Crossing Borders The Public Defender’s

SE
IA
TO ES
E
S
ID
GU ES
L
UA TN
NN WI
RT
PE
M
EX
THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION
NOVEMBER 2013 / $4
PLUS
EARN MCLE CREDIT
Real Estate
in Probate
page 27
The Public
Defender’s
Centennial
page 68
CDA Protection
for ISPs
page 13
Limiting
Consumer
Class Actions
page 32
The iPad
at Trial
page 64
Crossing
Borders
Los Angeles lawyer Jeff Dasteel
and Natalia de la Parra Ferreiro
discuss the risks that foreign attorneys
face when representing clients in
arbitrations in California page 18
•
•
•
•
•
•
R i g o ro us st an d ard s
Ta i l o red se r vi c e
Prom p t t u rn aro u n d
Fre e i ni ti al c o n su lt at i o n s
Fre e res u m e bo o k
Rea s ona ble r at e s
L O C A L O F F I C E
Pro/Consul Inc.
1945 Palo Verde Avenue, Suite 200
Long Beach, CA 90815-3443
(562) 799-0116 • Fax (562) 799-8821
Hours of Operation: 6 a.m. - 6 p.m.
[email protected] • ExpertInfo.com
When there’s a lot to lose,
we have a lot to offer.
EXCLUSIVELY FAMILY LAW.
THE ONLY NETWORK AN ATTORNEY NEEDS
Your best referrals come from other lawyers.
We host business development meetings exclusively for attorneys.
With TEN, you can develop 50, 75, 100 or more of your peers
as effective referral sources.
Annual Membership: $450*
New Members: 10% Discount through November 30
Become a member today at: www.TENesquire.com
Discount Code: LALAW
Over 20 monthly meetings, including:
• Downtown LA
• Sherman Oaks
Specialty Groups
• Pasadena
• Encino
• 2 Women’s Groups
• Century City
• Woodland Hills
• Litigators Group
• Hollywood
• Westlake Village
• Wine Tasting Group
• Westwood
• Beverly Hills
• Business Lawyers
• Ventura
• Burbank
• New Lawyers Group
• Santa Clarita
• Tarzana
• Hiking Lawyers
• Glendale
• Golfing Lawyers
www.tenesquire.com
www.fb.com/tenesquire@esquirenetwork
* Members may attend any or all meetings subject to space availability by RSVPing to the moderator.
F E AT U R E S
18 Crossing Borders
BY JEFF DASTEEL AND NATALIA DE LA PARRA FERREIRO
Foreign attorneys who represent parties in arbitrations in California risk criminal
liability and nonpayment of fees
27 The Properties of Preemption
BY RICHARD S. CONN
The Probate Code’s mechanism for notice to creditors may provide protection
against federal preemption
Plus: Earn MCLE credit. MCLE Test No. 229 appears on page 29.
32 Questionable Classes
BY KENNETH K. LEE
California attorneys defending against dubious consumer class actions may
seek removal to federal court
39 Special Section
Semiannual Guide to Expert Witnesses
Los Angeles Lawyer
D E PA RT M E N T S
the magazine of
the Los Angeles County
Bar Association
November 2013
9 Barristers Tips
Strategies for success in professional
networking
64 Computer Counselor
How to use an iPad to manage and
present trial exhibits
BY TIFFANY J. HOWARD
BY HEATHER E. STERN
10 Practice Tips
The fraud exception to the parol evidence
rule after Riverisland
68 Closing Argument
Honoring 100 years of the Los Angeles
public defender
BY RYAN J. BARNCASTLE AND KENNETH E. MOORE
BY ALAN H. SIMON
13 Practice Tips
The CDA as a safe harbor for interactive
computer service providers
66 Index to Advertisers
Volume 36, No. 8
COVER PHOTOGRAPH:
TOM KELLER
BY SHELLY ROSENFELD
LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly,
except for a combined issue in July/August, by the Los Angeles
County Bar Association, 1055 West 7th Street, Suite 2700,
Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid
at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership
dues. Nonmember subscriptions: $28 annually; single copy
price: $4 plus handling. Address changes must be submitted
six weeks in advance of next issue date. POSTMASTER: Address
Service Requested. Send address changes to Los Angeles
Lawyer, P. O. Box 55020, Los Angeles CA 90055.
67 CLE Preview
Judge Michael D. Marcus (Ret.)
• “Daily Journal” Top 50 California Neutrals
2007, 2009, 2010, 2011 & 2012
• Super Lawyer, Dipute Resolution 2008-2013
VISIT US ON THE INTERNET AT www.lacba.org/lalawyer
E-MAIL CAN BE SENT TO [email protected]
EDITORIAL BOARD
Chair
Available to Mediate, Artitrate & Referee Disputes
Including:
• Employment
• Legal Malpractice
• Business/commerican
• Real Property
• Person Injury
• Medical Malpractice
Century City | Downtown LA | Orange County
(310) 201-0010 [email protected]
www.marcusmediation.com
AMERICAN LANGUAGE SERVICES
TRANSLATING & INTERPRETING ALL LANGUAGES
CERTIFIED PROFESSIONALS
LEGAL
CORPORATE
TRANSCRIPTIONS
EXPERT WITNESS TESTIMONY
NATIONWIDE OFFICES
WORLDWIDE COVERAGE
Making the World a Little Smaller
ESTABLISHED 1985 ~ EXCELLENT RATES
DINA SPEVACK 310.829.0741 x 303 800.951.5020 alsglobal.net
PAUL S. MARKS
Articles Coordinator
MARY E. KELLY
JERROLD ABELES (PAST CHAIR)
K. LUCY ATWOOD
ETHEL W. BENNETT
SCOTT BOYER
ERIC BROWN
CAROLINE BUSSIN
PATRICIA H. COMBS
CHAD C. COOMBS (PAST CHAIR)
HON. MICHELLE WILLIAMS COURT
ELIZABETH L. CROOKE
BEN M. DAVIDSON
GORDON K. ENG
DONNA FORD
STUART R. FRAENKEL
CHRISTY GARGALIS
MICHAEL A. GEIBELSON (PAST CHAIR)
CHRISTINE D. GILLE
SHARON GLANCZ
TED M. HANDEL
JEFFREY A. HARTWICK
STEVEN HECHT (PAST CHAIR)
JOSHUA S. HODAS
JOHN C. KEITH
ERIC KINGSLEY
KATHERINE KINSEY
JENNIFER W LELAND
STEPHANIE LEWIS
SANDRA MENDELL
AMY MESSIGIAN
MICHELLE MICHAELS
COMM. ELIZABETH MUNISOGLU
PAUL OBICO
CARMELA PAGAY
AMANDA PAWLYK
DENNIS L. PEREZ (IMMEDIATE PAST CHAIR)
GREGG A. RAPOPORT
GARY RASKIN (PAST CHAIR)
JACQUELINE M. REAL-SALAS (PAST CHAIR)
A. JOEL RICHLIN
DAVID SCHNIDER (PAST CHAIR)
NANCY L. SCHROEDER
STEVEN SCHWARTZ
HEATHER STERN
KENNETH W. SWENSON (PAST CHAIR)
MATTHEW D. TAGGART
DAMON THAYER
THOMAS H. VIDAL
ALEX M. WEINGARTEN
STAFF
Publisher and Editor (in memoriam)
SAMUEL LIPSMAN
Editor
ERIC HOWARD
Art Director
LES SECHLER
Director of Design and Production
PATRICE HUGHES
Advertising Director
LINDA BEKAS
Administrative Coordinator
MATTY JALLOW BABY
Copyright © 2013 by the Los Angeles County Bar Association. All rights
reserved. Reproduction in whole or in part without permission is
prohibited. Printed by R. R. Donnelley, Liberty, MO. Member Business
Publications Audit of Circulation (BPA).
The opinions and positions stated in signed material are those of
the authors and not by the fact of publication necessarily those of the
Association or its members. All manuscripts are carefully considered by
the Editorial Board. Letters to the editor are subject to editing.
4 Los Angeles Lawyer November 2013
OF
FFIC E S
L AW O
IES S EL
R
T
.
F
N NS E P RACT IC
ALIS O
EF E
INAL D
W. C OM
A CRIM
IE S S L L A
IS ON T R
L
A
.
W
WW
3
990-2 03
18)
ONE (8
5 31
T ELEP H
8) 990-5
81
(
E
IL
F A C S IM
300
S U IT E
VARD,
B OU LE
A
R
U
T
EN
15 300 V
91403
K S , CA
AN OA
M
R
S HE
1 0 ,2 0 1 3
F eb ru ary
st ri k e
rder, t h i rd t o
u
m
n
i
g
n
p ec i ali z i
b le asset
n i nv alu a
at t orney s
a
e
s
n
e
n
e
fe
b
e
e
d
c ri m i nal
rap h s h av
o’ s p olyg
sl. I am a
s
rc
e
a
ri
m
T
i
r
n
T
o
i s Ali s
t , J ac k
ri ng h er
M y nam e es. Wi t h ou t a dou b
of m u rde
s
d
a
e
c
s
u
g
c
c
ru
a
and d
ent al i n
h o was
c e.
as i nst ru m
oodm an w
w
G
h
s
p
i
o
ra
L
g
m y p rac t i
l
es.
oly
c ia
t h e c h arg
m arc o’ s p
enni s offi
ll
ri
T
a
T
f
A
k
o
T
c
l
S
a
a
J
s
U
ed
m e and
a di sm i s
rep resent
su lt ed i n
m i t t h e c ri
re
m
inth e
o
h
c
I rec ent ly
c
i
t
h
o
n
w
one nam e
rney
e di d
o
h
t
ly
t
S
n
.
A
o
d
t
s
c
n
i
a
ri
t
b
h u s
eD is
rap h , t h ere and ex p eri enc e i s
ns wi t h t h
e a p olyg
k
a
t
sm ,
t
n
neg ot i at i o
e
li
ys ali k e.
eac
fessi onali
v
ro
a
p
h
,
o
y
t
t
se at t orne
r
n
li
i
e
fe
b
h
i
t
e
d
e
d
h
re
d
c
w
n
er
lev el of
c u t ors a
r I c onsi d
is
t of p rose
arc o. H i s
c
m
e
p
ri
Wh enev e
s
T
. N ot only
re
k
m
c
e
i
a
h
h
J
t
–
re
rs
e
o
n
d
o
rn
i
a
t
and g a
di c at ed
ly p u t , I
c onv ersa
ork i ng , de
and si m p
i n t h e fi eld
w
d
rs
rd
a
le
a
e
e
h
y
ll
a
e
ra
s
a
u np
v er t welv
ith .H ei
arc o for o leasu re t o work w
m
ri
T
r.
M
ri t y.
b solu t e p
rk ed wi t h
and i nt eg
h e i s an a
s
,
n
I h av e wo
o
ld
i
e
t
a
fi
c
e
fi
h
st i n t
ed q u ali
h eth eb e
nq u est i on
u
h
t
i
w
l
a
n
p rofessi o
T o wh om
nc ern,
i t m ay c o
Warm
reg ards,
essl
Ali son T ri
JACK TRIMARCO
POLYGRAPH, INC.
When you need to impress someone with the truth...
JACK TRIMARCO
CA P.I. # 20970
Former Polygraph Unit Chief, F.B.I. - Los Angeles (1990-1998)
Former Dept. of Energy Inspector General - Polygraph Program (1999-2001)
9454 Wilshire Blvd., 6th Floor
Beverly Hills, CA 90212
(310) 247-2637
[email protected]
JACK TRIMARCO
& ASSOCIATES
www.jacktrimarco.com
A proud member of the Los Angeles County Bar Association
Los Angeles Lawyer November 2013 5
Law Firms 4 Sale
Want to retire? Want to plan
for your life after law!
See Ed Poll’s website
www.lawbiz.com for the tools
you need to make a transition.
Want to buy a practice?
Ed can help!
Call today 800.837.5880
We Collect Attorney Fee
Judgments
ZERO COSTS and ZERO RISK and
We only get paid if we collect!
Buffer yourself from State Bar Complaints and
free up your time to do what you do best.
Call us at 213-986-6020 or visit our website at
www.tjjudgments.com to learn more.
LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION
OF THE LOS ANGELES COUNTY BAR ASSOCIATION
1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553
Telephone 213.627.2727 / www.lacba.org
LACBA OFFICERS
President
PATRICIA EGAN DAEHNKE
President-Elect
LINDA L. CURTIS
Senior Vice President
PAUL R. KIESEL
Vice President
MARGARET P. STEVENS
Treasurer
MICHAEL K. LINDSEY
Assistant Vice President
BRIAN S. CURREY
Assistant Vice President
CHRISTINE C. GOODMAN
Assistant Vice President
SAJAN KASHYAP
Immediate Past President
RICHARD J. BURDGE JR.
Chief Executive Officer/Secretary
SALLY SUCHIL
Associate Executive Director/Chief Financial Officer
BRUCE BERRA
Associate Executive Director/General Counsel
W. CLARK BROWN
BOARD OF TRUSTEES
HARRY W. R. CHAMBERLAIN
BRIAN K. CONDON
DUNCAN W. CRABTREE-IRELAND
DANIEL M. CROWLEY
REBECCA A. DELFINO
ANTHONY DE LOS REYES
HOWARD S. FISHER
RICHARD B. GOETZ
JACQUELINE J. HARDING
MARK A. KRESSEL
DEVON MYERS
JUAN A. RAMOS
DAVID K. REINERT
DIANA K. RODGERS
JENNIFER S. ROMANO
HARVEY I. SAFERSTEIN
SUSAN KOEHLER SULLIVAN
TERESA TRACY SULLIVAN
BRENDA E. SUTTON-WILLS
DAVID A. TILEM
AFFILIATED BAR ASSOCIATIONS
BEVERLY HILLS BAR ASSOCIATION
CENTURY CITY BAR ASSOCIATION
CULVER MARINA BAR ASSOCIATION
GLENDALE BAR ASSOCIATION
IRANIAN AMERICAN LAWYERS ASSOCIATION
ITALIAN AMERICAN LAWYERS ASSOCIATION
JAPANESE AMERICAN BAR ASSOCIATION
JOHN M. LANGSTON BAR ASSOCIATION
KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA
LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES
MEXICAN AMERICAN BAR ASSOCIATION
PASADENA BAR ASSOCIATION
SAN FERNANDO VALLEY BAR ASSOCIATION
SAN GABRIEL VALLEY BAR ASSOCIATION
SANTA CLARITA VALLEY BAR ASSOCIATION
SANTA MONICA BAR ASSOCIATION
SOUTH BAY BAR ASSOCIATION
SOUTHEAST DISTRICT BAR ASSOCIATION
SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION
WHITTIER BAR ASSOCIATION
WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
6 Los Angeles Lawyer November 2013
ADR FOR THE WORLD’S
MOST INTRACTABLE
DISPUTES
BUSINESS • EMPLOYMENT • INTELLECTUAL PROPERTY
FRANCHISE • INTERNATIONAL
DEEP Subject Matter Knowledge
EFFICIENT Party Driven Process
FIERCELY Fair and Impartial
SUPERB Judicial Temperament
“...Holmes is unsurpassed at customizing the
parties' chosen resolution process to ensure speed,
economy and justice”—Russell Fransen, Esq.,
The Business Legal Group
• Large Complex Case Panel, American Arbitration
Association (AAA) National Roster of Neutrals
• International Panel, International Center for
Dispute Resolution (ICDR)
• Board of Directors, College of Commercial
Arbitrators (CCA)
• Board of Directors, California Dispute Resolution
Council (CDRC)
• Mediation Practice Director, Resolute Systems,
LLC
• Fellow, California Academy of Distinguished
Neutrals
• President and Executive Director, Neutrals
Diversity Aliance
THE HOLMES LAW FIRM
To schedule your Mediation, Arbitration or other
ADR process with Reg Holmes, please contact:
For American Arbitration Association
administered matters: Michael R. Powell
([email protected])
A
t the approach of the holiday season, it is fitting that
we lawyers consider the legal aspects of holidays in
California. California law relating to holidays is a
patchwork codified in the Civil Code, the Code of Civil Procedure, and the Government Code. Government Code 6700
lists the official holidays in California, Code of Civil Procedure Section 135 lists the
“judicial” holidays, and Civil Code Sections 12a and 12b relate to how holidays are
considered when computing time for legal acts. The law has its quirks. For example,
while Sections 135 and 12a treat all of Saturday as a holiday, under the Government
Code Saturday is a holiday only from noon to midnight. Good Friday is also listed
as an official state holiday under Government Code 6700, but only from noon to 3
P.M. Strangely, under Civil Code Section 7.1(o) banks get to treat Good Friday as a
holiday from noon to closing—yet another instance of the legislature’s currying favor
with powerful financial interests. Perhaps the issue is moot, since back in 1976 in Mandel
v. Hodges, the California appellate court ruled that treating Good Friday as a holiday was unconstitutional as an excessive entanglement with religion. Still, one wonders why Good Friday remains listed as an official holiday since Government Code
Section 6700 and Civil Code Section 7.1 have been amended in other respects after
Mandel, but no one deleted “Good Friday.” In case you were wondering, Christmas
gets a pass as a legally recognized holiday since, as the U.S. Supreme Court stated in
Lynch v. Donnelly, the holiday “contains both secular and sectarian elements.”
Martin Luther King Day has its quirks too. Government Code Section 6700(c) makes
the third Monday in January the official state holiday—this year, it was January 21.
But Government Code Section 6709 requires the governor to proclaim every January
15 as Dr. Martin Luther King, Jr., Day. So, most years we will get two King days, unless
the third Monday in January of a particular year happens to be January 15.
The Government Code requires the governor to make proclamations for other
days that are not quite legal holidays. These days of commemoration reveal conflicting visions of who we are as a people. For example, September 28 of each year
is Cabrillo Day in California. Juan Rodriguez Cabrillo was the first European to lay
eyes on San Diego harbor. Some—including the Library of Congress Web site—say
he “discovered” California. Before that, he was one of Cortez’s conquistadors.
However, Friar Bartolome de las Casas, who witnessed and chronicled the early years
of Spanish colonization of Central America and strove to end the abuse of natives,
wrote of Cabrillo that “he broke up homes,” taking the indigenous women and girls
and “giving them to the soldiers and sailors in order to keep them satisfied and to
bring them into his fleet.” Ironically, the day before Cabrillo Day this year was Native
American Day in California, a day of commemoration mandated by Government
Code Section 6712. Some California legislators want to replace Columbus Day—
an official California holiday every second Monday in October—with Native
American Day, yet Cabrillo Day remains intact.
California’s newest day of commemoration, first proclaimed by Governor Arnold
Schwarzenegger in 2010, is Ed Roberts Day. If you are unsure who Ed Roberts was,
I would urge you to look him up. I think you will agree that his life is worthy of commemoration.
■
For independently administrated matters:
[email protected]
For Resolute Systems, LLC administered matters:
Mike Weinzerl ([email protected]
1.877.FAIR.ADR (1.877.324.7237)
www.theholmeslawfirm.com
California • Chicagoland • New York Metro • Atlanta
8 Los Angeles Lawyer November 2013
Paul S. Marks is the chair of the Editorial Board of Los Angeles Lawyer magazine and a partner with Neufeld Marks, a boutique law firm located in Little Tokyo. He serves as a commissioner on the California Commission on Access to Justice.
barristers tips
BY TIFFANY J. HOWARD
Strategies for Success in Professional Networking
WHETHER A LIFE-OF-THE-PARTY extrovert or a couch potato intro- ular post, it is helpful to enter the recipient’s information into your
vert, everyone would like to know how to take the work out of net- contact list and to include a photo to keep your memory of the perworking. Since it continues to be one of the best means to obtain clients son fresh. Use the Internet to find photographs. Nearly every lawyer
and referrals, however, networking remains vitally important to new has a page or something similar on a Web site that comes with a photo.
and experienced attorneys alike. A step-by-step strategy is advanta- Microsoft Outlook has a photo box with which you can attach the
geous to preparing a case for trial or undertaking a corporate merger, photo to the contact. This procedure makes it much easier to remember faces and names, and a photo serves to identify the person later
and it can make networking look easy, even if it still takes work.
When at a gathering, the first step is to find people who are when you reach out to him or her again. As a third step, before the
alone. Even if one enjoys approaching and talking to small groups of next gathering, when it is important to remember names, review a conpeople, it is much easier to relate with one person than with two or tact list with photos. This will help to avoid the embarrassing situamore. A basketball analogy may help. When
passing, it is counterproductive to throw the
ball to a teammate who is guarded by opposWhether you are referring an expert witness or a plumber, help
ing players. Finding the open player—or in
this case, the open lawyer—tends to achieve
greater success. It is less challenging to engage
people make connections. Establish relationships among your
in conversation with one person at a time.
Even if one enjoys juggling dialogue with multiple people, talking to one person allows for
friends, family, and coworkers. Any time you hear someone say,
a more focused discussion. This can be preferable to dividing one’s attention among several
people, or worse, competing for attention.
“I need a…” be prepared to seize the opportunity to assist.
Once engaged in conversation, start with the
fundamentals. Make an introduction and mention the name of the firm for which you work.
After that, ask where the other person works and in what area of law tion of having to look at a person’s name tag or ask again for somehe or she specializes. Make small talk. This is not a deposition or a one’s name.
witness interview, but it is nonetheless a good opportunity to obtain
basic personal and professional information. Sometimes, after exchang- Everyday Networking
ing the initial pleasantries, it may be difficult to know in which Networking does not need to occur only within the confines of
direction to take the conversation, but because networking is about preestablished events. Whether you are referring an expert witness or
building relationships, it is important to remain genuine. Therefore, a plumber, help people make connections. Establish relationships
if the other person happens to mention anything that piques an among your friends, family, and coworkers. Any time you hear someinterest, start a discussion about that topic. From a hobby to children, one say, “I need a…” be prepared to seize the opportunity to assist.
most people have a subject that they like to discuss. It helps to ask Your associates will come to you as a trusted wealth of knowledge,
open-ended questions since these tend to elicit more information and possibly they will recommend you as an attorney within their own
about the other person than yes-no questions. When parting, it is network. On a similar note, strike up a conversation with the person
important to remember to exchange business cards.
in front of you in line at the grocery store. Or the next time you dine
As a second step, once the other person’s basic information is in at a restaurant alone, sit at the counter in order to talk to the person
hand, follow up with an e-mail. In the message, try to include a spe- next to you. A valuable contact or client could materialize out of even
cific detail from the initial conversation. Precise particulars will turn the most random conversation.
the e-mail from an exercise in how to copy and paste into a personal
With a plan in mind, networking can become a pleasurable and
contact. Send an e-mail immediately after the event or first thing the profitable experience. Every new contact may have a client, colnext morning. Reaching out right away makes the right impression. league, or associate who needs a lawyer who specializes in your field
To make an especially good impression, it can be preferable to send of law. Alternatively, the contact may have expertise that can contribute
a handwritten note rather than e-mail. Taking the time to prepare a to your practice. Whatever one’s age or experience, networking is indiscommunication by hand always demonstrates greater consideration. pensable for obtaining new business.
■
The recipient will remember someone better after receiving a personal
note card in the mail.
Tiffany J. Howard is an associate at Kiesel Law in Beverly Hills, where she
After establishing a first written contact, either by e-mail or reg- focuses on class actions and litigating wrongful death cases.
Los Angeles Lawyer November 2013 9
practice tips
BY RYAN J. BARNCASTLE AND KENNETH E. MOORE
The Fraud Exception to the Parol Evidence Rule after Riverisland
THE PAROL EVIDENCE RULE, subject to certain exceptions, limits the
interpretation of a contract to its “four corners” and excludes such
extrinsic evidence as oral statements that conflict with the terms of the
signed writing. The parol evidence rule and its exceptions are codified
in California in Code of Civil Procedure section 1856. One well-established exception is fraud in the inducement of the agreement, but in 1935
the California Supreme Court, in Bank of America v. Pendergrass,1 held
that the alleged false promise was inadmissible if it was directly at variance with what was in the written contract. Since then, with regard to
allegations of false promises, parties to written contracts have been able
to rely on the signed agreement as a defense. However, earlier this year
the supreme court reversed course and retired the Pendergrass rule.
The court’s decision in Riverisland Cold Storage, Inc. v. FresnoMadera Production Credit Association2 overruled this long-standing
principle of law and may not only increase and prolong litigation but
also may reshape the procedures for entering into valid and enforceable written agreements. By overruling Pendergrass, the supreme
court opened the door to challenges of written contracts with evidence
of oral statements that conflict with the promises of performance set
forth in the executed agreements. The significance of Riverisland
is corroborated by the subsequent court of appeal decision in Julius
Castle Restaurant, Inc. v. James Frederick Payne,3 which gave
Riverisland an expansive interpretation. From a transactional standpoint, henceforth, parties that enter into sophisticated contractual
arrangements need to exercise greater caution in executing agreements.
From a litigation standpoint, Riverisland and its progeny will tend
to make it harder to dispose of fraud claims on the pleadings. The
two cases do explicitly leave the door open to pretrial challenges to
a plaintiff’s justifiable reliance on promises that are at odds with those
stated in the written contract, but it is nonetheless hard to underestimate the possible impact the two cases will have on the formation
and enforcement of contracts in California.
RICHARD EWING
The Parol Evidence Rule
The parol evidence rule prohibits the introduction of any extrinsic evidence to alter, vary, or add to the terms of a written agreement.4 Under
the rule, the terms of a writing intended by the parties as a final and
integrated expression of their agreement cannot be contradicted by
extrinsic evidence, including prior oral statements or contemporaneous
oral agreements.5 The rule is a longstanding, well-known principle
that promotes fairness and predictability by encouraging parties to
specify the entirety of their agreements in writing.6 As the court in
Riverisland stated, “[W]hen the parties put all the terms of their agreement in writing, the writing becomes the agreement, and the written
terms supersede statements made during negotiations.”7 The parol
evidence rule “is based on the assumption that written evidence is more
accurate than human memory and the fear that fraud or unintentional
invention by witnesses interested in the outcome of the litigation will
mislead the finder of facts.”8 Moreover, by limiting a dispute to the
applicable written agreement, California courts benefit from reduced
10 Los Angeles Lawyer November 2013
litigation. As the supreme court has noted, the parol evidence rule also
protects the integrity of written contracts by making their terms the
exclusive evidence of the parties’ agreement.9
Nevertheless, the parol evidence rule does not always exclude
extrinsic evidence, including oral agreements. Specifically, Code of Civil
Procedure Section 1856(f) states that “where the validity of the agreement is the fact in dispute, this section does not exclude evidence relevant to that issue.”10 As the Riverisland court noted, “This provision
rests on the principle that the parol evidence rule, intended to protect
the terms of a valid written contract, should not bar evidence challenging the validity of the agreement itself.”11 The court added,
“Evidence to prove that the instrument is void or voidable for mistake,
fraud, duress, undue influence, illegality, alteration, lack of consideration, or another invalidating cause is admissible as such evidence. This
evidence does not contradict the terms of an effective integration,
because it shows that a purported instrument has no legal effect.”12
It is an established exception to the parol evidence rule that a party
Ryan J. Barncastle and Kenneth E. Moore are partners with Stuart|Moore, a
transactional law firm that specializes in the representation of financial
institutions, real estate businesses, emerging growth companies, and private
equity investment firms.
may present extrinsic evidence to show that
the agreement was tainted by fraud. 13
However, despite this broad categorical exception, Pendergrass restricted for nearly 80 years
the applicability of the fraud exception to
cases of alleged promissory fraud—that is,
cases in which the alleged misrepresentation
is not of an existing fact but instead a promise
to act (or refrain from acting) in a certain
way in the future.
Pendergrass
The court in Pendergrass restricted the applicability of the fraud exception as a means to
introduce extrinsic evidence by holding that
“evidence offered to prove fraud must tend
to establish some independent fact or representation, some fraud in the procurement of
the instrument or some breach of confidence
concerning its use, and not a promise directly
at variance with the promise of the writing.”14 Thus, according to the Pendergrass
court, evidence of promissory fraud based
on oral agreements that conflicted with the
terms of the written agreement was not admissible under the fraud exception to the parol
evidence rule. This restriction, while not
directly overturned, was attacked and criticized by many California courts.15 As the
court in Riverisland noted, “The primary
ground of attack on Pendergrass has been that
it is inconsistent with the broad principle,
reflected in Code of Civil Procedure Section
1856, that a contract may be invalidated by
a showing of fraud.”16 Another court has
observed that “One noted impact of the
Pendergrass holding was that the parol evidence rule effectively immunized against liability for both prior and contemporaneous
statements at variance with the written contract, and it implied that the alleged wrongdoer is innocent of fraud.”17 In overruling
Pendergrass, the court in Riverisland abandoned this strict limitation.
Riverisland
In Riverisland, the plaintiffs defaulted under
the terms of a loan obtained from defendant
Fresno-Madera Production Credit Association (FMPCA).18 The plaintiffs and FMPCA
agreed to a forbearance agreement whereby
FMPCA agreed that it would refrain from
taking enforcement action for three
months.19 In exchange, the plaintiffs agreed
to make payments and pledged eight separate parcels of real property as additional
collateral. The plaintiffs initialed pages bearing the legal description of each piece of
property that was being pledged; however,
the plaintiffs did not read the agreement
but simply signed it at the locations tabbed
for signature. The plaintiffs alleged that
they did not know that the document they
were signing contained terms that differed
from the terms that they had discussed with
FMPCA’s executives.20
The plaintiffs alleged that FMPCA’s vice
president met with them two weeks prior
to the execution of the agreement and told
them that FMPCA would extend the loan
agreement for two years and that two pieces
of property were all that was needed for
collateral. Moreover, the plaintiffs alleged
that these assurances were repeated at the
execution of the forbearance agreement.
Although the plaintiffs defaulted under the
terms of the forbearance agreement, causing
FMPCA to initiate foreclosure proceedings,
they ultimately repaid the loan, and FMPCA
dismissed the foreclosure action. Despite
this resolution, the alleged misrepresentations of FMPCA’s officer concerning the terms
of the agreement were the basis for the plaintiffs’ action for fraud and negligent misrepresentation.21
FMPCA moved for summary judgment,
arguing that any evidence contrary to the
terms of the written agreement was to be
excluded pursuant to the parol evidence
rule.22 The trial court agreed and, citing
Pendergrass, ruled that the fraud exception
to the parol evidence rule does not allow
parol evidence of promises that are at odds
with the terms of the written agreement.23
The court of appeal reversed, and the
supreme court affirmed the reversal, referring to Pendergrass as an “aberration” and
stating that such a restriction on the fraud
exception was inconsistent with the statute
and settled case law.24
The court noted that “although a written
instrument may supersede prior negotiations
and understandings leading up to it, fraud
may always be shown to defeat the effect of
an agreement.”25 In overturning Pendergrass,
the Riversland court added that Pendergrass
“failed to account for the fundamental principle that fraud undermines the essential
validity of the parties’ agreement.”26 The
court continued, “When fraud is proven, it
cannot be maintained that the parties freely
entered into an agreement reflecting a meeting of the minds.”27 In affirming the court of
appeal’s reversal of a summary judgment
based on the exclusion of the oral statements
by FMPCA’s representatives, the court opined,
“the parol evidence rule should not be used
as a shield to prevent the proof of fraud.”28
Thus, it is now established law in California
that, even in cases of promissory fraud, extrinsic evidence that differs from the terms of a
written agreement may be admitted to support a cause of action for fraud.
Riverisland is a recent case that has not yet
been widely cited by other courts. Nevertheless, in Julius Castle Restaurant the court
of appeal affirmed a trial court’s admission of
parol evidence in connection with alleged
fraud relating to a lease agreement, citing
Riverisland.29 Specifically, the court noted
that Riverisland established that oral statements that conflicted with the lease terms
were admissible under the statutory exception
for fraud found in Section 1856(g).30 The
court in Julius Castle Restaurant looked back
to the Riverisland decision and provided
more direction for parties making contracts
in a post-Riverisland world.31
The Julius Castle Restaurant court
rejected claims by the defendants that Riverisland requires that the circumstances of
each case and the bargaining power and
sophistication of the parties to be considered
in determining whether or not to admit
extrinsic evidence concerning fraud.32 In deciding not to limit the application of Riverisland by excluding sophisticated parties
the court observed, “[O]ur high court sought
the opposite result, namely, to create certainty and consistency by eliminating altogether the judicially created exception to
section 1856, subdivision (g).”33 The court
similarly rejected the notion that Riverisland
should only be applied to “contracts of adhesion where there is a disparity in bargaining
power,” stating that the Riverisland court
“did not limit its holding to contracts of
adhesion and we decline to read such a limitation into the decision.” In short, the court
was clear and adamant in declining “to carve
out an exception to the Riverisland holding
that the court itself did not endorse.”34
While the court declined to carve out
exceptions, it did provide some guidance to
those seeking to dispose of claims that previously would have been subject to the
Pendergrass rule. The key, the court indicated, lies in “addressing the heightened burden of proving fraud in a civil action” and,
in particular, in focusing on the “justifiable
reliance element of fraud.” As the court
stated, “Among the questions to ask are:
What are the plausible reasons for the alleged
discrepancy between the claimed oral
promises and the signed writing? Is there
compatibility between the oral representations and the written document? What is the
evidence relating to whether the document
was read and considered before signing?”35
Since these questions generally implicate
issues of fact, pretrial battles over promissory
fraud claims that once would have been subject to Pendergrass will likely shift from
pleadings to summary judgment.
After Riverisland
As a result of Riverisland and its progeny,
companies that routinely enter into commercial contracts with their customers, vendors, clients, and strategic partners must be
more careful than before. Precontractual
negotiations, discussions, and other oral stateLos Angeles Lawyer November 2013 11
ments are made in connection with all written agreements. The key to making deals
after Riverisland is to ensure that the terms
of the arrangement are documented in a written contract that is the complete integration
of the agreement and that there is no need to
introduce oral statements or other extrinsic
evidence.
Practitioners with clients seeking to avoid
fallout from Riverisland ought to advise them
to take significant steps to avoid misunderstandings, confusion, and ambiguity regarding deal terms, thereby decreasing the risk that
a court may undercut the enforceability of a
written contract. To mitigate risk, it is rec-
ommended that attorneys and clients take
the following precautionary measures: 1)
develop a systematic process with respect to
preparing written agreements to document
and accurately reflect deal terms, 2) limit the
number of company representatives that are
responsible for explaining and discussing
agreements with customers, 3) provide all
parties with multiple opportunities for consultation with professional advisers and
include written representations in the agreement to that effect, 4) provide the client or
customer with execution versions of all written contracts well in advance of any scheduled
signings, 5) avoid “take it or leave it” sales
pressure tactics, 6) require that key contract
provisions be initialed, 7) be sure that all
contract agreement provisions clearly represent the terms of the deal, 8) include a clear
and understandable discussion of an integration clause that puts the other party on
notice that the written contract constitutes the
final terms of the deal and that prior oral discussions that may conflict with the terms of
the written document are not a part of the
final agreement, 9) to the extent resources
allow, have more than one employee present
during all contract discussions and negotiations, and 10) strenuously advise that all parties read the written contract. These precautionary measures, if properly implemented,
will provide clients with added reassurance
that they can rely on the terms of their written agreements.
■
1 Bank
of Am.v. Pendergrass, 4 Cal. 2d 258 (1935).
Riverisland Cold Storage, Inc. v. Fresno-Madera
Prod. Credit Ass’n, 55 Cal. 4th 1169 (2013).
3 Julius Castle Rest., Inc., et al. v. James Frederick
Payne, et al., 216 Cal. App. 4th 1423 (2013).
4 Id. at 1439 (citing Casa Herrera, Inc. v. Beydoun, 32
Cal. 4th 336, 343 (2004)).
5 Julius Castle, 216 Cal. App. 4th at 1439 (citing Singh
v. Southland Stone, U.S.A., Inc., 186 Cal. App. 4th 338,
352 (2010)).
6 Julius Castle, 216 Cal. App. 4th at 1439.
7 Riverisland, 55 Cal. 4th at 1174.
8 Julius Castle, 216 Cal. App. 4th at 1439.
9 Riverisland, 55 Cal. 4th at 1171-72.
10 See CODE CIV. PROC. §1856(f).
11 Riverisland, 55 Cal. 4th at 1174 (emphasis in original).
12 Id. at 1174-75 (citing 2 WITKIN, CAL. EVIDENCE
§97, DOCUMENTARY EVIDENCE 242 (5th ed. 2012)).
13 Riverisland, 55 Cal. 4th at 1172; CODE CIV. PROC.
§1856(g).
14 Riverisland, 55 Cal. 4th at 1172 (citing Bank of
Am.v. Pendergrass, 4 Cal. 2d 258, 263 (1935)).
15 Riverisland, 55 Cal. 4th at 1172, 1176-77.
16 Id. at 1176.
17 Julius Castle, 216 Cal. App. 4th at 1440 (citing
Casa Herrera, Inc. v. Beydoun, 32 Cal. 4th 336, 347
(2004)) (emphasis in original).
18 Riverisland, 55 Cal. 4th at 1172.
19 Id. at 1172-73.
20 Id. at 1173.
21 Id.
22 Id.
23 Id. (citing Bank of Am.v. Pendergrass, 4 Cal. 2d 258,
258 (1935)).
24 Riverisland Cold Storage, Inc. v. Fresno-Madera
Prod. Credit Ass’n, 55 Cal. 4th 1169, 1181-82 (2013).
25 Id. at 1181 (citing Fleury v. Ramacciotti, 8 Cal. 2d
660, 662 (1937)).
26 Riverisland, 55 Cal. 4th at 1182.
27 Id.
28 Id. at 1182 (citing Ferguson v. Koch, 204 Cal. 342,
347 (1928)).
29 Julius Castle Rest., Inc., et al. v. James Frederick
Payne, et al., 216 Cal. App. 4th 1423, 1439-40, 1441
(2013).
30 Id. at 1439-40.
31 Id. at 1441.
32 Id.
33 Id. at 1442.
34 Id.
35 Id.
2
Have You Heard?
DOUBLETREE HAS A NEW STATE OF THE ART WAR ROOM
Now you can achieve a new level of comfort and productivity at the DoubleTree By Hilton Los
Angeles Downtown. Our state of the art new venue is the ideal spot for everything from depositions
to war rooms to board meetings. Featuring high tech tools to ease the work at hand and a
welcoming ambiance at an all inclusive price. Make your reservation by December 31, 2013 and
earn Triple Hilton HHonors points.
Where the little things mean everything.™
DOUBLETREE BY HILTON LOS ANGELES DOWNTOWN
120 South Los Angeles Street, CA 90012 T (213) 629 1200
LosAngelesDowntown.DoubleTree.com
Restrictions may apply. May not be combined with any other offer. Hilton HHonors membership, earning of Points & Miles and redemption of
points are subject to HHonors Terms and Conditions. ©2013 Hilton Worldwide.
12 Los Angeles Lawyer November 2013
practice tips
BY SHELLY ROSENFELD
The CDA as a Safe Harbor for Interactive Computer Service Providers
WHEN CECILIA BARNES BROKE UP WITH HER BOYFRIEND, he went
“post-all,” posting Barnes’s personal information, including nude photos, in Yahoo profiles that he created without her permission. As the
court in Barnes v. Yahoo! observed, “The profiles contained…solicitation…to engage in sexual intercourse.”1 “The ex-boyfriend then
conducted discussions in Yahoo’s online ‘chat rooms,’ posing as
Barnes and directing male correspondents to the fraudulent profiles
he had created.”2 The profiles included Barnes’s contact information,
including her work address and phone number. “Before long, men
whom Barnes did not know were peppering her office with emails,
phone calls, and personal visits, all in the expectation of sex.”3
In this situation, Section 230 of the Communications Decency Act
(CDA) would protect Yahoo from having to remove the content.4 The
CDA protects interactive computer services such as Yahoo from liability when they publish a third party’s statements. The act establishes
that interactive computer services providers are immune from liability
regarding information provided to them by third parties.5
In April 2013, a false tweet from a hacked Associated Press Twitter
account stated that the White House had been attacked and the president was injured.6 This actually led to a dip in the stock market.7 A
Pew Research Center report found that a quarter of Americans and
more than half of 18- to 29-year-olds got their news about the April
2013 Boston Marathon Bombing and its aftermath from social media.8
Twitter is most likely protected from a third party’s posts because of
Section 230(c) of the CDA. Recent cases interpreting the CDA help
explain the broad immunity afforded interactive service providers
and what steps providers should take to avoid losing that immunity.
Section 230(c)(1) of the CDA offers service providers broad protection by precluding courts from treating them as publishers of the
information on their sites: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider.”9
The statute defines an interactive computer service as “any information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server,
including specifically a service or system that provides access to the
Internet and such systems operated or services offered by libraries or
educational institutions.”10 Examples of immunized interactive computer service providers include Facebook, Twitter, Yahoo, and Reddit.
While Congress immunized providers of computer services, it
did not seek to prevent tort liability for those who actually provide
or write the content. The CDA defines a nonimmunized information
content provider as “any person or entity that is responsible, in
whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”11
This may include a person who posts an allegedly defamatory comment on a Web site or a reporter who publishes a news story online.
One of the first cases to interpret the CDA came in the wake of the
Oklahoma City bombing. In Zeran v. America Online, Inc., just days
after the Oklahoma City Bombing in 1995, a message appeared on an
AOL Bulletin Board advertising, “‘Naughty Oklahoma T-Shirts[]’”12
with slogans such as “‘Visit Oklahoma…. It’s a BLAST!!!,’” “‘Putting
the kids to bed…Oklahoma 1995,’” and “‘McVeigh for President
1996.’”13 Interested parties were told to call Kenneth M. Zeran, whose
phone number was provided. Zeran had nothing to do with the ad.
Zeran received many angry phone calls, including death threats.
Since he ran his business out of his home, he could not change his
phone number. Zeran contacted AOL, which removed the offending
post. The message returned with additional slogans. In addition to
filing a separate suit against a radio station that aired the contents of
the message, Zeran sued AOL seeking to hold it liable for the defamatory postings of a third party. AOL asserted Section 230 as an affirmative defense. Zeran claimed that he was unable to find the person
who posted the messages since AOL “fail[ed] to maintain adequate
records of its users.”14
Interpreting the CDA, the Fourth Circuit refused to subject computer service providers to distributor liability, holding that Section 230
of the statute preempted Zeran’s defamation claims and that AOL
could not be held liable as the “publisher.”15 The court also held that
AOL could not be held liable based on the fact that it had received
“notice” of defamatory material because, in creating the immunity
in Section 230, Congress “made a policy choice…not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.”16 Imposing this type of liability for
defamation, the court explained, would create an impossible burden
for computer service providers who:
would face potential liability each time they receive notice of
a potentially defamatory statement—from any party, concerning any message. Each notification would require a careful yet rapid investigation of the circumstances surrounding the
posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing the continued publication of that information. Although this might be feasible
for the traditional print publisher, the sheer number of postings on interactive computer services would create an impossible burden in the Internet context.17
Moreover, from a public policy perspective, the court was concerned about a chilling effect against the First Amendment since service providers would tend to err on the side of caution and remove
messages once they receive a notification, regardless of whether they
were actually defamatory. Anyone who disagreed with someone’s
unpopular message could contact AOL, and service providers such
as AOL would be incentivized to remove the objectionable statement
in order to avoid liability. Finally, the court was concerned that disShelly Rosenfeld is an associate in the Los Angeles office of Lewis Brisbois
Bisgaard & Smith who specializes in intellectual property, technology, and
entertainment law.
Los Angeles Lawyer November 2013 13
tributor-based liability would lead to less
self-regulation by service providers since
“[a]ny efforts by a service provider to investigate and screen material posted on its service would only lead to notice of potentially
defamatory material more frequently and
thereby create a stronger basis for liability.”18
Courts have given wide latitude to computer service providers who have some
involvement with the authors of defamatory
material before considering the providers
themselves “publishers.” In Carafano v.
Metrosplash.com, Inc.,19 a Ninth Circuit
case, a man in Berlin created a fake profile on
a dating Web site for a Star Trek actress,
Chase Masterson (her legal name is Christianne Carafano), with her photo and home
address.20 As a result of the profile created on
Match.com, Masterson “found a highly
threatening and sexually explicit fax that
also threatened her son.”21 Masterson contacted the site to remove the profile, but
Matchmaker.com did not remove the profile
immediately, stating ironically that only profile creators can authorize the removal of a
profile. The profile was eventually removed,
and Masterson sued Matchmaker.com for
several causes of action, including invasion of
privacy and defamation. The company
asserted the affirmative defense that under
“[Section] 230(c)…so long as a third party
willingly provides the essential published content, the interactive service provider receives
full immunity regardless of the specific editing or selection process.”22 Although some
information in Carafano’s profile was entered
in response to questions posed by the site,
most of the content, such as personal details,
was up to the profile creator. “Matchmaker
was not responsible, even in part, for associating certain multiple choice responses with a
set of physical characteristics, a group of essay
answers, and a photograph.”23
Although the user provided Carafano’s
address and other details through the Web
site, they were “transmitted unaltered to profile viewers.”24 Matchmaker.com did not have
a role in editing the responses entered.
“Similarly, the profile directly reproduced the
most sexually suggestive comments in the
essay section, none of which bore more than
a tenuous relationship to the actual questions
asked.”25 Since a user created the content, the
user rather than the interactive computer
service was responsible for the content.
Matchmaker.com therefore “did not play a
significant role in creating, developing or ‘transforming’ the relevant information.”26 The
court held that the dating Web site was not an
information content provider but rather an
interactive computer service since it allowed the
public to post information on its Web site.
Therefore, the court held that Section 230(c)
provided a safe harbor to Matchmaker.com.
14 Los Angeles Lawyer November 2013
More recently, in 2011, a woman sued the
dating Web site Match.com after she met
and dated a serial murderer through the site
who later attacked her. In Beckman v.
Match.com, the court held that Match.com
would not be subject to liability since it was
protected by Section 230.27 The court applied
the act’s three-part test for whether immunity
applies to a Web site operator: “(1) it is an
‘interactive computer services’ provider; (2)
it is not an ‘information content provider’
with respect to the conduct at issue; and (3)
the plaintiff seeks to hold the website operator liable on account of information originating from a third-party user of its services.”28 Although the pair met through the
site, the content originated from third parties
who entered the profiles, not from the site.
Thus, Match.com was not an information
content provider. Rather, the site was a
provider of interactive computer services.
“The fact that a website may have created certain features that enabled a user to post the
content in question is irrelevant.”29 In other
words, Match.com was a passive forum
where users could communicate and thus
could not be held responsible for what happens as a result of the information exchange.
In another case, Okeke v. Cars.com,30 a
user who paid for a truck but never received
it sued Cars.com, the source site, based on
three negligence theories that the site: “failed
to ensure the legitimacy of users’ listings or
advertisements;…failed to post adequate and
proper notices and/or warnings to users about
responding to listings or advertisements on the
website; and…failed to promptly remove a
listing after receiving notification that the
listing was fraudulent.”31 The New York
state court held that Cars.com was an interactive computer service under Section 230
and thus immune from liability since it was a
forum in which consumers could make purchases. The court also held that the content
originated with the users; thus, Cars.com was
not an information content provider. Finally,
the court held that under the CDA a site such
as Cars.com is immune from the “traditional
editorial functions of a publisher…such as
deciding whether to publish, withdraw, postpone or alter content.”32 Thus, Cars.com is
protected from being responsible for factchecking postings to ensure they are accurate.
Section 230 immunity has even applied
when an interactive computer service, AOL,
had a contract and paid the author of the
alleged defamatory statements who even
reserved the right to edit his reports. In
Blumenthal v. Drudge,33 Matt Drudge’s site,
the Drudge Report, published a story alleging that Sidney Blumenthal, an assistant to
President Clinton, had physically abused his
wife, Jacqueline Jordan Blumenthal, who
also worked at the White House.34 When
the article was published, Drudge had a licensing agreement with AOL whereby AOL members received the Drudge Report, and every
month AOL paid Drudge a “‘royalty payment’ of $3,000.”35
The court noted that to the extent that
AOL contributed information to the story, as
in the case where two or more authors contribute to an article, the CDA would not be
a safe harbor. However, the court found that
AOL did not create the information in the
Drudge Report and that the information was
posted “without any substantive or editorial
involvement by AOL.”36
However, unlike the other CDA cases
explored in this article, this was not just an
anonymous individual with a rogue comment posted on a message board. AOL
entered into a contract with Drudge and
“promoted it to its subscribers and potential
subscribers as a reason to subscribe.”37
Moreover, AOL reserved the right to remove
or to ask Drudge to remove any material
that it determined violated its terms of service.
The contract allowed AOL to “‘require reasonable changes to…content, to the extent
such content will, in AOL’s good faith judgment, adversely affect operations of the AOL
network.’”38 As the plaintiffs asked, “Why
should AOL be permitted to tout someone as
a gossip columnist or rumor monger who
will make such rumors and gossip ‘instantly
accessible’ to AOL subscribers, and then
claim immunity when that person, as might
be anticipated, defames another?”39
The court was sympathetic to plaintiffs’
argument but rejected it based on the broad
language of the statute. The court explained,
“If it were writing on a clean slate, this Court
would agree with plaintiffs.”40 While the
court saw AOL’s role much more like a publisher than a common carrier with no liability for what is spoken over its wires “[b]ecause
it has the right to exercise editorial control over
those with whom it contracts and whose
words it disseminates, it would seem only
fair to hold AOL to the liability standards
applied to a publisher or, at least, like a book
store owner or library, to the liability standards
applied to a distributor.”41 But the court could
not reach its decision in a vacuum and therefore had to accede to the CDA, which immunizes interactive service providers even when
they take “an active, even aggressive role in
making available content prepared by others.”42 Thus, contemporary Drudges, bloggers
paid by a Web site, would thus still face liability under Section 230(c)(1), but their sponsoring Web site likely would not.
Limitations to CDA Protections
In Fair Housing Council v. Roommates
.com,43 the court held that the CDA did not
apply as a safe harbor to an interactive online
provider who had a questionnaire alleged
to have violated the Fair Housing Act (FHA).
However, the provider, Roommates.com, was
immune under the CDA for its “Additional
Comments” section of the questionnaire
because this was an open-ended essay.
Roommates.com offered searchable listings
for people looking for housing. In order to use
the Web site, a user was required to create a
profile by answering the Web site’s queries.
The questions were basic, but “[e]ach subscriber must also describe his preferences in
roommates with respect to the same three criteria: sex, sexual orientation and whether
they will bring children to the household.”44
Two Fair Housing Councils sued the company
that owned Roommates.com, claiming that
the site violated the FHA and the equivalent
California law, which “prohibits discrimination on the basis of sexual orientation, marital status” and other protected groups.45 If
the Web site operator creates content, “or is
‘responsible, in whole or in part’ for creating
or developing content, the website is also a
content provider.”46 The court held that since
Roommates.com created the questions and
answer choices, it was the “‘information content provider’ as to the question and could
claim no immunity for posting them on its
website, or for forcing subscribers to answer
them as a condition of using its services.”47
Although the case took a bold approach
in carving out an area where Section 230(c)
did not apply, the court was careful to show
its decision was consistent with the statute,
noting that “close cases…must be resolved in
favor of immunity, lest we cut the heart out
of section 230 by forcing websites to face
death by ten thousand duck-bites.”48 The
court compared the “Additional Comments”
section to search engines since “both involve
a generic text prompt with no direct encouragement to perform illegal searches or to
publish illegal content.”49 If a Web site operator “passively displays content that is created
entirely by third parties, then it is only a service provider with respect to that content.”50
This was the function that Roommates.com
served with respect to the “Additional Comments” section, because it did not edit the
comments before the publication nor even
instruct users what content should be included
in that section.51 While this case is significant
in that it shows that courts are willing to
take a closer look at the boundaries of Section
230(c), the decision does not alter cyberspace. Most Web sites do not involve questionnaires but rather open-ended sections
where people can express their thoughts.
Thus, social media sites still have broad
immunity for what is published online.
Another limitation on the CDA can occur
when a computer service provider promises
to take action in response to defamatory
material on its Web site. In Barnes v. Yahoo!
the plaintiff contacted Yahoo to take the false
profile down and followed Yahoo’s policies
of mailing to Yahoo a copy of her photo ID
with a signed statement requesting the profiles be removed. After no response from
Yahoo for a month, Barnes mailed a letter
requesting removal of the profiles and, a
month later, sent two letters requesting that
the profile be removed. Finally, a day before
a local TV news story would air Barnes’s
story, Yahoo agreed to remove the profile. In
fact, Yahoo’s Director of Communications
notified Barnes that “she would ‘personally
walk the statements over to the division
responsible for stopping unauthorized profiles
and they would take care of it.’”52 Yet, it
was not until Barnes sued the company that
Yahoo took down the profiles.53
In its defense, Yahoo asserted protection
under Section 230(c) of the CDA. And, consistent with other cases in which the statute was
applied, the Ninth Circuit held that since plaintiff’s claim of “negligent undertaking was
premised on treating defendant as a ‘publisher’ of the unauthorized profiles,” Section
230(c)(1) did preclude liability.54 However,
the Ninth Circuit also noted that “insofar as
Barnes alleges a breach of contract claim under
the theory of promissory estoppel, subsection
230(c)(1) of the Act does not preclude her
cause of action.”55 The promissory estoppel
claim “derives not from defendant’s publishing conduct, but from defendant’s ‘manifest
intention to be legally obligated to do something….’”56 This legal duty is distinct from the
act of publishing, and thus falls outside of the
protections offered by Section 230(c)(1).
On remand, the District Court of Oregon
considered Barnes’s amended complaint alleging breach of contract based upon promissory
estoppel and rejected Yahoo’s motion to dismiss. The elements of promissory estoppel
under Oregon law are “1) a promise; 2)
which the promisor could reasonably foresee
inducing the sort of conduct which occurred;
3) actual reliance on the promise; 4) resulting in a substantial change in the promisee’s
position.”57 As to the first prong, Barnes
asserted that Yahoo promised to remove the
profiles. The court reasoned that the second
prong was met because Yahoo’s Communications director, in saying she “would personally walk the statements over to the division responsible for stopping unauthorized
profiles and they would take care of it,…
intended for plaintiff to react to the promise
by calling the reporter and diffusing the story”
before it appeared on TV.58 After all, Yahoo
knew about the story, since the reporter also
called Yahoo for comment.
For the third prong, despite the fact that
Barnes never used “the term ‘reliance,’ one
can infer that plaintiff called the reporter,
JUDGE
LAWRENCE W. CRISPO
(RETIRED)
Arbitrator
Mediator
Referee
213.926.6665
www.judgecrispo.com
VIGOROUS
STATE BAR DEFENSE
JAMES R. DIFRANK
A PROFESSIONAL LAW CORP.
TEL 562.789.7734
www.BarDefense.net
E-MAIL [email protected]
¥
¥
¥
¥
¥
¥
Disciplinary Defense
Reinstatements/Admissions
Malpractice Defense
Bankruptcy
Criminal Defense
Representation within the
State of California
FORMER:
State Bar Sr. Prosecutor
Sr. State Bar Court Counsel
Home of Sir Winston
Pictured Above
Los Angeles Lawyer November 2013 15
TRUST DEED FORECLOSURES
“Industry Specialists For Over 25 years”
t Witkin & Eisinger we specialize in the Non-Judicial
Foreclosure of obligations secured by real property
or real and personal property (mixed collateral). When
your clients needs a foreclosure done professionally and
at the lowest possible cost, please call us at:
A
1-800-950-6522
We have always offered free advice to all attorneys.
& WITKIN
EISINGER
, LLC
RICHARD G. WITKIN, ESQ. ✦ CAROLE EISINGER
READY TO RETIRE?
We are a long established, boutique
Trusts and Estates firm handling Estate
Planning, Trust Administration,
Probate, Tax Planning and Business
Law, looking to grow its business
through relationship with a Pasadena
or other So. Cal. Practitioner with a
similar practice, who is looking to
downsize or retire.
E-mail [email protected]
or call Jo Ann 626.792.2910
EMPLOYMENT LAW REFERRALS
Paying Highest Referral Fees (Per State Bar Rules)
Honored to receive regular employment referrals from
over 100 of Californiaʼs finest attorneys
Stephen Danz
& Associates
877.789.9707
Main office located in Los Angeles and nearby offices in Pasadena,
Orange County, Inland Empire & San Diego
Stephen Danz, Senior Partner
11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049
Does LACBA have your current
e-mail address?
The Los Angeles County Bar Association is your resource for
information delivered via e-mail on a number of subjects
that impact your practice.
Update your records online at www.lacba.org/myaccount or
call Member Services at 213.896.6560.
16 Los Angeles Lawyer November 2013
informing [the reporter] defendant was indeed
going to remove the profiles, in reliance on
defendant’s promise to plaintiff that it would
remove the profiles.”59 For the fourth prong,
the court noted that despite the fact that the
profiles were on the Web both before and after
the alleged promise and reliance at issue in the
case, “plaintiff’s position could have nonetheless substantially changed in that the profiles remained on the web longer than they
would have absent plaintiff’s reliance.”60 Finally, the court held that “strangers viewed the
profiles and subsequently contacted plaintiff
after the profiles would have been removed
by defendant (had plaintiff not called the
reporter).”61 Barnes demonstrates that a
plaintiff can potentially circumvent the CDA’s
broad protections if the interactive service
provider promises to remove content. However, had Yahoo never promised to remove the
content, Barnes would not have been able to
assert the breach of contract claim.
Thus, although the Internet may no longer
be described as “new and burgeoning,”62
courts would likely still reject a notice-liability
framework. Interactive computer service sites
present opportunities not only for the evolution of technology but also of the law.
Zeran described an internet that was “burgeoning”63 in 1997, but more than a decade
later in Roommates.com the court said that
“the Internet has outgrown its swaddling
clothes and no longer needs to be so gently
coddled.”64 Nevertheless, as courts have continued to apply the CDA, in order for an
interactive computer service provider to be
found liable and not shielded by the CDA, it
would either have to appear to elicit the
objectionable information or, potentially, to
make a promise to remove the offending
material and then break that promise. It is
noteworthy in this context that Barnes had the
leverage of an impending news story depicting her experience. Thus, it is important to
keep a close look at how the law can continue
to incentivize interactive computer services to
promote the free exchange of ideas without
the costly price of defamation and invasion
of privacy suits. As the law currently stands,
the CDA will continue to pose a challenge to
victims of online revenge postings who turn
to the courts for help.
■
1 Barnes v. Yahoo!, Inc., 570 F. 3d, 1096 (9th Cir. Or.
2009).
2 Id. at 1098.
3 Id.
4 47 U.S.C.S. §230.
5 Id.
6 Molly Wood, Twitter needs to deal with the twitter
accuracy problem, CNET, Apr. 23, 2013, http://news
.cnet.com/8301-31322_3-57580996-256/twitter-needs
-to-deal-with-the-twitter-accuracy-problem/.
7 Heather Kelly, The power of one wrong tweet, CNN,
Apr. 24, 2013, http://www.cnn.com/2013/04/23/tech
/social-media/tweet-ripple-effect.
8 Laura Petrecca, After bombings, social media informs
(and misinforms), USA TODAY, Apr. 23, 2013, http://www
.usatoday.com/story/news/2013/04/23/social-media
-boston-marathon-bombings/2106701/.
9 47 U.S.C. §230(c)(1).
10 47 U.S.C. §230(f)(2).
11 47 U.S.C. §230(f)(3).
12 Zeran v. America Online, Inc., 129 F. 3d 327, 329
(4th Cir. Va. 1997).
13 Zeran v. America Online, 958 F. Supp. 1124, 1127
n.3 (E.D. Va. 1997).
14 Zeran, 129 F. 3d at 329 n.1.
15 Id. at 332.
16 Id.
17 Id. at 333.
18 Id.
19 Carafano v. Metrosplash.com, Inc., 339 F. 3d 1119
(9th Cir. 2003).
20 Id. at 1121.
21 Id.
22 Id. at 1124.
23 Id.
24 Carafano v. Metrosplash.com, Inc., 339 F. 3d 1119,
1125 (9th Cir. 2003).
25 Id.
26 Id.
27 Beckman v. Match.com, 2013 U.S. Dist. LEXIS
78339 (D. Nev. May 29, 2013).
28 Id. at *8.
29 Id. at *9.
30 Okeke v Cars.com, 2013 N.Y. Misc. LEXIS 2250
(N.Y. Civ. Ct. May 28, 2013).
31 Id. at *4.
32 Id. at *8-9.
33 Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C.
1998).
34 Id. at 46.
35 Id. at 47.
36 Id. at 50.
37 Id.
38 Id. at 51.
39 Blumenthal v. Drudge, 992 F. Supp. 44, 51 (D.D.C.
1998).
40 Id. at 51.
41 Id.
42 Id.
43 Fair Hous. Council v. Roommates.com, LLC, 521
F. 3d 1157, 1163 (9th Cir. 2008).
44 Id. at 1161.
45 Id. at 1162.
46 Id.
47 Id. at 1164.
48 Id. at 1174.
49 Fair Hous. Council v. Roommates.com, LLC, 521
F. 3d 1157, 1175 (2008).
50 Id. at 1162.
51 Id. at 1173-74.
52 Barnes v. Yahoo!, Inc., 570 F. 3d 1096, 1099 (9th
Cir. Or. 2009).
53 Id.
54 Barnes v. Yahoo!, Inc., 2009 U.S. Dist. LEXIS
116274, at *7 (D. Or. Dec. 8, 2009) (referring to the
9th Cir. decision).
55 Barnes, 570 F. 3d, at 1109.
56 Barnes, 2009 U.S. Dist. LEXIS 116274, at *7 (internal citations omitted).
57 Id. at *5.
58 Id. at *10, *11 n.4.
59 Id. at *10-11.
60 Id. at *13.
61 Id.
62 Zeran v. America Online, Inc., 129 F. 3d 327, 330
(4th Cir. Va. 1197).
63 Id.
64 Fair Hous. Council v. Roommates.com, LLC, 521
F. 3d 1157, 1175 (2008).
ERISA
Does LACBA have
your current
e-mail address?
LAWYERS
LONG TERM DISABILITY, LONG
TERM CARE, HEALTH,
EATING DISORDER, AND LIFE
INSURANCE CLAIMS
The Los Angeles County Bar
Association is your resource
for information delivered via e-mail
on a number of subjects that
impact your practice.
ERISA & BAD FAITH
MATTERS
Update your records online at
www.lacba.org/myaccount or
call Member Services at 213.896.6560.
✔ California state and federal courts
✔ More than 20 years experience
✔ Settlements, trials and appeals
BUSINESS
OPPORTUNITY
Referral fees as allowed by
State Bar of California
Kantor & Kantor LLP
818.886.2525 TOLL FREE
Want to purchase
minerals and other
oil/gas interests?
877.783.8686
www.kantorlaw.net
Send details to:
Dedicated to Helping People
P.O. Box 13557
Denver, CO 80201
Receive the Insurance Benefits to
Which They Are Entitled.
Let Us Help You Overcome the
Hurdles in Your Estate Disputes
Estate Mediation
Probates, Trusts & Estates
LA County Volunteer Probate Mediator of the Year
2010, 2011, 2012
CALL (626) 584-8000
or visit us online
www.woodardmediation.com
GREG DAVID DERIN - MEDIATOR & ARBITRATOR
HONESTY • FAIRNESS • COMMITMENT • CREATIVITY • EXCELLENCE
AREAS OF EXPERTISE:
• Entertainment and
Intellectual Property
• Employment
• Contract and Business Torts
• Real Property
• Corporate and Partnership
“Power Mediator” - The Hollywood Reporter, ADR SuperLawyerTM
Faculty - Harvard Negotiation Institute (2004-2012)
Fellow - Chartered Institute of Arbitrators
310.552.1062
■
www.derin.com
1925 CENTURY PARK EAST, LOS ANGELES, CALIFORNIA 90067
Los Angeles Lawyer November 2013 17
by JEFF DASTEEL and NATALIA DE LA PARRA FERREIRO
CROSSING
BORDERS
The legislature should allow parties in international
arbitrations in California to choose their preferred attorneys
18 Los Angeles Lawyer November 2013
attorneys licensed to practice law in the United
States. The result is that, unlike all other
major international arbitration jurisdictions
in the world, non-U.S. attorneys are not
authorized to represent parties in international arbitrations held in this state. In addition, because the out-of-state attorney arbitration counsel program was established
under California’s domestic arbitration law,
it is questionable whether the program
extends to international arbitrations, which
are governed by the California International
Arbitration and Conciliation Act. The
California State Bar’s implementation of the
program is ambiguous on this point.
California’s Business and Professional
Code makes it a misdemeanor for an individual who is not an active member of the
State Bar to practice law in California.2 In
Birbrower, Montalbano, Condon & Frank,
P.C. v. Superior Court,3 the California Su-
preme Court determined that California’s
attorney licensing requirement applies to representation in arbitration proceedings held in
California:
We decline Birbrower’s invitation to
craft an arbitration exception to section
6125’s prohibition of the unlicensed
practice of law in this state. Any exception for arbitration is best left to the
Legislature, which has the authority to
determine qualifications for admission
to the State Bar and to decide what
constitutes the practice of law.4
Jeff Dasteel is an arbitrator, mediator, and adjunct
professor of law at UCLA Law School, where he
teaches international commercial arbitration.
Natalia de la Parra Ferreiro specialized in international and comparative law at UCLA School of Law
and is a legal intern in the California Department
of Justice.
AMANE KANEKO
A FUNDAMENTAL FEATURE of private
arbitration is a party’s autonomy to design an
arbitration procedure suitable for resolving
the dispute. A key procedural issue associated
with party autonomy is the right to choose
one’s representatives. Most arbitration rules
expressly provide for freedom of representation without regard to whether the representative is an attorney licensed to practice
law in the jurisdiction where the arbitration
takes place (or anywhere else).1 However, in
California, except with respect to limited
statutory exceptions, party representatives
to arbitrations either must be attorneys
licensed to practice law in California or outof-state attorneys who have completed a
required certificate and have gained the
approval of the arbitral tribunal before which
they wish to appear.
The out-of-state attorney arbitration counsel certification process is available only to
The attorneys in the Birbrower case did
not actually participate in a California-based
arbitration because the matter settled after
having filed the arbitration demand but before
any hearings took place. The California
Supreme Court’s dicta nonetheless were read
to prohibit out-of-state attorneys from representing parties in arbitrations in California
unless they satisfy the statutory requirements.
The Legislative Response
In response to the supreme court’s decision in
Birbrower, the state legislature enacted Code
of Civil Procedure Section 1282.4(b), which
provides a procedure so that “an attorney
admitted to the bar of any other state may
represent the parties in the course of, or in
connection with, an arbitration proceeding in
this state.” The procedure requires the completion of a certificate to be filed with the arbitrator, opposing counsel, and the State Bar
within a reasonable period after the out-ofstate attorney indicates an intent to appear in
the California arbitration.5 The State Bar
receives about 800 certificates each year,
reflecting a nontrivial level of compliance.6
The California Rules of Court also were
revised to reflect the creation of the Out-ofstate Attorney Arbitration Counsel program.7
Under Rule of Court 9.43, an out-of-state
attorney is eligible for the program if the
attorney is:
(1) Not a member of the State Bar of
California but who is a member in
good standing of and eligible to practice before the bar of any United States
court or the highest court in any state,
territory, or insular possession of the
United States, and who has been
retained to appear in the course of, or
in connection with, an arbitration proceeding in this state; (2) Has served a
certificate in accordance with the
requirements of Code of Civil Procedure section 1282.4 on the arbitrator, the arbitrators, or the arbitral
forum, the State Bar of California, and
all other parties and counsel in the
arbitration whose addresses are known
to the attorney; and (3) Whose appearance has been approved by the arbitrator, the arbitrators, or the arbitral
forum.8
The arbitrator’s decision to approve the
out-of-state attorney’s certificate appears to
be discretionary. Based on the information
provided in the certificate, “The arbitrator,
arbitrators, or arbitral forum may approve the
attorney’s appearance if the attorney has
complied with subdivision (d).”9 The outof-state attorney must certify, among other
things, that “the attorney is not regularly
engaged in substantial business, professional,
or other activities in the State of California”
20 Los Angeles Lawyer November 2013
and “If the attorney has made repeated
appearances, the certificate shall reflect the
special circumstances that warrant the
approval of the attorney’s appearance in the
arbitration.”10 The statute provides that “[i]n
the absence of special circumstances, repeated
appearances shall be grounds for disapproval
of the appearance and disqualification from
serving as an attorney in the arbitration in
which the certificate was filed.”11 Accordingly,
at a minimum, the arbitrator must make a
determination that the out-of-state attorney
meets the requirements to participate in the
program, including, apparently, a factual
finding that special circumstances warrant
approval in the event of repeated appearances in California arbitrations. It is unclear
what recourse, if any, an out-of-state attorney
has if the arbitral tribunal denies an application for a certificate.
Consequences for Failure to Comply
Attorneys or other persons who represent
parties in California-based arbitrations when
they either are not licensed to practice law in
California or have not obtained an approved
out-of-state attorney arbitration counsel certificate violate Business and Professions Code
Section 6125 and are guilty of a misdemeanor
punishable by up to one year in jail and a fine
of $1,000.12 Under the Birbrower rule, the
attorney who fails to comply with the out-ofstate attorney arbitration counsel certification
program also is not entitled to recover any fees
for work performed while in California.13
In addition to the possibility of criminal
sanctions against the unlicensed attorney,
there are potentially two other categories
of arbitration participants who may be
vulnerable to discipline. First, to the extent
the out-of-jurisdiction attorney has retained
licensed co-counsel in the California arbitration, which is required by Section
1282.4(c)(11), the licensed counsel of record
may be subject to discipline under the
California Rules of Professional Conduct 1300, which provides that “a member shall
not aid any person or entity in the unauthorized practice of law.”
A second category of arbitration participant who may be vulnerable under Rule 1300 is the arbitrator. If the arbitrator knowingly permits an unlicensed attorney or other
person to represent a party in a Californiabased arbitration without completion of the
out-of-state attorney arbitration counsel certificate, the arbitrator, if he or she is a member of the State Bar, also may be subject to
Rule 1-300 if the arbitrator does not act
under Section 1284.2(d) to disqualify the
unlicensed attorney from participating in the
arbitration.14 In that regard, it is not clear
whether an arbitrator has the affirmative
obligation to determine whether all party
representatives appearing before the arbitral
tribunal either are licensed to practice law in
California or have completed an appropriate
certificate. It appears that no cases or attorney general opinions address this issue, but it
is probably best practice for arbitrators in
California to confirm that, absent an exception to either the Birbrower rule or the outof-state attorney arbitration counsel program, the attorneys who appear before them
in a California arbitration either are licensed
in California or have completed the appropriate out-of-state attorney arbitration counsel application.15
Because the licensing requirements for the
California State Bar are designed to protect
parties from being represented in legal matters by persons not qualified to do so, in the
event an out-of-state attorney fails to obtain
the arbitrator’s approval of an out-of-state
attorney arbitration counsel certificate, there
is the potential risk that any arbitration award
adverse to unlicensed attorney’s client may be
set aside. No California cases address this
issue, but, in an analogous case, an unlicensed attorney represented a party in a court
proceeding. The court of appeal set aside the
judgment adverse to that party.16 On the
other hand, in two unpublished opinions,
the court of appeal has refused to set aside
arbitration awards in which the prevailing
party’s attorney failed to timely comply with
the Out-of-State Attorney Arbitration Counsel
Certification program.17
Statutory Exceptions
There are statutory exceptions to the requirements that party representatives in arbitration
comply with Business and Professions Code
Section 6125, Code of Civil Procedure Section
1282.4, and California Rule of Court 9.43.
They are: 1) in an arbitration under a collective barging agreement, parties may be
represented by any person, regardless of
whether that person is licensed to practice law
in California,18 2) any person, whether or not
a licensed attorney, may represent an injured
employee under the workers’ compensation
statutes,19 3) an out-of-state attorney needs
no certification and may engage in party representation with respect to arbitration proceedings held outside California,20 and 4) in
international conciliation (a form of mediation) parties may be represented by the person of their choice.21 The Birbrower court
understood this last provision to be an exception to Section 6125.22
Other than these limited statutory exceptions, the Birbrower rule, as modified by the
out-of-state attorney arbitration counsel certification program, applies to all arbitrations
conducted in California. When the statutory
exceptions to the Birbrower rule are screened
against the legislature’s response to Birbrower,
there remain two significant lacunae, whether
intended or not, that limit a party’s right to
select its attorney representative in arbitration.
The first concerns out-of-state attorneys
representing parties in international arbitrations that are based in California. The legislature’s response to the Birbrower rule does
not appear to apply to arbitrations subject to
California’s International Arbitration and
Conciliation Act.23 That act applies to the following types of arbitrations:
(a) The parties to an arbitration or
conciliation agreement have, at the
time of the conclusion of that agreement, their places of
business in different
states.
(b) One of the following places is situated
outside the state in
which the parties have
their places of business: (i) The place of
arbitration or conciliation if determined in,
or pursuant to, the
arbitration or conciliation agreement. (ii)
Any place where a substantial part of the
obligations of the commercial relationship is
to be performed. (iii)
The place with which
the subject matter of
the dispute is most
closely connected.
(c) The parties have
expressly agreed that
the subject matter of
the arbitration or conciliation agreement
relates to commercial interests in more
than one state.
(d) The subject matter of the arbitration or conciliation agreement is otherwise related to commercial interests
in more than one state.24
Once it is determined that an arbitration
proceeding is subject to the International
Arbitration and Conciliation Act, Code of
Civil Procedures Section 1297.17 makes clear
that “this title supersedes Sections 1280 to
1284.2, inclusive, with respect to international commercial arbitration and conciliation.” The necessary implication is that
Section 1282.4’s out-of-state attorney arbitration counsel program (which is part of
the exclusion of Sections 1280 to 1284.2)
not only has not been included in the
International Arbitration and Conciliation
Act but has been affirmatively excluded from
its provisions. This conclusion is reinforced
by the International Arbitration and Con-
ciliation Act’s limited exclusion from Business
and Professions Code Section 6125 for conciliation proceedings. The limited exclusion
applicable to conciliation proceedings by necessary implication does not apply to international arbitrations. Accordingly, under the
current statute, out-of-state attorneys have no
means to gain an exception to Section 6125
when attempting to represent a party in an
international arbitration held in California.
The inability of an out-of-state attorney to
represent parties in an international arbitration in California probably is the unintended
byproduct of the legislature’s confusion over
program. Rule 9.43 does not on its face distinguish between domestic and international
arbitration, nor does it require applicants
to show they are seeking to represent a party
solely in a domestic arbitration. It appears
that the State Bar makes no distinction
between domestic and international arbitrations under the out-of-state attorney arbitration counsel program. The implication is
that the State Bar may consider Rule 9.43 to
include both domestic and international arbitrations.26 The State Bar considers the applications submitted under the program to be
private and not subject to review by the pub-
the Birbrower court’s comments on the provisions of California’s International Arbitration and Conciliation Act. It is likely that
the legislature did not realize that Code of
Civil Procedure Section 1297.351, cited by the
Birbrower Court as a statutory exception to
Section 6125 of the Business and Professions
Code, applies only to conciliation proceedings
(mediation) and not to international arbitrations as well.25 There is no obvious policy
reason to create an out-of-state attorney arbitration counsel program for domestic arbitrations but not for international ones.
Nonetheless, unless the state legislature
extends the out-of-state attorney arbitration
counsel program to international arbitrations, as a matter of statute, only attorneys
licensed in California may provide such representation.
Confusion over representation in international arbitration continued when State
Bar Rule 9.43 was adopted to implement the
lic. Accordingly, it has not been possible to
determine whether any certificates submitted
to the State Bar relate to arbitrations governed
by the California International Arbitration
and Conciliation Act.
The second issue that limits a party to
arbitration in choosing an attorney relates to
attorneys licensed to practice outside the
United States. The out-of-state attorney arbitration counsel program created by Section
1282.4 applies only to attorneys who are
members “in good standing of and eligible to
practice before the bar of any United States
court or the highest court in any state, territory, or insular possession of the United
States.”27 This definition necessarily excludes
from the program attorneys who are not
licensed to practice in the United States but
are licensed to practice in a non-U.S. jurisdiction.
An attorney licensed to practice in a foreign country is limited to two options to
Los Angeles Lawyer November 2013 21
practice law in California. First, the attorney
may qualify for, take, and pass the California
bar exam. This is not a practical option for
the kind of transitory representation expected
in arbitrations. Second, the foreign attorney
may apply to become a registered foreign
legal consultant under California Rule of
Court 9.44. However, even if the registration
is successful, the foreign attorney is barred
from representing a party as an advocate in
proceedings or practicing law other than to
advise on the law of the jurisdiction where the
foreign attorney is licensed. This option does
not permit full participation in arbitration.
The result is that there is no practical means
for a foreign attorney to represent a party in
a domestic or international arbitration seated
in California.
The exclusion of foreign attorneys from
the arbitration counsel program appears to be
intentional, and the reason to exclude probably proceeds from the same justifications
for the limitations applied to foreign attorneys
generally. California has an interest in restricting foreign attorneys to their area of legal
expertise, which presumably is the law of
the country where they are licensed. The presumption for a domestic arbitration held in
California is that it proceeds, at least procedurally, under California law.
In contrast to domestic arbitrations, the
restriction on foreign attorneys engaged in the
representation of parties in international arbitrations seated in California makes little sense.
If the rationale is based on the legislature’s
general exclusion of foreign attorneys from
practicing law in California, it proceeds from
a misunderstanding of how international
arbitration generally operates. The location
of an international arbitration frequently is
selected for its lack of relationship to the
parties so that the international dispute is
resolved in a neutral territory. Further, the substantive law of the dispute frequently is unrelated to the seat of the arbitration, but rather
is the law of one or the other party’s home
jurisdiction or international law (e.g., the
United Nations Convention on the International Sale of Goods). International arbitrations are most frequently conducted under
common international arbitration rule sets
(e.g., UNCITRAL Arbitration Rules, ICC
Rules of Arbitration, AAA’s international
arbitration rules) that require specialists in
those rule sets and not in the local arbitration
procedures of the seat. All major international commercial arbitration jurisdictions
(of which California is not yet one) have recognized that freedom of choice in the selection of representatives for international arbitrations trumps local restrictions on who
may engage in the practice of law. These
major international arbitration jurisdictions
permit foreign attorneys, including those
22 Los Angeles Lawyer November 2013
licensed to practice in California, to represent
parties in international arbitrations held in
their jurisdictions.28
There is no compelling rationale to
require that an attorney be licensed to practice law in California when arbitrating a dispute under the substantive law of another
country using an international arbitration
rule set. Nor is there any reason to believe
that a licensed California attorney has any
special or greater knowledge of international
arbitration rule sets or the foreign law that
may be applicable to the California-based
international arbitration. Parties to international arbitrations are not protected by the
California licensing rule. California simply
becomes a venue inhospitable to international arbitration proceedings.
Nonlegislative Solutions
Most international arbitrations held in California involve at least one party located outside California. As the law currently stands
under the Birbrower rule and the legislature’s
limited modification of that rule, a party
located outside California does not have the
right under California law to use its regular
arbitration counsel to represent it in California-based proceedings. There are two potential nonlegislative solutions to this problem.
First, the parties to the international or
domestic arbitration simply can agree to
change the venue of the arbitration to a jurisdiction (virtually anywhere outside California)
that permits freedom of representation in
arbitrations. As noted above, the Birbrower
rule only applies to arbitrations held in
California, and there is a statutory exception to the Birbrower rule for out-of-state
attorneys who render legal services in California for an arbitration held outside California.29 California has nothing to say about
a party representative acting outside California with regard to an arbitration held
outside California.
This solution, however, has two basic
problems. First, it requires the agreement of
all parties to the arbitration to change venue
from what may be agreed in the arbitration
agreement. Such an agreement may not be
forthcoming for a number of reasons, including that an out-of-state forum may be inconvenient to one of the parties. Second, this
solution does not solve the problem of a foreign attorney (as distinguished from an outof-state attorney) rendering legal services in
California with regard to an arbitration held
outside California. In that case, the foreign
attorney would be required to apply to
become a foreign legal consultant under
California Bar Rule 9.44. Even then, the
scope of permitted activities may be too limited, especially if, for example, an attorney
arbitration specialist licensed to practice law
in the United Kingdom wished to perform
legal services in California for an arbitration
governed by the substantive law of France. In
that event, the foreign legal consultant provisions of California law likely prohibit that
attorney from rendering legal services in
California.
Preemption is an alternative nonlegislative
way to allow choice of counsel in an arbitration proceeding. The Birbrower court ruled
that California’s attorney licensing requirements were not preempted by the Federal
Arbitration Act.30 Relying on the Supreme
Court’s decision in Volt Information Sciences,
Inc. v. Leland Stanford Junior University, the
court determined that there was no conflict
between federal and state law on this issue
and that the parties’ agreement expressly
adopted California procedural and substantive law.31 However, as noted by the dissent
in Birbrower, the majority’s broad proclamation regarding lack of preemption may
be overstated.
The Birbrower dissent noted that California’s attorney licensing rules should not
apply if a treaty specifically permits parties to
choose by whom they want to be represented.
Justice Joyce Kennard’s dissent cited as an
example the Inter-American Convention on
International Arbitration:
For instance, the Rules of Procedure of
the Inter-American Commercial Arbitration Commission, article IV provides: “The parties may be represented
or assisted by persons of their choice.”
By federal law, this rule applies in all
arbitrations between a United States
citizen and a citizen of another signatory to the Inter-American Convention
on International Commercial Arbitration, unless the arbitrating parties
have expressly provided otherwise.32
Preemption is possible, but not certain. As
acknowledged by the language quoted above,
the Inter-American Convention’s default rule
permitting parties to select representatives
of their choice does not preempt California’s
Birbrower rule if the parties have elected to
be governed by California’s rules of procedure, something permitted by Article 3 of
the Inter-American Convention.33 In that
event, the parties would be required to comply with California rules of procedure regarding attorney representation. Accordingly, for
preemption of the Birbrower rule to work
under the Inter-American Convention, the
parties by selecting California as the seat of
the arbitration must not be deemed to have
selected the procedural law of California as
the procedural law of the arbitration. To
avoid the inference that they have selected the
procedural law of California, the parties may
expressly designate that their arbitration
agreement is governed by Chapter 3 of the
A successful legal career begins
with membership in the Los Angeles
County Bar Association
California Attorneys trust us for the
latest news, best practices, networking,
and practice area discounts.
• Daily EBriefs (Case Summaries)
We are proud to provide quality publications
• Continuing Legal Education
and digital media that our members rely on to
• Los Angeles Lawyer Magazine
build their practices.
• Searchable Civil Register
Our practice area sections engage our members
• Judicial Council Forms
with valuable continuing legal education,
• Lawyer Referral Service
networking events, newsletters, social media,
and online practice-related discussion forums.
• Center for Civic Mediation
• Domestic Violence Project
• Immigration Legal Assistance Project
• AIDS Legal Services Project
Join or renew
today!
www.lacba.org / 213.896.6560
• LACBA Job Board
• Veterans Pro Bono Project
and so much more!
Federal Arbitration Act, including Section
306, which incorporates by reference the
Rules of Procedure of the Inter-American
International Arbitration Commission or the
Federal Arbitration Act.34
Even if the Inter-American Convention is
found to offer limited preemption protection, it only applies to international arbitrations governed by that particular treaty. In that
regard, the Federal Arbitration Act provides
that if the majority of the parties to the arbitration agreement are citizens of a nation that
is both a party to the Inter-American Convention and a member of the Organization of
American States, the Inter-American Convention will apply. If those requirements are not
met, Chapter 2 of the Federal Arbitration
Act concerning implementation of the New
York Convention on the Recognition and
Enforcement of Foreign Arbitral awards
applies.
The New York Convention has a much
broader application to international arbitrations held in the United States. However, the
New York Convention does not have a default
rule set for the conduct of proceedings in the
same manner as the Inter-American Convention. Instead, it generally is recognized
that an arbitration covered by the New York
Convention is procedurally governed by the
laws of the jurisdiction where the arbitration
takes place or under the law of which the
arbitration award is made.35 In that regard, the
parties make the selection of the applicable
procedural law either by reference in the parties’ arbitration agreement or by designation
of the seat of the arbitration. When an arbitration subject to the New York Convention
is held in California, it is possible for the
parties to designate California’s procedural
rules as the rules of procedure or for those
rules to be deemed the governing rules by
reason of California’s designation as the seat
of the arbitration. The New York Convention
is implemented in the Federal Arbitration Act
through Chapter 2 and, for those arbitrations
seated in the United States, those portions of
Chapter 1 that do not conflict with Chapter
2 or the New York Convention.36 However,
there is nothing in Chapters 1 or 2 of the
Federal Arbitration Act that expressly conflicts
with and therefore preempts the Birbrower
rule.37
In addition to the possibility of preemption under the Inter-American Convention,
international investment treaties are another
significant possible source of preemption.
The United States is a party to the International Convention on the Settlement of
Investment Disputes (ICSID). Under the Rules
of that Convention, “Each party may be represented or assisted by agents, counsel or
advocates.”38 As with the Inter-American
Convention, parties arbitrating disputes under
24 Los Angeles Lawyer November 2013
ICSID rely on its rule set unless the parties
otherwise agree.39 Thus, assuming the parties
have not otherwise agreed, the ICSID rule on
party representation has the power of an
international treaty and, therefore, should
preempt California state law. Even in the
absence of the ICSID rule set, the terms of
ICSID likely preclude application of Section
6125. Articles 21 and 22 of the Convention
grant the parties’ representatives immunity
from legal process in connection with their
actions in the performance of their duties
with respect to any ICSID arbitration in
which they participate.40
Finally, the United States is a party to quite
a few bilateral investment treaties. To the
extent those treaties permit the parties to select
arbitration rule sets for the resolution of their
disputes that provide for free choice in the
selection of party representatives, those treaties
may also preempt California’s Birbrower rule.
For example, the bilateral investment treaty
between the United States and Argentina permits the parties to select the UNCITRAL
Arbitration Rules, which provide, in Article 5,
that “Each party may be represented or assisted
by persons chosen by it.” On the other hand,
as with the Inter-American treaty, if the parties
to the arbitration elect, or are deemed to have
elected, to be governed by California’s rules of
arbitration procedure, then the parties must
comply with California’s attorney representation rules.
The Legislative Solution
Since the statutory exceptions and nonstatutory means to avoid the Birbrower Rule do
not provide a completely satisfactory answer
to California’s prohibition against foreign or
out-of-state attorneys acting as counsel in
international arbitrations seated in California,
a legislative solution is the best and clearest
response. Toward that end, legislative solutions are being sought.41
On May 10, 2013, the board of trustees
of the California State Bar approved a resolution endorsing a legislative solution to the
international arbitration problem:
RESOLVED, that upon the recommendation of the Stakeholder Relations Committee, the Board of Trustees
endorses amendments to California’s
international arbitration and conciliation statute to add language to Title
9.3 of the California Code of Civil Procedure and amendments to other
authorities as necessary to expressly
state in an international commercial
conciliation or arbitration proceeding,
the person representing a party to the
conciliation or arbitration is not
required to be a licensed member of the
State Bar, consistent with the Supreme
Court’s holding in Birbrower, Montal-
bano, Condon & Frank v. Superior
Court…and it is FURTHER RESOLVED, that upon the recommendation of
the Stakeholder Relations Committee,
the Board of Trustees endorses and
promotes California as a favored venue
for international arbitration and conciliation proceedings.42
While there may be good reasons not to
permit foreign attorneys to represent parties in
California-based domestic arbitrations, there
is no good reason to prohibit out-of-state
attorneys or foreign attorneys from representing parties in international arbitrations
held in California. Instead, the out-of-state
arbitration counsel program either should be
extended to cover international arbitrations and
to foreign attorneys representing parties in
international arbitrations or, as suggested by
the State Bar Board of Trustees, the exception from Section 6125 for international conciliation in the California International Arbitration and Conciliation Act as recognized by
Birbrower should be extended to international
arbitration. However, until the California legislature affirmatively acts to permit nonCalifornia attorneys to represent parties in
international arbitration, parties must either
accept application of the Birbrower rule or rely
on nonlegislative solutions with the attendant
risks and limitations.
■
1 See, e.g., Commercial Rules of the Am. Arb. Ass’n,
R. 24; UNCITRAL Arb. Rules, Art. 5; ICC Arb. Rules,
R. 26(4).
2 BUS. & PROF. CODE §6125.
3 Birbrower, Montalbano, Condon & Frank, P.C. v.
Superior Court, 17 Cal. 4th 119 (Cal. 1998), cert
denied, 525 U.S. 920 (1998)
4 Id. at 133-34.
5 C ODE C IV . P ROC . §1282.4(c). The State Bar of
California requires completion of the Certificate of
Out-of-State Attorney Arbitration Counsel form, available at http://admissions.calbar.ca.gov/LinkClick
.aspx?fileticket=GyMRIC7tGa4%3d&tabid=766. Once
approved by the arbitrator, the form must be submitted to the California State Bar with a $50 filing fee for
each arbitration. See http://admissions.calbar.ca.gov
/Requirements/OutofStateAttorneyArbitrationCounsel
OSAAC/FAQ.aspx.
6 According to an e-mail from the State Bar dated July
15, 2013, the State Bar received 800 certificates in
2009, 734 in 2011, and 780 in 2012. Data were not
available for 2010.
7 See R. of Ct. 9.43.
8 Although not stated in Rule 9.43, Section 1282.4(c)(6)
requires that the out-of-state attorney not be a “resident of the state of California.”
9 CODE CIV. PROC. §1282.4(c)(6) (emphasis added).
10 CODE CIV. PROC. §1282.4(c).
11 Id.
12 BUS. & PROF. CODE §6126.
13 In Birbrower, the supreme court relied on Hardy v.
San Fernando Valley Chamber of Commerce, 99 Cal.
App. 2d 572, 576 (1950).
14 Code of Civil Procedure Section 1282.4(d) provides, “Failure to timely file and serve the certificate
described in subdivision (c) shall be grounds for disapproval of the appearance and disqualification from
serving as an attorney in the arbitration in which the
certificate was filed.”
15 The Financial Industry Regulatory Authority
(FINRA) arbitration rules provide guidelines for compliance with Section 1282.4, including a requirement
that out-of-state attorneys complete the required certification form for approval. See http://www.finra.org
/ArbitrationAndMediation/Arbitration/Rules/Rule
Guidance/NoticestoParties/P125353. In contrast, the
American Arbitration Association (AAA) has no written guidelines regarding the participation of out-of-state
attorneys in California arbitrations. Indeed, AAA
Commercial Arbitration Rule 24 expressly permits
any party to be represented by “counsel or other authorized representative.” Although the rule is contrary to
mandatory California law for California-based arbitrations, AAA administrators do not take responsibility for compliance. Instead, compliance is left to the parties and the arbitral tribunal..
16 Russell v. Dopp, 36 Cal. App. 4th 765 (1995).
17 North by Northwest Prod. v. First Look Studios, No.
B219503, 2010 WL 4056851 (Cal. App. Oct. 18,
2010); Gerowitz v. Noll, No. G030308, 2003 WL
1711279 (Cal. App. Mar. 8, 2003).
18 CODE CIV. PROC. §1282.4(h).
19 CODE CIV. PROC. §§1282.4(i), 1282.4(j)(4).
20 CODE CIV. PROC. §1282.4(g).
21 CODE CIV. PROC. §1297.351.
22 Birbrower, Montalbano, Condon & Frank, P.C. v.
Superior Court, 17 Cal. 4th 119, 130, 131 (1998).
23 CODE CIV. PROC. §§1297.11-1297.432.
24 CODE CIV. PROC. §1297.13.
25 Some confusion is understandable because the
California Supreme Court stated in Birbrower that
“[t]he Legislature has recognized an exception to section 6125 in international disputes resolved in California under the state’s rules for arbitration and con-
ciliation of international commercial disputes.”
Birbrower, 17 Cal. 4th at 130-31. This statement itself
does not limit the exception to international conciliation proceedings. However, the very next sentence in
Birbrower notes that the exception is limited to conciliation proceedings.
26 Rule 9.43 does not distinguish between international and domestic arbitration, but it references Code
of Civil Procedure §1282.4 as the source of the authority for the program and makes no mention of the
International Arbitration and Conciliation Act.
27 CODE CIV. PROC. §1282.4(c).
28 See, e.g., London international arbitration, United
Kingdom Arbitration Act 1996, §36; Paris international arbitration, http://www.parisarbitration.com/faq
.php; Swiss international arbitration, Swiss Arbitration
Association, http://www.arbitration-ch.org/pages/en
/arbitration-in-switzerland/switzerland-is-arbitration
-friendly/index.html; Singapore international arbitration,
Singapore International Arbitration Centre, http://www
.siac.org.sg/index.php?option=com_content&view
=article&id=47&Itemid=65; Hong Kong international
arbitration, Hong Kong International Arbitration Centre,
http://www.hkiac.org/index.php/en/arbitration/why
-hong-kong; and David D. Caron & Leah D. Harhay,
A Call to Action: Turning the Golden State into a
Golden Opportunity for International Arbitration, 28
BERKELEY J. INT’L L. 497, 502-504 (2010) [hereinafter
Caron & Harhay].
29 CODE CIV. PROC. §1282.4(g).
30 Birbrower, Montalbano, Condon & Frank, P.C. v.
Superior Court, 17 Cal. 4th 119, 134-35 (1998).
31 Volt Info. Sciences v. Leland Stanford Jr. U., 489 U.S.
468, 477 (1989).
32 Birbrower, 17 Cal. 4th 119, at 146 (Kennard, J.
dissenting) (citations omitted).
33 Inter-American Convention on International Commercial Arbitration art. 3, June 9, 1978, 1438 U.N.T.S.
245.
34 9 U.S.C. §306.
35 See Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T.
2517, 330 U.N.T.S. 38, Article V, §§1(d), (e).
36 9 U.S.C. §208.
37 Parties who elect to be governed by the Federal
Arbitration Act are electing to be governed by the federal common law on arbitration. See Buckeye Check
Cashing, Inc. v. John Cardegna et al., 546 U.S. 440
(2006). See also Stephen Smerek & Daniel Whang,
Preemption and the Federal Arbitration Act: What
Law Will Govern Your Agreement to Arbitrate?,
NEWSLETTER OF THE ABA SECTION OF BUSINESS LAW
COMMITTEE ON CORPORATE COUNSEL (Mar. 2006),
available at http://apps.americanbar.org/buslaw/committees/CL240000pub/newsletter/200603/home.shtml.
However, there is no clear statement of federal common law on arbitration that grants parties the unfettered right to choose their representatives.
38 ICSID, Abritration (Additional Facility) Rules, Art.
26(1).
39 Id., Art. 44.
40 But see id., Art. 1.
41 See Caron & Harhay, supra note 28; see also Yuval
Miller & M. Anderson Berry, Opening Up to
International Arbitration, THE DAILY JOURNAL, Jan. 11,
2010, at 7; Paul M. Lurie & Carl F. Ingwalson,
Arbitration and the Unauthorized Practice of Law,
27 CONSTR. LAWYER 14 (2007); Richard A. Eastman,
Birbrower, Montalbo, Condon & Frank v. Superior
Court, 94 AM. J. INT’L. L. 400 (2010).
42 Resolution of the Board of Trustees of the State Bar
of California, May 10, 2013.
NORIEGA CHIROPRACTIC CLINICS, INC.
JESS T. NORIEGA, D.C.
Is proud to announce the opening of our Lynwood location
SERVICING: SOUTHGATE • BELLFLOWER • CUDAHY • NORTH LONG BEACH • WATTS
LYNWOOD HEALTH CENTER
11123 LONG BEACH BLVD.
LYNWOOD, CA 90262
HUNTINGTON PARK
HEALTH CENTER
ONTARIO HEALTH
SERVICES
(310) 604-6940
3033 E. Florence Ave.
Huntington Park, CA 90255
(323) 582-8401
602B N. Euclid Ave.
Ontario, CA 91764
(909) 395-5598
WHITTIER HEALTH
SERVICES
MONTEBELLO HEALTH
CENTER
SOUTH CENTRAL
HEALTH CENTER
13019 Bailey Ave. Suite F
Whittier, CA 90601
(562) 698-2411
HIGHLAND PARK
HEALTH CENTER
604 North Monetebllo Blvd.,
Montebello, CA 90640
(323) 726-8818
4721 S. Broadway Blvd.
Los Angeles, CA 90037
(323) 234-3100
5421 N. Figueroa St.
Highland Park, CA 90042
(323) 478-9771
1 • 800 • NORIEGA
Personal Injury cases accepted on lien basis.
1•800•667•4342
Los Angeles Lawyer November 2013 25
Meet your mandatory CLE requirements for 2014
2014 CLE-in-a-Box
The easiest and most convenient way to meet your CLE requirements
with the best content available.
N e w
CLE BOX
G S
$ 5 0 SAV I N
CLE BUNDLE
25-Hour Audio Pack
6-Hour Required Subjects Audio Pack
LACBA Member Price: $224
LACBA Member Price: $149
Nonmember Price: $274
Nonmember Price: $199
Available as a CD set or on-demand • Free Ground Shipping within the continental United States
The 25-hour audio pack includes the CLE Bundle Required Subjects.
To order, go to www.lacba.org/clebox
or call Member Services at 800.456.0416
The State Bar of California deadline for mandatory CLE requirements is February 3, 2014 for attorneys whose last names begin with N-Z .
MCLE ARTICLE AND SELF-ASSESSMENT TEST
By reading this article and answering the accompanying test questions, you can earn one MCLE credit.
To apply for credit, please follow the instructions on the test answer sheet on page 29.
by Richard S. Conn
The Properties
of Preemption
CERCLA may preempt state laws barring
claims on the real property interests of heirs
TWO CALIFORNIA STATUTES promote the policy of certainty and finality in the transfer of property interests to the lawful successors in interest of a person who dies. One is an expedited statute of limitations applicable to claims that could have been asserted against the decedent before death.1 The other policy is embodied in the Probate Code’s so-called nonclaim statutes, which require the decedent’s creditors, on actual or
constructive notice of estate administration, to timely file and prosecute claims.2
A competing policy legitimates the interest of creditors in obtaining satisfaction of bona fide claims from
the assets of the decedent before they pass to heirs or beneficiaries. Frequently, creditors have an interest in claims
that arise from a decedent’s ownership of real property. When representing the administrators and trustees of
estates with real property, practitioners may consider the potential liabilities unique to real estate but may be
inclined to discount them and rely on statutes of limitation or repose. For example, unwary practitioners may
think that the one-year statute of limitation found in Section 366.2 of the Code of Civil Procedure, which runs
from the date of death of a decedent, and the 120-day claims filing requirements of Probate Code Sections 9100
(probate estates) and 19100 (applicable to trusts, when invoked by the trustee) adequately protect an estate from
liability. Unfortunately, the law provides no such assurance.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides the fedRichard S. Conn is a partner in the Los Angeles office of Musick, Peeler & Garrett. He specializes in business, real estate,
probate, and trust litigation.
Los Angeles Lawyer November 2013 27
eral government statutory authority to recover
response costs and to compel owners, operators, and other potentially responsible parties to clean up environmental contamination
of real property.3 An owner of real property
is presumptively a potentially responsible
party, unless the owner can prove entitlement to the status of innocent landowner. In
general, this requires a showing that an unrelated party was the sole cause of the contamination and damage and that the landowner
guarded against the foreseeable acts and
omissions of the responsible party.4 Potentially
responsible parties other than landowners
and operators include those who transport or
the death or dissolution of an original responsible party.
CERCLA is not limited to establishing
federal liability for specified damages and
cleanup costs. Under 42 USC Section 9658,
state statutes of limitation respecting recovery
of damages for environmental torts may be
extended. As the code states, “[I]f the applicable limitations period for such action (as
specified in the State statute of limitations or
under common law) provides a commencement date which is earlier than the federally
required commencement date, such period
shall commence at the federally required
commencement date in lieu of the date spec-
contingent at the time of the decedent’s death.
While the opinion may be limited to claims
arising in contract, certain language in the
opinion is sufficiently broad to apply to any
circumstance in which the claimant could
not have sued the decedent for injuries sustained at the time of death. In the case of
claims for contribution under CERCLA, if the
contribution expenditures are incurred after
the decedent’s death, Dacey raises the prospect
that Section 366.2 will not bar a claim
asserted against an administrator or trustee
more than one year after the decedent’s death.
The application of the nonclaim statutes
is subject to less doubt. Dacey, for example,
In Dacey v. Taraday, the court of appeal found that the
administrator of an estate could not invoke the bar of
Section 366.2 against a contract claim that was still
contingent at the time of the decedent's death.
dispose of hazardous materials.5
Under Section 9607(a), CERCLA liability
includes:
A. All costs of removal or remedial
action incurred by the United States
Government or a State or an Indian
tribe not inconsistent with the national
contingency plan; B. Any other necessary costs of response incurred by any
other person consistent with the
national contingency plan; C. Damages
for injury to, destruction of, or loss of
natural resources, including the reasonable costs of assessing such injury,
destruction, or loss resulting from such
a release; and D. The costs of any
health assessment or health effects
study carried out under section 9604(i)
of this title.
Notably, in addition to empowering the
government to enforce removal and remediation of contaminants, CERCLA creates
causes of action in favor of private parties,
including for contribution and damages.
Statutes of limitation vary depending on
whether the action is for contribution or for
costs of responding to contamination, and
whether funds have been expended for a
removal action or a remedial action, some
being three years and others six years.6 Of
material consequence, the various statutory
periods may run from the date of a judgment, a court-approved settlement, an administrative order, or from completion of work.
The limitations periods may span decades
after the contamination is caused or discovered. A viable claim for contribution or
response costs may be timely asserted under
a CERCLA statute of limitations years after
28 Los Angeles Lawyer November 2013
ified in such State statute.”
Thus, in addition to providing federal
remedies, CERCLA potentially has a significant effect on rights under state law. For
example, in Angeles Chemical Company Inc.
v. Spencer & Jones, the court of appeal held
that California’s 10-year statute of limitation for construction defect claims was preempted. Negligence and breach-of-contract
claims were therefore viable even though
more than 10 years had passed since the
occurrence that gave rise to liability.7
One Year or More?
California’s one-year statute of limitation
respecting postdeath lawsuits provides:
If a person against whom an action
may be brought on a liability of the
person, whether arising in contract,
tort, or otherwise, and whether accrued
or not accrued, dies before the expiration of the applicable limitations
period, and the cause of action survives, an action may be commenced
within one year after the date of death,
and the limitations period that would
have been applicable does not apply.8
This language would appear sufficiently
broad to bar claims for contribution and
damage to natural resources, whether accruing before or after the decedent’s death. A
number of decisions have applied Section
366.2 to bar claims.9 However, the general
application of these decisions has been called
into question by the more recent holding in
Dacey v. Taraday.10 In Dacey, the court of
appeal found that the administrator of an
estate could not invoke the bar of Section
366.2 against a contract claim that was still
recognizes that the statutes are clearly
intended to apply to claims that may be unaccrued, unliquidated, or contingent.11 However, the nonclaim statutes may prove a double-edged sword. In order to benefit from
their protection, an administrator-trustee
must serve notice of administration, including the right to file a claim, on “all known or
reasonably ascertainable creditors of the decedent.”12 Any creditor not served may seek
leave of court to file a claim within 60 days
after the creditor “has actual knowledge of the
administration of the estate.” Similarly, the
creditor may seek leave of court to file a
claim if the creditor “had no knowledge of the
facts reasonably giving rise to the existence of
a claim more than 30 days prior to the time
for filing a claim” and files its petition for
leave to file a claim within 60 days after the
creditor has actual knowledge of facts reasonably giving rise to the claim and of the
administration of the estate.13 While the nonclaim statutes appear to provide better protection under California law than Section
366.2, they require effective notice to potential environmental claimants and are not a certain bar to liability.
In sum, an administrator or trustee who
relies on Section 366.2 risks exposure to
environmental claims that accrue after the
decedent’s death. The nonclaim statutes do
not provide sure protection against the risk
of claims by parties who were not notified
or were not aware of facts disclosing that a
claim had accrued. Moreover, issues of liability do not terminate on the distribution of
assets to beneficiaries. To the extent that a
distribution is made by a trustee without satisfaction of subsisting indebtedness, the dis-
MCLE Test No. 229
The Los Angeles County Bar Association certifies that this activity has been approved for Minimum
Continuing Legal Education credit by the State Bar of California in the amount of 1 hour.
1. Under California law, a creditor of a deceased person generally has one year from the date of death to
bring an action against the deceased person’s successors.
True.
False.
12. Two U.S. courts of appeal have held that CERCLA provisions that extend state statutes of limitations for
environmental torts were intended to apply equally to
statutes of repose.
True.
False.
2. A nonclaim statute relieves a creditor of the obligation to file a claim in a probate proceeding.
True.
False.
13. In order for a probate administrator to be protected by California’s nonclaim statutes, he or she
must serve notice of the right to file a claim on all
known or reasonably ascertainable creditors.
True.
False.
3. “CERCLA” refers to the Comprehensive Environmental
Response, Compensation, and Liability Act.
True.
False.
4. An owner of real property is presumptively a potentially responsible party under CERCLA unless the owner
can prove entitlement to innocent landowner status.
True.
False.
5. CERCLA only creates rights in the U.S. government,
a state, or an Indian tribe and does not affect the rights
of private parties against one another.
True.
False.
14. A creditor who is not timely served with notice of
the right to file a probate claim must file a claim within
six months of learning of the administration of the
estate.
True.
False.
15. If a creditor does not have knowledge of facts reasonably giving rise to a claim as of 30 days prior to the
expiration of the claims filing period, and therefore
omits filing a claim, the creditor is forever barred from
pursuing recovery.
True.
False.
6. Code of Civil Procedure Section 366.2 bars actions
for breach of contract brought more than one year after
the death of a contracting party, even if the breach
had not occurred prior to the date of death.
True.
False.
16. The court in Witko v. Beekhuis held that any state
statute of limitation running from the date of a responsible party’s death will be unaffected by CERCLA.
True.
False.
7. Federal statutes always preempt state statutes
addressing the same subject matter.
True.
False.
17. An administrator of a probate estate may rely on
Code of Civil Procedure Section 366.2 to protect against
all claims for damages based on environmental torts
committed by the decedent.
True.
False.
8. Federal courts have uniformly held that the CERCLA
statutes of limitation preempt state nonclaim statutes.
True.
False.
9. Statutes of repose differ from statutes of limitation
in that statutes of repose may bar a suit before a cause
of action has accrued.
True.
False.
10. CERCLA may extend the statute of limitation for
actions under state law to recover damages for environmental torts.
True.
False.
11. California’s 10-year statute of limitations for construction defects may be extended by CERCLA.
True.
False.
18. Federal statutes will only preempt state statutes on
the same subject matter when Congress has expressed
a plain intent to preempt state law.
True.
False.
19. A court may infer preemption from federal regulation that is sufficiently comprehensive to leave no room
for state regulation.
True.
False.
20. Federal law may be deemed to preempt state law
to the extent it actually conflicts with federal law.
True.
False.
MCLE Answer Sheet #229
THE PROPERTIES OF PREEMPTION
Name
Law Firm/Organization
Address
City
State/Zip
E-mail
Phone
State Bar #
INSTRUCTIONS FOR OBTAINING MCLE CREDITS
1. Study the MCLE article in this issue.
2. Answer the test questions opposite by marking
the appropriate boxes below. Each question
has only one answer. Photocopies of this
answer sheet may be submitted; however, this
form should not be enlarged or reduced.
3. Mail the answer sheet and the $20 testing fee
($25 for non-LACBA members) to:
Los Angeles Lawyer
MCLE Test
P.O. Box 55020
Los Angeles, CA 90055
Make checks payable to Los Angeles Lawyer.
4. Within six weeks, Los Angeles Lawyer will
return your test with the correct answers, a
rationale for the correct answers, and a
certificate verifying the MCLE credit you earned
through this self-assessment activity.
5. For future reference, please retain the MCLE
test materials returned to you.
ANSWERS
Mark your answers to the test by checking the
appropriate boxes below. Each question has only
one answer.
1.
■ True
■ False
2.
■ True
■ False
3.
■ True
■ False
4.
■ True
■ False
5.
■ True
■ False
6.
■ True
■ False
7.
■ True
■ False
8.
■ True
■ False
9.
■ True
■ False
10.
■ True
■ False
11.
■ True
■ False
12.
■ True
■ False
13.
■ True
■ False
14.
■ True
■ False
15.
■ True
■ False
16.
■ True
■ False
17.
■ True
■ False
18.
■ True
■ False
19.
■ True
■ False
20.
■ True
■ False
Los Angeles Lawyer November 2013 29
tributees are liable for payment on a pro
rata basis.14
Patchwork as the California protections
may be, do they override CERCLA statutes
of limitation? While a number of reported federal decisions have addressed whether specific
statute of limitation provisions in CERCLA
preempt state law, they reach conflicting
results. The outcome appears in part to
depend on the specific cause of action and
statute of limitation at issue. Without respect
to federal preemption, California statutes of
limitation for damage to real property may
range from as short as three years for negligently caused harm to 10 years for construction defects.15
The leading federal decision relating to
CERCLA’s three-year statute of limitations for
contribution actions is Witco Corporation
v. Beekhuis.16 In Witco, the court of appeal
considered whether Delaware’s eight-month
probate nonclaim filing statute insulated the
executor of a probate estate and derivative
trusts from claims for contribution for environmental cleanup. Witco Corporation had
owned the land in question from 1972 to
1977, been aware of the environmental issues
since at least 1985, and entered into a cleanup
consent decree with the EPA in 1992. The
decedent, Beekhuis, had owned and operated a corporation that had merged into a
Witco subsidiary, eventually constituting
Witco, an owner of the contaminated property. Beekhuis was presumably deemed a
potentially responsible party because of his
operation of the predecessor entity and his
actions as an officer of Witco. Beekhuis and
his insurer had allegedly been placed on notice
of their liability in 1988.
The court in Witco cited language from
California Federal Savings and Loan Association v. Guerra as setting forth the applicable standard for a finding of federal preemption:
In determining whether a state statute
is pre-empted by federal law and therefore invalid under the Supremacy
Clause of the Constitution, our sole
task is to ascertain the intent of Congress. Federal law may supersede state
law in several different ways. First,
when acting within constitutional limits, Congress is empowered to preempt state law by so stating in express
terms. Second, congressional intent to
preempt state law in a particular area
may be inferred where the scheme of
federal regulation is sufficiently comprehensive to make reasonable the
inference that Congress “left no room”
for supplementary state regulation.…As a third alternative, those
areas where Congress has not completely displaced state regulation, fed30 Los Angeles Lawyer November 2013
eral law may nonetheless pre-empt
state law to the extent it actually conflicts with federal law. Such a conflict
occurs either because “compliance
with both federal and state regulations
is a physical impossibility,” or because
the state law stands “as an obstacle to
the accomplishment and execution of
the full purposes and objectives of
Congress.”17
The Witco court noted that three federal
district courts have found that the CERCLA
statute of limitations affirmatively preempted
state nonclaim statutes on the ground that
preemption is necessary to implement the
overriding federal policy that those who are
responsible for improper disposal of chemical poisons should bear the expense of
cleanup.18 Nevertheless, the Witco court proceeded to reach a contrary result on four
grounds. First, the court found nothing in
CERCLA to indicate congressional intent to
preempt state law governing claims against
decedent’s estates, which is an area traditionally reserved to state law. Second, the
court found a justifiable inference that
Congress intended to leave state law respecting decedent’s estates unchanged. This reasoning is based on inclusion of an innocent
landowner defense in Section 9607(b)(3).
Third, the court found that after the running of the eight-month nonclaim period, an
executor lacks capacity to be sued, and that
state law on capacity is determinative under
Rule 17(b) of the Federal Rules of Civil
Procedure. Last, the court found that for
pragmatic reasons (i.e. certainty governing the
descent of property) Congress could not have
intended to preempt state nonclaim statutes.
Witco is cited with approval in Marsh v.
Rosenbloom, which rejects a claim that CERCLA preempted Delaware’s statute barring
claims against a corporation that are made
more than three years after completion of
the corporation’s dissolution. Another case,
Boyle v. County of Kern, holds that filing of
a federal civil rights complaint within the
claim filing period does not satisfy the nonclaim statute filing requirement.19
McDonald v. Sun Oil Company
In the context of claims for contribution,
Witco makes a strong argument against federal preemption of state nonclaim statutes.
This provides some reassurance to a probate
practitioner, but several contrary federal decisions leave the issue unsettled. Further, the
Ninth Circuit’s decision in McDonald v. Sun
Oil Company puts Witco into some doubt.20
In particular, it is doubtful that Witco can be
extended to Section 366.2, which is not specifically tied to administration of estates and
would not support Witco’s argument regarding an executor’s lack of capacity to be sued.
In McDonald, the court considered
whether Section 9658 preempts an Oregon
statute of repose that limits the right to bring
suit without respect to knowledge of accrual
of a claim.21 Specifically, the court found that
the Oregon statute that precluded action for
negligent injury to a person or property more
than 10 years from the date of the act or
omission complained of was preempted by
Section 9658. The court found in favor of pre-
Ruling on Preemption
Federal courts are frequently called upon to determine whether a federal statute preempts a parallel state statute. When doing so, courts typically consider three factors.
First, if Congress has expressed a plain intent to preempt state law pertaining to a subject
matter governed by the supremacy clause of the U.S. Constitution, this is dispositive.
Second, in the absence of a clearly expressed intent, the court may infer preemption from
federal regulation that is sufficiently comprehensive to leave no room for state regulation.
Third, federal law may be deemed to preempt state law to the extent it actually conflicts
with federal law.1
Some recent decisions reflect the range of judicial reasoning on preemption. In In re
Western States Wholesale Natural Gas Antitrust Litigation,2 the court held that the federal
Natural Gas Act was not intended to preempt state police power to enforce state antitrust
laws on retail sales of natural gas. In Movsesian v. Victoria Versicherung AG,3 the court held
that a California statute vesting state courts with jurisdiction over insurance actions by
Armenian Genocide victims and extending statutes of limitation for victims’ claims was preempted by the U.S. Constitution’s grant of exclusive authority in foreign affairs to the federal government. In Castro v. Collecto Inc.,4 the court held that a four-year statute of limitation under Texas law was not conflict-preempted by a two-year limit in the Federal
Communications Act, as applied to a claim respecting unlawful collection practices relating
—R.S.C.
to cellular phone bills.—
1 California
Fed. Sav. and Loan Ass’n v. Guerra, 479 U.S. 272, 280-81 (1987).
re W. States Wholesale Natural Gas Antitrust Litig., 715 F. 3d 716 (9th Cir. 2013).
3 Movsesian v. Victoria Versicherung AG, 670 F. 3d 1067 (9th Cir. 2011).
4 Castro v. Collecto Inc., 634 F. 3d 779 (5th Cir. 2011).
2 In
emption notwithstanding a relatively minor
injury to the plaintiff in the form of $70,000
in cleanup costs.
The court in McDonald explicitly rejected
an argument that, as a statute of repose rather
than a statute of limitation, the Oregon statute
was not intended to be preempted. In holding that Section 9658 was intended to apply
to both statutes of repose and statutes of
limitation, the court defined statutes of limitation and repose:
Statutes of limitations and repose are
distinct legal concepts with distinct
effects. “A statute of limitations requires a lawsuit to be filed within a
specified period of time after a legal
right has been violated….On the other
hand, statutes of repose are designed
to bar actions after a specified period
of time has run from the occurrence of
some event other than the injury which
gave rise to the claim.” Statutes of limitations preclude[ ] the plaintiff from
proceeding….A statute of repose, however…can bar a suit even before the
cause of action could have accrued.…In
proper circumstances, it can be said to
destroy the right itself. It is not concerned with the plaintiff’s diligence; it
is concerned with the defendant’s
peace.22
In reaching this result, the court in
McDonald explicitly rejected a contrary finding by the Fifth Circuit in Burlington Northern & Santa Fe Railway Company v. Poole
Chemical Company23 that Section 9658 was
not intended to apply to statutes of repose.
The holding in McDonald has subsequently
been followed by the Fourth Circuit in
Waldburger v. CTS Corporation,24 a case
decided on similar facts.
McDonald is noteworthy because Section
366.2 and the nonclaim statutes are arguably
statutes of repose. It is entirely conceivable
that, if asked to rule on the issue of preemption pursuant to Section 9658 as applied to
the California statutes, the Ninth Circuit
could reach a contrary result. Nevertheless,
McDonald at least may be cited as dicta to
support the proposition that California state
law negligence claims predicated on release of
pollutants are not barred by Section 366.2 or
the nonclaim statutes and that pursuant to
Probate Code Section 9658, the claims are
governed by a hybrid federal-state statute of
limitation that runs from the date of discovery. Further, the willingness of the McDonald
court to treat CERCLA preemption of statutes
of repose in a manner identical to statutes of
limitation raises a question as to whether the
Ninth Circuit would reach a result contrary
to Witco regarding claims of contribution for
costs of removal or remedial action.
Practitioners representing administrators
of decedents’ estates routinely rely on Section
366.2 and the nonclaim statutes in providing
their clients assurance that money or assets
may be safely distributed without concern
for later claims. Unfortunately, CERCLA casts
a cloud over the ability of any executor or
trustee to distribute real property with assurance that all viable claims have been satisfied
or are barred. Moreover, even purely personal liabilities of the decedent may survive.
That being said, it is clear that, for trustees,
use of the notice to creditors mechanism set
forth in Sections 19100 et seq. potentially
provides significant protection. Use of this
procedure would appear far preferable to passive reliance on the one-year statute of limitations of Section 366.2.
■
1 CODE
CIV. PROC. §366.2.
CODE §§9000 et seq. (probate estates); PROB.
CODE §§19000 et seq. (trust estates).
3 42 U.S.C.A. §§9601-9675.
4 PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714
F. 3d 161 (4th Cir. 2013).
5 For a discussion of whether executors and trustees will
be treated as innocent landowners, see United States v.
Newmont USA Ltd., 504 F. Supp. 2d 1050, 1067
(E.D. Wash. 2007) (noting 42 U.S.C.A. §9607).
6 See 42 U.S.C.A. §9607, §9613.
7 Angeles Chem. Co. Inc. v. Spencer & Jones, 44 Cal.
App. 4th 112 (1996).
8 CODE CIV. PROC. §366.2(a).
9 See Bradley v. Breen, 73 Cal. App. 4th 798 (1999);
Dawes v. Rich, 60 Cal. App. 4th 24, 32-36 (1997); cf.
Battuello v. Battuello, 64 Cal. App. 4th 842 (1998).
10 Dacey v. Taraday, 196 Cal. App. 4th 962, 984-87
(2011).
11 Id. at 983; PROB. CODE §9000; CODE CIV. PROC.
§§338(b), 337.15.
12 PROB. CODE §9050.
13 PROB. CODE §9103.
14 PROB. CODE §§19103(d), 19400 et seq.
15 CODE CIV. PROC. §§338(b), 337.15.
16 Witco Corp. v. Beekhuis, 38 F. 3d 682 (1994); 42
U.S.C.A. §9613(g)(3).
17 Witco Corp. v. Beekhuis, 38 F. 3d 682, 687 (1994)
(quoting California Fed. Sav. and Loan Ass’n v. Guerra,
479 U.S. 272, 280-81 (1987)). See also Florida Lime
& Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142143 (1963); Hines v. Davidowitz, 312 U.S. 52, 67
(1941); Michigan Canners & Freezers Ass’n, Inc. v.
Agricultural Mktg. and Bargaining Bd., 467 U.S. 461,
478 (1984); Fidelity Fed. Sav. & Loan Ass’n v. De la
Cuesta, 458 U.S. 141, 156 (1982); but see Maryland
v. Louisiana, 451 U.S. 725, 746 (1981); see also 42
U.S.C. §9613(g)(3).
18 See Freudenberg-NOK Gen. P’ship v. Thomopoulos,
1991 WL 325290, at *2 (D. N.H. 1991); Soo Line R.R.
Co. v. B.J. Carney & Co., 797 F. Supp. 1472 (D.
Minn. 1992); Steego Corp. v. Ravenal, 830 F. Supp. 42
(D. Mass. 1993).
19 Marsh v. Rosenbloom, 499 F. 3d 165 (2nd Cir.
2007); Boyle v. County of Kern, No. 1:2003cv05162
(E.D. Cal. Feb. 7, 2003).
20 McDonald v. Sun Oil Co., 548 F. 3d 774 (2008).
21 See 42 U.S.C. §9658(a)(1).
22 McDonald, 548 F. 3d at 779-80 (citing Underwood
Cotton Co., Inc. v. Hyundai, 288 F. 3d 405, 408-09
(9th Cir. 2002)).
23 Burlington N. & Santa Fe Ry. Co. v. Poole Chem.
Co., 419 F. 3d 355, 363 (5th Cir. 2005).
24 Waldburger v. CTS Corp., 2013 WL 3455775 (4th
Cir. 2013).
2 PROB.
Statement of Ownership, Management
and Circulation
UNITED STATES POSTAL SERVICE
(Required by 39 USC 3685)
1.
2.
3.
4.
Publication Title: Los Angeles Lawyer
Publication Number: 01622900
Filing Date: September 18, 2013
Issue Frequency: Monthly (Except combined
July/August)
5. Number of Issues Published Annually: 11
6. Annual Subscription Price: $14.00 members;
$28.00 nonmembers
7. Complete Mailing Address of Known Office of
Publication: Los Angeles Lawyer, 1055 West 7th
Street, Suite 2700, Los Angeles, CA 90017-2553
8. Complete Mailing Address of Headquarters or
General Business Office of Publisher: Los
Angeles Lawyer, 1055 West 7th Street, Suite
2700, Los Angeles, CA 90017-2553
9. Full Names and Complete Mailing Addresses of
Publisher, Editor, and Managing Editor:
Publisher: Samuel L. Lipsman, Los Angeles
Lawyer, 1055 West 7th Street, Suite 2700, Los
Angeles, CA 90017-2553. Editor: Samuel L.
Lipsman, Los Angeles Lawyer, 1055 West 7th
Street, Suite 2700, Los Angeles, CA 90017-2553.
Managing Editor: Samuel L. Lipsman, Los
Angeles Lawyer, 1055 West 7th Street, Suite
2700, Los Angeles, CA 90017-2553. Contact
Person: Samuel L. Lipsman. Telephone: (213)
896-6503
10. Owner: Los Angeles County Bar Association,
1055 West 7th Street, Suite 2700, Los Angeles,
CA 90017-2553
11. Known Bondholders, Mortgagees, and Other
Security Holders Owning or Holding 1 Percent
or More of Total Amount of Bonds, Mortgages,
or Other Securities. None
12. Tax Status. The purpose, function, and nonprofit
status of this organization and the exempt status
for federal income tax purposes: Has Not
Changed During Preceding 12 Months. N/A
13. PublicationTitle: Los Angeles Lawyer.
14. Issue Date for Circulation Data Below: Sept. 2013.
Extent and nature of circulation: (Column 1:
Average No. Copies Each Issue During Preceding 12 months. Column 2: Number Copies of
Single Issue Nearest to Filing Date.)
Column 1 Column 2
a. Total Number of Copies
25,350
(Net Press Run)
23,349
b. Paid Circulation
(1) Mailed Outside-County
24,059
21,643
Paid Subscriptions
stated on PS Form 3541
(2) Mailed In-County Paid
Subscriptions stated on
0
0
PS Form 3541
(3) Paid Distribution Outside
0
0
the Mails
(4) Paid Distribution by Other
Classes of Mail through
0
0
the USPS
24,059
21,643
c. Total Paid Distribution
d. Free or Nominal Rate Distribution
(1) Free or Nominal Rate
Outside-County Copies
106
included on PS Form 3541 106
(3) Free of Nominal Rate Copies
130
111
Mailed at Other Classes
e. Total Free or Nominal Rate
Distribution
f. Total Distribution
g. Copies Not Distributed
h. Total
i. Percent Paid
217
21,860
1,489
23,349
99%
236
24,295
1,055
25,350
99%
16. This Statement of Ownership will be printed in
the November 2013 issue of this publication.
17. Signature and Title of Editor, Publisher, Business
Manager, or Owner: Samuel L. Lipsman,
Publisher. Date: 9/18/13. I certify that all informa
tion furnished on this form is true and complete. I
understand that anyone who furnishes false or
misleading information on this form or who omits
material or information requested on the form may
be subject to criminal sanctions (including fines
and imprisonment) and/or civil sanctions (including
multiple damages and civil penalties).
Los Angeles Lawyer November 2013 31
by Kenneth K. Lee
Questionable
CLASSES
false advertising
class actions have
shown less favor
to plaintiffs
32 Los Angeles Lawyer November 2013
IN RECENT YEARS, California has become
a haven for consumer class action lawsuits.
This surge in class action complaints led the
American Tort Reform Foundation to dub the
Golden State as America’s number one “judicial hellhole.”1 Many factors account for
this spike in consumer class actions. One key
reason has been several high-profile proplaintiff decisions that the Ninth Circuit and
the California Supreme Court have issued
in the past five years.
The pendulum, however, may finally have
begun swinging the other way. Judges in
California, especially federal judges, have
taken a more skeptical view of many consumer class action lawsuits.2 They have narrowly interpreted the proplaintiff decisions
and have shown a willingness to apply common sense in dismissing many of the more
dubious class action lawsuits at the pleading
stage.
Over the past several years, the plaintiffs’
bar has challenged a wide swath of business
practices, ranging from the sending of unauthorized text message advertisements to covert
tracking of Internet web-surfing information, but most consumer class action lawsuits
in California are still based on advertising. In
a typical class action suit, plaintiffs’ lawyers
allege that companies have deceived consumers through false and misleading advertisements or packaging on the product.
For example, Ferrero, the company that
makes Nutella spread, was hit with a class
action lawsuit alleging that it had misleadingly
marketed its chocolate spread as “healthful.” According to the complaint, Ferrero
engaged in an ad campaign of “images and
videos of wholesome families and happy,
healthy children enjoying Nutella for breakfast before going to school.”3 Despite the relatively scant evidence of wrongdoing, the
company recently entered into a $3 million
settlement.4 Companies as diverse as Dell
and Diamond Foods have recently settled
multimillion dollar false advertising lawsuits
filed in California.5
This recent wave of consumer class action
lawsuits can be attributed to several interrelated factors. First, California’s consumer
protection laws—the Unfair Competition
Kenneth K. Lee is a partner at Jenner & Block’s Los
Angeles office and has defended numerous consumer class action lawsuits in California and elsewhere.
KEN DORRAL
Recent decisions in
Selecting A Top-Tier Neutr
The Academy is pleased to recognize over 60 n
Lynne S. Bassis
(213) 683-1600
Michael J. Bayard
(213) 383-9399
Daniel Ben-Zvi
(310) 201-0010
Lee Jay Berman
(310) 203-0700
Viggo Boserup
(310) 309-6205
Greg Derin
(310) 552-1062
Michael Diliberto
(310) 201-0010
Randall Erickson
(949) 263-8400
Max Factor III
(310) 456-3500
William Fitzgerald
(310) 440-9090
Louise LaMothe
(805) 563-2800
Leonard Levy
(310) 201-0010
Ronald Mandell
(310) 271-8912
Steve Mehta
(661) 284-1818
Jeffrey Palmer
(626) 795-7916
At www.CaliforniaNeutrals.org you can search by subject matter expertise, location and preferred
ADR service in just seconds. You can also determine availability by viewing many members’
The National Academy of Distinguished Neutrals, is an association of over 800 mediators and arbitrators who have substantial experience in the resolution of commercial and civil disputes.
All members have been recognized for their accomplishments through the Academy’s peer nomination system and extensive attorney-client review process.
Membership is by invitation only and is limited to individuals who devote substantially all of their professional efforts to ADR practice.
To access our FREE National Directory of over 800 trusted mediators & arbitrators, please visit www.NADN.org/directory
ral Has Never Been Easier
neutrals across Southern California, including...
Kenneth Byrum
(661) 861-6191
George Calkins
(310) 309-6206
R.A. Carrington
(805) 565-1487
Steven Cohen
(310) 315-5404
Kenneth C. Gibbs
(310) 309-6205
Reginald Holmes
(626) 432-7222
Laurel Kaufer
(818) 888-4840
Joan Kessler
(310) 552-9800
Linda Klibanow
(626) 204-4000
Barry Ross
(818) 840-0950
Deborah Rothman
(800) 616-1202
John Leo Wagner
(800) 488-8805
Ivan Stevenson
(310) 540-2138
Henry Silberberg
(310) 276-6671
www.CaliforniaNeutrals.org
Need a top-rated mediator /arbitrator outside of California? Visit www.NADN.org
SmartPhone Link
Ernest C. Brown
(800) 832-6946
Law, the Consumer Legal Remedies Act, and
the False Advertising Law—are generally
considered to be more advantageous to plaintiffs than similar laws of many other states.
For example, California, unlike many of the
other states, does not have a scienter requirement for false advertising claims. Moreover,
many California courts have construed these
statutes broadly in favor of plaintiffs, even
though the plain language of California’s
statutes is not markedly different from the
laws of other states. Some California courts,
for instance, have held that there is no need
particular, has been a boon to the plaintiffs’
bar because it contains language that can be
construed as making it difficult for a defendant to prevail on a Rule 12(b) motion.8
Specifically, some have read the opinion as
precluding a dismissal on the pleadings even
if a product’s packaging accurately discloses
all ingredients. The Ninth Circuit reversed the
dismissal of a lawsuit challenging the packaging of Gerber’s Fruit Juice Snacks. Although
the ingredient list accurately disclosed all the
ingredients, the court held that the packaging
was potentially deceptive because it depicted
to show reliance or damages by unnamed
members of the proposed class.6
More recently, the California Supreme
Court eroded the statutory standing requirement for false advertising claims. In Kwikset
Corporation v. Superior Court, the plaintiff
bought a lockset that was labeled with the
words “Made in the U.S.A” but a small fraction of the parts was made elsewhere. 7
Although there was no allegation that the
lockset was defective, the plaintiff brought a
putative class action lawsuit against the maker
of the lockset. The maker argued that the
plaintiff had suffered no real harm because the
lockset performed as advertised and as one
would reasonably expect from a lockset.
Nonetheless, the California Supreme Court
held that labeling does matter and that the
plaintiff had suffered a sufficient injury to pursue the lawsuit.
The Ninth Circuit has also played a role
in making California a haven for plaintiffs’
lawyers. Its Williams v. Gerber decision, in
a picture of a fruit that was not contained in
the product. The Ninth Circuit thus held that
there was a factual issue that would need to
be decided at a later stage.9
Moreover, the Class Action Fairness Act
(CAFA) may have had the unintended effect
of encouraging a different form of forumshopping—not by state but by federal circuit.
Concerned by plaintiffs’ lawyers who were
forum-shopping for state courts that are notorious for certifying classes even in dubious
cases, Congress passed CAFA in 2005, making it easier for defendants to remove cases to
federal courts.10 Under CAFA, there is no
longer a requirement for “complete diversity” (none of the plaintiffs can be from the
same state as any of the defendants). Rather,
“minimal diversity” (at least one plaintiff is
from a state different from one defendant) is
sufficient to confer federal jurisdiction as
long as the proposed class has more than
100 members and the amount in controversy
exceeds $5 million.11
36 Los Angeles Lawyer November 2013
The effect of the CAFA has served to neutralize many proplaintiff forums. For example, in Texas state court judges are often
more likely to favor class action plaintiffs
than federal judges, many of whom have a
more probusiness bent. On the other hand,
the plaintiff’s bar views California’s federal
bench as more consumer-friendly, especially
because California federal judges must decide
cases under the penumbra of some of the
Ninth Circuit’s more proplaintiff opinions.
Indeed, one plaintiffs’ lawyer who is handling over 30 food labeling cases in the
Northern District of California told a legal
newspaper, “The law is more favorable here
in than in any other jurisdictions that we’ve
looked at.”12
Finally, the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion has
made false advertising claims more enticing
to plaintiffs’ lawyers.13 In Concepcion, the
plaintiffs brought a putative class action suit
against AT&T, alleging that it had falsely
advertised its phones as “free” when in fact
it had charged a sales tax on the full price of
the phones.14 Relying on an arbitration provision in the AT&T service agreement that
barred class actions, AT&T moved to compel the case to arbitration. The district court
and the Ninth Circuit held that the arbitration provision was unconscionable and thus
unenforceable, but the U.S. Supreme Court
reversed and upheld the validity of such arbitration provisions.15 The Concepcion decision
significantly reduced the power of class action
lawsuits because companies can now insert
arbitration provisions that bar class actions
into their contracts with consumers. For most
consumer goods involving claims of false
advertisements, however, no written contracts (and thus no arbitration provisions)
are implicated. Accordingly, many plaintiffs’
lawyers have focused their attention on products that are sold without formal contracts.
A High Burden for Dismissal
If false advertising cases can survive a motion
to dismiss, settlement leverage increases dramatically. Furthermore, if a class is certified,
a substantial class settlement becomes more
likely regardless of the merits of the case.
While a class action can be a useful and necessary device to remedy certain wrongs, a
large number of the recent false advertising
suits arguably lack merit. They are essentially lawyer-manufactured lawsuits in which
there has been no real harm to the consumers,
and the supposedly misleading statement is in
reality marketing fluff that no reasonable
consumer would believe.
The Nutella case is a prime example.
Notwithstanding the television ads, it seems
highly unlikely that most consumers believed
that a hazelnut and chocolate spread is some-
how healthful. Fortunately for plaintiffs’
lawyers, it is generally difficult to prevail on
a motion to dismiss under California’s consumer protection laws. On the grounds that
a factual issue may exist, too many judges
have declined to dismiss even highly questionable class action lawsuits at the pleading
stage. Further, it is comparatively cost-efficient
for plaintiffs’ lawyers to pursue a false advertising case, at least compared with other class
action cases. For example, false advertising
lawsuits are not likely to involve expensive
expert analysis as those in mass tort cases.
Despite this tilted playing field, companies
are not defenseless against these false advertising lawsuits. Defense counsel can and
should vigorously contest these lawsuits at
every stage, from motion to dismiss to class
certification to summary judgment. But that
does not mean that companies have to slog
through years of attrition to defeat certification or prevail on summary judgment.
Indeed, many judges, especially at the
federal level, have become more receptive to
dismissing class action lawsuits at the pleading stage, often through preemption.16 Certain industries are highly regulated by the
U. S. government, and many federal statutes
have broad preemption provisions that displace any state law claims. For example, the
Nutrition Labeling and Education Act (NLEA)
sets a uniform national standard for food
labeling and prevents states from enacting
any law that is “not identical” to the federal
standard.17 Accordingly, many federal courts
have dismissed state law claims that are inconsistent with federal law. A few years ago,
many plaintiffs began filing lawsuits against
food companies alleging that the statement
“0g trans fat” is false and misleading because
the food products purportedly had trace
amounts of trans fat. FDA regulations, however, expressly permit food manufacturers to
make the statement, even if there are trace
amounts of trans fat.18
Common Sense Analysis
When no preemption provision is available,
many judges have relied on common sense to
dismiss class action lawsuits based on questionable theories of liability. This increased
assertiveness in disposing of class action lawsuits at the pleading stage is in keeping with
the U.S. Supreme Court’s guidance in Iqbal
and Twombly that federal judges must reject
implausible theories.19 In Twombly, the
Supreme Court—in a 7-2 decision written
by Justice David Souter—affirmed the dismissal of an antitrust lawsuit because the
plaintiffs had failed to allege sufficient facts
that “nudged their claims across the line from
conceivable to plausible.”20 The Supreme
Court established this plausibility standard at
the pleading stage because the court was
mindful of the onerous discovery costs
imposed on defendants if a baseless case is
allowed to move forward.21 As the Court
put it, “the threat of discovery expense will
push cost-conscious defendants to settle even
anemic cases.”22 The Court in Iqbal made
clear that the plausibility standard applies
beyond the antitrust context.23
The policy rationale underlying Iqbal and
Twombly is doubly persuasive in the class
action context. Unlike most civil litigation,
discovery costs in class actions are borne
almost exclusively by the defendant company. A named plaintiff likely will not have
substantial information or documents to produce. In contrast, that named plaintiff can
demand defendant companies to spend hundreds of thousands of dollars to scour for
internal documents. These discovery demands
on defendants can be particularly onerous
in today’s world of e-mail and other electronic materials. Further, the decision not to
dismiss a class action case tilts the scale
toward the plaintiffs greatly, given that class
action cases rarely go to trial due to the enormous potential liability.
The Ninth Circuit recently demonstrated
the increased skepticism that federal judges
are applying to class action cases. In Stuart v.
Cadbury Adams, the plaintiff alleged that
the statement that Trident White gum “removes stains” was misleading because the
company had failed to mention that a consumer must also practice oral hygiene to
maintain clean teeth.24 The district court dismissed the case, ruling that the allegations
“defied common sense.” The Ninth Circuit
affirmed the dismissal, reasoning that “[o]nly
an unreasonable consumer would be confused or deceived by Cadbury’s failure to
clarify that Trident White gum works only if
consumers continue to brush and floss regularly.”25
The Ninth Circuit again emphasized last
year that courts need not indulge fanciful
class action theories. The plaintiff in Carrea
v. Dreyer’s Grand Ice Cream, Inc., argued that
Dreyer had marketed its “original vanilla” ice
cream as more nutritious than other brands.26
The Ninth Circuit affirmed the dismissal,
holding that “it strains credulity to claim
that a reasonable consumer would be misled
to think that” an ice cream with “chocolate
coating topped with nuts” is healthier than
competing brands.27
As the California Court of Appeal has
explained, a claim of false advertising can be
sustained only if “it is probable that a significant portion of the general consuming
public or of targeted consumers, acting reasonably in the circumstances, could be misled.”28 The court must view the challenged
advertisement or packaging from the perspective of a “reasonable consumer,” not
“the unwary consumer” or “a least sophisticated consumer.”29
These Ninth Circuit decisions are particularly notable because they were decided
after Williams v. Gerber. The Ninth Circuit
in Williams refused to dismiss the case at the
pleading stage, even though the product’s
ingredient list had accurately disclosed all of
the ingredients, but many federal courts in
California have recognized that the holding
in Williams is actually much narrower. The
Ninth Circuit said that the case could not be
dismissed at the pleading stage because there
were alleged affirmative misrepresentations in
the front of the packaging. Thus, Williams
reaffirms the unremarkable proposition that
a defendant cannot make a false statement in
the front of the packaging and “then rely on
the ingredient list to correct those misinterpretations [to] provide a shield for liability for
the deception.”30
Many federal district court judges have
taken note that they need not let a questionable case proceed merely because a plaintiff’s
lawyer invokes the mantra that there supposedly is a factual dispute or that dismissals
should supposedly be rare under California’s
consumer protections laws. The recent case of
Williamson v. Apple, Inc., is instructive.31
The plaintiff alleged that the iPhone’s glass casing cracked when dropped, despite Apple’s
statements that it used “the same type of glass
used in the windshields of helicopters and
high-speed trains” and that it was “20 times
stiffer and 30 times harder than plastic.”32
The plaintiff’s counsel insisted that the
court should not decide this issue at the pleading stage and should let it proceed further. The
court dismissed this case, noting that “it is a
well-known fact of life that glass can break
under impact, even glass that has been reinforced. This much is known to the ordinary,
reasonable consumer.…It seems a suspension of logic to say that [Apple’s] marketing
campaign…somehow erases these images
from the collective experience such that the
reasonable consumer could expect that glass
could not break if dropped.”33 Other courts
have similarly applied common sense in dismissing false advertising cases.34
Another federal court in California recently went further in indicating that industry norms and practices should be taken into
account even at the pleading stage. The putative class action complaint alleged that the
product Sugar in the Raw misled consumers
into believing that the product contained
unprocessed and unrefined sugar.35 In dismissing the complaint, the court held that “a
significant portion of the general consuming
public, acting reasonably, would [not] be led
to believe that they are purchasing unprocessed or unrefined sugar” because the product is made of turbinado sugar, which is
Los Angeles Lawyer November 2013 37
“widely marketed” as “raw cane sugar,” not
unprocessed and unrefined sugar.36
As one court put it in dismissing a class
action complaint, allowing a questionable
case to survive a Rule 12(b) motion “would
require this Court to ignore all concepts of
personal responsibility and common sense.”37
That court had it exactly right. Federal judges
should and must serve as guardians against
junk class action lawsuits.
■
1
See http://www.judicialhellholes.org/2012-13
/california.
2 See, e.g., Henderson v. Gruma Corp., No. 10-4173,
2011 WL 1362188, at *1, *12 (C.D. Ca. April. 11,
2011) (dismissing a claim that challenged the statement
38 Los Angeles Lawyer November 2013
“With Garden Vegetables” on a packaged dip as misleading because dip does in fact contain dried vegetables and “does not claim a specific amount of vegetables in the product”); Red v. Kraft, No. 10-1028,
2012 WL 5504011, at *4 (C.D. Cal. Oct. 25, 2012)
(ruling that it “strains credulity to imagine that a reasonable consumer will be deceived into thinking a box
of crackers” has “huge amounts of vegetables simply
because there are pictures of vegetables and the true
phrase ‘Made with Real Vegetables’ on the box”).
3 In re Ferrero Litig., No. 3:11-CV-00205 at 27 (S.D.
Cal. 2010).
4 See In re Ferrero Litig., No. 3:11-CV-00205; In re
Nutella Marketing and Sales Practices Litig., No. 3:11cv-01086 (D. N.J. 2010).
5 Zeisel v. Diamond Foods, Inc., 3:10-cv-1192-JSW
(N.D. Cal. 2010); Brazil v. Dell Inc., 5:07-cv-01700RMW (N.D. Cal. 2007).
6 See, e.g., Steroid Hormone Prod. Cases, 181 Cal.
App. 4th 145 (2010). But see, e.g., Cohen v. DIRECTV,
Inc., 178 Cal. App. 4th 966 (2009); In re Vioxx Class
Cases, 180 Cal. App. 4th 116 (2009).
7 Kwikset v. Superior Ct., 51 Cal. 4th 310 (2011).
8 Williams v. Gerber Prods. Co., 552 F. 3d 934 (9th Cir.
2008).
9 Id. at 940.
10 28 U.S.C. §1332(d).
11 Id.
12 Vanessa Blum, Welcome to Food Court, THE RECORDER, Mar. 1, 2013.
13 AT&T Mobility v. Concepcion, 131 S. Ct. 1740
(2011).
14 Id. at 1744.
15 Id. at 1749-54.
16 See, e.g., Young v. Johnson & Johnson, 2013 WL
191177 (3rd Cir. 2013) (“zero cholesterol” claims preempted by federal law); Yumul v. Smart Balance, 752
F. Supp. 2d 1117 (C.D. Cal. 2010) (same); Chacanaca
v. Quaker Oats, 752 F. Supp. 2d 1111 (N.D. Cal. 2010)
(“0g trans fat” claims preempted under federal law).
17 21 U.S.C. §343-1(a) (“no State or political subdivision of a State may directly or indirectly establish…any
requirement for…labeling of food…that is not identical to the requirement[s]” set forth in the NLEA).
18 Chacanaca, 752 F. Supp. 2d at 1111.
19 See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007).
20 Id. at 1974.
21 Id. at 1967.
22 Id. (noting that “the success of judicial supervision
in checking discovery abuse has been on the modest
side”).
23 Iqbal, 129 S. Ct. at 1953 (noting that “Twombly
expounded the pleading standard for ‘all civil actions’”).
24 Stuart v. Cadbury Adams, 458 F. App’x. 689, 69091 (9th Cir. 2011).
25 Id. at 691.
26 Carrea v. Dreyer’s Grand Ice Cream, Inc., 475 F.
App’x. 113, at *1 (9th Cir. 2012).
27 Id.
28 Lavie v. Procter & Gamble Co., 105 Cal. App’x. 4th
496, 508 (2003).
29 Hill v. Roll Int’l Corp., 195 Cal. App’x. 4th 1295,
1304 (2011).
30 Williams v. Gerber Prods. Co., 552 F. 3d 934, 939
(9th Cir. 2008). See also, e.g., Yumul v. Smart Balance,
Inc., 733 F. Supp. 2d 1117, 1129 (C.D. Cal. 2010).
31 Williamson v. Apple, Inc., No. 11-377, 2012 WL
3835104 (N.D. Cal. Sept. 4, 2012).
32 Id. at *6.
33 Id.
34 See, e.g., McKinniss v. Sunny Delight, No. 07-02034,
2007 WL 4766525, at *4-5 (C.D. Cal. Sept. 4, 2007)
(“depictions of various fruits on Defendant’s product
labels are simply not deceptive as a matter of law”
because a reasonable consumer understands that SunnyD
is merely a fruit-flavored drink and that a reasonable
“consumer can readily and accurately determine the
composition and nutritional value of a product”);
Sugawara v. Pepsico, Inc., No. 08-1335, 2009 WL
1439115, at *2-4 (E.D. Cal. May 21, 2009) (dismissing UCL, FAL, and CLRA claims challenging representations and images on Cap’n Crunch packaging as
unlikely to deceive a reasonable consumer); Ross v.
Sioux Honey Ass’n, Coop., No. 1645, 2013 WL
146367, at *11 (N.D. Cal. Jan. 14, 2013) (dismissing
challenge to honey products for lack of pollen because
a reasonable consumer would not necessarily expect
pollen as an ingredient).
35 See Rooney v. Cumberland Packing Corp., No. 1233, 2012 WL 1512106, at *1 (S.D. Cal. Apr. 16, 2012).
36 Id.
37 Videtto v. Kellogg USA, No. 08-1324, 2009 WL
1439086, at *4 (E.D. Cal. May 21, 2009).
The LOS ANGELES LAWYER
Semiannual Guide to
Expert Witnesses
ACCIDENT ANALYSIS/
RECONSTRUCTION
4X FORENSIC ENGINEERING
LABORATORIES, INC.
5262 Oceanus Drive, Huntington Beach, CA 92649,
(714) 450-8500, fax (714) 450-8599, : www
.4Xforensic.com. Contact Phil Van Herle. 4X
Forensic Engineering Laboratories is a full-service
forensic engineering laboratory. We provide expert
witness and analytical and testing services in the following areas: fires and explosions: electrical and gas
product defect investigations, thermal and fire modeling and laboratory testing, water loss: materials,
corrosion and failure analysis of plumbing products,
failure analysis: metallurgy, product testing, and
computerized stress analysis. Accident reconstruction: automotive, trucks, construction equipment,
and premises liability.
MARTIN M. BALABAN, PHD, PE
18075 Ventura Boulevard, Suite 209, Encino, CA
91316. Cell (818) 389-2062, (818) 344-2700.
email: [email protected]. Web site: www
.jurispro.com/MartinBalaban. Contact Martin
Balaban, PhD, PE. PhD Mechanical Engineering
UC Berkeley, MS Mechanics, BS Civil Engineering.
Licensed Safety Engineer. Extensive expert testimony. Engineering, mechanics, biomechanics,
safety, human factors. Premises liability: pedestrian
slip/trip, coefficient of friction, stairs, ramps,
handrails, guardrails, sidewalks, building codes,
ADA, electronic gates, lighting, glass, screens.
Industrial/construction accidents: machine guarding,
forklifts, conveyors, hoists, lifts, ladders, scaffolds,
power tools, fasteners, construction vehicles, OSHA.
Products: fitness equipment, chairs, consumer products. Collisions: vehicles (all types), bicycles, pedestrians, component failures 72.
WILLIAM KUNZMAN, PE
1111 Town and Country #34, Orange, CA 92868,
(714) 973-8383, fax (714) 973-8821, e-mail:
[email protected]. Web site: www.traffic
-engineer.com. Contact William Kunzman, PE.
Traffic expert witness since 1979, both defense and
plaintiff. Auto, pedestrian, bicycle, and motorcycle
accidents. Largest plaintiff verdicts: 1) $12,200,000
in pedestrian accident case against Caltrans, 2)
$10,300,000 in case against Los Angeles Unified
School District. Largest settlement: $2,000,000 solo
vehicle accident case against Caltrans. Best defense
verdict: $0 while defending Caltrans and opposition
sought $16,000,000. Before becoming expert witness, employed by Los Angeles County Road
Department, Riverside County Road Department,
city of Irvine, and Federal Highway Administration.
Knowledge of governmental agency procedures,
design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds
of cases. Undergraduate work—UCLA, graduate
work—Yale University.
MOMENTUM ENGINEERING CORP
3860 Del Amo Boulevard, Suite 402, Torrance,
CA 90503, (310) 406-3657, fax (310) 542-9014,
e-mail: [email protected]. Web site: www
.momentum-eng.com. Contact Ed Fatziner. Expert
witness services, heavy truck, crash data recorder,
airbag control module, vehicle dynamics and testing,
animation and graphics, forensic engineering, failure
analysis, and motorcycle dynamics.
ACCOUNTING
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage,
appraisal, escrow, and title insurance.
CBIZ & MAYER HOFFMAN MCCANN PC
10474 Santa Monica Boulevard, Suite 200, Los
Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: [email protected]. Contact Coral
Hansen. Web site: www.MHM-PC.com, www
.CBIZ.com. CBIZ & Mayer Hoffman McCann PC
specializes in fraud investigations, forensic accounting, business litigation, commercial damage and lost
profits computations, business valuation and
appraisal, transactional due diligence, family limited
partnerships, business interruption, and family law.
We provide experienced expert testimony and tax
controversy representation.
CORNERSTONE RESEARCH
633 West Fifth Street, 31st Floor, Los Angeles, CA
90071-2005, (213) 553-2500, fax (213) 553-2699.
Web site: www.cornerstone.com. Contact George
G. Strong, Jr., Richard W. Dalbeck, Katie J.
Galley, Elaine Harwood, Carlyn Irwin, Erin
McGlogan or Ashish Pradhan. For more than
twenty-five years, Cornerstone Research staff have
provided economic and financial analysis in all
phases of commercial litigation and regulatory proceedings. We work with a broad network of testifying
experts, including prominent faculty and industry
practitioners, in a distinctive collaboration. The
experts with whom we work bring the specialized
expertise required to meet the demands of each
assignment. Our areas of specialization include intellectual property, antitrust, securities, entertainment,
real estate, financial institutions, and general business litigation.
FULCRUM INQUIRY
✒ Litigation support
✒ Expert witness
✒ Forensic accountants
✒ Family law matters
✒ Business valuations
✒ Loss of earnings
✒ Damages
When you need more than just
numbers... you can count on us...
Contact Michael Krycler
PHONE (818) 995-1040
FAX (818) 995-4124
E-MAIL [email protected]
VISIT US @ www.KETW.COM
15303 VENTURA BOULEVARD, SUITE 1040
SHERMAN OAKS, CALIFORNIA 91403
888 South Figueroa Street, Suite 2000, Los Angeles,
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research, combined with unique presentation
techniques, have resulted in an unequaled record of
successful court cases and client recoveries. Our
expertise encompasses damages analysis, lost profit
studies, business and intangible asset valuations,
appraisals, fraud investigations, troubled company
consultation, statistics, forensic economic analysis,
royalty audits, strategic and market assessments,
computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See
display ad on back cover.
GLENN M. GELMAN & ASSOCIATES
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS ADVISERS
1940 East 17th Street, Santa Ana, CA 92705,
(714) 667-2600, fax (714) 667-2636, e-mail: rsquar
@gmgcpa.com. Web site: www.gmgcpa.com.
Contact Richard M. Squar. Glenn M. Gelman and
Associates provides superior litigation support services, including expert witness testimony, strategy
development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit
preparation. Our areas of expertise include business
interruption, loss of earnings analysis, breach of con-
Los Angeles Lawyer November 2013 39
tract, partnership dissolution, profits distribution, tax
consequences of settlements, reconstruction of
accounting records, embezzlement and fraud, contract costs, lost profits, construction claims, damage
computations, and malpractice cases. Our comprehensive case list is available upon request. Our practice focuses on closely held entrepreneurial firms in
the following industries: construction, real estate
development, equipment leasing, auto parts (wholesale and retail), manufacturing, and professional services. Honored by Construction Link as the “Best
Accounting Firm for the construction industry.” Glenn
M. Gelman has been appointed and served as Special Master in litigation support matters and has testified over 30 times. Our comprehensive case list is
available upon request. See display ad on page 44.
GURSEY/SCHNEIDER LLP
1888 Century Park East, Suite 900, Los Angeles,
CA 90067, (310) 552-0960, fax (310) 557-3468,
e-mail: [email protected], kdolabson@gursey
.com or [email protected]. Web site: www.gursey
.com. Contact Naz Afshar, Keith Dolabson, or
Gary Krausz. Forensic accounting and litigation
support services in the areas of marital dissolution,
civil litigation, business valuation and appraisal,
goodwill, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments, insurance claims, court accounting, tracing,
and entertainment industry litigation. See display ad
on page 47.
HARGRAVE & HARGRAVE, AN
ACCOUNTANCY CORPORATION
12121 Wilshire Boulevard, Suite 700, Los Angeles,
CA 90025, (310) 576-1090, fax (310) 576-1080,
e-mail: [email protected]. Web site:
www.hargraveandhargrave.com. Contact Terry M.
Hargrave, CPA/ABV/CFF, CFE. Forensic accounting and business valuation services for family law and
civil cases. Past chair of California Society of CPAs’
Family Law Section and business valuation instructor
for California CPA Education Foundation. Services
include business valuations, income available for
support, tracing separate property, litigation consulting, real estate litigation, mediation, fraud investigations, damage calculation, and other forensic
accounting work.
KRYCLER, ERVIN, TAUBMAN, AND
WALHEIM
15303 Ventura Boulevard, Suite 1040, Sherman
Oaks, CA 91403, (818) 995-1040, fax (818) 9954124. Web site: [email protected]. Contact
Michael J. Krycler. Litigation support, including
forensic accounting, business appraisals, family law
accounting, business and professional valuations,
damages, fraud investigations, and lost earnings.
Krycler, Ervin, Taubman and Walheim is a full-service accounting firm serving the legal community for
more than 20 years. See display ad on page 39.
DIANA G. LESGART, CPA, CFE, CVA, CFF,
AN ACCOUNTANCY CORP.
22024 Lassen Street, Suite 106, Chatsworth, CA
91311, (818) 886-7140, fax (818) 886-7146, e-mail:
[email protected]. Contact Diana G. Lesgart,
CPA, CFE, CVA, CFF. Specialized accounting and
litigation support services in the areas of family law
litigation, including tracing of separate and community property assets, pension plan tracing, forensic
accounting, business valuations, goodwill calculation, expert testimony, cash available for support,
Moore-Marsden calculations, fraud investigations,
real estate analysis, community property balance
sheet. Over 25 years of accounting experience with
20 years’ litigation support specialization. Appointed
as Section 730 accounting expert. Ms. Lesgart’s
profile can be found at http://www.jurispro.com
/DianaLesgartCPA. Expert is English/Spanish bilingual. See display ad on page 48.
MICHAEL D. ROSEN, CPA, PHD, ABV
3780 Kilroy Airport Way, Suite 200, Long Beach, CA
90806, (562) 256-7052, fax (562) 256-7001,
e-mail: [email protected]. Web site: www
.mrosencpa.com. Contact Michael D. Rosen. We
are litigation consultants, forensic accountants,
expert witnesses. Our mission is to tell the financial
story that underlies every business litigation matter
and to convey that story in a clear and concise man40 Los Angeles Lawyer November 2013
ner to the trier of fact. Our findings allow a realistic
assessment of the case and support settlement
efforts. Our work is designed to render conclusive
opinions and to withstand cross-examination. We
specialize in business damages (lost profits and loss
in value), personal damages (lost earnings), and business valuation.
SCHULZE HAYNES LOEVENGUTH & CO.
660 South Figueroa Street, Suite 1280, Los Angeles,
CA 90017, (213) 627-8280, fax (213) 627-8301,
e-mail: [email protected]. Web site:
www.schulzehaynes.com. Contact Karl J. Schulze,
president. Specialties: forensic business analysis and
accounting, lost profits, economic damages, expert
testimony, discovery assistance, business valuations,
corporate recovery, financial analysis, and modeling.
Member of major professional organizations, experience across a broad spectrum of industries and business issues. Degrees/licenses: CPA, CVA, CFE, ABV,
PhD-Economics. See display ad on page 49.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAS
11900 West Olympic Boulevard, Suite 650, Los
Angeles, CA 90064-1046, (310) 826-1040, fax (310)
826-1065. Web site: www.zsscpa.com. Contact
Lester J. Schwartz, CPA/CFF, DABFE, DABFA,
Michael D. Saltsman, CPA, MBA, David L. Bass,
CPA, David Dichner, CPA, ABV, CVA, Sandy
Green, CPA, Daljeet Kaur, CPA. 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, settlement
negotiations, and consultations. See display ad on
page 49.
ADA/DISABILITY DISCRIMINATION
HAIGHT CONSULTING
10635 Santa Monica Boulevard Suite 190, Los
Angeles, CA 90025, (310) 441-3600, fax (310) 4413610, e-mail: [email protected]. Web site:
www.shapiromedia.com, www.jshapirocpa.com. Jay
Shapiro has specialized in accounting, income tax
preparation, and all special financial matters impacting the entertainment and media industry for the
past 30 years and has clientele ranging from private
individuals to partnerships and corporate entities
across all sectors on a worldwide basis. Jay will provide you with a realistic financial assessment,
expert, objective analysis, and clear and concise
testimony that stand up upon cross-examination.
Jay has testified over 20 times in federal and state
court. Jay’s financial expertise includes: tax issues,
entertainment net profits, business litigation, business valuation and appraisal, forensic investigation,
idea submissions, economic damages, contractual
disputes, marital dissolutions, participations and
royalties, and lost earning capacity.
1726 Palisades Drive, Pacific Palisades, CA
90272, (310) 454-2988, fax (310) 454-4516.
Contact Marcia Haight, SPHR—CA. Human
resources expert knowledgeable in both federal and
California law. Twenty-five years’ corporate human
resources management experience plus over 20
years as a Human Resources Compliance Consultant in California. Specializations include sexual
harassment, ADA/disability discrimination, other Title
VII and FEHA discrimination and harassment, retaliation, FMLA/CFRA, safety, and wrongful termination.
Courtroom testimony and deposition experience.
Retained 60 percent by defense, 40 percent by
plaintiff. Audit employer’s actions in preventing and
resolving discrimination, harassment, and retaliation
issues. Assess human resources policies and practices for soundness, for comparison to prevailing
practices, and for compliance. Evaluate employer
responsiveness to complaints and effectiveness of
employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination
of documents, and expert testimony.
THOMAS NECHES & COMPANY LLP
HRM CONSULTING, INC.
JAY SHAPIRO, CPA
633 West 5th Street, Suite 2800, Los Angeles, CA
90071-2039, (213) 624-8150, fax (213) 223-2304,
e-mail: [email protected]. Web site: www
.thomasneches.com. Contact Thomas M. Neches,
CPA, ABV, CVA, CFE, CFF. Accounting, financial,
business valuation, and statistical analyses to assist
attorneys in litigation. Expert testimony in state and
federal courts. Cases: antitrust, breach of contract,
fraud, intellectual property, lost business value, lost
profits, wrongful death, and wrongful termination.
Industries: banking, construction, entertainment,
insurance, manufacturing, retail, securities, and
wholesale. Credentials: certified public accountant/
accredited in business valuation, certified valuation
analyst, certified fraud examiner and certified in financial forensics. Education: BA (Mathematics) UC San
Diego, MS (Operations Research) UCLA. Teaching:
adjunct professor, Loyola Law School. See display
ad on page 57.
WHITE, ZUCKERMAN, WARSAVSKY,
LUNA & HUNT
15490 Ventura Boulevard, Suite 300, Sherman
Oaks, CA 91403, (818) 981-4226, fax (818) 9814278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614,
(949) 219-9816, fax (949) 219-9095, e-mail: expert
@wzwlh.com. Web site: www.wzwlh.com. Contact
Barbara Luna. Expert witness testimony for complex litigation involving damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting,
fraud investigation, investigative analysis of liability,
and marital dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four accountants. Specialties include accounting, breach of contract,
breach of fiduciary duty, business interruption, business dissolution, construction defects, delays, and
cost overruns, fraud, insurance bad faith, intellectual
property (including trademark, patent, and copyright
infringement, and trade secrets), malpractice, marital
dissolution, personal injury, product liability, real
estate, securities, tax planning and preparation, IRS
audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 43.
1700 North First Street, San Jose, CA 95112, (209)
728-8905, fax (209) 728-8970, e-mail: bdelima
@hrmconsulting.com. Web site: www.hrmconsulting.com. Contact Beth B. De Lima, SPHR-CA.
Expert witness Beth De Lima, has testified for both
plaintiff and defense in the following areas: human
resources standards of care, employment ADA
accommodation, FEHA, FMLA, CFRA, ADA & EEOC
violations. Wrongful termination, performance management, discrimination, sexual harassment, exempt
analysis, labor market assessment, and vocational
evaluations. She holds national and California specific certification—Senior Professional in Human
Resource (SPHR-CA), certified mediator, and consulting since 1992.
APPRAISAL & VALUATION
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los Angeles,
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors, and industry specialists. Our analysis and research, combined with unique presentation
techniques, have resulted in an unequaled record of
successful court cases and client recoveries. Our
expertise encompasses damages analysis, lost profit
studies, business and intangible asset valuations,
appraisals, fraud investigations, troubled company
consultation, statistics, forensic economic analysis,
royalty audits, strategic and market assessments,
computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See display ad on back cover.
GURSEY/SCHNEIDER LLP
1888 Century Park East, Suite 900, Los Angeles,
CA 90067, (310) 552-0960, fax (310) 557-3468,
e-mail: [email protected]. Web site: www
.gursey.com. Contact Stephan Wasserman.
Gursey|Schneider is an accounting firm specializing
in forensic accounting, litigation support services,
business valuation, and appraisal services for a variety of purposes, including marital dissolution, gift and
estate planning, eminent domain, goodwill loss, business disputes, malpractice, tax matters, bankruptcy,
damage and cost-profit assessments, insurance
claims, and entertainment industry litigation.
Gursey|Schneider has over 30 years of experience as
expert witnesses in litigation support. See display ad
on page 47.
A & E FORENSICS
Steven B. Norris, AIA, PE, GE, CEG, GBC, CASp
2121 Mon el Road San Marcos, CA 92069 (877) 839-7302
HARGRAVE & HARGRAVE, AN
ACCOUNTANCY CORPORATION
12121 Wilshire Boulevard, Suite 700, Los Angeles,
CA 90025, (310) 576-1090, fax (310) 576-1080,
e-mail: [email protected]. Web site:
www.hargraveandhargrave.com. Contact Terry M.
Hargrave, CPA/ABV/CFF, CFE. Forensic accounting and business valuation services for family law and
civil cases. Past chair of California Society of CPAs’
Family Law Section and business valuation instructor
for California CPA Education Foundation. Services
include business valuations, income available for
support, tracing separate property, litigation consulting, real estate litigation, mediation, fraud investigations, damage calculation, and other forensic
accounting work.
■
■
ARCHITECTURE
GEOTECHNICAL
ENGINEERING
■
CONSTRUCTION
CIVIL
ENGINEERING
■
■
ADA
STRUCTURAL
ENGINEERING
■
www.aeforensics.com
HIGGINS, MARCUS & LOVETT, INC.
800 South Figueroa Street, Suite 710, Los Angeles,
CA 90017, (213) 617-7775, fax (213) 617-8372,
e-mail: [email protected]. Contact Mark C.
Higgins, ASA. The firm has over 30 years of litigation support and expert 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 this
page.
KRYCLER, ERVIN, TAUBMAN, AND
WALHEIM
15303 Ventura Boulevard, Suite 1040, Sherman
Oaks, CA 91403, (818) 995-1040, fax (818) 9954124. Web site: [email protected]. Contact
Michael J. Krycler. Litigation support, including
forensic accounting, business appraisals, family law
accounting, business and professional valuations,
damages, fraud investigations, and lost earnings.
Krycler, Ervin, Taubman and Walheim is a
full-service accounting firm serving the legal community for more than 20 years. See display ad on
page 39.
WARONZOF ASSOCIATES, INC.
999 North Sepulveda Boulevard, Suite 440, El
Segundo, CA 90245, (310) 322-7744, fax (310)
322-7755. Web site: www.waronzof.com. Contact
Timothy R. Lowe, MAI, CRE. Waronzof provides
real estate and land use litigation support services
including economic damages, lost profits, financial
feasibility, lease dispute, property value, enterprise
value, partnership interest and closely-held share
value, fair compensation, lender liability, and reorganization plan feasibility. Professional staff of five with
advanced degrees and training in real estate,
finance, urban planning, and accounting. See
display ad on page 59.
ARCHITECTURE
A & E FORENSICS
2121 Montiel Road, San Marcos, CA 92069,
(877) 839-7302, fax (760) 480-7477, e-mail: steve
@aeforensics.com. Web site: www.aeforensics
.com. Steve Norris, AIA, PE, GE, HG, CEG,
CASp, LEED. Architect, engineer, contractor—
standard of care expert. Retained over 200 times,
deposed over 100 times, and testified in trial over 20
times. Waterproofing, water intrusion, building envelope, zoning setbacks, concrete performance, path
of travel, structural analysis, earthquake-fire damage,
and plan analysis. Landslides, retaining wall failure,
settlement, flooding, grading, septic, expansive soils,
mud flows, pavement distress, ground water evaluation, and slope analysis. Cost estimates, construction management, delay analysis, and contracts.
Serving all California, Hawaii, and Oklahoma. See
display ad on page 41.
ConfidenceAtThe Courthouse.
Business litigation is increasingly complex. That is why we believe valuation
issues must be addressed with the same meticulous care
as legal issues. Analysis must be clear. Opinions must be
defensible. Expert testimony must be thorough and
articulate. HML has extensive trial experience and can
provide legal counsel with a powerful resource for expert
testimony and litigation support.
For More Information Call 213-617-7775
Or visit us on the web at www.hmlinc.com
BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS
Los Angeles Lawyer November 2013 41
44 Argos, Laguna Niguel, CA 92677, (949) 3638205, fax (949) 429-5972, e-mail: johndpratt
@cox.net. Web site: www.argos-engineering.com.
Contact John D. Pratt, PhD, PE. Litigation consulting, inspections, expert reports, patent infringement and validity analysis, deposition, and trial testimony.
quacy of warnings, computer animation and simulations, construction defect, criminal defense, criminal
prosecution, premises, productintegrity, product liability, product testing, warnings, and lost income calculations. Auto, bicycle, bus, chair, elevator, escalator, forklift, gate, ladder, machinery, motorcycle,
press, recreational equipment, rollercoaster, slip/trip
and fall, stairs, swimming pool, and truck. Litigation
and claims; defense/plaintiff; educational seminars;
and mediation and arbitration services.
BANKING
BUSINESS
ADVISORS/EXPERTS@ MCSASSOCIATES
FORENSISGROUP
EXPERT WITNESS SERVICES SINCE 1991
AVIATION
ARGOS ENGINEERING
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage,
appraisal, escrow, and title insurance.
BANKRUPTCY
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los Angeles,
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs,
affiliated professors, and industry specialists. Our
analysis and research, combined with unique presentation techniques, have resulted in an unequaled
record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled
company consultation, statistics, forensic economic
analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses:
CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See display ad on back cover.
BANKRUPTCY/TAX
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage,
appraisal, escrow, and title insurance.
BIOMECHANICS/RECONSTRUCTION/HUMAN
FACTORS
INSTITUTE OF RISK & SAFETY ANALYSES
KENNETH A. SOLOMON, PHD, PE, POST PHD,
CHIEF SCIENTIST
5324 Canoga Avenue, Woodland Hills, CA 91364,
(818) 348-1133, fax (818) 348-4484, e-mail:
[email protected]. Web site: www
.irsa.us. Specialized staff, broad range of consulting
and expert testimony, 42 years of courtroom experience. Accident reconstruction, biomechanics,
human factors, safety, accident prevention, ade-
42 Los Angeles Lawyer November 2013
301 North Lake Avenue, Suite 420, Pasadena, CA
91101, (800) 555-5422, (626) 795-5000, fax: (626)
795-1950, email: [email protected]. Web
site: www.forensisgroup.com. Contact Mercy
Steenwyk. 10,000 cases ForensisGroup has provided experts. 8,000 clients have retained experts
from us. We respond in one hour or less. ForensisGroup is an expert witness services and consulting
company, providing experts, expert witnesses, and
consultants to law firms, insurance companies, and
other public and private firms in thousands of disciplines: construction, engineering, business, accounting, intellectual property, computers, IT, medical, real
estate, insurance, product liability, premises liability,
safety, and others, including experts in complex and
hard-to-find disciplines. Let us give you the technical
advantage and competitive edge in your cases.
Referrals, customized searches, and initial phone
consultations are free. See display ad on page 41.
ROBERT C. ROSEN
Citigroup Center, 444 South Flower Street, 30th
Floor, Los Angeles, CA 90071, (213) 362-1000, fax
(213) 362-1001, e-mail: robertrosen@rosen-law
.com. Web site: www.rosen-law.com. Specializing in
securities law, federal securities law enforcement,
securities arbitration, and international securities,
insider trading, NYSE, AMEX, FINRA, DOC disciplinary proceedings, broker-dealer, investment company and investment adviser matters, liability under
federal and state securities laws, public and private
offerings, Internet securities, and law firm liability. AV
rated. Former chair, LACBA Business and Corporations Law Section. LLM, Harvard Law School. Forty
years practicing securities law, 12 years with the
U.S. Securities and Exchange Commission, Washington, DC. Published author/editor of securities regulations, including multivolume treatises. See display ad on page 53.
BUSINESS APPRAISAL/VALUATION
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage,
appraisal, escrow, and title insurance.
BRIAN LEWIS & COMPANY
10900 Wilshire Boulevard, Suite 610, Los Angeles,
CA 90024, (310) 475-5676, fax (310) 475-5268,
e-mail: [email protected]. Contact Brian
Lewis, CPA, CVA. Forensic accounting, business
valuations, cash spendable reports, estate, trust, and
income tax services.
CBIZ & MAYER HOFFMAN MCCANN PC
10474 Santa Monica Boulevard, Suite 200, Los
Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: [email protected]. Contact Coral
Hansen. Web site: www.MHM-PC.com, www.CBIZ
.com. CBIZ & Mayer Hoffman McCann PC special-
izes in fraud investigations, forensic accounting,
business litigation, commercial damage and lost
profits computations, business valuation and
appraisal, transactional due diligence, family limited
partnerships, business interruption, and family law.
We provide experienced expert testimony and tax
controversy representation.
CMM, LLP
5700 Canoga Avenue, Suite 300, Woodland Hills,
CA 91367, (818) 986-5070, fax (818) 986-5034,
e-mail: [email protected]. Web site: www
.cmmcpas.com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience,
litigation support, and expert testimony regarding
forensic accountants, fraud investigations, economic
damages, business valuations, family law, bankruptcy, and reorganization. Degrees/licenses: CPAs,
CFEs, MBAs. See display ad on page 45.
CORNERSTONE RESEARCH
633 West Fifth Street, 31st Floor, Los Angeles, CA
90071-2005, (213) 553-2500, fax (213) 553-2699.
Web site: www.cornerstone.com. Contact George
G. Strong, Jr., Richard W. Dalbeck, Katie J.
Galley, Elaine Harwood, Carlyn Irwin, Erin
McGlogan or Ashish Pradhan. For more than
twenty-five years, Cornerstone Research staff have
provided economic and financial analysis in all
phases of commercial litigation and regulatory proceedings. We work with a broad network of testifying
experts, including prominent faculty and industry
practitioners, in a distinctive collaboration. The
experts with whom we work bring the specialized
expertise required to meet the demands of each
assignment. Our areas of specialization include intellectual property, antitrust, securities, entertainment,
real estate, financial institutions, and general business litigation.
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los Angeles,
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs,
affiliated professors, and industry specialists. Our
analysis and research, combined with unique presentation techniques, have resulted in an unequaled
record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled
company consultation, statistics, forensic economic
analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses:
CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See display ad on back cover.
GURSEY/SCHNEIDER LLP
1888 Century Park East, Suite 900, Los Angeles,
CA 90067, (310) 552-0960, fax (310) 557-3468,
e-mail: [email protected]. Web site: www
.gursey.com. Contact Stephan Wasserman.
Gursey|Schneider is an accounting firm specializing
in forensic accounting, litigation support services,
business valuation, and appraisal services for a variety of purposes, including marital dissolution, gift and
estate planning, eminent domain, goodwill loss, business disputes, malpractice, tax matters, bankruptcy,
damage and cost-profit assessments, insurance
claims, and entertainment industry litigation.
Gursey|Schneider has over 30 years of experience as
expert witnesses in litigation support. See display ad
on page 47.
HAYNIE & COMPANY, CPAS
4910 Campus Drive, Newport Beach, CA 926602119, (949) 724-1880, fax (949) 724-1889, e-mail:
[email protected]. Web site: www
.hayniecpa.com. Contact Steven C. Gabrielson.
Consulting and expert witness testimony in a variety
of practice areas: commercial damages, ownership
disputes, economic analysis, business valuation, lost
profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists in
courtroom presentations.
HAMPTON HEALTH, LTD.
- Internal Medicine
- Geriatrics
- Personal Injury
- Adult Hospital
Medicine
- Long Term Care
- Medical Malpractice
- Elder Abuse
- Medicare Fraud for
DOJ, FBI, OIG
- Toxicology/DUI as
MRO
- Addiction Medicine
- Capacity & Estate
Dispute
- Legal Insanity
- Hospice, End-of-Life
Care
- Wound Care
Testified in over
200 cases and
reviewed more than
1,000 cases in the
last 13 years.
BOARD CERTIFICATIONS:
Internal Medicine (ABIM), Geriatrics (ABIM)
Hospice and Palliative Medicine (ABHPM)
Addiction Medicine (ABAM), Licensed as a Medical Review
Officer (MROCC), Certified Forensic Physician (CFP)
CLINICAL FACULTY AT STANFORD, YALE, USC AND UCSF
MEDICAL SCHOOLS
HAMPTON HEALTH, LTD.
JOHN H. FULLERTON, MD, MRO
CMD, CFP, FACP, AGSF, FAAHPM
415.460.5532 TEL | 415.459.2774 FAX
1700 CALIFORNIA STREET, SUITE 470, SAN FRANCISCO CA 94109
http://hamptonhealthltd.com
GLENN M. GELMAN
& ASSOCIATES
CERTIFIED PUBLIC ACCOUNTANTS
AND BUSINESS ADVISORS
HIGGINS, MARCUS & LOVETT, INC.
800 South Figueroa Street, Suite 710, Los Angeles,
CA 90017, (213) 617-7775, fax (213) 617-8372,
e-mail: [email protected]. Contact Mark C.
Higgins, ASA. The firm has over 30 years of litigation
support and expert 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 41.
RGL FORENSICS
Los Angeles Office: 800 South Figueroa Street, Suite
980, Los Angeles, CA 90017, (213) 996-0900. Contact Alan Lurie, [email protected]. Orange County
Office: 625 City Drive South, Suite 290, Orange, CA
92868, (714) 740-2100. Contact Hank Kahrs,
[email protected]. RGL Forensics is an international firm of forensic financial experts exclusively
dedicated to damage analysis, fraud investigation,
and valuation. Serving the legal, insurance, and business communities for more than 30 years, the firm is
unique in its ability to combine investigative accounting, business valuation, fraud, and forensic technology expertise. For attorneys, we discover and define
financial value in transactions and civil and criminal
disputes, and when necessary provide expert witness testimony in court and arbitration proceedings.
For more information about RGL and its 23 offices
worldwide, please visit www.rgl.com.
SCHULZE HAYNES LOEVENGUTH & CO.
660 South Figueroa Street, Suite 1280, Los Angeles,
CA 90017, (213) 627-8280, fax (213) 627-8301,
e-mail: [email protected]. Web site:
www.schulzehaynes.com. Contact Karl J.
Schulze, president. Specialties: forensic business
analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business valuations, corporate recovery, financial analysis, and modeling. Member of major professional
organizations, experience across a broad spectrum
of industries and business issues. Degrees/licenses:
CPA, CVA, CFE, ABV, PhD-Economics. See display
ad on page 49.
THOMAS NECHES & COMPANY LLP
633 West 5th Street, Suite 2800, Los Angeles, CA
90071-2039, (213) 624-8150, fax (213) 223-2304,
e-mail: [email protected]. Web site: www
.thomasneches.com. Contact Thomas M. Neches,
CPA, ABV, CVA, CFE, CFF. Accounting, financial,
business valuation, and statistical analyses to assist
attorneys in litigation. Expert testimony in state and
federal courts. Cases: antitrust, breach of contract,
fraud, intellectual property, lost business value, lost
profits, wrongful death, and wrongful termination.
Industries: banking, construction, entertainment,
insurance, manufacturing, retail, securities, and
wholesale. Credentials: certified public accountant/
accredited in business valuation, certified valuation
analyst, certified fraud examiner and certified in financial forensics. Education: BA (Mathematics) UC San
Diego, MS (Operations Research) UCLA. Teaching:
adjunct professor, Loyola Law School. See display
ad on page 57.
WHITE, ZUCKERMAN, WARSAVSKY,
LUNA & HUNT
We provide you with the professional
results you need to support your case
44 Los Angeles Lawyer November 2013
15490 Ventura Boulevard, Suite 300, Sherman
Oaks, CA 91403, (818) 981-4226, fax (818) 9814278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614,
(949) 219-9816, fax (949) 219-9095, e-mail: expert
@wzwlh.com. Web site: www.wzwlh.com. Contact
Barbara Luna. Expert witness testimony for complex litigation involving damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting,
fraud investigation, investigative analysis of liability,
and marital dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four accountants. Specialties include accounting, breach of contract,
breach of fiduciary duty, business interruption, business dissolution, construction defects, delays, and
cost overruns, fraud, insurance bad faith, intellectual
property (including trademark, patent, and copyright
infringement, and trade secrets), malpractice, marital
dissolution, personal injury, product liability, real
estate, securities, tax planning and preparation, IRS
audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 43.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAS
11900 West Olympic Boulevard, Suite 650, Los
Angeles, CA 90064-1046, (310) 826-1040, fax (310)
826-1065. Web site: www.zsscpa.com. Contact
Lester J. Schwartz, CPA/CFF, DABFE, DABFA,
Michael D. Saltsman, CPA, MBA, David L. Bass,
CPA, David Dichner, CPA, ABV, CVA, Sandy
Green, CPA, Daljeet Kaur, CPA. 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, settlement
negotiations, and consultations. See display ad on
page 49.
CHEMISTRY
CHEMICAL ACCIDENT RECONSTRUCTION
SERVICES, INC.
9121 East Tanque Verde Road, Suite 105, Tucson,
AZ 85749, (800) 645-3369, e-mail: service
@chemaxx.com. Web site: www.chemaxx.com.
Contact Dr. Michael Fox. Comprehensive chemical accident investigation—specializing in complex
industrial chemical accidents and chemical related
consumer product injuries, chemical fires and explosions, chemical labeling, chemical packaging, handling and shipping, burns, warnings, labels, MSDSs,
disposal, safety, EPA, OSHA, DOT, propane, natural
gas, hydrogen, flammable liquids, hazardous chemicals, aerosols (hairspray, spray paint, refrigerants).
DOT certified (hazardous materials shipment). Certified fire and explosion investigator, OSHA process
hazard analysis team leader. PhD physical chemistry.
Extensive experience in metallurgy, corrosion, and
failure analysis.
CIVIL LITIGATION
GURSEY/SCHNEIDER LLP
1888 Century Park East, Suite 900, Los Angeles,
CA 90067, (310) 552-0960, fax (310) 557-3468,
e-mail: [email protected]. Web site: www.gursey
.com. Contact Gary Krausz. Gursey|Schneider
specializes in forensic accounting and litigation support services in the areas of civil litigation, business
disputes, bankruptcy, damage and cost-profit insurance claims, court accountings, fraud investigations,
accounting malpractice, intellectual property, construction, government accounting, and entertainment
litigation. Gursey|Schneider has over 30 years of
experience as expert witnesses in accounting-related
matters. See display ad on page 47.
COMPOSITE & FIBERGLASS MATERIALS
KARS’ ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland
Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax
(714) 527-7169, e-mail: [email protected]. Web site:
www.karslab.com. Contact Dr. Ramesh Kar, Dr.
Naresh Kar, Dr. Nikhil Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineers with
30-plus years in metallurgical/forensic/structural failure
analysis. Experienced with automotive, bicycles, tires,
fire, paint, plumbing, corrosion, and structural failures.
We work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition
and courtroom experience (civil and criminal investigations). Principals are Fellows of American Society for
Metals and Fellows, American College of Forensic
Examiners. See display ad on page 61.
COMPUTER FORENSICS
DATACHASERS, INC.
P.O. Box 2861, Riverside, CA 92516-2861,
(877) DataExam, (877) 328-2392, (951) 780-7892,
e-mail: [email protected]. Web site: www
.DataChasers.com. E-Discovery: Full e-discovery
services…you give us the mountain, we give you the
mole hill: Tiff production, de-duplication, redaction,
Bates-stamped data, and electronically stored information (ESI) production. Computer forensic: full
forensic computer lab. Recovering deleted text files
(documents), graphics (pictures), date codes on all
files, e-mail, and tracing Internet activity. Intellectual
property cases, family law, employment law, probate
resolution, asset verification, criminal law (prosecution or defense), etc. Litigation support, trial preparation, experienced expert witnesses, and professional
courtroom displays. See display ad on page 44.
CARPE DATUM TM …… SEIZE THE DATA
COMPUTER FORENSICS
• Recover Critical Data
• E-Mail Recovery
• Dates on All Files
• Cell Phone Forensics
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los Angeles,
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs,
affiliated professors, and industry specialists. Our
analysis and research, combined with unique presentation techniques, have resulted in an unequaled
record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled
company consultation, statistics, forensic economic
analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses:
CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See
display ad on back cover.
SETEC INVESTIGATIONS
8391 Beverly Boulevard, Suite 167, Los Angeles,
CA 90036, (800) 748-5440, fax (323) 939-5481,
e-mail: [email protected]. Web site:
www.setecinvestigations.com. Contact Todd
Stefan. Setec Investigations offers unparalleled
expertise in computer forensics and enterprise investigations providing personalized, case-specific forensic analysis and litigation support services for law
firms and corporations. Setec Investigations possesses the necessary combination of technical
expertise, understanding of the legal system, and
specialized tools and processes enabling the discovery, collection, investigation, and production of electronic information for investigating and handling computer-related crimes or misuse. Our expertise
includes computer forensics, electronic discovery, litigation support, and expert witness testimony.
E-DISCOVERY
• De-Duplication
• Redaction
• Bates Stamped Data
• Electronic (ESI) Production
951.780.7892 | DataChasers.com
EXPERT WITNESS — Claims Consultant
EXPERIENCE
q
q
INTEGRITY
HONESTY
OVER 45 YEARS EXPERIENCE as a claims adjuster, licensed in three states and
qualified in state and federal courts. Expert in good faith/bad faith,
standards and practices and standard in the industry. Specialties in
property/casualty construction defect, fire/water, uninsured/underinsured
motorist, warehouse and cargo claims. Failure to defend and/or indemnify.
Litigation support, case review and evaluation claim consultation, coverage
review and valuations. Appraisal, Arbitration and Claims Rep. at MSC & MMC.
Contact Gene Evans at E. L. Evans Associates
Phone (310) 559-4005 / Fax (310) 559-4236 / E-mail [email protected]
3 3 1 0 A I R P O R T AVENUE, S U I T E 7 , S A N T A M O N I C A , C A L I F O R N I A 9 0 4 0 5
COMPUTERS/INFORMATION SCIENCES
COSGROVE COMPUTER SYSTEMS, INC.
7411 Earldom Avenue, Playa del Rey, CA
90293, (310) 823-9448, fax (310) 821-4021,
e-mail: [email protected]. Web site: www
.cosgrovecomputer.com. Contact John Cosgrove.
John Cosgrove, PE, has over 50 years of experience
in computer systems and has been a self-employed,
consulting software engineer since 1970. He was a
part-time lecturer in the UCLA School of Engineering
and LMU graduate schools. He provided an invited
article, “Software Engineering and Litigation,” for the
Encyclopedia of Software Engineering. He is a Certified Forensic Consultant (CFC), holds the CDP, is a
member of ACM, ACFEI, FEWA, a life senior member
of IEEE Computer Society, NSPE, a Fellow of the
National Academy of Forensic Engineers (an affiliate
of NSPE), and a professional engineer in California.
Formal education includes a BSEE from Loyola University (now LMU) and a master of engineering
from UCLA.
CONSTRUCTION
CONSTRUCTION DISPUTE RESOLUTION
CONSULTANTS
312 Emerald Bay, Laguna Beach, CA 92651, (949)
300-2244, e-mail: [email protected].
Web site: www.constructionDRC.com. Contact
Hanns U. Baumann, SE. Expert construction
forensic consultation by licensed civil, structural,
geotechnical/soil, engineering and licensed general
contractor with many years of professional experience in California.
Los Angeles Lawyer November 2013 45
FORENSISGROUP
EXPERT WITNESS SERVICES SINCE 1991
301 North Lake Avenue, Suite 420, Pasadena, CA
91101, (800) 555-5422, (626) 795-5000, fax: (626)
795-1950, email: [email protected]. Web
site: www.forensisgroup.com. Contact Mercy
Steenwyk. 10,000 cases ForensisGroup has provided experts. 8,000 clients have retained experts
from us. We respond in one hour or less. ForensisGroup is an expert witness services and consulting
company, providing experts, expert witnesses, and
consultants to law firms, insurance companies, and
other public and private firms in thousands of disciplines: construction, engineering, business, accounting, intellectual property, computers, IT, medical, real
estate, insurance, product liability, premises liability,
safety, and others, including experts in complex and
hard-to-find disciplines. Let us give you the technical
advantage and competitive edge in your cases.
Referrals, customized searches, and initial phone
consultations are free. See display ad on page 41.
GLENN M. GELMAN & ASSOCIATES
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS ADVISERS
1940 East 17th Street, Santa Ana, CA 92705,
(714) 667-2600, fax (714) 667-2636, e-mail: rsquar
@gmgcpa.com. Web site: www.gmgcpa.com.
Contact Richard M. Squar. Exclusive LA and
Orange County representative for CICPAC (Construction Industry CPA/Consultants Association).
This is a nationwide network of CPA firms specifically
selected for their experience in and commitment to
serving the construction industry. We are one of only
six firms in all of California that are members of this
prestigious organization. We provide these litigation
support services: expert witness testimony, strategy
development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit
preparation. Our areas of expertise include: business
interruption, loss of earnings analysis, breach of contract, partnership dissolution, profits distribution, tax
consequences of settlements, reconstruction of
accounting records, embezzlement and fraud, contract costs, lost profits, construction claims, and
damage computations cases. Honored by Construction Link as the “Best Accounting Firm for the construction industry.” Glenn M. Gelman has been
appointed and served as Special Master in litigation
support matters and has testified over 30 times. Our
comprehensive case list is available upon request.
See display ad on page 44.
Air Weather & Sea
Conditions, Inc.
Clear, plain-language and convincing expert
testimony, reports and analyses to reconstruct
weather, climate, storm, and atmospheric
conditions at location and time of interest.
Wind and rain and ice assessments, and
indications of their normalcy, unusualness
and foreseeability.
KGA, INC.
1409 Glenneyre Street, Suite A, Laguna Beach, CA
92651, (949) 497-6000, fax (949) 494-4893, e-mail:
[email protected]. Web site: www.kgainc.com.
Contact Kurt Grosz. Construction and environmental consultants since 1991. Licensed engineers and
contractors. ICC building, plumbing, mechanical,
concrete and accessibility inspectors. Certified professional estimators. Trial experts, arbitrators, and
insurance appraisers/umpires.
THE MCMULLEN COMPANY, INC.
EXTENSIVE COURT EXPERIENCE
1260 Lake Boulevard, Suite 226, Davis, CA 95616,
(888) 747-9857, fax (530) 757-1293, e-mail: tmc
@themcmullencompany.com. Web site: www
.themcmullencompany.com. Contact James F.
Mc-Mullen, California State Fire Marshal
(retired). Senior associates available throughout
California (including Los Angeles County). Fire/
building code analysis and development, construction defects, code compliance inspections, fire origin/cause/spread investigation, fire services management/operations, fire safety-related product
analysis/evaluation, and forensic expert.
Jay Rosenthal CCM
MEP CONSULTING & MORE, LLC
Authoritative, certified data acquisition,
preparation of exhibit materials, site visits
and evaluations of reports for legal and
insurance matters including building projects,
mold, accidents, wildfires, ice, homeland
security and alternative energy applications.
Excellent client references provided on request.
AMS CERTIFIED CONSULTING METEOROLOGIST
NATIONAL WEATHER SERVICE WEATHER SPOTTER
Phone 818.645.8632 or 310.454.7549
Fax 310.454.7569
E-mail [email protected]
www.weatherman.org
P. O. Box 512, Pacific Palisades, CA 90272
46 Los Angeles Lawyer November 2013
5430 Trabuco Road, Suite 100, Irvine, CA 92620,
(949) 246-2741, fax (949) 364-6385, e-mail: jflynn
@mepcam.com. Web site: www.mepcam.com.
Contact John Flynn, principal. Consulting and
forensics for plumbing, mechanical (heating, ventilating, A/C) and electrical (power, lighting), energy systems, residential and commercial buildings, construction defect, cost to repair, construction and
development claims; delay analysis; licensed P.E.s.
Experienced testifiers.
SECRETARIAT INTERNATIONAL
403 11th Street, Los Angeles, CA 90254, (213) 9158450, e-mail: [email protected]. Web site:
www.secretariat-intl.com. Contact Ted Scott. Ted
Scott is a professional Civil Engineer that specializes
in providing independent expert witness services
relating to construction, scheduling, delay and project controls. He has worked on large-scale infrastructure and commercial projects for multinational
owners, developers, contractors, lenders, insurers,
and attorneys across the globe.
URS
915 Wilshire Boulevard, Suite 700, Los Angeles,
CA 90017, (213) 996-2598, fax (213) 996-2521,
e-mail: [email protected]. Contact Keith Kajiya.
Expert witness for entitlement, causation damages
on design, construction, and geotechnical environmental disputes. Experienced in all types of construction projects. See display ad on page 61.
CONTRACTORS LICENSING (CSLB)
ROBERT B. BERRIGAN, ESQ.
MATHENY SEARS LINKERT & JAIME LLP
3638 American River Drive, Sacramento, CA 958645901, (916) 978-3434, fax (916) 978-3430, e-mail:
[email protected]. Web site: www
.mathenysears.com. Specialties: Contractor licensing
issues, proper license classification to perform work,
B & P section 7031 licensure issues. Contractor
State License Board (CSLB) investigations and disciplinary proceedings, obtaining licenses or documents from CSLB. Experienced expert witness at
trial/arbitration. Degrees/licenses: BA, JD, Commercial Pilot, SEL, MEL.
CORPORATE AND SECURITIES
PETILLON HIRAIDE & LOOMIS, LLP
21515 Hawthorne Boulevard, Suite 1260, Torrance,
CA 90503, (310) 543-0500, fax (310) 543-0550,
e-mail: [email protected]. Web site: www
.phlcorplaw.com. Contact Mark Hiraide. I served as
an expert witness in the following areas: formation of
corporations, partnerships, and limited liability companies, governance, fiduciary duties of officers and
directors, and majority shareholders, venture and
acquisition issues; violation of securities laws, legal
malpractice of lawyers, and issues relating to formation of venture capital funds, and private equity funds.
CORPORATE INVESTIGATIONS
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los Angeles,
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs,
affiliated professors, and industry specialists. Our
analysis and research, combined with unique presentation techniques, have resulted in an unequaled
record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled
company consultation, statistics, forensic economic
analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses:
CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See display ad on back cover.
WHITE, ZUCKERMAN, WARSAVSKY,
LUNA & HUNT
15490 Ventura Boulevard, Suite 300, Sherman
Oaks, CA 91403, (818) 981-4226, fax (818) 9814278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614,
(949) 219-9816, fax (949) 219-9095, e-mail: expert
@wzwlh.com. Web site: www.wzwlh.com. Contact
Barbara Luna. Expert witness testimony for complex litigation involving damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting,
fraud investigation, investigative analysis of liability,
and marital dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four accountants. Spe-
cialties include accounting, breach of contract,
breach of fiduciary duty, business interruption, business dissolution, construction defects, delays, and
cost overruns, fraud, insurance bad faith, intellectual
property (including trademark, patent, and copyright
infringement, and trade secrets), malpractice, marital
dissolution, personal injury, product liability, real
estate, securities, tax planning and preparation, IRS
audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 43.
CREDIT DAMAGES EXPERT
EASY CREDIT RELIEF, INC.
2625 Townsgate Road, Suite 330, Westlake
Village, CA 91361, (805) 267-1118, fax (805) 2994980, e-mail: [email protected]. Web site:
www.creditdamagesexpert.com. Contact Doug
Minor. Credit damages expert witness/consultant
with over 25 years of experience. He has passed the
required examination to receive from the CDIA a Fair
Credit Reporting Act Certification and can help with
credit report evaluation preparing credit damages
report, including quantitative assessment, modern
credit scoring types of credit damages, assessing
violations of the Fair Credit Reporting Act (FCRA),
review of residential mortgage loan application forms
1003 and 1008. Modern credit scoring, unfair debt
collections (FDCPA), evaluate testimony, and developing questions for deposition and trial.
DENTIST
JAY GROSSMAN DDS
11980 San Vicente Boulevard, Suite 507,
Brentwood, CA 90049, (310) 820-0123, e-mail:
[email protected]. Web site: www
.drjaydds.com. Contact Jay Grossman. Dental
malpractice expert testimony. Have been deposed
over 80 times; reviewed over 400 cases for both
defense and plaintiff including peer review, acci-
dents, and malpractice. 60% plaintiff / 40% defense.
Have qualified in Superior Court over 30 times. Published and have been written about in print, radio,
and TV over 116 times. Expert on issues including:
standard of care, cosmetics, lasers, extractions,
nerve damage, valuation, informed consent, antibiotic coverage, TMJ, orthodontics including Invisalign,
sleep apnea, treatment planning, occlusion and vertical dimension, electrosurgery, abscess, resorption,
implants, crowns, root canal, veneers, periodontics,
and patent infringement. Licensed in 42 states to
opine on standard of care, with specific license in
California, Nevada, and the Northeast as well as a
Florida Expert Certification. Graduated NYU 1988;
Lieutenant, United States Navy 1989-91; private
practice Brentwood, CA since 1991; faculty: Staff,
attending—UCLA. Professor of Dental Medicine:
Western University, Health Sciences College of Dental Medicine.
DOCUMENT EXAMINER
SANDRA L. HOMEWOOD, FORENSIC
DOCUMENT EXAMINER
1132 San Marino Drive, Suite 216, Lake San
Marcos, CA 92078, (760) 931-2529, fax (760)
510-8412, e-mail: [email protected].
Contact Sandra L. Homewood. Highly skilled and
experienced document examiner and expert witness in many complex and high-profile civil and
criminal cases with fully equipped document laboratory. Specializing in handwriting and handprinting
identification, handwriting of the elderly in financial
elder abuse cases and will contests, and examination of altered medical and corporate records.
Trained in government laboratory including specialized training by the FBI and Secret Service. Former
government experience includes document examiner for the San Diego Police Department crime lab,
Arizona State crime lab, and San Diego County District Attorney’s office. Currently in private, criminal,
and civil practice.
DOGS
JILL KESSLER, GRAD. CERT., CPDT
341 North Grenola Street, Pacific Palisades, CA
90272, (310) 573-9615, fax (310) 573-1304, e-mail:
[email protected]. Web site: www.jillkessler
.com. Opinion, consultation, reports, evaluations in
dog bites, aggression, behaviors, training, showing,
breed tendencies, service and rescued dogs. Specializing in Rottweilers and pit-bull type dogs. See
display ad on page 61.
ECONOMIC ANALYSIS
CBIZ & MAYER HOFFMAN MCCANN PC
10474 Santa Monica Boulevard, Suite 200, Los
Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: [email protected]. Contact Coral
Hansen. Web site: www.MHM-PC.com, www
.CBIZ.com. CBIZ & Mayer Hoffman McCann PC
specializes in fraud investigations, forensic accounting, business litigation, commercial damage and lost
profits computations, business valuation and
appraisal, transactional due diligence, family limited
partnerships, business interruption, and family law.
We provide experienced expert testimony and tax
controversy representation.
ECONOMIC DAMAGES
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance
underwriters/brokers. Specialties include: lending
customs, practices, policies, in all types of lending
(real estate, subprime, business/commercial, con-
Los Angeles Lawyer November 2013 47
struction, consumer/credit card), banking operations/administration, trusts and investments,
economic analysis and valuations/damages
assessment, insurance claims, coverages and bad
faith, real estate brokerage, appraisal, escrow, and
title insurance.
CBIZ & MAYER HOFFMAN MCCANN PC
10474 Santa Monica Boulevard, Suite 200, Los
Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: [email protected]. Contact Coral
Hansen. Web site: www.MHM-PC.com, www
.CBIZ.com. CBIZ & Mayer Hoffman McCann PC
specializes in fraud investigations, forensic accounting, business litigation, commercial damage and lost
profits computations, business valuation and
appraisal, transactional due diligence, family limited
partnerships, business interruption, and family law.
We provide experienced expert testimony and tax
controversy representation.
CORNERSTONE RESEARCH
633 West Fifth Street, 31st Floor, Los Angeles, CA
90071-2005, (213) 553-2500, fax (213) 553-2699.
Web site: www.cornerstone.com. Contact George
G. Strong, Jr., Richard W. Dalbeck, Katie J.
Galley, Elaine Harwood, Carlyn Irwin, Erin
McGlogan or Ashish Pradhan. For more than
twenty-five years, Cornerstone Research staff have
provided economic and financial analysis in all
phases of commercial litigation and regulatory proceedings. We work with a broad network of testifying
experts, including prominent faculty and industry
practitioners, in a distinctive collaboration. The
experts with whom we work bring the specialized
expertise required to meet the demands of each
assignment. Our areas of specialization include intellectual property, antitrust, securities, entertainment,
real estate, financial institutions, and general business litigation.
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los Angeles,
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs,
affiliated professors, and industry specialists. Our
analysis and research, combined with unique presentation techniques, have resulted in an unequaled
record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled
company consultation, statistics, forensic economic
analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses:
CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See
display ad on back cover.
GLENN M. GELMAN & ASSOCIATES
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS ADVISERS
1940 East 17th Street, Santa Ana, CA 92705,
(714) 667-2600, fax (714) 667-2636, e-mail: rsquar
@gmgcpa.com. Web site: www.gmgcpa.com.
Contact Richard M. Squar. Since 1983, our firm
has specialized in delivering forensic accounting and
litigation support services that give our clients an
edge. We provide the quality and depth traditionally
associated with Big Four firms with the personal
attention and fee structure of a local firm. We are
recognized throughout southern California for the
effectiveness of our work. Areas of expertise include:
business interruption, loss of earnings analysis,
breach of contract, partnership dissolution, profits
distribution, tax consequences of settlements, reconstruction of accounting records, embezzlement and
fraud, contract costs, lost profits, construction
claims, and damage computations cases. Our practice focuses on closely held entrepreneurial firms in
the following industries: construction, real estate
development, equipment leasing, auto parts (wholesale and retail), manufacturing, and professional services. Glenn M. Gelman has been appointed and
served as Special Master in litigation support matters
and has testified over 30 times. Our comprehensive
case list is available upon request. See display ad on
page 44.
48 Los Angeles Lawyer November 2013
GURSEY/SCHNEIDER LLP
1888 Century Park East, Suite 900, Los Angeles,
CA 90067, (310) 552-0960, fax (310) 557-3468,
e-mail: [email protected]. Web site: www.gursey
.com. Contact Gary Krausz. Gursey|Schneider
specializes in forensic accounting and litigation support services in the areas of civil litigation, business
disputes, bankruptcy, damage and cost-profit insurance claims, court accountings, fraud investigations,
accounting malpractice, intellectual property, construction, government accounting, and entertainment
litigation. Gursey|Schneider has over 30 years of
experience as expert witnesses in accounting-related
matters. See display ad on page 47.
HIGGINS, MARCUS & LOVETT, INC.
800 South Figueroa Street, Suite 710, Los Angeles,
CA 90017, (213) 617-7775, fax (213) 617-8372,
e-mail: [email protected]. Contact Mark C.
Higgins, ASA. The firm has over 30 years of litigation support and expert 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 41.
MICHAEL D. ROSEN, CPA, PHD, ABV
3780 Kilroy Airport Way, Suite 200, Long Beach,
CA 90806, (562) 256-7052, fax (562) 256-7001,
e-mail: [email protected]. Web site: www
.mrosencpa.com. Contact Michael D. Rosen. We
are litigation consultants, forensic accountants,
expert witnesses. Our mission is to tell the financial
story that underlies every business litigation matter
and to convey that story in a clear and concise manner to the trier of fact. Our findings allow a realistic
assessment of the case and support settlement
efforts. Our work is designed to render conclusive
opinions and to withstand cross-examination. We
specialize in business damages (lost profits and loss
in value), personal damages (lost earnings), and business valuation.
JAY SHAPIRO, CPA
10635 Santa Monica Boulevard Suite 190, Los
Angeles, CA 90025, (310) 441-3600, fax (310) 4413610, e-mail: [email protected]. Web site:
www.shapiromedia.com, www.jshapirocp.com. Jay
Shapiro has specialized in accounting, income tax
preparation, and all special financial matters
impacting the entertainment and media industry for
the past 30 years and has clientele ranging from
private individuals to partnerships and corporate
entities across all sectors on a worldwide basis. Jay
will provide you with a realistic financial assessment, expert, objective analysis, and clear and concise testimony that stand up upon cross-examination. Jay has testified over 20 times in federal and
state court. Jay’s financial expertise includes: tax
issues, entertainment net profits, business litigation, business valuation and appraisal, forensic
investigation, idea submissions, economic damages, contractual disputes, marital dissolutions,
participations and royalties, and lost earning
capacity.
SCHULZE HAYNES LOEVENGUTH & CO.
660 South Figueroa Street, Suite 1280, Los Angeles,
CA 90017, (213) 627-8280, fax (213) 627-8301,
e-mail: [email protected]. Web site:
www.schulzehaynes.com. Contact Karl J.
Schulze, president. Specialties: forensic business
analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business valuations, corporate recovery, financial analysis, and modeling. Member of major professional
organizations, experience across a broad spectrum
of industries and business issues. Degrees/licenses:
CPA, CVA, CFE, ABV, PhD-Economics. See display
ad on page 49.
THOMAS NECHES & COMPANY LLP
633 West 5th Street, Suite 2800, Los Angeles, CA
90071-2039, (213) 624-8150, fax (213) 223-2304,
e-mail: [email protected]. Web site: www
.thomasneches.com. Contact Thomas M. Neches,
CPA, ABV, CVA, CFE, CFF. Accounting, financial,
business valuation, and statistical analyses to assist
attorneys in litigation. Expert testimony in state and
federal courts. Cases: antitrust, breach of contract,
fraud, intellectual property, lost business value, lost
profits, wrongful death, and wrongful termination.
Industries: banking, construction, entertainment,
insurance, manufacturing, retail, securities, and
wholesale. Credentials: certified public accountant/
accredited in business valuation, certified valuation
analyst, certified fraud examiner and certified in financial forensics. Education: BA (Mathematics) UC San
Diego, MS (Operations Research) UCLA. Teaching:
adjunct professor, Loyola Law School. See display
ad on page 57.
WARONZOF ASSOCIATES, INC.
999 North Sepulveda Boulevard, Suite 440, El
Segundo, CA 90245, (310) 322-7744, fax (310)
322-7755. Web site: www.waronzof.com. Contact
Timothy R. Lowe, MAI, CRE. Waronzof provides
real estate and land use litigation support services
including economic damages, lost profits, financial
feasibility, lease dispute, property value, enterprise
value, partnership interest and closely-held share
value, fair compensation, lender liability, and reorganization plan feasibility. Professional staff of five with
advanced degrees and training in real estate,
finance, urban planning, and accounting. See
display ad on page 59.
WHITE, ZUCKERMAN, WARSAVSKY,
LUNA & HUNT
15490 Ventura Boulevard, Suite 300, Sherman
Oaks, CA 91403, (818) 981-4226, fax (818) 9814278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614,
(949) 219-9816, fax (949) 219-9095, e-mail:
[email protected]. Web site: www.wzwlh.com. .
Contact Barbara Luna. Expert witness testimony
for complex litigation involving damage analyses of
lost profits, unjust enrichment, reasonable royalties,
lost earnings, lost value of business, forensic
accounting, fraud investigation, investigative analysis
of liability, and marital dissolution, and tax planning
and preparation. Excellent communicators with
extensive testimony experience. Prior Big Four
accountants. Specialties include accounting, breach
of contract, breach of fiduciary duty, business interruption, business dissolution, construction defects,
delays, and cost overruns, fraud, insurance bad faith,
intellectual property (including trademark, patent, and
copyright infringement, and trade secrets), malpractice, marital dissolution, personal injury, product liability, real estate, securities, tax planning and preparation, IRS audit defense, tracing, unfair advertising,
unfair competition, valuation of businesses, and
wrongful termination. See display ad on page 43.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAS
11900 West Olympic Boulevard, Suite 650, Los
Angeles, CA 90064-1046, (310) 826-1040, fax (310)
826-1065. Web site: www.zsscpa.com. Contact
Lester J. Schwartz, CPA/CFF, DABFE, DABFA,
Michael D. Saltsman, CPA, MBA, David L. Bass,
CPA, David Dichner, CPA, ABV, CVA, Sandy
Green, CPA, Daljeet Kaur, CPA. 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, settlement
negotiations, and consultations. See display ad on
page 49.
ECONOMICS
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage,
appraisal, escrow, and title insurance.
CMM, LLP
5700 Canoga Avenue, Suite 300, Woodland Hills,
CA 91367, (818) 986-5070, fax (818) 986-5034,
e-mail: [email protected]. Web site: www
.cmmcpas.com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience,
litigation support, and expert testimony regarding
forensic accountants, fraud investigations, economic
damages, business valuations, family law, bankruptcy, and reorganization. Degrees/licenses: CPAs,
CFEs, MBAs. See display ad on page 45.
DIANA G. LESGART, CPA, CFE, CVA, CFF
—An Accountancy Corporation—
LITIGATION CONSULTING
Certified
Public
Accountant
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los Angeles,
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs,
affiliated professors, and industry specialists. Our
analysis and research, combined with unique presentation techniques, have resulted in an unequaled
record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled
company consultation, statistics, forensic economic
analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses:
CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See
display ad on back cover.
ELDER ABUSE
HAMPTON HEALTH, LTD
JOHN H. FULLERTON, MD, MRO, CMD, CFP,
FACP, AGSF, FAAHPM
1700 California Street, Suite 470, San Francisco,
CA 94109, (415) 460-5532, fax (415) 459-2774,
e-mail: [email protected]. Web site:
hamptonhealthltd.com. Contact Kate McElroy,
PA-C. Services available: board certified in internal
medicine, geriatrics, hospice, palliative medicine,
addiction medicine, and home health; licensed medical review officer. Expertise: Medicare fraud cases
for the government, toxicology/DUI, elder abuse
including criminal defense of lay caregivers accused
of homicide of demented relatives during end-of-life
phase. Hospital, ambulatory/outpatient, PI, medical
malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more
than 1,000 cases in the last 13 years. See display ad
on page 44.
Certified
Fraud
Examiner
Certified
Valuation
Analyst
Certified in
Financial
Forensics
TEL 818.886.7140 • FAX 818.886.7146 • E-MAIL [email protected]
22024 LASSEN STREET, SUITE 106, CHATSWORTH, CA 91311
www.jurispro.com/DianaLesgartCPA
Schulze Haynes Loevenguth & Co.
FORENSIC/LITIGATION EXPERTS
Designations include:
Certified Public
Accountant (CPA)
Certified in Financial
Forensics (CFF)
Certified Valuation
Analyst/Accredited in
Business Valuation
(CVA/ABV)
Certified Fraud
Examiner (CFE)
✒
✒
✒
•
•
•
•
Financial Forensic Analysis
Expert Testimony
Turnaround and Bankruptcy
Business Valuation
CONTACT KARL J. SCHULZE
[email protected] • www.schulzehaynes.com
✒
213.627.8280
660 SOUTH FIGUEROA STREET, SUITE 1280, LOS ANGELES, CALIFORNIA 90017
Zivetz, Schwartz & Saltsman CPA’s
With more than thirty years of experience as expert witnesses
in testimony, pre-trial preparation, settlement negotiations,
consultations and court appointed special master.
ELECTRICAL ENGINEERING
MEP CONSULTING & MORE, LLC
5430 Trabuco Road, Suite 100, Irvine, CA 92620,
(949) 246-2741, fax (949) 364-6385, e-mail: jflynn
@mepcam.com. Web site: www.mepcam.com.
Contact John Flynn, principal. Consulting and
forensics for plumbing, mechanical (heating, ventilating, A/C) and electrical (power, lighting), energy systems, residential and commercial buildings, construction defect, cost to repair, construction and
development claims; delay analysis; licensed P.E.s.
Experienced testifiers.
ELECTRONIC DISCOVERY
Some of our specialties consist of:
• Forensic Accounting • Marital Dissolutions
• Business Valuation and Appraisal • Lost Profits
• Economic Damages • Accounting Malpractice
• Employee Benefit Plans • Entertainment Entities
• Financial and Economic Analysis • Shareholder Disputes
• Wrongful Termination
SETEC INVESTIGATIONS
8391 Beverly Boulevard, Suite 167, Los Angeles,
CA 90036, (800) 748-5440, fax (323) 939-5481,
e-mail: [email protected]. Web site:
www.setecinvestigations.com. Contact Todd
Stefan. Setec Investigations offers unparalleled
expertise in computer forensics and enterprise investigations providing personalized, case-specific forensic analysis and litigation support services for law
firms and corporations. Setec Investigations possesses the necessary combination of technical
expertise, understanding of the legal system, and
specialized tools and processes enabling the discovery, collection, investigation, and production of electronic information for investigating and handling computer-related crimes or misuse. Our expertise
Tel: (310) 826-1040
Lester J. Schwartz, CPA, CFF, DABFA, DABFE
Fax: (310) 826-1065
Michael D. Saltsman, CPA, MBA
E-mail: [email protected]
David L. BASS, CPA
www.zsscpa.com
Dave Dichner, CPA, ABV, CVA
11900 W. Olympic Blvd.
Sandy Green, CPA
Suite 650
Daljeet Kaur, CPA
Los Angeles, CA 90064-1046
Los Angeles Lawyer November 2013 49
includes computer forensics, electronic discovery, litigation support, and expert witness testimony.
EMBEZZLEMENT AND FRAUD
ment, and vocational evaluations. She holds national
and California specific certification—Senior Professional in Human Resource (SPHR-CA), certified
mediator, and consulting since 1992.
GLENN M. GELMAN & ASSOCIATES
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS ADVISERS
ENDOCRINOLOGY/INTERNAL MEDICINE
1940 East 17th Street, Santa Ana, CA 92705,
(714) 667-2600, fax (714) 667-2636, e-mail: rsquar
@gmgcpa.com. Web site: www.gmgcpa.com.
Contact Richard M. Squar. Glenn M. Gelman and
Associates provides a variety of high-quality services
traditionally associated with the Big Four firms along
with the personal attention that is the hallmark of
local firms. Our litigation support services include:
embezzlement and fraud, expert witness testimony,
strategy development, document discovery, deposition assistance, computation of damages, arbitration
consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and
trial exhibit preparation and reconstruction of
accounting records. Our practice focuses on closely
held entrepreneurial firms in the following industries:
construction, real estate development, equipment
leasing, auto parts (wholesale and retail), manufacturing, and professional services. Glenn M. Gelman
has been appointed and served as Special Master in
litigation support matters and has testified over 30
times. Our comprehensive case list is available upon
request. See display ad on page 44.
8920 Wilshire Boulevard, Suite 635, Beverly Hills,
CA 90211, e-mail: [email protected]. www
.jordangeller.com. Contact Dr. Jordan Geller.
Expert testimony in medical and endocrinology
cases. Independent medical exams, records review,
and written opinions.
EMPLOYMENT/DISCRIMINATION/
HARASSMENT/RETALIATION
BRIAN H. KLEINER, PHD, MBA
Professor of Human Resource Management, California State University, 551 Santa Barbara Avenue,
Fullerton, CA 92835, (714) 879-9705, fax (714) 8795600. Contact Brian H. Kleiner, PhD. Specialties:
The evaluation of workplace policies and practices
pertaining to discrimination/harassment prevention
efforts (training, interactive process, reasonable
accommodation), investigations, corrective actions
(discipline, termination), hiring, compensation/wage
and hours/ERISA, violence, OSHA, appraisal, promotion, CFRA/FMLA, retaliation, and RIFS. Experience: Former human resource manager for Ford
Motor Company. Over 100 consulting clients.
Trained thousands of managers. 500+ publications.
Have been retained in 500+ legal cases, have given
deposition testimony 200+ times and trial/arbitration
testimony 65+ times.
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272,
(310) 454-2988, fax (310) 454-4516. Contact
Marcia Haight, SPHR—CA. Human resources
expert knowledgeable in both federal and California
law. Twenty-five years’ corporate human resources
management experience plus over 20 years as a
Human Resources Compliance Consultant in California. Specializations include sexual harassment,
ADA/disability discrimination, other Title VII and
FEHA discrimination and harassment, retaliation,
FMLA/CFRA, safety, and wrongful termination.
Courtroom testimony and deposition experience.
Retained 60 percent by defense, 40 percent by
plaintiff. Audit employer’s actions in preventing and
resolving discrimination, harassment, and retaliation
issues. Assess human resources policies and practices for soundness, for comparison to prevailing
practices, and for compliance. Evaluate employer
responsiveness to complaints and effectiveness of
employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination
of documents, and expert testimony.
HRM CONSULTING, INC.
1700 North First Street, Suite 120, San Jose, CA
95112, (209) 728-8905, fax (209) 728-8970, e-mail:
[email protected]. Web site: www
.hrmconsulting.com. Contact Beth B. De Lima,
SPHR-CA. Expert witness Beth De Lima, has testified for both plaintiff and defense in the following
areas: human resources standards of care, employment ADA accommodation, FEHA, FMLA, CFRA,
ADA & EEOC violations. Wrongful termination, performance management, discrimination, sexual
harassment, exempt analysis, labor market assess50 Los Angeles Lawyer November 2013
JORDAN GELLER, M.D.
ENGINEER/TRAFFIC
WILLIAM KUNZMAN, PE
1111 Town and Country #34, Orange, CA 92868,
(714) 973-8383, fax (714) 973-8821, e-mail: bill
@traffic-engineer.com. Web site: www.traffic
-engineer.com. Contact William Kunzman, PE.
Traffic expert witness since 1979, both defense and
plaintiff. Auto, pedestrian, bicycle, and motorcycle
accidents. Largest plaintiff verdicts: 1) $12,200,000
in pedestrian accident case against Caltrans, 2)
$10,300,000 in case against Los Angeles Unified
School District. Largest settlement: $2,000,000 solo
vehicle accident case against Caltrans. Best defense
verdict: $0 while defending Caltrans and opposition
sought $16,000,000. Before becoming expert witness, employed by Los Angeles County Road
Department, Riverside County Road Department,
city of Irvine, and Federal Highway Administration.
Knowledge of governmental agency procedures,
design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds
of cases. Undergraduate work—UCLA, graduate
work—Yale University.
ENGINEERING
4X FORENSIC ENGINEERING
LABORATORIES, INC.
5262 Oceanus Drive, Huntington Beach, CA 92649,
(714) 450-8500, fax (714) 450-8599, e-mail: 0.phil
@4Xforensic.com. Web Site: www.4Xforensic.com.
Contact Phil Van Herle. 4X Forensic Engineering
Laboratories is a full-service forensic engineering laboratory. We provide expert witness and analytical
and testing services in the following areas: fires and
explosions: electrical and gas product defect investigations, thermal and fire modeling and laboratory
testing, water loss: materials, corrosion and failure
analysis of plumbing products, failure analysis:
metallurgy, product testing, and computerized
stress analysis. Accident reconstruction: automotive, trucks, construction equipment, and premises
liability.
A & E FORENSICS
2121 Montiel Road, San Marcos, CA 92069,
(877) 839-7302, fax (760) 480-7477, e-mail: steve
@aeforensics.com. Web site: www.aeforensics
.com. Steve Norris, AIA, PE, GE, HG, CEG,
CASp, LEED. Architect, engineer, contractor—standard of care expert. Retained over 200 times,
deposed over 100 times, and testified in trial over 20
times. Waterproofing, water intrusion, building envelope, zoning setbacks, concrete performance, path
of travel, structural analysis, earthquake-fire damage,
and plan analysis. Landslides, retaining wall failure,
settlement, flooding, grading, septic, expansive soils,
mud flows, pavement distress, ground water evaluation, and slope analysis. Cost estimates, construction management, delay analysis, and contracts.
Serving all California, Hawaii, and Oklahoma. See
display ad on page 41.
CONSTRUCTION DISPUTE RESOLUTION
CONSULTANTS
312 Emerald Bay, Laguna Beach, CA 92651, (949)
300-2244, e-mail: [email protected].
Web site: www.constructionDRC.com. Contact
Hanns U. Baumann, SE. Expert construction
forensic consultation by licensed civil, structural,
geotechnical/soil, engineering and licensed general
contractor with many years of professional experience in California.
EXPONENT
5401 McConnell Avenue, Los Angeles, CA 90066, (310)
754-2700, fax (310) 754-2799, e-mail: reza@exponent
.com. Web site: www.exponent.com. Contact Ali
Reza. Specialties: fires and explosions, metallurgy and
mechanical engineering, structural and geotechnical,
accident reconstruction and analysis, human factors,
risk and reliability assessment, toxicology and human
health, biomechanics, electrical and semiconductors,
aviation, materials science, HVAC, energy consulting,
construction defect, and scheduling.
THOMAS L. LISTON, PE
329 South San Antonio Road, Suite 5, Los Altos,
CA 94022, (650) 948-1830, fax (650) 948-3030,
e-mail: [email protected]. Web site:
www.tomlistoninc.com. Contact Tom Liston, PE.
Carbon monoxide, HVAC, plumbing, fire, and explosions.
SCS ENGINEERS
3900 Kilroy Airport Way, Suite 100, Long Beach,
CA 90806, (562) 426-9544, fax (562) 427-0805,
e-mail: [email protected]. Web site: www
.scsengineers.com. Contact Julio Nuno, VP. SCS
provides expert witness services related to environment studies and engineering, water resources, solid
waste and air quality and industrial hygiene and
safety services. We are a 43-year old consulting firm
with 66 offices across the US and over 800 employees. Our Long Beach office has more than 30 professional engineers, scientists, and subject matter
experts available on short notice to serve asbestos,
lead-based paint, and other specialty areas requiring
expert witness services.
ENGINEERING/GEOTECHNICAL
COTTON, SHIRES AND ASSOCIATES, INC.
Southern California branch, serving greater So. Cal.
area, (805) 497-7999, fax (805) 497-7933, e-mail:
[email protected]. Web site: www
.cottonshires.com. Contact Michael Phipps or
Patrick O. Shires. Full service geotechnical engineering consulting firm specializing in investigation,
design, arbitration, and expert witness testimony
with offices in Los Gatos, Thousand Oaks, and San
Andreas, California. Earth movement (settlement, soil
creep, landslides, tunneling and expansive soil),
foundation distress (movement and cracking of
structures), drainage and grading issues (seepage
through slabs, moisture intrusion, nuisance water,
and ponding water in crawlspace), pavement and
slab distress (cracking and separating), retaining
walls (movement, cracking, and failures), pipelines,
flooding and hydrology, design and construction
deficiencies, aerial photo analysis; expert testimony
at 77+ trials (municipal, superior, and federal), 207+
depositions, 208+ settlement conferences in California, Nevada, Hawaii, and Michigan.
ENVIRONMENTAL
KGA, INC.
1409 Glenneyre Street, Suite A, Laguna Beach, CA
92651, (949) 497-6000, fax (949) 494-4893, e-mail:
[email protected]. Web site: www.kgainc.com.
Contact Kurt Grosz. Construction and environmental consultants since 1991. Licensed engineers and
contractors. ICC building, plumbing, mechanical,
concrete, and accessibility inspectors. Certified professional estimators. Trial experts, arbitrators, and
insurance appraisers.
THE REYNOLDS GROUP
P.O. Box 1996, Tustin, CA 92781-1996, (714)
730-5397, fax (714)730-6476, e-mail: edreynolds
@reynolds-group.com. Website: www.reynolds-group
.com. Contact Ed Reynolds, principal. An environmental consulting, contracting firm. Expertise: environmental contamination, assessment, remediation,
reasonable value of construction, and related financial
matters. Degrees in Civil Engineering: USC (BS), University of Houston (MS), Harvard MBA. California
Registered Civil Engineer, Licensed A, B, HAZ California Contractor. Adjunct Faculty Member USC School
of Engineering (Construction Management) and Member USC’s Board of Councilors.
SCS ENGINEERS
3900 Kilroy Airport Way, Suite 100, Long Beach,
CA 90806, (562) 426-9544, fax (562) 427-0805,
e-mail: [email protected]. Web site: www
.scsengineers.com. Contact Julio Nuno, VP. SCS
provides expert witness services related to environment studies and engineering, water resources, solid
waste and air quality and industrial hygiene and
safety services. We are a 43-year old consulting firm
with 66 offices across the US and over 800 employees. Our Long Beach office has more than 30 professional engineers, scientists, and subject matter
experts available on short notice to serve asbestos,
lead-based paint, and other specialty areas requiring
expert witness services.
FORENSIC PATHOLOGY AND TOXICOLOGY
BURR HARTMAN, DO, PHD | BURR HARTMAN CONSULTING
Forensic pathologist with PhD in chemistry. Board certified
in anatomic, clinical and forensic pathology.
Practice provides services for Tulare Regional Medical Center, coroner’s
pathology for three sheriff-coroner departments, and consultation for
Mineral King Toxicology Laboratory. Broad-based scientific background
and longstanding interest in toxicology. Testified/deposed 100 times in last
4 years. Interested in technical and scientific issues encountered and not
usually encountered in clinical practice.
Contact Burr Hartman, DO, PhD
Burr Hartman Consulting
ENVIRONMENTAL ENGINEER
WZI INC. (ENVIRONMENTAL ENGINEERS)
1717 28th Street, Bakersfield, CA 93301, (661)
326-1112, fax (661) 326-6480, e-mail: mjwilson
@wziinc.com. Web site: www.wziinc.com. Contact
Mary Jane Wilson. BS, petroleum engineering environmental assessor #00050. Specialties include regulatory compliance, petroleum, and power generation.
ESCROW
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage,
appraisal, escrow, and title insurance.
EXPERT REFERRAL SERVICE
TASA (TECHNICAL ADVISORY SERVICE FOR
ATTORNEYS) EXPERTS IN ALL CATEGORIES
Contact Heather Williamson. (800) 523-2319, fax
(800) 329-8272, e-mail: [email protected]. Web
site: www.TASAnet.com. The TASA Group is your
timesaving, cost-effective source for superior, independent Testifying and Consulting Experts in all
fields and locations. We offer over 11,000 diverse
categories of expertise and hard-to-find specialties in
technology, business, the arts, and sciences, including 1000+ medical areas through TASAmed. Our
experienced Referral Advisers target your specific
criteria and connect you with experts available to discuss your case. There is NO CHARGE for our search
and referral services unless you designate or engage
an expert we refer. Plaintiff/Defense; Civil/Criminal.
Visit TASAnet.com, where you can search expert
profiles by expertise keyword, order indispensable
research reports on experts, request an expert on
our online form, and discover E-discovery services &
solutions. Explore TASAnet.com’s Knowledge Center to read expert-authored articles and view
archived webinars for attorneys. To receive invitations to our free, expert-led webinars, register at
wwws.TASAnet.com. Benefit from 57 years of TASA
Group Experience. Please see our insert in this
issue and display ad on page 56.
TEL
559.686.4000 | FAX 559.686.9432
[email protected]
EMAIL
MICROCORRE DX LAB, 890 CHERRY STREET, TULARE, CALIFORNIA 93274
INSURANCE BAD FAITH EXPERT
Clinton E. Miller, J.D., BCFE
Author: How Insurance Companies Settle Cases
39 YEARS EXPERIENCE
Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide
Coverage Disputes – Customs and Practices in the Insurance
Industry – Good Faith/Bad Faith Issues
TEL 408.279.1034 | EMAIL [email protected] | FAX 408.279.3562
www.quikpage.com/M/millerjd/
RICHARD WEISSMAN
SALTZBURG, RAY & WEISSMAN, LLP
RECEIVERSHIP
ACTIONS
• Partnerships and Corporate
Dissolutions
• Government Enforcement
Receivership Actions
• Partition Actions/Marital
Dissolution
EXPERT WITNESS
AMFS MEDICAL EXPERTS NATIONWIDE
6425 Christie Avenue, Suite 260, Emeryville, CA
94608, (800) 275-8903. Web site: www.AMFS.
com. Medical experts for malpractice and personal
injury cases. AMFS is America’s premier medical
expert witness and consulting company. We are a
trusted partner with the legal community and provide
a superior method of retaining medical experts. For
over 20 years, AMFS has provided board-certified
TEL
310.481.6780 |
FAX 310.481.6786
[email protected]
www.srblaw.com
12121 WILSHIRE BOULEVARD, SUITE 600, LOS ANGELES CA 90025
Los Angeles Lawyer November 2013 51
experts in over 10,000 malpractice and personal
injury cases. • Board-Certified experts in all medical
specialties • Practicing physicians with legal experience • No cost attorney consultations • Record
review and testimony • Independent Medical Examinations (IME) and autopsies • Essential affidavits and
reporting. Discuss your case at no charge with one
of our medical directors, who will identify and clarify
your case issues to ensure you retain the appropriate
specialists. Cost-effective initial case reviews for
merit. Have your case reviewed for merit by members of our 50+ member multispecialty Physician
Advisory Panel. Review and select expert CVs. Our
experience, resources, and large proprietary database enable us to quickly identify and interview a
large number of potential medical experts on your
behalf and provide you with the CVs of those who
are best suited to your case. Ask about our new
expert on-call service. See display ad on page 46.
EXPERT WITNESS WEB SITES
EXPERT4LAW—THE LEGAL MARKETPLACE
(213) 896-6561, e-mail: [email protected].
Web site: www.expert4law.org. Contact Melissa
Algaze. Still haven’t found who you’re looking for?
Expert4law—The Legal Marketplace is the best
online directory for finding expert witnesses, legal
consultants, litigation support, lawyer-to-lawyer networking, dispute resolution professionals, and law
office technology. This comprehensive online directory is the one-stop site for your legal support needs.
Available 24/7/365! Brought to you by the Los Angeles County Bar Association.
FAILURE ANALYSIS
4X FORENSIC ENGINEERING
LABORATORIES, INC.
5262 Oceanus Drive, Huntington Beach, CA 92649,
(714) 450-8500, fax (714) 450-8599, e-mail: 0.phil@
4Xforensic.com. Web Site: www.4Xforensic.com.
Contact Phil Van Herle. 4X Forensic Engineering
Laboratories is a full-service forensic engineering laboratory. We provide expert witness and analytical
and testing services in the following areas: fires and
explosions: electrical and gas product defect investigations, thermal and fire modeling and laboratory
testing, water loss: materials, corrosion and failure
analysis of plumbing products, failure analysis: metallurgy, product testing, and computerized stress
analysis. Accident reconstruction: automotive, trucks,
construction equipment, and premises liability.
KARS’ ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland
Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax
(714) 527-7169, e-mail: [email protected]. Web site:
www.karslab.com. Contact Dr. Ramesh Kar, Dr.
Naresh Kar, Dr. Nikhil Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineers with
30-plus years in metallurgical/forensic/structural failure
analysis. Experienced with automotive, bicycles, tires,
fire, paint, plumbing, corrosion, and structural failures.
We work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition
and courtroom experience (civil and criminal investigations). Principals are Fellows of American Society for
Metals and Fellows, American College of Forensic
Examiners. See display ad on page 61.
KGA, INC.
1409 Glenneyre Street, Suite A, Laguna Beach, CA
92651, (949) 497-6000, fax (949) 494-4893, e-mail:
[email protected]. Web site: www.kgainc.com.
Contact Kurt Grosz. Construction and environmental consultants since 1991. Licensed engineers and
contractors. ICC building, plumbing, mechanical,
concrete and accessibility inspectors. Certified professional estimators. Trial experts, arbitrators, and
insurance appraisers.
FAMILY LAW
BRIAN LEWIS & COMPANY
10900 Wilshire Boulevard, Suite 610, Los Angeles,
CA 90024, (310) 475-5676, fax (310) 475-5268,
e-mail: [email protected]. Contact Brian
Lewis, CPA, CVA. Forensic accounting, business
52 Los Angeles Lawyer November 2013
valuations, cash spendable reports, estate, trust, and
income tax services.
CBIZ & MAYER HOFFMAN MCCANN PC
10474 Santa Monica Boulevard, Suite 200, Los
Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: [email protected]. Contact Coral
Hansen. Web site: www.MHM-PC.com, www
.CBIZ.com. CBIZ & Mayer Hoffman McCann PC
specializes in fraud investigations, forensic accounting, business litigation, commercial damage and lost
profits computations, business valuation and
appraisal, transactional due diligence, family limited
partnerships, business interruption, and family law.
We provide experienced expert testimony and tax
controversy representation.
CMM, LLP
5700 Canoga Avenue, Suite 300, Woodland Hills,
CA 91367, (818) 986-5070, fax (818) 986-5034,
e-mail: [email protected]. Web site: www
.cmmcpas.com. Contact Scott Mowrey. Specialties: consultants who provide extensive experience,
litigation support, and expert testimony regarding
forensic accountants, fraud investigations, economic
damages, business valuations, family law, bankruptcy, and reorganization. Degrees/licenses: CPAs,
CFEs, MBAs. See display ad on page 45.
ELLIOT D. FELMAN, MD
1821 Wilshire Boulevard, Suite 301, Santa Monica,
CA 90403, (310) 260-2525, fax (310) 260-7575,
e-mail: [email protected]. Contact Mary Lou
Purdy. Expert review and testimony, plaintiff or
defense, teaching faculty UCLA School of Medicine
and Western University School of Health Sciences.
Former expert reviewer for California Medical Board.
GURSEY/SCHNEIDER LLP
1888 Century Park East, Suite 900, Los Angeles, CA
90067, (310) 552-0960, fax (310) 557-3468, 20355
Hawthorne Boulevard, First Floor, Torrance, CA
90503, (310) 370-6122, fax (310) 370-6188, 19100
Von Karman Avenue, Suite 950, Irvine, CA 92612,
(949) 265-9900, fax (949) 265-9901, e-mail:
[email protected], [email protected], or
[email protected]. Web site: www.gursey.com.
Contact Stephan Wasserman, Robert Watts or
Tracy Katz. Forensic accounting and litigation support services in all areas relating to marital dissolution, including business valuation, tracing and apportionment of real property and assets, net spendable
evaluations, determination of gross cash flow available for support, and analysis of reimbursement
claims and marital standards of living. See display ad
on page 47.
HARGRAVE & HARGRAVE, AN
ACCOUNTANCY CORPORATION
12121 Wilshire Boulevard, Suite 700, Los Angeles,
CA 90025, (310) 576-1090, fax (310) 576-1080,
e-mail: [email protected]. Web site:
www.hargraveandhargrave.com. Contact Terry M.
Hargrave, CPA/ABV/CFF, CFE. Forensic accounting and business valuation services for family law and
civil cases. Past chair of California Society of CPAs’
Family Law Section and business valuation instructor
for California CPA Education Foundation. Services
include business valuations, income available for
support, tracing separate property, litigation consulting, real estate litigation, mediation, fraud investigations, damage calculation, and other forensic
accounting work.
HAYNIE & COMPANY, CPAS
4910 Campus Drive, Newport Beach, CA 926602119, (949) 724-1880, fax (949) 724-1889, e-mail:
[email protected]. Web site: www
.hayniecpa.com. Contact Steven C. Gabrielson.
Consulting and expert witness testimony in a variety
of practice areas: commercial damages, ownership
disputes, economic analysis, business valuation, lost
profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists in
courtroom presentations.
KRYCLER, ERVIN, TAUBMAN, AND WALHEIM
15303 Ventura Boulevard, Suite 1040, Sherman
Oaks, CA 91403, (818) 995-1040, fax (818) 995-
4124. Web site: [email protected]. Contact
Michael J. Krycler. Litigation support, including
forensic accounting, business appraisals, family law
accounting, business and professional valuations,
damages, fraud investigations, and lost earnings.
Krycler, Ervin, Taubman and Walheim is a full-service accounting firm serving the legal community for
more than 20 years. See display ad on page 39.
WHITE, ZUCKERMAN, WARSAVSKY,
LUNA & HUNT
15490 Ventura Boulevard, Suite 300, Sherman
Oaks, CA 91403, (818) 981-4226, fax (818) 9814278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614,
(949) 219-9816, fax (949) 219-9095, e-mail:
[email protected]. Web site: www.wzwlh.com.
Contact Barbara Luna. Expert witness testimony
for complex litigation involving damage analyses of
lost profits, unjust enrichment, reasonable royalties,
lost earnings, lost value of business, forensic
accounting, fraud investigation, investigative analysis
of liability, and marital dissolution, and tax planning
and preparation. Excellent communicators with
extensive testimony experience. Prior Big Four
accountants. Specialties include accounting, breach
of contract, breach of fiduciary duty, business interruption, business dissolution, construction defects,
delays, and cost overruns, fraud, insurance bad faith,
intellectual property (including trademark, patent, and
copyright infringement, and trade secrets), malpractice, marital dissolution, personal injury, product liability, real estate, securities, tax planning and preparation, IRS audit defense, tracing, unfair advertising,
unfair competition, valuation of businesses, and
wrongful termination. See display ad on page 43.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAS
11900 West Olympic Boulevard, Suite 650, Los
Angeles, CA 90064-1046, (310) 826-1040, fax (310)
826-1065. Web site: www.zsscpa.com. Contact
Lester J. Schwartz, CPA/CFF, DABFE, DABFA,
Michael D. Saltsman, CPA, MBA, David L. Bass,
CPA, David Dichner, CPA, ABV, CVA, Sandy
Green, CPA, Daljeet Kaur, CPA. 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, settlement
negotiations, and consultations. See display ad on
page 49.
FASTENERS-LATCHES
ARGOS ENGINEERING
44 Argos, Laguna Niguel, CA 92677, (949) 3638205, fax (949) 429-5972, e-mail: johndpratt@cox
.net. Web site: www.argos-engineering.com. Contact John D. Pratt, PhD, PE. Litigation consulting,
inspections, expert reports, patent infringement and
validity analysis, deposition, and trial testimony.
FEES & ETHICS
JOEL MARK
HATHAWAY, PERRETT, WEBSTER, POWERS,
CHRISMAN & GUTIERREZ
5450 Telegraph Road, Suite 200, Ventura, CA
93003, (805) 644-7111, fax (805) 644-8396,
e-mail: [email protected] Web site: www
.hathawaylawfirm.com. Contact Joel Mark. Mr.
Mark has had in excess of 55 matters as an expert
witness in attorney malpractice cases, attorneys’ fee
disputes, and cases involving issues of attorney
ethics. He served 14 years on the State Bar Committee on Mandatory Fee Arbitration, a term on the
State Bar Committee on Professional Responsibility
and Conduct, and has been appointed as an expert
consultant by the Los Angeles Superior Court.
FINANCIAL
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage,
appraisal, escrow, and title insurance.
CORNERSTONE RESEARCH
633 West Fifth Street, 31st Floor, Los Angeles, CA
90071-2005, (213) 553-2500, fax (213) 553-2699.
Web site: www.cornerstone.com. Contact George
G. Strong, Jr., Richard W. Dalbeck, Katie J.
Galley, Elaine Harwood, Carlyn Irwin, Erin
McGlogan or Ashish Pradhan. For more than
twenty-five years, Cornerstone Research staff have
provided economic and financial analysis in all
phases of commercial litigation and regulatory proceedings. We work with a broad network of testifying
experts, including prominent faculty and industry
practitioners, in a distinctive collaboration. The
experts with whom we work bring the specialized
expertise required to meet the demands of each
assignment. Our areas of specialization include intellectual property, antitrust, securities, entertainment,
real estate, financial institutions, and general business litigation.
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los Angeles,
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs,
affiliated professors, and industry specialists. Our
analysis and research, combined with unique presentation techniques, have resulted in an unequaled
record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled
company consultation, statistics, forensic economic
analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses:
CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See
display ad on back cover.
STEVEN BURRES, MD, FAACS | MEDICAL EXPERT
SPECIALIZING IN EAR, NOSE & THROAT: HEARING LOSS, ALLERGY, VOICE, SINUS, ETC.
COSMETIC SURGERY: FACLIFTS, EYELIDS, NOSE, LIPOSUCTION, SCAR, FACIAL INJURY, ETC.
• Stanford Trained
• University of
Chicago-Pritzker
Medical School
• USC-LA County
Faculty
• Board Certified Facial
Plastic Surgery
• Board Certified Ear,
Nose and Throat
• American Academy
of Cosmetic Surgery
Frequent national speaker – Published 30 scientific papers
Won two research awards – Former UCLA faculty
— Over 30 years of experience —
TEL 310.385.0590
/ 877.784.5543
E-MAIL [email protected] FAX 323.937.1673
465 North Roxbury Drive, Suite 1012, Beverly Hills CA 90210
HAYNIE & COMPANY, CPAS
4910 Campus Drive, Newport Beach, CA 926602119, (949) 724-1880, fax (949) 724-1889, e-mail:
[email protected]. Web site: www
.hayniecpa.com. Contact Steven C. Gabrielson.
Consulting and expert witness testimony in a
variety of practice areas: commercial damages,
ownership disputes, economic analysis, business
valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists
in courtroom presentations.
FINANCIAL STATEMENTS
CBIZ & MAYER HOFFMAN MCCANN PC
10474 Santa Monica Boulevard, Suite 200, Los
Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: [email protected]. Contact Coral
Hansen. Web site: www.MHM-PC.com, www
.CBIZ.com. CBIZ & Mayer Hoffman McCann PC
specializes in fraud investigations, forensic accounting, business litigation, commercial damage and lost
profits computations, business valuation and
appraisal, transactional due diligence, family limited
partnerships, business interruption, and family law.
We provide experienced expert testimony and tax
controversy representation.
Securities & Business Law
SEC Enforcement Defense
International Business & Securities
Class & Derivative Actions
Insider Trading
NYSE, AMEX, FINRA, DOC Disciplinary Proceedings
Broker-Dealer, Investment Company & Investment Adviser Matters
Liability Under Federal & State Securities Laws
Internet Securities
Securities Arbitration
Law Firm Liability
AV Rated, Former Chair, LACBA Business & Corporations Law Section, LLM Harvard Law School.
40 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission,
Washington D.C. Published Author of Securities Regulations, including eight volume treatise.
FIRE/EXPLOSIONS
Citigroup Center • 444 S. Flower Street, 30th Floor • Los Angeles, CA 90071
4X FORENSIC ENGINEERING
LABORATORIES, INC.
5262 Oceanus Drive, Huntington Beach, CA 92649,
(714) 450-8500, fax (714) 450-8599, e-mail: 0.phil
@4Xforensic.com. Web Site: www.4Xforensic.com.
Los Angeles Lawyer November 2013 53
Contact Phil Van Herle. 4X Forensic Engineering
Laboratories is a full-service forensic engineering
laboratory. We provide expert witness and analytical and testing services in the following areas: fires
and explosions: electrical and gas product defect
investigations, thermal and fire modeling and laboratory testing, water loss: materials, corrosion and failure analysis of plumbing products, failure analysis:
metallurgy, product testing, and computerized stress
analysis. Accident reconstruction: automotive, trucks,
construction equipment, and premises liability.
CHEMICAL ACCIDENT RECONSTRUCTION
SERVICES, INC.
9121 East Tanque Verde Road, Suite 105, Tucson,
AZ 85749, (800) 645-3369, e-mail: service
@chemaxx.com. Web site: www.chemaxx.com.
Contact Dr. Michael Fox. Comprehensive chemical accident investigation—specializing in complex
industrial chemical accidents and chemical related
consumer product injuries, chemical fires and explosions, chemical labeling, chemical packaging, handling and shipping, burns, warnings, labels, MSDSs,
disposal, safety, EPA, OSHA, DOT, propane, natural
gas, hydrogen, flammable liquids, hazardous chemicals, aerosols (hairspray, spray paint, refrigerants).
DOT certified (hazardous materials shipment). Certified fire and explosion investigator, OSHA process
hazard analysis team leader. PhD physical chemistry.
Extensive experience in metallurgy, corrosion, and
failure analysis.
THE MCMULLEN COMPANY, INC.
1260 Lake Boulevard, Suite 226, Davis, CA 95616,
(888) 747-9857, fax (530) 757-1293, e-mail: tmc
@themcmullencompany.com. Web site: www
.themcmullencompany.com. Contact James F.
Mc-Mullen, California State Fire Marshal
(retired). Senior associates available throughout
California (including Los Angeles County). Fire/building code analysis and development, construction
defects, code compliance inspections, fire
origin/cause/spread investigation, fire services management/operations, fire safety-related product
analysis/evaluation, and forensic expert
FOOD SAFETY/HACCP
FOOD SAFETY AND HACCP COMPLIANCE
20938 De Mina Street, Woodland Hills, CA 91364,
(818) 703-7147, e-mail: [email protected]. Web
site: www.foodsafetycoach.com. Contact Jeff
Nelken, BS, MA. Forensic food safety expert knowledgeable in both food safety, accident prevention
and hazard analysis critical control point program
development. Specializes in expert witness testimony
and litigation consultant in matters regarding food
safety, Q.A., standards of performance, HACCP, crisis management, food-borne illness, burns, foreign
object, accidents, health department representation,
food spoilage, allergy, and customer complaints.
Performs inspections, vendor audits, and training.
Hands-on food safety consultant for restaurants,
manufacturers, distributors, country clubs, schools,
nursing homes, and casinos. NRA SERVSAFE certified instructor. Thirty years of food and hospitality
experience. Registered as a food handler provider
with the Los Angeles County Health Department.
Provider # 015. Forensic food safety expert. Food
safety expert for CBS, NBC, Inside Edition, and
CNN. Epidemiologist consultant available—UCLA
and LA County Health Dept. Free Consultation.
FORENSIC ACCOUNTING
CORNERSTONE RESEARCH
633 West Fifth Street, 31st Floor, Los Angeles, CA
90071-2005, (213) 553-2500, fax (213) 553-2699.
Web site: www.cornerstone.com. Contact George
G. Strong, Jr., Richard W. Dalbeck, Katie J.
Galley, Elaine Harwood, Carlyn Irwin, Erin
McGlogan or Ashish Pradhan. For more than
twenty-five years, Cornerstone Research staff have
provided economic and financial analysis in all
phases of commercial litigation and regulatory proceedings. We work with a broad network of testifying
experts, including prominent faculty and industry
practitioners, in a distinctive collaboration. The
experts with whom we work bring the specialized
54 Los Angeles Lawyer November 2013
expertise required to meet the demands of each
assignment. Our areas of specialization include intellectual property, antitrust, securities, entertainment,
real estate, financial institutions, and general business litigation.
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los
Angeles, CA 90017, (213) 787-4100, fax (213) 8911300, e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs,
affiliated professors, and industry specialists. Our
analysis and research, combined with unique presentation techniques, have resulted in an unequaled
record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled
company consultation, statistics, forensic economic
analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses:
CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See display ad on back cover.
GLENN M. GELMAN & ASSOCIATES
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS ADVISERS
1940 East 17th Street, Santa Ana, CA 92705,
(714) 667-2600, fax (714) 667-2636, e-mail: rsquar
@gmgcpa.com. Web site: www.gmgcpa.com.
Contact Richard M. Squar. Since 1983, our firm
has specialized in delivering forensic accounting and
litigation support services that give our clients an
edge. We provide the quality and depth traditionally
associated with Big Four firms with the personal
attention and fee structure of a local firm. Our litigation support services include forensic accounting,
investigative auditing, embezzlement and fraud,
expert witness testimony, strategy development,
document discovery, deposition assistance, computation of damages, arbitration consulting, rebuttal
testimony, fiduciary accountings, and trial exhibit
preparation and reconstruction of accounting
records. Our practice focuses on closely held entrepreneurial firms in the following industries: construction, real estate development, equipment leasing,
auto parts (wholesale and retail), manufacturing, and
professional services Glenn M. Gelman has been
appointed and served as Special Master in litigation
support matters and has testified over 30 times. Our
comprehensive case list is available upon request.
See display ad on page 44.
GURSEY/SCHNEIDER LLP
1888 Century Park East, Suite 900, Los Angeles,
CA 90067, (310) 552-0960, fax (310) 557-3468,
e-mail: [email protected]. Web site: www.gursey.com.
Contact Gary Krausz. Gursey|Schneider specializes in forensic accounting and litigation support services in the areas of civil litigation, business disputes,
bankruptcy, damage and cost-profit insurance
claims, court accountings, fraud investigations,
accounting malpractice, intellectual property, construction, government accounting, and entertainment
litigation. Gursey|Schneider has over 30 years of
experience as expert witnesses in accounting-related
matters. See display ad on page 47.
RGL FORENSICS
Los Angeles Office: 800 South Figueroa Street,
Suite 980, Los Angeles, CA 90017, (213) 9960900. Contact Alan Lurie, [email protected].
Orange County Office: 625 City Drive South, Suite
290, Orange, CA 92868, (714) 740-2100. Contact
Hank Kahrs, [email protected]. RGL Forensics is
an international firm of forensic financial experts
exclusively dedicated to damage analysis, fraud
investigation, and valuation. Serving the legal, insurance, and business communities for more than 30
years, the firm is unique in its ability to combine
investigative accounting, business valuation, fraud,
and forensic technology expertise. For attorneys,
we discover and define financial value in transactions and civil and criminal disputes, and when necessary provide expert witness testimony in court
and arbitration proceedings. For more information
about RGL and its 23 offices worldwide, please visit
www.rgl.com.
WHITE, ZUCKERMAN, WARSAVSKY,
LUNA & HUNT
15490 Ventura Boulevard, Suite 300, Sherman
Oaks, CA 91403, (818) 981-4226, fax (818) 9814278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614,
(949) 219-9816, fax (949) 219-9095, e-mail: expert
@wzwlh.com. Web site: www.wzwlh.com. Contact
Barbara Luna. Expert witness testimony for complex litigation involving damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting,
fraud investigation, investigative analysis of liability,
and marital dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four accountants. Specialties include accounting, breach of contract,
breach of fiduciary duty, business interruption, business dissolution, construction defects, delays, and
cost overruns, fraud, insurance bad faith, intellectual
property (including trademark, patent, and copyright
infringement, and trade secrets), malpractice, marital
dissolution, personal injury, product liability, real
estate, securities, tax planning and preparation, IRS
audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 43.
FORENSIC ANALYSIS
BRIAN LEWIS & COMPANY
10900 Wilshire Boulevard, Suite 610, Los Angeles,
CA 90024, (310) 475-5676, fax (310) 475-5268,
e-mail: [email protected]. Contact Brian
Lewis, CPA, CVA. Forensic accounting, business
valuations, cash spendable reports, estate, trust, and
income tax services.
FORENSIC PATHOLOGY AND TOXICOLOGY
BURR HARTMAN, DO, PHD
BURR HARTMAN CONSULTING
Microcorre Dx Lab, 890 Cherry St, Tulare, CA
93274, (559) 686 4000, fax (559) 686 9432, email:
[email protected]. Contact Burr Hartman,
DO, PhD. Forensic pathologist with PhD in chemistry. Board certified in anatomic, clinical and forensic
pathology. Practice provides services for Tulare
Regional Med Ctr, coroner’s pathology for three
sheriff-coroner departments and consultation for
Mineral King Toxicology Laboratory. Broad-based
scientific background and longstanding interest in
toxicology. Testified/deposed 100 times in last four
years. Interested in technical and scientific issues
encountered and not usually encountered in clinical
practice. See display ad on page 51.
FRAUD INVESTIGATIONS
CBIZ & MAYER HOFFMAN MCCANN PC
10474 Santa Monica Boulevard, Suite 200, Los
Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: [email protected]. Contact Coral
Hansen. Web site: www.MHM-PC.com, www
.CBIZ.com. CBIZ & Mayer Hoffman McCann PC
specializes in fraud investigations, forensic accounting, business litigation, commercial damage and lost
profits computations, business valuation and
appraisal, transactional due diligence, family limited
partnerships, business interruption, and family law.
We provide experienced expert testimony and tax
controversy representation.
GEOLOG
CONSULTING ENGINEERING
4653 Carmel Mountain Road, Suite 308-258,
San Diego, CA 92130, (858) 243-4438, e-mail:
[email protected]. Consulting engineering,
geologist, analysis of the adverse effects of site
preparation and geologic hazards on engineered
structures including subcode grading, differential settlement, expansive soils, subsidence, mine and
quarry blasting, pile driving, earthquakes, liquefaction, surface fault rupture and causation of ground
fractures and structure cracks.
GEOTECHNICAL ENGINEERING
A & E FORENSICS
2121 Montiel Road, San Marcos, CA 92069,
(877) 839-7302, fax (760) 480-7477, e-mail: steve
@aeforensics.com. Web site: www.aeforensics
.com. Steve Norris, AIA, PE, GE, HG, CEG,
CASp, LEED. Architect, engineer, contractor—
standard of care expert. Retained over 200 times,
deposed over 100 times, and testified in trial over 20
times. Waterproofing, water intrusion, building envelope, zoning setbacks, concrete performance, path
of travel, structural analysis, earthquake-fire damage,
and plan analysis. Landslides, retaining wall failure,
settlement, flooding, grading, septic, expansive soils,
mud flows, pavement distress, ground water evaluation, and slope analysis. Cost estimates, construction management, delay analysis, and contracts.
Serving all California, Hawaii, and Oklahoma. See
display ad on page 41.
Life Care
Planning
•
•
•
•
•
JAN ROUGHAN, RN
www.linc.biz
LIFE CARE PLANS Comprehensive (Trial) – Mini (Mediation/
Settlement Conference) – Critique
EXPERT TESTIMONY Trial – Arbitration – Mediation/Settlement
VIDEO SERVICE Day in Life – Mediation/Settlement Documentary
MEDICAL RECORDS Review – Chronology
IME Attendance Report/Critique
114 W. COLORADO BLVD., MONROVIA, CA 91016 | 626.303.6333 EXT. 16 OR 17
CONSTRUCTION DISPUTE RESOLUTION
CONSULTANTS
312 Emerald Bay, Laguna Beach, CA 92651, (949)
300-2244, e-mail: [email protected].
Web site: www.constructionDRC.com. Contact
Hanns U. Baumann, S.E. Expert construction
forensic consultation by licensed civil, structural,
geotechnical/soil, engineering and licensed general
contractor with many years of professional experience in California.
Anita Rae Shapiro
SUPERIOR COURT COMMISSIONER, RET.
PRIVATE DISPUTE RESOLUTION
GERIATRICS
PROBATE, CIVIL, FAMILY LAW
PROBATE EXPERT WITNESS
HAMPTON HEALTH, LTD
JOHN H. FULLERTON, MD, MRO, CMD, CFP,
FACP, AGSF, FAAHPM
1700 California Street, Suite 470, San Francisco,
CA 94109, (415) 460-5532, fax (415) 459-2774,
e-mail: [email protected]. Web site:
hamptonhealthltd.com. Contact Kate McElroy,
PA-C. Services available: board certified in internal
medicine, geriatrics, hospice, palliative medicine,
addiction medicine, and home health; licensed medical review officer. Expertise: Medicare fraud cases
for the government, toxicology/DUI, elder abuse
including criminal defense of lay caregivers accused
of homicide of demented relatives during end-of-life
phase. Hospital, ambulatory/outpatient, PI, medical
malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more
than 1,000 cases in the last 13 years. See display ad
on page 44.
HANDWRITING
SANDRA L. HOMEWOOD, FORENSIC
DOCUMENT EXAMINER
1132 San Marino Drive, Suite 216, Lake San
Marcos, CA 92078, (760) 931-2529, fax (760) 5108412, e-mail: [email protected].
Contact Sandra L. Homewood. Highly skilled and
experienced document examiner and expert witness
in many complex and high-profile civil and criminal
cases with fully equipped document laboratory. Specializing in handwriting and handprinting identification, handwriting of the elderly in financial elder
abuse cases and will contests, and examination of
altered medical and corporate records. Trained in
government laboratory, including specialized training
by the FBI and Secret Service. Former government
experience includes document examiner for the San
Diego Police Department crime lab, Arizona State
crime lab, and San Diego County District Attorney’s
office. Currently in private, criminal, and civil practice.
HOSPICE/PALLIATIVE MEDICINE
HAMPTON HEALTH, LTD
JOHN H. FULLERTON, MD, MRO, CMD, CFP,
FACP, AGSF, FAAHPM
1700 California Street, Suite 470, San Francisco,
CA 94109, (415) 460-5532, fax (415) 459-2774,
e-mail: [email protected]. Web site:
hamptonhealthltd.com. Contact Kate McElroy,
PA-C. Services available: board certified in internal
medicine, geriatrics, hospice, palliative medicine,
addiction medicine, and home health; licensed medical review officer. Expertise: Medicare fraud cases
TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649
E-MAIL: [email protected]
http://adr-shapiro.com
EVALUATION
■ TESTING
■ TREATMENT
■
Neurology and
Electromyography
Neurotoxicology
Occupational/
Environmental
Medicine
CA Medical Practice Since 2000
TEL
415.381.3133 |
FAX
JONATHAN S. RUTCHIK, MD, MPH
415.381.3131 |
E-MAIL
www.neoma.com
[email protected]
20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941
Offices in San Francisco, Richmond, Petaluma, Sacramento and Eureka/Arcata
Los Angeles Lawyer November 2013 55
As an Expert Witness in Real Estate Litigation, Attorney
LAWRENCE H. JACOBSON
has consistently been on the Winning Team
• Real estate and
mortgage brokers’
standard of care
• Lawyer malpractice in
ethics, business and real
estate transactions
• Interpretation
of real estate
documents
Practicing real estate law in California since 1968. Past President, Beverly Hills Bar Association.
Former Vice President-Legal Affairs, California Association of Realtors. California Real Estate Broker since 1978.
LAWRENCE H. JACOBSON AB, UCLA 1964, JD UCLA SCHOOL OF LAW 1967
Tel 310.271.0747 Fax 310.271.0757 email [email protected] www.lawrencejacobson.com
LAW OFFICES: 9401 WILSHIRE BLVD. SUITE 1250, BEVERLY HILLS, CA 90212
for the government, toxicology/DUI, elder abuse
including criminal defense of lay caregivers accused
of homicide of demented relatives during end-of-life
phase. Hospital, ambulatory/outpatient, PI, medical
malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more
than 1,000 cases in the last 13 years. See display ad
on page 44.
HUMAN FACTORS
ANALYTICA SYSTEMS INTERNATIONAL, INC.
9390 North Calle Buena Vista, Tucson, AZ 85704,
(520) 882-5494, fax (520) 882-2067, e-mail: asi
@asi-az.com. Web site: www.asi-az.com. Contact
Gary M. Bakken, P.D, CPE; BSE—Mechanical
Engineering, MS—Safety, PhD—Industrial Engineering (Human factors/ergonomics/biomechanics). We analyze, from an engineering perspective, human cause and effect relationships for
claimed personal injury incidents using human factors, ergonomics, biomechanics, and safety principles. Areas of personal injury and product liability
expertise includes accident investigation and analysis
regarding driver behavior involving cars, tractortrailer, motorcycles, ATC-ATV, bicycles; falling
objects, slips-trips-missteps-falls, occupational
injuries, low-speed impacts, illumination, playgrounds, and warnings.
HARRELL & ASSOCIATES
250 Pacific Avenue, Suite 407, Long Beach, CA
90802, (805) 549-7745, e-mail: [email protected].
Web site: www.kidsaccident.com. Contact W. A.
Harrell. International reputation in human factors,
accident analysis, children’s injuries/fatalities, defective warnings, shopping carts, product liability,
pedestrians, recreational products/facilities, drownings, negligent caretakers, testing medical devices,
slips/falls, eyewitness problems, injuries/fatalities
involving the elderly, analyses of labels, signage,
manuals, age discrimination analyses, vehicle accidents, farming accidents and readability analyses.
INSURANCE
BOARD CERTIFIED ORTHOPEDIC SURGEON
MARC J. FRIEDMAN, M.D.
6815 Noble Avenue, Van Nuys, California 91405
Tel. 818.901.6600 ext. 2810 ¥ Fax: 818.901.6685 ¥ Email: [email protected]
Web Site: www.scoi.com
Education: Princeton University and Cornell Medical School
Certi cate: Board Certified Orthopedic Surgeon
Memberships: Fellowship Sports Medicine
Fellow American Academy of Orthopedic Surgeons
Fellow in the Arthroscopy Association of North America
Fellow in the International Arthroscopy Association
Fellow in the International Knee Society
Fellow in the American Orthopedic Society of Sports Medicine
ACL Study Group
Certified QME, IME, AME
Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of
the Knee and Shoulder, and Knee Replacement
Appointments: Assistant Clinical Professor, Division of Orthopedics
UCLA School of Medicine
World Cup Soccer Team Physician
Physician Specialist XXIII Olympiad 1984
Orthopedic Consultant–New York Knicks and Jets 1978-1985
Publications: 60 Publications including handbook for Orthopedic Surgeons
on Prosthetic Ligament Reconstruction of the Knee
Presentations: Lectures extensively with over 375 presentations worldwide
56 Los Angeles Lawyer November 2013
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage,
appraisal, escrow, and title insurance.
E.L. EVANS ASSOCIATES
3310 Airport Avenue, Suite # 7, Santa Monica, CA
90405, (310) 559-4005, fax (310) 559-4236, e-mail:
[email protected]. Contact Gene Evans.
Good faith/bad faith. Over 45 years’ experience—
claims adjuster. Standards and practices in the
industry, litigation support, claims consultation, case
review and evaluation, property/casualty claims, construction claims, uninsured/underinsured motorist
claims, general liability, fire/water/mold claims, damage assessment, professional liability claims,
appraisal under policy, arbitration, duty to defend,
advertising claims, coverage applications, and suspected fraud claims. CV available on request. See
display ad on page 45.
INSURANCE EXPERT NETWORK, LLC
364 West Trenton Avenue, Suite 3, Morrisville, PA
19067, (215) 736-2980, fax (215) 736-2986, e-mail:
[email protected]. Web site:
www.insuranceexpertnetwork.com. Contact
Douglas R. Emerick. Claims, underwriting, actuary,
bad faith, captives, casualty, credit, directors and
officers, excess and umbrella, general liability, fidelity,
health, industry standards, inland marine, insurance
broker E&O, life, marine, misrepresentation, OCIP,
professional liability, property, rescission, reinsurance, surety, title, workers compensation and more.
Services available: The Insurance Expert Network,
LLC is the premier provider of experts for insurance
litigation, arbitration, and mediation. IEN has
processed and placed thousands of referrals all over
the United States. Attorneys who have worked with
IEN know that each request for referral is meticulously reviewed by the IEN staff of insurance professionals. The experts IEN refers are all highly qualified,
selected for their particular insurance expertise. For
further information call (215) 736-2980 or visit
www.insuranceexpertnetwork.com.
LAUNIE ASSOCIATES, INC.
2627 Tunnel Ridge Lane, Santa Barbara, CA 93105,
(805) 569-9175, fax (805) 687-8597, e-mail: jlaunie
@cox.net. Contact Joseph J. Launie, PhD,
CPCU, insurance professor, author, and consultant. Over 30 years of experience as expert witness
in state and federal courts. Coauthor of books and
articles on underwriting, insurance company operations, and punitive damages. Consulting, expert witness on underwriting, company and agency operations, and bad faith.
CLINTON E. MILLER, JD, BCFE
INSURANCE BAD FAITH EXPERT
502 Park Avenue, San Jose, CA 95110, (408) 2791034, fax (408) 279-3562, e-mail: [email protected].
Contact Clint Miller. Insurance expert regarding
claims, underwriting, agent and brokers errors and
omissions, coverage disputes, customs and practices, and bad faith. See display ad on page 51.
both personal lines and commercial property insurance claims. Has testified for insurers, insureds, and
brokers. Practiced law in property insurance specialty since 1971. Also acts as Insurance Code
Section 2071 appraiser, adviser, and consultant.
RICHARD MASTERS INSURANCE
SERVICES, INC.
35 West Main Street, #B170, Ventura, CA 93001,
(805) 377-2688, fax (805) 830-0432, e-mail:
[email protected]. Contact Richard
Masters. Forty-seven years of experience. Agent
and broker standard of care. Claims handling, underwriting and claims, specialty lines, custom and practice of industry, certificate and additional insured
issues.
ROBERT HUGHES ASSOCIATES, INC.
508 Twilight Trail, #200, Richardson, TX 75080,
(972) 980-0088, fax (972) 233-1548, e-mail:
[email protected]. Web site: www
.roberthughes.com. Contact John Oakley.
Founded in 1979, RHA is an international insurance
and risk management consulting company based in
Dallas. Our consultants’ experience in the insurance
industry allows us to provide highly qualified expert
witness and litigation support services. Our expertise
includes property/casualty insurance, life/health
insurance, Lloyd’s, London Market Research, claims
handling, bad faith, decision analysis, agency management and practices, insurance laws and regulations, statistical forecasting, insurance sales and
marketing practices, insurance archaeology and policy interpretation and analysis.
JANICE A. RAMSAY, ESQ
BARRY ZALMA, ZALMA INSURANCE
CONSULTANTS
5 Saros, Irvine, CA 92603, (949) 854-9375,
(949) 400-5040 (cell), fax (949) 854-0073, e-mail:
[email protected]. Contact Janice A. Ramsay,
Esq. Experienced in testifying in depositions and at
bad-faith trials as an expert in the customs and
practices of the insurance industry in evaluating coverage and handling claims. Knowledgeable about
4441 Sepulveda Boulevard, Culver City, CA 90230,
(310) 390-4455, fax (310) 391-5614, e-mail: zalma
@zalma.com. Web site: www.zalma.com. Contact
Barry Zalma. Insurance bad faith, insurance claims
handling, insurance coverage, insurance fraud and
consulting, internationally recognized expert, consultants and insurance author, arbitrator and blogger.
Thomas Neches
INTELLECTUAL PROPERTY
CORNERSTONE RESEARCH
633 West Fifth Street, 31st Floor, Los Angeles, CA
90071-2005, (213) 553-2500, fax (213) 553-2699.
Web site: www.cornerstone.com. Contact George
G. Strong, Jr., Richard W. Dalbeck, Katie J.
Galley, Elaine Harwood, Carlyn Irwin, Erin
McGlogan or Ashish Pradhan. For more than
twenty-five years, Cornerstone Research staff have
provided economic and financial analysis in all
phases of commercial litigation and regulatory proceedings. We work with a broad network of testifying
experts, including prominent faculty and industry
practitioners, in a distinctive collaboration. The
experts with whom we work bring the specialized
expertise required to meet the demands of each
assignment. Our areas of specialization include intellectual property, antitrust, securities, entertainment,
real estate, financial institutions, and general business litigation.
FULCRUM INQUIRY
888 South Figueroa Street, Suite 2000, Los
Angeles, CA 90017, (213) 787-4100, fax (213) 8911300, e-mail: [email protected]. Web site: www
.fulcrum.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs,
affiliated professors, and industry specialists. Our
analysis and research, combined with unique presentation techniques, have resulted in an unequaled
record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled
company consultation, statistics, forensic economic
analysis, royalty audits, strategic and market
assessments, computer forensics, electronic discovery, and analysis of computerized data.
Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and
MBAs in accounting, finance, economics, and
related subjects. See display ad on back cover.
• Expert testimony
• Damages calculation
• Forensic accounting
• Business valuation
• Database analysis
Certified Public Accountant
Accredited in Business Valuation
Certified Valuation Analyst
Thomas Neches & Company LLP
Certified Fraud Examiner
Certified in Financial Forensics
voice: (213) 624-8150
e-mail: [email protected]
633 West 5th Street, Suite 2800
Los Angeles, California 90071-2039
www.thomasneches.com
Los Angeles Lawyer November 2013 57
WHITE, ZUCKERMAN, WARSAVSKY,
LUNA & HUNT
15490 Ventura Boulevard, Suite 300, Sherman
Oaks, CA 91403, (818) 981-4226, fax (818) 9814278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614,
(949) 219-9816, fax (949) 219-9095, e-mail: expert
@wzwlh.com. Web site: www.wzwlh.com. Contact
Barbara Luna. Expert witness testimony for complex litigation involving damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting,
fraud investigation, investigative analysis of liability,
and marital dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four accountants. Specialties include accounting, breach of contract,
breach of fiduciary duty, business interruption, business dissolution, construction defects, delays, and
cost overruns, fraud, insurance bad faith, intellectual
property (including trademark, patent, and copyright
infringement, and trade secrets), malpractice, marital
dissolution, personal injury, product liability, real
estate, securities, tax planning and preparation, IRS
audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 43.
INTERNAL MEDICINE
HAMPTON HEALTH, LTD
JOHN H. FULLERTON, MD, MRO, CMD, CFP,
FACP, AGSF, FAAHPM
1700 California Street, Suite 470, San Francisco,
CA 94109, (415) 460-5532, fax (415) 459-2774,
e-mail: [email protected]. Web site:
hamptonhealthltd.com. Contact Kate McElroy,
PA-C. Services available: board certified in internal
medicine, geriatrics, hospice, palliative medicine,
addiction medicine, and home health; licensed medical review officer. Expertise: Medicare fraud cases
for the government, toxicology/DUI, elder abuse
including criminal defense of lay caregivers accused
of homicide of demented relatives during end-of-life
phase. Hospital, ambulatory/outpatient, PI, medical
malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more
than 1,000 cases in the last 13 years. See display ad
on page 44.
INTERNAL MEDICINE AND RHEUMATOLOGY
RICHARD N. SHAW, MD, FACP, FACR
16133 Ventura Boulevard, Suite 400, Encino, CA
91436, (818) 986-1357, fax (818) 986-9370. Contact Isis Ruiz. Workers’ compensation: AME, QME,
panel QME, Superior court, PI, and product liability.
LEGAL MALPRACTICE
Floor, Los Angeles, CA 90071, (213) 362-1000, fax
(213) 362-1001, e-mail: robertrosen@rosen-law
.com. Web site: www.rosen-law.com. Specializing in
securities law, federal securities law enforcement,
securities arbitration, and international securities,
insider trading, NYSE, AMEX, FINRA, DOC disciplinary proceedings, broker-dealer, investment company and investment adviser matters, liability under
federal and state securities laws, public and private
offerings, Internet securities, and law firm liability. AV
rated. Former chair, LACBA Business and Corporations Law Section. LLM, Harvard Law School. Forty
years practicing securities law, 12 years with the
U.S. Securities and Exchange Commission, Washington, DC. Published author/editor of securities regulations, including multivolume treatises. See display
ad on page 53.
MECHANICAL ENGINEERING
4X FORENSIC ENGINEERING
LABORATORIES, INC.
5262 Oceanus Drive, Huntington Beach, CA 92649,
(714) 450-8500, fax (714) 450-8599, e-mail: 0.phil
@4Xforensic.com. Web Site: www.4Xforensic.com.
Contact Phil Van Herle. 4X Forensic Engineering
Laboratories is a full-service forensic engineering
laboratory. We provide expert witness and analytical and testing services in the following areas: fires
and explosions: electrical and gas product defect
investigations, thermal and fire modeling and laboratory testing, water loss: materials, corrosion and
failure analysis of plumbing products, failure analysis: metallurgy, product testing, and computerized
stress analysis. Accident reconstruction: automotive, trucks, construction equipment, and premises
liability.
ARGOS ENGINEERING
44 Argos, Laguna Niguel, CA 92677, (949) 3638205, fax (949) 429-5972, e-mail: johndpratt
@cox.net. Web site: www.argos-engineering.com.
Contact John D. Pratt, PhD, PE. Litigation consulting, inspections, expert reports, patent infringement and validity analysis, deposition, and trial testimony.
MEP CONSULTING & MORE, LLC
5430 Trabuco Road, Suite 100, Irvine, CA 92620,
(949) 246-2741, fax (949) 364-6385, e-mail: jflynn
@mepcam.com. Web site: www.mepcam.com.
Contact John Flynn, principal. Consulting and
forensics for plumbing, mechanical (heating, ventilating, A/C) and electrical (power, lighting), energy systems, residential and commercial buildings, construction defect, cost to repair, construction and
development claims; delay analysis; licensed P.E.s.
Experienced testifiers.
MEDICAL
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. Expert witness: lawyer malpractice in business and real estate transactions,
standard of care for real estate brokers and mortgage brokers, and real estate document custom and
usage. Practicing real estate and business law in
California since 1968. See display ad on page 59.
LAW OFFICES OF CHRISTOPHER ROLIN
5707 Corsa Avenue, Suite 106, Westlake Village, CA
91362, (818) 707-7065, fax (818) 735-9992,
e-mail: [email protected]. Web site: www
.chrisrolin.com. Contact Christopher Rolin.
Christopher Rolin is a highly effective trial attorney
with over 46 years in civil litigation. He is a certified
specialist in legal malpractice. His practice focuses
on the applicable community standard of care for
practicing attorneys in the litigation and business
areas. He has been retained as an expert by both
plaintiffs and defendants in legal malpractice cases.
Also testifies on issues of professional ethics and fee
disputes.
LITIGATION
ROBERT C. ROSEN
Citigroup Center, 444 South Flower Street, 30th
58 Los Angeles Lawyer November 2013
AMFS MEDICAL EXPERTS NATIONWIDE
6425 Christie Avenue, Suite 260, Emeryville, CA
94608, (800) 275-8903. Web site: www.AMFS
.com. Medical experts for malpractice and personal
injury cases. AMFS is America’s premier medical
expert witness and consulting company. We are a
trusted partner with the legal community and provide a superior method of retaining medical experts.
For over 20 years, AMFS has provided board-certified experts in over 10,000 malpractice and personal injury cases. • Board-Certified experts in all
medical specialties • Practicing physicians with
legal experience • No cost attorney consultations •
Record review and testimony • Independent Medical Examinations (IME) and autopsies • Essential
affidavits and reporting. Discuss your case at no
charge with one of our medical directors, who will
identify and clarify your case issues to ensure you
retain the appropriate specialists. Cost-effective initial case reviews for merit. Have your case reviewed
for merit by members of our 50+ member multispecialty Physician Advisory Panel. Review and select
expert CVs. Our experience, resources, and large
proprietary database enable us to quickly identify
and interview a large number of potential medical
experts on your behalf and provide you with the
CVs of those who are best suited to your case. Ask
about our new expert on-call service. See display
ad on page 46.
HAMPTON HEALTH, LTD
JOHN H. FULLERTON, MD, MRO, CMD, CFP,
FACP, AGSF, FAAHPM
1700 California Street, Suite 470, San Francisco,
CA 94109, (415) 460-5532, fax (415) 459-2774,
e-mail: [email protected]. Web site:
hamptonhealthltd.com. Contact Kate McElroy,
PA-C. Services available: board certified in internal
medicine, geriatrics, hospice, palliative medicine,
addiction medicine, and home health; licensed medical review officer. Expertise: Medicare fraud cases
for the government, toxicology/DUI, elder abuse
including criminal defense of lay caregivers accused
of homicide of demented relatives during end-of-life
phase. Hospital, ambulatory/outpatient, PI, medical
malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more
than 1,000 cases in the last 13 years. See display ad
on page 44.
TASAMED (A DIVISION OF THE TASA GROUP,
INC.) FOR LOCAL AND NATIONAL MEDICAL
EXPERTS
Customized Expert Referrals in all Medical Practice
Areas. (800) 659-8464, fax (800) 850-8272, e-mail:
[email protected]. Web site: www.TASAmed
.com. Contact Linda Bartorillo. FIND THE TESTIFYING OR CONSULTING MEDICAL EXPERT YOU
NEED quickly with one call or click to TASAmed. We
refer superior, independent, experienced medical
experts—including hard-to-find-specialists—for case
merit reviews, testimony at deposition or trial,
research, IME’s, and more in 1,000+ medical fields.
Our skilled Referral Advisors • target your criteria •
forward resumes for your review and • help arrange
your initial telephone screening interviews with
experts. • No charge unless you designate or
engage an expert we refer • Plaintiff or defense •
Local, regional, national referrals. • Exceptional personal service. Sample categories include anesthesiology, cardiology, dentistry, emergency medicine,
forensic pathology, general surgery, hospital administration, neurology, nursing homes, OB/GYN, oncology, orthopedics, pediatrics, pharmacology, plastic
surgery, psychiatry, radiology, and more. Visit
TASAmed.com, where you can search expert profiles by expertise key word, order indispensable
research reports on experts, request an expert on
our online form, and discover E-discovery services
and solutions. Please see our insert in this issue and
display ad on page 56.
MEDICAL/CARDIOVASCULAR DISEASES
HAROLD L. KARPMAN, MD, FACC, FACP
Cardiovascular Medical Group of Southern California,
Inc., Clinical Professor of medicine, David Geffen
School of Medicine, UCLA.414 North Camden Drive
#1100, Beverly Hills, CA 90210, (310) 278-3400, fax
(310) 887-2979. Contact Harold L. Karpman, MD,
FACC, FACP. Cardiovascular diseases (cardiology
and medical vascular problems), and internal medicine. Special expertise in coronary disease, valvular
heart disease, arrhythmias, devices, hypertension,
drug studies, product liability, bacterial endocarditis,
angioplasty, CABG, etc. Expert and reviewer with
40+ years of experience.
MEDICAL/DERMATOLOGY
BIERMAN FORENSIC DERMATOLOGY
2080 Century Park East, #1008, Los Angeles,
CA 90067, (310) 553-3567, fax (310) 553-4538,
e-mail: [email protected]. Web site: www
.biermandermatology.com. Contact Stanley
Bierman, MD. Dr. Bierman is an expert witness in
matters relating to diagnosis and treatment of skin
cancers, including melanoma. He is an acknowledged expert in legal matters relating to sexually
transmitted diseases. Dr. Bierman is honorary associate professor of medicine and past president of
Los Angeles Dermatologic Society.
MEDICAL/NEUROLOGY
JONATHAN S. RUTCHIK, MD, MPH, QME
20 Sunnyside Avenue, Suite A-321, Mill Valley, CA
94941, (415) 381-3133, fax (415) 381-3131, e-mail:
[email protected]. Web site: www.neoma.com.
Jonathan S. Rutchik, MD, MPH is a physician who is
board certified in both Neurology and Occupational
and Environmental Medicine. He provides clinical
evaluations and treatment, including electromyography, of individuals and populations with suspected
neurological illness secondary to workplace injuries
or chemical exposure. Services include medical
record and utilization review and consulting to industrial, legal, government, pharmaceutical, and academic institutions on topics such as metals and solvents, pesticides, mold exposures, product liability,
musicians’ injuries, and others. Offices in SF, Richmond, Petaluma, Sacramento, and Eureka/Arcata.
See display ad on page 55.
UNIVERSITY OF CALIFORNIA,
SAN FRANCISCO
110 Lomita Drive, Mill Valley, CA 94941, (415) 4653301, fax (415) 383-6919, e-mail: carmel6237
@comcast.net. Contact John Engstrom MD. Professor of neurology, 20+ years of clinical neurology
experience, key words: spine neurology, myelopathy,
radiculopathy, back and neck pain, neuropathy, general neurology, EMG (electromyography).
MEDICAL/NEUROLOGY/PERSONAL INJURY
ANDREW WOO, MD, PHD
2021 Santa Monica Boulevard, Suite 525-E, Santa
Monica, CA 90404, (310) 829-2126, fax (310) 9988887. 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: America’s Top
Physicians (Consumer Research Consul of America)
2006-2013, Who’s Who in Medicine (2001) and science/engineering (1993), international electrophysiology Young Investigator (1997), UCLA Neurology
Teaching Awards (1994, 1996, 2006, 2012), American Academy Neurology Research (1991), Brown
University Sigma XI (1989), and research/publications
(22), lectures (>1000).
MEDICAL/PHYSICAL THERAPY
DR. JOYCE M. CAMPBELL, PHD, PT, EN
3336 Winlock Road, Torrance, CA 90505, (310) 5393143, e-mail: [email protected]. Over 40 years
in physical therapy practice (acute, rehab and outpatient); certified electroneuromyographer, professor of
PT in DPT curriculum, peer review/ expert consultant
and witness since 1978 (both defense and plaintiff).
Expertise/research: musculoskeletal, neuromuscular,
peripheral and central nervous system disorders
(CVA, TBI, SCI, CP, MS, peripheral neuropathy), and
clinical applications of electrical stimulation.
MEDICAL/PLASTIC AND COSMETIC
RECONSTRUCTIVE SURGERY
JOHN M. SHAMOUN, MD, FACS, INC.
360 San Miguel, Suite 406, Newport Beach, CA
92660, (949) 759-3077, fax (949) 759-5458, e-mail:
[email protected]. Web site: www.ideallook.com.
Contact Yvonne. Specialties: only plastic surgeon in the
United States board certified by the 1) American Board
of Surgery, 2) American Board of Plastic Surgery, 3)
American Board of Facial Plastic and Reconstructive
Surgery, and 4) American Board of Forensic Medicine.
Extensive experience in all aspects of cosmetic, plastic,
and reconstructive surgery of the breast, nose, face,
eye, and body. Well-published author of several textbook chapters and journal articles related to above topics. Extensive experience in medical malpractice case
review, consultation, written evaluation and testimony in
depositions and trial for plaintiff and defense. Articulate
subspecialty consultant with up-to-date knowledge and
expertise of plastic surgery literature and standards of
care. Opinions supported by extensive subspecialty
education, training, and experience.
MEDICAL/TOXICOLOGY
JONATHAN S. RUTCHIK, MD, MPH, QME
20 Sunnyside Avenue, Suite A-321, Mill Valley, CA
94941, (415) 381-3133, fax (415) 381-3131, e-mail:
[email protected]. Web site: www.neoma.com.
Jonathan S. Rutchik, MD, MPH is a physician who is
board certified in both Neurology and Occupational
and Environmental Medicine. He provides clinical
evaluations and treatment, including electromyography, of individuals and populations with suspected
neurological illness secondary to workplace injuries
or chemical exposure. Services include medical
record and utilization review and consulting to industrial, legal, government, pharmaceutical, and academic institutions on topics such as metals and solvents, pesticides, mold exposures, product liability,
musicians’ injuries, and others. Offices in SF, Richmond, Petaluma, Sacramento, and Eureka/Arcata.
See display ad on page 55.
MEDICAL COSMETIC SURGERY
STEVEN BURRES, M.D.
465 North Roxbury Drive, Suite 1012, Beverly Hills,
CA 90210, (310) 385-0590, fax (310) 937-1673,
e-mail: [email protected]. Cosmetic surgery, audiology, ear nose throat, rhinoplasty, facelift, hearing
loss, sinus surgery, tinnitus, hoarseness, scars,
trauma, dizziness, vertigo, hair loss, liposuction,
eyelids, nerve injury, and facial nerve. See display ad
on page 53.
MEDICAL EAR/NOSE/THROAT
TASAmed Has
Your Medical Expert.
• Outstanding local and national Experts
in more than 1,000 healthcare categories –
even hard-to-find specialties
• Services include prompt, customized
searches, referrals, resumes, and your
initial interview calls with experts
• 5 decades of referral experience
STEVEN BURRES, M.D.
465 North Roxbury Drive, Suite 1012, Beverly Hills,
CA 90210, (310) 385-0590, fax (310) 937-1673,
e-mail: [email protected]. Cosmetic surgery, audiology, ear nose throat, rhinoplasty, facelift, hearing
loss, sinus surgery, tinnitus, hoarseness, scars,
trauma, dizziness, vertigo, hair loss, liposuction,
eyelids, nerve injury, and facial nerve. See display ad
on page 53.
MEDICAL FACIAL PLASTIC SURGERY
800-659-8464
www.tasamed.com
[email protected]
STEVEN BURRES, M.D.
465 North Roxbury Drive, Suite 1012, Beverly Hills,
CA 90210, (310) 385-0590, fax (310) 937-1673,
e-mail: [email protected]. Cosmetic surgery, audiology, ear nose throat, rhinoplasty, facelift, hearing
loss, sinus surgery, tinnitus, hoarseness, scars,
trauma, dizziness, vertigo, hair loss, liposuction,
eyelids, nerve injury, and facial nerve. See display ad
on page 53.
MEDICAL LEGAL
ROUGHAN & ASSOCIATES AT LINC, INC.
114 West Colorado Boulevard, Monrovia, CA 91016,
(626) 303-6333, fax (626) 303-8080, e-mail: janr
@linc.biz. Contact Jan Roughan at ext. 16. Specialties: Roughan and Associates at LINC is a case
management and medical/legal consulting firm. Services/products offered include: 1) Expert Testimony,
2) Life Care Plan (LCP) Construction/LCP Critique, 3)
Medical Record Organization/Summarization/Analysis, 4) Medical Bill Auditing, 5) Expert Witness Identification, 6) IME Attendance, 7) Video Services (e.g.,
Day In Life, Settlement Brief, IME Evaluation, NDT/PT
Evaluation, etc.), 8) Questions for: Deposition/
Cross Examination, 9) Medical/Psychiatric Case
Management. See display ad on page 55.
MEDICAL MALPRACTICE
HAMPTON HEALTH, LTD
JOHN H. FULLERTON, MD, MRO, CMD, CFP,
FACP, AGSF, FAAHPM
1700 California Street, Suite 470, San Francisco,
CA 94109, (415) 460-5532, fax (415) 459-2774,
e-mail: [email protected]. Web site:
hamptonhealthltd.com. Contact Kate McElroy,
PA-C. Services available: board certified in internal
medicine, geriatrics, hospice, palliative medicine,
addiction medicine, and home health; licensed
medical review officer. Expertise: Medicare fraud
cases for the government, toxicology/DUI, elder
abuse including criminal defense of lay caregivers
accused of homicide of demented relatives during
end-of-life phase. Hospital, ambulatory/outpatient,
PI, medical malpractice, and LTC. Medical/hospice
directorships. Testified over 200 times and
—EXPERT WITNESS—
REAL ESTATE MATTERS
SPECIALIST IN:
• Broker Duties; Standard of Care
• Disclosure Issues – Buyer/Seller
• Agency Obligations
• Real Estate Malpractice
• Mortgage Brokerage Law
• Residential & Commercial Transactions
• Escrow Standard of Care
• Foreclosure Related Issues
• Short Sales and Loan Modifications
CREDENTIALS:
SUPERVISING BROKER
Responsible for overseeing more than
7,500 RE transactions in major Californiabased real estate companies.
GENERAL COUNSEL
Legal adviser for two of nation’s largest
real estate companies.
ADJUNCT PROFESSOR
Loyola Law School
HOTLINE ATTORNEY
Supervising Senior Counsel at California
Association of Realtors (CAR)
DRE MASTER INSTRUCTOR
Author, DRE Disclosure Course.
ALAN D. WALLACE, ESQ.
14011 VENTURA BLVD., STE. 406, SHERMAN OAKS CA 91423
TEL 818.501.0133 • FAX 818.905.6091
www.expertwitnessre.com
[email protected]
E-MAIL:
Los Angeles Lawyer November 2013 59
reviewed more than 1,000 cases in the last 13
years. See display ad on page 44.
METALLURGICAL AND CORROSION
ENGINEER
4X FORENSIC ENGINEERING
LABORATORIES, INC.
5262 Oceanus Drive, Huntington Beach, CA 92649,
(714) 450-8500, fax (714) 450-8599, e-mail: 0.phil
@4Xforensic.com. Web Site: www.4Xforensic.com.
Contact Phil Van Herle. 4X Forensic Engineering
Laboratories is a full-service forensic engineering laboratory. We provide expert witness and analytical
and testing services in the following areas: fires and
explosions: electrical and gas product defect investigations, thermal and fire modeling and laboratory
testing, water loss: materials, corrosion and failure
analysis of plumbing products, failure analysis: metallurgy, product testing, and computerized stress
analysis. Accident reconstruction: automotive,
trucks, construction equipment, and premises
liability.
CHEMICAL ACCIDENT RECONSTRUCTION
SERVICES, INC.
9121 East Tanque Verde Road, Suite 105, Tucson,
AZ 85749, (800) 645-3369, e-mail: service
@chemaxx.com. Web site: www.chemaxx.com.
Contact Dr. Michael Fox. Comprehensive chemical accident investigation—specializing in complex
industrial chemical accidents and chemical related
consumer product injuries, chemical fires and explosions, chemical labeling, chemical packaging, handling and shipping, burns, warnings, labels, MSDSs,
disposal, safety, EPA, OSHA, DOT, propane, natural
gas, hydrogen, flammable liquids, hazardous chemicals, aerosols (hairspray, spray paint, refrigerants).
DOT certified (hazardous materials shipment). Certified fire and explosion investigator, OSHA process
hazard analysis team leader. PhD physical chemistry.
Extensive experience in metallurgy, corrosion, and
failure analysis.
KARS’ ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland
Drive, Anaheim, CA 92801-2636, (714) 527-7100, fax
(714) 527-7169, e-mail: [email protected]. Web site:
www.karslab.com. Contact Dr. Ramesh Kar, Dr.
Naresh Kar, Dr. Nikhil Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineers with
30-plus years in metallurgical/forensic/structural failure
analysis. Experienced with automotive, bicycles, tires,
fire, paint, plumbing, corrosion, and structural failures.
We work on both plaintiff and defendant cases. Complete in-house capabilities for tests. Extensive deposition
and courtroom experience (civil and criminal investigations). Principals are Fellows of American Society for
Metals and Fellows, American College of Forensic
Examiners. See display ad on page 61.
METALLURGY
KARS ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland
Drive, Anaheim, CA 92801-2636, (714) 527-7100,
fax (714) 527-7169, e-mail: [email protected]. Web
site: www.karslab.com. Contact Dr. Ramesh Kar,
Dr. Naresh Kar, Dr. Nikhil Kar. Southern California’s premier materials/mechanical/metallurgical/
structural/forensics laboratory. Registered professional engineers with 30-plus years in metallurgical/
forensic/structural failure analysis. Experienced with
automotive, bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both
plaintiff and defendant cases. Complete in-house
capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations).
Principals are fellows of American Society for Metals
and board-certified diplomates, American Board of
Forensic Examiners. See display ad on page 61.
METEOROLOGY
AIR, WEATHER, AND SEA CONDITIONS, INC.
P.O. Box 512, Pacific Palisades, CA 90272, (818)
645-8632, fax (310) 454-7569, e-mail: AirWeather
@aol.com. Web site: www.weatherman.org. Con-
60 Los Angeles Lawyer November 2013
tact Jay Rosenthal, AMS Certified Consulting
Meteorologist (CCM). Experienced and authoritative expert testimony, reports and analyses of wind,
rain, storms, lightning, climatic conditions, flooding,
waves, specialist in wildfires, ice, dust, auto/boat/
ship/aircraft accident reconstruction, property damage, slip and falls, construction, mold issues, homeland security applications, air pollution, transport,
and risk identification. Movie industry applications,
cinematography, and visual effects. Determining
unusualness, normalcy, and foreseeability. Official
data, site visits, clear and convincing testimony. See
display ad on page 46.
NURSING/SURGERY/MEDSURG
MED-LINK CONSULTATION
3362 Budleigh Drive, Hacienda Heights, CA
91745, (626) 333-5110, fax (626) 968-0064, e-mail:
[email protected]. Contact Dorothy
Pollock, RN, LNCC. Registered nurse with over 40
years of clinical experience. Nontestifying services
include case analysis/for merit, chronology, translation, written reports, medical record organization.
DME/IME accompaniment including CD recording
and written report. Expert witness and testifying services, including affidavit, arbitration, declaration, letters, and trial. Courtroom experienced both plaintiff
and defense.
ORTHOPEDIC SURGEON
MARC J. FRIEDMAN, MD
6815 Noble Avenue, Van Nuys, CA 91405, (818)
901-6600, fax (818) 901-6685, e-mail: mfriedman
@scoi.com. Web site: www.scoi.com. Contact
Vanessa Espinal, ext 2810/2910. Orthopedic
shoulder and knee, consulting, and expert witness
testimony. IME, AME, QME, and workers’ compensation evaluations. See display ad on page 59.
RICHARD C. ROSENBERG, MD
18370 Burbank Boulevard, #614 Tarzana, CA
91356, tel (818) 996-6800, fax (818) 996-2929,
e-mail [email protected]. Website:
www.drrosenberg.com. Orthopedic surgery & sports
medicine; Experienced in IME, QME, AME evaluations. Medical/legal reports and expert testimony.
Personal injury and workers’ compensation. Satellite
offices in Oxnard and Santa Ana, California.
WILLIAM B. STETSON, MD
191 South Buena Vista Street, Suite 470, Burbank,
CA 91505, (818) 848-3030, fax (818) 848-2228,
e-mail: [email protected]. Web site: www
.sportsmedicinedr.com. Contact W. Stetson, MD.
Dr. Stetson is fellowship trained in arthroscopic
surgery of the shoulder, knee, elbow, and ankle. He
is an Associate Clinical Professor of orthopedic
surgery at the USC Keck School of Medicine. He
also has extensive experience in sports medicine and
orthopedic trauma.
PATENTS
ARGOS ENGINEERING
44 Argos, Laguna Niguel, CA 92677, (949) 3638205, fax (949) 429-5972, e-mail: johndpratt@cox
.net. Web site: www.argos-engineering.com. Contact John D. Pratt, PhD, PE. Litigation consulting,
inspections, expert reports, patent infringement and
validity analysis, deposition, and trial testimony.
PEDIATRIC EXPERT WITNESS
MICHAEL WEINRAUB, MD, FAAP
515 South Flower Street, Suite 3600, Los Angeles,
CA 90071, (213) 236-3662, fax (213) 236-3663,
e-mail: [email protected]. Web site: www
.michaelweinraubmd.com. Experience in general
pediatrics applied to your legal questions. Contact
Dr. Michael Weinraub. Board Certified Pediatrician.
Child abuse and neglect, Munchausen syndrome by
proxy, shaken baby syndrome (SBS), lead poisoning,
fetal alcohol spectrum disorder (FASD), pediatric
malpractice, childhood injury and product liability,
developmental disabilities (autism), healthcare of foster children, and adoption/custody evaluation for
health supervision concerns.
PERSONAL INJURY
KGA, INC.
1409 Glenneyre Street, Suite A, Laguna Beach, CA
92651, (949) 497-6000, fax (949) 494-4893, e-mail:
[email protected]. Web site: www.kgainc.com.
Contact Kurt Grosz. Construction and environmental consultants since 1991. Licensed engineers and
contractors. ICC building, plumbing, mechanical,
concrete and accessibility inspectors. Certified professional estimators. Trial experts, arbitrators, and
insurance appraisers.
WHITE, ZUCKERMAN, WARSAVSKY,
LUNA & HUNT
15490 Ventura Boulevard, Suite 300, Sherman
Oaks, CA 91403, (818) 981-4226, fax (818) 9814278, 4 Park Plaza, 2nd Floor, Irvine, CA 92614,
(949) 219-9816, fax (949) 219-9095, e-mail: expert
@wzwlh.com. Web site: www.wzwlh.com. Contact
Barbara Luna. Expert witness testimony for complex litigation involving damage analyses of lost profits, unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting,
fraud investigation, investigative analysis of liability,
and marital dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four accountants. Specialties include accounting, breach of contract,
breach of fiduciary duty, business interruption, business dissolution, construction defects, delays, and
cost overruns, fraud, insurance bad faith, intellectual
property (including trademark, patent, and copyright
infringement, and trade secrets), malpractice, marital
dissolution, personal injury, product liability, real
estate, securities, tax planning and preparation, IRS
audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 43.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAS
11900 West Olympic Boulevard, Suite 650, Los
Angeles, CA 90064-1046, (310) 826-1040, fax (310)
826-1065. Web site: www.zsscpa.com. Contact
Lester J. Schwartz, CPA/CFF, DABFE, DABFA,
Michael D. Saltsman, CPA, MBA, David L. Bass,
CPA, David Dichner, CPA, ABV, CVA, Sandy
Green, CPA, Daljeet Kaur, CPA. 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, settlement
negotiations, and consultations. See display ad on
page 49.
PLASTIC AND COSMETIC RECONSTRUCTIVE
SURGERY
JEFFREY L. ROSENBERG, MD
1245 Wilshire Boulevard, Suite 601, Los Angeles,
CA 90017, (213) 977-0257, fax (213) 977-0501,
e-mail: [email protected]. Web site: www
.jrosenbergmd.com. Contact Jackie or Judy.
Plastic and reconstructive surgery, burn specialist.
Diplomate, American Board of Plastic Surgery.
Member, American Burn Association and American
Society of Plastic Surgeons.
PLASTICS
KARS ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland
Drive, Anaheim, CA 92801-2636, (714) 527-7100,
fax (714) 527-7169, e-mail: [email protected]. Web
site: www.karslab.com. Contact Dr. Ramesh Kar,
Dr. Naresh Kar, Dr. Nikhil Kar. Southern California’s premier aterials/mechanical/metallurgical/
structural/forensics laboratory. Registered professional engineers with 30-plus years in metallurgical/
forensic/structural failure analysis. Experienced with
automotive, bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both
plaintiff and defendant cases. Complete in-house
capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations).
Principals are fellows of American Society for Metals
and board-certified diplomates, American Board of
Forensic Examiners. See display ad on page 61.
PLUMBING
4X FORENSIC ENGINEERING
LABORATORIES, INC.
5262 Oceanus Drive, Huntington Beach, CA
92649, (714) 450-8500, fax (714) 450-8599,
e-mail: [email protected]. Web Site: www
.4Xforensic.com. Contact Phil Van Herle. 4X
Forensic Engineering Laboratories is a full-service
forensic engineering laboratory. We provide expert
witness and analytical and testing services in the following areas: fires and explosions: electrical and gas
product defect investigations, thermal and fire modeling and laboratory testing, water loss: materials,
corrosion and failure analysis of plumbing products,
failure analysis: metallurgy, product testing, and
computerized stress analysis. Accident reconstruction: automotive, trucks, construction equipment,
and premises liability.
Do You Have A Case
Involving Dogs?
• dog bites
• evaluations
• animal cruelty
• service dogs
• behavior
• aggression
Specializing in
Rottweilers and
Pit Bulls
— CASE REVIEW, CONSULTATION, TESTIMONY —
Jill Kessler • Dog Expert | 310-573-9615 | e-mail: [email protected]
www.jillkessler.com
MEP CONSULTING & MORE, LLC
5430 Trabuco Road, Suite 100, Irvine, CA 92620,
(949) 246-2741, fax (949) 364-6385, e-mail: jflynn
@mepcam.com. Web site: www.mepcam.com.
Contact John Flynn, principal. Consulting and
forensics for plumbing, mechanical (heating, ventilating, A/C) and electrical (power, lighting), energy systems, residential and commercial buildings, construction defect, cost to repair, construction and
development claims; delay analysis; licensed P.E.s.
Experienced testifiers.
Keith Kajiya
213-996-2598
[email protected]
URS is the nation’s largest engineering, consulting and construction
services firm. URS specializes in the resolution of construction disputes.
PODIATRY—FOOT SPECIALIST
Dispute Resolution & Forensic Analysis
Design/Construction Claims
Environmental Claims
Bid/Cost/Damage Analysis
Construction Defect Analysis
Delay/Acceleration/Disruption Analysis
Expert Witness Testimony
Insurance/Bond Claims
STEVEN L. ROSENBERG, DPM
2901 Wilshire Boulevard, Suite 110, Santa
Monica, CA 90403, (310) 828-3336, fax (310) 8280096, e-mail: [email protected]. Web site: www
.rosenbergstevendpm.com. Expert witness, plaintiff
and defense, IME, podiatric surgery, medicine,
sports medicine, trauma injuries and pain management. Second opinion reports, x-ray review, and
evaluations. Treating all ages, infants, children and
adults. Over 29 years of experience.
Technical Expertise
Architecture
Engineering
Scheduling
Construction Management
Cost Estimating & Auditing
Environmental
Geotechnical
POLYGRAPH
JACK TRIMARCO & ASSOCIATES
POLYGRAPH INC.
9454 Wilshire Boulevard, 6th Floor, Beverly Hills,
CA 90212, (310) 247-2637, e-mail: jtrimarco@aol
.com. Web site: www.jacktrimarco.com. Contact
Jack Trimarco. Former manager of the Federal
Bureau of Investigation’s polygraph program in Los
Angeles. Former Inspector General Polygraph Program—Department of Energy. Nationally known and
respected polygraph expert. I have the credentials
you would want when you have a client polygraphed,
a case reviewed, or a motion made regarding polygraph. My unique background allows me to bring the
highest levels of service and expertise to any polygraph situation. Current member of the Ethics Committee, California Association of Polygraph Examiners
(CAPE). Hundreds of appearances on national TV,
including Dr. Phil, Oprah, Greta, Nancy Grace,
O’Reilly Factor, and Hannity and Colmes. Degrees/
licenses: BS Psychology, Certified APA, AAPP,
CAPE, AAFE. See display ad on page 5.
PROBATE LAW
THE BEST LEGAL MINDS
IN THE COUNTRY
TALK TO US
¥ Metallurgical Failures
¥ Bio-Medical / Orthopedic
Implants
¥ Corrosion & Welding Failures
¥ Plumbing / Piping / ABS Failures
¥ Glass & Ceramic Failures
¥ Complete In-House Laboratory
¥ Chairs / Ladders / Tires
Testing & Analysis Facilities
¥ Automobile /Aerospace
¥
Expert Witnesses / Jury Verdicts
Accident Investigations
¥ Licensed Professional Engineers
¥ Plastics, Composites,
Fiberglass Failures
¥ Materials & Mechanical Testing
HONORABLE ANITA RAE SHAPIRO
Superior Court commissioner (Retired), P.O. Box
1508, Brea, CA 92822-1508, e-mail: privatejudge
@adr-shapiro.com. Web site: http://adr-shapiro
.com. Retired Los Angeles Superior Court commissioner (15 years) available to serve as a probate
expert witness in cases involving wills and trust
issues. Presided in Long Beach Probate Department
five years. See display ad on page 55.
Contact:
Dr. Naresh Kar, Fellow ASM, Fellow ACFE
Dr. Ramesh Kar, Fellow ASM, Fellow ACFE
Dr. Nikhil Kar
ADVANCED MATERIALS, INC.
PSYCHIATRY
MARIA T. LYMBERIS, MD, INC.
1500 Montana Avenue, Suite 201, Santa Monica, CA
90403, (310) 451-3152, fax (310) 310-2620, e-mail:
[email protected]. Web site: www.lymberis.com.
Contact Maria T. Lymberis, MD. Clinical Professor of
Psychiatry, UCLA School of Medicine. Board Certified
Testing & Research Labs
2528 WEST WOODLAND DRIVE, ANAHEIM, CA 92801
■ TEL
(714) 527-7100
■ www.karslab.com
■ FAX
(714) 527-7169
[email protected]
■ E-MAIL
Los Angeles Lawyer November 2013 61
in adult, child/adolescent psychiatry, expert consultant
Medical Board of California, forensic expert for psychiatric malpractice, sexual harassment, posttraumatic
stress cases, and divorce/child custody and psychiatric
evaluations for: fitness for duty and competency to
stand trial.
Diego Police Department crime lab, Arizona State
crime lab and San Diego County District Attorney’s
office. Currently in private, criminal, and civil practice.
REAL ESTATE
ADVISORS/EXPERTS @ MCS ASSOCIATES
PSYCHIATRY/PSYCHOLOGY
BRIAN P. JACKS, MD
9730 Wilshire Boulevard, Suite 108, Beverly Hills,
CA 90212, (310) 274-0684, e-mail: [email protected].
Contact Patricia Valenzuela. Clinical Professor of
Psychiatry USC. Over 25 years of trial experience in
child sex abuse, workers’ compensation, personal
injury, malpractice, PTSD, psychopharmacology, sex
harassment, bullying, discrimination, child custody,
neuropsychiatry and (head injury). Board Certified:
adult, 1974, child-adolescent, 1976.
PSYCHOLOGY
FORENSIC EXPERT
STEFANIE STOLINSKY, PHD
9300 Wilshire Boulevard, Suite 320, Beverly Hills,
CA 90212, (310) 788-3436, e-mail: stefstol
@prodigy.net. Web site: www.act-it-out.com.
Contact Stefanie Stolinsky, PhD. Specialties:
Adults sexually, physically, emotionally abused as
children; PTSD; depression; trauma. Dr. Stolinsky
has a private practice in Beverly Hills in addition to
her work on television and her numerous published
works. She is a recognized expert in the fields of
family relations, child abuse, and PTSD. Born and
raised in San Francisco, California, she is a graduate
of UCLA and USC in psychology. Dr. Stolinsky has
also been a lecturer at the California Graduate
School in forensics, neuropsychology, and play therapy. She is the author of Act It Out: 25 Acting Exercises to Heal from Childhood Abuse, which is in its
second edition from Praeclarus Press. She also has
been referenced in Jane Velez-Mitchell’s book, I
Want. Dr. Stolinsky is regularly called on by a number of lawyers, as well as television and radio programs to serve as an adviser on various psychological issues.
PSYCHOLOGY/PSYCHOLOGICAL
ASSESSMENT
BRIGHT MINDS
JUDY HO, PHD, ABPP
12011 San Vicente Boulevard, Suite 402, Los Angeles,
CA 90049, (310) 745-8887, e-mail: drjudyho@gmail
.com. Web site: www.drjudyho.com. Dr. Ho provides
forensic evaluations used in legal settings to document a
wide variety of psychologically relevant information,
including personal injury, work-related emotional injury,
worker’s compensation, fitness for duty for high-stress
jobs, child custody, the capacity to adequately parent a
minor child, evaluation of malingering and deception,
employment discrimination and harassment, and professional licensing disputes. She provides expert testimony
regarding psychological testing methods, results, and
conclusions. Dr. Ho has a specialty board certification
through ABPP, has published empirical studies and
book chapters, provides clinical consultations, and is a
tenure-track faculty member at Pepperdine University
Graduate School of Psychology.
QUESTIONED DOCUMENTS
SANDRA L. HOMEWOOD, FORENSIC
DOCUMENT EXAMINER
1132 San Marino Drive, Suite 216, Lake San
Marcos, CA 92078, (760) 931-2529, fax (760) 5108412, e-mail: [email protected].
Contact Sandra L. Homewood. Highly skilled and
experienced document examiner and expert witness
in many complex and high-profile civil and criminal
cases with fully equipped document laboratory. Specializing in handwriting and handprinting identification, handwriting of the elderly in financial elder
abuse cases and will contests, and examination of
altered medical and corporate records. Trained in
government laboratory, including specialized training
by the FBI and Secret Service. Former government
experience includes document examiner for the San
62 Los Angeles Lawyer November 2013
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail:
[email protected]. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties include: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage,
appraisal, escrow, and title insurance.
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. Expert witness: lawyer
malpractice in business and real estate transactions,
standard of care for real estate brokers and mortgage brokers, and real estate document custom and
usage. Practicing real estate and business law in
California since 1968. See display ad on page 59.
ALAN D. WALLACE, ESQ.
14011 Ventura Boulevard, Suite 406, Sherman
Oaks, CA 91423, (818) 501-0133, fax (818) 9056091, e-mail: [email protected]. Contact
Alan D. Wallace, Esq. Expert witness and litigation
consulting for general real estate matters, including
law, custom and practice, agency, disclosure, broker
malpractice, standards of care for brokers, buyers
and sellers. Broker and attorney. Involved as broker
in more than 7,500 real estate transactions. Department of Real Estate master instructor and author,
Adjunct Professor Loyola Law School, former CAR
Hotline attorney, University Law Professor in real
estate. Successfully testified in dozens of cases. See
display ad on page 56.
WARONZOF ASSOCIATES, INC.
999 North Sepulveda Boulevard, Suite 440, El
Segundo, CA 90245, (310) 322-7744, fax (310)
322-7755. Web site: www.waronzof.com. Contact
Timothy R. Lowe, MAI, CRE. Waronzof provides
real estate and land use litigation support services
including economic damages, lost profits, financial
feasibility, lease dispute, property value, enterprise
value, partnership interest and closely-held share
value, fair compensation, lender liability, and reorganization plan feasibility. Professional staff of five with
advanced degrees and training in real estate,
finance, urban planning, and accounting. See
display ad on page 59.
REAL ESTATE APPRAISAL
CURTIS-ROSENTHAL, INC.
5959 West Century Boulevard, Suite 1010, Los
Angeles, CA 90045, (310) 215-0482, fax (310) 2153089, e-mail: [email protected]. Web
site: www.curtisrosenthal.com. Contact David
Rosenthal, MAI, FRICS, or Dawn Olson, MRICS.
Appraisal of commercial real estate for estate planning, eminent domain, bankruptcy, divorce, and general litigation. Accepted in local, state, and federal
courts.
REAL ESTATE TITLE CONSULTING
PETRU CORPORATION
250 Hallock Drive, Suite 100, Santa Paula, CA
93060, (805) 933-1389, fax (805) 933-1380, e-mail:
[email protected]. Web site: www
.PetruCorporation.com. Contact Tim Truwe. Incorporated in 1986, Petru Corporation is a full service
land consulting company including: title searching/
research, forensic title, title engineering, oil, gas, mineral and geothermal consulting, wind and solar land
consulting, regulatory/permit compliance, subdivisions, right-of-way consulting, water rights, autoCAD
map drafting. Petru Corporation has provided its services on multimillion-dollar projects and matters
involving court litigation.
REAL ESTATE VALUATION
ACCRUED FINANCIAL SERVICES, INC.
2901 Pacific Coast Highway, 2nd Floor, Signal Hill,
CA 90755, (562) 983-6700, fax (562) 983-1622,
e-mail: [email protected]. Web site: www
.markmalantherealestateman.com. Contact Mark
S. Malan, MAI, SRA, MBA. Trusts, estates, probates, divorce, commercial and residential. Mark S.
Malan, MAI has been servicing Southern California
with current, prospective, and historic values for over
25 years. Expert witness testimony has been honed
by 15 years as a college instructor that allows as
easy and credible way to inform the trier-of-fact
about the issues of the matter at hand. Additional
experience as a general contract and real estate
investor has added credible evidence in cases of
diminution in case of undisclosed defects and several types of construction losses.
RECEIVER
SALTZBURG, RAY & WEISSMAN, LLP
12121 Wilshire Boulevard, Suite 600, Los Angeles,
CA 90025, (310) 481-6780, fax (310) 481-6707,
e-mail: [email protected]. Web site:
www.srblaw.com. Contact Richard Weissman,
Esq. Specializes in handling complex receivership
matters, such as partnership and corporate dissolutions, including law firm dissolutions, and government enforcement receivership actions, including
actions brought by the California Department of Corporations, Department of Real Estate, Commodities
Future Trading Commission, and Federal Trade
Commission. Nationally recognized in both the
lender and litigation communities as qualified to
assist in complicated and commercially sophisticated
liquidations, reorganizations, and ongoing business
operations. See display ad on page 51.
RETALIATION
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272,
(310) 454-2988, fax (310) 454-4516. Contact
Marcia Haight, SPHR—CA. Human resources
expert knowledgeable in both federal and California
law. Twenty-five years’ corporate human resources
management experience plus over 20 years as a
Human Resources Compliance Consultant in California. Specializations include sexual harassment,
ADA/disability discrimination, other Title VII and
FEHA discrimination and harassment, retaliation,
FMLA/CFRA, safety, and wrongful termination.
Courtroom testimony and deposition experience.
Retained 60 percent by defense, 40 percent by
plaintiff. Audit employer’s actions in preventing and
resolving discrimination, harassment, and retaliation
issues. Assess human resources policies and practices for soundness, for comparison to prevailing
practices, and for compliance. Evaluate employer
responsiveness to complaints and effectiveness of
employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination
of documents, and expert testimony.
ROOFING AND WATERPROOFING
KGA, INC.
1409 Glenneyre Street, Suite A, Laguna Beach, CA
92651, (949) 497-6000, fax (949) 494-4893, e-mail:
[email protected]. Web site: www.kgainc.com.
Contact Kurt Grosz. Construction and environmental consultants since 1991. Licensed engineers and
contractors. ICC building, plumbing, mechanical,
concrete and accessibility inspectors. Certified professional estimators. Trial experts, arbitrators, and
insurance appraisers.
SAFETY
SCS ENGINEERS
3900 Kilroy Airport Way, Suite 100, Long Beach,
CA 90806, (562) 426-9544, fax (562) 427-0805,
e-mail: [email protected]. Web site: www
.scsengineers.com. Contact Julio Nuno, VP. SCS
provides expert witness services related to environment studies and engineering, water resources, solid
waste and air quality and industrial hygiene and
safety services. We are a 43-year old consulting firm
with 66 offices across the US and over 800 employees. Our Long Beach office has more than 30 professional engineers, scientists, and subject matter
experts available on short notice to serve asbestos,
lead-based paint, and other specialty areas requiring
expert witness services.
SECURITIES
CORNERSTONE RESEARCH
633 West Fifth Street, 31st Floor, Los Angeles, CA
90071-2005, (213) 553-2500, fax (213) 553-2699.
Web site: www.cornerstone.com. Contact George
G. Strong, Jr., Richard W. Dalbeck, Katie J.
Galley, Elaine Harwood, Carlyn Irwin, Erin
McGlogan or Ashish Pradhan.For more than
twenty-five years, Cornerstone Research staff have
provided economic and financial analysis in all
phases of commercial litigation and regulatory proceedings.
We work with a broad network of testifying experts,
including prominent faculty and industry practitioners, in a distinctive collaboration. The experts with
whom we work bring the specialized expertise
required to meet the demands of each assignment.
Our areas of specialization include intellectual property, antitrust, securities, entertainment, real estate,
financial institutions, and general business litigation.
MARKET CONSULTING CORPORATION
(213) 627-0440, (888) 397-9867, e-mail: info
@market-consulting.com. Web site: www.market
-consulting.com. Contact Dr. Ronald W. Cornew.
Twenty plus years as consultants in investment and
trading litigation. Asset management, pension investments, securities and futures tax matters including
IRS examinations, appeals, U.S. Tax Court appearances. Broker/customer disputes: stocks and
bonds, options, commodity futures, currency trading, derivatives including swaps, limited partnerships,
hedge funds, managed futures. Consultants to
NYSE, Options Clearing Corporation, CBOT, CME,
COMEX, TIAA/CREF, banks, other major clients.
Arbitrator NASD (now FINRA), NYSE, AAA, NFA,
mediator with NASD (now FIRNA) training. Member:
Compliance and Legal Division, Securities Industry
Association.
ROBERT C. ROSEN
Citigroup Center, 444 South Flower Street, 30th
Floor, Los Angeles, CA 90071, (213) 362-1000,
fax (213) 362-1001, e-mail: robertrosen@rosen-law
.com. Web site: www.rosen-law.com. Specializing in
securities law, federal securities law enforcement,
securities arbitration, and international securities,
insider trading, NYSE, AMEX, FINRA, DOC disciplinary proceedings, broker-dealer, investment company and investment adviser matters, liability under
federal and state securities laws, public and private
offerings, Internet securities, and law firm liability. AV
rated. Former chair, LACBA Business and Corporations Law Section. LLM, Harvard Law School. Forty
years practicing securities law, 12 years with the
U.S. Securities and Exchange Commission, Washington, DC. Published author/editor of securities regulations, including multivolume treatises. See display ad on page 53.
SEXUAL HARASSMENT/DISCRIMINATION
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272,
(310) 454-2988, fax (310) 454-4516. Contact
Marcia Haight, SPHR—CA. Human resources
expert knowledgeable in both federal and California
law. Twenty-five years’ corporate human resources
management experience plus over 20 years as a
Human Resources Compliance Consultant in Califor-
nia. Specializations include sexual harassment,
ADA/disability discrimination, other Title VII and
FEHA discrimination and harassment, retaliation,
FMLA/CFRA, safety, and wrongful termination.
Courtroom testimony and deposition experience.
Retained 60 percent by defense, 40 percent by
plaintiff. Audit employer’s actions in preventing and
resolving discrimination, harassment, and retaliation
issues. Assess human resources policies and practices for soundness, for comparison to prevailing
practices, and for compliance. Evaluate employer
responsiveness to complaints and effectiveness of
employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination
of documents, and expert testimony.
HRM CONSULTING, INC.
1700 North First Street, Suite 120, San Jose,
CA 95112, (209) 728-8905, fax (209) 728-8970,
e-mail: [email protected]. Web site:
www.hrmconsulting.com. Contact Beth B. De
Lima, SPHR-CA. Expert witness Beth De Lima, has
testified for both plaintiff and defense in the following
areas: human resources standards of care, employment ADA accommodation, FEHA, FMLA, CFRA,
ADA & EEOC violations. Wrongful termination, performance management, discrimination, sexual
harassment, exempt analysis, labor market assessment, and vocational evaluations. She holds national
and California specific certification—Senior Professional in Human Resource (SPHR-CA), certified
mediator, and consulting since 1992.
TITLE SEARCHING/REPORTS
PETRU CORPORATION
250 Hallock Drive, Suite 100, Santa Paula, CA
93060, (805) 933-1389, fax (805) 933-1380, e-mail:
[email protected]. Web site: www
.PetruCorporation.com. Contact Tim Truwe. Incorporated in 1986, Petru Corporation is a full service
land consulting company including title searching/
research, forensic title, title engineering, oil, gas, mineral and geothermal consulting, wind and solar land
consulting, regulatory/permit compliance, subdivisions, right-of-way consulting, water rights, autoCAD
map drafting. Petru Corporation has provided its services on multimillion-dollar projects and matters
involving court litigation.
TOXICOLOGY
HAMPTON HEALTH, LTD
JOHN H. FULLERTON, MD, MRO, CMD, CFP,
FACP, AGSF, FAAHPM
1700 California Street, Suite 470, San Francisco,
CA 94109, (415) 460-5532, fax (415) 459-2774,
e-mail: [email protected]. Web site:
hamptonhealthltd.com. Contact Kate McElroy,
PA-C. Services available: board certified in internal
medicine, geriatrics, hospice, palliative medicine,
addiction medicine, and home health; licensed medical review officer. Expertise: Medicare fraud cases
for the government, toxicology/DUI, elder abuse
including criminal defense of lay caregivers accused
of homicide of demented relatives during end-of-life
phase. Hospital, ambulatory/outpatient, PI, medical
malpractice, and LTC. Medical/hospice directorships. Testified over 200 times and reviewed more
than 1,000 cases in the last 13 years. See display ad
on page 44.
PRINCETON-SOMERSET GROUP, INC.
4 Carroll Drive, Hillsborough, NJ 08844, (800) 5978836, (908) 369-6890, fax (908) 369-6881. Web site:
www.PrincetonSomerset.com. Contact Dr. Dennis
Stainken. Expert witness, toxicology, health issues,
chemical exposure, mold issues, worker exposure,
contamination issues, causation assessment, property damage/contamination and remediation,
sewage, gasoline and oil issues and age determination, petroleum releases, chemicals/products, risk
assessment, indoor air quality/health effects, toxic
tort evaluation, chemistry, site assessment, regulatory issues, environmental toxicology, environmental
issues, and wetland/ecological. Services nationwide.
Thirty-plus years of industrial and government experience in pollution under NPDES, CERCLA, RCRA,
SDWA and CWA. Former federal and state regulator,
professor, consultant, industrial research. Seventyfive plus publications.
TRAFFIC ENGINEERING
WILLIAM KUNZMAN, PE
1111 Town and Country #34, Orange, CA 92868,
(714) 973-8383, fax (714) 973-8821, e-mail: bill
@traffic-engineer.com. Web site: www.traffic
-engineer.com. Contact William Kunzman, PE.
Traffic expert witness since 1979, both defense and
plaintiff. Auto, pedestrian, bicycle, and motorcycle
accidents. Largest plaintiff verdicts: 1) $12,200,000
in pedestrian accident case against Caltrans, 2)
$10,300,000 in case against Los Angeles Unified
School District. Largest settlement: $2,000,000 solo
vehicle accident case against Caltrans. Best defense
verdict: $0 while defending Caltrans and opposition
sought $16,000,000. Before becoming expert witness, employed by Los Angeles County Road
Department, Riverside County Road Department,
city of Irvine, and Federal Highway Administration.
Knowledge of governmental agency procedures,
design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds
of cases. Undergraduate work—UCLA, graduate
work—Yale University.
TRANSACTIONAL DUE DILIGENCE
CBIZ & MAYER HOFFMAN MCCANN PC
10474 Santa Monica Boulevard, Suite 200, Los
Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: [email protected]. Contact Coral
Hansen. Web site: www.MHM-PC.com, www
.CBIZ.com. CBIZ & Mayer Hoffman McCann PC
specializes in fraud investigations, forensic accounting, business litigation, commercial damage and lost
profits computations, business valuation and
appraisal, transactional due diligence, family limited
partnerships, business interruption, and family law.
We provide experienced expert testimony and tax
controversy representation.
WASTEWATER
JOHN SHAW CONSULTING, LLC
Tel: (530) 550-1576, e-mail: [email protected].
Website: www.shaweng.com. Contact John Shaw,
PE. Water/wastewater/sewer industry—unique combination of operations and engineering background.
Sanitary engineering including water (potable) and
wastewater (industrial and domestic) treatment, conveyance, hydraulics, storage, reuse, master planning,
operations, maintenance, and expert witness and
forensic (mode of failure and standard of care analysis, engineering analysis, product suitability and construction defect issues). Wastewater treatment
plants, disposal/reuse facilities, sewage lift station
design, sewer collection systems, and sludge treatment. Water treatment plants, pipelines, and swimming pools.
WRONGFUL TERMINATION
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272,
(310) 454-2988, fax (310) 454-4516. Contact
Marcia Haight, SPHR—CA. Human resources
expert knowledgeable in both federal and California
law. Twenty-five years’ corporate human resources
management experience plus over 20 years as a
Human Resources Compliance Consultant in California. Specializations include sexual harassment,
ADA/disability discrimination, other Title VII and
FEHA discrimination and harassment, retaliation,
FMLA/CFRA, safety, and wrongful termination.
Courtroom testimony and deposition experience.
Retained 60 percent by defense, 40 percent by
plaintiff. Audit employer’s actions in preventing and
resolving discrimination, harassment, and retaliation
issues. Assess human resources policies and practices for soundness, for comparison to prevailing
practices, and for compliance. Evaluate employer
responsiveness to complaints and effectiveness of
employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination
of documents, and expert testimony.
Los Angeles Lawyer November 2013 63
computer counselor
BY HEATHER E. STERN
How to Use an iPad to Manage and Present Trial Exhibits
IN ONE FORM OR ANOTHER, technology has permeated and improved out the nuisance of repeated mouse clicks. Further, thanks to its
virtually every aspect of both my personal and my professional life. flash memory and efficient operating system, the iPad has the beneUntil recently, however, I had not yet had an opportunity to experi- fit of being always on, so it is ready to use in the blink of an eye.
ence what happens when technology does the same with trial practice. Compare that to the multiminute boot-up we are all accustomed to
In a recent case, opposing counsel hired a trial presentation ven- with the PC. Even launching apps on the iPad typically happens in
dor. If you are thinking Elmo, which I did when opposing counsel first mere seconds instead of the tortoiselike launch of its counterparts.
While, at times, the display on the monitors lagged, my underproposed the idea, you can imagine my surprise when I found out that
the vendor would be bringing 10 computer monitors into the con- standing is that the lag is a function not of the application but instead
ference room where the matter was being heard—one for the judge, of the connection, which in my case was VGA rather than HDMI.
another for the witness, and the six lawyers in the room would share Neither the app nor the iPad ever crashed or had any fatal errors durthe rest.
For what purpose? All the trial exhibits—
and there were over 2,000—had been imaged
I could zoom in on all or part of the document, highlight,
and loaded into a software program on opposing counsel’s laptop computer. Whenever he
wanted to examine a witness about a particuunderline, or circle parts of it, create a cutout that popped out of
lar document, his associate would call up the
document on the laptop and it instantaneously
appeared on the monitors in front of everyone.
the screen at the viewer, or even use my finger to create a laser
Then, at his direction, she would manipulate
the exhibit—highlighting key language, blowing up small but critical text, or electronically
pointer on the screen to direct the viewer’s attention.
displaying the exhibit next to another for comparison—so as to complement and emphasize
the lawyer’s examination of the witness.
Contrary to my expectations, it was not distracting. Instead, it was ing trial, unlike opposing counsel’s Windows-based laptop. In the rare
effective and sped the examination along smoothly.
event of a crash, relaunching the app and returning to where you left
So, of course, I had to master this technique myself. Opposing coun- off takes seconds, in contrast to the cumbersome, time-consuming,
sel was using Trial Director software on a Windows-based laptop, but, and therefore frustrating crashes experienced on a laptop. In my
after some quick research, I decided to try an application called experience, iPad app crashes, besides being rare, are less likely to result
TrialPad for the iPad (version 3.0.11). It worked like a charm. So, here in data loss than is the case with a laptop. I also appreciated the lightis what you need to know.
weight nature of the iPad when I was carrying it to and from trial along
Capabilities. As far as I could tell, the TrialPad app had virtually with several heavy boxes.
the same capabilities as the competing software used by opposing counCost. The application costs only $89.99. In addition, we used an
sel. For any given exhibit, I could zoom in on all or part of the doc- iPad 4 with 128 gigabytes of memory and a VGA adapter that also
ument, highlight, underline, or circle parts of it, create a cutout that contained a power cable input, so the device could be simultaneously
popped out of the screen at the viewer, or even use my finger to cre- plugged in for power and connected to the monitors. The vendor
ate a laser pointer on the screen to direct the viewer’s attention. I could charged the parties a collective total of $1,000 per week for the setup, rental, and takedown of the 10 computer monitors.
also display two different exhibits side by side.
Dependency on Internet Connection. There are other iPad trial apps
Display Flexibility. My vendor’s setup tethered the iPad to the monitors with a cable. This was not problematic for us, but it may pose in which the trial exhibits are stored in the cloud and accessed and
logistical issues depending upon the room configuration. If tethering displayed via an Internet connection to that cloud-based database. I
is a problem, it may be possible to attain greater flexibility by utiliz- was reluctant to use those applications because I was told that the Wiing an Apple TV and a Wi-Fi network to take advantage of the Fi Internet connection at my trial’s location was not reliable. With
iPad’s native wireless display capabilities. The Apple TV serves as an TrialPad for iPad, in contrast, the trial exhibits are loaded onto the
intermediary between the iPad and the display by routing the data in iPad itself and accessed and displayed in the application without the
real time over the Wi-Fi network. With this alternate setup, you can need for an Internet connection. Thus, the location’s unreliable conmove about the room while manipulating documents live on screen.
Heather E. Stern is a partner with the law firm of Kralik & Jacobs LLP, where
Ease of Use. The functions were easy and intuitive to use—just like
the iPhone or iPad in general—all at the touch of a finger and with- she handles lender liability defense and real estate-related litigation.
64 Los Angeles Lawyer November 2013
nection was not a problem. It is worth noting, however, that in order to load the trial
exhibits onto the iPad in the first place, we
used an Internet connection from our office
computers to upload the exhibits to a
Dropbox account and then we used the iPad’s
Internet connection at a location with more
reliable Wi-Fi-to download the exhibits from
Dropbox to the iPad.
Limitations. The content of the exhibits is
not searchable via the application. Even
though the documents that we had loaded
were, in their native form, OCR-searchable
PDF files, the TrialPad application did not
have a way to search the content of the
exhibits, only the file names.
To correct this issue, we additionally
loaded all the exhibits into a free iPad application called Documents by Readdle, which
does feature content searching as one of its
main functions. Although Documents could
not display and manipulate the exhibits for
presentation purposes as TrialPad does, it
proved a useful backup application for searching content to locate a trial exhibit.
Transcripts. I also used the iPad to display
written deposition transcripts electronically
on the same bank of computer monitors for
impeachment and other purposes. However,
the application I used for this purpose was not
TrialPad but TranscriptPad (version 1.5).
TranscriptPad, which uses text, rather than
PDF, files of deposition transcripts, allows a
user to run key word searches within one or
more transcript files in order to locate and
then display the desired testimony. The testimony can also be highlighted or flagged; otherwise, the application is fairly limited in the
options offered for manipulating what is displayed. The transcript can also be set to automatically scroll downward on the screen at a
predetermined speed so that large portions of
text can be read by everyone at once.
Because the input is an unformatted text
file, the display lacks the look and feel of an
original deposition transcript. In order to
show the original transcript in all of its formatted glory, you can use a PDF image of the
transcript and display it using TrialPad just
as you would display a trial exhibit. However,
because TrialPad does not allow a file to be
searched for content, it is necessary to know
in advance the pages of the transcript that you
plan to display. My trial did not feature any
videotaped deposition testimony and therefore I cannot offer any advice on features
relating to displaying media files.
The bottom line is that whatever we
needed to be able to do, there seemed to be
an application for it, and each one was easy
to use. My experience was wholeheartedly
positive, and I encourage attorneys to check
out the iPad as an excellent option for trial
presentation.
■
REFER CLIENTS WITH
CONFIDENCE!
HAVE A PAYING CLIENT OUTSIDE OF
YOUR LEGAL EXPERTISE?
Refer to the Los Angeles County Bar Association Lawyer Referral Service.
All LRIS lawyers are vetted for experience, insurance, and good standing.
Los Angeles County Bar Association
LAWYER REFERRAL &
INFORMATION SERVICE
(213) 243-1525
LACBA
SmartLaw
smartlaw.org
LOS ANGELES
COUNTY BAR
ASSOCIATION
LACBA.org
State Bar of California and American Bar Association Certified
Los Angeles Lawyer November 2013 65
A & E Forensic, p. 41
Higgins, Marcus & Lovett, Inc., p. 41
Jonathan S. Rutchik, M.D., p. 55
Tel. 877-839-7302 www.aeforensics.com
Tel. 213-617-7775 www.hmlinc.com
Tel. 415-381-3133 www.neoma.com
Affiniscape Merchant Solutions, Inside Back Cover
The Holmes Law Firm, p. 8
Saltzburg, Ray & Bergman, LLP, p. 51
Tel. 866-376-0950 www.lawpay.com
Tel. 626-432-7222 www.theholmeslawfirm.com
Tel. 310-481-6700 www.srblaw.com
Air, Weather & Sea Conditions, Inc., p. 46
Huron Law Group, p. 4
Schulze Haynes Loevenguth & Co., p. 49
Tel. 818-645-8632 www.weatherman.org
Tel. 310-284-3400 www.huronlaw.com
Tel. 213-627-8280 www.schulzehaynes.com
American Language Services, p. 4
Jack Trimarco & Associates Polygraph, Inc., p. 5
Sepassi & Tarighati, p. 6
Tel. 310-829-0741 www.ALSglobal.net.
Tel. 310-247-2637 www.jacktrimarco.com
www.stevesepassi.com www.mitchtarighati.com
AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 46
Lawrence H. Jacobson, Esq., p. 56
Anita Rae Shapiro, p. 55
Tel. 800-275-8903 www.amfs.com
Tel. 310-271-0747 www.lawrencejacobson.com
Tel. 714-529-0415 www.adr-shapiro.com
The California Academy of Distinguished Neutrals, p. 34, 35
James R. DiFrank, PLC, p. 15
Stephen Danz & Associates, p. 16
Tel. 310-341-3879 www.CaliforniaNeutrals.org
Tel. 562-789-7734 www.bardefense.net e-mail: [email protected]
Tel. 877-789-9707 www.employmentattorneyca.com
CMM, LLP, p. 45
Kantor & Kantor, LLP, p. 17
T & J Judgment Enforcers, p. 6
Tel. 818-986-5070 e-mail: [email protected]
Tel. 877-783-8686 www.kantorlaw.net
Tel. 213-986-6020 www.TJJudgments.com
Lawrence W. Crispo, p. 15
KARS Advanced Materials, Inc., p. 61
TASA, Technical Advisory Service for Attorneys, p. 11, 59
Tel. 213-926-6665 e-mail: [email protected]
Tel. 714-892-8987 www.karslab.com
Tel. 800-523-2319 www.tasanet.com
DataChasers.com, p. 45
Krycler, Ervin, Taubman & Walheim, p. 39
The Esquire Network (“TEN”), p 2
Tel. 951-780-7892 www.datachasers.com
Tel. 818-995-1040 www.ketw.com
Tel. 818-268-5929 e-mail: [email protected]
Greg David Derin, p. 17
LawBiz Management, p. 6
Thomas Neches & Company, p. 57
Tel. 310-552-1062 www.derin.com
Tel. 800-837-5880 www.lawbiz.com e-mail: [email protected]
Tel. 213-624-8150 www.thomasneches.com
DoubleTree by Hilton Los Angeles Downtown, p. 12
Lawyers’ Mutual Insurance Co., p. 7
URS, p. 61
Tel 213-629-1200 www.DoubleTreeLADowntown.com
Tel. 800-252-2045 www.lawyersmutual.com
Tel. 213-996-2555 www.urscorp.com
E. L. Evans & Associates, p. 45
Diana G. Lesgart, An Accountancy Corp., p. 49
Law Offices of Alan D. Wallace, p. 59
Tel. 310-559-4005
Tel. 818-886-7140 e-mail: [email protected]
Tel. 818-501-0133 www.expertwitnessre.com
ForensisGroup Inc., p. 41
Loyola Law School, Los Angeles, p. 38
Walzer & Melcher, p 1
Tel. 626-795-5000 www.forensisgroup.com
Tel. 213-736-1001 www.lls.edu
Tel. 818-591-3700 e-mail: [email protected]
Marc J. Friedman, M.D., p. 56
MCLE4LAWYERS.COM, p. 6
Waronzof Associates, p. 56
Tel. 818-901-6600 e-mail: [email protected]
Tel. 310-552-5382 www.MCLEforlawyers.com
Tel. 310-954-8060 www.waronzof.com
FULCRUM Financial Inquiry LLP, Back Cover
Michael Marcus, p. 4
White, Zuckerman, Warsavsky, Luna & Hunt LLP, p. 43
Tel. 213-787-4100 www.fulcruminquiry.com
Tel. 310-201-0010 www.marcusmediation.com
Tel. 818-981-4226 www.wzwlh.com
Gerber & Co., p. 16
Clinton E. Miller, JD, p. 51
Witkin & Eisinger, LLC, p. 16
Tel. 310-552-1600 http://gerberco.com
Tel. 408-279-1034 www.millerjd.qpg.com
Tel. 818-845-4000
Glenn M. Gelman & Associates, p. 44
Noriega Clinics, p. 25
Woodard Mediation, p. 17
Tel. 714-667-2600 e-mail: [email protected]
Tel. 213-716-3744
Tel. 626-584-8000 www.woodardmediation.com
Gursey, Schneider & Company, p. 47
Pro/Consul, Inc., Inside Front Cover
Zivetz, Schwartz & Saltsman, p. 49
Tel. 310-552-0960 www.gursey.com
Tel. 800-392-1119 www.expertinfo.com
Tel. 310-826-1040 www.zsscpa.com
Hampton Health, Ltd., John H. Fullerton, MD, p. 44
Rosen & Associates, PC, p. 53
Tel. 415-460-5532 e-mail: [email protected]
Tel. 213-362-1000 www.rosen-law.com
Burr Hartman DO, PHD, Burr Hartman Consulting, p. 51
Roughan & Associates at LINC, p. 55
Tel.559-686-4000 e-mail: [email protected]
Tel. 626-303-6333 x16 e-mail: [email protected]
66 Los Angeles Lawyer November 2013
TAP: Deposition Skills Workshop
ON MONDAY, NOVEMBER 11, Trial Advocacy and the Litigation Section will host a
workshop to provide instruction on how to take and defend depositions in California
state court actions. The first part of the program will be a lecture covering the rules
relating to oral depositions as well as how to “pin down” the deponent, defend a
deposition, use deposition testimony in trial, and develop a deposition strategy.
The second part is a workshop in which participants practice taking and defending
the deposition of a plaintiff in a civil action for negligence and receive constructive
feedback. Participants receive a deposition outline that organizes the deposition
process for ease of reference. Course materials will be distributed via e-mail prior to
the first class, so a correct e-mail address is needed at the time of registration. The
program will take place at the Los Angeles County Bar Association, 1055 West 7th
Street, 27th floor, Downtown. Parking is available at 1055 West 7th and nearby lots.
On-site registration begins at 1 P.M., with the workshop continuing from 1:30 to 5:30.
The registration code number is 011862.
$250—CLE+ member
$350—LACBA member
$500—all others
3.75 CLE hours
Federal Practice in the
Central District
ON TUESDAY, NOVEMBER 12, the
Litigation Section will present
Southern California’s signature event
on practicing law in federal district
court. Highlights include a candid
two-part panel in which local district
and magistrate judges reveal likes
and dislikes and what it takes to win
at critical junctures of a case. In
addition, the event will include the
judges’ report card on the Patent Pilot
Program. Three years after this
program began, the district judges
most involved in the Patent Pilot
Program will report on its progress
and prognosticate on the future of
TAP: Evidence Skills Workshop
ON MONDAY, NOVEMBER 11, Trial Advocacy and the Litigation Section will host the evidence
skills workshop, which is based on the premise that the best way to learn the rules of evidence is to argue them in an evidentiary hearing. In this workshop, participants argue the
admissibility of evidence in 21 different evidentiary vignettes based on a breach-of-employment-contract fact pattern. No preparation is necessary for this unique program. Within five
minutes participants are on their feet arguing the admissibility of evidence. The evidentiary
vignettes include witness competency, foundations for exhibits, chain of custody, authenticity, relevance, undue prejudice, the secondary evidence rule, the better evidence rule, the
reliability of scientific evidence, nonhearsay, hearsay, party admissions, prior inconsistent
deposition testimony, business records, judicial notice, lay opinion, expert qualifications,
expert opinion, and cross-examination of experts on treatises. Written course materials will
be distributed via e-mail prior to the first class. Please provide a correct e-mail address at
the time of registration. The program will take place at the Los Angeles County Bar
Association, 1055 West 7th Street, 27th floor, Downtown. Parking is available at 1055 West
7th and nearby lots. On-site registration will begin at 8:00 A.M., with the program continuing
from 8:30 A.M. to 12:30 P.M. The registration code number is 011973.
$250—CLE+ member
$350—LACBA member
$500—all others
3.75 CLE hours
patent litigation in the Central
District. On-site registration will
begin at 3:30 P.M., with the program
continuing from 4 to 6:30, followed by
a meal and reception. The event will
take place at the Hilton DoubleTree
Hotel, 120 South Los Angeles Street,
Downtown. Valet parking is available
for $10. The prices below include the
reception. The registration code
number is 012134.
$65—CLE+ member
$160—Litigation Section member
$185—LACBA member
$220—all others
2.5 CLE hours
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs
listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at
http://calendar.lacba.org, where you will find a full listing of this month’s Association programs.
Los Angeles Lawyer November 2013 67
closing argument
BY ALAN H. SIMON
Honoring 100 Years of the Los Angeles Public Defender
are charged, in the Superior Court, with the commission of any
IT IS A WELL-KNOWN ADMONITION: “You have the right to the
contempt, misdemeanor, felony or other offense. He shall also,
presence of an attorney before and during questioning, and if you canupon request, give counsel and advice to such persons, in and
not afford an attorney, one will be appointed for you free of charge.”
about any charge against them upon which he is conducting the
This warning only dates back to the 1960s, but the concept of prodefence, and he shall prosecute all appeals to a higher court or
viding defense attorneys who are paid by the state can be traced back
courts, of any person who has been convicted upon any such
to the Roman Empire, when the papal government appointed a paucharge, where, in his opinion, such appeal will, or might reaperus procurator to act as counsel for indigents. In the late 1400s in
sonably be expected to, result in a reversal or modification of
Spain an advocate for the poor was provided at public expense. In
the judgment of conviction.
the early years of the twentieth century, Los Angeles judges commonly
He shall also, upon request, prosecute actions for the colappointed what were called jail lawyers, attorneys who made themselves available by hanging around the courts.
Clara Shortridge Foltz, who served as the
first woman prosecutor for the Los Angeles
Clara Shortridge Foltz, the first woman prosecutor for Los Angeles
County district attorney in 1911, provided the
rationale for public support of defendants in her
description of how defense in criminal cases was
County, provided the rationale for public support of defendants.
handled at the time:
In criminal trials, as at present conducted, counsel for the defense is an
lection of wages and other demands of persons who are not
absolute essential to the just examination of a case. The unforfinancially able to employ counsel, in cases in which the sum
tunate prisoner is not denied counsel; he is told that he may supinvolved does not exceed $100, and in which, in the judgment
ply himself with this essential to justice if he wishes, and if he
of the Public Defender, the claims urged are valid and enforcepleads poverty and announces himself a pauper it is the duty
able in the courts.
of the court to appoint counsel for him.
He shall also, upon request, defend such persons in all civil
Now, without detracting from the able men who somelitigation in which, in his judgment, they are being persecuted
times do offer their services in behalf of a penniless prisoner, the
or unjustly harassed.
rule is that the court appointees are wholly unable to cope with
In June 1915, the Los Angeles City Council created the City Police
the public prosecutor. Those whose ability commands a law pracCourt Defender and appointed James H. Pope to handle the defense
tice are seldom chosen. The appointees come from the failures
in misdemeanor cases. The City Public Defender handled Municipal
of the profession who hang about the courts for a stray fee from
Court filings, including felony preliminary hearings, while the County
the unfortunate, or youths just admitted to the bar and anxious
Public Defender handled felony cases in Superior Court. The City Public
for practical experience. They have no money to spend in a
Defender merged into the County Public Defender Department in 1965.
proper investigation of the case and come to trial wholly
In 1993 the Los Angeles Board of Supervisors appointed Bruce
unequipped either in ability, skill or preparation to cope with
Hoffman to head a new Alternate Public Defender Office to represent
the man hired by the state to marshall the evidence for the proscriminal defendants in cases in which a conflict of interest prevented
ecution. This system works untold evil.
This dismal state of affairs moved Los Angeles County voters in the public defender from undertaking the representation.
Today, Los Angeles County Public Defender Ronald L. Brown heads
1913 to approve a county charter that created the Office of the Public
Defender, a law firm to be paid for by the public. The charter was rat- a law office of 1,100-plus attorneys, paralegals, investigators, social
ified by the California Legislature, and in January 1914 the nation’s workers, secretaries, and administrative staff. The office provides
first public defense law firm paid for by taxpayers opened its doors on superior, cost-effective representation and is an innovative, award-winthe 11th floor of the old Hall of Records on Broadway, just west of ning national leader in defense advocacy on behalf of adults and chilwhere the Clara Shortridge Foltz Criminal Justice Center now stands. dren in the criminal, juvenile, and mental health justice systems.
The public defender is proud of its 100 years and its status as the
Walton J. Wood was the first appointed public defender, and his
preeminent publicly funded criminal defense office in the United States.
entire original staff consisted of four deputies and a secretary.
The charter spelled out the scope of the public defender’s duties, Its lawyers and staff strive to exemplify the public defender’s motto: “To
enrich lives through effective and caring service.”
■
which included representation in some civil matters:
Upon request by the defendant or upon order of the Court, the
Public Defender shall defend, without expense to them, all
Now retired, Alan H. Simon was a bureau chief of the law office of the Los
persons who are not financially able to employ counsel and who
Angeles County Public Defender.
68 Los Angeles Lawyer November 2013
The financial advisor you use can affect the ultimate result.
We deliver better results through:
p Investigative capabilities that discover hidden evidence
p Experience-directed research and analysis that delivers right answers the first time
p Depth of professional resources to deliver on near-term deadlines
p Technology that provides responsive, cost-effective answers
p Persuasive visual presentations which follow our proven methodology
Because of this, we have an unequalled track record in successful court
testimonies and substantial client recoveries.
Call us when you need analysis or expert testimony regarding:
p Commercial damages
p Economic & market studies
p Bankruptcy & restructuring analysis
p Fraud & other investigations
p Business & asset valuations
p Forensic accounting & audits
p Injury & employment damages
p Statistics & econometric modeling
Inquiry
To avoid mistakes, follow the online
advice at www.fulcrum.com, or call us
at 213-787-4100 for a free consultation.