability and the doctrine of con- not substantially limited in the major life must be proportional to the severity of the dis- tinuing violations.25 Under this doctrine, a activity of seeing, and United Airlines was free ability. Thus, California law attempts to focus person who is deterred from seeking access to exclude them from its employment appli- on the fairness of the treatment to which the because of a known physical access barrier is cant pool without further consideration. person is subjected, not on limiting the size deemed to have been denied access. Therefore, Federal courts have interpreted the “sub- of the protected class. This is the same a business may be held liable for each time stantial limitation” requirement narrowly to approach that is used in the context of race that person is deterred.26 However, this does exclude people whose impairments can be and gender civil rights laws. Those laws do not mean that the person with a disability is treated to some extent by medications or not consider how female or male a person is, entitled to $4,000 in damages for every day equipment.11 Courts have applied the Sutton or how much minority ancestry he or she of an architectural barrier’s existence. interpretation to exclude from ADA protec- has. They instead focus on the discrimination Some businesses argue that the availabil- tion people with a variety of mitigated impair- and its causation. ity of statutory damages and attorney’s fees ments such as diabetes,12 depression,13 and Some businesses argue that California’s has led to a rash of claims concerning barri- epilepsy.14 seemingly boundless definition of a disability ers that businesses would have fixed volun- Many argue that this limitation is neces- permits employees and patrons to sue based tarily if they had been given notice. These sary to prevent the granting of unnecessary upon policies that are not intended to harm claims often seek only monetary compensa- civil rights protection to people who do not people with disabilities. And they further tion, without demanding that the barrier have “real” disabilities—such as people who argue that the burdens of disability discrim- actually be removed. Neither Title III of the are slightly near-sighted and wear contact ination litigation on businesses and the courts ADA nor California disability rights laws lenses or people who have backaches that cannot be justified. However, these argu- require prefiling notification or the exhaustion are controlled by pain medication. They posit ments seek to supplant the balance the of administrative remedies for suits over that businesses and employers need to be California Legislature has struck to prevent access to businesses. Thus, a person with a dis- protected from lawsuits and expensive discrimination on one hand and stymie friv- ability who encounters a barrier to access is requests for reasonable accommodation by olous lawsuits on the other.17 While suits not statutorily required to inform the business people with minor impairments. Others dis- containing claims of disability discrimina- (or any government agency) about the vio- agree, contending that the substantial limi- tion may pose incidental burdens on busi- lation before filing suit and recovering dam- tation requirement can go too far. In their nesses and the judicial system, significant ages. However, there is a developing judicial view, people with depression who respond obstacles must be overcome before plaintiffs trend under both the ADA and California law well to medication could be refused a job can prevail in these suits. These hurdles prin- to require notification by imposing limita- because of their depression, even if it has no cipally are causation and available damages tions on recovery. relevance to job performance—a refusal with and, absent significant discrimination, they Some courts have limited the recovery of a discriminatory basis. Employers could argue often make it impractical to bring suit in the attorney’s fees in situations in which a prefiling successfully that people with medically treat- first place. notice is not given to the offending business. able depression do not have a disability and In Doran v. Del Taco, Inc.,27 although the are not protected by the ADA because their Damages for Discrimination plaintiff was a prevailing party, and notifi- impairment is not substantially limiting when Another major difference between the ADA cation is not a prerequisite prior to filing a they take their medication. Disability advo- and California law is the availability of dam- lawsuit, the federal district court determined cates argue that this type of irrational exclu- ages for victims of discrimination by busi- as an exercise of its discretion that “no attor- sion is exactly what the disability rights laws nesses. Both Title III of the ADA18 and neys’ fees are recoverable in the absence of a should address and forbid. California law require places of public accom- pre-litigation unambiguous warning notice A few years ago, the California Legislature modation (which include most private busi- and a reasonable opportunity to cure the amended the Fair Employment and Housing nesses that are open to the public) to remove ADA violation.” Similarly, in Graham v. Act to make clear that California’s defini- physical barriers to access—such as steps, DaimlerChrysler Corporation,28 the Cal- tion of “disability” diverges from that in the heavy doors, and narrow aisles—or to pro- ifornia Supreme Court held that plaintiffs ADA.15 Under California law, a person is vide alternate means of access. The Unruh must engage in a reasonable attempt to set- considered to have a disability if his or her Civil Rights Act19 provides for either $4,000 tle their dispute with the defendant before lit- impairment limits a major life activity. Proof statutory damages or up to three times actual igation in order to recover fees as a private of substantial limitation is not required.16 damages.20 Similarly, the Blind and Other attorney general. Moreover, California does not consider mit- Physically Disabled Persons Act21 provides for Other courts and defendants have sought igating measures, such as medication or hear- $1,000 statutory damages or up to three the protections of the restrictions on vexatious ing aids, when determining whether a person’s times actual damages.22 In most cases, a litigants, which traditionally are used to curb

32 Los Angeles Lawyer November 2005 MCLE Test No. 142 MCLE Answer Sheet #142 CHALLENGING BARRIERS

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. The federal Americans with Disabilities Act (ADA) pre- 12. Both California law (the Unruh Civil Rights Act and Address empts state disability rights laws to the extent they pro- the Blind and Other Physically Disabled Persons Act) vide lesser protection than the ADA. and Title 3 of the ADA allow parties to recover damages City True. for disability discrimination by private businesses. State/Zip False. True. E-mail False. Phone 2. California law has provided disability rights protections for over 30 years. 13. The Unruh Civil Rights Act provides damages in the State Bar # True. sum of up to treble actual damages or statutory dam- False. ages of $4,000 per violation. INSTRUCTIONS FOR OBTAINING MCLE CREDITS True. 1. Study the MCLE article in this issue. 3. The ADA is the first federal law to outlaw disability False. 2. Answer the test questions opposite by marking discrimination. the appropriate boxes below. Each question True. 14. A private business can be liable for a violation of has only one answer. Photocopies of this answer sheet may be submitted; however, this False. the California disability rights laws each time a person form should not be enlarged or reduced. with a disability is deterred from access to the business. 4. The ADA, as interpreted by the U.S. Supreme Court True. 3. Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to: in Sutton v. United Airlines, Inc., protects people with False. physical or mental impairments that can be mitigated Los Angeles Lawyer by medication or devices such as glasses or hearing aids. 15. The ADA requires people with disabilities to notify MCLE Test P.O. Box 55020 True. private businesses of any violations before filing a law- Los Angeles, CA 90055 False. suit. Make checks payable to Los Angeles Lawyer. True. 5. The Sutton decision interpreted the ADA as pro- False. 4. Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a hibiting discrimination on the basis of a disability, rationale for the correct answers, and a even if the disability only existed in the past. 16. The district court in Molski v. Mandarin Touch certificate verifying the MCLE credit you earned True. Restaurant held that the only factor in deciding whether through this self-assessment activity. False. a person with a disability is a vexatious litigant is 5. For future reference, please retain the MCLE whether he or she has filed more than 300 lawsuits. test materials returned to you. 6. It is difficult for people with mitigated impairments— True. such as diabetes, depression, and epilepsy—to be False. ANSWERS protected from discrimination under the ADA. Mark your answers to the test by checking the True. 17. In Turner v. Association of American Medical appropriate boxes below. Each question has only one answer. False. Colleges, the superior court held that California law should be applied to accommodation requests made ■ ■ 7. Mitigating measures under the ADA include med- by California examinees sitting for the Medical College 1. True False ications as well as equipment. Admission Test. 2. ■ True ■ False True. True. 3. ■ True ■ False False. False. 4. ■ True ■ False ■ ■ 8. The ADA does not apply to private businesses. 18. California has played a leading role in the early 5. True False True. development of disability discrimination law. 6. ■ True ■ False False. True. 7. ■ True ■ False False. 8. ■ True ■ False 9. The California Fair Employment and Housing Act ■ ■ (FEHA) was amended in 2000 to adopt the same defi- 19. Courts in states other than California generally 9. True False nition of disability contained in the ADA. have interpreted their state laws to define disability in 10. ■ True ■ False True. the same way as the ADA. 11. ■ True ■ False False. True. 12. ■ True ■ False False. 13. ■ True ■ False 10. The California disability rights laws apply to a nar- rower group of people than the group protected by the 20. The Unruh Civil Rights Act and the Blind and Other 14. ■ True ■ False federal ADA. Physically Disabled Persons Act, like FEHA, are designed 15. ■ True ■ False True. to regulate employer-employee relationships. 16. ■ True ■ False False. True. 17. ■ True ■ False False. 11. FEHA protects people whose impairments limit, 18. ■ True ■ False but do not substantially limit, a major life activity. 19. ■ True ■ False True. 20. ■ True ■ False False.

Los Angeles Lawyer November 2005 33 pro se plaintiffs who file multiple, frivolous began enacting its laws in this area 30 years made and a plaintiff nevertheless files suit, the lawsuits against the same defendant. Recently ago and since the ADA went into effect 15 business could be permitted to offer evidence courts have taken the position that a person years ago. They also note that the number of of the modifications as mitigation of the with a disability who files numerous com- people with disabilities who abuse the dis- alleged violation. plaints over access barriers may be considered ability laws are very few. Business advocates a vexatious litigant if he or she seeks com- respond that repetitive lawsuits are simply Disability Law and Standardized Testing pensation for similar injuries and resolves or extortion attempts that do not further the The differences between California and fed- drops many of the cases without litigation. In goals of the disability rights laws but unduly eral law have now extended beyond employ- Molski v. Mandarin Touch Restaurant,29 the interfere with the legitimate conduct of busi- ment and physical barriers. Recently, a plaintiff filed a suit claiming the defendant’s ness activities. California court ruled that California’s broad inaccessible restroom caused him injury. Legislators have attempted to address this definition of “disability” also applies in the Because the plaintiff had filed over 300 suits perceived problem through legislative pro- realm of standardized testing. In July 2005, a number of California students (along with the International Dyslexia Disability rights advocates argue that restrictions for Association and the National Disabled Students Union) filed a lawsuit against the vexatious litigants in the context of disability Association of American Medical Colleges (AAMC) claiming that they should be afforded additional time to take the Medical discrimination litigation unduly restrict the ability of College Admission Test (MCAT) as a reasonable accommodation under state law.31 In Turner v. Association of American Medical people with disabilities to enforce access laws that Colleges, the students claimed that their various disabilities—including attention deficit hyperactivity disorder and dyslexia—affect the businesses have been ignoring since California began conditions, manner, and duration necessary for their completion of the MCAT.32 The plaintiffs are seeking accommodations for enacting its laws in this area 30 years ago and since their disabilities. At issue in this lawsuit is the AAMC’s the ADA went into effect 15 years ago. eligibility criteria for testing accommodations. Specifically, the plaintiffs challenged the AAMC’s use of the ADA “substantial against different defendants for access prob- posals that would require claimants to notify limitation” analysis instead of California’s lems in the several years prior to this suit businesses in advance of filing suit and pro- “limitation” disability standard when review- and had filed 13 suits claiming similar injuries vide businesses with an opportunity to fix the ing accommodation requests made by against other defendants for the same four-day identified problems.30 The proposals, however, California examinees. The plaintiffs argued period of the claim in this case, the court have been drafted so broadly that they would that the AAMC’s failure to provide accom- found that he was a vexatious litigant. The excuse businesses not just for access barriers modations violates their civil rights guaran- Molski court considered five factors: 1) the but also for intentionally excluding people teed by California law. This echoes the posi- plaintiff’s history of litigation, 2) his motive with disabilities, such as through a blanket tion of many disability rights advocates. The in pursuing the lawsuit at issue, 3) whether “no pets” policy that is used to exclude blind plaintiffs also maintained that because the the plaintiff was represented by counsel, 4) persons with service dogs. MCAT is not designed to measure reading or whether the plaintiff had caused unneces- These proposals also have failed to rec- writing speed but instead assesses reasoning sary expense to other parties or posed an ognize that federal and California law impose skills, analytical abilities, and knowledge of unnecessary burden on the courts, and 5) affirmative obligations on businesses to make scientific topics, extra time would not com- whether other sanctions would sufficiently their facilities accessible. Like health and promise the predictive validity or integrity of protect the parties. safety laws, OSHA requirements, and other the exam. Without the requested accommo- In finding that plaintiff Molski was a vex- civil rights laws, disability laws do not defer dations, the plaintiffs claimed that they can- atious litigant, the court relied primarily on compliance until after a complaint is filed. The not demonstrate their knowledge and skills by the plaintiff’s history of filing lawsuits and statutes also do not require the person with their performance on the MCAT. found that his motive was a bad faith desire a disability to educate a business about pro- The plaintiffs asserted claims under to extract cash. The court also found that the hibitions against disability discrimination California’s Unruh Civil Rights Act33 and plaintiff’s lawyer acted in bad faith by advis- after a violation, thereby acting as an access the Blind and Other Physically Disabled ing defendants not to defend themselves. The consultant. Still, many businesses fail to com- Persons Act34 but none under the ADA. The court sanctioned Molski and his attorney by ply with access laws despite the many years Unruh Civil Rights Act and the Blind and requiring them to request court approval that they have been in existence. Other Physically Disabled Persons Act are before filing any future complaints. A more palatable approach for businesses public accommodations laws and, unlike Disability rights advocates argue that and people with disabilities may be a leg- FEHA, are not designed to regulate employer- restrictions for vexatious litigants in the con- islative response to the Del Taco and Daim- employee relationships. Nevertheless, both text of disability discrimination litigation lerChrysler decisions. This would involve an statutes expressly invoke FEHA’s more expan- unduly restrict the ability of people with dis- increase in statutory damages when notice of sive definition of “disability.”35 abilities to enforce access laws that busi- a violation is given and a business fails to In an interim ruling, the court concluded nesses have been ignoring since California make its facility accessible. If modifications are that the AAMC should apply California’s

34 Los Angeles Lawyer November 2005 disability laws when considering testing requested extra time to take the exam because accommodations for California examinees she has dyslexia and attention deficit disor- Legislative Intent. who do not qualify as “disabled” under the der. Thereafter, she sued the NBME for dis- You probably seldom ADA.36 Testing organizations and other pub- ability discrimination, alleging both state and need it. lic entities will, no doubt, challenge this rul- federal claims.39 The court held that the ing on the grounds that it compromises the denial of the plaintiff’s accommodation But when the need does arise, uniformity and predictive validity of stan- request was not discriminatory. In reaching it can be crucial to winning dardized exams. They also will argue, as did its conclusion, the court was persuaded by your case. the AAMC, that testing conditions will be many of the same arguments advanced by the anything but uniform if public entities are AAMC in the Turner case in California. Tracking down sources of information can be a frustrating and time consuming process. required to apply different state disability Specifically, the court emphasized that the When legislative history is important to your discrimination laws to examinees from dif- NBME’s procedures are designed to ensure case it can be very cost effective to engage our ferent states instead of a uniform standard that individuals with “bona fide” disabili- professional expertise to research the history that comports with the ADA. ties receive accommodations and that those and intent of the statutes or administrative Arguably, the court’s ruling creates an without disabilities do not gain an unfair enactments at issue in your case. uneven playing field for MCAT examinees advantage when sitting for the exam.40 It When you call, you can explain what with similar mental or physical limitations further noted that if the NBME departs from you need, or tell me your situation and I can residing in different states. However, the its procedure, including its use of the ADA’s make suggestions on possible approaches. court acknowledged that the scores of exam- substantial limitation test, it would alter the You can draw on my years of experience, so inees whose disabilities are accommodated substance of its work or “product” because you will know what is likely to be available on your topic. You will get a precise quote pursuant to California law could be “flagged” the resulting scores would not be guaran- for the cost of the project. When you in some way. But this solution, while seem- teed to reflect each examinee’s abilities accu- authorize us to proceed, the report will be in 41 ingly leveling the playing field, may do more rately. your office on the date you specify. harm than good by singling out those who In Massachusetts, a medical student with received an accommodation for discrimina- attention deficit hyperactivity disorder and a JAN RAYMOND tory treatment when scores are reviewed for learning disability was refused a preliminary LEGISLATIVE HISTORY & INTENT admissions purposes. Thus a victory for exam- injunction requiring the NBME to grant her Toll Free (888) 676-1947 inees seeking accommodations may be tran- extra time on a medical licensing examina- Fax (530) 750-0190 ■ E-mail: [email protected]. sitory and may ultimately result in under- tion.42 The district court noted that because www.naj.net cutting the ADA’s objectives, which focus on the state public accommodation statute pro- State Bar #88703 placing persons with disabilities on an equal vides the same kinds of protections as the footing with others rather than doling out ADA, the ADA standard is applicable to the special privileges. plaintiff’s federal and state claims.43 Nevertheless, Congress allows states to Accordingly, the court applied the ADA’s provide more expansive protections than substantial limitation standard, determined IMMIGRATION those contained in the ADA.37 And the court that the plaintiff was unlikely to show that in Turner acknowledged that the task of she was disabled, and ultimately denied the applying a plethora of state disability laws to plaintiff’s motion for a preliminary injunction. examinees located in various states may prove A district court in Ohio reached a similar burdensome. However, the court held that the result in a case involving a medical student logistical nightmare painted by the AAMC did with a reading disorder and a generalized 44 LAW not outweigh California’s interest in pro- anxiety disorder. Applying the ADA’s dis- tecting its disabled citizens. This result was in ability standard, the medical student failed to TASOFF & TASOFF part due to the recognition that the applica- prove that his reading disorder substantially tion of different state disability laws is no limited his ability to learn and thus did not FOUNDED 1949 more burdensome on standardized test orga- warrant extra time for the completion of his ● Certified Immigration Law nizations than the complex task national written exams.45 Specialists (SBC BLS) employers face when adhering to a variety of In West Virginia, a student who claimed state labor and employment laws. to have a learning disability sued his college ● Employment & Family Based: Other decisions involving testing accom- for its failure to provide him with reasonable “Green Cards” modations reveal that the disability discrim- testing accommodations.46 In addressing the “Work Permits” (E, H, I, O–Visas) ination statutes in states other than California plaintiff’s claims under the ADA and state law, U.S. Citizenship generally are consistent with the ADA. Thus the district court applied the ADA’s disabil- ● courts situated outside California typically ity standard and also relied upon Department Over 55 Years of Experience defer to the ADA’s requirements when deter- of Justice regulations that described disabil- ● Focus on Business, Professional & mining whether a denial of accommodations ity as “[a]ny mental or physiological disorder Institutional Immigration is lawful or not. such as…specific learning disabilities.”47 The For example, in a case decided by the court granted the college’s summary judg- Second Circuit Court of Appeals, a former ment motion, concluding that the student medical student claimed that the National failed to show that he had a specific learning www.tasoff.com Board of Medical Examiners (NBME) dis- disability. Also, the court emphasized that criminated against her when it denied her the accommodation requests made by the 818.788.8900 16255 VENTURA BOULEVARD, SUITE 1000 accommodation request.38 After twice failing student, including taking exams orally and ENCINO CA 91436-2302 the medical licensing examination, the student receiving extra credit for passing scores,

Los Angeles Lawyer November 2005 35 would have given him an unfair advantage over nondisabled students or would have Anita Rae Shapiro lowered the standards for course study at the college.48 SUPERIOR COURT COMMISSIONER, RET. In Minnesota, an unsuccessful candidate PRIVATE DISPUTE RESOLUTION for teacher certification sued the state board alleging that its refusal to waive the math PROBATE, CIVIL, FAMILY LAW portion of a standardized licensure test was PROBATE EXPERT WITNESS discriminatory.49 The plaintiff was diagnosed with two learning disabilities, dyslexia and TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649 E-MAIL: [email protected] dyscalculia. Applying the ADA’s disability http://adr-shapiro.com standard to the plaintiff’s state disability discrimination claims, the district court deemed FEES: $300/hr the candidate’s accommodation request unrea- sonable and granted summary judgment in favor of the state board. It is fitting that California, which played a leading role in the early stages of the development of disability discrimination law, once again finds itself apart from the rest of the nation in this area. For the sake of people with disabilities and the businesses with which they interact on a daily basis, hopefully it will not take a span of 30 years and substantial litigation for the courts to settle what is and is not a disability and what accommodations are required to prevent discrimination. ■

1 1973 Cal. Stat. 2498, 2598, ch. 1189, §1. 2 The Fair Employment and Housing Act, GOV’T CODE §12926.1. 3 The Unruh Civil Rights Act, CIV. CODE §§51 et seq. 4 The Blind and Other Physically Disabled Persons Act, CIV. CODE §54. 5 The Rehabilitation Act of 1973, 29 U.S.C. §§791- 794d. 6 The Fair Housing Amendments Act of 1988, 42 U.S.C. §§3601 et seq. 7 The Americans with Disabilities Act of 1990, 42 U.S.C. §§12101 et seq. 8 42 U.S.C. §§12101 et seq. 9 Sutton v. United Airlines, Inc., 527 U.S. 471, 480 (1999). 10 Id. 11 Id. at 482-83. 12 Anyan v. New York Life Ins. Co., 192 F. Supp. 2d 228, 244 (S.D. N.Y. 2002), aff’d, Anyan v. Nelson, 68 Fed. Appx. 260, 2003 WL 21523167 (2d Cir. 2003); Sepulveda v. Glickman, 167 F. Supp. 2d 186, 191 (D. P.R. 2001). But see Lawson v. CSX Transp., Inc., 245 F. 3d 916, 929 (7th Cir. 2001) (treated diabetes may still limit ability to metabolize food). 13 Swanson v. University of Cincinnati, 268 F. 3d 307, 317 (6th Cir. 2001); Cooper v. Olin Corp., 246 F. 3d 1083, 1091 (8th Cir. 2001); Spades v. City of Walnut Ridge, 186 F. 3d 897, 900 (8th Cir. 1999); Robb v. Horizon Credit Union, 66 F. Supp. 2d 913, 919 (C.D. Ill. 1999). 14 Brunke v. Goodyear Tire & Rubber Co., 344 F. 3d 819 (8th Cir. 2003); Arnold v. City of Appleton, Wis., 97 F. Supp. 2d 937, 949 (E.D. Wis. 2000). 15 2000 Cal. Stat. ch. 1049, §5 (SB 2222; AB 2222). 16 GOV’T. CODE §12926.1. 17 Compare CIV. CODE §52(a) and CODE CIV. PROC. §128.7. 18 42 U.S.C. §§12181 et seq. 19 CIV. CODE §§51 et seq. 20 CIV. CODE §52. 21 CIV. CODE §54.

36 Los Angeles Lawyer November 2005 22 CIV. CODE §54.3. ATTENTION ALL LAWYERS — Wheeled File Cases 23 U.S. DEPARTMENT OF JUSTICE, THE AMERICANS WITH DISABILITIES ACT TITLE III TECHNICAL ASSISTANCE • Designed to carry your heavy files and books MANUAL §III-8.2000 (Nov. 1993). Top grain leather file to and from the courtroom 24 42 U.S.C. §12205. case for only $139.95 • Padded compartment for laptop computers 25 See CIV. CODE §338; Kramer v. Regents of the Univ. plus S&H of Cal., 81 F. Supp. 2d 972, 977-78 (1999); Richards • Three brass combination locks v. CH2M Hill, 26 Cal. 4th 798 (2001). Ultimate in • Three position telescopic handles 26 See Lentini v. California Ctr. for the Arts, 370 F. 3d , • Size 18”L x 10”W x 16”H 837, 847-49 (9th Cir. 2004) (The plaintiff established convenience sufficient evidence that she was deterred from attend- ,and • We also carry PVC material file utility cases for only $99.95 plus ing a performance at the facility by showing that the S&H of $19.95 plaintiff previously had attended events there and great look! would have gone back but for the violation.); see also Botoson v. Fitzhugh, 13 F. Supp. 2d 1047, 1051-52 (D. To order, call 714-928-3742 or fax your order to 714-779-8645 Cal. 1998) (holding that if a person is deterred from Or e-mail us at [email protected] going back on a daily basis to a facility, deterrence alone suffices to establish a claim for actual damages). 27 Doran v. Del Taco, Inc., 2005 WL 1389270 (C.D. Cal. 2005). 28 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 577 (2004). See also Tipton-Whittingham v. City of L.A., 34 Cal. 4th 604, 608 (2004) (To recover private attorney general fees, a plaintiff must reasonably attempt to settle before litigation.). 29 Molski v. Mandarin Touch Rest., 359 F. Supp. 2d 924, 926-27, 934, 937 (C.D. Cal. 2005). 30 See, e.g., AB 20 (2005); SB 855 (2005) (Cal.). 31 Turner v. American Ass’n of Med. Colleges, No. RG 04166148 (Alameda County Super. Ct. (Cal.), Feb. 18, 2005) (The plaintiffs erroneously identified the name of the defendant in their complaint.). The MCAT is a timed, standardized entrance exam used by medical schools nationwide. It is regarded as a reliable predic- tor of a candidate’s success in medical school and on the United States Medical Licensing Examination (commonly referred to as the “national boards”) required for medical licensure. 32 Two of the named plaintiffs in the Turner case, Andres Turner and Brendan Pierce, have dropped out of the lawsuit. Their respective accommodation requests were approved by the AAMC shortly after the case was filed. As stated in the complaint, Pierce has been diagnosed with dyslexia and attention deficit hyperactivity today disorder. Turner has been diagnosed with an unspec- File court documents ified learning disability. 33 CIV. CODE §§51 et seq. throughout California. 34 CIV. CODE §54. 35 CIV. CODE §§§51, 52, 54; GOV’T CODE §§12926(i)(1), 12926(k)(1). 36 Turner, No. RG 04166148 (order granting the plaintiffs’ motion for summary adjudication). 37 42 U.S.C. §12201(b); see 42 U.S.C. §12189. 38 Powell v. National Bd. of Med. Exam’rs, 364 F. 3d 79 (2d Cir. 2004). 39 The court did not address the plaintiff’s state claims because they were not the subject of her appeal. Id. at 81. Now, you can file your documents with the click of a button to 40 Id. at 89-90. any of 170+ state courts. To place an order, register at 41 Id. 42 Baer v. National Bd. of Med. Exam’rs, No. Civ. A. www.onelegal.com. Then, upload or fax your documents to us 05-10724-GAO, 2005 WL 1027289 (D. Mass. May 3, and we’ll guarantee delivery!* With millions of successful filings 2005). 43 Id. at *3 n.1. since 1990, rely on the recognized leader in online court filing. 44 Brown v. University of Cincinnati, No. C-1-04-164, 2005 WL 1324885 (S.D. Ohio June 3, 2005). 45 Because the court granted summary judgment to the university on the plaintiff’s federal claims, it declined to exercise supplemental jurisdiction over the plaintiff’s state claims. Id. at *16. 46 Dubois v. Alderson-Broaddus Coll., Inc., 950 F. Supp. 754, 758 (N.D. W.Va. 1997). 1-800-938-8815 [email protected] 47 Id. at 758. 48 Id. at 760-61. © 2005. One Legal, Inc. *Guarantee subject to certain terms. See website for details. 49 Jacobsen v. Tillmann, 17 F. Supp. 2d 1018 (D. Minn. 1998).

Los Angeles Lawyer November 2005 37 by STEVEN D. ATLEE and BRIAN F. McMAHON

SEARCHThe use of trademarked terms by Web search pages has challenged traditional boundaries of trademark protection

TERMSAS INTERNET COMMERCE has become a more engines. For example, a business may contract ments are readily met in most instances, and prominent part of everyday life and busi- with a search engine company to ensure that they have not warranted substantial treat- ness, it has become increasingly important for links to its Web site are prominently dis- ment in case law.4 The likelihood of confusion companies to ensure that their Web pages played nearby the actual search results. This element, however, is frequently litigated. get noticed.1 Businesses have devised all sorts would seem a perfectly appropriate business To determine likelihood of confusion, var- of strategies to gain visibility on search engines strategy in order to maximize the effectiveness ious circuits employ some type of multifactor and place links to their sites in front of users. of a search engine’s capabilities for the ben- test, commonly referred to by the name of the Some Webmasters have gone so far as to efit of that business. Problems, however, may seminal case in that circuit.5 In the Ninth download invisible copies of dictionaries arise under the Lanham Act if the search Circuit, courts determine the likelihood of onto their Web sites in the hopes of attract- term just happens to be another’s trademark. confusion by examining the Sleekcraft factors, ing users who insert any cognizable word Under the Lanham Act, a plaintiff must an eight-factor test first employed in 1979 in into a search engine’s query box. Others have prove five elements in order to succeed on a employed a strategy known as “stuffing,” claim of trademark infringement: 1) the plain- Steven D. Atlee is a partner in the litigation depart- which lists particular words many times in the tiff possesses a protectable mark, 2) the defen- ment of Latham & Watkins LLP and specializes in Web site’s HTML for the sole purpose of dant uses this mark, 3) the defendant uses this litigation of intellectual property, unfair competi- increasing the relevancy of the business’s Web mark in commerce, 4) the mark is used “‘in tion, and class action matters. Brian F. McMahon site in response to particular search terms.2 connection with the sale, offering for sale, dis- is an associate with Latham & Watkins in Los In addition to such unsavory methods, tribution, or advertising’ of goods and ser- Angeles and specializes in intellectual property there are more scrupulous techniques avail- vices,” and 5) the defendant’s use of the mark litigation. They would like to acknowledge the able, such as buying sponsored ads based is likely to cause confusion.3 In the context of assistance of Latham & Watkins summer associate upon certain key words from the major search trademark use in cyberspace, the first four ele- Michele Lorbieski. KEN CORRAL

38 Los Angeles Lawyer November 2005 AMF, Inc. v. Sleekcraft Boats.6 The test is a isfied that the mark is sufficiently famous, a public [was] likely to be somehow confused pliant one, and courts are free to determine plaintiff may obtain relief if further showings about the source or sponsorship of West which factors warrant the most serious con- are made that “the defendant is making com- Coast’s moviebuff.com Web site—and some- sideration depending on the facts in each mercial use of the mark in commerce; the how to associate that site with Brookfield.”15 case. Thus, if five factors weigh in favor of the defendant’s use began after the plaintiff’s The court began its Sleekcraft analysis by defendant, but the three most important mark became famous; and the defendant’s use addressing the domain name issue, conclud- weigh in favor of the plaintiff, courts can presents a likelihood of dilution of the dis- ing that a likelihood of confusion did exist suf- conclude that a likelihood of confusion exists. tinctive value of the mark.”11 Because the ficient to support plaintiff’s request for a pre- Also, courts need not consider every factor, reach of the FTDA is “quite narrow” and liminary injunction.16 It then turned to the use and they are free to create additional factors applies only to a “limited category of trade- of trademarks in metatags. Acknowledging if the need arises.7 In general, courts will marks,” plaintiffs may have greater success in that “all eight likelihood of confusion fac- look to the following: 1) similarity of the attempting to show a likelihood of confusion tors…with the possible exception of pur- conflicting designations, 2) relatedness or under the Lanham Act.12 chaser care…apply here as they did in [the] proximity of the two companies’ products or analysis of domain names,” the court services, 3) strength of the plaintiff’s mark, 4) The Lanham Act in Cyberspace expressed its view that while any confusion marketing channels used, 5) degree of care The Ninth Circuit first applied the likelihood resulting from metatag use was “not as great”

likely to be exercised by purchasers in select- of confusion Sleekcraft factors to cyberspace as in the domain name context, such confu- ing goods, 6) defendant’s intent in selecting in 1999 in Brookfield Communications, Inc. sion was still actionable as “initial interest its mark, 7) evidence of actual confusion, v. West Coast Entertainment Corporation.13 confusion.” The court reasoned: and 8) likelihood of expansion in product The plaintiff, which was “founded in 1987 for Web surfers looking for Brookfield’s lines.8 the purpose of creating and marketing soft- “MovieBuff” products who are taken If a plaintiff cannot meet its burden in ware and services for professionals in the by search engine to “westcoastvideo showing a likelihood of confusion, relief is not entertainment industry,” had been using the .com” will find a database similar necessarily precluded. Under the Federal “MovieBuff” mark since 1993, had received enough to “MovieBuff” such that a Trademark Dilution Act (FTDA), a plaintiff California state trademark registration in sizeable number of consumers who may seek injunctive relief (and in some cases 1994, and had received federal trademark were originally looking for Brookfield’s damages) if another party wrongfully uses the registration in 1998. The defendant, which product will simply decide to utilize plaintiff’s famous trademark.9 The rigorous was then one of the nation’s largest video West Coast’s offerings instead. requirement that the mark be famous, how- rental store chains, had been using the plain- Although there is no source confusion ever, renders the analysis of a claim of dilu- tiff’s yet-to-be federally registered trademark in the sense that consumers know they tion under the FTDA quite dissimilar to a “MovieBuff” as both a domain name are patronizing West Coast rather than claim for infringement under the Lanham (Moviebuff.com) and as a metatag since Brookfield, there is nevertheless ini- Act. To begin with, courts will look at a vari- 1996.14 After determining that the plaintiff tial interest confusion in the sense that, ety of factors, including those expressly pro- was the senior user (and therefore deeming the by using “moviebuff.com” or vided by statute, to determine whether the mark protectable under the Lanham Act), “MovieBuff” to divert people look- mark is sufficiently famous to warrant pro- the court went on to examine whether, ing for “MovieBuff” to its Web site, tection under the FTDA.10 If the court is sat- through the defendant’s use of the mark, “the West Coast improperly benefits from

Los Angeles Lawyer November 2005 39 the goodwill that Brookfield devel- will be confused as to the source, identity, or Identification of the manufacturer or sponsor oped in its mark.17 sponsorship of the advertiser’s product.’”20 of the good or the provider of a service. And As a result, West Coast was preliminarily Given the threshold for invoking the defense the wrong protected against was traditionally enjoined from using Brookfield’s marks as a of nominative use, however, it is of little equally limited: Preventing producers from domain name and in metatags.18 value in instances in which confusion is likely. free-riding on their rivals’ marks.”23 The The circumstances in Brookfield, how- A defendant who intends to assert the court identified “a class of cases where the use ever, can be viewed quite differently from nominative use defense when confusion is of the trademark does not attempt to capi- the use of trademarks to generate banner likely must make three showings, first artic- talize on consumer confusion or to appro- advertisements on pages of search engine ulated in New Kids on the Block v. News priate the cachet of one product for a differ- results. While the Brookfield opinion focused America Publishing, Inc.: ent one.” This class of cases, in which use of on the consumer’s plausibly likely initial con- First, the product or service in question the mark is merely nominative, “lies outside fusion, given the growing sophistication of must be one not readily identifiable the strictures of trademark law.” Concluding Internet users in the past few years, it may be without use of the trademark; second, that the defendants could not possibly refer that banner advertisements do not necessar- only so much of the mark or marks to the New Kids on the Block without par- ily confuse today’s Internet user even momen- may be used as is reasonably necessary ticularly naming them, that the defendants did tarily.19 Most Internet users today are suffi- to identify the product or service; and not use the mark in question beyond what

ciently savvy to recognize and distinguish third, the user must do nothing that was necessary for identification, and that the among Web sites and advertisements of com- would, in conjunction with the mark, defendants did nothing to suggest sponsorship peting companies. Moreover, even if there suggest sponsorship or endorsement or endorsement, the newspapers were not were any confusion stemming from the use of by the trademark holder.21 liable for any claim of trademark infringe- another’s trademark, such use quite possi- In New Kids, various newspapers had ment.24 Rather, their use was merely nomi- bly could be protected as a “nominative” or established long-distance toll numbers in native. “fair” use. order to gather data to determine which Kid Whether the nominative use defense may was most popular. The plaintiff filed several be successfully employed in the context of Nominative and Fair Use Defenses claims, among which was a claim for common generating Internet banner advertisements Generally, nominative use of a trademark law trademark infringement. The district will depend greatly on the facts of each case. occurs when a party refers to a mark as a mat- court granted summary judgment in favor For instance, the Ninth Circuit recently ter of incidental use. Probably the most preva- of the defendants on First Amendment refused to extend nominative use to protect lent form of nominative trademark use is grounds, but on appeal, a desire to avoid the the defendants’ use of plaintiffs’ trademarks comparative advertising, in which a business constitutional issue caused the Ninth Circuit in Playboy Enterprises, Inc. v. Netscape Com- uses another’s trademark only for purposes of to examine whether the plaintiff had viable munications Corporation.25 There, citing making truthful product comparisons. More claims in the first instance.22 New Kids on the Block, the court concluded thoroughly stated, “The use of a competitor’s In addressing the trademark infringement that because other words besides the plaintiffs’ trademark for purposes of comparative adver- issue, the court began with the purpose of trademarks were available to identify the tising is not trademark infringement ‘so long trademark law: “Throughout the develop- goods or products sold, the defendants’ use as it does not contain misrepresentations or ment of trademark law, the purpose of trade- of “playboy” and “playmate” ran “afoul of create a reasonable likelihood that purchasers marks remained constant and limited: the first requirement for nominative use.”26

40 Los Angeles Lawyer November 2005 This rationale may have wide application: sion.”30 This conclusion was consistent with language.36 Furthermore, the court concluded In many instances, given the breadth of the Ninth Circuit precedent, which previously that this marketing activity was conducted in English language, it will be difficult for a had prohibited reliance on any fair use defense good faith. As a result, no Lanham Act lia- defendant to claim that the only word avail- if there exists a likelihood of confusion. In KP bility would follow. able to identify a good in a search term hap- Permanent Make-Up, the Supreme Court pens to be the trademark of a competitor. overruled this line of cases, reasoning that “it Application to “Adwords” Whether use of a competitor’s trademark is only when a plaintiff has shown likely con- In Government Employees Insurance Com- in search terms constitutes a fair use, however, fusion by a preponderance of the evidence that pany v. Google, Inc.,37 an insurance com- is a different matter. Until recently, defen- a defendant could have any need of an affir- pany, Geico, sued two Internet search engine dants in the Ninth Circuit could not rely on mative defense.”31 Therefore, the fair use companies, Google and Overture, alleging the defense of fair use if the plaintiff could defense may now be invoked even in those several claims, including trademark infringe- show that there was a likelihood of confu- instances in which likelihood of confusion is ment under the Lanham Act.38 The defen- sion.27 For this reason, some courts have not manifest.32 dants were engaging in a practice whereby it even addressed the issue.28 The defense is In order to assert the fair use defense, one would “sell advertising linked to search terms, now available, however, as the Supreme Court must comport with the requirements of the so that when a consumer enters a particular recently overruled the Ninth Circuit in KP Lanham Act itself. Generally, a party may use search term, the results page displays not

Permanent Make-Up, Inc. v. Lasting Impres- another’s trademark if it is used to describe only a list of Web sites generated by the sion I, Inc.29 the defendant’s product, and such use is done search engine program using neutral and In KP Permanent Make-Up, the parties “fairly and in good faith.”33 For example, in objective criteria, but also links to Web sites were both sellers of permanent makeup, a Wonder Labs, Inc. v. Procter & Gamble of paid advertisers.”39 Geico claimed that product comprising an injectable solution Company,34 the plaintiff alleged, among other this practice, when using Geico’s trademarks used to disguise injuries and blemishes. At things, that under the Lanham Act the defen- as search terms, constitutes trademark issue was whether the term “microcolor,” a dant was infringing its trademark, Dentist’s infringement. The defendants countered with federally registered trademark of the defen- Choice, a brand it used to market its tooth- a motion to dismiss, claiming, among other dant, could be used by the plaintiff to describe brushes. things, that their use of the mark was not a the plaintiff’s own products. In the suit for The defendant, in marketing its Crest use in commerce as contemplated by the declaratory judgment, the U.S. District Court brand of toothpaste, had been referring to its Lanham Act and that their use of the mark for the Central District of California granted own product as “the dentists’ choice,” and did not involve displaying the mark to con- summary judgment to the plaintiff, holding therefore asserted the defense of fair use.35 sumers, and no consumer confusion could that such use of the trademark was a fair The court concluded that Proctor & Gamble result from such use.40 The court denied the use. The court did not reach the issue of was indeed protected by the doctrine of fair motion: whether there was a likelihood of confusion use because the defendant was using the The complaint clearly alleges that under the Lanham Act. On appeal, the Ninth phrase in its “primary sense,” not as a trade- defendants use plaintiff’s trademarks to Circuit reversed and remanded, concluding mark “to identify the source of the prod- sell advertising, and then link that that “it was error for the District Court to uct”; the Crest mark always accompanied advertising to results of searches. Those have addressed the fair use defense without the descriptive phrase; and the phrase was links appear to the user as “sponsored delving into the matter of possible confu- often followed by modifying or explanatory links.” Thus, a fair reading of the com-

Los Angeles Lawyer November 2005 41 plaint reveals that plaintiff alleges that defendants have unlawfully used its $EPOSITIONSIN3ACRAMENTO trademarks by allowing advertisers to bid on the trademarks and pay defen- ,IVE.OTEV6IDEOCONFERENCINGV6IDEOGRAPHY dants to be linked to the trademarks.41 #ONFERENCEROOMSSEATINGTO The court continued, “Where keyword placement of banner advertising is being sold, MINUTESFROMTHE!IRPORT advertising is being sold, the portals and &REE!IRPORT0ICK5PAND2ETURN search engines are taking advantage of the drawing power and goodwill of these famous 4RUXEL2OAD 3UITEs3ACRAMENTO #! marks. The question is whether this activity 'ET 2PTRs s&AX is fair competition or whether it is a form of WWW3ACRAMENTO#OURT2EPORTERCOM unfair free riding on the fame of well-known marks.”42 Although Geico’s trademark #ONCIERGE3ERVICE!VAILABLE infringement claims initially survived the motion to dismiss,43 the suit was ultimately dismissed for lack of evidentiary support.44 Quo Jure Corporation 1-800-843-0660 Playboy Enterprises v. Netscape Com- www.quojure.com munications45 involved similar facts. The [email protected] LAWYERS’ WRITING & RESEARCH defendants were two search engine companies generating revenue by way of advertising When you can’t do it yourself, but you still need a brief or that “require[d] adult-oriented companies to memo done—and done well, by experienced attorneys who link their ads” so that they would appear are skilled writers—turn to Quo Jure Corporation. whenever the words “playboy” and “playmate” were used in a search. The plaintiff held Quo Jure provides premium legal writing and research services federal trademark rights to these words. Like to practicing attorneys. Our work has contributed to million- the Google plaintiffs, Playboy filed a claim of dollar settlements and judgments. Oppositions to motions for trademark infringement, alleging that such a summary judgment are our specialty. Call for a free analysis TM practice was unlawful. Though the district and estimate. The Winning Edge court had granted summary judgment in favor of the defendants, the Ninth Circuit reversed and remanded because genuine issues of material fact existed as to whether such business practices were prohibited by the terms of the Lanham Act.46 Interestingly enough, the court likened this case to that of Brookfield: “In this case, PEI [Playboy Enterprises, Inc.] claims that defendants, in conjunction with advertisers, JACK TRIMARCO & ASSOCIATES have misappropriated the goodwill of PEI’s marks by leading Internet users to competi- POLYGRAPH/INVESTIGATIONS, INC. tors’ Web sites just as West Coast video misappropriated the goodwill of Brookfield’s mark. Some consumers, initially seeking PEI’s sites, may initially believe that unlabeled ban- 9454 Wilshire Blvd. ner advertisements are links to PEI’s sites or to sites affiliated with PEI. Once they follow Sixth Floor the instructions to ‘click here,’ and they access the site, they may well realize that they are not Beverly Hills, CA 90212 at a PEI-sponsored site. However, they may (310) 247-2637 TEL be perfectly happy to remain on the competitor’s site, just as the Brookfield court sur- (760) 777-1836 FAX mised that some searchers initially seeking Brookfield’s site would happily remain on Jack Trimarco - President West Coast’s site. The Internet user will have Former Polygraph Unit Chief reached the site because of defendants’ use of 47 Los Angeles F.B.I. (1990-1998) email: [email protected] PEI’s mark. Such use is actionable.” A week CA. P.I. #20970 www.jacktrimarco.com after the Ninth Circuit’s decision, the parties settled the lawsuit for undisclosed terms.48 Member Society of Former Special Agents Former Polygraph Inspection Team Leader Both the Google and Playboy cases were Federal Bureau of Investigation Office of Counter Intelligence expressly distinguished most recently in 1-800 U.S. Department of Energy Contacts, Inc. v. WhenU.com, Inc.49 There, the Second Circuit reversed and remanded a grant of a preliminary injunction barring

42 Los Angeles Lawyer November 2005 WhenU from employing its “SaveNow” soft- mation on hunting rifles. The user has heard ware. The “SaveNow” software, once will- of Hatfield Hunting Rifles, and is vaguely 20 Years Blue Chip ingly downloaded by Internet users, would aware that it has a competitor. Typing the “generat[e] pop-up advertisement windows” search term, “Hatfield Hunting Rifles,” the Experience that corresponded to the particular Internet first entry in the search results is for Hatfield’s Resolving the user’s “‘in-the-moment’ activities.”50 In other primary competitor, McCoy Hunting Rifles. words, the software would scan the words The user looks at both the Hatfield Web site World’s Most typed into a search engine or the words and the McCoy Web site, considers the appearing on an Internet user’s computer options, and chooses the product that best fits Complex Disputes screen and then generate pop-up advertising his or her requirements. Does Hatfield have that matched those results. In effect, the soft- a claim for trademark infringement? ware would generate advertising that related Under current law, the answer is not obvi- to, and in some cases competed with, the ous. On the one hand, this smacks of the products the Internet user was either cur- initial interest confusion referred to in rently viewing or in which the user had an Brookfield: “by using [Hatfield Hunting interest. Rifles] to divert people looking for [Hatfield In reversing and remanding the district Hunting Rifles] to its Web site, [McCoy] court’s grant of a preliminary injunction, the improperly benefits from the goodwill that Reginald A. Holmes, ESQ. court first determined that WhenU is not [Hatfield] developed in its mark.” Also, this Arbitrator - Mediator - Private Judge “using” 1-800’s trademark in the manner is the very wrong that trademark law was that use is contemplated by the Lanham Act: designed to protect against: “Preventing pro- Intellectual Property • Entertainment “WhenU does not ‘use’ 1-800’s trademark in ducers from free-riding on their rivals’ International • Employment the manner ordinarily at issue in an infringe- marks,” as the court described in the New Copyright ment claim: it does not ‘place’ 1-800 trade- Kids on the Block opinion. But for the marks on any goods or services in order to Internet user typing “Hatfield Hunting Rifles” THE HOLMES LAW FIRM pass them off as emanating from or autho- in Google’s query box, McCoy would not 626-432-7222 (Phone) rized by 1-800.”51 In contrast to the use have attracted that particular customer to 626-432-7223 (Fax) alleged in Google, WhenU’s alleged use of its Web site, at least in that particular instance, [email protected] trademarks is entirely “internal,” limited and thus, McCoy gets a free ride on the only to inclusion in the “SaveNow” data- strength of the Hatfield mark. Furthermore, www.TheHolmesLawFirm.com base, inaccessible to the Internet user or the McCoy cannot claim fair use, as “Hatfield” general public. The use “is analogous to a[n] does not describe its own product. And if individual’s private thoughts about a trade- McCoy’s advertisements do not satisfy the mark. Such conduct simply does not violate requisites of lawful comparative advertising, INK. GUARANTEED. the Lanham Act….”52 its use of the Hatfield mark arguably is not The court then remarked that, in any nominative because another term, such as event, WhenU is not using 1-800’s trade- the generic “hunting rifles,” could just as marks “at all” because the trademark 1- easily have been used to identify the pertinent 800CONTACTS and the Web site product as Hatfield Hunting Rifles. www.1800contacts.com are too dissimilar. On the other hand, it is not clear that the WhenU uses only the Web site address in its consumer in this example was ever confused, “SaveNow” database; as such, this does not or that there was even any likelihood of con- constitute use of a trademark.53 Finally, the fusion. This becomes problematic for Hatfield court distinguished the facts before it from on these assumed facts, because likelihood of those in Playboy and Brookfield. Unlike ban- confusion is a statutory prerequisite to estab- ner ads in the former and metatags in the lat- lishing a claim for trademark infringement Ghostwriting services for ter, pop-up ads do not “misdirect [Internet under the Lanham Act. Furthermore, the professionals who want to users] away from [the plaintiff’s] website, or Ninth Circuit has already begun to question alter in any way the results a [user] will the applicability of Brookfield in the context publish in trade and obtain when searching with the…trademark of banner advertisements. In Playboy, Judge professional journals and or website address”54 Also, although the Berzon acknowledged in a concurrence that don’t have time to write. court did not explicitly focus on it, the fact the facts in Brookfield possibly limit the that WhenU’s customers willingly chose to extent of its reach: PUBLICATION download the “SaveNow” software would [T]he metatag holding in Brookfield tend to diminish the likelihood of consumer [c]ould expand the reach of initial GUARANTEED confusion arising from the pop-up ads. interest confusion from situations in which a party is initially confused to A Look into the Future situations in which a party is never 818.709.6420 While these handful of cases may provide confused. I do not think it is reasonable www.jvhcommunications.net some guidance, they seem insufficient to pre- to find initial interest confusion when dict the outcome of future cases with any a consumer is never confused as to certainty. Consider, for example, the follow- source or affiliation, but instead JVH ing hypothetical scenario: An Internet user knows, or should know, from the out- Communications & Consulting goes to Google.com in order to find infor- set that a product or Web link is not

Los Angeles Lawyer November 2005 43 related to that of the trademark holder Cir. 1979)). court determined that summary judgment was not because the list produced by the search 7 Id. at 1054. proper on the issue of fair use when there were genuine 8 Sleekcraft, 599 F. 2d at 348-49. issues of fact to determine. KP Permanent Make-up, Inc. engine so informs him.55 9 15 U.S.C. §25(c). v. Lasting Impression I, Inc., 408 F. 3d 596 (9th Cir. Indeed, if there is any sense that what McCoy 10 The statute expressly provides eight factors that a 2005). The decision also directs the district court to has done is wrong, perhaps the trademark court may consider to determine whether a mark is determine if there is a likelihood of confusion based on owner’s better remedy is to go to Congress famous as contemplated by the FTDA: 1) the degree of the Supreme Court’s decision that allowing “some and ask for greater statutory protection to inherent or acquired distinctiveness of the mark, 2) the degree of confusion does not foreclose the relevance of address situations in which another’s mark is duration and extent of use of the mark in connection the extent of any likely consumer confusion in assess- with the goods or services with which the mark is ing whether a defendant’s use is objectively fair.” Id. used to generate traffic, but under circum- used, 3) the duration and extent of advertising and pub- at 607. 56 stances that do not cause confusion. licity of the mark, 4) the geographical extent of the trad- 33 See 15 U.S.C. §1115(b)(4). In this hypothetical situation, it may be ing area in which the mark is used, 5) the channels of 34 Wonder Labs, Inc. v. Procter & Gamble Co., 728 F. that the swing vote belongs to the consumer. trade for the goods or services with which the mark is Supp. 1058 (S.D. N.Y. 1990). 35 Courts have traditionally accommodated the used, 6) the degree of recognition of the mark in the Id. at 1060. trading areas and channels of trade used by the mark’s 36 Id. at 1064. limited use of others’ trademarks when the owner and the person against whom the injunction is 37 Government Employees Ins. Co. v. Google, Inc., public derives a benefit from that use. In this sought, 7) the nature and extent of use of the same or 330 F. Supp. 2d 700 (E.D. Va. 2004). case, the consumer was diverted, if at all, similar marks by third parties, and 8) whether the 38 Id. at 701. only as far as he or she was interested in mark was federally registered. A court may consider 39 Id. at 703. learning more about the competitor before other factors as well. 15 U.S.C. §25(c). 40 Id. at 702-03. 11 Avery Dennison Corp. v. Sumpton, 189 F. 3d 868, 41 Id. at 703-704. making a purchase. Setting aside any issues 873 (9th Cir. 1999) (citing Panavision Int’l, L.P. v. 42 Id. at 704 (citing J. THOMAS MCCARTHY, MCCARTHY of false advertising or misrepresentations, Toeppen, 141 F. 3d 1316, 1324 (9th Cir. 1998)). ON TRADEMARKS & UNFAIR COMPETITION §25:70.1 one could argue that the effect on the con- 12 Id. at 875. See also, SCHECHTER, supra note 5, at (2004)). sumer was purely beneficial, in that he or §30.2 (synthesizing various federal district and appel- 43 Id. at 706. she was able to gain exposure to additional late cases to note that while marks such as Barbie, 44 Jefferson Graham, Judge Rules for Google on Key information and commercial choices in an Budweiser, and Porsche have been deemed sufficiently Word Ad Spots, USA TODAY, Dec. 15, 2004, available famous to warrant protection under the FTDA, marks at http://www.usatoday.com/money/industries extremely efficient manner and was there- like that of the board game Clue have not). /technology/2004-12-15-google-over-geico_x.htm. As fore able to make a more informed choice. 13 Brookfield Communications, Inc. v. West Coast of June 27, 2005, no formal opinion had been issued. And lest anyone forget, protecting the con- Ent’t Corp., 174 F. 3d, 1036, 1054 n.16 (9th Cir. It should also be noted that codefendant Overture set- sumer is one of the key purposes of the Lan- 1999). tled with Geico prior to the dismissal of Google for an 14 ham Act.57 Id. at 1041-42. A metatag is part of a Web site’s undisclosed fee. Id. HTML code that is used generally to describe the con- 45 Playboy Enters., Inc. v. Netscape Communications The few cases to date involving the use of tents of the Web site. See id. at 1044-45. Corp., 354 F. 3d 1020 (9th Cir. 2004). trademarks on the Internet have yielded a 15 Id. at 1053. 46 Id. at 1034. wide variety of outcomes that do not always 16 Id. at 1061. Note that this case took place before an 47 Id. at 1025-26. But see id. at 1034 (J. Berzon, con- suggest easy or certain outcomes for future amendment to the Lanham Act, the Anticybersquatting curring) (concurring in the opinion due to consistency cases. One thing is certain, however: In Consumer Protection Act (ACPA), was passed on with precedent, but questioning the soundness of November 29, 1999. The ACPA directly addresses the Brookfield). Internet cases, no less than in brick-and-mor- improper use of another’s trademark as a domain 48 Stefanie Olsen, Playboy, Netscape Reach Trademark tar cases, courts will need to continue to bal- name. Today, a similar claim pertaining to domain Settlement, CNET News.com, Jan. 26, 2004, available ance the competing interests of trademark names would involve analysis under the plain lan- at http://news.com.com/Netscape%2C+Playboy owners who have invested and built equity in guage of the ACPA as well as a likelihood of confusion +settle+search+trademark+case/2100-1024_3-5146502 the brand, competitors striving for equal analysis. See Coca-Cola Co. v. Purdy, 2005 WL 212797 .html. (D. Minn. 2005). 49 1-800 Contacts, Inc. v. WhenU.com, Inc., 04-0026- attention in the marketplace, and consumers 17 Brookfield, 174 F. 3d at 1062. cv(L), 04-0446-cv(CON), 2005 U.S. App. LEXIS 12711 entitled to accurate and fair information 18 Id. at 1066-67. (2d Cir. June 27, 2005). about the products they buy. ■ 19 See Playboy Enters., Inc. v. Netscape Com- 50 Id. at *9 (citing 1-800 Contacts, Inc. v. WhenU.com, munications Corp., 354 F. 3d 1020, 1035 (9th Cir. 309 F. Supp. 2d 467, 477 (S.D. N.Y., 2003). 51 1 A report published by the U.S. Department of Com- 2004) (J. Berzon, concurring) (stating that Brookfield Id. at *22. 52 merce on April 15, 2004, placed the value of U.S. should not be read to “expand the reach of initial Id. at *25. 53 shipments, sales, and revenue stemming from e-com- interest confusion to situations in which a party is Id. at *23-*24. 54 merce at over one trillion dollars in 2002. U.S. CENSUS never confused”). Id. at *32. 20 55 BUREAU, U.S. DEP’TOFCOMMERCE, E-STATS (2004), at SSP Agric. Equip., Inc. v. Orchard-Rite, Ltd., 592 F. Playboy Playboy Enters., Inc. v. Netscape www.census.gov/eos/www/papers/2002/2002finaltext 2d 1096, 1103 (9th Cir. 1979) (citing Smith v. Chanel, Communications Corp., 354 F. 3d 1020, 1034-35 .pdf. Inc., 402 F. 2d 562, 563 (9th Cir. 1968)). (9th Cir. 2004). 21 56 2 Joshua Paul, Trademarks on the Internet 20-21 New Kids on the Block v. News America Publ’g, Inc., It was this type of action that resulted in the ACPA. (Presented at the Spring Meeting of the American 971 F. 2d 302, 308 (9th Cir. 1992). Consider, for example, its legislative history. Senate 22 Intellectual Property Law Association, Apr. 18-20, Id. at 304-05. Report 106-140 identified that “[c]urrent law does 23 2002). Id. at 305. not expressly prohibit the act of cybersquatting.” It also 24 3 See Government Employees Ins. Co. v. Google, Inc., Id. at 308-09. recognized that though current federal law was help- 25 330 F. Supp. 2d 700, 702 (citing 15 U.S.C. §§1114, Playboy Enters., Inc. v. Netscape Communications ful in preventing cybersquatting, “cybersquatters have 1125(a)). Corp., 354 F. 3d 1020 (9th Cir. 2004). See infra for a become increasingly sophisticated as the case law has 4 Recently, the requirement of “use in commerce” has discussion of this case. developed and now take the necessary precautions to 26 become more of an issue. See, e.g., the discussion of 1- Id. at 1030. insulate themselves from liability.” It concluded, 27 800 Contacts, Inc. v. WhenU.com, Inc., 04-0026- See KP Permanent Make-Up, Inc. v. Lasting “Legislation is needed to address these problems and cv(L), 04-0446-cv(CON), 2005 U.S. App. LEXIS 12711 Impression I, Inc., 125 S. Ct. 542 (2004). to protect consumers, promote the continued growth 28 (2d Cir. June 27, 2005). See, e.g., Playboy Enters., 354 F. 3d at 1029 (“A fair of electronic commerce, and protect the goodwill of EP O 5 ROGER E. SCHECHTER & JOHN R. THOMAS, use may not be a confusing one.”). American businesses.” S. R . N . 106-140 (1999), 29 INTELLECTUAL PROPERTY: THE LAW OF COPYRIGHTS, KP Permanent Make-Up, Inc., 125 S. Ct. at 551. available at thomas.loc.gov/cgi-bin/cpquery 30 PATENTS AND TRADEMARKS §29.1 (2003). Id. at 547. /?&db_id=cp106&r_n=sr140.106&sel=TOC_12404&. 31 57 6 E.g., Brookfield Communications, Inc. v. West Coast Id. at 549. See Two Pesos v. Taco Cabana, 505 U.S. 763, 32 Ent’t Corp., 174 F. 3d 1036, 1046 (9th Cir. 1999) (cit- On remand, the Ninth Circuit reversed the district 782 (1992) (identifying the protection of consumers ing AMF, Inc. v. Sleekcraft Boats, 599 F. 2d 341 (9th court’s grant of summary judgment for the plaintiff. The as one of the integral aims of trademark law).

44 Los Angeles Lawyer November 2005 The LOS ANGELES LAWYER Semiannual Guide to Expert Witnesses

ACCIDENT ANALYSIS/RECONSTRUCTION ACCOUNTING CORNERSTONE RESEARCH 515 South Flower Street, Suite 2900, Los Angeles, CA A R TECH FORENSIC EXPERTS, INC. ADVISORS/EXPERTS @ MCS ASSOCIATES 90071, (213) 553-2501, fax (213) 553-2699, e-mail: jmoon 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) @cornerstone.com. Web site: www.cornerstone.com. (818) 344-2700, fax (818) 344-3777. Engineers: experi- 263-8700, fax (949) 263-0770, experts@mcsassociates Contact Jeanene Moon. Cornerstone Research provides enced, registered, advanced degrees, extensive testimony .com. Web: www.mcsassociates.com. Contact Norman attorneys with expert testimony and economic and finan- experience. Traffic accidents (all motor vehicle types, bicy- Katz, managing partner. Nationally recognized banking, cial analyses in all phases of commercial litigation. We cles, pedestrians), collisions, rollovers, skid marks, visibility, finance, insurance, and real estate consulting group (estab- work with faculty and industry experts in a distinctive part- signal phasing, time-motion, low-speed impact. Industrial lished 1973). Experienced litigation consultants/experts in- nership that combines the strengths of the business and and construction accidents: OSHA issues. Automotive, include senior bankers, lenders, consultants, economists, ac- academic worlds. Our areas of expertise include identifying dustrial, consumer products: brakes, seat belts, forklifts, countants, insurance underwriters/brokers. Specialties: and supporting expert witnesses in intellectual property, machinery, tools, protective equipment, lawn mowers, lending customs, practices, policies, in all types of lending antitrust, securities, entertainment, real estate, financial in- heaters, chairs, fixtures, ladders, scaffolds, fasteners. (real estate, business/commercial, construction, consumer/ stitutions, and general business litigation. Premises liability: code analysis, stairways, ramps, doors, credit card), banking operations/administration, trusts and gates, windows, guardrails, pools, and lighting. Slip-and- investments, economic analysis and valuations/damages FULCRUM FINANCIAL INQUIRY fall. Trip-and-fall. Biomechanics. Safety. Human factors. assessment, insurance claims, coverages and bad faith, 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA See display ad on page 50. real estate brokerage, appraisal, escrow, and construction 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte defects/disputes, and title insurance. @fulcruminquiry.com. Web site: www.fulcruminquiry.com. ACCIDENT RECONSTRUCTION SPECIALIST Contact David Nolte. Our professionals are experienced A Field Test Engineering Company. 5175 Pacific Coast BALLENGER, CLEVELAND & ISSA, LLC CPAs, MBAs, ASAs, CFAs, affiliated professors, and in- Highway, 1st Floor, Long Beach, CA 90804, (800) 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA dustry specialists. Our analysis and research combined 675-7667, fax (562) 494-7667. Contact Robert F. 90024, (310) 873-1717, fax (310) 873-6600. Contact with unique presentation techniques have resulted in an Douglas, PE. Auto/truck/train/ped/bike accident.www Bruce W. Ballenger, CPA, executive managing direc- unequaled record of successful court cases and client re- .accidentReconstructionSpecialists.com. Three engineers tor. Services available: assist counsel in determining over- coveries. Our expertise encompasses damages analysis, with over 35 years of experience. See display ad on all strategy. Help evaluate depositions and evidence. Pro- lost profit studies, business and intangible asset valuations, page 69. vide well-prepared, well-documented, and persuasive in- appraisals, fraud investigations, statistics, forensic eco- court testimony regarding complicated accounting, finan- nomic analysis, royalty audits, strategic and market as- MR. TRUCK ACCIDENT INVESTIGATION & cial, and business valuation matters, fairness of interest sessments, computer forensics, electronic discovery, and RECONSTRUCTION rates, feasibility of reorganization plans, fraudulent con- analysis of computerized data. Degrees/licenses: CPAs, P.O. Box 398, Brentwood, CA 94513-0398, (800) 337- veyances, bankruptcies, mergers and acquisitions, and CFAs, ASAs, PhDs and MBAs in accounting, finance, eco- 4994, fax (925) 625-4995, e-mail: [email protected]. management misfeasance/malfeasance. More than 100 nomics, and related subjects. See display ad on page 2. Contact William M. Jones. Accident analysis and recon- open-court testimonies, federal and state, civil and crimi- struction. Court-qualified expert witness regarding car vs. nal. See display ad on page 50. GLENN M. GELMAN & ASSOCIATES, car, truck vs. car cases, trucking industry safety, and driver CERTIFIED PUBLIC ACCOUNTANTS training issues, including Power Point court presentations. THE CAPANALYSIS GROUP, LLC AND BUSINESS CONSULTANTS See display ad on page 79. 550 South Hope Street, Suite 1100, Los Angeles, CA 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- 90071, (213) 892-2568, fax (213) 892-2300, e-mail: 2600, fax (714) 667-2636. Web site: www.gmgcpa.com. RIMKUS CONSULTING GROUP, INC. [email protected]. Web site: www.capanalysis Contact Glenn Gelman. Expert witness testimony, strat- 333 City Boulevard West, Suite 1805, Orange, CA 92868, .com. Contact Laura Robinson, PhD. Specialties: eco- egy development, document discovery, deposition assis- (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski nomic, financial, accounting, and statistical analysis for tance, computation of damages, arbitration consulting, @rimkus.com. Web site: www.rimkus.com. Contact Curt complex litigation, arbitration, regulatory proceedings, and forensic accounting, investigative auditing, rebuttal testi- Yaworski. Rimkus Consulting Group is a full-service foren- strategic corporate decision making. Assist attorneys with mony, fiduciary accountings, and trial exhibit preparation. sic consulting firm. Since 1983, we have provided reliable discovery, identification of relevant economic and financial investigations, reports, and expert witness testimony issues, preparation of analytical models, critique of oppos- GUMBINER SAVETT INC. around the world. Our engineers and consultants analyze ing experts, and expert testimony in federal and state 1723 Cloverfield Boulevard, Santa Monica, CA 90404, the facts from origin and cause through extent of loss. Ser- courts, and before the FTC and DOJ. Areas of expertise in- (310) 828-9798, fax (310) 829-7853, e-mail: rgreene vices: construction defect and dispute analysis, vehicle ac- clude antitrust (including cutting-edge analyses of market @gscpa.com. Contact Ronald S. Greene, Executive cident reconstruction, fire cause and origin, property evalu- definition, market power, coordinated interactions, and uni- Vice President. Expert witness testimony, lost profits and ation, mold evaluations, indoor air quality assessments, lateral effects), economic damages, business valuation, in- damages calculations, assets and income tracing, fraud biomechanical analysis, product failure analysis, foundation vestigative and forensic accounting and auditing, intellec- analyses and audits, family law accounting, business valu- investigations, industrial accidents and explosions, water tual property (including patent, trademark, and copyright ations, income tax and estate tax support, standard of intrusion analysis, geotechnical evaluations, construction infringement, and valuation of intellectual property), insur- care analyses, and royalty and contract audits. accidents, construction disputes, financial analysis and as- ance coverage, contract disputes and tort claims, mergers sessments, forensic accounting, HVAC analysis, electrical and acquisitions, and securities fraud. Degrees/licenses: failure analysis, and video/graphics computer animation. CPAs, CFEs, CVAs, JDs, PhDs economics. See display ad on page 75.

Los Angeles Lawyer November 2005 45 GURSEY, SCHNEIDER & CO., LLP years’ litigation support specialization. Assigned as §730 10351 Santa Monica Boulevard, Suite 300, Los Angeles, accounting expert. Ms. Lesgart’s profile can be found at CA 90025, (310) 552-0960, fax (310) 557-3468. Web site: www.jurispro.com. using “Lesgart” under Search by www.gursey.com. Contact Roseanna Purzycki or Rory Name. Expert is fully English/Spanish bilingual. Burnett. Forensic accounting and litigation support services in the areas of marital dissolution, business valuation MIOD AND COMPANY, LLP CPAS and appraisal, goodwill, business disputes, malpractice, 11600 Indian Hills Road, Building B, Suite 300, Mission tax matters, bankruptcy, damage and cost-profit assess- Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- ments, insurance claims, court accounting, tracing, and 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA entertainment industry litigation. See display ad on 92260, (760) 779-0990, fax (760) 779-0960, 1055 East ✒ Litigation support page 53. Colorado Boulevard, Suite 500, Pasadena, CA 91106, (626) 441-1090, fax (626) 441-1096, e-mail: dmiod ✒ Expert witness HARGRAVE & HARGRAVE @miod-cpa.com. Visit our Web site at www.miodcpa.com. ✒ 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) Contact Donald John Miod, CPA, ABV, CVA, CBA. Forensic accountants 576-1090, fax (310) 576-1080, e-mail: terry@taxwizard More than 30 years’ experience in litigation support, in- ✒ .com. Web: www.taxwizard.com. Contact Terry M. cluding computation of income available for support, trac- Family law matters Hargrave, CPA/ABV, CFE. Litigation services for family ing, business valuations, fraud investigations, earnings loss ✒ Business valuations law and civil cases. Past chair of California Society of calculations, and income tax matters. Our firm is very com- CPAs’ Family Law Section, business valuation instructor puter-oriented, involving the use of computer graphics. We ✒ Loss of earnings for California CPA Foundation and AICPA. Services include are members of the Institute of Business Appraisers, the business valuations, income available for support, tracing International Society of CPAs (founding member), the ✒ Damages separate property, litigation consulting, real estate litiga- American Institute of CPAs, and California Society of tion, mediation, fraud investigations, damage calculation, CPAs. See display ad on page 64. and other forensic accounting work. See display ad on When you need more than just page 60. DAVID OSTROVE, ATTORNEY-CPA 5757 Wilshire Boulevard, Suite 535, Los Angeles, CA HAYNIE & COMPANY, CPAS numbers... you can count on us... 90036-3600, (323) 939-3400, fax (323) 939-3500, e-mail: 4910 Campus Drive, Newport Beach, CA 92660, (949) [email protected]. Web site: www.lawyers.com 724-1880, fax (949) 724-1889, e-mail: sgabrielson Contact Michael Krycler /ok&alaw. Contact David Ostrove. Accounting malprac- @hayniecpa.com. Web site: www.hayniecpa.com. tice (defense/plaintiff). Experts in legal malpractice (de- PHONE (818) 995-1040 Contact Steven C. Gabrielson. Alter ego, consulting and fense/plaintiff), auditor’s malpractice (defense/plaintiff), expert witness testimony in a variety of practice areas: FAX (818) 995-4124 business valuations, breach of fiduciary duty, insurance commercial damages, ownership disputes, economic E-MAIL [email protected] bad faith cases, tax matters, fraudulent conveyances, analysis, business valuation, lost profits analysis, fraud/ leveraged buyout, analysis of financial statements, estate VISIT US @ www.KETW.COM forensic investigations, taxation, personal injury, wrongful planning, civil litigation, tax litigation, probate litigation, termination, professional liability, and expert cross exami- criminal tax litigation, and business and real estate transac- 15303 VENTURA BOULEVARD, SUITE 1040 nation. Extensive public speaking background assists in tions. See display ad on page 49. SHERMAN OAKS, CALIFORNIA 91403 courtroom presentations. KROLL SANLI PASTORE & HILL, INC. 660 South Figueroa Street, Suite 900, Los Angeles, CA 1990 South Bundy Drive, Suite 800, Los Angeles, CA 90017, (213) 443-6090, fax (213) 443-6055. Contact 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- One Source. Troy Dahlberg, CPA/ABV [email protected] dress: www.sphvalue.com. Contact Nevin Sanli or Tom or Christian Tregillis, CPA/ABV ctregillis@krollworldwide Pastore. Sanli Pastore & Hill, Inc. is a premier provider of Expert Witness Directory .com. Investigations, economic damages, and valuation business valuation and valuation advisory services, special- firm with offices across the country and around the globe. izing in litigation support and expert witness testimony. Specialties include accounting, financial, economic and Services include valuations for goodwill loss, estate and gift statistical analysis, as well as computer forensics, in the tax planning (family limited partnerships), lost profit analy- context of commercial litigation and forensic investigations: sis, mergers and acquisitions, goodwill impairment, fair- accounting/fraud, securities, intellectual property (including ness and solvency opinions, ESOPs, incentive stock op- damages analyses, licensing and valuation), breach of con- tions, capital raises, corporate, partnership, and marital tract, lost profits, royalty audits, corporate governance, dissolutions. Comprehensive economic, industry, and mar- business valuation, real estate, construction, bankruptcy. ket research. Extensive experience in expert witness testi- Practitioners include former partners at Big Four account- mony, pretrial preparation, and settlement negotiations. ing firms, law enforcement/FBI, computer forensics, and See display ad on page 69. appraisers. See display ad on page 67. SCHULZE HAYNES & CO. KRYCLER, ERVIN, TAUBMAN, & WALHEIM 660 South Figueroa Street, Suite 1280, Los Angeles, CA 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: 91403, (818) 995-1040, fax (818) 995-4124. Web site: [email protected]. Web site: www [email protected]. Contact Michael J. Krycler. Liti- .schulzehaynes.com. Contact Karl J. Schulze or Dana gation support, including forensic accounting, business Haynes, principals. Specialties: forensic business analy- appraisals, family law accounting, business and profes- sis and accounting, lost profits, economic damages, ex- sional valuations, damages, fraud investigations, and lost pert testimony, discovery assistance, business and real es- earnings. Krycler, Ervin, Taubman and Walheim is a full- tate valuations, construction claims, corporate recovery, Over 250 qualified expert witnesses, service accounting firm serving the legal community for real estate transactions, financial analysis and modeling, in one reliable source. Contact more than 20 years. See display ad on this page. major professional organizations, and have experience Forensic Expert Witness Association across a broad spectrum of industries and business is- DIANA G. LESGART, CPA, CFE, AN sues. Degrees/licenses: CPA; CVA; CFE; ABV; PhD-eco- today for your FREE desktop copy: ACCOUNTANCY CORP. nomics. 22024 Lassen Street, Suite 106, Chatsworth, CA 91311, 949.640.9903 (818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3 STONEFIELD JOSEPHSON [email protected] @msn.com. Contact Diana G. Lesgart, CPA, CFE, Valuation, Litigation & Forensic Group. 1620 26th www.forensic.org FCPA. Specialized accounting and litigation support ser- Street, Suite 400 South, Santa Monica, CA 90404, (866) vices in the areas of family law litigation, tracing of assets, 225-4511. Web site: www.sjaccounting.com. Contact pension plan tracing, forensic accounting, business valua- Jeffrey Sumpter, director of litigation. The Stonefield tion, goodwill, expert testimony, commercial litigation, Josephson Valuation, Litigation & Forensic Group serves fraud investigations, economic damages, and real estate business leaders, attorneys, and other professionals with litigation. Over 21 years’ accounting experience with 17 business valuation, litigation support, and forensic ac- Los Angeles • Orange County • Sacramento/Sierra • San Diego • San Francisco

46 Los Angeles Lawyer November 2005 counting services. Stoneﬁeld Josephson serves public and privately held clients throughout the United States and internationally from four California locations: Los Angeles, Zivetz, Schwartz & Saltsman CPA’s Orange County, San Francisco, and East Bay. See display ad on page 17. With more than thirty years of experience as expert witnesses

SUGARMAN & COMPANY, LLP in testimony, pre-trial preparation, settlement negotiations, 44 Montgomery Street, Suite 1310, San Francisco, CA consultations and court appointed special master. 94104, (415) 395-7512, fax (415) 658-2858, e-mail: [email protected]. Web site: www .sugarman-company.com. Contact Diane LaBelle. Expert witness testimony in federal, state, and local courts, Some of our specialties consist of: forensic accounting. Case involvement includes: damage calculations, lost profits, business interruption, cash flow • Forensic Accounting • Marital Dissolutions analysis, forensic accounting, business and real estate valuations, construction damages, insurance claims, fraud in- • Business Valuation and Appraisal • Lost Profits vestigations, lender liability, partnership dissolution, professional malpractice, white collar crime, liquidation and going • Economic Damages • Accounting Malpractice concern analysis, as well as bankruptcy and reorganization management and consulting. • Employee Benefit Plans • Entertainment Entities THOMAS NECHES & COMPANY LLP 520 South Grand Avenue, Suite 350, Los Angeles, CA • Financial and Economic Analysis • Shareholder Disputes 90071-2662, (213) 624-8150, fax (213) 624-8152, e-mail: [email protected]. Web site: www.thomasneches • Wrongful Termination .com. Contact Thomas M. Neches, CPA, ABV, CVA, CFE. Accounting, financial, business valuation, and statistical analyses to assist attorneys in litigation. Expert testi- Tel: (310) 826-1040 Lester J. Schwartz, CPA, DABFA, DABFE mony in state and federal courts. Cases: Antitrust, breach Michael D. Saltsman, CPA, MBA of contract, fraud, intellectual property, lost business value, Fax: (310) 826-1065 lost profits, wrongful death, and wrongful termination. In- E-mail: [email protected] David L. BASS, CPA dustries: banking, construction, entertainment, insurance, www.zsscpa.com Dave Dichner, CPA, ABV, CVA manufacturing, retail, securities, and wholesale. Creden- 11900 W. Olympic Blvd. Sandy Green, CPA tials: certified public accountant/accredited in business val- Suite 650 uation, certified valuation analyst, certified fraud examiner. Education: BA (Mathematics) UC San Diego, MS (Opera- Los Angeles, CA 90064-1199 tions Research) UCLA. Teaching: Adjunct Professor, Loy- ola Law School. See display ad on page 51. WHITE, ZUCKERMAN, WARSAVSKY, LUNA, WOLF & HUNT 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 219-9816, fax (949) 219-9095, e-mail: expert@wzwlw .com. Contact Barbara Luna, Drew Hunt, Paul White, Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax planning and preparation, and mergers and acquisitions. Testified hundreds of times as expert witnesses. Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 48.

ZIVETZ, SCHWARTZ & SALTSMAN, CPAS 11900 West Olympic Boulevard, Suite 650, Los Angeles, CA 90064-1151, (310) 826-1040, fax (310) 826- 1065. Web site: www.zsscpa.com. Contact Lester J. Schwartz, CPA, DABFE, DABFA, Michael D. Salts- man, CPA, MBA, Ron B. Miller, CPA, ABV, CFE, or David Dichner, CPA, ABV, CVA. Accounting experts in forensic accounting, tax issues, business valuations, and appraisals, marital dissolutions, eminent domain, insurance losses, business interruption, goodwill, economic analysis, investigative auditing, loss of earning, commercial damages, and lost proﬁts. Expert witness testimony preparation, and settlement negotiations and consultations. See display ad on this page.

Los Angeles Lawyer November 2005 47

ADA/DISABILITY DISCRIMINATION

BIDDLE CONSULTING GROUP, INC. 193 Blue Ravine Road, Suite 270, Folsom, CA 95630, Over 25 years of Experience in the Construction Industry (916) 294-4250, fax (916) 294-4255, e-mail: staff@biddle .com. Web site: www.biddle.com. Contact Dan Biddle, PhD, president. We specialize in compensation analysis, test development, EEO/AA reviews, validation studies KENNETH J. FISCHBECK (content, criterion-related), and adverse impact analyses. We have a special emphasis in the protective service fields. CONSTRUCTION EXPERT WITNESS Over 30 staff. Degrees/licenses: MA, PhD, other staff with various degrees. 511 Oak Street, Laguna Beach, California 92651 HAIGHT CONSULTING 714.609.7481 • Fax 949.715.6714 1726 Palisades Drive, Pacific Palisades, CA 90272, (310) [email protected] 454-2988, fax (310) 454-4516. Contact Marcia Haight. Human resources expert knowledgeable in both federal CA Lic #475327 and California law. Twenty-five years’ corporate human resources management experience plus over 15 years as a Human Resources Compliance Consultant in California. Specializations include sexual harassment, ADA/disability discrimination, other Title VII and FEHA discrimination and ■ ATTORNEY–CPA harassment, retaliation, FMLA/CFRA, and safety. Court- DAVID OSTROVE room testimony and deposition experience. Retained 60 percent by defense, 40 percent by plaintiff. Audit employ- • Professor of Law and Accounting er’s actions in preventing and resolving discrimination, ha- • Expert Witness — 47+ years rassment, and retaliation issues. Assess human resources policies and practices for soundness, for comparison to • Lawyer Malpractice prevailing practices, and for compliance. Evaluate em- • Accountant Malpractice ployer responsiveness to complaints and effectiveness of • Forensic Accounting employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination of docu- • Business Valuation ments, and expert testimony. • Computation of Damages • Mediator, Arbitrator HRM CONSULTING, INC. P.O. Box 1786, Murphys, CA 95247, (209) 728-8905, fax (209) 728-8970, e-mail: [email protected]. Web 323/939-3400 [email protected] site: www.hrmconsulting.com. Contact Beth Hirsch. Plaintiff and defense attorneys respect Ms. Hirsch’s experience working on employment and vocational rehabilitation matters from both the employee and employer perspective. Her expertise is utilized in cases involving ADA (Ameri- cans with Disabilities Act), FMLA (Family Medical Leave Act), sexual harassment, personal injury, or divorce. We provide litigation support, expert testimony, and investigations. We also specialize in helping companies understand and comply with regulations and issues in the complicated realm of human resources management.

HUMAN RESOURCES MANAGEMENT NETWORK 544 West Wilshire Avenue, Fullerton, CA 92832, (714) 542-9525, fax (530) 885-4394, e-mail: [email protected]. Web site: www.lballexpertwitness.com. Contact Lawrence P. Ball. Expert testimony related to human resources standard of care, discipline, wrongful discharge, wrongful termination, sexual orientation/discrimination, sex/sexual/gender discrimination, race/color/racial discrimination, religious discrimination, national origin/ancestry discrimination, age discrimination, sex/sexual/gender harassment, sexual orientation harassment, race/racial/color harassment, religious harassment, disability harassment, national origin/ancestry harassment, age harassment, FMLA/CRFA violations, ADA violations, negligent hiring/retention, performance evaluation/review, DFEH and DOL regulations, pregnancy, and EEOC guidance. Cases: 45% plaintiff, 55% defense.

ADEA/AGE DISCRIMINATION/AGING

GEROBIZ 9040 Harratt Street, Suite10, West Hollywood, CA 90069, (310) 858-8956, e-mail: [email protected]. Contact Wendy Goldman, MBA/MS Gerontology. GeroBiz offers expert witness testimony for age discrimination in employment cases. We also offer review and evaluation of employee beneﬁts policies to identify areas of potential conﬂict, and analyze corporate literature to ensure age- neutral communications with shareholders. Pension bene-

Los Angeles Lawyer November 2005 49 fits background; dispute resolution training with L.A. Dis- valuations, business valuations, condemnations, and FF & trict Attorney’s Office. E. As part of the Coldwell Banker Commercial group, over 450 offices nationwide. Additional services for special pur- ALLERGY/ASTHMA/IMMUNOLOGY pose mixed use and contaminated/toxic properties, environmental/civil engineering. Right-of-way eminent domain, ALLERGY ASTHMA RESPIRATORY CARE structural defect reports, and construction defect reports. MEDICAL CENTER, INC. In-house CPA, general contractor, and engineers. Ap- 2600 Redondo Avenue, Suite 400, Long Beach, CA proved for IRS, federal, state, and municipal courts. Offices 90806, (562) 997-7888, fax (562) 997-8884, e-mail: in Orange County, San Diego/Inland Empire, and Northern [email protected]. Web site: www.allergy-asthma California. See display ad on page 83. .info. Contact Andrea Newsom. Specialties include latex allergy, asthma, food allergy, drug allergy, anaphylaxis, BTI APPRAISAL sinusitis, hives, sick building syndrome, mold, and environ- 605 West Olympic Boulevard, Suite 820, Los Angeles, CA mental disease. Experience, civil: retained or reviewed 90015, (213) 532-3800, fax (213) 532-3807, e-mail: ben more than 70 latex products liability cases, retained for al- @btiappraisal.com. Web site: www.btiappraisal.com. lergy and internal medicine cases in the areas of occupa- Contact Ben F. Tunnell III, Chairman. BTI Appraisal tional asthma, mold exposure, civil litigation, sick building has been providing litigation and appraisal services, both syndrome. Multiple chemical sensitivity, smoke inhalation, nationally and internationally, since 1974 in the areas of and toxic exposure. real estate, machinery & equipment, and business valuation. Well-written and documented reports reduce litigation ROGER M. KATZ MD costs and speed dispute resolution. Our work has passed 1304 15th Street at Arizona, Suite 102, Santa Monica, CA the most rigorous scrutiny of the IRS, the SEC, govern- 90404, (310) 393-1550, fax (310) 576-3601, e-mail: rmcat ment condemning agencies, and the state and federal @ucla.edu. Web site: www.rogermkatzmd.com. Contact courts. The collective experience of our nationally regarded Roger M. Katz, MD. IME/expert witness/review. Experi- professionals can address projects of all sizes and loca- enced plaintiff and defense. Expert witness record tions. review, IME. CRA INTERNATIONAL ANESTHESIOLOGY 1055 East Colorado Boulevard, Suite 420, Pasadena, Cali- fornia 91106-2327, (626) 564-2000, fax (626) 564-2099. ROGER F. DONENFELD, MD Web site: www.crai.com. Contact John Hirshleifer, vice 10557 Rocca Place, Los Angeles, CA 90077, (310) 471- president. CRA International provides economic, financial, 3777, fax (323) 209-0010, e-mail: rfdonenfeld@hotmail and business analysis in such areas as antitrust, contracts, .com. Contact Roger F. Donenfeld, MD. Chart review damages, energy, environment, entertainment, healthcare, and depositions. Expert witness, board certified, 1987. intellectual property, international trade, mergers & acquisi- Anesthesiology fellowship-trained. Ivy League, board re- tions, professional sports, regulation, securities fraud, taxa- view textbook author. Certified medical board of CA ex- tion and transfer pricing, telecommunications, and valua- pert. Active clinical anesthesia practice. Extensive medical tion. In concert with leading academic and industry ex- legal experience. perts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial prepara- ANESTHESIOLOGY & PAIN tion and testimony) to attorneys, executives, and govern- MANAGEMENT ment officials the world over. See display ad on page 59. AA RR TECHTECH SHLOMO ELSPAS, MD FULCRUM FINANCIAL INQUIRY FORENSIC EXPERTS INC. 1200 North State Street, Suite 14901, Los Angeles, CA 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90033, (323) 226-4597, e-mail: [email protected]. 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte Contact Shlomo Elspas, MD. Education: MIT, Harvard, @fulcruminquiry.com. Web site: www.fulcruminquiry.com. UCLA. Specialties: clinical assistant professor of Anesthe- Contact David Nolte. Our professionals are experienced siology at USC-Keck School of Medicine. Board certified in Experienced engineers CPAs, MBAs, ASAs, CFAs, affiliated professors, and in- anesthesiology, with fellowships in pediatric and obstetric dustry specialists. Our analysis and research combined Advanced degrees anesthesiology, and pain management. Regional, nerve with unique presentation techniques have resulted in an block, hypotensive, transfusion-free, and safety in anesthe- Extensive trial experience unequaled record of successful court cases and client re- sia. Consultation and expert witness for plaintiff and coveries. Our expertise encompasses damages analysis, defense. ▼ Accident Reconstruction lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, statistics, forensic eco- APPRAISAL AND VALUATION Vehicle Collision Analysis, Speed, Time nomic analysis, royalty audits, strategic and market as- Motion History, Biomechanics, Vehicle ADVISORS/EXPERTS @ MCS ASSOCIATES sessments, computer forensics, electronic discovery, and Components: brakes, seats, seatbelts, etc. 18881 Von Karman, Suite 1175, Irvine, CA 92612, analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAs in accounting, finance, eco- ▼ Product Liability (949) 263-8700, fax (949) 263-0770, e-mail: experts @mcsassociates.com. Web site: www.mcsassociates nomics, and related subjects. See display ad on page 2. Failure Analysis, Machinery, Guarding, .com. Contact Norman Katz, managing partner. Safety, Industrial & Consumer Products HARGRAVE & HARGRAVE Nationally recognized banking, finance, insurance, and real 520 Broadway, Suite 680, Santa Monica, CA 90401, (310) estate consulting group (established 1973). Experienced ▼ Construction 576-1090, fax (310) 576-1080, e-mail: terry@taxwizard. litigation consultants/experts include senior bankers, Contact Terry M. Code Analysis, Stairways, Ramps, Doors, com. Web site: www.taxwizard.com. lenders, consultants, economists, accountants, insurance Hargrave, CPA/ABV, CFE. Litigation services for family Windows, Guardrails, Roofs, Walkways, underwriters/brokers. Specialties: lending customs, prac- law and civil cases. Past chair of California Society of Pools, Industrial & Residential tices, policies, in all types of lending (real estate, busi- CPAs’ Family Law Section, business valuation instructor ness/commercial, construction, consumer/credit card), ▼ Slip/Trip & Fall for California CPA Foundation and AICPA. Services include banking operations/administration, trusts and investments, business valuations, income available for support, tracing Coefficient or Friction. Trip Hazard, Lighting economic analysis and valuations/damages assessment, separate property, litigation consulting, real estate litiga- insurance claims, coverages and bad faith, real estate bro- tion, mediation, fraud investigations, damage calculation, kerage, appraisal, escrow, and construction defects/dis- and other forensic accounting work. See display ad on TELEPHONE: 818-344-2700 putes, and title insurance. page 60. FAX: 818-344-3777 ADVISORY SERVICES GROUP HIGGINS, MARCUS & LOVETT, INC. 18075 Ventura Blvd, Suite 209, Encino, CA 91316 Coldwell Banker Commercial, 2200 South Pacific Coast 800 South Figueroa Street, Suite 710, Los Angeles, CA Highway, Suite 318, Hermosa Beach, CA 90254, (310) 90017, e-mail: [email protected]. Web site: www.hmlinc 937-7700, fax (310) 798-6836. Specialties: Real estate, .com. Contact Mark C. Higgins, ASA, president. The

50 Los Angeles Lawyer November 2005 firm has over 20 years of litigation support and expert testi- Specialist in business value, partial interests, securities cial, construction, consumer/credit card), banking opera- mony experience in matters involving business valuation, value, real property, goodwill, and intangible asset value, tions/administration, trusts and investments, economic economic damages, intellectual property, loss of business including patents, trademarks, and copyrights. Valuation analysis and valuations/damages assessment, insurance goodwill, and lost profits. Areas of practice include busi- for income tax, estate and gift tax, dissolution of marriage, claims, coverages and bad faith, real estate brokerage, ap- ness disputes, eminent domain, bankruptcy, and corpo- fairness opinions, solvency opinions, economic damages, praisal, escrow, and construction defects/disputes, and rate and marital dissolution. See display ad on page 63. wrongful death, and personal injury. For two decades, se- title insurance. lected by leading trial attorneys and Fortune 500 compa- KRYCLER, ERVIN, TAUBMAN, & WALHEIM nies, and listed in Marquis’ Who’s Who in the World and ARCHITECTURE 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA Who’s Who in Finance and Industry. See display ad on 91403, (818) 995-1040, fax (818) 995-4124. Web site: page 77. PHILIP KROEZE, AIA, CONSULTING [email protected]. Contact Michael J. Krycler. Liti- ARCHITECTURAL SERVICES gation support, including forensic accounting, business WARONZOF ASSOCIATES, INC. 19 Summerside, Coto De Caza, CA 92679, (949) 589- appraisals, family law accounting, business and profes- 12200 West Olympic Boulevard, Suite 480, Los Angeles, 0554, fax (949) 589-4351, e-mail: [email protected]. sional valuations, damages, fraud investigations, and lost C 90064, (310) 954-8060, fax (310) 954-8059. Web site: Contact Philip Kroeze, AIA. Expert witness: architectural earnings. Krycler, Ervin, Taubman and Walheim is a full- www.waronzof.com. Contact Timothy R. Lowe, MAI, and engineering standard of care, construction defects, service accounting firm serving the legal community for CRE. Waronzof Associates provides real estate and land moisture intrusion, and construction documents. Thirty-five more than 20 years. See display ad on page 46. use litigation support services including economic dam- years of experience in design and construction, residential, ages, lost profits, financial feasibility, highest and best use, commercial, and office buildings. Exhibits (photos, models, SANLI PASTORE & HILL, INC. property value, enterprise value, partnership interest and charts, renderings). Service area: California and Nevada. 1990 South Bundy Drive, Suite 800, Los Angeles, CA closely-held share value, fair compensation, lender liability 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- and reorganization plan feasibility. Professional staff of six AVIATION dress: www.sphvalue.com. Contact Nevin Sanli or Tom with advanced degrees and training in real estate, finance, CONDOR-AVSEC INC. Pastore. Sanli Pastore & Hill, Inc. is a premier provider of urban planning and accounting. See display ad on page 717 Camino Magnifico, San Marcos, CA 92069, (760) business valuation and valuation advisory services, special- 70. 598-5305, fax (760) 295-4562, e-mail: [email protected]. izing in litigation support and expert witness testimony. Web site: www.condor-avsec.com. Contact Glen Winn. Services include valuations for goodwill loss, estate and gift APPRAISAL/BUSINESS VALUATION Twenty-nine years of commercial aviation experience. tax planning (family limited partnerships), lost profit analy- Knowledge of ACSSP, AOSSP, air cargo security, crew sis, mergers and acquisitions, goodwill impairment, fair- ADVISORS/EXPERTS @ MCS ASSOCIATES hotel security, airport terminal security, passenger security ness and solvency opinions, ESOPs, incentive stock op- 18881 Von Karman, Suite 1175, Irvine, CA 92612, processing, aircraft security, counter-terrorism security as tions, capital raises, corporate, partnership, and marital (949) 263-8700, fax (949) 263-0770, e-mail: experts it relates to civil aviation, flight kitchen security, hangar se- dissolutions. Comprehensive economic, industry, and mar- @mcsassociates.com. Web site:www.mcsassociates.com. curity, and travel security. Currently teach aviation security ket research. Extensive experience in expert witness testi- Contact Norman Katz, managing partner. Nationally at the University of Southern California. Coauthor Protec- mony, pretrial preparation, and settlement negotiations. recognized banking, finance, insurance, and real estate tion, Security, and Safeguards. Named in Peter Lance’s See display ad on page 69. consulting group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, con- book, 1000 Years for Revenge—International Terrorism and the FBI. Former special agent US Secret Service. Re- RICHARD R. SYLVESTER, JD, PHD sultants, economists, accountants, insurance underwrit- view CV @ www.condor-avsec.com. Former Director of (310) 391-2080, fax (310) 827-1166. Valuation expert. ers/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, business/commer- Security Northwest Airlines, Western Airlines; Former Corp

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

Certified Public Accountant Thomas Neches & Company LLP Accredited in Business Valuation Biltmore Court, Suite 350 520 South Grand Avenue Certified Valuation Analyst Los Angeles, California 90071-2662 Certified Fraud Examiner (213) 624-8150

www.thomasneches.com

Los Angeles Lawyer November 2005 51 Manager of Security Continental Airlines and United Air- checking accounts, credit cards, and bankruptcy. Expert lines. witness, litigation consulting. Expert referral service escrow, corporate governance, mortgage banking, and real BANKING estate. Over 500 cases nationally. See display ad on page 84. ADVISORS/EXPERTS @ MCS ASSOCIATES 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) BALLENGER, CLEVELAND & ISSA, LLC 263-8700, fax (949) 263-0770, e-mail: experts 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA @mcsassociates.com. Web site: www.mcsassociates 90024, (310) 873-1717, fax (310) 873-6600. Contact .com. Contact Norman Katz, managing partner. Bruce W. Ballenger, CPA, executive managing direc- Nationally recognized banking, finance, insurance, and real tor. Services available: assist counsel in determining over- estate consulting group (established 1973). Experienced all strategy. Help evaluate depositions and evidence. Pro- litigation consultants/experts include senior bankers, vide well-prepared, well-documented, and persuasive in- lenders, consultants, economists, accountants, insurance court testimony regarding complicated accounting, finan- underwriters/brokers. Specialties: lending customs, prac- cial, and business valuation matters, fairness of interest tices, policies, in all types of lending (real estate, busi- rates, feasibility of reorganization plans, fraudulent con- ness/commercial, construction, consumer/credit card), veyances, bankruptcies, mergers and acquisitions, and banking operations/administration, trusts and investments, management misfeasance/malfeasance. More than 100 economic analysis and valuations/damages assessment, open-court testimonies, federal and state, civil and crimi- insurance claims, coverages and bad faith, real estate bro- nal. See display ad on page 50. kerage, appraisal, escrow, and construction defects/disputes, and title insurance. GREENBERG GLUSKER FIELDS CLAMAN MACHTINGER & KINSELLA LLC ANDELA CONSULTING GROUP, INC. 1900 Avenue of the Stars, Suite 2100, Los Angeles, CA 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA 90067, (310) 201-7456, fax (310) 553-0687, e-mail: kblock 91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter @ggfirm.com. Web site: www.ggfirm.com. Contact Karl @earthlink.net. Contact Thomas A. Tarter, managing E. Block. Expert testimony and consulting. director. Former CEO of two banks. Lending, forgery, en- dorsements, letters of credit, guarantees, lender liability, STONEFIELD JOSEPHSON checking accounts, credit cards, and bankruptcy. Expert Valuation, Litigation & Forensic Group. 1620 26th witness, litigation consulting. Expert referral service es- Street, Suite 400 South, Santa Monica, CA 90404, (866) crow, corporate governance, mortgage banking, and real 225-4511. Web site: www.sjaccounting.com. Contact estate. Over 500 cases nationally. See display ad on Jeffrey Sumpter, director of litigation. The Stonefield page 84. Josephson Valuation, Litigation & Forensic Group serves B & F EXPERTS business leaders, attorneys and other professionals with P.O. Box 700384, San Antonio, TX 78270, (866) 365- business valuation, litigation support, and forensic ac- 7212, fax (866) 869-4062, e-mail: jfmorrow@earthlink counting services. Stonefield Josephson serves public and .net. Web site: www.jfmorrow.com. Contact J F “Chip” privately held clients throughout the United States and in- Morrow. Expertise: financial institutions, banks, mortgage, ternationally from four California locations: Los Angeles, and real estate. Loans: mortgage, construction, real es- Orange County, San Francisco, and East Bay. See dis- Construction Claims tate, SBA, international, secured, unsecured, business, play ad on page 17. consumer, etc., checks, fraud, operations, lender liability; policy/procedure; fiduciary duties, D/O duty/conduct, SUGARMAN & COMPANY, LLP other. Federal/state reports, depos, and court preparation 44 Montgomery Street, Suite 1310, San Francisco, CA When you’re handling a and testimony. Background: 35+ years’ experience finan- 94104, (415) 395-7512, fax (415) 658-2858, e-mail: construction dispute, you’ll be cial/mortgage institutions and public companies including [email protected]. Web site: www .sugarman-company.com. Contact Diane LaBelle. glad to know who we are. president, CEO, and director. Thirty-plus years of all types of lending experience. Fifteen-plus years of national and Expert witness testimony in federal, state, and local courts, Pacific Construction state trade association leader/directorship. Clients: 150+ forensic accounting. Case involvement includes: damage Consultants, Inc. will assist in federal/state nationwide cases for FDIC, state of California, calculations, lost profits, business interruption, cash flow analysis, forensic accounting, business and real estate val- uncovering and analyzing facts financial and mortgage institutions, business, individuals. Fifty percent plaintiff/50 percent defendant. uations, construction damages, insurance claims, fraud in- important to your case. vestigations, lender liability, partnership dissolution, profes- BANKRUPTCY/TAX sional malpractice, white collar crime, liquidation and going Our highly experienced staff concern analysis, as well as bankruptcy and reorganization will provide support from the ADVISORS/EXPERTS @ MCS ASSOCIATES management and consulting. first analysis to the last day in 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: experts BOATING courtÐinvestigating, making the @mcsassociates.com. Web site: www.mcsassociates complex understandable, and .com. Contact Norman Katz, managing partner. Na- CAPTAIN TUULI MESSER-BOOKMAN, ESQ. 230 Carlisle Way, Benicia, CA 94510, (707) 745-8335, fax presenting evidence through tionally recognized banking, finance, insurance, and real estate consulting group (established 1973). Experienced (707) 745-8335, e-mail: [email protected]. Maritime acad- expert testimony and trial litigation consultants/experts include senior bankers, emy professor, personal injury, collision, rules of the road, support graphics. lenders, consultants, economists, accountants, insurance maritime training and education, seamanship, boat handling, tides, and weather. Pacific Construction underwriters/brokers. 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Specializing in securities law, federal securities law enforcement, securities arbitration, and international securi- ANDELA CONSULTING GROUP, INC. ties, insider trading, NYSE, AMEX, NASD disciplinary pro- 15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA ceedings, broker-dealer, investment company and invest- 91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter PACIFIC CONSTRUCTION ment adviser matters, liability under federal and state secu- @earthlink.net. Contact Thomas A. Tarter, managing rities laws, public and private offerings, Internet securities, CONSULTANTS, INC. director. Former CEO of two banks. Lending, forgery, en- and law firm liability. Former chair, LACBA Business & Cor- dorsements, letters of credit, guarantees, lender liability,

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BUSINESS APPRAISAL/BUSINESS VALUATION

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Specialties: forensic business analysis and accounting, lost Prior Big Four accounting firm experience. Specialties in- HAYNIE & COMPANY, CPAS profits, economic damages, expert testimony, discovery clude accounting, antitrust, breach of contract, business 4910 Campus Drive, Newport Beach, CA 92660, (949) assistance, business and real estate valuations, construc- interruption, business dissolution, construction, fraud in- 724-1880, fax (949) 724-1889, e-mail: sgabrielson tion claims, corporate recovery, real estate transactions, fi- vestigation, asset tracing analysis, intellectual property @hayniecpa.com. Web site: www.hayniecpa.com. nancial analysis and modeling, major professional organi- (patent, trademark and copyright infringement and trade Contact Steven C. Gabrielson. Alter ego, consulting and zations, and have experience across a broad spectrum of secrets), personal injury, product liability, professional mal- expert witness testimony in a variety of practice areas: industries and business issues. Degrees/licenses: CPA; practice, real estate, spousal support, tax, valuation of commercial damages, ownership disputes, economic CVA; CFE; ABV; PhD-economics. businesses, unfair advertising, unfair competition, and analysis, business valuation, lost profits analysis, fraud/ wrongful termination. See display ad on page 48. forensic investigations, taxation, personal injury, wrongful SINGLER VALUATION CONSULTING termination, professional liability, and expert cross exami- 2127 Lyans Drive, La Cañada, CA 91011, (818) 541- ZAMUCEN, CURREN, HOLMES & HANZICH nation. Extensive public speaking background assists in 1500, fax (818) 541-1565, e-mail: noasingler@earthlink 17848 Sky Park Circle, Irvine, CA 92614, (949) 955-2522, courtroom presentations. .net. Contact Noa Singler. Valuation of closely held e-mail: [email protected]. Contact Joanna Hernandez. businesses, eminent domain, goodwill loss analysis, ex- Zamucen, Curren, Holmes & Hanzich, CPAs specialize in HIGGINS, MARCUS & LOVETT, INC. pert witness testimony, litigation consulting, gift and estate the following: business valuations, economic damage cal- 800 South Figueroa Street, Suite 710, Los Angeles, CA tax, damage analysis, and acquisitions. culation for businesses and individuals, forensic account- 90017, e-mail: [email protected]. Web site: www.hmlinc ing, financial fraud investigation, expert witness testimony, .com. Contact Mark C. Higgins, ASA, president. The STONEFIELD JOSEPHSON computer support for litigation, goodwill impairment, firm has over 20 years of litigation support and expert testi- Valuation, Litigation & Forensic Group. 1620 26th merger and acquisition consulting, corporate “alter ego” mony experience in matters involving business valuation, Street, Suite 400 South, Santa Monica, CA 90404, (866) analysis and testimony, and other general CPA services. economic damages, intellectual property, loss of business 225-4511. Web site: www.sjaccounting.com. Contact Our designations include certified public accountant, certi- goodwill, and lost profits. Areas of practice include busi- Jeffrey Sumpter, director of litigation. The Stonefield fied business appraisers, certified fraud examiners, certified ness disputes, eminent domain, bankruptcy, and corpo- Josephson Valuation, Litigation & Forensic Group serves valuation analyst, accredited business valuator, MBA, and rate and marital dissolution. See display ad on page 63. business leaders, attorneys and other professionals with JD. We have been court appointed over 100 times in business valuation, litigation support, and forensic ac- cases involving valuation of business, economic damages, NANCY A. KEARSON, CPA, ABV, CVA, DABFA counting services. Stonefield Josephson serves public and and family law matters. 1801 Century Park East, Suite 2400, Los Angeles, CA privately held clients throughout the United States and in- 90067, (310) 785-9614, fax (310) 277-1278, e-mail: ternationally from four California locations: Los Angeles, CHEMISTRY [email protected]. Contact Nancy Kearson. Cost- Orange County, San Francisco, and East Bay. See dis- effective, timely expert witness/consultation services, in- play ad on page 17. CHEMICAL ACCIDENT RECONSTRUCTION vestigative forensic accounting, asset tracing, shareholder SERVICES, INC. and partner disputes, business valuation, and professional SUGARMAN & COMPANY, LLP 9121 East Tanque Verde Road, Suite 105, Tucson, AZ practice appraisal. Frequent lecturer on forensic account- 44 Montgomery Street, Suite 1310, San Francisco, CA 85749, (800) 645-3369, fax (520) 749-0861, e-mail: ing and business valuation. Certified Public Accountant; 94104, (415) 395-7512, fax (415) 658-2858, e-mail: [email protected]. Web site: www.chemaxx.com. Accredited in Business Valuation, Certified Valuation Ana- [email protected]. Web site: www Contact Dr. Michael Fox. Comprehensive chemical lyst, Diplomate of the American Board of Forensic Accoun- .sugarman-company.com. Contact Diane LaBelle. accident investigation—specializing in complex industrial tants. 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Case involvement includes: damage uct injuries, chemical fires and explosions, chemical label- MIOD AND COMPANY, LLP CPAS calculations, lost profits, business interruption, cash flow ing, chemical packaging, chemical handling and shipping, 11600 Indian Hills Road, Building B, Suite 300, Mission analysis, forensic accounting, business and real estate val- chemical burns, chemical warnings, chemical disposal, Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- uations, construction damages, insurance claims, fraud in- chemical safety, EPA, DOT, OSHA, propane, natural gas, 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA vestigations, lender liability, partnership dissolution, profes- flammable liquids, hazardous chemicals, aerosols, metal- 92260, (760) 779-0990, fax (760) 779-0960, 1055 East sional malpractice, white collar crime, liquidation and going lurgy, corrosion, failure analysis, water contamination, Colorado Boulevard, Suite 500, Pasadena, CA 91106, concern analysis, as well as bankruptcy and reorganization water testing, plastics, acids, alkalis, and MSDSs. State-of- (626) 441-1090, fax (626) 441-1096, e-mail: dmiod management and consulting. the-art equipment available, including natural SEM/EDAX, @miod-cpa.com. Visit our Web site at www.miodcpa.com. GC/MS, FTIR, etc. PhD physical chemistry, certified fire VICENTI, LLOYD & STUTZMAN LLP Contact Donald John Miod, CPA, ABV, CVA, CBA. and explosion investigator, NACE accredited in corrosion, 2210 East Route 66, Glendora, CA 91740, (626) 857- More than 30 years’ experience in litigation support, in- ASM accredited metallurgy and failure analysis, OSHA cer- 7300, fax (626) 857-7302, e-mail: [email protected]. cluding computation of income available for support, trac- tified (hazardous chemicals and processes), DOT certified Web site: www.vlsllp.com. Contact Royce Stutzman, ing, business valuations, fraud investigations, earnings loss (shipment of hazardous materials), accredited in aerosol CVA, CPA, Chairman. Our certified professionals serve calculations, and income tax matters. Our firm is very com- technology. as consultants and experts in business valuations and liti- puter-oriented, involving the use of computer graphics. We gation support. We conduct valuations related to mergers are members of the Institute of Business Appraisers, the and acquisitions, buy-sell agreements, purchase/sale of International Society of CPAs (founding member), the

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2981 QUEDADA, NEWPORT BEACH, CALIFORNIA 92660 CIVIL LITIGATION ence in the electronics and computer industry. Thirteen .com. Web site: www.ballcm.com. Contact Chris Ball. years as a forensic engineering consultant. References Contract claims, disputed change orders, schedule analy- GURSEY, SCHNEIDER & CO., LLP provided on request. Degrees/licenses: BSEE, MS, Regis- sis, delay claims, labor impact claims, construction defect 10351 Santa Monica Boulevard, Suite 300, Los Angeles, tered Professional Engineer, Cert EnCase Computer investigations and analysis, cost estimating, destructive CA 90025, (310) 552-0960, fax (310) 557-3468. 20355 Forensic Examiner, FCC General Radiotelephone licenses. testing, builders risk claims, commercial, residential, and Hawthorne Boulevard, First Floor, Torrance, CA 90503. public works. Web site: www.gursey.com. Contact Jennifer Ziegler. COMPUTER SIMULATIONS/GRAPHIC Forensic accounting and litigation support services in the KENNETH J. FISCHBECK areas of marital dissolution, business valuation and ap- VISUAL FORENSICS 511 Oak Street, Laguna Beach, CA 92651, (714) 609- praisal, goodwill, business disputes, malpractice, tax mat- (800) 426-6872, 130 Ryan Industrial Court, Suite 105, San 7481, fax (949) 715-6714, e-mail: kfi[email protected]. ters, bankruptcy, damage and cost-profit assessments, in- Ramon, CA 94583. Web site: www.visualforensics.com. Contact Kenneth J. Fischbeck. A construction consul- surance claims, court accounting, tracing, and entertain- 3D computer simulations for all aspects of accident recon- tant/expert witness for construction litigation specializing in ment industry litigation. See display ad on page 53. struction, vision related malpractice, criminal reenactment, critical path scheduling analysis, construction standards, and more. Vision perception, site visibility, and human fac- estimating, manpower, loading, construction techniques, COMPUTER FORENSICS tors analysis. Opposing demonstrative evidence analysis. construction industry customs and practices, disputes in- In-house scientific and engineering experts. Led by interna- volving payment, quality and scope of contract work be- DATACHASERS, INC. tionally recognized vision scientist, Dr. Arthur P. Ginsburg, tween owners, contractors, subcontractors, and suppliers, P.O. Box 2861, Riverside, CA 92516-2861, (877) Data who has over 16 years of experience as a vision and visibil- job site safety, and multi-employer and dual-employer Exam, (877) 328-2392, (951) 780-7892, fax (951) 780- ity expert consultant for the legal industry and government worksites. EDD and labor compliance. Service area: Los 9199, e-mail: [email protected]. Web site: www agencies. Plaintiff and defense. Seen on CBS’s 60 Minutes Angeles, Orange, Riverside, and San Bernardino counties. .datachasers.com. Contact Rick Albee. Hard drive imag- and Court TV. See display ad on page 84. See display ad on page 49. ing, use assessment and auditing, intellectual property and trade secret disputes, restore hidden, deleted, or lost files COMPUTERS/INFORMATION SCIENCES FORENSISGROUP and images, file dates when created, modified, or deleted, 3452 East Foothill Boulevard, Suite 1160, Pasadena, CA Internet history and e-mail recovery, computer use auditing ROBERT J ABEND, PE 91107, (800) 555-5422, (626) 795-5000, fax (626) 795- and evaluations, human resources, employer/employee 1658 Laraine Circle, San Pedro, CA 90732, cell (310) 346- 1950, e-mail: [email protected]. Web site: exams, experienced expert witness and special master 6543, (310) 221-0716, fax (310) 221-0716, e-mail: rabend www.forensisgroup.com. Contact Mercy Steenwyk. and full computer laboratory. Many years of public sector @linkline.com Web site: www.linkline.com/peronal/rabend. Thousands of our clients have gained the technical advan- experience. Multiple certifications. Prior law enforcement. Specialties: Electrical engineering, computer forensics, tage and the competitive edge in their cases from our re- See display ad on page 52. data recovery, electronic discovery, computer engineering, source group of high-quality experts in construction, med- software, electronics, microelectronics, electronics manu- ical, engineering, product liability, safety, environmental, FULCRUM FINANCIAL INQUIRY facturing, intellectual property, and trade secret litigation. accident reconstruction, automotive, failure analysis, fires, 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA Technical support during case preparation. Practiced at explosions, slip and fall, real estate, economics, appraisal, 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte court and deposition testimony. Thirty-five years of experi- employment, computers, and other technical and scientific @fulcruminquiry.com. Web site: www.fulcruminquiry.com. ence in the electronics and computer industry. Thirteen disciplines. We provide you with a select group of high- Contact David Nolte. Our professionals are experienced years as a forensic engineering consultant. References quality experts as expeditiously as possible. Unsurpassed CPAs, MBAs, ASAs, CFAs, affiliated professors, and in- provided on request. Degrees/licenses: BSEE, MS, Regis- recruitment standards. Excellent client service. See dis- dustry specialists. Our analysis and research combined tered Professional Engineer, Cert EnCase Computer play ad on page 53. with unique presentation techniques have resulted in an Forensic Examiner, FCC General Radiotelephone licenses. unequaled record of successful court cases and client re- GLENN M. GELMAN & ASSOCIATES, coveries. Our expertise encompasses damages analysis, COSGROVE COMPUTER SYSTEMS, INC. CERTIFIED PUBLIC ACCOUNTANTS AND lost profit studies, business and intangible asset valuations, 7411 Earldom Avenue, Playa del Rey, CA 90293, (310) BUSINESS CONSULTANTS appraisals, fraud investigations, statistics, forensic eco- 823-9448, fax (310) 821-4021, e-mail: jcosgrove 1940 East 17th Street, Santa Ana, CA 92705, (714) 667- nomic analysis, royalty audits, strategic and market as- @computer.org. Web site: www.cosgrovecomputer.com. 2600, fax (714) 667-2636. Web site: www.gmgcpa.com. sessments, computer forensics, electronic discovery, and Contact John Cosgrove. John Cosgrove, PE, has over Contact Glenn Gelman. Expert witness testimony, strat- analysis of computerized data. Degrees/licenses: CPAs, 40 years’ experience in computer systems and has been a egy development, document discovery, deposition assis- CFAs, ASAs, PhDs and MBAs in accounting, finance, eco- self-employed, consulting software engineer since 1970. tance, computation of damages, arbitration consulting, nomics, and related subjects. See display ad on page 2. He is a part-time lecturer in the UCLA School of Engineer- forensic accounting, investigative auditing, rebuttal testi- ing and LMU graduate school. He recently completed an mony, fiduciary accountings, and trial exhibit preparation. SETEC INVESTIGATIONS invited article, “Software Engineering & Litigation,” for the 8391 Beverly Boulevard, Suite 167, Los Angeles, CA Encyclopedia of Software Engineering. He holds the CDP, PHILIP KROEZE, AIA, CONSULTING ARCHITEC- 90048, (800) 748-5440, fax (323) 939-5481, e-mail: tstefan is a member of ACM, NSPE, a senior member of IEEE TURAL SERVICES @setecinvestigations.com. Web site: www.setecinvestiga- Computer Society, and a professional engineer in Califor- 19 Summerside, Coto De Caza, CA 92679, (949) 589- tions.com. Contact Todd Stefan. Setec Investigations of- nia. Formal education includes a BSEE from Loyola Univer- 0554, fax (949) 589-4351, e-mail: [email protected]. fers unparalleled expertise in computer forensics and en- sity and a master of engineering from UCLA. Contact Philip Kroeze, AIA. Expert witness: architectural terprise investigations providing personalized, case-spe- and engineering standard of care, construction defects, cific forensic analysis and litigation support services for law CONSTRUCTION moisture intrusion, and construction documents. Thirty-five firms and corporations. Setec Investigations possesses the years of experience in design and construction, residential, necessary combination of technical expertise, understand- AVONDALE RESOURCES, INC. commercial, and office buildings. Exhibits (photos, models, ing of the legal system, and specialized tools and 14 Via Andorra, Coto de Caza, CA 92679, (949) 644- charts, renderings). Service area: California and Nevada. processes enabling the discovery, collection, investigation, 1735, fax (949) 644-6542. Contact Alex Robertson Jr. and production of electronic information for investigating Construction consulting including construction claims, MPGROUP and handling computer-related crimes or misuse. Our ex- damages, defects, construction safety, project scheduling, CONSTRUCTION CONSULTANTS • FORENSIC pertise includes computer forensics, electronic discovery, overhead and job cost analysis, site inspections, expert EXPERT WITNESSES • MEDIATION litigation support, and expert witness testimony. testimony, arbitration and trial. Building experience includ- 1202 Greenacre Avenue, West Hollywood, CA 90046- ing commercial, office, special purpose buildings, indus- 5708, (323) 874-8973, toll free (800) 684-9100, fax (323) COMPUTER FORENSICS ELECTRONIC trial, manufacturing plants, distribution, restaurants, and re- 874-8948, email: [email protected]. Web site: www DISCOVERY tail stores. Engineering construction experience including .mpgroup.com. Contact Michael S. Poles, GC, CM, RCI, heavy equipment, installation, fuel terminals, refineries, ex- DABFET, ACFE. MPGroup is a collaboration of architects, ROBERT J ABEND, PE cavation, and trench shoring. Asphalt and concrete paving. engineers, contractors and other technical experts specializ- 1658 Laraine Circle, San Pedro, CA 90732, cell (310) 346- Gas distribution, pipeline, water distribution systems, and ing in consulting, forensic expert witness, and litigation sup- 6543, (310) 221-0716, fax (310) 221-0716, e-mail: rabend underground utilities. Construction safety, accident investi- port services since 1962. Specialty areas: accident recon- @linkline.com Web site: www.linkline.com/peronal/rabend. gation, site inspections, building code, and CAL-OSHA. struction; Americans with Disabilities Act; building code Specialties: Electrical engineering, computer forensics, Service area includes California, Arizona, Oregon, Wash- compliance; building code standards; claims analysis and data recovery, electronic discovery, computer engineering, ington, Utah, Idaho, and New Mexico. mitigation; construction administration; construction defects; software, electronics, microelectronics, electronics manu- contract compliance; cost estimating; customs and prac- facturing, intellectual property, and trade secret litigation. BALL CM tices; design and implementation; earthquake hazard; floor- Technical support during case preparation. Practiced at 24405 Chestnut Street, Suite 201, Newhall, CA 91321, ing and floor covering; framing (wood and steel); geotechni- court and deposition testimony. Thirty-five years of experi- (661) 254-3357, fax (661) 254-2127, e-mail: chris@ballcm cal and hydrological; personal injury; quality of workmanship;

56 Los Angeles Lawyer November 2005 reinforced concrete; reinforced masonry; roofing and water- tion, construction manager standard-of-care, general con- proofing; safety and OSHA standards; scaffolding; schedul- tractor practice, and design-build. Specialties: graphical CREDIT DAMAGE MEASUREMENT ing and delays; slips, trips and falls; steps, stairs and railings; expert presentations, trial exhibits, written expert reports, Standards of Care; Standards of Practice; structural failure; analysis/preparation of construction claims and damages, PLAINTIFFS AND DEFENDANTS structural steel and welding; water intrusion and mold. See and litigation support. Licenses/degrees: PE #14267 CO; Discover the Secrets to Equitable display ad on page 8. GC #B693646 CA; MBA-1978; BSCE-1972. Extensive Credit Damage Recovery credentials as trainer. Member-CMAA, DBIA, ASCE, PACIFIC CONSTRUCTION CONSULTANTS, INC. ACEC, AGC. Protect your case value and get the (800) 655-PCCI. Contact marketing director. Construc- FAIREST COMPENSATION FOR YOUR CLIENT tion contract disputes (claims) analysis, prep and presenta- ULTIMO ORGANIZATION INC. including: Increased out-of-pocket costs, tion, delay and monetary impact evaluation, including CPM Geotechnical Construction & Engineering Loss of Capacity, and Loss of Expectancy schedules. Architectural, civil, structural, mechanical, and 1411 East Borchard Avenue, Santa Ana, CA 92705, (714) Call the only expert witness with a proven compensable electrical specialties. Full in-house courtroom visual exhibit 560-8999, fax (714) 560-8998, e-mail: fran@geotechnical method to measure credit damage since 1995. preparation. Assistance in negotiations, mediation, arbitra- .com. Web site: www.geotechnical.com. Contact Frank tion, and litigation. Expert witness testimony. Additional Ultimo Sr. Our team can provide the resources, expertise, Georg Finder 714.441.0900 phone (310) 337-3131 or (916) 638-4848. See display ad and techniques to identify causes and effects of a problem For more information, visit on page 52. and implement remedies. We can provide site, structure, www.creditdamageexpert.com and geotechnical investigations; industry expert services; (CLE training seminars available) PCMI THE EXPERT CHOICE® foundation floor level surveys; repair plans; accurate docu- 2402 Cross Street, Riverside, CA 92503, (800) 576-7264, mentation; estimates; emergency stabilization; and envi- fax (888) 307-7264, e-mail: [email protected], Web ronmental remediation. Industry expert services for founda- site: www.pcmi.biz. Contact Scott Vivian. PCMI is a tion and construction problems. Remedial foundation, ARNOLD L. GILBERG, M.D., PH.D construction consulting firm providing litigation, mediation, slope pool, ground stabilization, re-leveling and repairs; EXPERT WITNESS • PSYCHIATRY and court testimony since 1982 for construction defects, forensic documentation, estimates, and repair plans; emer- delay claims, breach of contract, and personal injury. PCMI gency stabilization services; hillside, and waterfront exper- • Appointed by 3 Governors to Medical Board of California MQRC 11th District (1982-1991) has provided expert services for both plaintiff and defense. tise, and repair techniques; environmental remediation ser- See display ad on page 49. vices; geotechnical investigations; authorized installer of • Associate Clinical Professor of Psychiatry, Atlas and Chance foundation underpinning. See display UCLA School of Medicine PINNACLEONE ad on page 80. • All areas of civil litigation 445 South Figueroa Street, Suite 3650, Los Angeles, CA • Board Certified since 1971 90071, (213) 486-9884, fax (213) 486-9894, e-mail: DAR URS @pinnacleone.com. Established in 1980, PinnacleOne is a 915 Wilshire Boulevard, Suite 1800, Los Angeles, CA E-Mail: [email protected] national firm of leading construction consultants who pro- 90017, (213) 996-2549, fax (213) 996-2521, e-mail: mote a full range of professional services, including dispute [email protected]. Expert witness for enti- TEL 310/274-2304 avoidance and resolution, claims analysis and manage- tlement, causation damages on design, construction, and FAX 310/274-2476 ment, litigation support services, expert witness, project geotechnical environmental disputes. Experienced in all 9730 Wilshire Boulevard, Suite 101 management, financial services, and more. Headquartered types of construction projects. See display ad on Beverly Hills, CA 90212 in Phoenix, PinnacleOne regional operations are located in page 83. San Diego, Irvine, Los Angeles, Sacramento, and Hartford, CT. CONSTRUCTION DEFECT

RIMKUS CONSULTING GROUP, INC. GHH ENGINEERING, INC. 333 City Boulevard West, Suite 1805, Orange, CA 92868, 11960 Heritage Oak Place, Suite 2B, Auburn, CA 95603, (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski (530) 886-3100, fax (530) 886-3108, e-mail: ghh@ghheng @rimkus.com. Web site: www.rimkus.com. Contact Curt .com. Web site: www.moldservicesgroup.com. Contact Yaworski. Rimkus Consulting Group is a full-service Alisa Smith. Civil engineering and design, environmental forensic consulting firm. Since 1983, we have provided consulting, PSA’s, water and wastewater, storm water reliable investigations, reports, and expert witness testi- management, hazardous waste, fuel storage tank compli- G. GOVINE CONSULTING mony around the world. Our engineers and consultants ance, construction defect, litigation support, third party analyze the facts from origin and cause through extent of oversight, expert witness, mold management and consult- Developing the Workforce for the 21st Century loss. Services: construction defect and dispute analysis, ing services, and mold training and certification. vehicle accident reconstruction, fire cause and origin, LITIGATION CONSULTANT property evaluation, mold evaluations, indoor air quality CONSULTING AND EXPERT WITNESS: assessments, biomechanical analysis, product failure EMPLOYMENT analysis, foundation investigations, industrial accidents PLUMBING INSPECTION PIPE EVALUATION and explosions, water intrusion analysis, geotechnical SERVICES (PIPES) evaluations, construction accidents, construction dis- 43141 Business Center Parkway, Suite 201, Lancaster, SPECIALIZES IN: putes, financial analysis and assessments, forensic ac- CA 93535, (661) 949-8811, fax (661) 940-7318. Contact ✔ counting, HVAC analysis, electrical failure analysis, and Arnold A. Rodio. Specialties include evaluation of plumb- SEXUAL HARASSMENT, INCLUDING video/graphics computer animation. See display ad on ing systems and installation in housing, apartment, condo- AB 1825 TRAINING page 75. minium, and commercial. Expert on uniform plumbing ✔ EMPLOYMENT DISCRIMINATION: codes and installation standards. Twenty-five years’ expe- AGE, RACE, SEX SPECTRUM DEVELOPERS rience, 8,000+ residential units and assorted commercial 1241 Flemington Road, Riverside, CA 92506, (909) projects. Active plumbing contractor. Call for CV. ✔ HUMAN RESOURCES AND 776-1194, fax (909) 776-1196, e-mail: steve EMPLOYMENT PRACTICES @spectrumdevelopers.com. Web site: www CORPORATE INVESTIGATIONS ✔ .spectrumdevelopers.com. Contact Steve Koppes. In- WRONGFUL TERMINATION THE CAPANALYSIS GROUP, LLC spections, expert testimony, and consulting for construc- ✔ MEDIATION tion defects related to swimming pools, fountains, and 550 South Hope Street, Suite 1100, Los Angeles, CA spas. 90071, (213) 892-2568, fax (213) 892-2300, e-mail: [email protected]. Web site: www.capanalysis DR. GERDA GOVINE TRAUNER CONSULTING SERVICES, INC. .com. Contact Laura Robinson, PhD. Specialties: eco- 260 N. MAR VISTA, SUITE NO. 2 3111 Camino del Rio North, Suite 1350, San Diego, CA nomic, financial, accounting, and statistical analysis for PASADENA, CA 91106 92108, (619) 640-8500, fax (619) 640- 8501,e-mail: complex litigation, arbitration, regulatory proceedings, and TEL: 626/564-0502 [email protected]. Web site: www strategic corporate decision making. Assist attorneys with .traunerconsulting.com. Contact Ken Baker, VP. Exten- discovery, identification of relevant economic and financial FAX: 626/564-8702 sive expert witness testimony on construction delays, CPM issues, preparation of analytical models, critique of oppos- 800-564-0501 scheduling, inefficiency claims, disputed extra work, claim ing experts, and expert testimony in federal and state www.govineconsults.com damages, specification interpretation, contractor termina- courts, and before the FTC and DOJ. Areas of expertise in-

Los Angeles Lawyer November 2005 57 clude antitrust (including cutting-edge analyses of market fense liability by 90 percent. CV: Director of Curr Financial pliance. See display ad on page 67. definition, market power, coordinated interactions, and uni- Education Academy: Author of 3 MCLE seminars; credit lateral effects), economic damages, business valuation, in- reports: misconceptions and realities; credit reports: com- ZAMUCEN, CURREN, HOLMES & HANZICH vestigative and forensic accounting and auditing, intellec- pliance and opportunity; credit damage: evaluation and 17848 Sky Park Circle, Irvine, CA 92614, (949) 955-2522, tual property (including patent, trademark, and copyright compensation. Numerous publications. See display ad e-mail: [email protected]. Contact Joanna Hernandez. infringement, and valuation of intellectual property), insur- on page 57. Zamucen, Curren, Holmes & Hanzich, CPAs specialize in ance coverage, contract disputes and tort claims, mergers the following: business valuations, economic damage cal- and acquisitions, and securities fraud. Degrees/licenses: CRIMINOLOGY/GANGS culation for businesses and individuals, forensic account- CPAs, CFEs, CVAs, JDs, PhDs economics. ing, financial fraud investigation, expert witness testimony, DR. LEWIS YABLONSKY computer support for litigation, goodwill impairment, FULCRUM FINANCIAL INQUIRY 2311 Fourth Street, Suite 312, Santa Monica, CA 90405, merger and acquisition consulting, corporate “alter ego” 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA phone and fax (310) 450-3697, e-mail: expertwitness analysis and testimony, and other general CPA services. 90017, (213) 787-4100, fax (213) 787-4141,e-mail: dnolte @lewyablonsky.com. Web site: www.lewyablonsky.com. Our designations include certified public accountant, certi- @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact Dr. Lewis Yablonsky, PhD -NYU. Emeritus fied business appraisers, certified fraud examiners, certified Contact David Nolte. Our professionals are experienced professor criminology, California State University North- valuation analyst, accredited business valuator, MBA, and CPAs, MBAs, ASAs, CFAs, affiliated professors, and in- ridge. Professor at other universities, including UCLA, Uni- JD. We have been court appointed over 100 times in dustry specialists. Our analysis and research combined versity of Massachusetts, Harvard, Texas A&M, and Co- cases involving valuation of business, economic damages, with unique presentation techniques have resulted in an lumbia University. Published 19 books on criminology and and family law matters. unequaled record of successful court cases and client re- social problems, including Criminology (1990), Gangsters coveries. Our expertise encompasses damages analysis, (1997), and Gangs in Court (Lawyers & Judges Publishers, ECONOMIC DAMAGES lost profit studies, business and intangible asset valuations, 2005). Consultant/expert witness in over 180 legal cases in appraisals, fraud investigations, statistics, forensic eco- various areas of criminality, especially gangs (165+ gang ADVISORS/EXPERTS @ MCS ASSOCIATES nomic analysis, royalty audits, strategic and market as- cases). Also homicide, drug addiction, company security li- 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) sessments, computer forensics, electronic discovery, and ability, and responsibility. See Web site. Appointed to the 263-8700, fax (949) 263-0770, e-mail: experts analysis of computerized data. Degrees/licenses: CPAs, “Panel of Experts” approved by the L.A. County Superior @mcsassociates.com. Web site:www.mcsassociates.com. CFAs, ASAs, PhDs and MBAs in accounting, finance, eco- Court Judge’s Committee. See display ad on page 83. Contact Norman Katz, managing partner. Nationally nomics, and related subjects. See display ad on page 2. recognized banking, finance, insurance, and real estate DISPUTE ANALYSIS consulting group (established 1973). Experienced litigation SULTAN & COMPANY, LLC consultants/experts include senior bankers, lenders, con- 805 Third Avenue, Suite 2800, New York, NY 10022, New THE CAPANALYSIS GROUP, LLC sultants, economists, accountants, insurance underwriters/ York (212) 753-8895, Los Angeles (213) 236-0933, e-mail: 550 South Hope Street, Suite 1100, Los Angeles, CA brokers. Specialties: lending customs, practices, policies, [email protected]. Web site: www.sultanonline 90071, (213) 892-2568, fax (213) 892-2300, e-mail: in all types of lending (real estate, business/commercial, .com. Contact Christina A. Sultan, managing director. [email protected]. 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The firm is licensed in New issues, preparation of analytical models, critique of oppos- York and California. ing experts, and expert testimony in federal and state BALLENGER, CLEVELAND & ISSA, LLC courts, and before the FTC and DOJ. Areas of expertise in- 10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA WHITE, ZUCKERMAN, WARSAVSKY, LUNA, clude antitrust (including cutting-edge analyses of market 90024, (310) 873-1717, fax (310) 873-6600. Contact WOLF & HUNT definition, market power, coordinated interactions, and uni- Bruce W. Ballenger, CPA, executive managing direc- 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA lateral effects), economic damages, business valuation, in- tor. Services available: assist counsel in determining over- 91423, (818) 981-4226, fax (818) 981-4278, and 363 San vestigative and forensic accounting and auditing, intellec- all strategy. Help evaluate depositions and evidence. 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More than 100 bility, damage analysis of lost profits, lost earnings, and un- DESMOND MARCELLO AND AMSTER open-court testimonies, federal and state, civil and crimi- just enrichment, fraud investigation, business valuation, tax Southern California Office: 6060 Center Drive, Suite 825, nal. See display ad on page 50. planning and preparation, and mergers and acquisitions. Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400, Testified hundreds of times as expert witnesses. Prior Big fax (310) 216-0800. Northern California Office: 228 Bush BUSINESS ENTERPRISE APPRAISAL CO., INC. Four accounting firm experience. Specialties include ac- Street, 16th Floor, San Francisco, CA 94104, (415) 439- 23801 Calabasas Road, Suite 1016, Calabasas, CA counting, antitrust, breach of contract, business interrup- 8390, fax (415) 439-8391. Web site: www.dmavalue.com. 91302, (818) 591-9282, or (800) 928-7463. Contact tion, business dissolution, construction, fraud investigation, Contact Wes Nutten, Aaron Amster, or Madeleine Larry Grant, ASA or Robert Weinstock, JD, CBA. Ap- asset tracing analysis, intellectual property (patent, trade- Mamaux. Litigation consulting, forensic accounting, expert praisal of businesses and professional practices for all liti- mark and copyright infringement, and trade secrets), per- witness testimony, class action claims administration ser- gation and nonlitigation purposes, including estate plan- sonal injury, product liability, professional malpractice, real vices, and business valuation services. Staff qualifications ning and taxation, for 706 filings, FLP and LLC discounts, estate, spousal support, tax, valuation of businesses, un- include CPA, CMA, ABV, CFA, and ASA designations. S corporation elections, corporate dissolutions, damages, fair advertising, unfair competition, and wrongful termina- Testimony experience in numerous court jurisdictions. Es- loss and earnings and condemnation of goodwill. Also real tion. See display ad on page 48. tablished in 1968. See display ad on page 47. property appraisals. Expert witnesses in all jurisdictions. Established 1972. CREDIT DAMAGE OFS™ THE BUSINESS DOCTORS P.O. Box 4182, Inglewood, CA 90304, (310) 821-1893, THE CAPANALYSIS GROUP, LLC GEORG FINDER (310) 821-1083, e-mail: [email protected]. Web 550 South Hope Street, Suite 1100, Los Angeles, CA 2501 East Chapman Avenue, Suite 100, Fullerton, CA site: www.ofs3.com. Contact Linda Magalona. Senior 90071, (213) 892-2568, fax (213) 892-2300, e-mail: 92831, (714) 441-0900, e-mail: gfi[email protected]. Web corporate executive, small business and entrepreneurial [email protected]. Web site: www.capanalysis site: www.creditdamageexpert.com. Contact Georg experience. Over 20 years of business judgment, best .com. Contact Laura Robinson, PhD. Specialties: eco- Finder. Defense/plaintiff. Consultant/expert witness testi- practices, and complex business issues/problems consul- nomic, financial, accounting, and statistical analysis for mony plus credit damage report reveals, change of credit- tation. Identification and analysis of best practices and de- complex litigation, arbitration, regulatory proceedings, and worthiness, loss of capacity, loss of expectancy, in cases liverables issues in eCommerce, eProcurement and supply strategic corporate decision making. Assist attorneys with of fraud, breach of contract, bad faith insurance, negli- chain software applications and technology based imple- discovery, identification of relevant economic and financial gence, wrongful termination, identity theft, malpractice, PI, mentation. Expert in analysis, concepts, and strategies re- issues, preparation of analytical models, critique of oppos- divorce, creditor or credit bureau error. Very different than lated to business disputes, project management, and part- ing experts, and expert testimony in federal and state the service of an economist or CPA. Often increases plain- nership dissolution. Special expertise in Sarbanes-Oxley is- courts, and before the FTC and DOJ. Areas of expertise in- tiff case value by 400 percent or more. May reduce de- sues including corporate governance and COBIT IT com-

58 Los Angeles Lawyer November 2005 clude antitrust (including cutting-edge analyses of market definition, market power, coordinated interactions, and uni- lateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers Tough questions call for and acquisitions, and securities fraud. Degrees/licenses: CPAs, CFEs, CVAs, JDs, PhDs economics. clear thinking, expert insight, and a sharp focus CONLEY FORENSICS on the facts. That is why 15436 Albright Street, Pacific Palisades, CA 90272, (310) 454-7390, fax (310) 459-6386, e-mail: [email protected]. CRA International is Contact Bryan C. Conley, PhD, principal. Specializing in considered the gold personal injury, wrongful death, wrongful termination and standard by law firms, breach of contract damages. Published in forensic economic and leading academic journals. Testifying since 1977. businesses, and governments that seek CORNERSTONE RESEARCH 515 South Flower Street, Suite 2900, Los Angeles, CA clear and reliable answers. 90071, (213) 553-2501, fax (213) 553-2699, e-mail: Whether we are engaged to [email protected]. Web site: www.cornerstone provide expert witness .com. Contact Jeanene Moon. Cornerstone Research provides attorneys with expert testimony and economic testimony in complex and financial analyses in all phases of commercial litigation. litigation or to advise clients We work with faculty and industry experts in a distinctive in make-or-break corporate partnership that combines the strengths of the business and academic worlds. Our areas of expertise include iden- strategy decisions, CRA tifying and supporting expert witnesses in intellectual prop- applies the same rare erty, antitrust, securities, entertainment, real estate, finan- combination of talents: cial institutions, and general business litigation. vertical specialization, CORPORATE SCIENCES, INC. functional expertise, and 3215 East Foothill Boulevard, Pasadena, CA 91107, (626) 440-7200, fax (626) 440-1800. e-mail: jsdantoni@hotmail rigorous financial and .com. Web site: www.corporatesciences.com. Contact: economic analysis. With a Antitrust Dr. Joseph S. D’Antoni, Managing Principal. Services proven 40-year track record available: consultants with extensive litigation analysis and Bankruptcy testimonial experience providing economic, forensic and and a growing global litigation services to assist law firms and their clients ana- Contract Disputes presence in more than 20 lyze and present economic damages in civil litigation mat- Damages offices on four continents, ters. Our highly skilled team is composed of a diverse group of practitioners—economists, CPAs, CFAs, statisti- Energy & Environment CRA is the partner of cians, real estate and business valuation specialists, insur- Entertainment choice when the right ance, financial and economic damages experts with Big decision matters. Four accounting firm experience. Services performed in- Finance clude real estate, business valuation, economic feasibility Healthcare studies, survey and market studies. Areas of litigation specialization include general economic damages, construc- Intellectual Property tion defects, insurance recovery and defense, intellectual property, environmental damages, business valuations, International Trade real estate valuations and damages, land economics, an- Mergers & Acquisitions titrust, standard of care, forensic investigations, employment, corporate and partnership dissolutions, securities, Pharmaceuticals and class action lawsuits. Professionals also serve as me- Professional Sports diators, special masters, third party administrators, as well as consulting and testifying experts. Regulation Securities CRA INTERNATIONAL 1055 East Colorado Boulevard, Suite 420, Pasadena, Cali- Taxation & Transfer Pricing fornia 91106-2327, (626) 564-2000, fax (626) 564-2099. Telecommunications Web site: www.crai.com. Contact John Hirshleifer, vice president. CRA International provides economic, financial, Valuation and business analysis in such areas as antitrust, contracts, damages, energy, environment, entertainment, healthcare, intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry ex- CRA International perts, CRA multidisciplinary staff offers wide-ranging con- 1055 East Colorado Boulevard sulting assistance (from modeling projects to trial prepara- Suite 420 tion and testimony) to attorneys, executives, and govern- Pasadena, CA 91106-2327 ment officials the world over. See display ad on this page. Contact: John Hirshleifer, Vice President ECON ONE RESEARCH, INC. Tel: 626-564-2000 601 West Fifth Street, 5th Floor, Los Angeles, CA 90071, Fax: 626-564-2099 (213) 624-9600, fax (213) 624-6994, e-mail: lskylr @econone.com. Web site: www.econone.com. Contact

Los Angeles Lawyer November 2005 59 Lisa Skylar, general manager. Econ One is an economic research and consulting ﬁrm with extensive experience combining theory and empirical analyses. We understand the need for clear, accurate, persuasive answers to complex problems. We work with our clients to keep our efforts focused on necessary tasks, with close attention to costs. We provide economic analysis and expert testimony in many areas, including: antitrust, contract disputes, damages analysis/calculations, intellectual property and patent infringement, market analysis, regulation, employment issues, and unfair competition.

ECONOMIC CONSULTANTS & ASSOCIATES 2030 Main Street, Suite 1300, Irvine, CA 92614, (714) 547-6588, (310) 246-9993, fax (714) 547-9916, e-mail: [email protected]. Contact Stephen T. Riley, PhD. Quantifying losses in the following areas: P/I, wrongful death, loss of household services, loss of earning capacity, medical/legal malpractice, business losses (lost proﬁts), wrongful termination, and expert testimony.

FULCRUM FINANCIAL INQUIRY Insurance Bad Faith Expert 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Our professionals are experienced Clinton E. Miller, J.D., BCFE CPAs, MBAs, ASAs, CFAs, affiliated professors, and in- Author: How Insurance Companies Settle Cases dustry specialists. Our analysis and research combined with unique presentation techniques have resulted in an 39 YEARS EXPERIENCE unequaled record of successful court cases and client re- Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide coveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, • Coverage Disputes • Customs and Practices in the Insurance Industry appraisals, fraud investigations, statistics, forensic eco- • Good Faith/Bad Faith Issues nomic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and ■ analysis of computerized data. Degrees/licenses: CPAs, (408) 279-1034 FAX (408) 279-3562 CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 2.

HIGGINS, MARCUS & LOVETT, INC. 800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, e-mail: [email protected]. Web site: www.hmlinc .com. Contact Mark C. Higgins, ASA, president. The ﬁrm has over 20 years of litigation support and expert testimony experience in matters involving business valuation, economic damages, intellectual property, loss of business goodwill, and lost proﬁts. Areas of practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 63.

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60 Los Angeles Lawyer November 2005

SANLI PASTORE & HILL, INC. damage analysis of lost profits, lost earnings, and unjust business valuations, family law, bankruptcy, and reorgani- 1990 South Bundy Drive, Suite 800, Los Angeles, CA enrichment, fraud investigation, business valuation, tax zation. Degrees/license: CPAs, CFEs, MBAs. See display 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- planning and preparation, and mergers and acquisitions. ad on page 60. dress: www.sphvalue.com. Contact Nevin Sanli or Tom Testified hundreds of times as expert witnesses. Prior Big Pastore. Sanli Pastore & Hill, Inc. is a premier provider of Four accounting firm experience. Specialties include ac- CRA INTERNATIONAL business valuation and valuation advisory services, special- counting, antitrust, breach of contract, business interrup- 1055 East Colorado Boulevard, Suite 420, Pasadena, Cali- izing in litigation support and expert witness testimony. tion, business dissolution, construction, fraud investigation, fornia 91106-2327, (626) 564-2000, fax (626) 564-2099. Services include valuations for goodwill loss, estate and gift asset tracing analysis, intellectual property (patent, trade- Web site: www.crai.com. Contact John Hirshleifer, vice tax planning (family limited partnerships), lost profit analy- mark and copyright infringement and trade secrets), per- president. CRA International provides economic, financial, sis, mergers and acquisitions, goodwill impairment, fair- sonal injury, product liability, professional malpractice, real and business analysis in such areas as antitrust, contracts, ness and solvency opinions, ESOPs, incentive stock op- estate, spousal support, tax, valuation of businesses, un- damages, energy, environment, entertainment, healthcare, tions, capital raises, corporate, partnership, and marital fair advertising, unfair competition, and wrongful termina- intellectual property, international trade, mergers & acquisi- dissolutions. Comprehensive economic, industry, and mar- tion. See display ad on page 48. tions, professional sports, regulation, securities fraud, taxa- ket research. Extensive experience in expert witness testi- tion and transfer pricing, telecommunications, and valua- mony, pretrial preparation, and settlement negotiations. WILLIAMS & RIBB LLP tion. In concert with leading academic and industry ex- See display ad on page 69. 600 Wilshire Boulevard, Suite 1515, Los Angeles, CA perts, CRA multidisciplinary staff offers wide-ranging con- 90017-3227, (213) 683-1013, fax (213) 683-0510, e-mail: sulting assistance (from modeling projects to trial prepara- SCHULZE HAYNES & CO. [email protected]. Contact Charles R Gross, tion and testimony) to attorneys, executives, and govern- 660 South Figueroa Street, Suite 1280, Los Angeles, CA partner. Specialties: expert witness testimony and foren- ment officials the world over. See display ad on page 59. 90017, (213) 627-8280, fax (213) 627-8301, e-mail: ex- sic accounting services in business and contract disputes, [email protected]. Web site: www.schulzehaynes marriage dissolution, and lost profits, and earnings dis- ECON ONE RESEARCH, INC. .com. Contact Karl J. Schulze or Dana Haynes, prin- putes, earnings loss and economic damage calculations, 601 West Fifth Street, 5th Floor, Los Angeles, CA 90071, cipals. Specialties: forensic business analysis and ac- income tax analysis, and fraud investigations. Our exper- (213) 624-9600, fax (213) 624-6994, e-mail: lskylar counting, lost profits, economic damages, expert testi- tise encompasses engineering training, operational busi- @econone.com. Web site: www.econone.com. Contact mony, discovery assistance, business and real estate valu- ness experience, plus accounting and financial consulting, Lisa Skylar, general manager. Econ One is an eco- ations, construction claims, corporate recovery, real estate including economic analysis. Degrees/licenses: CPA; BS; nomic research and consulting firm with extensive experi- transactions, financial analysis and modeling, major profes- Engineering; Masters; Management Science; Registered ence combining theory and empirical analyses. We under- sional organizations, and have experience across a broad Investment Advisor; Insurance and Securities Advisor; Fi- stand the need for clear, accurate, persuasive answers to spectrum of industries and business issues. Degrees/li- nancial Planner. complex problems. We work with our clients to keep our censes: CPA; CVA; CFE; ABV; PhD-economics. efforts focused on necessary tasks, with close attention to ZAMUCEN, CURREN, HOLMES & HANZICH costs. We provide economic analysis and expert testimony THOMAS NECHES & COMPANY LLP 17848 Sky Park Circle, Irvine, CA 92614, (949) 955-2522, in many areas, including: antitrust, contract disputes, dam- 520 South Grand Avenue, Suite 350, Los Angeles, CA e-mail: [email protected]. Contact Joanna Hernandez. ages analysis/calculations, intellectual property and patent 90071-2662, (213) 624-8150, fax (213) 624-8152, e-mail: Zamucen, Curren, Holmes & Hanzich, CPAs specialize in infringement, market analysis, regulation, employment is- [email protected]. Web site: www.thomasneches the following: business valuations, economic damage cal- sues, and unfair competition. .com. Contact Thomas M. Neches, CPA, ABV, CVA, culation for businesses and individuals, forensic account- CFE. Accounting, financial, business valuation, and statis- ing, financial fraud investigation, expert witness testimony, SANLI PASTORE & HILL, INC. tical analyses to assist attorneys in litigation. Expert testi- computer support for litigation, goodwill impairment, 1990 South Bundy Drive, Suite 800, Los Angeles, CA mony in state and federal courts. Cases: Antitrust, breach merger and acquisition consulting, corporate “alter ego” 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- of contract, fraud, intellectual property, lost business value, analysis and testimony, and other general CPA services. dress: www.sphvalue.com. Contact Nevin Sanli or Tom lost profits, wrongful death, and wrongful termination. In- Our designations include certified public accountant, certi- Pastore. Sanli Pastore & Hill, Inc. is a premier provider of dustries: banking, construction, entertainment, insurance, fied business appraisers, certified fraud examiners, certified business valuation and valuation advisory services, special- manufacturing, retail, securities, and wholesale. Creden- valuation analyst, accredited business valuator, MBA, and izing in litigation support and expert witness testimony. tials: certified public accountant/accredited in business val- JD. We have been court appointed over 100 times in Services include valuations for goodwill loss, estate and gift uation, certified valuation analyst, certified fraud examiner. cases involving valuation of business, economic damages, tax planning (family limited partnerships), lost profit analy- Education: BA (Mathematics) UC San Diego, MS (Opera- and family law matters. sis, mergers and acquisitions, goodwill impairment, fair- tions Research) UCLA. Teaching: Adjunct Professor, Loy- ness and solvency opinions, ESOPs, incentive stock op- ola Law School. See display ad on page 51. ECONOMICS tions, capital raises, corporate, partnership, and marital dissolutions. Comprehensive economic, industry, and mar- VICENTI, LLOYD & STUTZMAN LLP THE CAPANALYSIS GROUP, LLC ket research. Extensive experience in expert witness testi- 2210 East Route 66, Glendora, CA 91740, (626) 857- 550 South Hope Street, Suite 1100, Los Angeles, CA mony, pretrial preparation, and settlement negotiations. 7300, fax (626) 857-7302, e-mail: [email protected]. 90071, (213) 892-2568, fax (213) 892-2300, e-mail: See display ad on page 69. Web site: www.vlsllp.com. Contact Royce Stutzman, [email protected]. Web site: www.capanalysis CVA, CPA, Chairman. Our certified professionals serve .com. Contact Laura Robinson, PhD. Specialties: eco- ELECTRICAL as consultants and experts in business valuations and liti- nomic, financial, accounting, and statistical analysis for gation support. We conduct valuations related to mergers complex litigation, arbitration, regulatory proceedings, and ROBERT J ABEND, PE and acquisitions, buy-sell agreements, purchase/sale of strategic corporate decision making. Assist attorneys with 1658 Laraine Circle, San Pedro, CA 90732, cell (310) 346- closely held businesses, partner disputes, etc. Our forensic discovery, identification of relevant economic and financial 6543, (310) 221-0716, fax (310) 221-0716, e-mail:rabend accounting experts assess the amount of an economic issues, preparation of analytical models, critique of oppos- @linkline.com Web site: www.linkline.com/peronal/rabend. loss, whether it be business interruption from casualty, un- ing experts, and expert testimony in federal and state Specialties: Electrical engineering, computer forensics, fair competition, condemnation, damage caused by oth- courts, and before the FTC and DOJ. Areas of expertise in- data recovery, electronic discovery, computer engineering, ers, or loss of earnings from various events. Our fraud include antitrust (including cutting-edge analyses of market software, electronics, microelectronics, electronics manu- vestigation team reviews documentation, interviews wit- definition, market power, coordinated interactions, and uni- facturing, intellectual property, and trade secret litigation. nesses and suspects, and assesses evidence to resolve lateral effects), economic damages, business valuation, in- Technical support during case preparation. Practiced at allegations. We provide expert witness testimony and im- vestigative and forensic accounting and auditing, intellec- court and deposition testimony. Thirty-five years of experi- plement fraud prevention programs. VLS Celebrates 52 tual property (including patent, trademark, and copyright ence in the electronics and computer industry. Thirteen Years of Quality Service! infringement, and valuation of intellectual property), insur- years as a forensic engineering consultant. References ance coverage, contract disputes and tort claims, mergers provided on request. Degrees/licenses: BSEE, MS, Regis- WHITE, ZUCKERMAN, WARSAVSKY, LUNA, and acquisitions, and securities fraud. Degrees/licenses: tered Professional Engineer, Cert EnCase Computer WOLF & HUNT CPAs, CFEs, CVAs, JDs, PhDs economics. Forensic Examiner, FCC General Radiotelephone licenses. 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San COHEN, MISKEI & MOWREY LLP ELECTRICAL ACCIDENTS Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA JAMES A. SMITH, CONSULTANT 219-9816, fax (949) 219-9095, e-mail:[email protected]. 91403, (818) 986-5070, fax (818) 986-5034, e-mail: 2562 Treasure Drive, Suite 4102, Santa Barbara, CA Contact Barbara Luna, Drew Hunt, Paul White, Jack [email protected]. Contact Scott Mowrey. Spe- 93105-4177, (805) 687-7911, fax (805) 687-0832, Zuckerman, Fred Warsavsky, and Bill Wolf. Expert wit- cialties: consultants who provide extensive experience, liti- e-mail: [email protected]. Electrical accidents, electro- ness testimony for business, real estate, personal injury, gation support, and expert testimony regarding forensic cution and electric shock, analyzing what happened and and marital dissolution. Investigative analysis of liability, accountants, fraud investigations, economic damages,

62 Los Angeles Lawyer November 2005 why, consulting on case strategy, and being an expert witness, National Electric Code compliance, California GO-95 — EXPERT WITNESS IN — compliance, National Electric Safety Code compliance, protective relaying, and equipment and product testing. INFERTILITY, GYNECOLOGY & OBSTETRICS

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64 Los Angeles Lawyer November 2005 ployment, computers, and other technical and scientiﬁc disciplines. We provide you with a select group of high- quality experts as expeditiously as possible. Unsurpassed recruitment standards. Excellent client service. See display ad on page 53. SECURITIES GHH ENGINEERING, INC. 11960 Heritage Oak Place, Suite 2B, Auburn, CA 95603, Securities Law (530) 886-3100, fax (530) 886-3108, e-mail: ghh@ghheng Federal Securities Law Enforcement .com. Web site: www.moldservicesgroup.com. International Securities Regulation Contact Alisa Smith. Civil engineering and design, environmental consulting, PSA’s, water and wastewater, storm Insider Trading water management, hazardous waste, fuel storage tank NYSE, AMEX, NASD Disciplinary Proceedings compliance, construction defect, litigation support, third Broker-Dealer, Investment Company & Investment Adviser Matters party oversight, expert witness, mold management and Liability Under Federal & State Securities Laws consulting services, and mold training and certiﬁcation. Public & Private Offerings HICHBORN CONSULTING GROUP Internet Securities 1988 North Tustin Avenue, Orange, CA 92865, (714) 637- Securities Arbitration 7400, fax (714) 637-7488, e-mail: hichbornsr@hichborn Law Firm Liability .com. Web site: www.hichborn.com. Contact Geoffrey Hichborn Sr. General civil design with specialties featuring forensic investigations of concrete work and concrete products, concrete, cement and related materials exper- Robert C. Rosen tise, construction practices and materials evaluation, repair Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School. Over recommendations, construction observation, public 32 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission, works/residential/commercial/industrial, and specially de- Washington D.C. Published Author of Securities Regulations, including nine volume treatise. signed tests of distressed materials.

RICK ENGINEERING CO. 1223 University Avenue, Suite 240, Riverside, CA 92507, Rosen & Associates, P.C. (951) 782-0707, fax (951) 782-0723, e-mail: rstockton LAW OFFICES @rickengineering.com. Web site: www.rickengineering California Plaza • 300 S. Grand Avenue, Suite 2700 • Los Angeles, CA 90071 .com. Robert A. Stockton, PE. Specialties include subdi- vision, commercial/industrial site design, construction re- TEL 213/362-1000 ■ FAX 213/362-1001 view and value engineering, flood control studies/engineer- Web site: Rosen-law.com E-mail: [email protected] ing, aerial topographic mapping, and special computerized services, including forensic engineering and CADD modeling. See display ad on page 64. CARL SHERIFF, PE 1 10153 ⁄2 Riverside Drive, Suite 365, Toluca Lake, CA 91602, (818) 766-9259, fax (818) 908-9301. Contact Carl Sheriff, PE, forensic engineer. Degreed in the law THE BEST LEGAL MINDS and engineering. Registered professional engineer in mechanical, controls, and safety. General contractor, real estate broker, and certified building inspector. Licensed truck IN THE COUNTRY driver. Consulting and expert testimony on premises liability, product defects, and traffic accidents. Construction TALK TO US and industrial accidents. Building and OSHA code compliance. Slip, trip, and falls. Human factors. Safety evaluation. Computerized analysis and exhibits. Free initial file review. ¥ Metallurgical Failures ¥ Bio-Medical/Orthopedic Implants ENGINEERS/ELECTRONICS ¥ Corrosion & Welding Failures ¥ Plumbing/Piping/ABS Failures JOHN R. GRINDON & ASSOCIATES Glass & Ceramic Failures Complete In-House Laboratory Image Processing, Image Analysis, and 3-D Scene ¥ ¥ Measurement from Images. P.O. Box 4067, Hazelwood ¥ Chairs / Ladders / Tires Testing & Analysis Facilities MO 63042, (314)895-4747, fax (314)895-0830, e-mail: john ¥ Automobile/Aerospace/ ¥ Expert Witnesses/Jury Verdicts [email protected]. Web site: www.image-analytics .com, Contact John R. Grindon, DSc. Services include Accidents ¥ Licensed Professional Engineers processing and analyzing still and video images for information about the imaged scenes or objects. Dr. Grindon has developed systems and software that process images, Contact: Dr. Naresh Kar, Fellow ASM, Fellow ACFE measurements, and data for information extraction and Dr. Ramesh Kar, Fellow ASM, Fellow ACFE analysis. He holds patents for electronic imaging systems and processing methods for computing three-dimensional scene measurements from images. Dr. Grindon is a consultant and court-qualified expert witness experienced in working with litigation teams during discovery and trial. ADVANCED MATERIALS, INC. See display ad on page 73. Testing & Research Labs 2528 W. Woodland Drive ENVIRONMENTAL Anaheim, CA 92801 THE CAPANALYSIS GROUP, LLC ■ TEL: (714)527-7100 550 South Hope Street Suite 1100, Los Angeles, CA 90071, (213) 892-2568, fax (213) 892-2300, e-mail: ■ FAX: (714)527-7169 [email protected]. Web site: www.capanalysis ■ www.karslab.com ■ email: [email protected] .com. Contact Laura Robinson, PhD. Specialties: 1.

Los Angeles Lawyer November 2005 65 Valuation of environmental liabilities and other legal claims EQUINE Behrooz (Bruce) using a decision tree approach that produces an accurate representation of liability cost versus the probability of CAROL MESCHTER, DVM, PHD, DACVP Broukhim, M.D. those costs being incurred. 2. Provision of crucial informa- 786 Lucerne Drive, Sunnyvale, CA 94085, (408) 738-9261, fax (408) 738-9278, e-mail: [email protected]. Board Certified Orthopedic Surgeon tion to help ensure that products or services meet the environmental, health, and safety requirements of the jurisdic- Contact Carol Meschter, DVM. PhD, DACVP. PhD, tions in which they do business. 3. Staff of Washington- Board Certified Veterinary Pathologist. Twenty-plus years’ ■ Shoulder, knee & hip surgery based regulatory analysts monitor federal and state regula- expertise in biotechnology, pharmaceuticals, toxicology; ■ Arthroscopic surgery tory developments and interact with government officials to additional life of long experience with horses and dogs, as a veterinarian and as a competitor. ■ Neck & back injury eval. & treatment explain the interests of their clients. Degrees/license: hy- drogeology, geology, environmental scientists. ■ Personal injury ESCROW ■ Workers’ Compensation CRA INTERNATIONAL ADVISORS/EXPERTS @ MCS ASSOCIATES ■ QME, IME, AME 1055 East Colorado Boulevard, Suite 420, Pasadena, Cali- 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) fornia 91106-2327, (626) 564-2000, fax (626) 564-2099. 263-8700, fax (949) 263-0770, e-mail: experts Web site: www.crai.com. Contact John Hirshleifer, vice @mcsassociates.com. Web site:www.mcsassociates.com. MEMBER: president. CRA International provides economic, financial, Contact Norman Katz, managing partner. Nationally – Am. Academy of Orthopedic Surgeons and business analysis in such areas as antitrust, contracts, recognized banking, finance, insurance, and real estate – American Board, of Ortho Surgeons damages, energy, environment, entertainment, healthcare, consulting group (established 1973). Experienced litigation intellectual property, international trade, mergers & acquisi- consultants/experts include senior bankers, lenders, con- – Arthroscopic Assn. of North America tions, professional sports, regulation, securities fraud, taxa- sultants, economists, accountants, insurance underwriters/ – International Society of Arthroscopy, tion and transfer pricing, telecommunications, and valua- brokers. Specialties: lending customs, practices, policies, Knee Surgery & Ortho Sports Medicine tion. In concert with leading academic and industry ex- in all types of lending (real estate, business/commercial, LACMA – CMA perts, CRA multidisciplinary staff offers wide-ranging con- construction, consumer/credit card), banking operations/ sulting assistance (from modeling projects to trial prepara- administration, trusts and investments, economic analysis tion and testimony) to attorneys, executives, and govern- and valuations/damages assessment, insurance claims, 818-755-6500 TEL ment officials the world over. See display ad on page 59. coverages and bad faith, real estate brokerage, appraisal, 310-552-1488 (L.A.) escrow, and construction defects/disputes, and title insur- HARGIS + ASSOCIATES, INC. ance. 818-980-7144 FAX 2365 Northside Drive, Suite C-100, San Diego, CA 92108, 10640 Riverside Dr., North Hollywood, CA (800) 554-2744, (619) 521-0165, fax (619) 521-8580, EXPERT REFERRAL SERVICE e-mail: [email protected]. Web site: www.hargis.com. 9763 W. Pico Blvd., Los Angeles, CA Contact David R. Hargis, PhD, RG. Expert witness testi- FORENSIC EXPERT WITNESS ASSOCIATION mony, technical consultation, and litigation support con- 2402 Vista Nobleza, Newport Beach, CA 92660, (949) 20 YEARS EXPERIENCE cerning hydrogeologic assessments to evaluate groundwa- 640-9903, fax (949) 640-9911, e-mail: [email protected]. IN ORTHO. MED. LEGAL WORK ter supply, basin studies, nature/extent of soil/groundwater Web site: www.forensic.org. Contact Norma S. Fox, ex- AND EXPERT TESTIMONY contamination, source identification, identification of poten- ecutive director. Nonprofit professional association. Edu- tially responsible parties, cost allocation studies, and nego- cation through monthly meetings, workshops, and annual tiations with USEPA and state regulatory agencies involv- conference. Referral service. Five chapters throughout Cal- ing cleanup levels and approval of RI/FS/RD/RA docu- ifornia. See display ad on page 46. ments for various state and federal Superfund sites. See display ad on page 70. TASA (800) 523-2319, fax (800) 329-8272. FIND YOUR EXPERT, GHH ENGINEERING, INC. EXPERT WITNESS, or CONSULTANT in minutes. TASA 11960 Heritage Oak Place, Suite 2B, Auburn, CA 95603, provides time-saving, customized referrals by our experi- (530) 886-3100, fax (530) 886-3108, e-mail: ghh@ghheng enced staff to outstanding, local, national, and global spe- .com. Web site: www.moldservicesgroup.com. Contact cialists, including hard-to-find authorities in virtually all pro- Alisa Smith. Civil engineering and design, environmental fessions. We offer more than 10,000 categories of exper- consulting, PSA’s, water and wastewater, storm water tise, including 900 medical specialties through the management, hazardous waste, fuel storage tank compli- TASAmed division. Your request receives our prompt per- ance, construction defect, litigation support, third party sonal attention. Our services include unlimited searches, oversight, expert witness, mold management and consult- referrals, resumes, and initial screening telephone interviews ing services, and mold training and certification. which we help you arrange with candidates—all at NO CHARGE until you designate or engage an expert. Plain- PACIFIC HEALTH & SAFETY CONSULTING, INC. tiff/defense, civil/criminal cases, and ADR. Experts can as- 2192 Martin, Suite 230, Irvine, CA 92612, (949) 253-4065, sist you at any stage of your case from early case merit as- e-mail: [email protected]. Web site: www.phsc-web sessment to deposition and testimony. Sample expertise .com. Contact Tim Morrison. Providing quality consulta- categories: accident reconstruction, banking, computers, tion and expert witness for mold, bacteria, lead, and as- construction, economics, electronics, engineering, forensic bestos. Certified training for all health and safety OSHA, accounting, healthcare, intellectual property, machine de- AQMD and FPT regulations. See display ad on this sign, medical devices, mold, OSHA, personal injury, prod- page. uct liability, safety, security, and toxicology. Over 44 years of successful referrals to California’s finest law and insur- THE REYNOLDS GROUP ance firms. Please see insert in this issue and display P.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397, ad on page 74. fax (714) 730-6476, e-mail: edreynolds@reynolds-group .com. Web site: www.reynolds-group.com. Contact Ed EXPERT WITNESS Reynolds. Principal of the Reynolds Group, a multi-disci- plined, environmental engineering, contracting, and con- AMFS, INC. (AMERICAN MEDICAL FORENSIC sulting firm founded in 1989. 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FAILURE ANALYSIS

KARS ADVANCED MATERIALS, INC. How do you describe the integrity, Testing and Research Labs, 2528 West Woodland Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- expertise and knowledge of an 7169, e-mail: [email protected]. Web site: www.karslab independent advisory firm .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. Southern California’s premier materials/mechanical/metal- such as ours? lurgical/structural/forensics laboratory. Registered professional engineers with 20-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive, bicycles, tires, ﬁre, paint, plumbing, corrosion, and struc- We don't. We demonstrate it. tural failures. We work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals are fellows of American Society for Metals and board-certiﬁed diplomates, American Board of Forensic Examiners. See display ad on page 65. Forensic Accounting & SEAL LABORATORIES 250 North Nash Street, El Segundo, CA 90245, (310) 322- Litigation Consulting 2011, fax (310) 322-2243. E-mail: [email protected]. Web site: www.seallabs.com. Contact Arun Kumar, PhD, president. Materials failure analysis, product liability, > Forensic & Investigative Accounting and patent infringement support. Case evaluation and strategy, analytical support, and expert witness testimony. Metals, composites, plastics, and glass. Airplanes, autos, > Damages Quantification & helicopters, motorcycles, consumer products, medical de- Expert Testimony vices, prostheses and implants, and electrical components. Analysis of failure due to fatigue, overload, corrosion, wear, or manufacturing/material defect. > Litigation Consulting

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Past chair of California Society of CPAs’ WOLF & HUNT tate, SBA, international, secured, unsecured, business, Family Law Section, business valuation instructor for Cali- 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA consumer, etc., checks, fraud, operations, lender liability; fornia CPA Foundation and AICPA. Services include busi- 91423, (818) 981-4226, fax (818) 981-4278, and 363 San policy/procedure; fiduciary duties, D/O duty/conduct, ness valuations, income available for support, tracing sepa- Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) other. Federal/state reports, depos, and court preparation rate property, litigation consulting, real estate litigation, me- 219-9816, fax (949) 219-9095, e-mail:[email protected]. and testimony. Background: 35+ years’ experience finan- diation, fraud investigations, damage calculation, and other Contact Barbara Luna, Drew Hunt, Paul White, Jack cial/mortgage institutions and public companies including forensic accounting work. See display ad on page 60. Zuckerman, Fred Warsavsky, and Bill Wolf. Expert wit- president, CEO, and director. Thirty-plus years of all types ness testimony for business, real estate, personal injury, of lending experience. Fifteen-plus years of national and KRYCLER, ERVIN, TAUBMAN, & WALHEIM and marital dissolution. Investigative analysis of liability, state trade association leader/directorship. Clients: 150+ 15303 Ventura Boulevard, Suite 1040, Sherman Oaks, damage analysis of lost profits, lost earnings, and unjust federal/state nationwide cases for FDIC, state of California, CA 91403, (818) 995-1040, fax (818) 995-4124. Web site: enrichment, fraud investigation, business valuation, tax financial and mortgage institutions, business, individuals. [email protected]. Contact Michael J. Krycler. planning and preparation, and mergers and acquisitions. Fifty percent plaintiff/50 percent defendant. 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Our designations include certified public accountant, certi- attorneys with expert testimony and economic and finan- fied business appraisers, certified fraud examiners, certified cial analyses in all phases of commercial litigation. We LEWIS, JOFFE & CO, LLP valuation analyst, accredited business valuator, MBA, and work with faculty and industry experts in a distinctive part- 10880 Wilshire Boulevard, Suite 520, Los Angeles, CA JD. We have been court appointed over 100 times in nership that combines the strengths of the business and 90024, (310) 475-5676, fax (310) 475-5268. Contact cases involving valuation of business, economic damages, academic worlds. Our areas of expertise include identifying Brian Lewis, CPA, CVA. Forensic accounting, business and family law matters. and supporting expert witnesses in intellectual property, valuations, cash spendable reports, estate, and trust and antitrust, securities, entertainment, real estate, financial in- income tax services. FEE DISPUTE stitutions, and general business litigation. MIOD AND COMPANY, LLP CPAS EDWARD LEAR (CENTURY LAW GROUP) FULCRUM FINANCIAL INQUIRY 11600 Indian Hills Road, Building B, Suite 300, Mission 5200 West Century Boulevard, Suite 940, Los Angeles, CA 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- 90045, (310) 642-6900, fax (310) 642-6910, e-mail: lear 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA @centurylawgroup.com. Contact Edward Lear. Former @fulcruminquiry.com. Web site: www.fulcruminquiry.com. 92260, (760) 779-0990, fax (760) 779-0960, 1055 East State Bar prosecutor; expert testimony and declarations Contact David Nolte. 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68 Los Angeles Lawyer November 2005 HAYNIE & COMPANY, CPAS 4910 Campus Drive, Newport Beach, CA 92660, (949) 724-1880, fax (949) 724-1889, e-mail:sgabrielson @hayniecpa.com. Web site: www.hayniecpa.com. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis, business valuation, lost proﬁts analysis, fraud/ forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists in courtroom presentations.

KROLL 660 South Figueroa Street, Suite 900, Los Angeles, CA 90017, (213) 443-6090, fax (213) 443-6055. Contact Troy Dahlberg, CPA/ABV [email protected] or Christian Tregillis, CPA/ABV ctregillis@krollworldwide.com. Investigations, economic damages, and valuation firm with offices across the country and around the globe. Specialties include accounting, financial, economic and statistical analysis, as well as computer forensics, in the context of commercial litigation and forensic investiga- EXPERT WITNESS — Claims Consultant tions: accounting/fraud, securities, intellectual property (including damages analyses, licensing and valuation), breach of contract, lost profits, royalty audits, corporate gover- OVER 40 YEARS EXPERIENCE as a claims adjuster, licensed in three states and nance, business valuation, real estate, construction, bank- qualified in state and federal courts. Expert in good faith/bad faith, standards ruptcy. Practitioners include former partners at Big Four and practices and standard in the industry. Specialties in property/casualty accounting firms, law enforcement/FBI, computer foren- construction defect, fire/water, uninsured/underinsured motorist, warehouse sics, and appraisers. See display ad on page 67. EXPERIENCE and cargo claims. Failure to defend and/or indemnify. Litigation support, case review and evaluation claim consultation, coverage review and valuations. MIOD AND COMPANY, LLP CPAS Appraisal, Arbitration and Claims Rep. at MSC & MMC. 11600 Indian Hills Road, Building B, Suite 300, Mission INTEGRITY Hills, CA 91345-1225, (818) 898-9911, fax (818) 898- Contact Gene Evans at E. L. Evans Associates 9922, 74-478 Highway 111, Suite 254, Palm Desert, CA HONESTY 92260, (760) 779-0990, fax (760) 779-0960, 1055 East Phone (310) 559-4005 / Fax (310) 390-9669 / E-mail [email protected] Colorado Boulevard, Suite 500, Pasadena, CA 91106, (626) 441-1090, fax (626) 441-1096, e-mail: dmiod 3310 AIRPORT AVENUE, SUITE 2, SANTA MONICA, CALIFORNIA 90405 @miod-cpa.com. Visit our Web site at www.miodcpa.com. Contact Donald John Miod, CPA, ABV, CVA, CBA. More than 30 years’ experience in litigation support, including computation of income available for support, tracing, business valuations, fraud investigations, earnings loss calculations, and income tax matters. Our firm is very computer-oriented, involving the use of computer graphics. We are members of the Institute of Business Appraisers, the International Society of CPAs (founding member), the 6HQGXVDSROLFH 6SHFLDOL]LQJLQ American Institute of CPAs, and California Society of $FFLGHQWVRQ)UHHZD\V+LJKZD\V CPAs. See display ad on page 64. UHSRUWDQG 5RDGV 6WUHHWV SKRWRJUDSKV FINANCE 7HVWLI\LQJ &RQVXOWLQJRQ $&&,'(175(&216758&7,21 SANLI PASTORE & HILL, INC. 1990 South Bundy Drive, Suite 800, Los Angeles, CA 75$)),&(1*,1((5,1*75$)),&&21752/ 90025, (310) 571-3400, fax (310) 571-3420, Web site ad- +80$1)$&7256 dress: www.sphvalue.com. Contact Nevin Sanli or Tom 52$''(6,*1&216758&7,21$1'0$,17(1$1&( Pastore. Sanli Pastore & Hill, Inc. is a premier provider of business valuation and valuation advisory services, special- &216758&7,21'()(&766859(<,1* izing in litigation support and expert witness testimony. IRUDQRFRVW 6,7(0($685(0(176 Services include valuations for goodwill loss, estate and gift SUHOLPLQDU\UHYLHZ '(6,*1,0081,7< tax planning (family limited partnerships), lost profit analy- 6.,'5(6,67$1&(²52$' sis, mergers and acquisitions, goodwill impairment, fair- 5(48,5(0(176 :(7 '5< ness and solvency opinions, ESOPs, incentive stock op- $),(/'7(67(1*,1((5,1*&R ,QFRUSRUDWHGLQWKHVWDWHRI&DOLIRUQLD 6/,3675,36)$//6213$5.,1*/276 tions, capital raises, corporate, partnership, and marital 6,'(:$/.6$1'52$':$<6 dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testi- +,*+:$<5$,/&5266,1*$&&,'(176 mony, pretrial preparation, and settlement negotiations. )$; See display ad on page 69. ZZZ$FFLGHQW5HFRQVWUXFWLRQ6SHFLDOLVWVFRP qqq 5REHUW)'RXJODV3(2SHUDWLRQV FIRE/EXPLOSIONS 3$5.&(175$/352)(66,21$/%/'* RIMKUS CONSULTING GROUP, INC. 3DFLILF&RDVW+Z\VW)ORRU 6HUJH$JXLODU3(0DQDJHU6RXWKZHVW2IILFH /RQJ%HDFK&$ 333 City Boulevard West, Suite 1805, Orange, CA 92868, 0DQQ\$JXLOHUD3('LUHFWRU7UDIILF2SHUDWLRQV (877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski 6287+:(672)),&( @rimkus.com. Web site: www.rimkus.com. Contact Curt 'HULFN5RDG 7+5(((1*,1((56($&++$9(025(7+$1 Yaworski. Rimkus Consulting Group is a full-service foren- (O3DVR7; <($5635$&7,&$/(;3(5,(1&( sic consulting firm. Since 1983, we have provided reliable investigations, reports, and expert witness testimony around the world. Our engineers and consultants analyze

Los Angeles Lawyer November 2005 69 the facts from origin and cause through extent of loss. Ser- vices: construction defect and dispute analysis, vehicle accident reconstruction, ﬁre cause and origin, property evaluation, mold evaluations, indoor air quality assessments, biomechanical analysis, product failure analysis, foundation investigations, industrial accidents and explosions, water economic damages financial feasibility intrusion analysis, geotechnical evaluations, construction accidents, construction disputes, ﬁnancial analysis and as- lost profits highest and best use sessments, forensic accounting, HVAC analysis, electrical property value partnership interest /stock value failure analysis, and video/graphics computer animation. fair compensation lease disputes See display ad on page 75. enterprise value reorganization plan feasibility FOOD SAFETY/HACCP

Waronzof Associates, Incorporated 310.954.8060 T FOOD SAFETY & HACCP COMPLIANCE 12200 W. Olympic Blvd., S uite 480 310.954.8059 F 20938 De Mina Street, Woodland Hills, CA 91364, (818) Los Angeles, CA 90064 www.waronzof.com 703-7147, e-mail: [email protected]. Web site: www .foodsafetycoach.com. Contact Jeff Nelken, MA, RD. Food safety expert knowledgeable in both food safety and hazard analysis critical control point program development. Specializes in expert witness testimony and litigation con- LEGAL MALPRACTICE, ETHICS AND sultant in matters regarding food safety, HACCP, crisis management, food-borne illness, health department repre- FEE DISPUTE EXPERT WITNESS sentation, food spoilage, and customer complaints. Per- forms inspections, vendor audits, and training. Hands-on BOYD S. LEMON, ESQ. food safety consultant for restaurants, manufacturers, dis- tributors, country clubs, schools, nursing homes, and casi- nos. NRA and NSF HACCP certiﬁed instructor. Thirty years 40 YEARS TRIAL EXPERIENCE; RETAINED EXPERT of food and hospitality experience. Registered as a food IN MORE THAN 700 CASES; FORMER MAJOR LAW handler instructor with the Los Angeles County Health De- FIRM LITIGATION DEPARTMENT CHAIR; STATE BAR partment. Provider # 015. Food safety expert for CBS, NBC, and Inside Edition. DISCIPLINARY COMMITTEE; ATTORNEY FEE DISPUTE ARBITRATOR; COURT APPOINTED MEDIATOR. FOOD TOXICOLOGY

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FULCRUM FINANCIAL INQUIRY 1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA 90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte @fulcruminquiry.com. Web site: www.fulcruminquiry.com. Contact David Nolte. Our professionals are experienced

70 Los Angeles Lawyer November 2005 CPAs, MBAs, ASAs, CFAs, affiliated professors, and in- fied business appraisers, certified fraud examiners, certified SUGARMAN & COMPANY, LLP dustry specialists. Our analysis and research combined valuation analyst, accredited business valuator, MBA, and 44 Montgomery Street, Suite 1310, San Francisco, CA with unique presentation techniques have resulted in an JD. We have been court appointed over 100 times in 94104, (415) 395-7512, fax (415) 658-2858, e-mail: unequaled record of successful court cases and client re- cases involving valuation of business, economic damages, [email protected]. Web site: www coveries. Our expertise encompasses damages analysis, and family law matters. .sugarman-company.com. Contact Diane LaBelle. lost profit studies, business and intangible asset valuations, Expert witness testimony in federal, state, and local courts, appraisals, fraud investigations, statistics, forensic eco- FORENSIC CONSULTING forensic accounting. 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Inc., is a forensic expert firm with over 500 experts working concern analysis, as well as bankruptcy and reorganization in all engineering fields, science disciplines, and unique management and consulting. NANCY A. KEARSON, CPA, ABV, CVA, DABFA specialties. Our 28 years of experience ensure in-depth 1801 Century Park East, Suite 2400, Los Angeles, CA analysis with objective evaluations. A comprehensive ap- HEALTHCARE 90067, (310) 785-9614, fax (310) 277-1278, e-mail: proach guarantees that clients will receive consistency [email protected]. Contact Nancy Kearson. 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Specialties: GUNTHER RENE BAUER, MD, JD BERNARD T. MCNAMARA, MD 19 Hilltop Circle, Rancho Palos Verdes, CA 90275, fax 409 North Pacific Coast Highway, Suite 923, Redondo Surgical and Autopsy Pathology (310) 541-9415, cell (310) 251-0106, e-mail: grbauermd Beach, CA 90277, (310) 480-4770, fax (310) 943-3274, e-mail: [email protected]. Contact Bernard Clinical Pathology @aol.com. Web site: www.bauermdmedmallaw.com. Contact Gunther R. Bauer, MD, JD. Diplomate, Ameri- T. McNamara, MD. Current practice, full time emergency can Board of OB-Gyn, quality assurance/utilization review medicine, and assistant clinical Professor of Medicine. and forensic examiners/medicine. Member, California Bar, Over 20 years of experience in the practice of emergency 40 YEARS EXPERIENCE Health Lawyers Association, and American College of medicine, infectious diseases, and HIV/AIDS. Experience in Legal Medicine, 25 plus years in Clinical OB-Gyn, clinical medical malpractice for both plaintiff and defense. Board Medical record reviewing (hospital records, teaching background, consultant-medical legal issues, certified, emergency medicine since 1987; board certified, office records) with emphasis on pathology hospital care, evaluation of cases for merit (CCP128.7), in- infectious disease since 1984; board certified, international aspects, gross and microscopic, and relation- depth discussion of cases after review of medical records medicine since 1980. Degrees/licenses: MD; Fellow, Amer- ican College of Physicians; Fellow, American College of ship to general medical and hospital care. and discovery material, complete medical research of cases, litigation support/deposition, and trial preparation. Emergency Medicine; Member, American Academy of Experience with hospital bylaws, rules, and Experienced. References available. See display ad on Emergency Medicine; and member, Infectious Disease So- regulations, consent issues, and medical staff page 73. ciety of America; OCMA (Orange County Medical Associa- tion); Lic: (CA, WA); CA Lic-G36838 since 1978, WA Lic- privileges; as well as, hospital healthcare law, MD00041205 since 2002. medical, hospital, and “outside” ethical BEHROOZ (BRUCE) BROUKHIM, MD 10640 Riverside Drive, North Hollywood, CA, 9763 West medical issues. Pico Boulevard, Los Angeles, CA, (818) 755-6500, (310) BRUCE WAPEN, MD EMERGENCY MEDICINE EXPERT Helped establish concepts and chaired 552-1488 (LA), fax (818) 980-7144. Contact Angelina 969-G Edgewater Boulevard, Suite 807, Foster City, CA hospital ethics committees for more than 10 Urquhart, MD. Board-certified orthopedic surgeon. Shoulder, knee, and hip surgery, arthroscopic surgery, 94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail: years. Represented physicians before Calif- neck and back injury evaluation and treatment, personal in- [email protected]. Web site: www.DrWapen ornia Medical Board when requested by jury, workers’ compensation, QME, IME, and AME. Mem- .com. Contact Bruce Wapen, MD. Board-certified emer- attorneys. ber: American Academy of Orthopedic Surgeons, Ameri- gency physician and experienced public speaker offers can Board of Ortho Surgeons, Arthroscopic Association of consultation, chart review, and testimony as an expert wit- North America, International Society of Arthroscopy, Knee ness for defense or plaintiff involving litigation arising from TEL 818/349-8568 FAX 818/993-9701 Surgery and Ortho Sports Medicine. Twenty-five years of the emergency department. 10155 Topeka Drive, Northridge, CA 91324 experience in orthopedic medical legal work and expert testimony. See display ad on page 66.

74 Los Angeles Lawyer November 2005 MEDICAL/ENDOCRINOLOGY RICHARD D. HORNICHTER MD Stefanie Stolinsky, Ph.D. 450 North Bedford Drive, Suite 209, Beverly Hills, CA 90210, (310) 274-7336, fax (310) 858-6972, e-mail: CLINICAL AND FORENSIC PSYCHOLOGY [email protected]. Web site: www PSY 16053 .diabetesdoc.com. Contact Richard D. Hornichter, MD. Diabetes and endocrinology. Diabetes and associated (310) 788-3436 complications: amputation, retinopathy, vascular etc. Ex- perienced in medical record review, opinion, and expert Neuropsychological and witness testimony. CV and prior medical/legal experience Psychological Evaluations data available. Clinical Assoc. Prof. UCLA. Degrees/li- Brain/Head Injuries censes: MD (CA & TX). Work Related Injuries Sexual Assault/Sexual Harassment MEDICAL/INFECTIOUS DISEASE ADHD • Academic • IQ Assessment Forensic Case Consultation • Psychotherapy BERNARD T. MCNAMARA, MD 409 North Pacific Coast Highway, Suite 923, Redondo Beverly Hills location www.act-it-out.com Beach, CA 90277, (310) 480-4770, fax (310) 943-3274, e-mail: [email protected]. Contact Bernard T. McNamara, MD. Current practice, full time emergency medicine, and assistant clinical Professor of Medicine. Over 20 years experience in the practice of emergency medicine, infectious diseases, and HIV/AIDS. Experience in medical malpractice for both plaintiff and defense. Board certified, emergency medicine since 1987; board certified, infectious disease since 1984; board certified, international medicine since 1980. Degrees/licenses: MD; Fellow, Amer- ican College of Physicians; Fellow, American College of Emergency Medicine; Member, American Academy of Emergency Medicine; and member, Infectious Disease So- ciety of America; OCMA (Orange County Medical Associa- tion); Lic: (CA, WA); CA Lic-G36838 since 1978, WA Lic- MD00041205 since 2002. MEDICAL/NEUROLOGY

ROGER V. BERTOLDI, MD 8610 South Sepulveda Boulevard, Suite 200, Los Angeles, CA 90045-4810, (310) 670-5555, fax (310) 670-9222. Web site: www.bol.ucla.edu/~rbertold. Contact Leslie. Traumatic brain injury (TBI): Neuro behavior-anatomical- functional (PET, brain-mapping, neuropsychological) workup and treatment. Diplomate (ABPN) qualiﬁcation in clinical neurophysiology: electrodiagnostics of electromyography (EMG), electroencephalography (EEG), and evoked potentials for carpal tunnel syndrome (CTS), complex regional pain syndrome (CRPS), back pain radiculopathy, peripheral nerve injuries, neurotoxic injuries, and chronic pain, somatoform disorders, epilepsy, dementia, headache, assistant clinical professor of neurology, UCLA, AME, QME, IME.

MEDICAL/NEUROLOGY/PERSONAL INJURY

ANDREW WOO, MD, PHD 2021 Santa Monica Boulevard, Suite 525-E, Santa Mon- ica, CA 90404, (310) 829-2126, fax (310) 998-8887, e-mail: [email protected]. Contact Gail. Board-certiﬁed neurology, clinical assistant professor UCLA, personal injury, pain, carpal tunnel, spine, memory, seizure, sleep, and clinical protocols. Multiple sclerosis, migraine, and stroke. Education: AB Cornell University, MD and PhD Brown University; residency + EMG/EEG fellowship UCLA; Advisory Boards: L.A. Neurologic Society, St. John’s Sleep Lab; honors: Who’s Who in Medicine (2001) and science/engineering (1993), international electrophysiology Young Investigator (1997), UCLA Neurology Teaching Awards (1994, 1996), American Academy Neurology Re- search (1991), Brown University Sigma XI (1989), and research/publications (14), lectures (200).

MEDICAL/NEUROPSYCHOLOGY

PHILIP K. STENQUIST, PHD Stenquist Neurocognitive Laboratories, 6230 Wilshire Boulevard, Suite 37, Los Angeles, CA 90048, (323) 957- 4700, fax (661) 291-1741, e-mail: [email protected]. Contact Philip K Stenquis, PhD. Specialties: Neurocog-

Los Angeles Lawyer November 2005 75 nitive examination and diagnosis of all types of traumatic, stitutions on topics such as metals and solvents, mold ill- Metals and board-certified diplomates, American Board of toxic, and infectious neurological disorders. Consultation ness, Baychol issues, Persian Gulf War syndrome, musi- Forensic Examiners. See display ad on page 65. on all matters of personal injury, disability, and patient ve- cians’ injuries, and others. See display ad on page 77. racity. We use no technicians or para-professionals. Birth- METEOROLOGY date: July 21, 1956. Birthplace: New York, NY. Education: MEDICAL/UROLOGY BA, Cognitive Science, 1980; PhD, Clinical psychology, GOLDEN GATE WEATHER South Illinois University, 1987. Certifications/licenses: DUDLEY SETH DANOFF, MD, FACS 781 McDuff Avenue, Fremont, CA 94539, (510) 657-2246, Diplomate, American Board of Clinical Neuropsychology; Cedars-Sinai Medical Center, 8635 West 3rd Street, Suite fax (510) 315-3015, e-mail: [email protected]. Web American Board of Professional Psychology. Positions/ap- One West, Los Angeles, CA 90048, (310) 854-9898, fax site: http://ggweather.com. Contact Jan Null. Certified pointments: Assistant Clinical Professor, Department of (310) 854-0267, e-mail: [email protected]. Web site: consulting meteorologist experienced at trial and deposi- Neurospychology, UCLA School of Medicine; Examiner, www.towerurology.com. Contact Dudley Seth Danoff, tions. Weather event reconstruction and expert analysis for American Board of Clinical Neuropsychology Amer Psych MD, FACS. Experience in urologic case review and testi- rain, storms, wind, snow, flooding, ice, fog, and other Assn. Number of publications: Seven. Membership in pro- mony for plaintiff and defense, court experience, and weather events. Twenty-three years’ experience with Na- fessional societies: American Academy of Clinical Neu- strategies. Extensive expertise in prostate, bladder, and tional Weather Service. Degrees: BS, MA, CCM. ropsychology; International Neuropsychological Society; kidney cancers; kidney transplantation; pelvic trauma; sex- Division 40 APA; National Academy of Neuropsycology. ual dysfunction; penile implants; incontinence; infections; NEUROPSYCHOLOGY & PSYCHOLOGI- Consulting/expert witness experience, criminal: 15 years of and stone disease. Publishing experience in scientific jour- CAL TESTING & MEASUREMENT FOR expert witness experience in PI, disability, and testamen- nals, books, lectures, training seminars, and course direc- COURT tary capacity. Degree/licenses: PhD; CA Lic. PSY 11042; torships. Princeton University, Summa Cum Laude; Yale ABPP; ABCN. Medical School; Columbia University urologic training; STEFANIE STOLINSKY, PHD, LICENSED Major, U.S. Air Force; Who’s Who in America; Academic PSYCHOLOGIST, PSY 16053 MEDICAL/PATHOLOGY appointment. Detailed CV available. 9107 Wilshire Boulevard, Suite 200, Beverly Hills, CA 90210, (310) 788-3436. Web site: www.act-it-out.com. LESTHER WINKLER, MD MEDICAL MALPRACTICE Contact Stefanie Stolinsky, PhD. Neuropsychological Encino-Tarzana Regional Medicine Center Pathologist. and psychological testing and measurement; personal in- LESTHER WINKLER, MD (consulting emeritus status) 10155 Topeka Drive, North- jury evaluations, intelligence, cognitive and personality test- Encino-Tarzana Regional Medicine Center Pathologist. ridge, CA 91324, (818) 349-8568, fax (818) 993-9701. ing. Expert witness for adults abused as children; PTSD. (consulting emeritus status) 10155 Topeka Drive, North- Contact Lesther Winkler, MD. Specialties: surgical and See display ad on page 75. ridge, CA 91324, (818) 349-8568, fax (818) 993-9701. autopsy pathology, clinical pathology. Forty years of expe- Contact Lesther Winkler, MD. Specialties: surgical and rience in reviewing medical records (hospital records, office NURSING/SURGERY autopsy pathology, clinical pathology. Forty years of expe- records) with emphasis on pathology aspects, gross and rience in reviewing medical records (hospital records, office microscopic, and relationships to general medical and hos- MED-LINK records) with emphasis on pathology aspects, gross and pital care. Experience with hospital bylaws, rules, and reg- 3362 Budleigh Drive, Hacienda Heights, CA 91745, (626) microscopic, and relationships to general medical and hos- ulations, consent issues, and medical staff privileges. Also 333-5110, fax (626) 968-0064, e-mail: dorothypollock pital care. Experience with hospital bylaws, rules, and reg- experienced in hospital healthcare law, medical, hospital, @adelphia.net. Contact Dorothy Pollock, LNCC. Regis- ulations, consent issues, medical staff privileges. Also ex- and “outside” ethical medical issues. Helped establish con- tered nurse with 37 years’ clinical experience. Non-testify- perienced in hospital healthcare law, medical, hospital and cepts and chaired hospital ethics committees for more ing services include case analysis/for merit, chronology, “outside” ethical medical issues. Helped establish con- than 10 years. Represented physicians before California translation, written reports, medical record organization. cepts and chaired hospital ethics committees for more Medical Board when requested by attorneys. Degrees/li- DME/IME accompaniment including tape recording and than 10 years. Represented physicians before California censes: MD. See display ad on page 74. written report. Expert witness and testifying services, in- Medical Board when requested by attorneys. Degrees/li- cluding affidavit, arbitration, declaration, deposition, and censes: MD. See display ad on page 74. trial. Courtroom experienced both plaintiff and defense. MEDICAL/PLASTIC AND COSMETIC RECONSTRUCTIVE SURGERY METALLURGICAL AND CORROSION OBSTETRICS AND GYNECOLOGY ENGINEER JOHN M. SHAMOUN, MD, FACS, INC. ANTON L AMBROSE, MD, FACOG 360 San Miguel, Suite 406, Newport Beach, CA 92660, KARS ADVANCED MATERIALS, INC. 18350 Roscoe Boulevard, Suite 504, Northridge, CA (949) 759-3077, fax (949) 759-5458, e-mail:jmshamoun Testing and Research Labs, 2528 West Woodland Drive, 91325, (818) 341-3111, fax (818) 886-6925, e-mail: @aol.com. Web site: www.ideallook.com. Contact Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- [email protected]. Contact Anton L. Ambrose, Yvonne. Specialties: only plastic surgeon in the United 7169, e-mail: [email protected]. Web site: www.karslab MD, FACOG. Specialties: OB/GYN. Diplomate, American States board certified by the 1) American Board of .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. Board of OB/GYN; Fellow, American College of OB/GYN; Surgery, 2) American Board of Plastic Surgery, 3) Ameri- Southern California’s premier materials/mechanical/metal- member; American Medical Association, Los Angeles can Board of Facial Plastic and Reconstructive Surgery, lurgical/structural/forensics laboratory. Registered profes- County Medical Association, Sri Lanka Medical Association and 4) American Board of Forensic Medicine. Extensive ex- sional engineers with 20-plus years in metallurgical/foren- of North America; Assistant clinical professor, UCLA perience in all aspects of cosmetic, plastic, and recon- sic/structural failure analysis. Experienced with automotive, School of Medicine; OB/GYN Coordinator Family Practice structive surgery of the breast, nose, face, eye, and body. bicycles, tires, fire, paint, plumbing, corrosion, and struc- Residency Program, Northridge Hospital; private practice Well-published author of several textbook chapters and tural failures. We work on both plaintiff and defendant OB/GYN, Northridge California. Experienced expert wit- journal articles related to above topics. Extensive experi- cases. Complete in-house capabilities for tests. Extensive ness. ence in medical malpractice case review, consultation, deposition and courtroom experience (civil and criminal in- written evaluation and testimony in depositions and trial for vestigations). Principals are fellows of American Society for GIL N. MILEIKOWSKY, MD, FACOG 1 plaintiff and defense. Articulate subspecialty consultant Metals and board-certified diplomates, American Board of Offices in Encino and Beverly Hills, 2934 ⁄2 Beverly Glen Cir- with up-to-date knowledge and expertise of plastic surgery Forensic Examiners. See display ad on page 65. cle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or (818) literature and standards of care. Opinions supported by 981-1888, fax (310) 858-1303 or (818) 981-1994. Web extensive subspecialty education, training, and experience. METALLURGY site: www.baby4you.net. Contact Gil N. Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparoscopy, and repro- MEDICAL/TOXICOLOGY KARS ADVANCED MATERIALS, INC. ductive endocrinology. Diplomate, board certified by the Testing and Research Labs, 2528 West Woodland Drive, American Board of OB/GYN. Board eligible, American JONATHAN S. RUTCHIK, MD, MPH, QME Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527- Board of Reproductive Endocrinology Division. Fellow, 20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941, 7169, e-mail: [email protected]. Web site: www.karslab American College of OB/GYN (FACOG). Member of the (415) 381-3133, fax (415) 381-3131, e-mail: jsrutch .com. Contact Drs. Ramesh J. Kar or Naresh J. Kar. American Society for Reproductive Medicine, Society of @neoma.com. Web site: www.neoma.com. Jonathan S. Southern California’s premier materials/mechanical/metal- Assisted Reproductive Technologies, former Medical Di- Rutchik, MD, MPH is a physician who is board certified in lurgical/structural/forensics laboratory. Registered profes- rector IVF (In Vitro Fertilization) at Northridge Hospital, for- both Neurology and Occupational and Environmental Med- sional engineers with 20-plus years in metallurgical/foren- mer Chairman Laser and Safety Committee at Northridge icine. He provides clinical evaluations and treatment, in- sic/structural failure analysis. Experienced with automotive, Hospital and member of the Los Angeles County Medical cluding electromyography, of individuals and populations bicycles, tires, fire, paint, plumbing, corrosion, and struc- Association. Author, numerous scientific papers and arti- with suspected neurological illness secondary to work- tural failures. We work on both plaintiff and defendant cles published in peer review journals. Former clinical in- place injuries or chemical exposure. Services include med- cases. Complete in-house capabilities for tests. Extensive structor at USC. Former clinical assistant professor, ical record and utilization review and consulting to indus- deposition and courtroom experience (civil and criminal in- OB/GYN at UCLA. See display ad on page 63. trial, legal, government, pharmaceutical, and academic investigations). Principals are fellows of American Society for

76 Los Angeles Lawyer November 2005 ■ ORTHOPEDIC SURGEON EVALUATION MARC J. FRIEDMAN, MD ■ 6815 Noble Avenue, Van Nuys, CA 91405, (818) 901- TESTING 6600, fax (818) 901-6688, e-mail: [email protected]. Web ■ site: www.scoi.com. Contact Lonna Jaigiles. Orthopedic TREATMENT shoulder and knee, consulting, and expert witness testimony. IME, AME, QME and workers’ compensation evalu- Neurology and Electromyography ations. See display ad on page 79. Neurotoxicology

GRAHAM A. PURCELL, MD, INC. Occupational/Environmental ASSISTANT CLINICAL PROFESSOR Medicine ORTHOPAEDIC SURGERY, UCLA 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985- 3051, fax (818) 985-3049, e-mail: expert@gpurcellmd TEL 415.381.3133 / FAX 415.381.3131 .com. Web site: gpurcellmd.com. Contact Graham A. E-MAIL [email protected] Purcell, MD. Dr. Purcell is a board certiﬁed orthopedic www.neoma.com surgeon, sub-specialty in spinal disorders affecting adults and children. Examples of spinal disorders treated by Dr. Purcell include disc diseases, stenosis, infections, tumors, injuries, and deformities including scoliosis. He San Francisco possesses 24 years of orthopedic and 15 years of med- legal experience, including defense, plaintiff, insurance car- Sacramento riers, CA Attorney General’s office and Public Defender’s Petaluma office. Expert testimony pertains to med-mal, personal injury, and workers’ compensation cases. As qualiﬁed med- Richmond ical evaluator, Dr. Purcell has extensive experience in per- Eureka forming QMEs, AMEs, IMEs, WC evals. See display ad on this page.

RICHARD C. ROSENBERG, MD 18370 Burbank Boulevard, Suite 614, Tarzana, CA 91356, (818) 996-6800, fax (818) 996-2929, e-mail: rcrnsx@aol .com. Web site: www.drrosenberg.com. Contact Sheri Roberts. Orthopedic surgery, sports medicine, and physi- JONATHAN S. RUTCHIK, MD, MPH cal therapy. Experienced in IME, QME, agreed medical exams, med/legal reports, and expert witness testimony. 20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941 Personal injury and workers’ compensation. Additional of- ﬁce in Oxnard, California.

JERROLD M. SHERMAN, MD 1260 15th Street, Suite 614, Santa Monica, CA 90404, (310) 393-9829, fax (310) 476-8438. Contact Jan Lindsey. Orthopedic surgeon who is board certiﬁed as an independent medical examiner and chief executive officer of Outpatient Surgery Center. Licensed in California and Nevada. ’ PEER REVIEW

GIL N. MILEIKOWSKY, MD, FACOG 1 Offices in Encino and Beverly Hills, 2934 ⁄2 Beverly Glen Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or (818) 981-1888, fax (310) 858-1303 or fax (818) 981- ’ 1994. Web site: www.baby4you.net. Contact Gil N. Mileikowsky, MD, OB/GYN. IVF, laser surgery, la- ’ paroscopy, and reproductive endocrinology. Diplomate, board certiﬁed by the American Board of OB/GYN. Board eligible, American Board of Reproductive Endocrinology Division. Fellow, American College of OB/GYN (FACOG). Member of the American Society for Reproductive Medi- cine, Society of Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge Hospital, former Chairman Laser and Safety Committee at Northridge Hospital and member of the Los Angeles County Medical Association. Author, numerous scientiﬁc papers and articles published in peer review journals. For- mer clinical instructor at USC. Former clinical assistant professor, OB/GYN at UCLA. See display ad on page 63.

PERSONAL INJURY

STEFANIE STOLINSKY, PHD, LICENSED PSYCHOLOGIST, PSY 16053 9107 Wilshire Boulevard, Suite 200, Beverly Hills, CA 90210, (310) 788-3436. Web site: www.act-it-out.com. Contact Stefanie Stolinsky, PhD. Neuropsychological and psychological testing and measurement; personal injury evaluations, intelligence, cognitive and personality test-

Los Angeles Lawyer November 2005 77 ing. Expert witness for adults abused as children; PTSD. uct liability, adverse drug reactions, drug interactions, and Attorney references and/or redacted past reports available See display ad on page 75. failure to warn, etc. on request. See display ad on page 80.

WHITE, ZUCKERMAN, WARSAVSKY, LUNA, PROBATE LAW STEFANIE STOLINSKY, PHD, LICENSED WOLF & HUNT PSYCHOLOGIST, PSY 16053 14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA DARLING, HALL & RAE, LLP 9107 Wilshire Boulevard, Suite 200, Beverly Hills, CA 91423, (818) 981-4226, fax (818) 981-4278, and 363 San 520 South Grand Avenue, 7th Floor, Los Angeles, CA 90210, (310) 788-3436. Web site: www.act-it-out.com. Miguel Drive, Suite 130, Newport Beach, CA 92660, (949) 90071-2645, (213) 627-8104, fax (213) 627-7795, e-mail: Contact Stefanie Stolinsky, PhD. Neuropsychological 219-9816, fax (949) 219-9095, e-mail:[email protected]. [email protected]. Contact Matthew S. Rae Jr. and psychological testing and measurement; personal in- Contact Barbara Luna, Drew Hunt, Paul White, Jack Attorney specialists in estate planning, trust, and probate jury evaluations, intelligence, cognitive and personality test- Zuckerman, Fred Warsavsky, and Bill Wolf. Expert wit- law. Consultant and expert witness, special and associate ing. Expert witness for adults abused as children; PTSD. ness testimony for business, real estate, personal injury, counsel, guardian ad litem, referee, special administrator, See display ad on page 75. and marital dissolution. Investigative analysis of liability, and independent trustee. damage analysis of lost profits, lost earnings, and unjust PUBLISHING enrichment, fraud investigation, business valuation, tax PROCESS SERVER planning and preparation, and mergers and acquisitions. BAY SHERMAN CRAIG & GOLDSTEIN, LLP BENCHMARK INVESTIGATIONS Testified hundreds of times as expert witnesses. Prior Big 11845 West Olympic Boulevard, Suite 845, Los Angeles, 32158 Camino Capistrano, # A-415, San Juan Four accounting firm experience. Specialties include ac- CA 90064, (310) 477-1400, fax (310) 479-0720, e-mail: Capistrano, CA 92675, (800) 248-7721, fax (949) 248- counting, antitrust, breach of contract, business interrup- [email protected]. 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In addition to ex- domestic/marital cases, due diligence, process service, fair advertising, unfair competition, and wrongful termina- pert witness testimony, we provide the following: services surveillance/photograph, witness location, and statements. tion. See display ad on page 48. prior to trial, financial, accounting and income tax issues LA branch plus correspondents nationwide. Multilingual defined, record analysis, economic fact-finding and analy- agents. Fully insured. POLICE/SECURITY sis, deposition preparation assistance, and settlement negotiations. DANIEL R. SULLIVAN, DEPUTY CHIEF, PRODUCTS LIABILITY LAPD, RET. REAL ESTATE A R TECH FORENSIC EXPERTS, INC. 76766 Daffodil Drive, Palm Desert, CA 92211, (818) 590- 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, 2486, e-mail: [email protected]. Web site: ADVISORS/EXPERTS @ MCS ASSOCIATES (818) 344-2700, fax (818) 344-3777. Engineers: experi- www.investigativeservices.com. Contact Dan Sullivan. 18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) enced, registered, advanced degrees, extensive testimony Expert witness—use of force/police practices, event/facility 263-8700, fax (949) 263-0770, e-mail: experts experience. Traffic accidents (all motor vehicle types, bicy- security—consultant to cities of Los Angeles, Beverly Hills, @mcsassociates.com. Web site: www.mcsassociates cles, pedestrians), collisions, rollovers, skid marks, visibility, U.S. Department of Justice. Qualified as expert over 150 .com. Contact Norman Katz, managing partner. Na- signal phasing, time-motion, low-speed impact. Industrial times in superior/federal courts. tionally recognized banking, finance, insurance, and real and construction accidents: OSHA issues. Automotive, in- estate consulting group (established 1973). Experienced dustrial, consumer products: brakes, seat belts, forklifts, POLYGRAPH litigation consultants/experts include senior bankers, machinery, tools, protective equipment, lawn mowers, lenders, consultants, economists, accountants, insurance JACK TRIMARCO & ASSOCIATES heaters, chairs, fixtures, ladders, scaffolds, fasteners. underwriters/brokers. Specialties: lending customs, prac- POLYGRAPH INC. Premises liability: code analysis, stairways, ramps, doors, tices, policies, in all types of lending (real estate, busi- 9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA gates, windows, guardrails, pools, and lighting. Slip-and- ness/commercial, construction, consumer/credit card), 90212, (310) 247-2637, fax (310) 306-2720, e-mail: fall. Trip-and-fall. Biomechanics. Safety. Human factors. banking operations/administration, trusts and investments, [email protected]. Web site: www.jacktrimarco.com. See display ad on page 50. economic analysis and valuations/damages assessment, Contact Jack Trimarco. Former manager of the Federal insurance claims, coverages and bad faith, real estate bro- Bureau of Investigation’s polygraph program in Los Ange- PSYCHIATRY/PSYCHOLOGY kerage, appraisal, escrow, and construction defects/dis- les. Former Inspector General Polygraph Program—De- putes, and title insurance. ARNOLD L. GILBERG, MD, PHD partment of Energy. Nationally known and respected Poly- Associate Clinical Professor of Psychiatry, UCLA School of graph Expert. I have the credentials you would want when ADVISORY SERVICES GROUP Medicine, a professional corporation, 9730 Wilshire Boule- you have a client polygraphed, a case reviewed, a motion Coldwell Banker Commercial, 2200 South Pacific Coast vard, Suite 101, Beverly Hills, CA 90212, (310) 274-2304, made regarding polygraph, or an in-depth professional in- Highway, Suite 318, Hermosa Beach, CA 90254, (310) fax (310) 274-2476. Contact Arnold L. Gilberg. Board vestigation. My unique background allows me to bring the 937-7700, fax (310) 798-6836. Specialties: Real estate, certified and appointed by three governors to Medical highest levels of service and expertise to any polygraph sit- valuations, business valuations, condemnations, and FF & Board of California 11th District MQRC 1982-1991. Certi- uation. Degrees/licenses: BS Psychology; Certified APA, E. As part of the Coldwell Banker Commercial group, over fied in psychiatry and psychoanalysis. All civil matters, and AAPP, CAPE, AAFE. See display ad on page 42. 450 offices nationwide. Additional services for special pur- experienced as expert witness. Degrees/licenses: M.D., pose mixed use and contaminated/toxic properties, envi- PhD. Licensed in California and Hawaii. See display ad PHARMACEUTICAL ronmental/civil engineering. Right-of-way eminent domain, on page 57. structural defect reports, and construction defect reports. CAROL MESCHTER, DVM, PHD, DACVP JEFF SUGAR, MD In-house CPA, general contractor, and engineers. Ap- 786 Lucerne Drive, Sunnyvale, CA 94085, (408) 738-9261, 312 East Sycamore Avenue, El Segundo, CA 90245, (310) proved for IRS, federal, state, and municipal courts. Offices fax (408) 738-9278, e-mail: [email protected]. 322-6933, e-mail: [email protected]. Jeff Sugar, MD, in Orange County, San Diego/Inland Empire, and Northern Contact Carol Meschter, DVM. PhD, DACVP. PhD, child, adolescent, and adult psychiatrist. Associate clinical California. See display ad on page 83. Board Certified Veterinary Pathologist. Twenty-plus years’ professor, UCLA. A practicing psychiatrist for 15 years, he expertise in biotechnology, pharmaceuticals, toxicology; is board certified in child and general psychiatry. He is past B & F EXPERTS additional life of long experience with horses and dogs, as president of the Southern California Society of Child and P.O. Box 700384, San Antonio, TX 78270, (866) 365- a veterinarian and as a competitor. Adolescent Psychiatry. As founding director of research at 7212, fax (866) 869-4062, e-mail: jfmorrow@earthlink Hathaway Children and Family Services, he led a study of .net. Web site: www.jfmorrow.com. Contact J F “Chip” ETTIE ROSENBERG, JD, PHARM.D. the long-term effects of trauma. Currently, co-ward chief: Morrow. Expertise: financial institutions, banks, mortgage, Allan N. Lowy & Associates, APLC, 424 South Beverly University of Southern California, adolescent inpatient unit and real estate. Loans: mortgage, construction, real es- Drive, Beverly Hills, CA 90212, (310) 553-8533, ext. 122, and in private practice-general and child psychiatry. Dr. tate, SBA, international, secured, unsecured, business, fax 310) 557-1505, e-mail: [email protected]. Sugar’s reports and/or testimony have had an impact in consumer, etc., checks, fraud, operations, lender liability; Web site: www.lowylawcorp.com. Contact Ettie cases (both child and adult) involving: trauma: sexual and policy/procedure; fiduciary duties, D/O duty/conduct, Rosenberg. Consultation and/or forensic expert witness physical abuse (with or without PTSD), personal injury and other. Federal/state reports, depos, and court preparation services, medical chart review, charting errors, case re- workers’ compensation, psychiatric medication issue, di- and testimony. Background: 35+ years’ experience finan- view, research, deposition or trial testimony in areas of agnosis and appropriate treatment, ethical issues and cial/mortgage institutions and public companies including pharmacy, pharmacology, pharmacy malpractice, pharma- stress in legal practice, battered woman’s syndrome, child president, CEO, and director. Thirty-plus years of all types cist standard of care, drug related malpractice, drug prod- custody. Free initial telephone consultation with attorney. of lending experience. Fifteen-plus years of national and

78 Los Angeles Lawyer November 2005 state trade association leader/directorship. Clients: 150+ federal/state nationwide cases for FDIC, state of California, ﬁnancial and mortgage institutions, business, individuals. Fifty percent plaintiff/50 percent defendant. It’s not too late to list your expertise STEPHEN B. FAINSBERT, ESQ., FAINSBERT in the 2006 Southern California MASE & SNYDER, LLP 11835 West Olympic Boulevard, Suite 1100, Los Angeles, Directory of Experts & Consultants, CA 90064, (310) 473-6400, fax (310) 473-8702, e-mail: [email protected]. Contact Stephen B. Fains- published by the Los Angeles County bert. Expert testimony in real property exchanges (coauthor CEB publication Real Property Exchanges, 2nd ed.), Bar Association. real estate transactions, standard of care and practice for real estate brokers, escrow, and real estate attorneys, dis- closures in purchase and sale agreements, real estate ﬁ- Call 213-896-6470—deadline is November 15 nancing, and secured real property transactions.

LAWRENCE H. JACOBSON, ESQ. 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA 90212, (310) 271-0747, fax (310) 271-0757, e-mail: [email protected]. Web site: www.lawrencejacobson .com. Practicing real estate law in California since 1968; Real estate broker since 1978; Former VP-Legal Affairs, “Mr. Truck” California Association of Realtors; broker. Witness/consultant expertise in standard of care; real estate brokerage; ACCIDENT lawyer malpractice, transactional, custom, and usage. INVESTIGATION and RECONSTRUCTION MAURICE ROBINSON & ASSOCIATES LLC ✔ Court Qualified Expert Witness Regarding 880 Apollo Street, Suite 125, El Segundo, CA 90245, (310) Car vs Car, Car vs Bicycle, Truck vs Car Cases 640-9656, fax (310) 640-9276, e-mail: maurice ✔ @mauricerobinson.com. Web site: www.mauricerobinson Low Speed Accident Analysis .com. Contact R. Maurice Robinson, president. Hotel ✔ Trucking Industry Safety and Driver Training Issues and real estate industry business issues, including market, ✔ Power Point Court Presentations economic and financial feasibility, valuation, and disputes William M. Jones 800 337 4994 between owner-operator, borrower-lender, and franchisor- P. O. Box 398 925 625 4994 franchisee. Fluent in management contracts, license agree- Brentwood CA 94513-0398 ments, ground and building leases, partnership and JV Pager 510 840 4627 agreement, concession contracts, development agree- [email protected] www.mrtruckar.com Fax 925 625 4995 ments, and loan docs. Can estimate damages and ap- praise property values under multiple scenarios. Expert witness testimony, litigation strategy, consultation and support, damage calculations, lost profits analysis, real estate BOARD CERTIFIED ORTHOPEDIC SURGEON appraisals, deal structuring, workouts, new development, strategic planning, market demand assessment, acquisition due diligence, and economic, financial, and investment MARC J. FRIEDMAN, M.D. analysis. 6815 Noble Avenue, Van Nuys, California 91405 JACK KARP/NATIONAL PROPERTIES GROUP Tel. 818.901.6600 ext. 2810 ¥ Fax: 818.901.6685 ¥ Email: [email protected] 31115 Ganado Drive, Rancho Palos Verdes, CA 90275, Web Site: www.scoi.com (310) 377-6349, fax (310) 868-2880, e-mail:jlkarp@cox .net. Industrial and commercial broker’s care and duties, professional obligations to clients. Mediation and arbitra- Education: Princeton University and Cornell Medical School tion between brokers and clients regarding disputes, ethical questions, and fee division. Deal structuring and site lo- Certificate: Board Certified Orthopedic Surgeon cation analysis. Real estate leases and purchase contracts Memberships: Fellowship Sports Medicine and their interpretations. Author AIR Net and Gross Leases Fellow American Academy of Orthopedic Surgeons and AIR Standard Offer and Agreement and Escrow In- Fellow in the Arthroscopy Association of North America struction for Purchase of Real Estate. See display ad on Fellow in the International Arthroscopy Association page 86. Fellow in the International Knee Society OVERLAND, PACIFIC & CUTLER, INC. Fellow in the American Orthopedic Society of Sports Medicine 100 W. Broadway, Suite 500, Long Beach, CA 90802, ACL Study Group (800) 400-7356, fax (562) 304-2020, e-mail: rarmstrong Certified QME, IME, AME @opcservices.com. Web site: www.opcservices.com. Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of Contact Ray Armstrong, vice president. Overland, Pa- cific & Cutler, Inc. provides relocation assistance services the Knee and Shoulder, and Knee Replacement and real estate consulting for public agencies and private Appointments: Assistant Clinical Professor, Division of Orthopedics, sector clients. We specialize in business relocation and UCLA School of Medicine, Chairman, Education Committee forensic site searching for public agencies and law firms. Arthroscopy Association of North America 1997-1999 For the past 25 years, we have offered support for eminent World Cup Soccer Team Physician, 1985 domain litigation with expert witness testimony. We are Physician Specialist XXIII Olympiad 1984 completely familiar with the relocation laws and guidelines for state and federal programs and programs involving Orthopedic Consultant–New York Knicks and Jets 1978-1985 multiple funding sources. Publications: 60 Publications including handbook for Orthopedic Surgeons on Prosthetic Ligament Reconstruction of the Knee PRITCHETT/RAPF & ASSOCIATES 3858 Cross Creek Road, Malibu, CA 90265, (310) 457- Presentations: Lectures extensively with over 375 presentations worldwide 0537, fax (310) 589-1145, e-mail: [email protected]. Web site: www.kathrynyarnell.com. Contact Kathryn

Los Angeles Lawyer November 2005 79 EXPERT – PSYCHIATRY Yarnell. Expert witness consulting custom and practice, offices, business managers, and accounting firms for vari- standard of care, disclosure, ethics, and agency. Past ous appraisal related business. Quoted 11/05 in the L.A. JEFF SUGAR, MD president, Malibu Association of Realtors-2002, Director to Daily Journal, expert witness cover story. CAR-1998-2006, CLAW Director for MLS 2000-2002, Child, Adolescent & MAR Director 1998-2006, 16 years of experience as a bro- ADVISORY SERVICES GROUP Adult Psychiatrist ker/realtor, and twice Malibu Realtor of the Year. Coldwell Banker Commercial, 2200 South Pacific Coast Associate Clinical Highway, Suite 318, Hermosa Beach, CA 90254, (310) Professor, UCLA R.A. SNYDER PROPERTIES, INC. 937-7700, fax (310) 798-6836. Specialties: Real estate, 2399 Camino Del Rio south, Suite 102, San Diego, CA valuations, business valuations, condemnations, and FF & A practicing psychiatrist for 15 years, he is board 92108, (619) 793-4002, fax (619) 297-0779, e-mail: rick E. As part of the Coldwell Banker Commercial group, over certified in child and @rasnyder.com. Web site: www.rasnyder.com. Contact 450 offices nationwide. Additional services for special pur- general psychiatry. He is Richard A. Snyder. Specialties: real estate professional pose mixed use and contaminated/toxic properties, envi- Past President of the for over 30 years. Experienced in a broad range of agency ronmental/civil engineering. Right-of-way eminent domain, Southern California Society representations, sale and exchange of residential and structural defect reports, and construction defect reports. of Child and Adolescent Psychiatry and Associate commercial properties, management of over 6,000 apart- In-house CPA, general contractor, and engineers. Ap- Clinical Professor at UCLA. As founding director of ment units and 400,000 sq. ft. comml/indust. Serves as a proved for IRS, federal, state, and municipal courts. Offices research at Hathaway Children and Family Services court-appointed receiver and as litigation consultants in in Orange County, San Diego/Inland Empire, and Northern he led a study of the long-term effects of trauma. real estate custom and practice, ethics, and agency. Past California. See display ad on page 83. Currently co-ward chief: University of Southern president, California Association of Realtors-1996; S.D. California, adolescent inpatient unit and in private Chapter IREM-1991; Resident Relations Foundations- CURTIS-ROSENTHAL, LLC practice-general and child psychiatry. 1991; County Council of R.E. Boards-1988; San Diego 5959 West Century Boulevard, Suite 1010, Los Angeles, Dr. Sugar’s reports and/or testimony have had Assoc. of Realtors-1985. Vice president, National Assoc. CA 90045, (310) 215-0482, fax (310) 215-3089, e-mail: an impact in cases (both child and adult) of Realtors-1999-2000. [email protected]. Web site: www involving: .curtisrosenthal.com. Contact David Rosenthal, MAI. •Trauma: Sexual and Physical Abuse (with SCHULZE HAYNES & CO. Appraisal of commercial and residential real estate for emi- or without PTSD) 660 South Figueroa Street, Suite 1280, Los Angeles, CA nent domain, bankruptcy, estate planning, divorce, and •Personal Injury and Workers’ Compensation 90017, (213) 627-8280, fax (213) 627-8301, e-mail: general litigation. Accepted in local, state, and federal •Psychiatric Medication Issues [email protected]. Web site: www. courts. •Diagnosis and Appropriate Treatment schulzehaynes.com. Contact Karl J. Schulze or Dana •Ethical issues and Stress in Legal Practice Haynes, principals. Specialties: forensic business analy- STEVEN J DECKER & ASSOCIATES •Battered Woman’s Syndrome sis and accounting, lost profits, economic damages, ex- 5800-A Hannum Avenue, Suite 235, Culver City, CA •Child Custody pert testimony, discovery assistance, business and real es- 90230, (310) 645-9691, fax (310) 645-9692, e-mail: –FREE Initial Telephone Consultation with Attorney– tate valuations, construction claims, corporate recovery, [email protected]. Contact Steven Decker, MAI. ATTORNEY REFERENCES AND/OR REDACTED PAST real estate transactions, financial analysis and modeling, Specialties: expert witness in real estate and fractional in- REPORTS AVAILABLE ON REQUEST. major professional organizations, and have experience terest (FLP & LLC) valuation, approved IRS appraiser panel TEL: (310) 322-6933 | E-MAIL: [email protected] across a broad spectrum of industries and business is- (LA district). Experience in construction defects, ease- 312 E SYCAMORE AVE, EL SEGUNDO, CA 90245 sues. Degrees/licenses: CPA; CVA; CFE; ABV; PhD-eco- ments, title defects litigation, toxic contamination, estate nomics. taxes, and all property types.

TEMMY WALKER, INC. RECEIVER IS YOUR 5026 Veloz Avenue, Tarzana, CA 91356, (818) 760-3355, HOMES ? fax (818) 999-0826, e-mail: [email protected]. Contact SALTZBURG, RAY & BERGMAN, LLP I G Temmy Walker. Specializes in expert witness testimony 12121 Wilshire Boulevard, Suite 600, Los Angeles, CA IS YOUR NK IN S and litigation consultant in matters regarding residential 90025, (310) 481-6700, fax (310) 481-6720. Contact LOPE David L. Ray, Esq. Specializes in handling complex re- F real estate, with emphasis on the customs and practice, CONSTRUCTION AI standards of care, disclosure requirements, agency rela- ceivership matters, such as partnership and corporate dis- LING? tionships, and broker supervision. Complete assistance. solutions, including law firm dissolutions, and government DEFECT? Extensive transaction and court experience. Director Cali- enforcement receivership actions, including actions Our mission is to provide the most cost-effective fornia Association of Realtors, master faculty instructor for brought by the California Department of Corporations, De- solutions to identify, document and develop the continuing education C.A.R. Excellent credentials and ref- partment of Real Estate, Commodities Future Trading best repair remedies for your foundation and slope erences. See display ad on page 81. Commission, and Federal Trade Commission. Nationally problems. At Ultimo Geotechnical Construction and recognized in both the lender and litigation communities as Engineering, we specialize in foundation soils stabiliz- WARONZOF ASSOCIATES, INC. qualified to assist in complicated and commercially sophis- ation, proprietary underpinning, and raising of sunken ticated liquidations, reorganizations, and ongoing business structures. We have streamlined the process to quick- 12200 West Olympic Boulevard, Suite 480, Los Angeles, operations. See display ad on page 12. ly provide the bottom line, and back it up with our own C 90064, (310) 954-8060, fax (310) 954-8059. Web site: forces. We are authorized installers of Atlas and www.waronzof.com. Contact Timothy R. Lowe, MAI, Chance foundation underpinning. CRE. Waronzof Associates provides real estate and land RECEIVER, FEDERAL AND STATE COURT use litigation support services including economic dam- INDUSTRY EXPERT REVIEW AND REPORTS: SUGARMAN & COMPANY, LLP ages, lost profits, financial feasibility, highest and best use, Attorneys and homeowners will appreciate our in- 44 Montgomery Street, Suite 1310, San Francisco, CA property value, enterprise value, partnership interest and house capabilities to meet their needs. Our team can 94104, (415) 395-7512, fax (415) 658-2858, e-mail: dlabelle closely-held share value, fair compensation, lender liability provide the resources, expertise, and techniques to @sugarman-company.com. Web site: www.sugarman identify causes and effects of a problem, and and reorganization plan feasibility. Professional staff of six -company.com. Contact Diane LaBelle. Expert witness implement remedies. We can provide site, structure, with advanced degrees and training in real estate, finance, testimony in federal, state, and local courts, forensic ac- and geotechnical investigations, industry expert urban planning and accounting. See display ad on counting. Case involvement includes: damage calculations, services, foundation floor level surveys, repair plans, page 70. accurate documentation, estimates, emergency lost profits, business interruption, cash flow analysis, foren- stabilization, and environmental remediation. sic accounting, business and real estate valuations, con- REAL ESTATE APPRAISAL Since 1937 • Three generations • The oldest struction damages, insurance claims, fraud investigations, company doing this type of work in California! ADELMAN APPRAISALS, INC. lender liability, partnership dissolution, professional mal- 14431 Ventura Boulevard, Suite 288, Sherman Oaks, CA practice, white collar crime, liquidation and going concern ULTIMO ORGANIZATION INC. 91423, (818) 995-0648, fax (818) 990-0326, e-mail: analysis, as well as bankruptcy and reorganization man- Geotechnical Construction & Engineering [email protected]. Web site: www agement and consulting. 1411 East Borchard Ave., Santa Ana, CA 92705 .adelmanappraisals.com. Contact Chris Adelman. Spe- Tel 714-560-8999 Fax 714-560-8998 cialties: 10+ years’ experience in residential real estate ap- RESTAURANT/HOTEL www.geotechnical.com praisals, high-end residential appraisals, divorces, separa- MAURICE ROBINSON & ASSOCIATES LLC tion, trust, and retroactive appraisals, expert witness, de- The Foundation Specialist 880 Apollo Street, Suite 125, El Segundo, CA 90245, positions for residential evaluations and litigation, vacant CA State Lic. #338922 (310) 640-9656, fax (310) 640-9276, e-mail: maurice land evaluations, extensive experience in dealing with law

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ROOFING AND WATERPROOFING

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Los Angeles Lawyer November 2005 81 Compliance Group H-M: There’s no need to panic! We can help. The following MCLE self-test articles are available from Los Angeles Lawyer. Simply check the ones you want, ﬁll out the coupon below, and mail your order to Los Angeles Lawyer, ATTN: MCLE Reprints, P.O. Box 55020, Los Angeles, CA 90055; or FAX to 213/613-1972. There is no charge for reprints, but please limit your order to 12 tests. All MCLE articles published after January 1996 are also available online at www.lacba.org/mcle_tests.

❏ No. 6: Turing Over Client Files (Legal credit) Bonus provisions agreed to by attor- ing on the enforceability of expanded judicial provided federal courts with potential jurisdic- Ethics credit) What you don’t know can hurt neys and their clients will likely be enforceable review provisions in arbitration agreements.- tion over virtually any local land use deci- ❏ No. 135: Expert Declarations Recent you-2/93 if the agreement clearly delineates an “extraor- 10/02 sion.-1/04 decisions have blurred the line between providing too much and too little ❏ dinarily favorable result”-9/00 ❏ ❏ No. 24: A Firm Grip (Law Practice No. 110: High Accountability The Sar- No. 123: Undesignated Hitters When information in expert witness ❏ Management credit) Unwinding a law firm No. 93: Time Bandits (Legal Ethics banes-Oxley Act increases executive liability employees are used as witnesses, practition- declarations.-03/05 partnership requires strict adherence to legal credit) Attempts by lawyers to pad hours can for SEC filings by eliminating the need to es- ers need to carefully consider whether the em- and ethical principles-12/94 often be uncovered by a careful examination of tablish actual knowledge of wrongdoing.- ployees will be offering expert testimony or ❏ No. 136: Tales of Two Courts Legal billing statements-03/01 11/02 undesignated lay opinions.-2/04 ❏ No. 42: Golden Rules (Legal Ethics changes in marital status can have a credit) A series of decisions and opinions is- ❏ No. 95: Magnificent Exceptions Practi- ❏ No. 111: For Your Eyes Only (Legal ❏ No. 124: 2003 Ethics Roundup (Legal dramatic impact on existing estate plans.- 04/05 sued in 1995 provides lawyers with clear tioners can sometimes overcome a Statute of Ethics credit) California can clarify the confu- Ethics credit) The new rules promulgated in guidance through ethical minefields-7-8/96 Frauds defense by asserting equitable estop- sion surrounding the law of confidentiality response to recent financial scandals threaten ❏ No. 137: Access Hollywood In pel-05/01 with a new rule of professional conduct.-12/02 the traditional relationship between attorneys ❏ No. 46: For What It’s Worth Recent subsequent decisions, the Ninth Circuit and clients.-3/04 California rules that allow the buying and sell- ❏ No. 96: 2000 Ethics Roundup (Legal ❏ No. 112: Defective Solutions Legisla- seems to have retreated from its ing of law practices have opened up opportu- Ethics credit) Last year’s court decisions af- tion intended to encourage the resolution of ❏ No. 125: Multiple Choice Successfully interpretation of the extrinsic test in nities for small firms and solo practitioners- fecting legal ethics clarified the duties of condominium defect disputes may inhibit ef- navigating California’s choice of law tests re- Metcalf v. Bochco.-05/05 12/96 lawyers to clients and nonclients alike-06/01 fective association management.-1/03 quires as much art as science.-4/04 ❏ No. 138: 2004 Ethics Roundup (Legal ❏ No. 57: Wise Deductions (Law Practice ❏ No. 97: Partnerships In Law (Elimina- ❏ No. 113: Waiting for the Dust to Set- ❏ No. 126: Code Breaking The anticir- Ethics credit) In 2004 California courts Management credit) The deductibility of a tion of Bias credit) California’s new Domestic tle Creditors that agree to a settlement of a cumvention provisions of the DMCA have continued to address the thorny ethical lawyer’s educational expenses may be more Partnership Registration Act may aid same-sex debt may find that the payment constitutes a withstood all constitutional challenges to the issues that confront the legal profession.- questionable than you think-12/97 partners in providing a legal basis for their life preference in a subsequent bankruptcy pro- sanctions against code breakers.-5/04 06/05 ❏ relationships-07-08/01 ceeding.-2/03 ❏ No. 60: An Indiscriminate Measure No. 127: Second Acts Section 1101(b) ❏ ❏ ❏ No. 139: Catalyst for Change The (Elimination of Bias credit) Now that Proposi- No. 98: By Any Other Name No matter No. 114: 2002 Ethics Roundup (Legal permits allegations of criminal and civil California Supreme Court has parted tion 209 has survived judicial scrutiny, con- what workers are called, their status and treat- Ethics credit) Recent corporate scandals are wrongdoing to be supported by prior or sub- ways with the U.S. Supreme Court in siderable litigation to determine its scope and ment as employees are subject to a variety of playing a major role in shaping the future of sequent acts otherwise excluded by the Evi- preserving the catalyst theory under the reach can be expected-3/98 fact-based tests-09/01 legal ethics.-4/03 dence Code.- 6/04 private attorney general fee statute.-07- ❏ No. 63: Ruling on the Rules (Legal ❏ No. 102: In the Land of Aas The Cali- ❏ No. 115: Preemptive Strike Does the ❏ No. 128: Licensed to Bill The courts 08/05 Ethics credit) While 1997 was a busy year for fornia Supreme Court has ruled that damages Central District’s interpretation of federal have carved out exceptions to the rule that ❏ the development of legal ethics, no dramatic from construction defects must be manifest in copyright preemption standards endanger contractors who are not licensed at all times No. 140: Advice and Counsel (Legal departures from precedent emerged-6/98 order to bring a tort cause of action-1/02 state claims for misappropriation of ideas?- during a project can be denied compensation.- Ethics credit) The question of whether a 5/03 7-8/04 lawyer has given legal or nonlegal advice ❏ No. 75: Firing at Will Has the Green de- ❏ No. 103: Tied to the Stake Trends in is highly fact-specific.-09/05 cision opened the floodgates for the use of federal securities fraud legislation and case ❏ No. 116: Unwelcome Opinions (Legal ❏ No. 129: Behavior Modification (Le- wrongful termination litigation to achieve pub- law may not fully protect attorneys from the Ethics credit) Are opinions on the application gal Ethics credit) Existing rules and laws pro- ❏ No. 141: Restoration Drama The lic policy goals?-7-8/99 reach of common law negligence claims-2/02 of law being improperly admitted in attorney scribe offensive conduct directed toward op- complexity of electronic discovery requires practitioners to master new ❏ ❏ breach of fiduciary duty cases?-6/03 posing counsel as well as the court-9/04 No. 76: On to a Higher Court The out- No. 104: Rickety Shelters Taxpayers litigation skills.-10/05 come of an appeal will often depend on impor- have a unique opportunity to limit their expo- ❏ No. 117: Death of a Litigant Civil ❏ No. 130: Fair Hearing Agencies have tant strategic decisions that must be made sure to the consequences of controversial tax- claims surviving a litigant’s death may send discretion and flexibility in determining what ❏ No. 142: Challenging Barriers soon after filing the notice of appeal-9/99 sheltered transactions-4/02 counsel into the unfamiliar territory of probate procedural safeguards are necessary for an California’s more expansive definition of court.-7-8/03 administrative adjudication.-10/04 ❏ No. 78: Put Up or Shut Up An under- ❏ No. 105: Five Cases that Shook Hol- disability provides protection for more people than federal law. -11/05 standing of the shifting burdens of production lywood What court cases make Hollywood’s ❏ No. 118: Back SLAPP Recent court deci- ❏ No. 131: Bad Compromises Ambi- is central to arguing summary judgment mo- A-list?-5/02 sions have expanded the reach of the anti- guity over the right to correct drafting errors and what constitutes a reasonable tions-11/99 ❏ SLAPP statute in unexpected directions.-9/03 No. 106: Ethics Roundup 2002 Old offer has undermined the effectiveness of ❏ ❏ No. 83: Children of Fortune High-earn- issues and new forms of practice defined No. 119: Uncivil Forfeitures Does the Section 998.-11/04 ing entertainers may be able to avoid the use developments in legal ethics in 2001.- recent reform of federal civil forfeiture laws ad- of the statutory guidelines when calculating 6/02 equately address the potential for injustice?- ❏ No. 132: Private Eyes (Legal Ethics child support payments-4/00 ❏ No. 107: Harassment Measures 10/03 credit) California courts have broadly ❏ No. 84: 1999 Ethics Roundup (Legal Recent court decisions have more sharply ❏ No. 120: Searching Far and Wide applied the strict provisions of the Private Investigator Act.-12/04 Ethics credit) Court decisions in 1999 make it defined the contours of sexual harassment and Counsel can challenge a questionable ex- clear that a risk management strategy is a provided a means of minimizing employer traterritorial search, although they face an up- ❏ No. 133: Delay of Game One of the lawyer’s best method of preventing ethical lia- liability.-7-8/02 hill battle.- 11/03 thorniest issues in delay and disruption bilities-5/00 ❏ No. 108: No Assurances Insurance cov- ❏ No. 121: Unsuitable An antisuit injunc- litigation is the quantification of actual ❏ No. 85: Who’s the Client? (Legal Ethics erage for the events of September 11 will tion is a viable alternative to the unpredictabil- damages.-01/05 credit) Last year’s court decisions on lawyer hinge upon the interpretation of often ambiguity of motions to dismiss for forum non conve- conflicts of interest have handed attorneys an ous policy language.-9/02 niens.-12/03 ❏ No. 134: Screened Out (Legal Ethics credit) When an ethical screen can be array of sometimes conflicting rules-6/00 ❏ No. 109: Uncertain Appeal Neither fed- ❏ No. 122: In a Class of Their Own Re- used to avoid vicarious disqualification of ❏ No. 87: Bonus Points (Legal Ethics eral nor state courts have rendered a final rul- cent interpretations of civil rights laws have a law firm remains unsettled.-02/05

NAME

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ADDRESS

CITY STATE ZIP LAL—R11/05 plaintiff. Audit employer’s actions in preventing and resolving discrimination, harassment, and retaliation issues. As- DR. LEWIS YABLONSKY – CRIMINOLOGY/GANGS sess human resources policies and practices for soundness, for comparison to prevailing practices, and for com- ✔ Consultant/Expert Witness in 180+ legal cases in various areas of criminality, especially gangs (165+ pliance. Evaluate employer responsiveness to complaints cases). Also homicide, drug addiction, company security liability, and responsibility. See Web site. and effectiveness of employer investigations. Assist coun- Appointed as an expert witness in over 80 courts in California and on a national level. Appointed to sel via preliminary case analysis, discovery strategy, exami- the Los Angeles County Superior Court “Panel of Experts.” nation of documents, and expert testimony. ✔ Published 19 Books on criminology and social problems, including Criminology (1990); Gangsters: 50 Years of Madness, Drugs, and Death on the Streets of America (1997), Juvenile Delinquency HRM CONSULTING, INC. (2000) and Gangs In Court (January, 2005). P.O. Box 1786, Murphys, CA 95247, (209) 728-8905, fax (209) 728-8970, e-mail: [email protected]. Web ✔ PhD – NYU Emeritus Professor Criminology, California State University Northridge. Professor at other site: www.hrmconsulting.com. Contact Beth Hirsch. universities, including UCLA, University of Massachusetts, Harvard, Texas A&M, and Columbia Plaintiff and defense attorneys respect Ms. Hirsch’s experi- University. ence working on employment and vocational rehabilitation PHONE/FAX 310-450-3697 • E-MAIL [email protected] matters from both the employee and employer perspec- WEB SITE www.lewyablonsky.com tive. Her expertise is utilized in cases involving ADA (Ameri- cans with Disabilities Act), FMLA (Family Medical Leave 2311 FOURTH STREET, SUITE 312, SANTA MONICA, CA 90405 Act), sexual harassment, personal injury, or divorce. We provide litigation support, expert testimony, and investigations. We also specialization in helping companies understand and comply with regulations and issues in the com- Matthew Lankenau plicated realm of human resources management. 213-996-2549 [email protected] HUMAN RESOURCES MANAGEMENT NETWORK URS is the nation’s largest engineering, consulting and construction 544 West Wilshire Avenue, Fullerton, CA 92832, (714) services ﬁrm. URS specializes in the resolution of construction disputes. 542-9525, fax (530) 885-4394, e-mail: [email protected]. Web site: www.lballexpertwitness.com. Contact Lawrence P. Ball. Expert testimony related to human re- Dispute Resolution & Forensic Analysis Technical Expertise sources standard of care, discipline, wrongful discharge, Design/Construction Claims Architecture wrongful termination, sexual orientation/discrimination, Environmental Claims Engineering sex/sexual/gender discrimination, race/color/racial discrim- Bid/Cost/Damage Analysis Scheduling ination, religious discrimination, national origin/ancestry Construction Defect Analysis Construction Management discrimination, age discrimination, sex/sexual/gender ha- Delay/Acceleration/Disruption Analysis Cost Estimating & Auditing rassment, sexual orientation harassment, race/racial/ Expert Witness Testimony Environmental color harassment, religious harassment, disability harass- Insurance/Bond Claims Geotechnical ment, national origin/ancestry harassment, age harassment, FMLA/CRFA violations, ADA violations, negligent hiring/retention, performance evaluation/review, DFEH and DOL regulations, pregnancy, EEOC guidance, CASES: 45% plaintiff/55% defense.

STEPHEN J. MOREWITZ, PHD & ASSOCIATES 695 Noe Street, Suite 1, San Francisco, CA 94114, (818) 594-1587, (415) 252-0569, fax (818) 345-9981, (415) 252- 0579, e-mail: [email protected]. Web site: http://home.earthlink.net/~morewitz/ Contact Dr. Steve Morewitz. Evaluates sexual harassment policies and procedures and sexual harassment impact. Assesses disability, rehabilitation, and quality of life losses. Adjunct professor and former dean. Management consultant, researcher, and lecturer. Author of 5 books, including Sexual Harass- ment and Social Change and Chronic Disease and Health Care, and 70 other publications. Awards and honors: research and training grants, Outstanding Scholar Book Awards in 2003 and 2004, American Public Health Associ- ation Top 10 Injury Research, Sigma Xi, Pi Gamma Mu, Who’s Who in Medicine and Healthcare, and other honors.

PERSONNEL SYSTEMS ASSOCIATES, INC. 7551 East Moonridge Lane, Anaheim, CA 92808, (714) 281-8337, fax (714) 281-2949, e-mail: mding @personnelsystems.com. Web site: www .personnelsystems.com. Contact Mae Lon Ding, MBA, CCP. Expert witness in employment, business dispute, disability, and divorce cases involving issues of employee or owner compensation, discrimination, wrongful termination, exemption from overtime, labor market/employability, lost wages/beneﬁts, employee performance, and evaluation of personnel policies and practices. Nationally recognized human resource management and compensation consultant, speaker, author of book and articles, university instructor. Quoted in Los Angeles Times, Orange County Register, Business Week, Workforce, and Working Woman. Over 14 years of testifying in cases involving major national organizations in a large variety of industries

Los Angeles Lawyer November 2005 83 involving multiple plaintiffs. MBA, Certified Compensation TRAFFIC ENGINEERING Professional. EXPERT WITNESS ACCIDENT RECONSTRUCTION SPECIALIST SERVICES STEFANIE STOLINSKY, PHD, LICENSED Traffic/Transportation Engineering. Auto/truck/train/ped/ PSYCHOLOGIST, PSY 16053 bike accidents. 5175 Pacific Coast Highway, 1st Floor, 9107 Wilshire Boulevard, Suite 200, Beverly Hills, CA Long Beach, CA 90804, (800) 675-7667, fax (562) • Bankruptcy - Interest Rates 90210, (310) 788-3436. Web site: www.act-it-out.com. 494-7667. Contact Robert F. Douglas, PE. www • Banking - Lending & Operations Contact Stefanie Stolinsky, PhD. Neuropsychological .fieldandtestengineering.com. Three engineers with over and psychological testing and measurement; personal in- 35 years of experience. See display ad on page 69. • Lender Liability, Letters of jury evaluations, intelligence, cognitive and personality test- Credit, Guarantees ing. Expert witness for adults abused as children; PTSD. TRAVEL AND TOURISM See display ad on page 75. • Forgery, Credit Cards ALEXANDER ANOLIK, ESQ. 2107 Van Ness Boulevard, Suite 200, San Francisco, CA SLIP, TRIP, AND FALL Checking Account Disputes 94109, (415) 673-333, fax (415) 673-3548, e-mail: anolik @travellaw.com. Web site: www.travellaw.com. Contact • Consumer, Commercial, Real A R TECH FORENSIC EXPERTS, INC. 18075 Ventura Boulevard, Suite 209, Encino, CA 91316, Al Anolik. Consultation and expert testimony on custom Estate, Construction Loans (818) 344-2700, fax (818) 344-3777. Engineers: experi- and practice for airline, cruise line, travel agencies, tour op- & Regulatory Issues enced, registered, advanced degrees, extensive testimony erators, motor coach, tour escorts/guides, incentive/meet- experience. Traffic accidents (all motor vehicle types, bicy- ing planners, and applicability of travel and tourism regula- • Credit Damages cles, pedestrians), collisions, rollovers, skid marks, visibility, tion. Evaluation, computation/valuation of tourism entities for purchase, sale, economic damages, or ADR hearings. • Appraisal and Expert referrals signal phasing, time-motion, low-speed impact. Industrial and construction accidents: OSHA issues. Automotive, in- Tourism security and restraint issues and crisis manage- dustrial, consumer products: brakes, seat belts, forklifts, ment implementation and manuals. Author and professor –35 years experience – machinery, tools, protective equipment, lawn mowers, with actual consulting experience with more tour entities heaters, chairs, fixtures, ladders, scaffolds, fasteners. than any other legal/custom and practice consultant. CEO, Director, Sr. Loan Officer, Premises liability: code analysis, stairways, ramps, doors, State & Federal Court gates, windows, guardrails, pools, and lighting. Slip-and- VOCATIONAL ECONOMIC ANALYST fall. Trip-and-fall. Biomechanics. Safety. Human factors. STEPHEN M. BERRY, MS, CRC See display ad on page 50. THOMAS TARTER 4132 Katella Avenue, Suite 101, Los Alamitos, CA 90720, (562) 594-4621, fax (562) 594-4622, e-mail: smberry2 SPOUSAL EVALUATION IN DISSOLUTION ANDELA CONSULTING GROUP @aol.com. Contact Stephen M. Berry, MS, CRC. 818-380-3102 or 818-884-2525 CASES Forensic vocational economic analyses, assessments of pre-and-post-incident earning capacity and worklife ex- E-Mail: [email protected] GOLDFARB AND ASSOCIATES 1101 Fremont Avenue, Suite 103, South Pasadena, CA pectancy; impact of disability on post-injury earning capac- www.commercepartners.org 91030, (626) 441-9687, fax (626) 799-8736, e-mail: ity and worklife expectancy; loss of future earnings and [email protected]. Contact Howard earning capacity; vocational testing, employability evalua- Goldfarb. Vocational rehabilitation consultant providing tions and labor market research in cases of; personal in- expert witness testimony on employability and wage loss in jury, wrongful death, medical malpractice, employment dis- personal injury, marriage dissolution, ERLSA, age discrimi- crimination, product liability, wrongful termination, marital nation, and sexual harassment. Testify as vocational expert dissolution, and sexual harassment. for Social Security, Office of Hearings and appeals. Admin- isters and interprets vocational aptitude, interest and WEATHER achievement testing. Certified Rehabilitation Counselor. GOLDEN GATE WEATHER Certified Department of Labor Rehabilitation Counselor. 781 McDuff Avenue, Fremont, CA 94539, (510) 657-2246, Trained and certified on evaluation diminished earnings ca- fax (510) 315-3015, e-mail: [email protected]. Web pacity. Part-time Lecturer, rehabilitation counseling pro- site: http://ggweather.com. Contact Jan Null. Certified gram, Cal State, Los Angeles. Graduate and Undergradu- consulting meteorologist experienced at trial and deposi- ate program. tions. Weather event reconstruction and expert analysis for rain, storms, wind, snow, flooding, ice, fog, and other TOXICOLOGY weather events. Twenty-three years’ experience with Na- CAROL MESCHTER, DVM, PHD, DACVP tional Weather Service. Degrees: BS, MA, CCM. 786 Lucerne Drive, Sunnyvale, CA 94085, (408) 738-9261, fax (408) 738-9278, e-mail: [email protected]. WORKERS’ COMPENSATION Contact Carol Meschter, DVM. PhD, DACVP. PhD, GRAHAM A. PURCELL, MD, INC. Board Certified Veterinary Pathologist. Twenty-plus years’ Assistant Clinical Professor Orthopaedic Surgery, UCLA, expertise in biotechnology, pharmaceuticals, toxicology; 3600 Wrightwood Drive, Studio City, CA 91604, (818) 985- additional life of long experience with horses and dogs, as 3051, fax (818) 985-3049, e-mail:[email protected]. a veterinarian and as a competitor. Web site: gpurcellmd.com. Contact Graham A. Purcell, MD. Dr. Purcell is a board certified orthopedic surgeon, PRINCETON-SOMERSET GROUP, INC. sub-specialty in spinal disorders affecting adults and 4 Carroll Drive, Hillsborough, NJ 08844, (800) 597-8836, children. Examples of spinal disorders treated by Dr. Pur- fax (908) 369-6881. Contact Dr. Dennis Stainken. Ex- cell include disc diseases, stenosis, infections, tumors, in- pert witness, toxicology, health issues, chemical exposure, juries, and deformities including scoliosis. He possesses mold issues, worker exposure, contamination issues, cau- 24 years of orthopedic and 15 years of med-legal experi- sation assessment, property damage/contamination and ence, including defense, plaintiff, insurance carriers, CA At- remediation, sewage, gasoline and oil issues and age de- torney General’s office and Public Defender’s office. Expert termination, petroleum releases, chemicals/products, risk testimony pertains to med-mal, personal injury, and work- assessment, indoor air quality/health effects, toxic tort ers’ compensation cases. As qualified medical evaluator, evaluation, chemistry, site assessment, regulatory issues, Dr. Purcell has extensive experience in performing QMEs, environmental toxicology, environmental issues, and wet- AMEs, IMEs, WC evals. See display ad on page 77. land/ecological. Services nationwide. Thirty plus years of industrial and government experience in pollution under NPDES, CERCLA, RCRA, SDWA & CWA. Former federal and state regulator, professor, consultant, industrial research. Seventy-five plus publications.

84 Los Angeles Lawyer November 2005 Computer Counselor BY NANCY A. KAISER

Useful Legal Web Sites for California Lawyers

AS A BUSY LAWYER, you need the answers to your research questions has downloadable California Judicial Council forms at http://www quickly, preferably at little or no cost. The Web can meet that need .courtinfo.ca.gov/forms and sample jury instructions at if you know where to look. Legal sites on the Web are plentiful; many http://www.courtinfo.ca.gov/reference/4_34juryinst.htm. are worth exploring. But watch your time! The Web’s vast and var- The superior court of every California county has a site with ied amounts of information and inviting visual and audio stimuli can courthouse locations, local rules, forms, and summaries of pending lure you away from your billable work and destroy your efforts cases. The site for the Los Angeles Superior Court is at www toward time management. .lasuperiorcourt.org. The Orange County Superior Court is at http:/ If you do not know where else to look, the first step to find what /www.occourts.org; the San Bernardino Superior Court is at www you are looking for may be to do a search on an all-purpose search .co.san-bernardino.ca.us/courts; the Riverside Superior Court is at engine such as Google or Yahoo. Remember that the information pro- www.courts.co.riverside.ca.us; and the Ventura County Superior vided online is only as good as its source. Check where the information is coming from and determine whether or not you can trust the To research California codes, start with a bookmark for the state source. Next, there are several general legal sites that are free and worth exploring. These include government’s site at www.leginfo.ca.gov/calaw.html. Lexis One, Lawyer Express, Findlaw, and LLRX. You will have to spend some time fig- uring out how best to use these sites. Lexis One is a portal for free resources and links to paid services to suit the solo Court is at www.ventura.courts.ca.gov. A site for current filing fees or small firm. Free information includes cases, forms, news, e-alerts, and court costs can be found at http://www.rushtimeontime.com and links to legal Web pages and state resources. Lexis One is also /feemainmenu.htm. a starting place for obtaining MCLE credit. Lawyer Express, a por- The Los Angeles Superior Court site has recently added a feature tal for legal research and news links, is organized into approximately that, for a small fee, allows users to search and pay traffic tickets online; 40 categories, including Legal Search Engines, Federal Law, State Law, e-file small claims cases; search the civil party and criminal defendant Office Tools (with forms), and Speech and Writing. Findlaw has indexes; and retrieve divorce record copies and civil case documents legal news, case law, codes, and practice area articles. LLRX has arti- from the court’s files. The sites of other superior courts have similar cles and Internet research and technology-related information, tools, capabilities. and resources. The official site for California case law (www.lexisnexis.com To research California codes, start with a bookmark for the state /clients/CACourts) is powered by Lexis. Another source for California government’s site at www.leginfo.ca.gov/calaw.html. The site uses key case law is on the Findlaw site at www.findlaw.com/cacases/index.html. words and code section numbers, but it does not have a table of con- You can find basic legal citation guidance at the URL http://www.law tents for each title. If you do not know the exact code section num- .cornell.edu/citation. The only efficient Shepardizing tools are avail- ber, you may have to open several links and read the text of various able with the paid online legal research services, Lexis and Westlaw. sections before you find the appropriate one. Findlaw’s California codes If you are looking for official state codes, you may access the (http://caselaw.lp.findlaw.com/cacodes) provides a table of contents California Code of Regulations (formerly the California Administrative for each title and chapter with links to the code section’s text, but the Code) at www.calregs.com. The codes for Los Angeles County can code may not be current. To be safe, you may want to search Findlaw’s be found at http://ordlink.com/codes/lacounty/index.htm, and the California codes for the code section number and then read the text City Charter and codes at http://www.cityofla.org/lacity102.htm. on the official site. For federal code information, the U.S. code can be accessed at www The full text of the California legislature’s resolutions, bills, and .law.cornell.edu/uscode via the site’s title list or its table of popular constitutional amendments—as well as their status and history—are names. Users can also search for specific code sections or simply go available at www.leginfo.ca.gov/bilinfo.html. This site asks for the bill to the site’s search engine. The U.S. Government Printing Office has number, session, and origin. If you do not have this information, do a site (www.gpoaccess.gov) that is a good source for the Code of a key word search in Google or Yahoo to find the identifying infor- Federal Regulations and the Federal Register. This site also provides mation of the legislation and then return to the official site for the text. a link to the U.S. Supreme Court site at www.supremecourtus.gov, Every California litigator needs regular access to the California the federal courts home page at www.uscourts.gov (which has links Rules of Court, local rules, and online information for pending cases. The official site for California rules is www.courtinfo.ca.gov/rules, Nancy A. Kaiser practices family law with Gould-Saltman Law Offices, LLP, in which uses a table of contents and has the rules in PDF. This site also Los Angeles and is a member of the Barristers Executive Committee.

Los Angeles Lawyer November 2005 85 to the U.S. Constitution, a circuit map, and numbers, assets, relatives, and more. To ver- EXPERT WITNESS circuit courts), and a guide titled Under- ify an individual or business license, a site to standing the Federal Courts (http://www check is http://www2.dca.ca.gov/pls/wllpub .uscourts.gov/understand02/index.html). The /wllquery$. The Department of Consumer INDUSTRIAL/COMMERCIAL best source for federal legislation is through Affairs licenses accountants, automobile REAL ESTATE the Library of Congress at http://thomas mechanics, doctors, psychologists, and con- Care, Duty & Broker Responsibility .loc.gov. tractors, to name a few. You can check the sta- Lease & Purchase Contracts Federal case law can be found on Findlaw. tus of a contractor’s license at http:/ Condition of Premises PACER, which is an acronym for Public /www.cslb.ca.gov and look up a physician’s 42 Years of Experience Access to Court Electronic Records, allows disciplinary history at www.medbd.ca.gov users to download documents from the files /Lookup.htm. of the federal district courts and bankruptcy If you need estimates of the value of real JACK KARP courts. PACER has a registration require- property or tangible personal property, you (310) 377-6349 FAX: (310) 868-2880 ment and charges a small fee for the docu- can find vehicle pricing and information for ments. It can be found at http://pacer.psc automobiles at www.edmunds.com, www.kbb .uscourts.gov/cgi-bin/links.pl. A wealth of .com, and www.nadaguides.com. Nadaguides California and federal discovery rules, case also gives pricing for boats, motorcycles, and TRUST DEED FORECLOSURES outlines, and practice tips are available on recreational vehicles. To obtain a sales com- “Industry Specialists For Over 18 Years” Findlaw (http://californiadiscovery.findlaw parison on residential real property, check .com/index.htm). However, be sure to check out www.homevaluehunt.com. t Witkin & Eisinger we specialize in the Non-Judicial A Foreclosure of obligations secured by real property official sites for current codes. or real and personal property (mixed collateral). Forms and Documents When your client needs a foreclosure done profession- Fact Finding After you find the relevant law, you must ally and at the lowest possible cost, please call us at: Along with legal research, the Web is the apply the law to the facts of your case in an 1-800-950-6522 logical first choice for finding facts. In certain acceptable format. 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Finally, we all Consulting of State’s corporation search portal, which is make mistakes, even partners. found at https://esos.state.nv.us/SOSServices The best writers often turn to a dictionary Trial Services /AnonymousAccess/CorpSearch/CorpSearch- or thesaurus. Free online dictionaries include Case Management .aspx. www.dictionary.com and www.m-w.com, www Litigation A search site is available for fictitious .yourdictionary.com, www.hyperdictionary Technology business names in Los Angeles (www.lavote .com, and http://dictionary.law.com. For those .net/fbn/FBN.cfm). Keep in mind, however, of you who need a Ukrainian-English dic- For more info: that Los Angeles businesses do not always reg- tionary with a virtual Ukrainian typewriter, www.smithcarson.com ister or renew their fictitious business names. check out www.cybermova.com/online. or call Lori Olson at (818) 551-5900 It is helpful to have telephone, zip code, and Even though the Internet is in its infancy,

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Los Angeles Lawyer November 2005 87 THE LOS ANGELES COUNTY BAR FOUNDATION’S 2004- dures required in connection with its annual audit, the Foundation 2005 FUND DRIVE raised approximately $305,000 from corpo- hereby lists all individuals who made contributions of $200 or rations, foundations, individuals, law firms, and others. Direct more, and all law firms, corporations, foundations ,and other orga- contributions from law firms totaled $100,250; individuals nizations that contributed $1,000 or more during the period begin- contributed $84,934; and corporations, foundations, and others ning July 1, 2004, and ending June 30, 2005. If you are not listed contributed $24,000. In addition to these direct contributions, below, and you made a contribution to the Foundation fitting any approximately $96,000 was contributed to the Foundation by indi- of the above criteria, please contact the Foundation’s indepen- viduals, corporations, and law firms by means of the Association’s dent certified public accountants, Green, Hasson & Janks LLP, by call- annual dues statement voluntary contribution. 2004-2005 ing Gayle Whittemore directly at (310) 873-1605. The Foundation wishes to express sincere thanks to all who con- Fund Drive The Foundation regrets that space limitations prevent the list- tributed during the 2004-2005 campaign. As part of the proce- Results ing of the names of all contributors.

INDIVIDUAL Hon. Nora M. Manella Munger, Tolles & Olson LLP IN MEMORY OF... Founder ($50,000 or more) CONTRIBUTIONS Charles E. Michaels Skadden, Arps, Slate, JOSEPH A. BALL, by Hyman J. Bradofsky Audra M. Mori Meagher & Flom LLP Thomas J. Leanse Thomas V. Girardi $10,000 or more Richard H. Nakamura, Jr. $2,000-$2,999 Francis X. McCormack Hutto Patterson Charitable Ruth J. Lavine Thomas D. Phelps Arnold & Porter LLP Douglas Wilson Otto Foundation Patricia D. Phillips $2,000-$9,999 Greenberg Glusker CHARLES R. ENGLISH, by J.W. & Ida M. Jameson Foundation Dennis D. Resh Joseph W. Aidlin Howrey Simon Arnold & William J. Bogaard Hon. Richard A. & Ruth J. Lavine Nicholas P. Saggese Gerald L. Chaleff White LLP Hon. David A. Horowitz Donald C. Mitchell Marc L. Sallus Robin Meadow Jaffe & Clemens LeAnne E. Maillian Ralph J. Shapiro Laura A. Seigle Reed Smith LLP Judge & Mrs. Harvey A. Schneider $1,000-$1,999 Marc M. Seltzer Benefactor ($25,000 - $49,999) Sidley Austin Brown & John D. Taylor Don Mike Anthony Susan Koehler Sullivan Roy H. Aaron Wood LLP Hon. Paul Wyler Joseph R. Austin Jill Switzer Jules & Doris Stein Foundation Rosalyn S. Zakheim Charles G. Bakaly, Jr. Rhonda R. Trotter $1,000-$1,999 Lloyd & Susan Stockel John S. Chang Richard J. Ward, Jr. Allen, Matkins, Leck, Gamble BURCHELL JACOBS, by Patron ($15,000 - $24,999) Richard Chernick Martin H. Webster & Mallory LLP Larry & Bobbie Liebenbaum Joseph R. Austin Mr. and Mrs. Morgan Chu Hon. Paul Wyler Baker & Hostetler LLP Linda M. Stude William J. Bogaard Walter Cochran-Bond $200-$499 Bonne Bridges, Mueller, O’Keefe DAVID L. MANELLA, by Robert E. Carlson Jordan S. Cohen & Nichols APC William J. Bogaard Hon. Nora M. Manella Richard Chernick John J. Collins Cotkin, Collins & Ginsburg APC Michael K. Brown Knox M. Cologne III Glen B. Collyer Cox Castle & Nicholson LLP GRETCHEN LOUISE MERRITT, by Prof. Christopher D. Cameron Stephen R. English & Molly Knox M. Cologne III DLA Piper Rudnick Gray Cary LLP Larry & Bobbie Liebenbaum Joanne E. Caruso Munger Stephen R. English & Molly Epstein, Becker & Green ANTHONY J. PIGNATELLO, by Patricia Egan Daehnke Stanley F. Farrar Munger Fulbright & Jaworski LLP Mitchell C. Regenstreif Carl E. Douglas Robert K. Johnson Richard E. Hodge Girardi & Keese Gary A. Farwell JANET RAE, by Robin Meadow Leonard Horwin Greines, Martin, Stein & Mark T. Gillett Larry & Bobbie Liebenbaum Gavin Miller Robert K. Johnson Richland LLP Feris M. Greenberger In Honor of David Pascale James C. Martin Hahn & Hahn LLP CARL W. STUDE, Jr., by Sarah Heck Griffin John J. Quinn Francis X. McCormack Haight, Brown & Bonesteel LLP Larry & Bobbie Liebenbaum Alan N. Halkett In Honor of Richard Walch John J. Quinn Heller, Ehrman, White & Denise Howell JOSEPH TABACK, by Mitchell C. Regenstreif McAuliffe LLP Sponsor ($10,000 - $14,999) Shirley M. Hufstedler Laurence R. Goldman Wayne Simon Hochman, Salkin, Rettig, Joseph W. Aidlin Howard M. Knee VINCENT M. TOWNSEND, JR., by Hon. Charles S. Vogel Toscher & Perez P.C. Don Mike Anthony James D. Layden David S. Ettinger Eric A. Webber & Gerard Horvitz & Levy LLP John Carson Bernard E. & Joan M. LeSage Ralph B. Perry III Kraaijeveld Hughes, Hubbard & Reed LLP Gerald L. Chaleff Richard B. Levin Daniel J. Woods Jones Day DAVIDA R. TROPE, by John J. Collins Tomas R. Lopez Donna J. Zenor Kaufman, Young, Spiegel, Eugene L. Trope Charles R. English LeAnne E. Maillian Robinson & Kenerson LLP Richard E. Garcia $500-$999 Danette E. Meyers Liner, Yankelevitz, Sunshine & IN HONOR OF... Harry L. Hathaway Linda Auerbach Allderdice Ralph B. Perry III Regenstreif LLP Richard E. Hodge Paula Ambrosini James G. Phillipp ROY H. AARON, by Manatt, Phelps & Phillips LLP Patrick M. Kelly Donald P. Baker Victor W. Santochi Hon. Kenji Machida Meserve, Mumper & Hughes LLP Joel W. H. Kleinberg Teresa A. Beaudet Judge & Mrs. Harvey A. Schneider Orrick, Herrington & Sutcliffe ANNIE & HARLEY KINGSBURY, by Margaret Levy Mollie F. Benedict Eugene L. Trope Perkins Coie Melanie Hanson Sartoris Neal S. Millard Michael I. Blaylock Robert S. Warren Covert E. Parnell III Theodore J. Boutrous, Jr. Pillsbury Winthrop Shaw NEAL S. MILLARD, by Pittman LLP Joseph Taback Jamie Broder LAW FIRM CONTRIBUTIONS Bernard & Katherine Millard Reish Luftman Reicher & David H. Vena Thomas M. Brown RICHARD WALCH, by $9,000 and above Cohen APC Hon. Charles S. Vogel Carolyn C. Burger Hon. Charles S. Vogel Robert S. Warren Thomas P. Cacciatore Latham & Watkins LLP Robie & Matthai Rutter, Hobbs & Davidoff Inc. The Foundation would also like Daniel J. Woods Robert E. Carlson $6,000-$8,999 Sedgwick, Detert, Moran & to give special recognition to the Friend ($5,000 - $9,999) Tyrone R. Childress Morrison & Foerster Foundation Shawn C. Chou Arnold LLP following individuals whose Steven W. Bacon Brian K. Condon $5,000-$5,999 Stroock & Stroock & Lavan LLP participation in various pledge Charles G. Bakaly, Jr. White & Case Donald P. Baker Hon. Lawrence W. Crispo Akin, Gump, Strauss, Hauer & programs (as of 6/30/05) Feld LLP Wilson, Elser, Moskowitz, Patricia H. Benson Andrew J. Demetriou reﬂects a ﬁrm commitment to O’Melveny & Myers LLP Edelman & Dicker LLP John S. Chang Gregory Evans the Foundation’s goals: Gregg A. Farley Paul, Hastings, Janofsky & Walter Cochran-Bond Stuart A. Forsyth Walker LLP OTHER CONTRIBUTIONS Paul F. & Isabel R. Cohen HONOR ROLL Richard E. Garcia Sheppard, Mullin, Richter & Glen B. Collyer $20,000 and above Joe D. Crider Mark Garscia Hampton LLP Participants have contributed, American Corporate Counsel Donald A. Daucher Richard B. Goetz $3,000-$4,999 Association—Southern or pledged to contribute, the Lee Edmon & Dick Burdge Jo-Ann W. Grace Alschuler Grossman Stein & California Chapter amounts shown for each Noah Graff Larry R. Feldman Kahan LLP category in annual minimum Amos E. Hartston $1,000-$1,999 Mark Garscia Irell & Manella LLP installments of at least $1,000. Albert S. Golbert Brian L. Holman & Mary E. Bank of The West Kirkland & Ellis LLP David E. Gordon & Mary D. Lane Tarduno Hanmi Bank (List includes participants as of McKenna, Long & Aldridge LLP Hon. William P. Gray Linda M. Lawson Morgan, Lewis & Bockius LLP 6/30/05.) Larry & Bobbie Liebenbaum Sarah Heck Griffin

88 Los Angeles Lawyer November 2005 Rex S. Heinke Lawrence F. Liebenbaum Jeffrey C. Freedman Patric M. Verrone Fellow** or Honor Roll*** level Hon. William P. Hogoboom Robin Meadow Alan H. Friedenthal Caroline C. Vincent and have chosen to continue Maria D. Hummer Neal S. Millard James J. Gallagher Richard S. Volpert supporting the Foundation with John D. Hussey Gavin Miller Patricia A. Gartner Richard Walch an annual gift. (List includes Joan R. Isaacs Hon. Margaret M. Morrow Robert T. Gelber John F. Walker, Jr. participants as of 6/30/05.) Leonard S. Janofsky John F. O’Hara Russell T. Ginise Stuart B. Walzer Vincent W. Jones Andrea Sheridan Ordin Richard B. Goetz Michael R. Whalen Martha B. Jordan David J. Pasternak Hon. Arnold H. Gold Karen B. Wong & Scott W. Lee John W. Alden, Jr. James H. Kindel, Jr. Patricia Phillips Prof. Max A. Goodman Kenneth B. Wright Don Mike Anthony*** Sandra R. King John J. Quinn Jo-Ann W. Grace Hon. Paul Wyler Hon. Helen I. Bendix Richard G. LaPorte Sheldon H. Sloan Noah Graff Rosalyn S. Zakheim Michael H. Bierman Bernard E. & Joan M. LeSage Susan R. Stockel Jan Charles Gray Maxwell M. Blecher Larry & Bobbie Liebenbaum John D. Taylor Hon. Paul Gutman 2004-05 FELLOWS Brad D. Brian Lester O. Brown James C. Martin Hon. Charles S. Vogel Alan N. Halkett Individuals who contributed a Malissa Hathaway McKeith Robert S. Warren Amos E. Hartston William Clark Brown minimum of $500 between Theodore N. Miller Martin H. Webster Rex Heeseman Elizabeth M. Calciano* Hon. Anthony J. Mohr John S. Welch Robert Henigson 7/1/04-6/30/05 and are not Prof. Christopher D. Cameron Hon. Margaret M. Morrow Francis M. Wheat Grover R. Heyler Barristers Fellows, Life Fellows John L. Carlton Hon. Margaret A. Nagle Donna J. Zenor Edward W. Hieronymus or Honor Roll participants. Hon. H. Walter Croskey** John F. O’Hara Bernard S. Kamine Melissa A. Dalziel Ronald L. Olson LIFE FELLOWS Kelly W. Kay Thomas P. Cacciatore Brian L. Davidoff Katessa Charles Davis** Andrea Sheridan Ordin A Life Fellow has contributed, or Russel I. Kully Mr. & Mrs. Morgan Chu David J. & Cynthia F. Pasternak Frederick W. Lambert Jordan S. Cohen David S. Eisen pledged to contribute, $2,500 to Jack I. Esensten Aulana L. Peters the Foundation. Annual install- John A. Lapinski Brian L. Holman & Mary E. Thomas D. Phelps Linda M. Lawson Tarduno Michele E. Flurer* ments must be at least $500. Patricia Phillips James D. Layden Leonard Horwin Thomas A. Freiberg, Jr. Mitchell C. Regenstreif (List includes participants as of Bruce H. Leiserowitz Francis X. McCormack Robert S. Gerstein Douglas Ring 6/30/05.) Roderick W. Leonard Eric A. Webber & Gerard Mark T. Gillett* Reade H. Ryan, Jr. Fred L. Leydorf Kraaijeveld Philip G. Grant Harvey L. Silbert James N. Adler Michael S. Lurey Ethan P. Greene Wayne Simon Linda Auerbach Allderdice LeAnne E. Maillian BARRISTERS FELLOWS Jean A. Hobart Dean V. Ambrose Denise Howell Sheldon H. Sloan Hon. Nora M. Manella A Barristers Fellow has Linda J. Smith Paula Ambrosini Vicki E. Marmorstein & Seth A. Brian D. Huben Hon. Orville A. Armstrong contributed, or pledged to Shirley M. Hufstedler John D. Taylor Ribner contribute over a ﬁve-year period, William W. Vaughn Richards D. Barger Michael E. Meyer Joan R. Isaacs*** $500 to the Foundation. Martin H. Webster Jane H. Barrett Charles E. Michaels Lois M. Jacobs Hon. Robert Weil Teresa A. Beaudet Audra Mori Barristers are individuals who Ronald L. Johnston John S. Welch Lori R. Behar Richard T. Morrow are 36 years of age or less or who Henry J. Josefsberg Francis M. Wheat Mollie F. Benedict Richard H. Nakamura, Jr. have been in practice 10 years or Ruth D. Kahn* In Memory of Arnold V. Winthrop Jennifer A. Bensch Mark A. Neubauer less. (List includes participants Terri D. Keville Blanche C. Bersch Judy A. Kim* Donna J. Zenor Robert H. Nida as of 6/30/05.) William M. Bitting Andrew J. Nocas Marcia L. Kraft Michael I. Blaylock Miriam A. Krinsky PRESIDENTS CLUB Stacey Olliff & Tracy Rich Barbara J. Bacon Stephen M. Blitz Robert N. Kwan Former Bar Association or Bar Gregg Oppenheimer Randee Barak Merrick J. Bobb Edward A. Landry Lee R. Petillon Sandeep Baweja Foundation presidents who have Robert C. Boffa Thomas J. Leanse Karen Randall James W. Bilderback II contributed or pledged to Phillip L. Bosl Andrea B. Liebenbaum Barbara A. Reeves Gabrielle Harner Brumbach contribute a minimum of $5,000 Theodore J. Boutrous, Jr. Larry & Bobbie Liebenbaum*** Dennis D. Resh Shawn C. Chou to the Foundation. (List includes Joel E. Boxer Tomas R. Lopez Kenneth O. Rhodes Luci-Ellen M. Chun Jamie Broder LeAnne E. Maillian** participants as of 6/30/05.) Hon. Andria K. Richey Susan Skelding Couig Thomas M. Brown Elaine Mandel David K. Robinson Rebecca A. Delﬁno Geoffrey L. Bryan Linda Wight Mazur Roy H. Aaron Irving Rosenfeld Joseph T. Hahn Carolyn C. Burger Frederick L. McKnight Don Mike Anthony Alan I. Rothenberg Jacqueline J. Harding Lauren Burton Danette E. Meyers Joseph R. Austin Deborah J. Ruosch Andres C. Hurwitz Claudia Carver Pansky & Markle Donald P. Baker Harvey I. Saferstein Nancy A. Kaiser Paul A. Catalano Ralph B. Perry Robert E. Carlson Nicholas P. Saggese Seth D. Levy Edward C. Cazier, Jr. John J. Quinn*** John Carson Marc L. Sallus Cindy J. Macho Tyrone R. Childress Jerrold B. Reilly Gerald Chaleff Laura A. Seigle Ritu Manjunath Arlene Colman-Schwimmer Pauline Y. Robins Richard Chernick Marc M. Seltzer Cori McGraw Brian K. Condon Toby J. Rothschild John J. Collins Patricia L. Shanks Jennifer F. Novak Douglas C. Conroy Melanie Hanson Sartoris Knox M. Cologne III Fran & Leonard Smith Angela J. Reddock Hon. Lawrence W. Crispo Peter Schnaitman Donald A. Daucher John R. Stahr Andrea Schoor Hon. H. Walter Croskey Michael & Lara Schwartz* Hon. Lee Smalley Edmon Sheryl E. Stein Lorin D. Snyder Patricia Egan Daehnke Barry E. Shanley Charles R. English David W. Steuber Margaret P. Stevens Grace M. Danziger Arthur F. Silbergeld Stephen R. English Clinton R. Stevenson Courtney L. Stuart-Alban Albert F. Davis Ross E. Stromberg Larry R. Feldman Richard J. Stone Paul D. Tripodi II Katessa Charles Davis Linda M. Stude** David E. Gordon Linda M. Stude Kim Tung Andrew J. Demetriou Paul D. Supnik Hon. William P. Gray Susan Koehler Sullivan Gavin H. Wasserman Pamela Dunn & Maria Louise Patricia A. Van Dyke Sarah Heck Griffin Jill Switzer Kathleen MacFarlane Waters Harry L. Hathaway Cousineau Hon. Robert M. Talcott Caroline C. Vincent** Gregory Evans Richard Walch** Rex S. Heinke Stuart P. Tobisman SUPPORTING MEMBERS John D. Hussey Jonathan W. Evans Franklin Tom Earl P. Willens Individuals who have pledged to Joan R. Isaacs Laura V. Farber Clyde E. Tritt Roxanne M. Wilson Leonard S. Janofsky Gregg A. Farley Eugene L. Trope contribute a minimum of $100 Michael C. Zellers Vincent W. Jones Hon. Lisa Hill Fenning Rhonda R. Trotter annually to the Foundation. Patrick M. Kelly Hon. Macklin Fleming Susan J. Troy Those with asterisks have Ruth J. Lavine Stuart A. Forsyth David C. Tseng previously completed pledges at Fred L. Leydorf Georgia Franklin-Shutan Robert C. Vanderet the Barristers Fellow*, Life

Fundraising for the current ﬁscal year (7/1/2005-6/30/2006) is now underway. The Foundation makes grants to law-related projects serving Los Angeles County. Visit the LACBF Web page at www.lacba.org/foundation to learn more about the Foundation and to see a list of its 2005 grant recipients. You may also contact the Foundation’s administrator, Linda Stude, at (213)896-6409 or e-mail her at [email protected]. To lend your support, send a tax-deductible contribution to: Los Angeles County Bar Foundation, P.O. Box 55020, Los Angeles, CA 90055.

Los Angeles Lawyer November 2005 89 Index to Advertisers

Advisory Services Group, p. 83 John R. Grindon & Associates, p. 73 David L. Ray, p. 12 Tel. 310-937-7700 Tel. 314-895-4747 www.jrgrindon.com Tel. 481-6700 e-mail: [email protected] AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 73 Gursey, Schneider & Company, p. 53 Jan Raymond, p. 35 Tel. 800-275-8903 www.amfs.com Tel. 310-552-0960 www.gursey.com Tel. 888-676-1947 e-mail: [email protected] The Andela Consulting Group, Inc., p. 84 Hargis & Associates, Inc., p. 70 Rick Engineering Company, p. 64 Tel. 818-380-3102 Tel. 800-554-2744 www.hargis.com Tel. 951-782-0707 www.rickengineering.com Aon Direct Administrators/LACBA Professional Liability, p. 5 Hargrave & Hargrave, p. 60 Rimkus Consulting Group, Inc., p. 75 Tel. 800-634-9177 www.attorneys-advantage.com Tel. 310-576-1090 www.taxwizard.com Tel. 877-978-2044 www.rimkus.com A R Tech Forensic Experts, Inc., p. 50 Higgins, Marcus & Lovett, Inc., p. 63 Rosen & Associates, PC, p. 65 Tel. 818-344-2700 e-mail: [email protected] Tel. 213-617-7775 www.hmlinc.com Tel. 213-362-1000 www.rosen-law.com Ballenger, Cleveland & Issa LLC, p. 50 The Holmes Law Firm, p. 43 R. S. Ruggles & Co., Inc., p. 61 Tel. 310-873-1717 Tel. 626-432-7222 www.theholmeslawfirm.com Tel. 800-526-0863 www.rsruggles.com Gunther R. Bauer, MD, Attorney at Law, p. 73 Jack Trimarco & Associates Polygraph, Inc., p. 42 Jonathan S. Rutchik, MD, p. 77 Tel. 562-437-0403 www.bauermdmedmallaw.com Tel. 310-247-2637 www.jacktrimarco.com Tel. 415-381-3133 www.neoma.com Law Office of Donald P. Brigham, p. 6 Jeffrey Kichaven, p. 22 Rutter Hobbs & Davidoff, Incorporated, p. 12 Tel. 949-206-1661 e-mail: [email protected] Tel. 213-996-8465 www.jeffkichaven.com Tel. 310-286-1700 www.rutterhobbs.com Bruce Broukhim, MD, p. 66 Joan Kessler, p. 29 Sanli Pastore & Hill, Inc., p. 69 Tel. 818-755-6500 Tel. 310-552-9800 www.kesslerandkessler.com Tel. 310-571-3400 www.sphvalue.com California Eminent Domain Law Group, APC, p. 28 JVH Communications & Consultants, p. 43 Steven R. Sauer APC, p. 8 Tel. 818-957-0477 www.caledlaw.com Tel. 818-709-6420 www.jvhcommunications.net Tel. 323-933-6833 e-mail: [email protected] The California Wellness Foundation, p. 21 KARS Advanced Materials, Inc., p. 65 Anita Rae Shapiro, p. 36 Tel. 818-593-6600 www.tcwf.org Tel. 714- 892-8987 www.karslab.com Tel. 714-529-0415 www.adr-shapiro.com California Western School of Law, p. 18 Kroll, p. 67 Skyy Consulting, Inside Front Cover Tel. 619-239-0391 www.californiawestern.edu Tel. 213-443-6090 www.krollworldwide.com Tel. 310-622-7076 www.skyyconsulting.com Carol Nygard & Associates, p. 42 Krycler, Ervin, Taubman & Walheim, p. 46 Smith & Carson, p. 86 Tel. 916-928-8999 www.sacramentocourtreporter.com Tel. 818-995-1040 www.ketw.com Tel. 818-551-5900 www.smithcarson.com Clock Construction, p. 55 Lawyers’ Mutual Insurance Co., p. 7 Stefanie Stolinsky, PhD., p. 75 Tel. 949-640-7890 Tel. 800-252-2045 www.lawyersmutual.com Tel. 310-788-3436 www.act-it-out.com CRA International, p. 59 Law Offices of Boyd S. Lemon, p. 70 Stonefield Josephson, Inc., p. 17 Tel. 202-662-3800 www.crai.com Tel. 310-827-0840 www.legalmalexpert.com Tel. 866-225-4511 www.sjaccounting.com CreditMax, p. 29 Lexis Publishing, p. 9, 15 Jeff Sugar, M.D., p. 80 Tel. 310-476-0200 www.creditmaxteam.com www.lexis.com Tel. 310-322-6933 e-mail: [email protected] Cohen Miskei & Mowrey, p. 60 Arthur Mazirow, p. 37 Sylvester Consulting Group, p. 77 Tel. 818-986-5070 e-mail: [email protected] Tel. 310-255-6114 e-mail: [email protected] Tel. 310 391-2080 e-mail: [email protected] Commerce Escrow Company, p. 36 MCLE4LAWYERS.COM, p. 6 TASA, Technical Advisory Service for Attorneys, p. 23, 74 Tel. 213-484-0855 www.comescrow.com Tel. 310-552-5382 www.MCLEforlawyers.com Tel. 800-523-2319 www.tasanet.com Council of Better Business Bureaus, Inc., p. 22 Gil Mileikowsky, MD p. 63 Tasoff & Tasoff, p. 35 Tel. 800-334-2406 www.bbb.org Tel. 310-858-1300 www.baby4you.net Tel. 818-788-8900 www.tasoff.com D. Wylie Associates, p. 63 Clinton E. Miller, JD, p. 60 Tavakoul, p. 37 Tel. 805-681-9289 www.drivingfatigue.com Tel. 408-279-1034 www.millerjd.qpg.com Tel. 714-928-3742 DataChasers.com, p. 52 Miod and Company, LLP, p. 64 Thomas Neches & Company, LLP, p. 51 Tel. 951-780-7892 www.datachasers.com Tel. 818-898-9911 www.miod-cpa.com Tel. 213-624-8150 www.thomasneches.com Deadlines On Demand, p. 13 MP Group, p. 8 Toshiba/Copyfax Communications, p. 4 Tel. 888-363-5522 www.deadlines.com Tel. 323-874-8973 www.mpgroup.com Tel. 714-892-2444 www.copyfax.net Law Offices of Delsack & Associates, P.C., p. 22 Mr. Truck, p. 79 ULTIMO Organization, Inc., p. 80 Tel. 888-395-3666 www.lemonlawspecialists.com Tel. 925-625-4994 or 800-337-4994 e-mail: [email protected] Tel. 714-560-8999 www.geotechnical.com Desmond, Marcello & Amster, p. 47 MyCorporation.com, p. 1 URS, p. 83 Tel. 310-216-1400 www.dmavalue.com Tel. 888-692-6771 www.mycorporation.com Tel. 213-996-2555 www.urscorp.com E. L. Evans & Associates, p. 69 National Institute for Trial Advocacy, p. 28 Elaine Verchick, p. 28 Tel. 310-559-4005 Tel. 800-225-6482 www.nita.org Tel. 310-550-7818 Field & Test Engineering, Inc., p. 69 National Properties Group, p. 86 Verizon Wireless, p. 11 Tel. 562-743-7230 e-mail: [email protected] Tel. 310-516-0022 Tel. 866-899-2862 www.verizonwireless.com Georg Finder, p. 57 Noriega Clinics, p. 87 Vision Sciences Research Corporation, p. 84 Tel. 714-441-0900 www.creditdamageexpert.com Tel. 323-728-8268 Tel. 925-837-2083 www.contrastsensitivity.net Kenneth J. Fischbeck, p. 49 OFS, “The Business Doctors”, p. 67 Temmy Walker, Inc., p. 81 Tel. 714-609-7481 e-mail: kfi[email protected] Tel. 310-821-1893 www.ofs3.com Tel. 818-760-3355 Forensic Expert Witness Association, p. 46 One Legal, Inc., p. 37 Waronzof Associates, P. 70 Tel. 949-640-9903 www.forensic.org Tel. 415-491-0606 www.onelegal.com Tel. 310-954-8060 www.waronzof.com ForensisGroup Inc., p. 53 Ostrove, Krantz & Associates, p. 49 West Group, Back Cover Tel. 626-795-5000 www.forensisgroup.com Tel. 323-939-3400 e-mail: [email protected] Tel. 800-762-5272 www.westgroup.com Fragomen, Del Rey, Bernsen & Loewy, LLP, p. 30 Pacific Construction Consultants, Inc. (PCCI) p. 52 White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 48 Tel. 310-820-3322 www.fragomen.com Tel. 916-638-4848 www.pcci.biz Tel. 818-981-4226 www.wzwlw.com Marc J. Friedman, M.D., p. 79 Pacific Construction Management, Inc., p. 49 Whittier Law School, Inside Back Cover Tel. 818-901-6600 e-mail: [email protected] Tel. 800-576-7264 www.pcmi.biz Tel. 714-444-4141 www.law.whittier.edu FULCRUM Financial Inquiry LLP, p. 2 Pacific Health & Safety Consulting, Inc., p. 66 Lesther Winkler, M.D., p. 74 Tel. 213-787-4100 www.fulcruminquiry.com Tel. 949-253-4065 www.phsc-web.com Tel. 818-349-8568 Arnold L. Gilberg, MD, PhD., A Professional Corporation, p. 57 Power Volvo South Bay, p. 28 Witkin & Eisinger, LLC, p. 86 Tel. 310-274-2304 Tel. 310-325-3255 www.powerdirect.com Tel. 310-670-1500 Steven L. Gleitman, Esq., p. 6 Graham A. Purcell, MD, p. 77 Lewis Yablonsky, PhD., p. 83 Tel. 310-553-5080 Tel. 818-985-3051 www.gpurcellmd.com Tel. 310-450-3697 e-mail: [email protected] G. Govine Consulting, p. 57 Quo Jure Corporation, p. 42 Zivetz, Schwartz & Saltsman, p. 47 Tel. 626-564-0502 www.govineconsults.com Tel. 800-843-0660 www.quojure.com Tel. 310-826-1040 www.zsscpa.com

90 Los Angeles Lawyer November 2005 CLE Preview

GAMBLING ON PREEMPTION Eliminating Bias by Increasing Cultural Diversity On Wednesday, November 16, the ON THURSDAY, NOVEMBER 10, the Barristers Section and the Diversity in the Profession Intellectual Property and Entertainment Committee will proudly present a panel of academics and practitioners who will discuss what Law Section will present a discussion of the the legal profession can do to increase awareness of cultural and racial diversity in the implications of Grosso v. Miramax. The workplace and how diversification can help to eliminate bias in the profession. Speakers decision could alter the landscape of the Jody D. Armour, Cristina Felix-Carrasco, J. Craig Fong, Michael A. Lawson, and Judge Fumiko H. submission of ideas in the entertainment Wasserman will discuss the challenges in today’s competitive legal market concerning the industry and the idea submission claims recruitment, retention, and promotion of attorneys of color, women, and gay and lesbian that often follow. The panelists will include attorneys. The program will take place at the LACBA/LexisNexis Conference Center, 281 South Figueroa Street, Downtown. Parking is available at the Figueroa Courtyard parking garage for Jonathan H. Anschell, Glen L. Kulik, and $9 with LACBA validation. On-site registration will be available starting at 11:30 A.M. and Gail M. Title. In Grosso, the Ninth Circuit lunch at 11:45, with the program continuing from noon to 1:30 P.M. The registration code ruled that certain idea submission claims number is 009160. CLE+PLUS members may attend for free ($15 meal not included). The are not preempted by federal copyright law. prices below include the meal. Aspiring screenwriter Jeff Grosso brought $25—Barristers members an implied contract claim based on his $35—all others submission of a script titled The Shell 1.5 CLE hours in elimination of bias Game, which he claims was used to create Miramax’s motion picture Rounders. Power Point for Litigators Miramax argued that the Copyright Act preempted the claim. In a truncated ON TUESDAY, NOVEMBER 15, the Los Angeles County Bar Association and its Litigation Section will decision, the Ninth Circuit ruled that Grosso present a course taught by Russell Jackman on how demonstration programs (in particular, could pursue his state law claim. Studios, Microsoft’s Power Point) can be an integral part of trial and business presentations. Course writers, agents, and entertainment lawyers topics will include setting up slides, creating slides, text effects, bullets and numbering, pictures, borders, line drawing and edit points, animation, and exporting files. Participants are are now grappling with the effects of encouraged to bring their laptops for a more interactive experience. Please note, however, that Grosso. This program will take place at the limited access to power outlets will be available on a first-come, first-served basis, and that those Wyndham Bel Age—West Hollywood, 1020 who bring a computer should have Power Point already installed. This course does not provide North San Vicente Boulevard. Parking with the Power Point software. The program will take place at the LACBA/LexisNexis Conference Center, validation costs $6. On-site registration will 281 South Figueroa Street, Downtown. A reduced parking rate is available with validation. On-site begin at 11:45 A.M. and the meal at 11:45, registration and dinner will begin at 5:30 P.M., with the program continuing from 6 to 9:15. The with the program continuing from 12:30 to registration code number is 009148. 1:30 P.M. The registration code number is

$150—CLE+PLUS members 009186. CLE+PLUS members may attend for $200—Litigation Section members free ($31 meal not included). The prices $300—other LACBA members below include the meal. $450—all others $60—Intellectual Property and 3.25 CLE hours Entertainment Law Section members $75—LACBA members PLEASE NOTE: FIGUEROA COURTYARD NOW USES AN AUTOMATED $85—all others PARKING PAYMENT SYSTEM. PLEASE BRING YOUR PARKING TICKET $90—all at-the-door registrants WITH YOU TO THE PROGRAM. 1 CLE hour

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

Los Angeles Lawyer November 2005 91 Closing Argument BY DAVID HAZELKORN

The Unmasking of a Legal Urban Legend

OVER THE PAST COUPLE OF YEARS an increasing number of lawyers imbuing attorneys with the power to stay all proceedings. have been filing “notices of unavailability” that state, for one reason Tenderloin stands for only two principles: 1) the availability of sanc- or another, that the lawyers are unavailable to do anything regard- tions, and 2) the imposition of sanctions for bad faith tactics. ing a particular case during specified periods of time. These notices Tenderloin has been cited repeatedly for the principle that trial courts are then waved before opposing counsel like a cross in front of a vam- have broad discretion in ruling on sanctions.2 A monetary sanction pire, with the argument that all service, discovery, motions, hearings, may be based not only on attorney’s fees and costs but also on any and everything else concerning the case must cease during the peri- other reasonable expenses incurred, including compensation for air- ods of unavailability. fare and reimbursement for lost vacation. An appellate court will not Tenderloin Housing Clinic, Inc. v. Sparks1 invariably is presented reweigh the evidence or substitute its discretion for the trial court’s. as authority for this proposition. However, Tenderloin does not so Tenderloin also has been cited for the imposition of sanctions under hold. That belief is a legal urban legend. Tenderloin is about an attorney who persistently engaged in discovery in a friv- Attorneys who say is about notices of unavailability olous and oppressive fashion with the obvi- Tenderloin ous intent to harass and inconvenience opposing counsel and her client. The rul- are misreading the case by taking the facts out of context. ing concerned sanctions for persistent bad faith and frivolous and harassing tactics. In Tenderloin the defendants’ lawyer advised the plaintiff’s trial counsel by telephone that the defendants’ Code of Civil Procedure Section 128.5 for bad faith actions and tac- lawyer would be away for two and one-half weeks, first at an arbi- tics.3 For example, in Wells Properties v. Popkin, the court cited tration proceeding in New York and then on a long-planned vaca- Tenderloin to show that Wells’s course of conduct evinced bad faith. tion in England. Shortly after the telephone conversation, the plain- “[E]ven if a legal step taken or legal procedure pursued may tiff’s trial counsel set three discovery motions for hearing on a date have justification in law, the timing of these may be oppressive he knew defense counsel would be away, forcing defense counsel to and may constitute harassment if it unjustifiably neglects or file a motion and obtain a continuance. While defense counsel was ignores the legitimate interest of a fellow attorney.”4 away, the plaintiff’s trial counsel served two of defense counsel’s In Abandonato v. Coldren, the court cited Tenderloin to support clients with trial subpoenas that required them to appear as witnesses its holding that the trial court did not abuse its discretion in award- in an unrelated third-party action. Defense counsel had to obtain a ing sanctions based on persistent bad faith tactics.5 telephone hearing from London to quash the subpoenas and protect Sanctions in Tenderloin were based on the trial court’s finding that her clients’ interests. the appellant acted in bad faith, frivolously, and solely to harass the The plaintiff’s trial counsel never explained why he waited until respondent. No case or article citing Tenderloin mentions unavail- opposing counsel was in London to serve subpoenas in a case that ability, notices of unavailability, or any similar concept. was later dismissed by the plaintiff. Several days after defense coun- There is nothing in Tenderloin creating or discussing a legal con- sel’s departure, the plaintiff’s lawyer set three depositions for days he cept of unavailability. It does not discuss a notice of unavailability as knew to be the last two weekdays of defense counsel’s vacation. The a recognized legal document. Nor does Tenderloin or any other case plaintiff’s lawyer refused to continue the depositions. The defen- say a lawyer’s unavailability creates or abrogates legal rights, tolls dead- dants’ lawyer had to cut her vacation short and purchase a one-way lines, or has any other effect except when there is bad faith by a party ticket from London to San Francisco to safeguard her clients’ inter- (including, probably, the unavailable party). ■ ests. Upon arrival in San Francisco, she was informed by the plaintiff’s trial counsel that at least one of the depositions was canceled. 1 Tenderloin Housing Clinic, Inc. v. Sparks, 8 Cal. App. 4th 299 (1992). She also learned that, contrary to a written stipulation, the plaintiff’s 2 See, e.g., Gemini Aluminum Corp. v. California Custom Shapes, Inc., 95 Cal. App. counsel, in an attempt to cause a default by the defendant, had 4th 1249, 1262 (2002). 3 Abandonato v. Coldren, 41 Cal. App. 4th 264, 267-68 (1995); Wells Props. v. secretly moved forward a hearing to a date that required the defen- Popkin, 9 Cal. App. 4th 1053, 1058 (1992) (Sonenshine, J., dissenting). dants to file their opposition papers while their lawyer was sup- 4 Wells, 9 Cal. App. 4th at 1058 (Sonenshine, J., dissenting) (citing Tenderloin, 8 posed to still be in England. Cal. App. 4th at 306). Attorneys who say Tenderloin is about notices of unavailability 5 Abandonato, 41 Cal. App. 4th at 267 (citing Tenderloin, 8 Cal. App. 4th at 304). are misreading the case by taking the facts out of context. Tenderloin is not about unavailability, notices of unavailability, or any similar David Hazelkorn is not currently practicing law. He consults on litigation concept. And it certainly does not hold that such notices are talismans and trial strategy in Santa Ana.

92 Los Angeles Lawyer November 2005 WHITTIER LAW SCHOOL Dean Neil H. Cogan and the Faculty Are Pleased to Announce the Following Appointments:

Assistant Professor of Law Seval Yildirim B.A., Randolph-Macon Woman’s College, cum laude M.A., George Washington University LL.M., J.D., New York University School of Law Visiting Scholar, Hagop Kevorkian Center for Near Eastern Studies, New York University Associate, Sills Cummis Epstein & Gross Aftermath of a Revolution: A Case Study of Turkish Family Law, PACE INTERNATIONAL LAW REVIEW (Fall 2005) (forthcoming)

Assistant Professor of Law Martin H. Pritikin B.A., University of Southern California, Los Angeles, summa cum laude J.D., Harvard Law School, magna cum laude Editor, HARVARD LAW REVIEW Adjunct Coach, Bryne Trial Advocacy Program, Loyola Law School Litigation Associate, Quinn Emanuel Urquhart Oliver & Hedges, LLP Toward Coherence in Civil Conspiracy Law: A Proposal to Abolish the Agent’s Immunity Rule, NEBRASKA LAW REVIEW (FALL 2005) (forthcoming)

Acting Director, Center for International and Comparative Law Visiting Assistant Professor of Law David A. Kaye B.A., University of California at Berkeley J.D., Boalt Hall School of Law, University of California at Berkeley Deputy Legal Counselor, Embassy of the United States, The Hague, The Netherlands Adjunct Professor of Law, Georgetown University Law Center Adjudicating Self-Defense: Discretion, Perception and the Resort to Force in International Law, COLUMBIA JOURNAL OF TRANSNATIONAL LAW (FALL 2005) (forthcoming)

Visiting Assistant Professor of Law Michael Evans B.A., Duke University, magna cum laude J.D., Stanford Law School, Order of the Coif Member, STANFORD LAW REVIEW Law Clerk, Honorable Raymond C. Fisher, United States Court of Appeals, 9th Circuit Litigation Associate, Brancart & Brancart The Case for All-Female Health Clubs, 11 YALE J.L. & FEMINISM 307 (1999)

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