Exclusion Preclusion EEOC Hearing Procedure

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2012 Lawyer-to-Lawyer Referral Guide
June 2012 /$4
EARN MCLE CREDIT
PLUS
EEOC Hearing
Procedure
Free Speech
on Private
Property
page 19
page 28
Subpoenaing
ISPs
page 9
Local Transfer
Taxes
page 11
Exclusion
Preclusion
Los Angeles lawyer
Jeffrey Huron offers advice on
how to deal with the preclusion
of evidence at trial and on appeal
page 14
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chapm an universit y school of l aw
is pleased to announce the newly named
Bette and Wylie Aitken
FAMILY VIOLENCE CLINIC
About the
Family Violence Clinic
The Bette and Wylie Aitken Family Violence Clinic at Chapman University School
of Law was established in 2007 to address the unique challenges faced by survivors
of domestic violence. Located at the Family Justice Center in Anaheim, California,
the clinic offers free legal services to victims of family violence, trafficking and other
forms of abuse. The program is co-taught by Chapman professors Marisa Cianciarulo,
Wendy Seiden and Neda Sargordan who provide ongoing clinical education to
25 students annually. The clinic now bears the name of Bette and Wylie Aitken in
recognition of a recent generous gift. Additional underwriters include founding
contributor, Buchalter Nemer, PLC, with further support from the Orange County
Community Foundation and the Wells Fargo Foundation.
One University Drive, Orange, CA 92866
■
714-628-2500
■
www.chapman.edu/law
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E X C L U S I V E LY
FA M I LY L AW
Walzer & Melcher LLP is known for its expertise
in handling complex divorce cases and premarital
agreements. The firm is committed to resolving
contested cases by settlement. Where that cannot
be achieved, the firm provides strong and effective
representation in litigation.
Left to right: (seated) Christopher C. Melcher and Leena S. Hingnikar;
(standing) Jennifer L. Musika and Peter M. Walzer
www.walzermelcher.com
www.drprenup.com
June2012_Master.qxp
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INSURING LAW FIRMS ONE POLICY AT A TIME
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June2012_Master.qxp
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F E AT U R E S
14 Exclusion Preclusion
BY JEFFREY HURON
To prevail on the appeal of a trial court’s exclusion of evidence requires
demonstrating both “abuse of discretion” and a “miscarriage of justice”
19 Faster and Fairer
BY KATHLEEN MULLIGAN AND ALBERT SHEEN
Except for punitive damages, the remedies available to federal employees in
EEOC cases are almost identical to those in federal court
Plus: Earn MCLE credit. MCLE Test No. 215 appears on page 21.
28 Minding the Store
BY JENNIFER LASER AND CARLA J. CHRISTOFFERSON
The balancing of free speech and private property rights entails an
understanding of what constitutes a quasi-public forum
33 Special Section
2012 Lawyer-to-Lawyer Referral Guide
Los Angeles Lawyer
D E PA RT M E N T S
the magazine of
the Los Angeles County
Bar Association
June 2012
8 Barristers Tips
Adding business development to your
professional practice
44 Closing Argument
The thriller-worthy odds that face
attorneys who want to be novelists
BY ELIZABETH HANKS
BY CHUCK GREAVES
9 Practice Tips
How to subpoena Internet communications
42 Classifieds
Volume 35, No. 4
COVER PHOTO: TOM KELLER
BY BOB BENJY
11 Tax Tips
Taxation of the transfer of single member
LLCs that own real estate
42 Index to Advertisers
43 CLE Preview
BY PAUL OBICO
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.
06.12
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Page 4
VISIT US ON THE INTERNET AT www.lacba.org/lalawyer
E-MAIL CAN BE SENT TO [email protected]
EDITORIAL BOARD
Chair
KENNETH W. SWENSON
Articles Coordinator
DENNIS PEREZ
JERROLD ABELES (PAST CHAIR)
ETHEL W. BENNETT
ERIC BROWN
CAROLINE BUSSIN
PATRICIA H. COMBS
CHAD C. COOMBS (PAST CHAIR)
MICHELLE WILLIAMS COURT
ELIZABETH L. CROOKE
BEN M. DAVIDSON
ANGELA J. DAVIS (PAST CHAIR)
GORDON ENG
DONNA FORD
STUART R. FRAENKEL
MICHAEL A. GEIBELSON (PAST CHAIR)
GABRIEL G. GREEN
SHARON GLANCZ
TED HANDEL
JEFFREY A. HARTWICK
STEVEN HECHT (PAST CHAIR)
JOSHUA S. HODAS
LAURENCE L. HUMMER
AMY K. JENSEN
GREGORY JONES
MARY E. KELLY
KENNETH K. LEE
KATHERINE KINSEY
KAREN LUONG
PAUL MARKS
AMY MESSIGIAN
MICHELLE MICHAELS
COMM. ELIZABETH MUNISOGLU
RICHARD H. NAKAMURA JR. (PAST CHAIR)
CARMELA PAGAY
ADAM J. POST
GARY RASKIN (PAST CHAIR)
JACQUELINE M. REAL-SALAS (PAST CHAIR)
DAVID A. SCHNIDER (PAST CHAIR)
STEVEN SCHWARTZ
LOUIS SHAPIRO
MAYA SHULMAN
HEATHER STERN
DAMON THAYER
THOMAS H. VIDAL
STAFF
Publisher and Editor
SAMUEL LIPSMAN
Senior Editor
ERIC HOWARD
Art Director
LES SECHLER
Director of Design and Production
PATRICE HUGHES
Advertising Director
LINDA LONERO BEKAS
Sales and Marketing Coordinator
AARON J. ESTRADA
Administrative Coordinator
MATTY JALLOW BABY
Copyright © 2012 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 June 2012
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LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF
THE LOS ANGELES COUNTY BAR ASSOCIATION
1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2548
Telephone 213.627.2727 / www.lacba.org
S
o ends my term as Editorial Board chair of Los Angeles
Lawyer. No fanfare, no lavish parties, no farewell tour—
just one day someone says, “Hey, that’s my seat,” and suddenly you are forgotten at the back of the room, hanging out
with Ron Paul, Vanilla Ice, and the kid from The Munsters.
Over my previous seven columns, I have brought you the most pressing issues of the
day, things like:
• Why getting old stinks (figuratively, not literally—well, okay, literally too).
• Who Ken Swenson is on the Internet (one of your principal concerns in life).
• How to get the attention of one percenters without the inconvenience of
sleeping in a park and bathing in a McDonald’s restroom.
• Unusual medical warnings of popular prescription medications and the danger
of information sharing in our increasingly virtual world. Wait, that last one really
was a pressing issue. Who ordered that?
I have enjoyed the County Bar’s patience in permitting me to use this column as
a substitute for a blog, writing anything I felt like rather than advancing issues of
interest to LACBA members. Then again, my view is that I am providing a service
to our membership. Lawyers work hard and are under a lot of stress, and if you’ve
been taking your MCLE courses on substance abuse (if you haven’t, please don’t email me to tell me about it), then you know our dirty little secret is out: Lawyers
are more likely than any other professionals to turn to alcohol and drugs to relieve
stress. Or else they aren’t clear on the concept of the “bar” association. So, I figure
that using this column for humor has provided a safe form of stress relief. I know
it’s working because one reader wrote that my column made him “smile.” That’s
what I was going for, lots of smiling LACBA members. Of course, we’ll have a hard
time distinguishing them from those who are merely abusing substances.
I have also appreciated the e-mails I received in response to my offerings. Most
were from lawyers (who saw that coming?), but I’ve also heard from, among others, a numerologist, a chef, a retiree, and a judge. (For the Barristers crowd, judges
are like lawyers, except people respect them.) I also got e-mails regarding a “settlement
with my ex-husband” and “collecting a judgment I am owed.” I started getting those
e-mails within days of setting up the AOL account. Thanks for all that spam protection, AOL. So, if my columns made you smile—or even, dare I say, laugh—write
to me at the e-mail address below.
On a serious note, my thanks to the magazine’s publisher and editor, Sam
Lipsman, for giving me the leeway to stretch the boundaries of the traditional
board chair column. Also, thank you to the magazine’s recent senior editor, Lauren
Milicov, for giving me a sense of how editing works in the real world of writers—
those for whom this is a craft and not just a pastime—and for successfully walking
that line between support and critique.
Starting with the next issue, this column will be brought to you by Dennis
Perez, incoming chair. Dennis does civil and criminal tax litigation, which, despite
the jokes about “criminal lawyers,” is not comedic. This means that, unlike me, Dennis
has to choose his words carefully, because it turns out neither his clients nor the IRS
are usually in the mood for humor. But it’s a testament to Dennis’s skills that very
few of his holiday cards to clients are addressed to federal penitentiaries. So, let’s
raise our glasses—figuratively, because we have taken our substance abuse training—
to Dennis and warmly wish him success for the coming year!
■
Ken Swenson is in-house counsel for Bank of America in Los Angeles. He is the 2011-12 chair
of the Los Angeles Lawyer Editorial Board. He can be reached at [email protected].
6 Los Angeles Lawyer June 2012
ASSOCIATION OFFICERS
President
ERIC A. WEBBER
President-Elect
RICHARD J. BURDGE JR.
Senior Vice President
PATRICIA EGAN DAEHNKE
Vice President
LINDA L. CURTIS
Treasurer
MARGARET P. STEVENS
Assistant Vice President
PAUL R. KIESEL
Assistant Vice President
HELEN B. KIM
Assistant Vice President
ELLEN A. PANSKY
Immediate Past President
ALAN K. STEINBRECHER
Executive Director
SALLY SUCHIL
Associate Executive Director/Chief Financial Officer
BRUCE BERRA
Associate Executive Director/General Counsel
W. CLARK BROWN
BOARD OF TRUSTEES
SEYMOUR I. AMSTER
P. PATRICK ASHOURI
ROBERTA B. BENNETT
ORI S. BLUMENFELD
MARRIAN S. CHANG
KENNETH CHIU
BRIAN K. CONDON
DUNCAN W. CRABTREE-IRELAND
BRIAN S. CURREY
JEFFERY J. DAAR
ANDREW S. DHADWAL
ANTHONY PAUL DIAZ
LOUIS R. DIENES
DAVID C. EISMAN
CHRISTINE C. GOODMAN
JACQUELINE J. HARDING
ANGELA S. HASKINS
HARUMI HATA
LAWRENCE C. HINKLE II
BRIAN D. HUBEN
LILLIAN VEGA JACOBS
EVAN A. JENNESS
RUTH D. KAHN
SAJAN KASHYAP
MICHAEL K. LINDSEY
SARAH E. LUPPEN
HON. RICHARD C. NEAL (RET.)
ANNALUISA PADILLA
DEBORAH C. SAXE
LINDA E. SPIEGEL
BRUCE IRA SULTAN
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 OF GREATER LOS ANGELES
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 BAR ASSOCIATION
SANTA MONICA BAR ASSOCIATION
SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC.
SOUTHEAST DISTRICT BAR ASSOCIATION
SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION
WHITTIER BAR ASSOCIATION
WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
June2012_Master.qxp
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barristers tips
BY ELIZABETH HANKS
Adding Business Development to Your Professional Practice
Once you have demonstrated that you are committed, rest assured
MOST ATTORNEYS IN PRIVATE PRACTICE have heard what I call the
Business Development Speech on multiple occasions and in a variety that it will not be long before the leaders of these organizations
of formats. A partner at a large firm, for example, will likely be expect- begin to ask you to help with small events, serve on a subcommittee,
ed to spend many evenings and weekends socializing with existing clients or eventually run for or join the executive committee. As you become
and trying to build relationships with people who may become clients. more involved, your contacts will begin to grow as you meet more
A firm may expect a senior associate to bring in some business or at new people and get more involved in other groups. You will not only
least maintain and foster the firm’s existing client relationships. Mid- be on your way to being a networking and business development
level attorneys will no doubt be encouraged to attend copious numbers prodigy with some great leadership and community involvement
of networking functions and write articles to get their names out into experience to add to your resume but also be spending more time with
the local legal community and attract attention to the firm. But what your fellow community members and fostering relationships. By
is business development to a junior associate?
Most firms recognize that junior associates
will not be able to bring in new clients, and
Focus on something that you enjoy and are passionate about and
junior associates—especially at the larger
firms—may not have many opportunities to
interact with existing clients. This does not
then find an organization or group that fosters those passions.
mean, however, that associates are not expected
to have their eyes on the firm’s long-term business development goals. Instead, associates are
often encouraged to get involved in their local legal community, get building friendships that are not forced but instead built on common
to know more people within their industry, take on some leadership interests and compatible personalities, you will have established
something that truly is an asset for future business development—true
roles, and make friends.
If you are anything like me, the typical networking happy hours friends who will trust you with their legal work in the future.
Many associates simply view getting involved in a professional or
and seminar mixers are not high on your to-do list. They often feel
forced and uncomfortable, filled with odd people, awkward silences, community organization as an additional tax on their time instead
or boring chitchat. The hour or two you sacrifice for these endeav- of as the opportunity it is. The choices are endless. If you are a
ors instead of watching Game of Thrones on your DVR will gener- working mom, find a group that is run by other working moms or
ally only lead to gathering a few cards that you will likely never pick has family-friendly events. If you would rather write an article than
up again or to handing out a few cards to people who you know will chat over a glass of wine at some networking function, then find an
never call. So the challenge becomes how to get involved and be glad organization with a newsletter and volunteer to write or edit articles.
that you did. Instead of viewing networking and community involve- If you would gladly take that glass of wine and have specific ideas
ment as an undesirable extension of your job, try thinking of it as an about where you would like to drink that glass of wine, join an organization that throws social or networking events and offer to orgaopportunity to take on a firm-approved hobby.
Community involvement comes in countless forms. It can mean vol- nize the next one at your favorite wine bar. Whatever you decide to
unteering at a local homeless shelter, serving on a committee for a pro- do, all you really need to do is take the first few steps. The rest will
fessional organization, or playing on your firm’s basketball team. The snowball naturally.
A professional organization is waiting for your involvement, no
key is to focus on something that you enjoy and are passionate about
and then find an organization or group that fosters those passions. For matter what interests you. For example, if you aspire to be a litigaexample, if you are passionate about HIV/AIDS awareness, prevention, tor, the American Board of Trial Advocates Inn of Court, the LACBA
and policy, send an e-mail to LACBA’s AIDS Legal Services Project or Inn of Court and its Litigation Section, the Consumer Attorneys
the leaders of AIDS Walk Los Angeles and offer to volunteer. If you are Association of Los Angeles, and the Association of Business Trial
like me and are passionate about changing the law and want to meet Lawyers offer rewarding opportunities. Are you concerned with
local politicians, then join me on the Los Angeles Delegation to the Cal- labor and employment? LACBA’s Labor and Employment Section and
ifornia Conference of Bar Associations or begin attending the Los An- the National Employment Law Council are waiting. Similar sections
geles County Bar Association Barristers Government Relations Com- and groups await attorneys in many other areas of specialty. Whatever
mittee mixers. As you begin to attend these events, you will still be you feel passionate about, your valued abilities as an attorney can find
■
meeting plenty of new people, but you will have something in common an outlet and in turn develop some business for your firm.
to discuss. As you see these same people two, three, or eight times, you
will realize that you like being involved not only because of your ini- Elizabeth Hanks is an associate specializing in land use law with the Real Estate
tial interest but also because you have actually made some friends.
Practice of Paul Hastings LLP in Los Angeles.
8 Los Angeles Lawyer June 2012
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practice tips
BY BOB BENJY
How to Subpoena Internet Communications
ON SITES SUCH AS FACEBOOK, MySpace, Twitter, and LinkedIn, hundreds of millions of users communicate daily without recognizing that
their time-stamped and searchable communications often remain
stored long after being written. Litigators recognize the value in
scrutinizing e-mail and posts for information to support litigation.
According to a recent survey conducted by the American Academy
of Matrimonial Lawyers, 81 percent of responding attorneys found
and used evidence from social sites (most notably Facebook) in litigation.1
Unfortunately, it is common for opposing counsel to improperly
sanitize produced e-communications for the purpose of withholding
damaging evidence. As such, it makes sense for litigators to serve civil
subpoenas duces tecum for production of e-communications directly
on third-party Internet service providers and social sites. As third parties, service providers have no incentive to hide or destroy incriminating evidence. However, litigators serving subpoenas are often
stymied by the Stored Communications Act (SCA),2 which prohibits
service providers from disclosing e-communications, even in the face
of a civil subpoena.
Congress passed the SCA in 1986, making it a crime for “a person or entity providing an electronic communication service to the
public” to knowingly divulge “the contents of a communication
while in electronic storage by that service.”3 Congress intended the
SCA “to protect privacy interests in personal and proprietary information.…”4 While mail and telephone communications have long
enjoyed a variety of legal protections, there were no “comparable
Federal statutory standards to protect the privacy and security of communications transmitted by new noncommon carrier communications
services or new forms of telecommunications and computer technology.…”5 “Congress thus sought not only to shield private electronic
communications from government intrusion but also to encourage
‘innovative forms’ of communication by granting them protection
against unwanted disclosure to anyone. In the absence of a degree of
privacy at least roughly comparable to that accompanying more traditional modes of communication, potential users might be deterred
from using the new forms merely out of a feared inability to communicate in confidence.”6
“The SCA prevents ‘providers’ of communication services from
divulging private communications.…”7 While the SCA lists several
exceptions to the general prohibition against disclosure of the contents of e-communications, no express exception is made for civil subpoenas.8 California courts have interpreted the SCA to apply to ISPs
providing e-mail services and to social sites. For example, in O’Grady
v. Superior Court of Santa Clara County,9 the California Court of
Appeal issued a writ of mandate directing the trial court to grant a
motion for protective order filed by the defendants, who were operators of online news magazines, in response to civil subpoenas served
by Apple Computer. The underlying case involved the allegation by
Apple that the defendants had wrongfully published Apple’s plans to
release a certain device.
On appeal, Apple argued that civil subpoenas fall within the
exception to the SCA providing that disclosure of the contents of email is acceptable if “necessarily incident to the…protection of the
rights or property of the [ISP].”10 The court of appeal disagreed,
explaining that Apple’s argument is flawed because it improperly presupposes that noncompliance with a subpoena would expose the ISP
to contempt or other sanctions. The court took the position that had
Congress intended an exception to the SCA for civil subpoenas,
Congress would have expressly included such an exception. The
failure of Congress to do so must, therefore, have been intentional.11
Apple also argued that the SCA provides that no cause of action
shall lie against any provider of electronic communications services
for providing information in accordance with the terms of a subpoena.12 Based on that provision, Apple argued that compliance
with a subpoena by an ISP was acceptable. The court disagreed. The
safe harbor provision “does not make compliance with such process
lawful; it excuses the provider from the consequences of an unlawful act taken in good faith.…That…does not entitle Apple to invoke
this provision to compel disclosures otherwise prohibited by the
Act.”13
Apple also argued for an implied exception to the SCA for purposes of civil discovery. Again, the court disagreed. The court
explained, “The treatment of rapidly developing new technologies profoundly affecting not only commerce but countless other aspects of
individual and collective life is not a matter on which courts should
lightly engraft exceptions to plain statutory language without a clear
warrant to do so.”14
The court expressed concern that if an exception to the SCA
were made for civil subpoenas, ISPs would likely become inundated
with them, imposing a “substantial new burden on service
providers.”15 The prohibition against disclosure by ISPs of e-mail contents “does not render the data wholly unavailable; it only means that
the discovery must be directed to the owner of the data, not the bailee
to whom it is entrusted.”16 The court also explained that, “Where a
party to the communication is also a party to the litigation, it would
seem within the power of a court to require his consent to disclosure
on pain of discovery sanctions.”17
Crispin v. Audigier
In Crispin v. Audigier,18 the defendants in a business dispute served
subpoenas duces tecum on several businesses, including Facebook and
MySpace. The plaintiff filed a motion to quash the subpoenas on several grounds, including the SCA. The motion was heard by a magistrate judge who ruled that third-party businesses are not prohibited
from disclosing the contents of e-communications by the SCA. The
magistrate judge further ruled that even if the SCA prohibited such
Bob Benjy practices commercial and business litigation, with an emphasis
on creditor representation, at the Los Angeles office of Frandzel Robins Bloom
& Csato, L.C.
Los Angeles Lawyer June 2012 9
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Page 10
JUDGE
LAWRENCE W. CRISPO
(RETIRED)
Mediator
Arbitrator
Referee
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7131 Owensmouth Ave., Canoga Park, CA 91303
10 Los Angeles Lawyer June 2012
disclosure, that prohibition would be inapplicable in the face of a civil subpoena.
The district court heard a motion for
review of the magistrate judge’s decision
regarding plaintiff’s motion to quash. First, the
court held that individuals have standing to
move to quash a civil subpoena to a social site
where that subpoena seeks personal information protected by the SCA.19 The court also
held that Facebook and MySpace’s private
messaging or e-mail services are subject to the
SCA’s prohibitions against disclosure, even if
the social site is served with a civil subpoena.
The court, therefore, quashed the subpoenas
seeking the content of private communications.
Regarding comments openly posted on
Facebook and Myspace, however, the district court merely vacated the magistrate
judge’s order and remanded so that the parties could develop a fuller evidentiary record
regarding the plaintiff’s privacy settings on
those social sites. The court relied on a provision of the Wiretap Act20 that provides,
“It shall not be unlawful…for any person…to
intercept or access an electronic communication made through an electronic communication system that is configured so that
such electronic communication is readily
accessible to the general public.”21 The implication being that if the privacy settings are sufficiently restrictive of who can view the posts
(e.g., only the account holder’s “friends”),
the SCA prohibits disclosure. If, on the other
hand, the account holder’s privacy settings are
set to a low protection level (e.g., any Facebook member may access the account holder’s wall postings), then the SCA does not prohibit disclosure. Where does that line get
drawn? The district court declined to state as
much, leaving the social site postings aspect
of the SCA in a continued state of uncertainty.
Consent Provisions
The SCA does not, however, necessarily mean
that litigants are totally unable to mine for ecommunications. For example, one could
include consent provisions in agreements
whereby all parties thereto agree that in the
event of litigation, all parties shall have the
unfettered right to seek and obtain one another’s e-communications by way of civil subpoena. Arguably, such provisions, especially
when included in a notarized document, fall
within the consent exception to the SCA’s
disclosure prohibition.
Moreover, the SCA only prohibits a person or entity providing an electronic communication service to the public from disclosing the contents of electronic communications. Nothing prohibits the service of
civil subpoenas upon third-party “bailees” of
online communications that do not provide
services to the general public (e.g., universities, organizations, and businesses). One may,
for example, serve a subpoena on the
employer of the target person for relevant email messages sent or received via his or her
employer’s privately maintained e-mail server.
Third parties, including private employers, are
often not invested in the outcome of litigation
that does not affect them and will rarely be
considered persons providing electronic communication services to the public. In fact, the
Code of Civil Procedure provides an entire
scheme for compelling production of “electronically stored information” by means of
civil subpoena.22
Finally, litigants may serve opposing parties with inspection demands seeking production of the opposing party’s computers for
the purpose of digital inspection by a computer expert.23 Such experts have the ability
to retrieve electronic communications from
the computer’s hard drive, even when that
data is deleted.
E-communications are a mine of information for litigants. While the SCA presents
significant challenges to a litigant’s ability to
obtain an unfiltered record of e-communications, that obstacle can be overcome with
creative discovery methods.
■
1
See http://www.aaml.org/about-the-academy/press
/press-releases/e-discovery/big-surge-social-network
ing-evidence-says-survey-.
2 The Stored Communications Act, 18 U.S.C. §§2701
et seq.
3 18 U.S.C. §2702(a)(1).
4 S. REP. NO. 99-541, reprinted in 1986 U.S. CODE
CONG. & ADMIN. NEWS 3557.
5 Id. at 3559.
6 O’Grady v. Superior Court of Santa Clara County, 139
Cal. App. 4th 1423, 1445 (2006) (emphasis in original).
7 Crispin v. Audigier, 717 F. Supp. 2d 965, 971-72 (C.D.
Cal. 2010) (citations omitted).
8 18 U.S.C. §2702(b).
9 O’Grady, 139 Cal. App. 4th 1423.
10 Id. at 1442 (citing 18 U.S.C. §2702(b)(5)).
11 Id.
12 See 18 U.S.C. §2703(e).
13 O’Grady, 139 Cal. App. 4th at 1442.
14 Id. at 1443.
15 Id. at 1446.
16 Id. at 1447.
17 Id. at 1446; see also 18 U.S.C. §2702(b)(3) (making
an exception to the disclosure prohibition if there is lawful consent of an originator or addressee or intended
recipient of the communication).
18 Crispin v. Audigier, 717 F. Supp. 2d 965 (C.D. Cal.
2010).
19 See id. at 974.
20 See 18 U.S.C. §2511(2)(g).
21 See Crispin, 717 F. Supp. 2d at 991.
22 CODE CIV. PROC. §1985.8; see also CODE CIV. PROC.
2016.020(e) (defining electronically stored information). See also FED. R. CIV. PROC. 45 (obtaining electronically stored information).
23 See TBG Ins. Servs. Corp. v. Superior Court, 96
Cal. App. 4th 443 (2002) (directing trial court to
vacate order denying motion to compel production of
plaintiff’s home computer).
June2012_Master.qxp
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tax tips
BY PAUL OBICO
Taxation of the Transfer of Single Member LLCs That Own Real Estate
HOLDING TITLE TO COMMERCIAL REAL PROPERTY in a single member, special purpose limited liability company is more common than
ever and has transformed the manner in which commercial real
property is transferred. In lieu of directly conveying title to the property itself, a buyer can purchase all the membership interests of the
single member LLC. A lender that advances funds to the member of
a single member LLC can take control of the property by foreclosing on the membership interests of the LLC if the loan is secured by
those interests.
In California, transfer tax (which is distinct from property taxes)
is collected when a deed or similar written instrument transferring ownership of real property is recorded.1 When title to real property is held
by a single member LLC, no document is recorded, and title never
changes hands if interests in the single member LLC are transferred.
Therefore, most California property owners and their advisers have
historically treated the transfer of the membership interests of a single member LLC as exempt from transfer taxes. California cities and
counties are starting to challenge this position, however, and trying
to collect transfer tax on these transactions as they seek ways to
increase tax revenues in a weak economy. Attorneys should be aware
of recent efforts made by localities to expand the application of
transfer taxes, as well as potential challenges to these efforts.
In November 2008, the San Francisco transfer tax ordinance was
amended to broaden its scope to include the transfer of a controlling
interest in a legal entity that owns real property. The amended San
Francisco ordinance incorporates, by reference, the provisions of
the California Revenue and Tax Code that relate to a change in
ownership of a legal entity for property tax purposes.2 In particular,
the ordinance now incorporates Section 64 of the Revenue and Tax
Code, which generally provides that real property owned by a single member LLC experiences a “change in ownership” and is reassessed
for property tax purposes if any person obtains more than 50 percent of the ownership interests in the single member LLC.3
In Los Angeles, no such amendment has yet been adopted.
However, the Los Angeles county recorder’s office is broadly interpreting its ordinance to include the transfer of a controlling interest
in a legal entity. The recorder has stated that it believes that collecting transfer tax under these circumstances is already authorized in its
local ordinance and by the provisions of the California Revenue and
Tax Code that authorize cities and counties to impose transfer taxes.4
The county recorder also believes that it is consistent with case law
to apply the principles of change in ownership as defined by California
statute to determine whether the transfer of interests in a legal entity
is subject to transfer tax.5
In the past, the sale or transfer of single member LLC interests
would only result in a property tax reassessment. As result of the
changes in San Francisco and Los Angeles, the transfer or sale of the
membership interests of a single member LLC not only triggers a
reassessment of the real property owned by the single member LLC
but also causes transfer taxes to be assessed in these jurisdictions.
Property owners may be able to challenge attempts by cities and
counties to collect transfer taxes on single member LLC transfers. The
local transfer tax ordinance in jurisdictions such as Los Angeles is based
on the California Act and case law interpreting the phrase “realty
sold.” By exploring statutory and case law in more detail, property
owners may be able to challenge attempts to collect transfer taxes on
single member LLC transfers.
The California Tax Code
The California Tax Code authorizes localities to impose transfer
taxes and is the starting point for determining whether the transfer
tax applies to the sale or transfer of single member LLC interests. The
California Act provides that transfer tax is imposed “on each deed,
instrument, or writing by which any lands, tenements, or other realty
sold within the county shall be granted, assigned, transferred, or otherwise conveyed to, or vested in, the purchaser or purchasers, or any
other person or persons, by his or their direction.…”6
The California Tax Code also authorizes collecting the transfer tax
when a partnership that holds real property experiences a technical
tax termination for federal income tax purposes.7 Except for certain
partnership terminations, the Tax Code does not contain any provision that specifically authorizes imposing the transfer tax on the
transfer of ownership interests in any other type of legal entity.8
The California Tax Code is based on the federal Documentary
Stamp Tax Act.9 The provisions of the federal act and applicable regulations suggest that certain partnership terminations are the only type
of legal entity transfer within the scope of the transfer tax under the
Documentary Stamp Tax Act.10 Thus, by inference, the scope of the
California Tax Code should be similarly limited.
The language of the transfer tax ordinances of Los Angeles county
and city are substantially similar to the California Tax Code. Both the
county and city ordinances impose the transfer tax when a deed or
similar instrument is recorded.11 In addition, a partnership termination for federal income tax purposes is the only type of legal entity
transfer addressed by the ordinances.12 Like the California Tax Code,
neither the Los Angeles county nor city ordinances contain any provision that authorizes the collection of the transfer tax on the transfer of ownership interests in any other type of legal entity.
Until the San Francisco transfer tax ordinance was amended, its
terms were substantially similar to the terms of the California Tax Code
and to the transfer tax ordinances of Los Angeles county and city. Prior
to its amendment, the San Francisco transfer tax ordinance contained
no direct authority for imposing transfer tax on a sale or transfer of
interests in a single member LLC. The San Francisco ordinance only
authorized collecting the transfer tax on a partnership termination. The
San Francisco ordinance now contains a clear statement that the
Paul Obico practices in Allen Matkins Leck Gamble & Mallory LLP’s business
and tax planning group in Los Angeles with a focus on the structuring and taxation of flow-through entities.
Los Angeles Lawyer June 2012 11
June2012_Master.qxp
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Page 12
transfer tax will be applied to real property
held by a single member LLC when a controlling interest in the single member LLC is
transferred or sold.13 For those jurisdictions
that adopt the California Tax code or that
have a transfer tax ordinance similar to Los
Angeles city or county, a property owner can
point to the local ordinance as lacking any
authority for collecting transfer tax when interests in a single member LLC are transferred.
Cases Interpreting “Realty Sold”
The Los Angeles County Recorder also has
stated that collecting transfer tax on the transfer of a controlling interest in a legal entity is
consistent with case law that defines “realty
sold” as having the same meaning as change
in ownership for property tax purposes.14
Under the California Tax Code, cities and
counties may collect transfer tax if the transfer of a controlling interest in a single member LLC constitutes realty sold.15 Although
the phrase “realty sold” is key to imposing a
transfer tax, neither the California Tax Code
nor most local transfer tax ordinances define
the phrase. It has been construed, however, in
Thrifty Corporation v. County of Los Angeles
et al.16 and in McDonald’s Corporation v.
Board of Supervisors.17
In Thrifty, the issue before the court of
appeal was whether a leasehold interest in real
property can constitute “realty sold” and
thereby trigger the transfer tax under the
California Tax Code. In order to resolve this
issue, the court of appeal first addressed
whether leasehold interests are within the
scope of the California Tax Code.
The court examined the provisions of the
Documentary Stamp Tax Act to determine
whether a leasehold can qualify as realty sold
for transfer tax purposes. Regulations interpreting the act provide that real property
leases generally are not subject to transfer tax.
However, the transfer tax applied to a lease
if it was of sufficient duration to approximate
an interest in real property such as an estate
in fee simple or a life estate. The court inferred
that the state legislature intended to perpetuate the federal administrative interpretations of the Documentary Stamp Tax Act
because the California Tax Code is patterned
on the Documentary Stamp Tax Act and the
California Tax Code employs language that
is virtually identical to the Documentary
Stamp Tax Act.18 The court concluded that
certain long-term leases are within the scope
of the California Tax Code and may be subject to transfer tax.
After determining that certain long-term
leases are within the scope of the California
Tax Code, the court needed to determine
when a long-term lease is of sufficient duration for transfer tax to apply. To answer this
question, the court found support in
12 Los Angeles Lawyer June 2012
California’s property tax provisions. While
the California Tax Code does not define “realty
sold,” the court of appeal held that the phrase
was sufficiently similar to the phrase “change
in ownership” as used in the state laws addressing when the base year value of real property
is reassessed for property tax purposes.19 The
court noted that the creation of a leasehold
interest in real property for a term of 35 years
or more (including renewal options) constitutes
a “change of ownership” that triggers a property tax reassessment.20 The court of appeal
determined that the legislature intended the
term “realty sold” to be defined consistently
with the phrase “change of ownership.”21 In
ruling that property tax change in ownership
principles are the operative guidelines for determining whether the creation of a long-term
leasehold interest constitutes “realty sold” for
transfer tax purposes, the court of appeal
noted that when the same term or phrase is
used in a similar manner in two related statutes
concerning the same subject matter, the same
meaning should be attributed to the term in
both statutes unless countervailing indications
require otherwise.22
In McDonald’s, the court of appeal also
addressed transfer taxes in the context of a
long-term leasehold, specifically whether the
extension of a long-term lease was subject to
the transfer tax and how to calculate the term
of such lease for purposes of the transfer tax.
Citing the Thrifty case, the court of appeal in
McDonald’s also relied on property tax change
of ownership principles to determine whether
the transfer tax applied to the lease at issue.
Single Member LLC Transfers
Under the analytical framework of the Thrifty
case, the initial inquiry in determining whether
the transfer of a controlling interest in a single member LLC is subject to transfer tax is
whether the transfer is within the scope of the
California Tax Code. As in Thrifty, the scope
of the California Tax Code is determined by
examining the Documentary Stamp Tax Act.
Unlike the case with long-term leaseholds,
no authority within the Documentary Stamp
Tax Act holds that transfers of an interest in
a single member LLC trigger a transfer tax.
In fact, under the Documentary Stamp Tax
Act, a partnership termination for federal
income tax purposes is the only type of entity
transfer that is subject to transfer tax.
Although limited liability companies did not
exist when the Documentary Stamp Tax Act
was in effect, neither the Documentary Stamp
Tax Act nor any of its interpretive regulations
applied the transfer tax to the transfer of
corporate stock. Given that the drafters of the
Documentary Stamp Tax Act did not extend
the application of the transfer tax to corporate interest transfers or any other type of legal
entity transfer other than certain partnership
terminations, it may be inferred that the
drafters of the Documentary Stamp Tax Act
did not intend for the transfer tax to apply to
the transfer of interests in any other type of
legal entity. The California Tax Code should
be interpreted consistent with the Documentary Stamp Tax Act. Consequently, the transfer of a controlling interest in a single member LLC is not within the scope of the phrase
“realty sold” under the California Tax Code
or any local transfer tax ordinance that is
based on the California Tax Code.
Having determined that the transfer of a
controlling interest in a single member LLC is
not within the scope of the California Tax
Code, it is irrelevant that the transfer of a
controlling interest in a single member LLC
may constitute a change in ownership for
property tax purposes. In Thrifty, the court
applied certain property tax change in ownership principles only after it concluded that
certain long-term leases are within the scope
of the transfer tax. As discussed above, the
transfer of a controlling interest in a legal
entity other than certain partnership terminations is not within the scope of the Documentary Stamp Tax Act, the California Tax
Code, or any local transfer tax ordinance that
is based on the California Tax Code. The Los
Angeles County Recorder’s stated view that it
is consistent with case law to define “realty
sold” as having the same meaning as change
in ownership in the case of a legal entity transfer ignores the first part of the Thrifty court’s
analysis—a determination of whether the transfer of a controlling interest in a single member
LLC falls within the scope of the California Tax
Code. Arguably, single member LLC transfers are not within the scope of the code.
Owners of California real property should
be alert to increasing efforts by county
recorders and city clerks to collect transfer
tax when a controlling interest in a single
member LLC is transferred or sold. In San
Francisco, the local transfer tax ordinance has
been amended to expressly state that transfer tax will be imposed on real property
owned by a single member LLC when interests in the single member LLC are transferred
or sold. In jurisdictions where the local transfer tax ordinance has not been amended,
such as Los Angeles, a property owner may
challenge the collection of transfer tax on a
single member LLC transfer on the grounds
that 1) the local transfer tax ordinance does
not contain any authority for the collection
of transfer tax under such circumstances,
and 2) the transfer of a controlling interest in
a single member LLC is not within the scope
of the California Tax Code or the local transfer tax ordinance.
■
1 REV.
2 SAN
& TAX. CODE §11911.
FRAN. BUS. & TAX REGS. CODE art. 12-C, §1114
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(The term “realty sold” includes “any acquisition or
transfer of ownership interests in a legal entity that
would be a change of ownership of the entity’s real
property under California Revenue & Taxation Code
[§] 64.”).
3 See REV. & TAX. CODE §64(c)(1), which states in pertinent part:
When a corporation, partnership, limited liability
company, other legal entity, or any other person
obtains control through direct or indirect ownership or control of more than 50 percent of the
voting stock of any corporation, or obtains a
majority ownership interest in any partnership,
limited liability company, or other legal entity
through the purchase or transfer of corporate
stock, partnership, or limited liability company
interest, or ownership interests in other legal entities, including any purchase or transfer of 50 percent or less of the ownership interest through
which control or a majority ownership interest is
obtained, the purchase or transfer of that stock or
other interest shall be a change of ownership of the
real property owned by the corporation, partnership, limited liability company, or other legal entity
in which the controlling interest is obtained.
4 REV. & TAX. CODE §§11901 et seq.
5 The following notice appears on the Web site of
the Los Angeles County Registrar-Recorder/County
Clerk (http://www.lavote.net/Recorder/Document
_Recording.cfm): “The Los Angeles County RegistrarRecorder/County Clerk (‘RRCC’) began enforcing
collection of Documentary Transfer Tax (‘DTT’) on
legal entity transfers where no document is recorded,
but which resulted a greater than 50% interest in control of the legal entity being transferred. The collection is made pursuant to Chapter 4.60 of the Los
Angeles County Code, and California Revenue and
Taxation Code (‘RTC’) sections 11911 and 11925,
and is consistent with case law which defines ‘realty
sold’ as having the same meaning as changes in ownership for property tax purposes in RTC section
64(c)(1). In addition, effective January 1, 2010, RTC
section 408 was amended to allow recorders to obtain
information pertaining to these transfers from the
Assessor. As a result, in an effort to collect the tax,
the RRCC will continue to identify, and send notices
for, properties where a change of ownership occurred
which transferred a greater than 50% controlling
interest in the legal entity thereby creating a liability
for the DTT.”
6 REV. & TAX. CODE §11911(a).
7 REV. & TAX. CODE §11925(b).
8 See REV. & TAX. CODE §11925.
9 Thrifty Corp. v. County of Los Angeles, 210 Cal. App.
3d 881, 884 (1989). The Documentary Stamp Tax
Act was repealed in 1976.
10 See 26 U.S.C. §§4361-4363, 4381-4384; 26 C.F.R.
§§47.4361-47.4363-1, 47.4381-47.4384-1.
11 L.A. COUNTY CODE §4.60.020; L.A. MUN. CODE
§21.9.2.
12 L.A. COUNTY CODE §4.60.080; L.A. MUN. CODE
§21.9.8.
13 A question remains whether the amended San
Francisco ordinance exceeds the authority granted by
the California Tax Code.
14 See REV. & TAX. CODE §11911(a).
15 Id.
16 Thrifty Corp. v. County of Los Angeles et al., 210
Cal. App. 3d 881 (1989).
17 McDonald’s Corp. v. Board of Supervisors, 63 Cal.
App. 4th 612 (1998).
18 Thrifty, 210 Cal. App. 3d at 884-85.
19 Id. at 886.
20 Id. at 885.
21 Id. at 886.
22 Id.
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Los Angeles Lawyer June 2012 13
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Page 14
by
Jeffrey
Huron
EXCLUSION
PRECLUSION
The best practice for dealing with
evidence exclusion is to make a
convincing offer of proof during trial
14 Los Angeles Lawyer June 2012
the efficient manner by which it can be presented to the jury, the facts that it will prove,
and the materiality of those facts.2
In addition to immediate benefits, a
proper offer of proof is required to preserve
the issue for appellate review (or for a motion
for a new trial). In the heat of trial, when
the court can make sweeping or significant
evidentiary rulings on the spot without
allowing for briefing or extended argument, many attorneys too often forget or
forego the opportunity to make a proper
offer of proof on the record, thus waiving
the issue on appeal.3 Or, some attorneys
make a cursory offer of proof, which also
waives the issue on appeal. Without a
detailed offer of proof, the reviewing court
is unable to appreciate what the evidence
was and what it would have shown or why
the evidence was significant.4
A proper offer of proof turns on two
fundamental principles. First, the offer of
proof must contain every key element necessary to allow the trial and appellate courts
to make an informed decision. Second, the
offer of proof should be sufficient to satisfy
the party’s burden of establishing error and
prejudice on appeal.
Making a Proper Offer of Proof
For purposes of illustration, suppose a plaintiff sues a defendant for fraudulent inducement in a sales contract. The plaintiff’s attorney has detailed sales and accounting records
Jeffrey Huron is the founder of Huron Law Group,
a litigation firm that specializes in business, real
estate, entertainment, and appellate litigation.
HADI FARAHANI
IN NEARLY EVERY TRIAL, the court
excludes some form of evidence—such as
documents, expert studies, or witness testimony—on any number of grounds, including relevance, insufficient foundation, or
simply that the evidence, although relevant,
would be too prejudicial, confusing, or timeconsuming to present to the jury.1 While it
is frustrating when the court excludes important evidence that took time and money to
discover, it is not enough just to object. Trial
lawyers must make a proper offer of proof.
An offer of proof may persuade the trial
court to admit the challenged evidence or, if
made after the evidence is excluded, reconsider its ruling. Whether made before or
after the court’s ruling on admissibility, an
offer of proof should walk the court, step by
step, through the nature of the evidence,
June2012_Master.qxp
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that show the defendant had falsified records
in connection with prior sales within the last
five years. The plan is to introduce the documents through the testimony of the prior
buyers. The plaintiff’s attorney anticipates
that the evidence will have a big impact with
the jury.
When the time to ask the first witness
about the damning sales records finally arrives,
defense counsel objects on the basis that the
evidence is irrelevant, prejudicial, and unduly
time-consuming—a standard objection pursuant to Evidence Code Section 352. At this
point, the plaintiff’s attorney has the option
of making an offer of proof before or after the
court rules on the defendant’s objection. If it
appears that the court will likely sustain the
objection, the attorney should choose the former; it is always more difficult to convince a
court to change its ruling once it is made.
Also, if the offer of proof is not made before
the ruling on the objection, the court may
not fully appreciate the relevance of the proffered evidence based on the objection alone,
since it may be the first time the court is examining the particular exhibit or considering its
specific evidentiary value.
A trial attorney should not assume that the
court understands the issue even if the court
has already dealt with the evidence in previous discovery motions or motions in limine.
First, the evidence was likely presented in a
different form (as part of a broader group or
category of documents) or in a different context (relating to discoverability, in which evidence need only be reasonably calculated to
lead to admissible evidence5). In any case,
judges have extremely crowded dockets, and
it rarely hurts to refresh their memories on
important issues.
There are several methods for making an
offer of proof, regardless of when it is made.
The most common methods are through testimony elicited from witnesses, a trial brief,
a motion in limine, an expert witness disclosure statement, or an oral or written offer of
proof at the time of the objection. No particular form is required. However, if it is not
part of the record, it is of no value for purposes of an appeal. When introducing material evidence likely to be challenged, the best
approach is to prepare a written brief in
advance of trial that includes all the elements
needed for a proper offer of proof and
becomes part of the record when filed.
A proper offer of proof must inform the
trial court of the “substance, purpose and relevance” of the evidence at issue pursuant to
Evidence Code Section 354. Courts of appeal
routinely affirm the exclusion of evidence
due to a party’s failure to satisfy each of these
factors.6 For example, in Bowman v. Wyatt,7
the defendant made an offer of proof that his
expert would opine on the reaction times for
16 Los Angeles Lawyer June 2012
motorcycle riders based upon research and
data from a National Highway Traffic Safety
Administration report. The appellate court
deemed this offer insufficient because it failed
to establish that:
(1) [P]ercipient witnesses testified to the
distance between [the plaintiff] and
[the defendant] when [the defendant]
first pulled into the intersection, and (2)
the available research established that
a reasonable motorcyclist traveling at
the speed [the plaintiff] was traveling,
at the distance [the plaintiff] was from
[the defendant], under the conditions
present immediately before the accident, would have been able to avoid
hitting [the defendant’s] truck.8
To withstand scrutiny on appeal, an offer
of proof that describes the subject matter of
the evidence alone is not enough. It must be
precise and detailed, not only by specifying the
evidence to be offered but also by explaining
how it relates to other relevant evidence and
will support the claim or defense.9
Attorneys sometimes overlook the crucial task of describing the actual evidence—
the documents, objects, or testimony that
they would like admitted—and instead focus
on the facts (e.g., the defendant was not negligent) that the evidence will show.10 A proper
offer requires that the attorney present the
“testimony of specific witnesses, writings,
material objects, or other things presented to
the senses, to be introduced to prove the existence or nonexistence of a fact in issue.”11
In the hypothetical fraud trial, a proper
offer of proof for the evidence of prior fraudulent misconduct would include the following. First, it would describe in detail the
nature of the accounting and sales records, the
content of the anticipated testimony of the
prior purchasers, and the manner by which
this evidence shows that the defendant committed fraud in the prior sales transactions.
Then, the offer of proof would parallel the
conduct illustrated by the proffered evidence
with the acts at issue in the present case,
showing a pattern and practice of fraudulent
behavior. Finally, the offer of proof would
explain how the evidence could be proffered
without being unduly time consuming. For
instance, while the accounting records may be
voluminous, perhaps only the first few pages
are needed to present the necessary relevant
evidence, or the witness can use a compilation
that summarizes these records.12
With any offer of proof, the essential
objective is to clearly and completely package
the evidentiary issue so that the trial court,
and later the court of appeal, can make a
determination of the value of the evidence in
the context of the case as a whole. While
preparing a first-rate offer of proof can be
time-consuming, it presents an opportunity to
succinctly make the best case for the evidence’s admission to the trial court and preserves the trial court’s potential exclusionary
ruling as a viable appealable issue.
Although an offer of proof is always prudent, in a few instances one is not required.
First, an offer of proof is not required if the
court’s prior rulings make compliance futile.13
Second, it is not required if the evidence is
sought during cross-examination.14
The futility exception is narrow and generally limited to situations in which the court
expressly limits the issues for trial or refuses
to accept a certain type or category of evidence.15 This exception might arise when the
court preliminarily refuses to admit extrinsic
evidence to interpret a contract16 or to award
lost profits. In Castaneda v. Bornstein,17 for
example, the plaintiff appealed from the trial
court’s refusal to allow testimony from her
medical expert as to the legal causation of her
injuries because the expert was not designated as a causation expert. The defendant
argued that the plaintiff waived the issue by
failing to make an offer of proof “as to the
questions she would have asked [her expert]
and what his answers would have been.”18
The appeals court rejected the defense’s waiver
argument because the trial court had made a
ruling that an entire category of evidence—
expert testimony regarding causation by a
witness not designated as a “causation”
expert—was inadmissible.19 It would have
been inefficient and unduly time-consuming
to demand that the plaintiff make an offer of
proof for every specific piece of evidence she
wanted admitted when the trial court had
made clear that it would not have admitted
the evidence in any event.
The second exception relates to evidence
elicited on cross-examination. Because the
nature of cross-examination is “often exploratory,” it would be unreasonable to
expect the questioning attorney to know the
precise nature and value of the evidence being
sought.20 For example, in the hypothetical
fraud trial, if the plaintiff’s attorney sought to
introduce testimony from the defendant
through cross instead of direct examination,
he or she may not have been required to
make an offer of proof on the defendant’s
objection in order to preserve the record for
appeal. However, the exception for crossexamination is limited. If the questioning
exceeds the scope of the direct testimony, an
offer of proof indicating what the questioning would show is required.21 The exception
also does not apply if the question or line of
inquiry is ambiguous. If it is clear that the trial
judge does not understand the relevance of the
question on cross-examination, then trial
counsel must explain the relevance of the
question and information sought, otherwise
the issue is waived.22
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Because of the limited nature of these
exceptions, trial counsel should not assume
that an exception to an offer of proof applies,
especially if there is any chance the record is
unclear about the purpose of questions not
permitted by the trial court on cross-examination. In an abundance of caution, it is
always advisable to make an offer of proof
and ensure that it is on the record.
Obtaining Reversal on the Basis of
Excluded Evidence
The exclusion of key evidence can be challenged through a motion for new trial or an
appeal. To prevail on either based on evidence exclusion is a difficult but not impossible task. The duty of trial counsel is to secure every potential opportunity for reversal
and, at the same time, to work tirelessly to
win the trial.
To prevail on a motion for a new trial, a
party must show that there was an “[i]rregularity in the proceedings of the court…or any
order of the court or abuse of discretion by
which either party was prevented from having a fair trial.”23 “Irregularity” is construed
broadly and includes erroneous orders that
exclude materially relevant evidence.24 The
standards for the granting of a new trial are
largely similar to those on appeal.
The other, or additional, option is to file
an appeal. In order for a court of appeal to
reverse the trial court’s decision, a party must
successfully establish that the trial court erred
in excluding the evidence and that such error
resulted in a miscarriage of justice.25 Trial
courts have wide discretion to decide the relevance and admissibility of proffered evidence.26 Appellate courts give trial courts
considerable deference and generally affirm
their rulings as long as the trial courts’ decisions are based on reasoned judgment and
comply with the law. Therefore, appellate
courts only find that trial courts have erred
on rulings regarding the exclusion of evidence if they have abused their discretion.27
In considering appeals of evidentiary
orders, courts of appeal may find an abuse of
discretion when trial courts have excluded evidence based on a Section 352 objection that
relates to a critical issue, directly supports an
inference relevant to that issue, and there is
no other evidence that directly supports the
same inference.28
For example, in Kelly v. New West Federal
Savings,29 the court of appeal found that the
trial court abused its discretion in excluding
certain key evidence prior to trial on the basis
of several motions in limine. In that case,
the plaintiff claimed that she had been injured
when stepping off an elevator in a hospital
and sued the hospital and others for damages.
Because the plaintiff had initially misidentified the elevator on which she was riding at
the time of the accident, the trial court
excluded evidence that any other elevators
malfunctioned. The court of appeal held it
was error “to compel a witness or a party to
conform his or her trial testimony to a preconceived factual scenario based on testimony given during pretrial discovery.”30
Appellate courts have reversed exclusionary orders affecting many types of evidence, including expert testimony. 31 For
example, in People ex rel. Department of
Transportation v. Clauser/Wells Partnership,32
the trial court excluded key expert testimony
thus lacked the requisite mental capacity. At
trial, the court precluded the defense’s expert
psychiatrist from testifying that the plaintiff
was not disabled. The expert had reviewed the
same records as plaintiff’s expert, read the
plaintiff’s deposition transcripts, and watched
her videotaped deposition, but had failed to
meet with her personally.
The trial court excluded the testimony
based on a lack of proper foundation. Reversing, the court of appeal held the defense
expert’s failure to personally examine the
plaintiff went to the weight—not the admis-
regarding the valuation of a business’s inventory that was directly relevant to damages.
The trial court excluded the evidence because
of a lack of foundation—the expert could
not identify the individuals from which he had
obtained facts upon which he based his opinion. The appellate court reasoned that such
deficiencies went to the weight of the evidence and could have been probed on crossexamination, but they did not warrant wholesale exclusion.33
A finding of an abuse of discretion does
not end of the inquiry; the error must also
have been prejudicial to the appealing party.34
This is sometimes referred to as a “miscarriage
of justice.”35 Prejudice or a miscarriage of justice occurs when it is reasonably probable that
had the trial court not committed the error,
the appellant could have obtained a more
favorable result.36 An appeal without a strong
showing of prejudice is unlikely to succeed.37
However, some courts of appeal have found
prejudicial error in certain circumstances.
In Bell v. Mason,38 the plaintiff sold her
home to the defendants and then sued for
fraud, claiming that the defendants induced
her to sell her home to them despite knowing that she was intellectually disabled and
sibility—of the expert’s testimony.39 The court
in Bell went on to conclude that the exclusion
was prejudicial. The exclusion of the defense
expert’s opinion that plaintiff had normal
intelligence “eviscerated the defense case and
left the jury with uncontroverted expert testimony by [the plaintiff’s expert] that [the
plaintiff] is mentally retarded.”40 Accordingly,
the court of appeal reversed the judgment.
Similarly, the appeals court in In re Estate
of Thottam41 found prejudicial error because
the exclusion of evidence “eviscerated” the
appellant’s case.42 The case concerned a dispute between siblings over the distribution of
their mother’s estate. During the mediation,
the parties created a chart dividing their
mother’s assets. At trial, one of the siblings
sought to introduce the chart as evidence of
the parties’ settlement. The other two siblings
objected to the admissibility of the chart on
the basis that it was a confidential mediation
communication pursuant to Evidence Code
Section 1119, and the trial court sustained the
objection, excluding the chart from trial.
The appeals court held that the trial court
erred in excluding evidence of the chart and
its preparation. The appellant’s case for breach
of contract and promissory estoppel was
Los Angeles Lawyer June 2012 17
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based upon the existence of a settlement
agreement reached through mediation. The
chart was signed by the parties and allegedly
memorialized their settlement agreement and
was thus admissible pursuant to Section
1123.43 The court of appeals reasoned that
had the chart been admitted, the “court could
have found that it corroborated [appellant’s]
version of events, and thus may have found
his testimony regarding the existence of [a settlement] agreement to be credible.”44 For
these reasons, the Thottam court concluded
that the exclusion of the chart “eviscerated”
appellant’s case because, without it, he could
not prove the existence of an agreement or the
respondents’ promises.
As shown by the Bell and Thottam cases,
courts of appeal find prejudicial error if the trial
court improperly excludes a significant piece
of evidence supporting an appellant’s case.
While difficult, a reversal on appeal is not
impossible to obtain. Trial attorneys should not
expect a successful appeal based on the exclusion of collateral evidence and must always be
able to show that, but for the evidence exclusion, they could probably have obtained a
more favorable result. An evaluation of the
chances for a successful appeal based on the
exclusion of evidence is best done at the end
of trial, when all the dust has settled.
The best practice for dealing with evi-
18 Los Angeles Lawyer June 2012
dence exclusion is to make a convincing offer
of proof during trial. Be sure to have a
detailed, written offer of proof prepared for
any material evidence that is likely to be challenged. It may persuade the trial court to
admit the evidence in the first instance. If
not, it will preserve an appeal. Either way, it
constitutes the best practice to ensure that
everything has been done to protect the client
from an adverse outcome.
■
1 EVID.
CODE §352.
CODE §354(a) (“A verdict or finding shall not
be set aside, nor shall the judgment or decision based
thereon be reversed, by reason of the erroneous exclusion of evidence unless…(a) The substance, purpose,
and relevance of the excluded evidence was made
known to the court by the questions asked, an offer of
proof, or by any other means….”).
3 Pugh v. See’s Candies, Inc., 203 Cal. App. 3d 743, 758
(1988) (Failure to make an adequate offer of proof precludes consideration of the alleged error on appeal.).
4 People v. Schmies, 44 Cal. App. 4th 38, 53 (1996)
(“An offer of proof should give the trial court an
opportunity to change or clarify its ruling and in the
event of appeal would provide the reviewing court
with the means of determining error and assessing
prejudice.”).
5 Norton v. Ein, 24 Cal. App. 4th 1750, 1761 (1994)
(“Information which is not directly admissible in the
action is nevertheless discoverable if it is reasonably calculated to lead to the discovery of admissible evidence.”).
6 Mangano v. Verity, Inc. 179 Cal. App. 4th 217, 221
2 EVID.
(2009) (The plaintiff failed to make known purpose and
relevance of proffered evidence.); People v. Carlin,
150 Cal. App. 4th 322, 334 (2007) (Trial court may
reject a general or vague offer of proof.).
7 Bowman v. Wyatt, 186 Cal. App. 4th 286 (2010).
8 Id. at 329.
9 But see Gordon v. Nissan Motor Co., Ltd., 170 Cal.
App. 4th 1103, 1114 (2009) (holding that plaintiff’s
offer of proof based on plaintiff’s expert witness statement that included proposed testimony was sufficient).
10 Carlin, 150 Cal. App. 4th at 334 (2007) (A proper
offer of proof “must ‘set forth the actual evidence to
be produced and not merely the facts or issues to be
addressed and argued.’”) (internal citation omitted).
11 United Sav. & Loan Ass’n v. Reeder Dev. Corp., 57
Cal. App. 3d 282, 294 (1976), disapproved on other
grounds in Utility Consumers’ Action Network v.
AT&T Broadband of So. Cal., Inc, 135 Cal. App. 4th
1023, 1039 (2006).
12 See Andrews v. City & Cty. of S.F., 205 Cal. App. 3d
938, 947-48 (1988) (It was error for court to exclude evidence of other acts of misconduct without asking attorney how many incidents he intended to offer or what the
nature of proof would be as to each incident.).
13 EVID. CODE §354(b).
14 EVID. CODE §354(c).
15 In re Eric H., 54 Cal. App. 4th 955, 962 (1997).
16 Pacific Gas & Elec. Co. v. G. W. Thomas Drayage
& Rigging Co., 69 Cal. 2d 33, 36 n.1 (1968) (Trial
court repeatedly ruled that it would not admit extrinsic evidence to interpret contract.).
17 Castaneda v. Bornstein, 36 Cal. App. 4th 1818
(1995), disapproved on other grounds in Bonds v.
Roy, 20 Cal. 4th 140, 147-49 (1999).
18 Id. at 1826.
(Continued on page 26)
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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 21.
by Kathleen Mulligan and Albert Sheen
Faster
and Fairer
Federal employees may choose streamlined
procedures to resolve complaints of
employment discrimination
EMPLOYMENT LAW PRACTITIONERS
know that the Equal Employment Opportunity Commission (EEOC) is the federal
agency charged with investigating and prosecuting employment discrimination cases
against state, local, and private employers.1
What they may not know is that the EEOC
also performs an adjudicatory role for federal
employees who bring antidiscrimination
claims against their employing agencies.
Almost 2.8 million federal employees, along
with applicants for federal employment and
former employees, may bring discrimination
claims before the EEOC.2 Every year, its
administrative judges (AJs) decide or settle
thousands of federal sector discrimination
claims,3 and the commission prosecutors file
a few hundred cases in federal courts. Except
for punitive damages, the substantive antidis-
crimination law and the remedies applicable
in EEOC cases are virtually identical to those
in federal court, but in EEOC cases, the
administrative process is quite different.
Federal antidiscrimination statutes protect
against discrimination on the basis of race,
color, religion, sex, pregnancy, national origin,
age (40 or older), disability, or genetic information. The law also protects against retaliation for opposition to employment discrimination, filing a complaint of discrimination, or
participating in the EEO complaint process
as a witness.4 The EEOC’s AJs are authorized
to award to a prevailing complainant full equitable relief (back pay, lost wages, and benefits),
compensatory damages up to the limit of
$300,000 per claim, and attorney’s fees.5
In 2009, federal agencies paid over $50
million to successful complainants.6 The
Kathleen Mulligan is an administrative judge at the Los Angeles district office of the U.S. Equal
Employment Opportunity Commission and is president of the EEOC Administrative Judges Association.
Albert Sheen received his J.D. from Loyola Law School in May. This article does not reflect the official
positions of the EEOC.
Los Angeles Lawyer June 2012 19
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THE POWERS OF
ADMINISTRATIVE JUDGES
Administrative judges (AJs) have the following powers:
• To dismiss all or part of the complaint on the same bases that the agency could prior
to investigating,1 on his or her own motion or on motion of the respondent agency.2
• To reinstate issues previously dismissed by the agency, which may be returned to
the agency for investigation, or may be subject to discovery by the parties, as determined by the judge.
• To order the production of documents and attendance of witnesses.
• To sanction noncomplying parties.
• To regulate discovery prior to the hearing, including granting motions to compel and
otherwise enforcing discovery rights and deterring abuse.3
• To conduct settlement efforts prior to hearing and to issue, sua sponte after notice
to the parties, a decision without a hearing if there are no genuine issues of material fact.4
• To rule on a party’s motion for decision without hearing.
• To conduct prehearing conferences and issue prehearing orders that approve witnesses and exhibits.
• To swear witnesses and conduct hearings.
• To determine violations of the statutes enforced by the EEOC.
• To award equitable remedies and compensatory damages for victims of discrimination, as well as attorney’s fees and costs.5
The two provisions in Equal Employment Opportunity Commission (EEOC) procedures that differ from most state and federal court proceedings are that 1) hearings
are deemed “part of the investigative process and thus closed to the public,” and 2)
AJs have responsibility for overseeing the development of an adequate record.6
Unlike an AJ, who cannot authorize subpoenas for information or testimony from
third parties, a federal district court judge can issue subpoenas. AJs regularly make
findings of fact and conclusions of law after hearing, which a district judge normally
does not, since most federal court plaintiffs elect jury trials. An attorney may consider
an AJ’s written and reasoned decision, with findings of fact based on credibility
determinations, to be an asset, because the AJ’s decision offers an explanation,
while jury forms merely provide a decision.
The Administrative Procedure Act (APA) does not control EEOC hearings. Therefore,
EEOC AJs cannot issue subpoenas, and litigants are not assured of judicial independence. However, the American Bar Association, the National Association of Women
Judges, and the National Lawyers Guild have all recently urged the EEOC to use its existing statutory authority to apply the formal hearing sections of the APA to EEOC hearings.7—K.M. & A.S.
1 29
C.F.R. §1614.109(a)–(b).
C.F.R. §1614.109(b).
3 29 C.F.R. §1614.109(b).
4 29 C.F.R. §1614.109(g).
5 See 42 U.S.C. §§1981a(a)(1), 2000e-5(g)(1),(k)(2006) (damages and attorney’s fees in Title VII
civil actions). See generally 29 C.F.R. §1614.501 (remedies and relief). However, punitive damages
are not available against the federal government. See 42 U.S.C. §§1981a(a)(1), (b)(1).
6 29 C.F.R. §1614.109(g); see also 64 FED. REG. 37657 (July 12, 1999).
7 See ABA House of Delegates Res. 124 (Aug. 8, 2011) (“RESOLVED, That the American Bar
Association urges the President, Congress, and the EEOC to adopt measures to provide that
employment discrimination hearings conducted by the EEOC be subject to the formal
adjudication requirements of the Administrative Procedure Act” (5 U.S.C. §§554, 556, 557)).
The National Association of Women Judges adopted a similar resolution on Mar. 10, 2012 (see
http://www.nawj.org/midyear_2012.asp), as did the National Lawyers Guild on Oct. 15, 2011.
The EEOC has been authorized to appoint ALJs since 1978. 42 U.S.C. §2000e-4(a)(2) (1978).
2 29
20 Los Angeles Lawyer June 2012
EEOC’s AJs also decide class action cases. In
2007 it was publicly reported that an EEOC
AJ approved a $61 million class action settlement in which the U.S. Postal Service resolved
disability discrimination claims of over 7,500
current and former postal workers, of which
$53 million went directly to the class members.7
Another publicly reported case was resolved in
2006 by a $9 million settlement paid to female
employees of the U.S. Mint in Denver, who
alleged widespread sexually discriminatory
employment practices as well as retaliation.8
The settlement also provided attorney’s fees,
injunctive relief, and the appointment of an
independent monitor at the Denver facility.
Most EEOC cases, however, are never
made public. The investigation and administrative hearings process remain confidential
unless and until a case is appealed and decided
by the commissioners, five presidential
appointees from both political parties. Over 95
percent of appeals from AJ decisions are
affirmed.9
Counseling
The federal sector EEO complaint process is
greatly accelerated in comparison to that of the
private sector, in which employees generally
have up to 300 days from the date of the discriminatory action to file a claim.10 A federal
employee has only 45 days from a discriminatory act to begin the administrative process,
or the claim is subject to dismissal for untimeliness, absent special circumstances.11 The
process is begun by contacting an EEO counselor at the agency12 to elect counseling or, if
offered, ADR.13 Counseling is essentially an
informal effort to obtain from management the
most basic information about the disputed
employment action and convey the information to the employee, so that any dispute based
on misunderstanding may be resolved quickly
and easily.
If the claim is not resolved in counseling,
the individual may then file a complaint
within 15 days of receiving notice from the
EEO counselor that the counseling process has
not succeeded. The notice provides information about how to file the complaint.14 The
complaint must be signed, identify the
aggrieved individual and the agency, describe
generally the acts giving rise to the complaint, and provide contact information.15
Upon receipt of the complaint, the agency
may dismiss all or part of the case for procedural reasons, including untimely filing,
failure to state a claim, or lack of jurisdiction
because the employee has elected a different
remedy.16 The employee may object to, and
the AJ later reverse, the dismissal.
The Agency’s Investigation
If the complaint is not entirely dismissed, the
agency will conduct an investigation that
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MCLE Test No. 215
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.
MCLE Answer Sheet #215
FASTER AND FAIRER
Name
Law Firm/Organization
1. Federal employees have the same substantive rights
under the major federal employment discrimination
statutes as state, local, and private employees.
True.
False.
11. The agency that employs the employee who alleges
unlawful discrimination is responsible for investigating that claim.
True.
False.
Address
2. The EEOC investigates both the discrimination claims
of federal employees against their employing agencies and discrimination claims against state, local,
and private employers.
True.
False.
12. The agency’s internal investigation can take up to
180 days before the employee can elect to go to federal
court or administrative hearing.
True.
False.
Phone
13. Information about EEOC administrative judge decisions is public and EEOC administrative hearings are
open to the public.
True.
False.
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. EEOC administrative judges (AJs) decide claims of discrimination brought by federal employees, applicants
for employment, and former employees.
True.
False.
4. Federal employees choose the EEOC administrative hearings process more than 10 times more frequently than federal court.
True.
False.
5. Except for the availability of punitive damages,
whether in federal court or before an EEOC administrative judge, employees of federal agencies have the
same remedies for proven violations of federal antidiscrimination statutes, including equitable remedies
and compensatory damages up to $300,000 per claim.
True.
False.
6. As prevailing parties in discrimination cases before
the EEOC, federal employees may also recover reasonable attorney’s fees, based on prevailing rates for
similarly experienced lawyers in the same community,
as well as costs, except for ADEA claims.
True.
False.
7. Administrative judges of the EEOC resolve very few
cases each year compared to the number of cases
EEOC files in federal court against state, local, and
private employers.
True.
False.
8. Administrative prerequisites must generally be satisfied before initiating any federal court or administrative hearing process.
True.
False.
9. Federal employees generally have up to 300 days to
initiate the EEO process.
True.
False.
10. The EEO process must generally be initiated by
federal employees within 45 days of the alleged discriminatory act.
True.
False.
14. The EEOC administrative hearings process is
designed to be faster and more flexible than federal
court proceedings, but otherwise generally follow the
FRCP.
True.
False.
15. EEOC has not authorized issuance of subpoenas in
connection with federal employee discrimination cases.
True.
False.
16. An EEOC administrative judge can dismiss all or part
of a complaint for failure to state a claim or failure to
exhaust administrative prerequisites.
True.
False.
17. EEOC AJs have no authority to regulate discovery
prior to the hearing, grant motions to compel, or otherwise enforce discovery rights or sanction spoliation
of evidence.
True.
False.
City
State/Zip
E-mail
State Bar #
INSTRUCTIONS FOR OBTAINING MCLE CREDITS
1. Study the MCLE article in this issue.
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
18. EEOC AJs may grant motions for decision without
a hearing under FRCP standards if there are no genuine
issues of material fact, even if the record is incomplete, and do not conduct prehearing conferences or
issue prehearing orders to approve witnesses and
exhibits.
True.
False.
4.
■ True
■ False
5.
■ True
■ False
6.
■ True
■ False
7.
■ True
■ False
8.
■ True
■ False
9.
■ True
■ False
10.
■ True
■ False
19. Appeal from an adverse AJ decision is taken to the
commission in Washington, D.C.
True.
False.
11.
■ True
■ False
12.
■ True
■ False
13.
■ True
■ False
20. Following an adverse decision by the commission,
the employing agency may appeal to federal circuit
court.
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 June 2012 21
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should be finished within 180 days from the
date of filing.17 The EEOC’s Management
Directive 110, Federal Sector Complaint
Processing Manual, describes the minimal
qualifications of an investigator, who may
be an employee or a contractor, and the
proper investigative methodology to use
depending on the issue and the basis raised.18
Investigators are rarely attorneys and rarely
have advanced training in employment discrimination. Investigations may be supplemented with discovery later if the employee
requests a hearing or goes to federal court.
The employee can ask for a hearing if
more than 180 days pass without completion
of the investigation.19 The agency should
issue a notice after completing an investigation advising the employee that he or she
may either 1) request an administrative hearing before an EEOC AJ within 30 days of
receipt of the notice, or 2) ask the agency to
issue a decision as to whether the discrimination occurred.20 If the employee asks the
agency to issue a decision and no discrimination is found, or if the employee disagrees
with some part of the decision, the employee
can appeal the decision to the EEOC or
challenge it in federal district court. An
employee also has the right to file a federal
lawsuit anytime after the 180-day investigation period has passed, even if the complaint is pending an agency decision or a
hearing before an EEOC AJ. 21 Once an
employee files a lawsuit in federal court,
however, the EEOC will close the complaint
and take no further action.22
The vast majority of federal employees
choose the administrative route over federal
court. For the 12 months ending September
30, 2010, the United States was a defendant
in only 653 employment civil rights actions
commenced in federal district courts.23 In
comparison, federal employees in fiscal year
2009 completed EEO counseling in 39,038
cases, filed 16,947 formal EEO complaints,
and requested 7,277 EEOC hearings before an
AJ.24 In the EEOC hearing process, the respondent agencies are virtually always represented
by counsel, while the complainant employees
often appear pro se or are represented by a
union steward or other nonlawyer.
The Prehearing
After an employee requests an administrative
hearing,25 the first order sent by the EEOC is
the Acknowledgment and Order, which summarizes the procedures to be used before and
after the hearing. The procedures generally
mirror the prehearing and discovery procedures in the Federal Rules of Civil Procedure,26
except that the process is intended to be quicker
and simpler. The discovery standard is slightly
more focused (discovery must seek evidence
that is relevant and not repetitious), and the dis24 Los Angeles Lawyer June 2012
covery period is typically only 90 days.27
Extensions may be granted if the parties have
made diligent efforts to conduct discovery,
but the procedure is designed to expedite resolution. Without the AJ’s approval, parties
can serve only one set each of interrogatories,
document requests, or requests for admission,
with no more than 30 per set.28
EEOC AJs must ensure that the record is
complete before issuing a decision. Especially
if the complainant is unrepresented, the AJ
must review the claims, defenses, investigation
report, and any discovery responses to see that
the record contains all the necessary information. The AJ may issue an order to either
or both parties to produce evidence necessary
to cure any deficiencies in the record. 29
Remedies for discovery abuse include orders
granting motions to compel, and if necessary, appropriate sanctions.
EEOC AJs are also authorized by regulation to conduct settlement conferences in
cases assigned to them.30 Alternatively, the AJ
may refer the parties to another judge or to
an outside ADR program.31
As in federal or state court, EEOC hearing procedures provide for a “decision without a hearing,” analogous to summary judgment, if no genuine issue exists.32 Parties
may move for a decision without a hearing up
to 15 days before the scheduled hearing date,
or sooner if the AJ so requires. An AJ may
also determine sua sponte to issue a decision
without a hearing after providing the parties
with due notice. Both parties have 15 days to
respond and 5 days to file a reply,33 including a statement of undisputed material facts.34
AJs may grant extensions.
An AJ is precluded from issuing a decision
without holding a hearing unless he or she
ensures that the party opposing the ruling is
given 1) adequate notice of the proposal to
issue a decision without a hearing, 2) a comprehensive statement of the allegedly undisputed material facts, 3) the opportunity to
respond to such a statement, and 4) the
chance to engage in discovery before responding, if necessary.35 In EEOC administrative
cases, the AJ determines the amount of discovery necessary to properly respond to any
motion for a decision without a hearing.36
If the case is not dismissed and summary
judgment is not issued, the AJ will conduct a
prehearing conference to narrow and define
the issues, explore settlement, and approve
witnesses and exhibits. An order confirming
the ruling will be issued to both parties. An
AJ must assure the adequacy of the record,
especially if a party is not represented by
counsel. If a party is unrepresented and unfamiliar with what type of admissible evidence
is relevant to the claim brought, the AJ is
responsible for assuring that the investigation
has at least obtained the minimal amount of
reliable and relevant evidence so that a competent decision may be made.
Sanctions
Failure of either party to comply with an
AJ’s orders can have serious consequences. An
AJ can issue a Show Cause Order directing
either party to explain its noncompliance
and show good cause why it should not be
sanctioned. Possible sanctions include striking a claim, a defense, or evidence; drawing
an adverse inference about evidence; or
imposing costs.37
Practitioners should also note that EEOC
standards for sanctions for spoliation of evidence have caused somewhat more frequent
issuance of sanctions than in federal court
(although Zubulake and succeeding cases
have certainly brought the issue to the fore in
federal district courts recently).38 While parties in federal court have traditionally faced
sanctions for destruction of evidence only
when 1) the parties knew or reasonably
should have known that litigation was pending and 2) destroyed evidence intentionally,
EEOC regulations39 require employers to
preserve—without regard to pendency of litigation—all employment records related to an
employment action for a year from creation
and preserve records related to an EEO case
from the beginning of the agency complaint
process until the case is closed. Sanctions
may include entry of default judgment or
dismissal of a complaint.
Hearings
EEOC hearings follow general principles of
administrative law. The hearings have no
juries, employ somewhat relaxed rules of evidence and procedure, and are much faster
and simpler than civil actions in federal or state
court. EEOC hearings are closed to the public, but generally the presentation of evidence
and witnesses follows standard trial procedure.
The parties may offer exhibits and conduct
direct and cross-examination of witnesses.
Unlike federal or state court trials, hearsay evidence may be admissible if the AJ determines
it to be reliable, relevant, and not repetitive.40
Hearings generally are not bifurcated.
AJs strive to issue decisions within 180
days of receipt of the complaint file from the
employee’s federal agency.41 The AJ’s decision
on motions or after the hearing has binding
force if the agency does not appeal to the commission.42 The agency has 40 days from receipt
of the AJ’s decision to issue its final order
informing the employee whether the agency
will either appeal or accept the AJ decision and
grant the relief ordered.43 If the agency fails to
issue a final order within 40 days, the AJ’s
decision becomes the agency’s final action in
the complaint, and there is no further appeal
for the agency. However, the employee may
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appeal an adverse AJ decision which has
become final because the agency failed to issue
any decision within 40 days of that decision.44
Class Cases
Administrative judges also certify and decide
class actions. The grounds for certification of
an EEOC class complaint are similar to those
in federal Rule 23 class actions, requiring
numerosity, commonality, typicality, and adequacy of representation.45 However, unlike a
Rule 23 class action in federal court, an EEOC
class complaint need only satisfy these four
requirements, which are analogous to Rule
23(a)(1)–(4), and not the separate requirements under Rule 23(b). Thus the holding in
Wal-Mart Stores, Inc. v. Dukes46 interpreting
the requirements of Rule 23(b) does not apply
to the language of EEOC regulatory requirements. Absent a reported commission or federal court case holding that EEOC procedures
do not afford the minimum constitutional
protections for defendant employers required
as a matter of due process, Rule 23(b) requirements as set forth in Dukes would not be
expected to bar EEOC class actions.
Employees who seek to file a class complaint must still go through the precomplaint
EEO counseling process. At any reasonable
time when it becomes clear that there are
class implications in the complaint, a complainant may move for class certification.47 A
potential class action case is not investigated
by the agency but sent to the EEOC so that
an AJ may develop the record through discovery and if necessary hold an evidentiary
hearing.48 The AJ may approve class certification, reject class certification and return
the case for individual investigation, or dismiss the individual complaint.49 If an AJ
accepts a class complaint, the agency must
notify all class members of the complaint’s
acceptance, and all individual claims are subsumed into the class complaint. No opt-out
procedure is available.50 However, an agency
may appeal the certification (and a complainant, the dismissal) of a class complaint
to the commission or file a federal civil
action.51 The agency has 60 days to accept the
AJ decision or appeal to the commission.52 If
the agency fails to issue its decision within 60
days, the AJ’s decision becomes final.53
Whether the AJ certification becomes final
because it is not appealed to the commission
or because the commission affirms the AJ
decision on appeal, the case then proceeds to
discovery prehearing motions. If not dismissed, settled, or subject to summary judgment, the class case goes to hearing, usually
before the same AJ who certified the case. The
AJ may modify the certification ruling, create
subclasses, or decertify the class based on
new evidence.54 Settlements of class cases
are subject to fairness hearings. If discrimi-
nation is found and a class member believes
he or she is entitled to relief, the class member may file a written claim with the agency
within 30 days of receipt of the notification
decision. The AJ will adjudicate any disputed
claims, and an agency must show by clear and
convincing evidence that a class member is not
entitled to relief.55
Remedies and Appeals
Although punitive damages are not available
in claims brought against the federal government,56 the other remedies available to
prevailing private sector employees are generally available. AJs may order compensatory
damages, injunctive relief, attorney’s fees,
and costs.57 AJs can also order a remedy
familiar to NLRB practitioners: an order to
the agency to post in the workplace a notice
that the agency has been found to have violated a federal antidiscrimination statute.58
Either or both parties may appeal an agency’s final order (including a final order dismissing a complaint) to the commission.59
Likewise, if the agency disagrees with any part
of the AJ’s decision, it must appeal to the
commission. An employee must file the appeal
no later than 30 days after receipt of the final
order.60 If either party does not agree with the
commission’s decision on the appeal, reconsideration may be requested within 30 days,
but is granted only if the prior decision is
based on a mistake of fact or law, or will have
a substantial impact on the policies, practices, or operations of the agency.61
Once the commission decides a request
for reconsideration, the decision is final for the
agency, and there is no further appeal to any
federal court. However, for the employee, the
right to file in federal court still remains,
although after losing at the EEOC, the
employee faces the likelihood of dispositive
motions based on the record before the EEOC.
For millions of federal employees, former
employees, or applicants for employment, the
EEOC administrative process provides a
quicker and easier means of deciding the merits of a claim and obtaining relief. The EEOC
federal sector hearings process is described on
the EEOC Web site,62 which has a searchable
database of recent federal sector appellate
decisions63 as well as summaries of the federal
statutes enforced by the EEOC and applicable federal regulations.64 Employment law
attorneys should review these procedures and
cases before appearing before an EEOC AJ. ■
1 See Equal Pay Act of 1963, 29 U.S.C. §206(d) (as
amended); Age Discrimination in Employment Act
of 1967, 29 U.S.C. §§621 et seq. (state and local
employers). See also 42 U.S.C. §2000e-5; 29 U.S.C.
§630(b) (state and local governments); 29 C.F.R.
§1620.1(a)(2) (state and local government employees); 42 U.S.C. §2000e-16 (Title VII, ADA Amendments
Act of 2008). See also 29 U.S.C. §629; Reorganization
Plan No. 1 of 1978, 5 U.S.C. App. 1, 43 Fed. Reg.
19807, 92 Stat. 3781; see also EEOC Laws & Guidance, http://www.eeoc.gov/laws/index.cfm.
2 EEOC, ANNUAL REPORT ON THE FEDERAL WORKFORCE: FISCAL YEAR 2009 iii (2010) [hereinafter EEOC
ANNUAL REPORT].
3 In 2009, 15,825 individuals filed 16,947 complaints
alleging employment discrimination against the federal
government. EEOC ANNUAL REPORT, supra note 2, at
v. Also in 2009, EEOC AJs received 7,277 hearing
requests. EEOC, Fiscal Year 2012 Congressional Budget
Justification 26 (2011). In contrast, the EEOC filed only
271 lawsuits against private sector employers in 2010.
EEOC Litigation Statistics, FY 1997 through FY 2011,
http://www.eeoc.gov/eeoc/statistics/enforcement
/litigation.cfm.
4 See note 1, supra. Although other federal laws, regulations, and Executive Orders prohibit discrimination
based on sexual orientation, marital status, parental status, and political affiliation, the EEOC does not enforce
them. See Overview of Federal Sector Complaint Process, http://www.eeoc.gov/federal/fed_employees
/complaint_overview.cfm; EEOC Equal Employment
Opportunity Management Directive 110, http://www
.eeoc.gov/federal/directives/md110.cfm.
5 See generally 29 C.F.R. §1614.501 (available remedies and relief); see also 42 U.S.C. §1981a(b)(3)(D) (limits up to $300,000 per claim).
6 In fiscal year 2009, “[A]gencies paid monetary benefits to EEO complainants totaling $41.7 million….An
additional $8.5 million was paid out in response to
appellate decisions.…” EEOC ANNUAL REPORT, supra
note 2, at v.
7 See Global Settlement Notice of Resolution in the class
complaint titled Chandler Glover and Dean Albrecht,
et al. v. John E. Potter, Postmaster General, available
at http://www.gloverclass.com/staticdata/Exhibit_3
_Global_Settlement_Notice_of_Resolution.pdf; Press
Release, U.S. Postal Service Agrees to Largest Ever
Disability Discrimination Settlement—$61 Million,
available at http://www.gloverclass.com/gloverclass94
.pl?wsi=0&websys_screen=all_press_07_5_30.
8 See Press Release, United States Mint and Class Counsel,
Tentative Settlement Reached in Denver Class Complaint
(Mar. 31, 2006), available at http://www.usmint.gov
/pressroom/index.cfm?action=press_release&ID=652.
9 EEOC ANNUAL REPORT, supra note 2, at 41.
10 See, e.g., 29 C.F.R. §1614.105(a) (counseling and
informal resolution); 29 C.F.R. §1614.108 (agency
EEO investigation).
11 Two exceptions apply. If a complaint alleges age discrimination, an employee can skip the administrative
process and go directly to federal court, as long as the
employee gives the EEOC at least 30 days’ written
notice. 29 C.F.R. §1614.201(a). Also, an employee
who brings a gender-based pay discrimination claim
under the Equal Pay Act can skip the administrative
process and file a lawsuit within two years of the day
that the discrimination occurred, or three years if the
discrimination is willful. 29 C.F.R. §1614.408.
12 29 C.F.R. §1614.105(a)(1).
13 29 C.F.R. §1614.105(b).
14 29 C.F.R. §1614.106(a).
15 29 C.F.R. §1614.105(c).
16 See 29 C.F.R. §1614.107(a)(1)-(9) (failure to state
a claim, failure to comply with an agency request for
information, misuse of EEO process).
17 29 C.F.R. §1614.108(e).
18 See http://www.eeoc.gov/federal/directives/md110
.cfm.
19 29 C.F.R. §1614.108(g).
20 29 C.F.R. §1614.110(b).
21 29 C.F.R. §1614.107(a)(3).
22 29 C.F.R. §1614.407(a)-(d).
23 ADMINISTRATIVE OFFICE OF THE U.S. COURTS, 2010
ANNUAL REPORT OF THE DIRECTOR: JUDICIAL BUSINESS
Los Angeles Lawyer June 2012 25
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UNITED STATES COURTS 145 (2011).
EEOC, FISCAL YEAR 2012 CONGRESSIONAL BUDGET
JUSTIFICATION 26 (2011)
25 The employee sends the hearing request to the EEOC
field office that has jurisdiction over the complaint. The
agency will notify the employee which EEOC field
office has jurisdiction when it notifies the employee
about hearing rights. 29 C.F.R. §1614.108(g).
26 29 C.F.R. §1614.109(d).
27 U.S. Equal Employment Opportunity Commission
Handbook for Administrative Judges July 1, 2002, Ch.
4, §III, available at http://www1.eeoc.gov//federal
/ajhandbook.cfm [hereinafter EEOC AJ Handbook].
28 EEOC AJ Handbook, supra note 27, ch. 4, §II.
29 29 C.F.R. §1602.14.
30 EEOC AJ Handbook, supra note 27, ch. 3, §II; see
also 29 C.F.R. §1614.109(c)(1)–(3) (offers of resolution).
31 EEOC AJ Handbook, ch. 3, §I.
32 29 C.F.R. §1614.109(g).
33 Id.; see also EEOC AJ Handbook, supra note 27, ch.
5, §II.A-B.
34 29 C.F.R. §1614.109(g)(1)–(3).
35 See Holmes v. Department of Agric., EEOC Appeal
No. 01A44937 (July 7, 2006).
36 See 29 C.F.R. §1614.109(g)(2).
37 29 C.F.R. §1614.109(f)(3).
38 See Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.
N.Y. 2003). See also Greyhound Lines, Inc. v. Wade,
485 F. 3d 1032, 1035 (8th Cir. 2007) (To warrant a spoliation sanction, movant must show “a desire to suppress the truth.”); but see Pension Comm. of Univ. of
Montreal Pension Plan v. Banc of Am. Sec, LLC, 2010
WL 184312 (S.D. N.Y. Jan. 15, 2010) (amended order
by Scheindlin, J.).
39 See 29 C.F.R. §1602.14.
40 29 C.F.R. §1614.109(e).
41 29 C.F.R. §1614.109(i).
42 29 C.F.R. §1614.109(g).
43 Id.
44 Id.
45 Compare 29 C.F.R. §1614.204(a)(2)(I)–(iv) with FED. R.
CIV. P. 23(a)(1)–(4) (EEOC regulations define commonality
as “questions of fact common to the class,” whereas the
Federal Rules of Civil Procedure define commonality as
“questions of law or fact common to the class.”).
46 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541
(2011).
47 29 C.F.R. §1614.204(b).
48 29 C.F.R. §1614.204(f).
49 29 C.F.R. §1614.204(d)(7).
50 29 C.F.R. §1614.204(e). Notice to EEOC class
members is mandatory as with Rule 23(b)(3)class
notices, but the requirements are not as stringent as in
the Federal Rules. FED. R. CIV. P. 23(c)(2)(B)(i)–(vii).
51 29 C.F.R. §1614.204(e).
52 29 C.F.R. §§1614.204(i), (j)(1).
53 29 C.F.R. §1614.204(j)(4).
54 Edmond C. Walker v. USPS, EEOC Appeal No.
0720060005 (Mar. 18, 2008), request for reconsideration denied, EEOC Request No. 0520080443 (May
16, 2008).
55 29 C.F.R. §1614.204(l)(3).
56 See 42 U.S.C. §§1981a(a)(1), (b)(1).
57 See generally 29 C.F.R. §1614.501.
58 29 C.F.R. §1614.501(a)(1). See, e.g., Hafner v. U.S.
Postal Serv., EEOC Appeal No. 0720080035 (June
30, 2008).
59 29 C.F.R. §1614.401(a).
60 29 C.F.R. §1614.402(a).
61 29 C.F.R. §1614.405(b).
62 See http://www.eeoc.gov/federal/fed_employees
/index.cfm.
63 EEOC Appellate Decisions, http://www.eeoc.gov
/federal/decisions.cfm.
64 EEOC Laws & Guidance, http://www.eeoc.gov
/laws/index.cfm.
OF THE
24
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26 Los Angeles Lawyer June 2012
Exclusion Preclusion
(Continued from page 18)
19 Id.
at 1827.
v. Calaway, 24 Cal. 2d 81, 91 (1944).
21 Nienhouse v. Superior Court, 42 Cal. App. 4th 83,
93 (1996).
22 See People v. Coleman, 8 Cal. App. 3d 722, 729-30
(1970).
23 CODE CIV. PROC. §657(1).
24 Bice v. Stevens, 129 Cal. App. 2d 342, 356 (1954)
(order excluding all evidence reviewable by motion
for new trial); see also In re Marriage of Carlsson, 163
Cal. App. 4th 281, 294 (2008) (“By arbitrarily cutting
off the presentation of evidence, [the trial court] rendered the trial fundamentally unfair and violated
[appellant’s] right to due process.”) (judgment vacated
and remanded for retrial).
25 EVID. CODE §354.
26 Smith v. Brown-Forman Distillers Corp., 196 Cal.
App. 3d 503, 519 (1987).
27 Poniktera v. Seiler, 181 Cal. App. 4th 121, 142
(2010) (“‘[A]ppellate court reviews any ruling by a trial
court as to the admissibility of evidence for abuse of
discretion.’”) (internal citation omitted).
28 Kessler v. Gray, 77 Cal. App. 3d 284, 292 (1978).
29 Kelly v. New West Federal Sav., 49 Cal. App. 4th 659
(1996).
30 Id. at 672.
31 See, e.g., South Pac. Transp. Co. v. Santa Fe Pac.
Pipelines, Inc., 74 Cal. App. 4th 1232, 1248 (1999)
(Exclusion of a proper method of valuation was prejudicial error.).
32 People ex rel. Dept. of Transp. v. Clauser/Wells
P’ship, 95 Cal. App. 4th 1066 (2002).
33 Id. at 1086-87.
34 EVID. CODE §354; Cal. Law Rev’n Comm’n, cmt.
(West 2011) (“Section 354…reiterates the requirement of the California Constitution that a judgment
may not be reversed, nor may a new trial be granted,
because of an error unless the error is prejudicial.”);
CAL. CONST. art. VI, §13 (No judgment shall be set aside
on the ground of evidentiary error unless the error
resulted in a miscarriage of justice.). See also CODE OF
CIV. PROC. §475 (Reviewing court must disregard nonprejudicial error and presume trial court error nonprejudicial.).
35 In re Marriage of McLaughlin, 82 Cal. App. 4th 327,
337 (2000) (“‘The burden is on the appellant in every
case to show that the claimed error is prejudicial; i.e.,
that it has resulted in a miscarriage of justice.’”) (internal citation omitted).
36 Bell v. Mason, 194 Cal. App. 4th 1102, 1107 (2011)
(Inquiry for determining prejudicial evidentiary error
is whether “‘it appears reasonably probable that were
it not for the trial court’s incorrect evidentiary rulings,
a result more favorable to [appellant] could have been
obtained.’”) (internal citation omitted).
37 See, e.g., Zhou v. Unisource Worldwide, Inc., 157
Cal. App. 4th 1471, 1480-81 (2007); Beyda v. City of
L.A., 65 Cal. App. 4th 511, 521 (1998).
38 Bell, 194 Cal. App. 4th 1102.
39 The Bell court also noted that the trial court’s ruling that the defense expert could not opine concerning
plaintiff’s mental capacity but could opine concerning
her depression and personality disorder was “internally
inconsistent and illogical.” Id. at 1112 n.12.
40 Id. at 1113.
41 In re Estate of Thottam, 165 Cal. App. 4th 1331
(2008).
42 Id. at 1342 (The absence of the “chart or any evidence
about its preparation eviscerated appellant’s case.”).
43 Id. at 1341-42. EVID. CODE §1123 sets forth the conditions for the admissibility of written settlement agreements reached through mediation.
44 Id. at 1342.
20 Lawless
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BY JENNIFER LASER AND CARLA J. CHRISTOFFERSON
MINDING THE
S T O R E
There are clear limits to the rights of
activists on private retail property
28 Los Angeles Lawyer June 2012
retailers have the right to limit this form of
expression.
Understandably, some retailers—as well as
law enforcement officials—may be reluctant
to block campaigners. The right to free speech
is an honored tradition in America, and many
assume, albeit inaccurately, that people have
the right to speak wherever there is a public
audience for their political or religious views.1
And what better place to find such an audience than an apron of a busy supermarket or
a big-box store, where hundreds of shoppers
pass?
What free speech enthusiasts frequently
overlook is the other right that American
society and American jurisprudence hold
dear—the right of a private property owner
or tenant to exclude persons from trespassing or using their property in an unauthorized
manner.2 The landowner’s and tenant’s right
to exclude trespassers by means of an injunction is firmly established by California statutory and case law.3 The ongoing tension
between retailers and free speech practitioners reflects the convergence of these two sets
of rights, which to date the California courts
have resolved largely in favor of retailers.
As a general rule, “the right to exclude persons is a fundamental aspect of private property ownership.”4 Thus, owners and tenants
of a retail establishment can seek an injuncJennifer Laser is a business litigator with Boren,
Osher & Luftman, LLP who specializes in contract,
real estate, and employment disputes. Carla J.
Christofferson is a business litigator and managing partner of O’Melveny & Myers, LLP’s Los
Angeles office.
KEN CORRAL
THOSE OF US who have witnessed activists
in front of a local supermarket with portraits
of President Barack Obama sporting a Hitlerstyle mustache are unlikely to forget it.
Ranging from mildly annoying to greatly
provocative, many activists have developed a
belief that they have the legal right to utilize
the space in front of retail establishments for
their expressive activities. However, many
activists—and, surprisingly, retailers—are
unaware of the rights of retailers to set and
enforce limits. This may explain why many
retailers are reluctant to enforce their property rights against unwanted expressive activity, as well as why many activists are quick to
infringe on those rights. In California, activists
have no legal right to utilize private property
immediately in front of a retail store to
express their political or religious views, and
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Los Angeles Lawyer June 2012 29
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tion against political, religious, or other
groups using the store’s apron for their expressive activities without the store’s permission.
Under federal law, the store’s property rights
will almost always trump the free speech
rights of the activists because the First Amendment of the U.S. Constitution does not guarantee the right to expressive activity at a privately owned store or a shopping center.5 In
a recent Ninth Circuit decision, which held
that the beaches “are not a traditional public forum” under federal law and limiting
public access to the beaches does not violate
the First Amendment, the court reiterated
the well-established principle that the right to
exclude others is “‘one of the essential sticks
in the bundle of property rights’ belonging to
the property owner.”6 In commenting on the
property rights of private property owners, the
court noted that “the general public does
not generally have a First Amendment right
to access private property for expression.”7
Under the California Constitution, the
property owner’s rights are less absolute.
California courts have interpreted the free
speech clause of the California Constitution
to afford greater protections than the First
Amendment and have placed limits on the
property owner’s right to exclude unwanted
speech on those properties that, by their
nature, have become the “functional equivalent of a traditional public forum.”8 The
most famous example is the Pruneyard Shopping Center, a privately owned 21-acre mall
containing 65 shops, 10 restaurants, and a
cinema. This property was at issue in the
landmark California Supreme Court decision Robins v. Pruneyard Shopping Center.9
In holding that the California Constitution
protects “reasonable exercise” of speech and
petitioning at a privately owned shopping
center, the court emphasized “the growing
importance” of the role that large shopping
centers play in the modern society and how
they provide an “essential and invaluable
forum for exercising [speech and petition]
rights.”10 The court compared a modern mall
to the traditional town center business district,
where historically the public’s free speech
activity was exercised.11
The Pruneyard decision drew an important distinction, however, between a large
shopping center and a “modest retail establishment” such as an individual retail store.12
This distinction subsequently was reaffirmed
by numerous appellate court decisions that
uniformly held that retail stores that invite
customers onto their property for the purpose
of buying food and other merchandise do
not transform themselves into the functional
equivalent of a traditional public forum.13 In
other words, to establish a quasi-public forum
at a particular store, it is not enough to simply show that a large number of people visit
30 Los Angeles Lawyer June 2012
the store. It must be a functional equivalent
of a town center “where people choose to
come and meet and talk and spend time.”14
California courts repeatedly have held
that a retail store is not the equivalent of a
town center. A retail store does not have cinemas and other forms of entertainment, and
it does “not invite the public to meet friends,
to eat, to rest, to congregate, or to be entertained at its premises.”15 Also, because retail
stores usually have only one or two exits,
activists or religious groups “positioning
a decade ago in Trader Joe’s v. Progressive
Campaigns, Inc.,20 and it has reaffirmed this
right of the retailer in numerous subsequent
decisions.21 Even free speech activists rarely
dispute this well-settled rule. What complicates the landscape is that, in large metropolitan areas, few retail stores stand alone.
In California, many retail stores are located
within larger retail developments, and often
share a parking lot and a common sidewalk
with other retail establishments. Over the last
decade, there has been a fair amount of free
themselves immediately in front of the stores
creates a significant risk that store patrons will
associate the stores with [the activists’] message.”16 It also makes it nearly impossible for
customers to avoid the activists, which
increases the interference with the shopping
experience of customers and the normal business operations of stores.17
California courts have not limited this
protection to small, stand-alone stores. The
decisions apply to large “big box warehousestyle retail stores” (such as Costco and Home
Depot)18 and discount stores and “supercenters” (such as Wal-Mart and Target).19
Even the large retail stores that are part of a
larger shopping center are not considered
quasi-public forums in California, although
this last category of stores—that is, stores
located within larger commercial developments—has been the subject of the most frequent controversy.
speech litigation surrounding the right (or
lack thereof) to campaign in front of these
types of retail stores, including, among others,
Albertson’s, Ralph’s, Costco, Home Depot,
Target, and Wal-Mart.22 In all those cases, the
free speech advocates argued that the
Pruneyard holding should be extended to
these retail stores because of their proximity
to the public areas within the larger retail
developments. So far, the courts have consistently rejected that argument.
In holding for the retailers, the courts reasoned that even though certain common areas
of the shopping center (such as a central courtyard where community events are held) may
serve as the functional equivalent of a public
forum, that alone did not alter the nature of
the store itself or the “particular location
immediately surrounding the stores.”23 The
stores use the areas immediately outside the
store (often referred to as aprons) to display
merchandise and store shopping carts. As a
result, “the aprons and perimeters of those
[retail] establishments have become, in many
instances, an extension of the store itself.”24
Unlike “the modern mall” in Pruneyard, these
“[a]prons and perimeter areas of the stores do
not act as the functional equivalent of traditional public forum,” so the stores had the
right to maintain “exclusive control over those
areas” and to exclude or limit any expressive
activity from those areas.25
Stand-Alone Stores
There can be little doubt that a stand-alone
store, such as a free-standing grocery store,
is not a “functional equivalent of a traditional public forum.” Therefore, the standalone store has the right to ban all forms of
expressive activity on the private property
in front of its store or limit that activity in any
way it sees fit. The California Court of Appeal
unequivocally confirmed that right more than
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This analysis was recently embraced by
two court of appeal decisions involving grocery stores—Ralphs Grocery Co. v. United
Food & Commercial Workers Union Local
8 (Ralphs I)26 and Ralphs II.27 Both decisions
will be reviewed by the California Supreme
Court this year. In Ralphs I, the court of
appeal held that “the entrance area and
apron…is not a public forum under the liberty speech clause of the California Constitution.”28 Consistent with the prior court
of appeal decisions on this issue, the court in
Ralphs I held that just because the retail
development where the Ralphs store was
located included common areas and restaurants where outdoor seating was available,
those common areas did not transmute the
entrance and apron of the store, which did not
include such public areas, into a public
forum.29 Thus, Ralphs, as a private property owner of the store, had the right not
only to “limit the speech allowed” in front of
the store but also to ban it.30 Ralphs II did not
expressly analyze whether the area in front of
the store, which was located in a commercial
shopping center, was a public forum. The
opinion focuses instead on the legality of the
California statutes permitting labor picketing
in front of a store. Ralphs II does implicitly
conclude, however, that the picketers had no
constitutional rights under either the federal
or California Constitution to speak in front
of the store.31
Notably, these decisions have also held
that the mere fact that the store permits certain expressive activity on its aprons does
not make the property a public forum.32 A
private store owner can selectively permit
certain activities on its aprons (e.g. allowing
girl scouts to sell cookies) and prohibit others (e.g. soliciting donations or gathering signatures) without affecting the private nature
of the forum.33
Limits on Speech Directed at the
Retailer
No California appellate court has directly
addressed, in a nonlabor context, the retailer’s right to ban expressive activity in front of
its store when the expressive activity is
directed at the store itself. Examples of this
activity may include protests against the sale
of products allegedly manufactured in an
inhumane fashion or containing harmful
chemicals, or the alleged use of foreign child
labor.
The court of appeal recently reviewed the
legality of a shopping mall’s restrictions on
such conduct in Best Friends Animal Society
v. Macerich Westside Pavilion Property.34 In
that case, animal rights activists challenged the
rules of the Westside Pavilion mall that
restricted the Animal Society’s protests to
designated mall areas that were not in the
vicinity of the pet store they were seeking to
picket. (The protesters believed that the pet
store was guilty of selling puppies bred in
inhumane “puppy mills.”) Consistent with
the longstanding principle that a large shopping mall, such as Westside Pavilion, “is a
public forum in which persons may reasonably exercise their right of free speech guaranteed by the California Constitution,” the
court went on to analyze whether Westside
Pavilion’s time, place, and manner restrictions on the Animal Society’s protests were
reasonable. In ruling that they were not, the
court held that in order to comply with the
free speech guarantee contained in the California Constitution, “the shopping mall must
allow protests within aural and visual range
of a targeted business whenever the mall is
open to the public.”35
Because Best Friends Animal Society
addresses the free speech rights in the common areas at a large shopping mall, which has
previously been recognized as a public forum,
the case has limited relevance to a protest conducted on an apron of a retail store, which the
courts have held to be private property. Under
a long line of cases, a store can limit or ban
activism.
Following the court’s ruling in Best Friends
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Los Angeles Lawyer June 2012 31
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Animal Society, however, it is quite clear that
when a store is located within a larger retail
development or a shopping mall, its right to
ban protesters will be strictly limited to its
perimeters and aprons—the areas immediately
in front of the store, which the courts have
held to be “an extension of the store itself.”36
Once protesters move beyond the store’s
apron into the common area of the mall,
they will be permitted to protest “within
aural and visual range” of a targeted store
whenever the mall is open to the public.37
Courts recognize the rights of retailers to
limit expressive activities on their perimeters
and aprons. While enforcing property rights,
a retailer must be mindful of the special limits the law has imposed on large retail malls,
but property owners certainly can avail themselves of several expedient remedies, including a temporary restraining order and a preliminary injunction.
■
1 U.S.
CONST. amend. I; CAL. CONST. art. I, §§2, 3.
CONST. art. I, §1.
3 See, e.g., Allred v. Harris, 14 Cal. App. 4th 1386, 1390
(1993).
4 Id. at 1390.
5 Lloyd Corp. v. Tanner, 407 U.S. 551, 556 (1972).
6 Wright v. Incline Village Gen. Improvement Dist., 665
F. 3d 1128, 1137 (9th Cir. 2011) (quoting PruneYard
Shopping Ctr. v. Robins, 447 U.S. 74, 82 (1980)).
7 Id.
2 CAL.
8 See
Robins v. Pruneyard Shopping Center, 23 Cal. 3d
899 (1979); Van v. Home Depot, U.S.A., Inc., 155 Cal.
App. 4th 1375, 1382-88 (2007); Albertson’s, Inc. v.
Young, 107 Cal. App. 4th 106, 109-10 (2003); Trader
Joe’s Co. v. Progressive Campaigns, Inc., 73 Cal. App.
4th 425, 433-37 (1999).
9 Robins, 23 Cal. 3d 899.
10 Id. at 910.
11 Id. at 907-10 & n.5; Albertson’s, 107 Cal. App. at
114-15.
12 Pruneyard, 23 Cal. App. at 910-11.
13 Van, 155 Cal. App. 4th at 1382-88; Albertson’s, 107
Cal. App. 4th at 732; Trader Joe’s, 73 Cal. App. 4th
at 433-34.
14 Albertson’s, 107 Cal. App. 4th at 121; see also
Pruneyard, 23 Cal. 3d at 907, 910 & n.5; Trader
Joe’s, 73 Cal. App. 4th at 434.
15 Albertson’s, 107 Cal. App. at 120.
16 Van, 155 Cal. App. 4th at 1389; see also Costco Cos.
v. Gallant, 96 Cal. App. 4th 740, 755 (2002).
17 Van, 155 Cal. App. 4th at 1389.
18 Id. at 1382-86; Costco, 96 Cal. App. 4th 740.
19 Van, 155 Cal. App. 4th at 1382-86 (Target); In re
Donation Solicitation Cases, 2006 WL 1633864 (Cal.
App. June 14, 2006) (Wal-Mart).
20 Trader Joe’s v. Progressive Campaigns, Inc., 107
Cal. App. 4th 425 (1999).
21 See, e.g., Van, 155 Cal. App. 4th at 1384-85;
Albertson’s, 107 Cal. App. 4th at 109.
22 Van, 155 Cal. App. 4th at 1378-79; Albertson’s, 107
Cal. App. 4th at 734; Costco, 96 Cal. App. 4th 740;
In re Donation Solicitation Cases, 2006 WL 1633864.
23 Van, 155 Cal. App. 4th at 1389-91; see also
Albertson’s, 107 Cal. App. 4th at 734.
24 See Van, 155 Cal. App. 4th at 1387.
25 Id. at 1388; Albertson’s, 107 Cal. App. 4th at 721, 734
(upholding the retailer’s right to exclude expressive
activities from the walkway at the entrance of a store in
a large shopping center); see also Slevin v. Home Depot,
120 F. Supp. 2d 822, 835 (N.D. Cal. 2000) (applying
California law, the court held that the area in front of
Home Depot’s main exit is not a public forum and does
not have to permit expressive activity); In re Donation
Solicitation Cases, 2006 WL 1633864, at *5 (Cal. App.
June 14, 2006) (Wal-Mart could limit expressive activities on the walkway areas in front of its stores.).
26 Ralphs Grocery Co. v. United Food & Comm.
Workers Union Local 8 (Ralphs I), 113 Cal. Rptr. 3d
88 (2010) (previously published as 186 Cal. App.
4th 1078 but subsequently depublished following
the grant of the supreme court review).
27 Ralphs Grocery Co. v. United Food & Comm.
Workers Union Local 8 (Ralphs II), 120 Cal. Rptr. 3d
878, 888 (2011). The right to picket a store in a
labor dispute is governed by a separate statutory
scheme that the California Supreme Court will likely
address in Ralphs I and Ralphs II.
28 Id. at 97-98.
29 Id. at 98.
30 Id.
31 Id. at 888 (2011) (previously published as 192
Cal. App. 4th 200 but subsequently depublished following the grant of supreme court review).
32 Ralphs I, 186 Cal. App. 4th at 1091; Albertson’s,
Inc. v. Young, 107 Cal. App. 4th 106, 125-6 (2003).
33 Id.
34 Best Friends Animal Soc’y v. Macerich Westside
Pavilion Prop., 93 Cal. App. 4th 168 (2011).
35 Id. at 180-82.
36 Van, 155 Cal. App. 4th at 1387.
37 Best Friends Animal Soc’y, 193 Cal. App. 4th at
181.
NORIEGA CHIROPRACTIC CLINICS, INC.
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(323) 478-9771
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32 Los Angeles Lawyer June 2012
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2012
to
referral
ADMINISTRATIVE LAW
LAW OFFICES OF MICHAEL GOCH, APC
5850 Canoga Avenue, Suite 400, Woodland Hills,
CA 91367, (818) 710-7190, fax (818) 710-7191,
e-mail: [email protected]. Web site:
MichaelGoch.com. Contact Michael Goch.
Licensing and related disciplinary proceedings
with emphasis on healthcare practitioners, as well
as Department of Health Services matters and
related issues, from investigatory stage through
trial and writ proceedings. Degrees/licenses: JD
Southwestern University School of Law, cum
laude, 1978; admitted in California since 1978.
Also admitted in central, eastern, northern, southern district and Ninth Circuit.
ADOPTION—DOMESTIC, STEPPARENT,
ADULT, INDEPENDENT, RELATIVE AND
AGENCY
THE LAW OFFICES OF DAVID H. BAUM,
APLC
16255 Ventura Boulevard, Suite 704, Encino,
CA 91436, (818) 501-8355, fax (818) 501-8465,
e-mail:[email protected]. Web sites: www
.adoptlaw.com, www.adotionhelp.com, and
www.probatelawca.com. Contact David H.
Baum, APCL. More than 33 years of expertise in
representation of adoptive parents, stepparents,
and birth parents in all forms of adoption,
guardianship, family formation, probate law and
assisted reproduction technology law. President,
Academy of California Adoption Lawyers (19962005, 2008-2011); president, Academy of California Family Formation Lawyers (2001-2005, 20082011); fellow, American Academy of Assisted
Reproduction Technology Attorneys (2009-present). Fellow, American Academy of Adoption
Attorneys. A-V rated by Martindale Hubbell for
more than 25 years. Member of Bar Register of
Preeminent Lawyers. Super Lawyer designee
(2007-2012). Recipient of U.S. Congress Angel in
Adoption Award 2004.
APPELLATE LAW
HONEY KESSLER AMADO
261 South Wetherly Drive, Beverly Hills, CA
90211, (310) 550-8214, fax (310) 274-7384,
e-mail: [email protected]. Web site:
www.amadolaw.com. Contact Honey Kessler
Amado. Ms. Amado (AV-rated) is a Certified Appellate Law Specialist (Cal. State Bar Board of Legal
Specialization). On the trial level, she joins the litigation team to assist with identifying issues, creating a
sufficient record for appeal, and drafting complex
briefs or postjudgment pleadings and motions. On
the appellate level, Ms. Amado prepares all briefs
and argues the case to the court. When retained as
a consultant on appeal, Ms. Amado assists counsel
with identifying issues, strategizing the appeal, and
drafting or editing the appellate briefs and
motions. Ms. Amado has been counsel in a number
of landmark cases and has written and lectured
extensively in the area of appellate law.
A. GINA HOGTANIAN—CIVIL APPEALS,
WRITS AND MOTIONS
450 North Brand Boulevard, Suite 600, Glendale,
CA 91203, (818) 244-7030, fax (818) 246-0066,
e-mail: [email protected]. Web site: www
.hogtanianlaw.com. Contact Gina Hogtanian.
Crisp, cogent, and concise briefs that get to the
point right away and stay focused throughout.
Reasonable hourly or flat rates. Available for handling full appeals as co-counsel, or for consultation, research and writing of motions at the trial
court or appellate court level.
ASSET SEIZURE AND FORFEITURE DEFENSE
PAUL L. GABBERT
2115 Main Street, Santa Monica, CA 90405, (310)
399-3259, fax (310) 392-9029, e-mail: PLGabbert
@aol.com. Contact Paul L. Gabbert. Over 30
years of experience representing individual and
corporate clients and providing the following services: responding to administrative seizure notices,
avoiding the petition trap, releasing frozen bank
accounts, tracing assets, providing expert witness
referrals, including forensic accountancy and toxicology, suppressing illegally seized evidence,
debunking drug dog alerts, excluding prior convictions, bad acts, and weapons, navigating federal
rules of civil procedure, supplemental rules for certain admiralty and maritime claims, local federal
court rules and the federal forfeiture statutes.
BANKRUPTCY LAW
BANKRUPTCY LAW FIRM, PC
10524 West Pico Boulevard, Suite 212, Los
Angeles, CA 90064, (310) 559-9224, fax (310)
559-9133, e-mail: [email protected].
Web site: www.BKYLAWFIRM.com. Contact
Kathleen P. March, Esq. Bankruptcy Law Firm,
PC, Los Angeles, owned and operated by former
CD CA Bankruptcy Judge Kathleen March, Esq.,
certified bankruptcy specialist, represents individual and small business debtors in Chapter 7, 11,
and 13 bankruptcies, all divisions of CD CA Bankruptcy Court; represents creditors in all chapters;
represents in bankruptcy adversary proceedings
and bankruptcy appeals; expert witness. Free first
consultation to tell any prospective debtor or creditor client whether we can help you. Fair prices.
LAW OFFICES OF DAVID A. TILEM
206 North Jackson Street, Suite 201, Glendale,
CA 91206, (818) 507-6000, fax (818) 507-6800,
e-mail: [email protected]. Web site: www
.tilemlaw.com. Contact Lorna. A boutique bankruptcy firm with a civil, appellate, and trial practice
concentrated in the areas of insolvency, voluntary
and involuntary bankruptcy, creditor’s rights, reorganization, commercial, and business law including Chapter 7, Chapter 11, and Chapter 13. Mr.
Tilem is a Bankruptcy Specialist certified by the
California State Bar Board of Legal Specialization
and by the American Board of Certification. Our
attorneys and staff are able to assist clients in
Armenian, Mandarin, and Spanish.
COMMERCIAL COLLECTIONS
RONALD P. SLATES, P.C.
523 West 6th Street, Suite 502, Los Angeles, CA
90014, (213) 624-1515, fax (213) 624-7536
e-mail: [email protected]. Web sites: www
.rslateslaw.com & www.ronslateslaw.com. IF WE
CANNOT COLLECT YOUR COMMERCIAL DEBT
OR JUDGMENT, NOBODY CAN! “I needed some
assistance on a fairly old judgment that my client’s
prior attorney had obtained. Ron not only helped,
but the judgment is now, for the first time in over
10 years being paid. Ron went all the way to Florida to collect on a California Federal Bankruptcy
Judgment and was successful in obtaining a levy
that forced the debtor to fall to his knees and settle
the case. After 10 years of chasing, my client is
extremely happy with Ron’s services. Ron is probably the premiere collection attorney in California.
His contacts, his abilities, and his demeanor are
the best for a collection attorney. Compassionate
and understanding but, unlike many other collection attorneys, he will not back down even against
the fiercest opponent or debtor. A class act—one
that would be very hard to match. Oh, and by the
way, he is a nice guy too.”—Richard D. Marks,
Attorney, Richard D. Marks, Professional Corporation. Let us prove ourselves to you. Hybrid (partial
contingency) fees available in select cases after indepth asset search. See display ad on page 37.
CONSTITUTIONAL LAW
ROHDE & VICTOROFF
1880 Century Park East, Suite 411, Los Angeles,
CA 90067, (310) 277-1482, fax (310) 277-1485,
e-mail: [email protected]. Web site:
www.rohde-victoroff.com. Contact Stephen
Rohde. Services available: we pride ourselves on
our almost 40 years of experience in civil trial and
appellate work in state and federal courts, focusing on intellectual property (copyright, trademark),
entertainment (film, book publishing, art, photography), torts (defamation, invasion of privacy, right
of publicity), business disputes and civil rights
actions. We work well consulting and co-counseling with other lawyers. We’re very good at dealing
with complex litigation issues including antiSLAPP motions, First Amendment, and due
process issues. See display ad on page 37.
CRIMINAL DEFENSE LAW
HUTTON & WILSON
1055 East Colorado Boulevard, Suite 310,
Pasadena, CA 91106, (626) 397-9700, fax (626)
397-9707, e-mail: [email protected]. Web site:
www.hutton-wilson.com. Contact Robert J.
Wilson. Hutton & Wilson specialize in driving
under the influence, vehicular manslaughter, and
DUI murder. We also represent persons accused
of other types of crimes, including political corruption, drug possession, theft, and juvenile
crimes. Additionally, we represent drivers before
the Department of Motor Vehicles involving drivers’ license suspensions of all kinds. Prosecution without compassion is legal blasphemy.
Los Angeles Lawyer June 2012 33
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CRIMINAL DEFENSE/WHITE COLLAR
DISPUTE RESOLUTION
NASATIR, HIRSCH, PODBERESKY, &
KHERO
2115 Main Street, Santa Monica, CA 90405,
(310) 399-3259, fax (310) 392-9029, e-mail:
[email protected]. Contact Richard
Hirsch. Delivering high quality and professional
representation to both individual and corporate
clients, our firm specializes in federal and state
white collar and non-white collar criminal defense.
Members of our firm have served as former state
and federal prosecutors. Members of the firm have
received numerous awards for excellence in practice, as well as being named in Best Lawyers of
America and Super Lawyers of Southern
California.
JUDGE LAWRENCE W. CRISPO (RET.)
501 Glen Court, Pasadena, CA 91105, (213) 9266665, fax (626) 744-0363, e-mail: judgecrispo
@earthlink.net. Web site: www.judgecrispo.com.
Contact Lawrence W. Crispo. Mediator-discovery referee/special master arbitrator, and early
neutral evaluation. See display ad on page 10.
DIVORCE AND FAMILY LAW
KELLY, FERNANDEZ & KARNEY
429 Santa Monica Boulevard, Suite 120, Santa
Monica, CA 90401, (310) 393-0236, fax (310)
393-4221, e-mail: [email protected]. Web
site: www.CFLI.com. Contact James Moorhouse. Business owner divorce, complex property division, complex move away and child custody issues. Kelly Fernandez and Karney, one of
oldest and largest divorce firms serving Los
Angeles, based in Santa Monica as well as Beverly Hills and Century City. Practice limited to
family law, 42 years, 6 attorneys including 3
certified family law specialists as well as 31
staff. After-hours and weekend appointments
available. Visit our Web site at CFLI.com as well
as CFLI.com/BLOG, plus visit us on all major
social sites too. FREE CONSULTATION,
REMEMBER EXPERIENCE COUNTS! See display ad on page 38.
EATING DISORDER INSURANCE ISSUES
KANTOR & KANTOR LLP
19839 Nordhoff Street, Northridge, CA 91324,
(818) 886-2525, fax (818) 350-6272, e-mail:
[email protected]. Web site: www.kantorlaw
.net. Contact Glenn Kantor or Alan Kassan.
Administrative appeals, litigation, state and federal
court, appellate work, free consultations, and all
cases are taken on a contingency fee basis. See
display ad on page 40.
ELDER FINANCIAL ABUSE
KANTOR & KANTOR LLP
19839 Nordhoff Street, Northridge, CA 91324,
(818) 886-2525, fax (818) 350-6272, e-mail:
[email protected]. Web site: www.kantorlaw
.net. Contact Glenn Kantor or Alan Kassan.
Administrative appeals, litigation, state and federal
court, appellate work, free consultations, and all
cases are taken on a contingency fee basis. See
display ad on page 40.
EMINENT DOMAIN
CALIFORNIA EMINENT DOMAIN LAW
GROUP, APC
3429 Ocean View Boulevard, Suite L, Glendale,
CA 91208, (818) 957-0477, fax (818) 957-
MINA N. SIRKIN, ESQ.
CERTIFIED SPECIALIST ATTORNEY IN ESTATE PLANNING,
PROBATE & TRUST LAW BY THE BOARD OF LEGAL
SPECIALIZATION OF THE STATE BAR OF CALIFORNIA
Trust & Probate Litigation, Specials Needs Trusts &
Structured Settlements
tel
818-340-4479 • email [email protected]
www.SirkinLaw.com
21550 OXNARD STREET, THIRD FLOOR, WOODLAND HILLS, CALIFORNIA 91367
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site: www.caledlaw.com. Contact A. J.
Hazarabedian. The attorneys at California
Eminent Domain Law Group—a MartindaleHubbell AV® Rated law firm—are California’s
premier eminent domain attorneys with
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domain. Our attorneys practice exclusively
eminent domain law and have successfully
handled hundreds of eminent domain cases.
We are committed to obtaining maximum
compensation for our property and business
owner clients, and are happy to work with
other law firms to assist their clients in their
eminent domain needs. See display ad on
page 39.
EMPLOYEES WORKERS’ COMPENSATION
BENEFITS
GOODCHILD AND DUFFY PLC
16133 Ventura Boulevard, Suite 1250, Encino,
CA 91346, (818) 380-1600, fax (818) 380-1616.
Web site: www.jackgoodchildlaw.com. Contact
Martha Castillo or Betty Dent. We handle
workers’ compensation cases, social security disability and personal injury. To referring attorneys
we pay 20 percent of the fees regarding regular
issues. Referrals are handled in strict accordance
with the State Bar rules.
EMPLOYMENT LAW
STEPHEN DANZ & ASSOCIATES
11661 San Vicente Boulevard, Suite 500,
Los Angeles, CA 90049, (877) 789-9707,
fax (310) 207-5006, e-mail: stephen.danz
@employmentattorneyca.com. Web site: www
.employmentattorneyca.com. Contact Stephen
Danz. Over 30 years of trial and settlement experience. Stephen Danz and Associates is California’s
largest employee only, statewide law firm with
offices in Los Angeles, San Diego, Sacramento,
Fresno, Orange County, San Bernardino, and San
Francisco. Our firm is dedicated to representing
employees in disputes against their employers.
Our attorneys represent employees and workers in
class actions, wrongful termination cases, discrimination (age, sex, race, national origin, religion and
physical or medical condition) harassment cases,
wage disputes, overtime pay cases, and rest and
meal period cases. Our experienced lawyers
have represented thousands of employees
throughout the state of California and have won
numerous trials and arbitrations on their behalf. If
you think you have a possible claim please contact our office immediately. We don’t make
empty promises; we deliver results. We provide
free initial consultations. No attorneys’ fees
unless we make a recovery on your behalf. Paying highest referral fees (per State Bar rules). See
display ad on page 36.
ERISA BENEFITS
KANTOR & KANTOR LLP
19839 Nordhoff Street, Northridge, CA 91324,
(818) 886-2525, fax (818) 350-6272, e-mail:
[email protected]. Web site: www.kantorlaw
.net. Contact Glenn Kantor or Alan Kassan.
Administrative appeals, litigation, state and federal
court, appellate work, free consultations, and all
cases are taken on a contingency fee basis. See
display ad on page 40.
34 Los Angeles Lawyer June 2012
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ESTATE PLANNING, TRUST AND PROBATE
SIRKIN AND SIRKIN
21550 Oxnard Street, 3rd Floor, Woodland Hills,
CA 91367, (818) 340-4479, fax (818) 340-7952,
e-mail: [email protected]. Web site: www
.sirkinlaw.com. Contact Nina N. Sirkin. Estate
planning, probate, conservatorships, elder law,
and structured settlements. See display ad on
page 34.
FAMILY LAW
BRANDON LAW GROUP
200 Oceangate, Suite 1500, Long Beach, CA
90802, (562) 901-9800, fax (562) 983-9383.
Web site: www.brandonlaw.net. Contact Lisa
Brandon, CFLS. Divorce, legal separation, modifications, custody disputes, paternity, domestic
partnership termination, and marital agreements.
FRIEDMAN & FRIEDMAN
9454 Wilshire Boulevard, Suite 313, Beverly Hills,
CA 90212, (310) 273-2800, fax (310) 273-3642,
e-mail: [email protected] or [email protected].
Web site: www.f-f-law.com. Contact Ira
Friedman, Abby Friedman. Enforcement of
judgment—civil and dissolution judgment. Friedman & Friedman provides legal services in all areas
of family law, including but not limited to dissolution
of marriage, child custody, child support, spousal
support, division of property, enforcement of judgment, and/or orders, legal separation, paternity,
and marital agreements. Friedman & Friedman also
provides legal services in enforcement of civil judgments. See display ad on page 34.
KELLY, FERNANDEZ & KARNEY
429 Santa Monica Boulevard, Suite 120, Santa
Monica, CA 90401, (310) 393-0236, fax (310)
393-4221, e-mail: [email protected]. Web site:
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 Orange County & Inland Empire
11661 San Vicente Boulevard, Suite 500, Los Angeles, CA 90049
www.employmentattorneyca.com
Stephen Danz, Senior Partner
www.CFLI.com. Contact James Moorhouse.
Business owner divorce, complex property division, complex move away and child custody
issues. Kelly Fernandez and Karney, one of oldest
and largest divorce firms serving Los Angeles,
based in Santa Monica as well as Beverly Hills and
Century City. Practice limited to family law, 42
years, 6 attorneys including 3 certified family law
specialists as well as 31 staff. After-hours and
weekend appointments available. Visit our Web
site at CFLI.com as well as CFLI.com/BLOG, plus
visit us on all major social sites too. FREE CONSULTATION, REMEMBER EXPERIENCE
COUNTS! See display ad on page 38.
KOLODNY & ANTEAU
9100 Wilshire Boulevard, Ninth Floor-West Tower,
Beverly Hills, CA 90212, (310) 271-5533, fax (310)
271-3918. Web site: www.kolodny-anteau.com.
Our firm specializes in sophisticated and complex
family law and matrimonial matters arising out of
interpersonal relationships both domestically and
abroad. Our team of experienced and highly qualified family law attorneys offers additional services
relating to paternity, palimony, marital and domestic torts, child abuse, and child abduction.
WALZER & MELCHER LLP
21700 Oxnard Street, Suite 2080, Woodland Hills,
CA 91367, (818) 591-3700, fax (818) 591-3774,
e-mail: [email protected]. Web site: www
.walzermelcher.com. Contact Christopher C.
Melcher. Complex marital dissolution litigation at
trial court level or on appeal involving property disputes, businesses, or marital agreements. Certified Family Law Specialist. See display ad on
page 1.
FIREARMS & DANGEROUS WEAPONS
CHARLES PEREYRA-SUAREZ
— ARBITRATOR AND MEDIATOR —
RELEVANT EXPERIENCE:
• Trial/Appellate Attorney, U.S. Justice Department
Civil Rights Division
• Federal Prosecutor in Los Angeles
• Litigation Partner in Two National Law Firms
• Judge Pro Tem, Los Angeles County Superior Court
• Diverse ADR and Expert Witness Practice
MICHEL & ASSOCIATES, P.C.
180 East Ocean Boulevard, Suite 200, Long
Beach, CA 90802, (562) 216-4444, fax (562) 2164445, e-mail: [email protected]. Web
site: www.michellawyers.com. Contact Chuck
Michel. Civil litigation, criminal defense, restraining
orders, restoration of gun rights, gun seizures and
returns, regulatory compliance checks, inventory
cataloging, shooting range protection and development, environmental and land use issues, government licensing and permits, hunting protection,
pyrotechnics, explosives, destructive devices,
props, and more.
FRANCHISE LAW
445 S. FIGUEROA STREET, SUITE 2700, LOS ANGELES CA 90071
Tel
213.623.5923 Fax 213.623.1890 http://www.cpsarbitration.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
310.552.1062
■
www.derin.com
1925 CENTURY PARK EAST, LOS ANGELES, CALIFORNIA 90067
36 Los Angeles Lawyer June 2012
KURTZ LAW GROUP, A PROFESSIONAL
CORPORATION
21650 Oxnard Street, Suite 500, Woodland Hills,
CA 91367, (818) 827-9229, fax (818) 986-4474,
e-mail: [email protected]. Web site:
www.kurtzfranchiselaw.com. Contact Barry
Kurtz, Certified Specialist, Franchise & Distribution Law, State Bar of California Board of Legal
Specialization. Regulatory compliance and franchisor/franchisee relationships, with an emphasis
on franchisors and franchisees in the restaurant
business.
RODNEY R. HATTER & ASSOCIATES
1301 Dove Street, Suite 900, Newport Beach, CA
92660, (949) 376-9977, fax (949) 494-3448,
e-mail: [email protected]. Web site: www
.californiafranchiseattorney.com. Contact
Rodney Hatter. Certified specialist—franchise
and distribution law, California Bar Board of legal
specialization. Providing advice and assistance to
June2012_Master.qxp
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Page 37
franchisors, franchisees, and other businesses
regarding issues of franchising and alternative
distribution programs since 1985. Previously
General Counsel to California’s largest franchisor.
HELPING CLIENTS AND LAWYERS FOR 40 YEARS
Civil Litigation and Appeals, Intellectual Property,
Defamation, Invasion of Privacy, Anti-SLAPP Motions,
Entertainment Disputes, Civil Rights, First Amendment,
Constitutional, Tenure and Academic Freedom Issues
HEALTH AND LIFE INSURANCE CLAIM
KANTOR & KANTOR LLP
19839 Nordhoff Street, Northridge, CA 91324,
(818) 886-2525, fax (818) 350-6272, e-mail:
[email protected]. Web site: www.kantorlaw
.net. Contact Glenn Kantor or Alan Kassan.
Administrative appeals, litigation, state and federal
court, appellate work, free consultations, and all
cases are taken on a contingency fee basis. See
display ad on page 40.
Experienced at co-counseling and consulting with attorneys
STEPHEN F. ROHDE
ROHDE & VICTOROFF
310.277.1482 • [email protected]
HEALTHCARE LAW
LAW OFFICES OF MICHAEL GOCH, APC
5850 Canoga Avenue, Suite 400, Woodland
Hills, CA 91367, (818) 710-7190, fax (818) 7107191, e-mail: [email protected]. Web site:
MichaelGoch.com. Contact Michael Goch.
Licensing and related disciplinary proceedings
with emphasis on healthcare practitioners, as well
as Department of Health Services matters and
related issues, from investigatory stage through
trial and writ proceedings. Degrees/licenses: JD
Southwestern University School of Law, Cum
Laude, 1978; admitted in California since 1978.
Also admitted in central, eastern, northern, southern district and Ninth Circuit.
INSURANCE LAW
KANTOR & KANTOR LLP
19839 Nordhoff Street, Northridge, CA 91324,
(818) 886-2525, fax (818) 350-6272, e-mail:
[email protected]. Web site: www.kantorlaw
.net. Contact Glenn Kantor or Alan Kassan.
Administrative appeals, litigation, state and federal
court, appellate work, free consultations, and all
cases are taken on a contingency fee basis. See
display ad on page 40.
INSURANCE BAD FAITH
CHEONG, DENOVE, ROWELL, BENNETT
& KARNS
10100 Santa Monica Boulevard, Suite 2460, Los
Angeles, CA 90067, (310) 277-4857, fax (310)
277-5254, e-mail: fi[email protected]. Web site:
www.cdrbk.com. Contact Lorraine Jackson for
Jack Denove. Attorneys at Cheong, Denove,
Rowell, Bennett & Karns have successfully represented clients for 30 years in major injury cases,
insurance bad faith, products liability, and medical
malpractice. Senior Partner Jack Denove has
received numerous awards for his trial successes
and commitment to representing the rights of the
injured, including Trial Lawyer of the Year and Los
Angeles Best Lawyer. He is the Past President
Consumer Attorneys Association of Los Angeles
and the Italian American Lawyers Association;
Diplomate of ABOTA; and on the Board of Directors of the Consumer Attorneys of California. He
has tried more than 100 civil jury trials. See display ad on page 35.
LEGAL MALPRACTICE
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.
Why do we get most of our work
from other attorneys?
At Huron law group, referrals matter to us. We do what it
takes to win and never, never give up.
We handle business, real estate and entertainment litigation.
H
Your success is our businessSM!
310.284.3400
www.huronlaw.com
1875 Century Park East, Suite 1000, Los Angeles, CA 90067
Huron Law Group
IF WE CANNOT COLLECT
YOUR COMMERCIAL
DEBT OR JUDGMENT,
NOBODY CAN!
“ Ron is terrific. He knows everything there is to know about collection law and has the common sense smarts to get
things done. We have worked with him for several years, and he has done a fabulous job for our company.”— Daniel
R. Milberg, Senior Vice President, Milberg Factors, Inc., New York, New York
“ I needed some assistance on a fairly old judgment that my client’s prior attorney had obtained. Ron not only helped,
but the judgment is now, for the first time in over 10 years being paid. Ron went all the way to Florida to collect on
a California Federal Bankruptcy Judgment and was successful in obtaining a levy that forced the debtor to fall to his
knees and settle the case. After 10 years of chasing, my client is extremely happy with Ron’s services. Ron is probably
the premiere collection attorney in California. His contacts, his abilities, and his demeanor are the best for a collection attorney. Compassionate and understanding but, unlike many other collection attorneys, he will not back down
even against the fiercest opponent or debtor. A class act—one that would be very hard to match. Oh, and by the
way, he is a nice guy too.”— Richard D. Marks, Attorney, Richard D. Marks, Professional Corporation
“ Ron Slates is the most effective collection lawyer with whom I have ever worked. He is responsive, diligent, and truly
professional. All clients to whom I have referred Ron have indicated to me that he has done a fabulous job on their
behalf.”— Robert F. Millman, Attorney, Littler Medelson, Los Angeles, California
LET US PROVE OURSELVES TO YOU Hybrid (partial contingency) fees available in select cases after in-depth asset search.
Ronald P. Slates, P.C.
523 WEST 6TH STREET, SUITE 502, LOS ANGELES, CA 90014
213.624.1515 | FAX 213.624.7536 | E-MAIL [email protected]
WEB SITES www.rslateslaw.com & www.ronslateslaw.com
Los Angeles Lawyer June 2012 37
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Page 38
Christopher Rolin is a highly effective trial attorney
with over 45 years in civil litigation. His area of
emphasis is attorney malpractice on the applicable
community standard of care for practicing attorneys in both litigation and transactional areas. He
is now focusing as an expert witness on standards
of care issues. 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.
LEMON LAW
LAW OFFICES OF DELSACK &
ASSOCIATES, PC
1801 Century Park East, Suite 2400, Los Angeles,
CA 90067, (310) 475-1700, fax (310) 475-1799,
e-mail: [email protected]. Web site: www
.lemonlawspecialists.com. Contact Kurt Delsack.
For over 24 years the Law Offices of Delsack &
Associates, P.C., have represented thousands of
California consumers throughout the state in lemon
law cases. We have recovered millions of dollars
for clients with defective and unsafe vehicles. We
enjoy a superb success rate and obtain speedy
recoveries without litigation in nearly all cases. Delsack & Associates is known for experience, positive relationships with manufacturers, and speedy
and satisfactory settlements.
LITIGATION
GILCHRIST & RUTTER PROFESSIONAL
CORPORATION
1299 Ocean Avenue, Suite 900, Santa Monica,
CA 90401, (310) 393-4000, fax (310) 394-4700.
Web site: www.gilchristrutter.com. Contact
38 Los Angeles Lawyer June 2012
Frank Gooch. Represent clients as plaintiffs and
defendants at trial and appellate levels in state
and federal courts, as well as mediations/arbitrations. Practice areas include business (unfair
competition, antitrust, shareholder disputes,
entertainment/intellectual property litigation), real
estate (breach of lease and sales agreements,
quite title, easement, owner-contractor and landlord-tenant disputes, environmental clean-up)
securities (defense against enforcement actions
brought by the SEC, NASD and CDC) and insurance (e.g., coverage disputes, breach of contract,
bad faith and punitive damage actions).
LAW OFFICES OF CHARLES
PEREYRA-SUAREZ
445 South Figueroa Street, Suite 2700, Los Angeles, CA 90071, (213) 623-5923, fax (213) 6231890, e-mail: cpereyra@cpslawfirm.com. Web
site: www.cpslawfirm.com. Contact Charles
Pereyra-Suarez. Charles Pereyra-Suarez has
handled a broad range of civil and criminal matters
during three decades of practice. Mr. PereyraSuarez’s experience includes complex business
litigation, white-collar criminal defense, whistleblower cases, international, government contracts,
healthcare, environmental, antitrust, civil rights and
First Amendment representation. He is active as a
mediator and arbitrator of various litigation and
business disputes. See display ad on page 36.
LONG TERM CARE
KANTOR & KANTOR LLP
19839 Nordhoff Street, Northridge, CA 91324,
(818) 886-2525, fax (818) 350-6272, e-mail: gkantor
@kantorlaw.net. Web site: www.kantorlaw.net.
Contact Glenn Kantor or Alan Kassan. Administrative appeals, litigation, state and federal court,
appellate work, free consultations, and all cases
are taken on a contingency fee basis. See display
ad on page 40.
LONG TERM DISABILITY
KANTOR & KANTOR LLP
19839 Nordhoff Street, Northridge, CA 91324,
(818) 886-2525, fax (818) 350-6272, e-mail: gkantor
@kantorlaw.net. Web site: www.kantorlaw.net.
Contact Glenn Kantor or Alan Kassan. Administrative appeals, litigation, state and federal court,
appellate work, free consultations, and all cases
are taken on a contingency fee basis. See display
ad on page 40.
MEDIATION
GREG DAVID DERIN
1925 Century Park East, Suite 1700, Los Angeles,
CA 90067, phone (310) 552-1062, fax (310) 5521068, e-mail: [email protected], Web site: www
.derin.com. Contact Greg David Derin. Trained
at Harvard Law School’s Mediation Workshop,
which he has assisted in teaching since 2004,
Greg brings more than 30 years of litigation experience to his role as a mediator and arbitrator.
Greg is a past Chair of the California State Bar
ADR Committee, a member of the California and
National Academies of Distinguished Neutrals, the
CPR Panel of Distinguished Neutrals, the American Arbitration Association Roster of Neutrals, the
Arbitration Panel of the Independent Film and
Television Alliance (IFTA), and the World Intellectual Property Organization (WIPO) Mediation and
June2012_Master.qxp
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Page 39
Arbitration Panels. Named by Los Angeles and
Law & Politics magazines as a Super Lawyer in
ADR, Intellectual Property Litigation and Sports
and Entertainment Law (2006-2012), and by the
Hollywood Reporter as a “Power Mediator.” Greg
concentrates his mediation and arbitration practices on business, commercial, entertainment,
intellectual property, employment, and real estate
matters. See display ad on page 36.
Anita Rae Shapiro
SUPERIOR COURT COMMISSIONER, RET.
PRIVATE DISPUTE RESOLUTION
PROBATE, CIVIL, FAMILY LAW
PROBATE EXPERT WITNESS
PERSONAL INJURY EXPERT
CHEONG, DENOVE, ROWELL, BENNETT
& KARNS
10100 Santa Monica Boulevard, Suite 2460, Los
Angeles, CA 90067, (310) 277-4857, fax (310)
277-5254, e-mail: fi[email protected]. Web site:
www.cdrbk.com. Contact Lorraine Jackson for
Jack Denove. Attorneys at Cheong, Denove,
Rowell, Bennett & Karns have successfully represented clients for 30 years in major injury cases,
insurance bad faith, products liability, and medical
malpractice. Senior Partner Jack Denove has
received numerous awards for his trial successes
and commitment to representing the rights of the
injured, including Trial Lawyer of the Year and Los
Angeles Best Lawyer. He is the Past President
Consumer Attorneys Association of Los Angeles
and the Italian American Lawyers Association;
Diplomate of ABOTA; and on the Board of Directors of the Consumer Attorneys of California. He
has tried more than 100 civil jury trials. See
display ad on page 35.
MICHAEL LOUIS KELLY
2041 Rosecrans Avenue, 3rd Floor, El Segundo,
CA 90245, (310) 536-1000, fax (310) 536-1001,
e-mail: [email protected]. Web site:
www.CourtroomWarrior.com. Contact Michael
Louis Kelly. Mr. Kelly is recognized as one of the
leading 500 plaintiff lawyers in the United States,
and year after year is voted a Southern California
Super Lawyer. His numerous record-setting jury
verdicts have dramatically impacted the legal landscape in California. Mr. Kelly utilizes a team of talented lawyers whose varying backgrounds, training, and experience combine to create a formidable litigation team.
PRIVATE DISPUTE RESOLUTION
COMMISSIONER ANITA RAE SHAPIRO
(RET.)
Alternative Dispute Resolution. P.O. Box 1508, Brea,
CA 92822-1508, cell (714) 606-2649, phone/fax
(714) 529-0415, e-mail: privatejudge@adr-shapiro
.com. Web site: http://adr-shapiro.com. Contact
Anita Rae Shapiro. Mediation, arbitration, temporary judge, accounting referee, discovery referee, in
probate (wills, trust, conservatorships), family law,
and all areas of civil law, including real estate. See
display ad on this page.
TEL/FAX: (714) 529-0415 CELL/PAGER: (714) 606-2649
E-MAIL: [email protected]
http://adr-shapiro.com
A. J. Hazarabedian
Glenn L. Block
Artin N. Shaverdian
DAVID L. RAY
RICHARD WEISSMAN
SALTZBURG, RAY & WEISSMAN, LLP
RECEIVERSHIP ACTIONS
• Partnerships and Corporate Dissolutions
• Government Enforcement Receivership Actions
• Partition Actions/Marital Dissolution
REAL ESTATE LITIGATION
HURON LAW GROUP
1875 Century Park East, Suite 1000, Los Angeles,
CA 90067, (310) 284-3400, fax (310) 772-0037,
e-mail: [email protected]. Web site: www
.huronlaw.com. Contact Jeffrey Huron. HLG
has successfully tried and arbitrated all types of
real estate disputes. Our attorneys have past
experience handling disputes involving, purchase
and sale agreements, leases, guarantees, commercial real estate loans, partnerships, joint ventures, brokers, easements, unlawful detainers, and
receiverships. See display ad on page 37.
TEL
310.481.6780
310.481.6707
[email protected] • [email protected]
FAX
www.srblaw.com
12121 WILSHIRE BOULEVARD, SUITE 600, LOS ANGELES CA 90025
Los Angeles Lawyer June 2012 39
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Page 40
ERISA
LAWYERS
LONG TERM DISABILITY, LONG
TERM CARE, HEALTH,
EATING DISORDER, AND LIFE
INSURANCE CLAIMS
ERISA & BAD FAITH
MATTERS
✔ California state and federal courts
✔ More than 20 years experience
✔ Settlements, trials and appeals
Referral fees as allowed by
State Bar of California
Kantor & Kantor LLP
818.886.2525 TOLL FREE
877.783.8686
www.kantorlaw.net
REAL PROPERTY FORECLOSURES
RICHARD G. WITKIN
530 S. Glenoaks Boulevard, Suite 207, Burbank,
CA 91502, (818) 585-7302, fax (818) 845-4015.
Contact Richard G. Witkin. Specializing in nonjudicial foreclosures for the past 25 years. See
display ad on page 26.
RECEIVER/BANKRUPTCY
SALTZBURG, RAY & WEISSMAN, LLP
12121 Wilshire Boulevard, Suite 600, Los Angeles,
CA 90025, (310) 481-6700, fax (310) 481-6707,
e-mail: [email protected], RWeissman@rwreceiver
.com. Web site: www.srblaw.com. Contact
David L. Ray, Esq or 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, Securities and Exchange 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 39.
SENIOR TRIAL COUNSEL/LITIGATION
VIGOROUS
CLARK & TREVITHICK
800 Wilshire Boulevard, Los Angeles, CA 90017,
fax (213) 624-9441, e-mail: [email protected].
Web site: www.clarktrev.com/seniortrialcounsel
.htm. Contact Liz Anderson. Senior trial counsel/litigation, leading chair experience in trials, arbitrations and mediations. See display ad on
page 13.
STATE BAR DEFENSE
SOCIAL SECURITY LAW (NATIONAL BOARD
OF LEGAL SPECIALISTS CERTIFIED)
JAMES R. DIFRANK
LAW OFFICES OF JAMES P. SHEA
5055 Wilshire, Suite 340, Los Angeles, CA 90036,
(323) 954-9605. State Bar certified in Social Security Law (National Board of Legal Specialty Certification), My practice is limited to Social Security
Disability and Supplemental Security Income (SSI)
cases.
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
40 Los Angeles Lawyer June 2012
SPECIAL EDUCATION LAW
LAW OFFICE OF HOWARD A. EMMER
21515 Vanowen Street, Suite 100, Canoga
Park, CA 91303, (818) 594-0873, fax (818) 5940313, e-mail: [email protected]. Contact Howard A. Emmer. We represent children
with special needs and their families in all
aspects of special education. Our services
include attendance at Individualized Education
Programs (IEPs), due process hearings, and 504
Plans. We work with families to enable their children to receive the necessary services so that
he or she can make meaningful progress in their
education. There is no charge for the initial consultation.
VALERIE VANAMAN
Newman Aaronson Vanaman, 14001 Ventura
Boulevard, Sherman Oaks, CA 91423, (818) 9907722, fax (818) 501-1306, e-mail: intake@navlaw
.net. Web site: www.navlaw.net. Contact Intake
Department. For four decades, Valerie Vanaman
has been providing knowledgeable and compassionate representation to people who need help
obtaining services from private and government
agencies. Since the inception of her firm, Newman
Aaronson Vanaman, in 1981, she has been the
acknowledged leader in representing clients at IEP
meetings, due process mediations and hearings,
and related federal court actions. She also assists
families with expulsions and in securing eligibility
and services from regional centers.
STATE BAR AND CRIMINAL DEFENSE
JAMES R. DIFRANK, A PROFESSIONAL
LAW CORPORATION
12227 Philadelphia Street, Whittier, CA 90601,
(562) 789-7734, fax (562) 789-7735, e-mail:
[email protected]. Web site: www.bardefense
.net. Contact Stephen Gonzales. We defend
professionals including attorneys, physicians, and
other licensed individuals, in disciplinary, criminal,
and other legal matters. Seasoned and experienced attorney with over 20 years of experience,
including experience as former senior State Bar
prosecutor and senior State Bar counsel. Representation in moral character, admissions, and
other special proceedings in State Bar and superior courts. Free 30 minute consultations. See display ad on this page.
TAXATION LAW
KAJAN MATHER AND BARISH
9777 Wilshire Boulevard, Suite 805, Beverly Hills,
CA 90212, (310) 278-6080, fax (310) 278-4805,
e-mail: [email protected]. Web site: www
[email protected]. The law firm of Kajan
Mather and Barish is devoted to representation of
taxpayers before the IRS, FTB, SBE, and EDD in
tax audits, administrative appeals, tax collection
complex tax litigation, criminal investigation and
trials and voluntary disclosures involving domestic
and foreign transactions. The firm also represents
and advises accountants regarding tax penalties
and professional responsibility matters.
WORKERS’ COMPENSATION
WAX & WAX LAW OFFICES
411 North Central Avenue, Suite 520, Glendale,
CA 91203, (818) 247-1001, fax (818) 247-2421.
Contact Alan Wax. We are certified specialists in
Workers’ Compensation Law. We are on the
Board of Governors of the California Applicants’
Attorneys Association with over 50 years of experience.
WRONGFUL DEATH
MICHAEL LOUIS KELLY
2041 Rosecrans Avenue, 3rd Floor, El Segundo,
CA 90245, (310) 536-1000, fax (310) 536-1001,
e-mail: [email protected]. Web site:
www.CourtroomWarrior.com. Contact Michael
Louis Kelly. Mr. Kelly is recognized as one of the
leading 500 plaintiff lawyers in the United States,
and year after year is voted a Southern California
Super Lawyer. His numerous record-setting jury
verdicts have dramatically impacted the legal landscape in California. Mr. Kelly utilizes a team of talented lawyers whose varying backgrounds, training, and experience combine to create a formidable litigation team.
June2012_Master.qxp
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Page 41
LOS ANGELES COUNTY BAR ASSOCIATION
NOTICE OF SPECIAL MEETING OF MEMBERS
To be held Wednesday, June 27, 2012
5:30 P.M. Pacific Daylight Savings Time
Please be advised that a Special Meeting of Members of the
Los Angeles County Bar Association (“LACBA”) will be
held on June 27, 2012, at 5:30 P.M. Pacific Daylight Savings
Time at LACBA’s principal offices at 1055 West 7th Street,
Suite 2700, Los Angeles, CA 90017-2577.
The Special Meeting will be held for the sole purpose of
considering the adoption of amended LACBA Bylaws. A
complete copy of the proposed amended Bylaws, as well as
related explanatory material, may be found on the LACBA
website at www.lacba.org. The LACBA Board of Trustees
recommends that you vote FOR amendment of the
Bylaws as proposed.
Sally Suchil
Secretary
June2012_Master.qxp
5/11/12
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Page 42
Business Opportunities
WANT TO PURCHASE MINERALS and other oil/gas
interests. Send details to: P.O. Box 13557, Denver,
CO 80201.
Affiniscape Merchant Solutions, p. 5
Lawyers’ Mutual Insurance Co., p. 7
Tel. 866-376-0950 www.lawpay.com
Tel. 800-252-2045 www.lawyersmutual.com
American Language Services, p. 13
MCLE4LAWYERS.COM, p. 13
Tel. 310-829-0741 www.ALSglobal.net
Tel. 310-552-5382 www.MCLEforlawyers.com
The California Academy of Distinguished Neutrals, p. 22, 23
Michael Marcus, p. 4
Tel. 310-341-3879 www.CaliforniaNeutrals.org
Tel. 310-201-0010 www.marcusmediation.com
California Eminent Domain Law Group, APC, p. 39
Noriega Clinics, p. 32
Tel. 818-957-0477 www.caledlaw.com
Tel. 213-716-3744
California Western School of Law, p. 30
Charles Pereyra-Suarez, p. 36
Tel. 800-255-4252 www.californiawestern.edu
Tel. 213-623-5923 www.cpslawfirm.com
Chapman University School of Law, Inside Front Cover
Anita Rae Shapiro, p. 39
Tel. 877-CHAPLAW (877-242-7529) www.chapman.edu/law/
Tel. 714-529-0415 www.adr-shapiro.com
Cheong, Denove, Rowell, Bennett & Karns, p. 35
Mina N. Sirkin, Esq., p. 34
Tel. 310-277-4857 www.cdrbk.com
Tel. 818-340-4479 www.SirkinLaw.com
Clark & Trevithick, p.13
Law Offices of Ronald P. Slates, p. 37
Tel. (213) 341-1393 www.clarktrev.com/seniortrailcounsel.htm
Tel. 213-624-1515 www.rslateslaw.com
Cook Construction, p. 10
Rohde & Victoroff, p. 37
Tel. 818-438-4535 e-mail: [email protected]
Tel. 310-277-1482 www.rohde-victoroff.com
Lawrence W. Crispo, p. 10
Saltzburg, Ray & Bergman, LLP, p. 39
Tel. 213-926-6665 e-mail: [email protected]
Tel. 310-481-6700 www.srblaw.com e-mail: [email protected]
James R. DiFrank, PLC, p. 40
Special Counsel, p. 4
Tel. 562-789-7734 www.bardefense.net e-mail: [email protected]
Tel. 800-737-3436 www.specialcounsel.com
Greg David Derin, p. 36
TenTen Wilshire, p. 26
Tel. 310-552-1062 www.derin.com
Tel. 877-338-1010 www.1010wilshire.com
E. L. Evans & Associates, p. 13
Thomson Reuters, Back Cover
Tel. 310-559-4005
Tel. 800-762-5272 www.thompsonwestgroup.com
Computer Forensics
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. DATACHASERS, INC. P.O. Box 2861, Riverside, CA 925162861, (877) DataExam, (877) 328-2392, (951) 780-7892,
e-mail: [email protected]. Web site: www
.DataChasers.com.
Consultants and Experts
NEED AN EXPERT WITNESS, legal consultant, arbitrator, mediator, private judge, attorney who outsources,
investigator, or evidence specialist? Make your job easier by visiting www.expert4law.org. Sponsored by the Los
Angeles County Bar Association, expert4law—the Legal
Marketplace is a comprehensive online service for you to
find exactly the experts you need.LAC
Employment Opportunity
FINANCE MANAGER NEEDED FOR OUR COMANY.
Applicant must speak English fluently, have good
computer and typing skills. Must speak English fluently. Any job experience can apply. Salary is $2,900
monthly. E-mail at jamesharvey100@hotmail
.com if interested. James Harvey Holdings, 641 Fort
Romie Road, Soledad, CA 93960. (831) 678-2893.
LACBA Products
Gerber & Co., p. 4
Union Bank of California, Inside Back Cover
2012 Judge in a Flash (JIF) available now! The LACBA
Judge in a Flash gives attorneys lightning
fast access to information on Los Angeles Superior
Court judges and how they manage cases. LACBA
members pay only $75; non-members pay only
$99 for this valuable tool. Visit www.lacba.org
/judgeinaflash for more information.
Tel. 310-552-1600 http://gerberco.com
Tel. 310-550-6400 (B.H.), 213-236-7736 (L.A.) www.uboc.com
Huron Law Group, p. 37
Walzer & Melcher, p. 1
Tel. 310-284-3400 www.huronlaw.com
Tel. 818-591-3700 e-mail: [email protected]
Kantor & Kantor, LLP, p. 40
Witkin & Eisinger, LLC, p. 26
2012 CLE-IN-A-BOX—25 hour audio pack available on
CD and On-Demand. An unbeatable value for all your
mandatory self-study and participatory CLE requirements. Free shipping within California. Member price
$274, non-member price $324. Order today www
.lacba.org/clebox or call (800) 456-0416.
Tel. 877-783-8686 www.kantorlaw.net
Tel. 310-670-1500
42 Los Angeles Lawyer June 2012
Law Offices of Kelly, Fernandez and Karney, p. 38
Tel. 310-393-0236 www.CFLI.com
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Thirty-Hour Basic Mediation Training
STARTING ON TUESDAY, JUNE 5, and continuing on June 6, 7, 8, and 12, the
Center for Civic Mediation and the Los Angeles County Bar Association will
host a program on the core principles and methods of alternative dispute
resolution. Through lecture, small group exercises, and role-playing,
speakers Talin S. Bahadarian, Lynne S. Bassis, Gail Nugent, and John
Rodriguez will cover the nature of conflict, the history of mediation, the
structure and management of the mediation process, intake and
convening, mediation models, cultural awareness and diversity, legal
requirements and ethics, maintaining neutrality, communication skills,
negotiation, breaking impasse, closure, and drafting agreements. This
course fulfills the training requirements of the California Dispute
Resolution Programs Act, and it is offered in cooperation with the Los
Angeles County Bar Association. The training will take place in the Fireside
Room at the Long Beach Police Academy, 7290 Carson Street. On-site
registration will begin at 8:30 A.M. on the first day, with the program
continuing from 9 A.M. to 4:00 P.M. each day of training. The registration
code number is 011671.
$645—Center for Civic Mediation Associates member
$675—LACBA member
$690—all others with early bird registration
$725—all others
26.75 CLE hours, including 2.75 hours of ethics and 1 hour of elimination
of bias
The Probate Department
and Los Angeles
Superior Court
ON THURSDAY, JUNE 21, the Trusts and
Estates Section will host a program
featuring speakers Judges Mitchell L.
Beckloff, Marvin M. Lager, Reva G.
Goetz, and Michael I. Levanas, who
will discuss recent developments in
the Probate Department of the Los
Angeles Superior Court. The Arthur K.
Marshall Award will also be
presented. The program will take
place in the Bunker Hill Ballroom of
the Omni Los Angeles Hotel, 251
South Olive Street, Downtown.
On-site registration will begin at
11:30 A.M. and lunch at noon, with the
program continuing from 12:30 to
Effective Courtroom Presentation Technology
1:30 P.M. The registration code
On Wednesday, June 6, the Litigation Section and the Trial Practice Inn of
Court will offer an opportunity to network with other legal professionals while
learning how to effectively use technology in the courtroom. The program will
take place in the the Los Angeles Athletic Club’s Empire Room at 431 West 7th
Street in downtown Los Angeles. Parking is available at the club for $4.50
with validation. The club’s parking entrance is on the east (right-hand) side of
Olive Street. On-site registration will be available from 5:30 P.M. and the meal
at 6:30, with the program continuing from 7:30 to 8:30. LACBA and Litigation
Section membership are required to join the Inn of Court, and Inn of Court
membership is required to attend this event. Registration for the Inn of Court
is available on the LACBA Web site under program code number 011390. The
event registration code number is 011398.
$75—with meal
1 CLE hour
number is 011688. The prices below
include the meal.
$45—CLE+ member
$65—Trusts and Estates Section
member
$100—LACBA member
$135—all others
1 CLE hour, including estate planning,
trust and probate law legal
specialization credit
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs
listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at
http://calendar.lacba.org, where you will find a full listing of this month’s Association programs.
Los Angeles Lawyer June 2012 43
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closing argument
BY CHUCK GREAVES
The Thriller-Worthy Odds That Face Attorneys Who Want to Be Novelists
IF YOU WANT TO BE THE NEXT JOHN GRISHAM, you are not alone. would-be novelists, a history of belletristic short stories in The New
While nobody knows how many books are started in a given year, a Yorker or in top literary journals like Paris Review or Ploughshares
survey reported in the New York Times tells us that 81 percent of will certainly help, as will winning a major first-novel contest. For aspirAmericans feel that “they have a book in them…and should write it.” ing authors of nonfiction, it would behoove you to be a reality teleOne can only assume that a survey of lawyers would yield an even vision star, or to have held a post in the last presidential administration,
higher number. Indeed, by dint of our educations, our analytical or to have won a Nobel Prize in economics. Short of these kinds of
mindsets, and our well-developed communication skills, lawyers are laurels, however, you will just have to wow those jaded New York
uniquely qualified to translate our professional experiences into com- editors with your snappy dialogue and your twisting, page-turning
pelling literature. Think of bestselling authors like Phillip Margolin plot.
But let us say that you have defied your doubters and persevered.
in thrillers or Vincent Bugliosi in true crime. But before you trade your
bar card for a battered Underwood, consider
some sobering numbers.
Over 3 million books are published each
History tells us that only one published author in 10 is able to make
year in the United States, and thanks to the ebook explosion and the rise of self-publishing
(a category that now accounts for over 90
a living from his or her writing.
percent of published books), that number continues to grow. At the same time, overall book
sales have declined steadily from their peak in
2007, with the result that the average book today sells fewer than 300 The manuscript of your debut thriller is now in the hands of a senior
copies. Even if we eliminate self-publishing from the equation, the num- editor at one of the large “legacy” publishers. You have inked your
bers are still daunting, in that over 300,000 new titles appear each publishing contract, and you have spent your advance (which, I’m
sorry to tell you, is less than $5,000, on average, for a first-time novyear, of which 90 percent will sell less than a thousand copies.
So naturally, as I contemplated life after 25 years of Los Angeles elist) on a celebratory dinner for friends and family. You have completed your author questionnaire, started a Facebook page, and
trial practice, what did I choose for a second career?
If you are lucky enough to have a client, or a college roommate, launched a blog. You have solicited book-jacket blurbs from the top
or maybe a favorite uncle in the publishing business, more power to names in the genre, and some have even obliged. You have approved
you. If you are like me, however, and the legion of ink-stained your cover design, written your acknowledgments page, and posed,
wretches in whose company I newly march, the first obstacle you will at long last, for that iconic black-and-white photo. Your publication
encounter on the road to bestsellerdom—after spending a year or two date is nigh. Break out the Dom Perignon, and raise a toast to a job
writing a really great book, of course—is landing a literary agent. This well done.
I am sorry to break this to you, but history tells us that only one
process doubles as your introduction to the cold reality of publishing, because literary agents serve the essential but dispiriting role of published author in 10 is able to make a living from his or her writgatekeepers to the distant, glittering kingdom of Terry Gross, Charlie ing. And with the industry in turmoil due to a variety of factors that
include a diminishing readership, chain-store closures, and an uncerRose, and Jon Stewart.
The facts are that few book publishers will even consider a man- tain economy, even that paltry figure is shrinking faster than the polar
uscript that is not routed through, and vouched for by, a reputable icecaps.
But enough doom and gloom. You are a lawyer, darn it, and a Los
agent, and that any agent worth his or her expense account receives
between 5,000 and 15,000 query letters per year from starry-eyed new- Angeles lawyer at that. You are used to long odds and lost causes and
bies and thick-skinned recidivists. From this teetering slush pile, a typ- fighting the good fight. So maybe you are that one dreamer in a milical agent will actually read around 30 entire manuscripts, accepting lion who will be finishing the manuscript, winning the international
for representation perhaps five, meaning that the odds of your over- first novel contest, landing the top New York agent, inking the multithe-transom book submission actually landing an agent are longer than book series deal, and earning the effusive book-jacket praise of
Margolin and Bugliosi.
the last day of school.
Take heart, my friends, it could happen. I know, because it all hapBut if you beat the odds and pass through that portal, you are now
■
an “agented” author. My advice is not to pose for that book-jacket pened to me.
photo just yet. Because it is a dirty little secret of the business that fewer
than half of agented manuscripts—and a far smaller percentage of
Chuck Greaves, a former member of the Los Angeles Lawyer Editorial Board,
maiden efforts—will ever be acquired for publication.
is the author of Hush Money: A Mystery (Minotaur), published in May. His secThere are ways, of course, in which to improve those odds. For
ond novel, Hard Twisted (Bloomsbury), is due in November.
44 Los Angeles Lawyer June 2012
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