Class Wars Semiannual Guide to Expert Witnesses Semiannual Guide to Expert Witnesses

Semiannual Guide to Expert Witnesses
April 2005 / $4
E A R N MCLE CR E D I T
The Intersection
of Probate and
Family Law
page 29
Class Wars
Los Angeles lawyer Brad W. Seiling explains how successful
class action lawsuits can result in malpractice claims page 22
PLUS
New Punitive Damages Tax page 14
Solvent Tenants in Bankruptcy page 18
Trademark Infringement Damages page 36
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April 2005
Vol. 28, No. 2
FEATURES
22 Class Wars
BY BRAD W. SEILING
In the wake of a recent appellate decision, class counsel may face a greater likelihood
of malpractice claims and attacks on class settlements
29 Tales of Two Courts
BY HOWARD S. KLEIN
Family court proceedings may give rise to issues that eventually must be settled in
probate court
Plus: Earn MCLE credit. MCLE Test No. 136 appears on page 31.
36 Marked Recovery
BY ANTONIO R. SARABIA II
The new provision for statutory damages in trademark infringement cases has already
created a substantial body of case law
LosAngelesLawyer
41 Special Section
Semiannual Guide to Expert Witnesses
The magazine of
The Los Angeles County
Bar Association
DEPARTMENTS
10 Barristers Tips
Invoking the procedure for judicial
disqualification
79 Computer Counselor
Technology trends affecting the practice
of law
BY GAVIN HACHIYA WASSERMAN
BY GORDON ENG
14 Practice Tips
Assessing the impact of the new law on
punitive damages
84 Closing Argument
A Washington fable for our time
BY KEITH PAUL BISHOP
BY JAMES J. FARRELL AND JEREMY G. SUITER
81 Classifieds
Cover photograph by Tom Keller
18 Practice Tips
Filing bankruptcy by solvent tenants to cap
landlords’ claims
82 Index to Advertisers
BY DAVID S. KUPETZ
83 CLE Preview
Judgments Enforced
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4 Los Angeles Lawyer April 2005
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6 Los Angeles Lawyer April 2005
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8 Los Angeles Lawyer April 2005
ach year we dedicate many pages of Los Angeles Lawyer magazine
to the business of the practice of law. This month, two articles address important issues that are related to this complicated and essential subject.
One of the hardest things for a lawyer to swallow is a claim that
he or she committed malpractice because the result the lawyer obtained, although
favorable to the client, was not good enough. That is exactly what happened last
year in a class action lawsuit in which the plaintiffs’ counsel obtained a $90 million
judgment for their clients. In this month’s cover story, Brad W. Seiling explores the
California Court of Appeal’s decision in Janik v. Rudy, Axelrod & Zieff, in which
the appellate court reversed the sustaining of a demurrer and held that a complaint
properly states a cause of action for professional negligence when an attorney fails
to consider and assert additional claims that could have increased the recovery in
an underlying case.
Although in the Janik case the malpractice claim was asserted by parties who were
not, but wanted to be, included as members of the class and therefore as clients of
the attorneys who litigated the class action on behalf of the class, it is not difficult
to apply the court of appeal’s rationale to many other factual scenarios. Indeed, by
holding that nonclients may assert a claim for malpractice on the grounds that an
attorney failed to consider or pursue claims that may have resulted in a benefit for
the nonclients, arguably the appellate court has created an expanded duty for
lawyers that is extremely broad in its scope. The question now is whether courts will
limit the Janik decision to its specific facts or apply it expansively to other scenarios outside the realm of class actions. Whatever occurs in the future, one of the lessons
that should be taken from the Janik case is that even a good result may not satisfy
a lawyer’s professional obligations to his or her client.
Punitive damages awards have been under attack on many fronts. The clamor
for “tort reform” usually includes a desire to restrict severely the availability of punitive damages for plaintiffs. In 2003, the U.S. Supreme Court held in State Farm Mutual
Automobile Insurance Company v. Campbell that in most cases a punitive damages
award that exceeds compensatory damages by more than 10 times is unconstitutional.
In August 2004, the California Legislature enacted Civil Code Section 3294.5,
which requires that 75 percent of all punitive damages awards be paid to the state
of California. The state must hold 25 percent of its portion of an award to compensate
the plaintiff’s attorney.
In their article, James J. Farrell and Jeremy G. Suiter analyze the application and
ramifications of Section 3294.5. They explain that the statute explicitly applies only
to judgments and not settlements. In addition, the statute is limited to cases that were
filed after August 16, 2004, and that are finally adjudicated (including all appeals)
before July 1, 2006. As a result of its short life span, the statute may not result in
the receipt of any money by the state. However, the California Legislature may elect
to extend the sunset provision of the statute. If that occurs, and Section 3294.5 is
effective for several more years, its effect will be significant for lawyers and their clients.
At the very least, the statute does create interesting wrinkles for cases filed after August
16, 2004. Indeed, the statute affects the analysis a lawyer undertakes in making a
business decision even to accept a case that includes a potential for the recovery of
punitive damages.
What does not need to be analyzed is that the business of the practice of law continues to become more complex. In the future, we at the magazine will do our best
to help explain the changes.
■
E
Gary S. Raskin is a principal of Garfield Tepper & Raskin, where his primary area of practice
is entertainment litigation. He is the chair of the 2004-05 Los Angeles Lawyer Editorial Board.
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Barristers Tips
BY GAVIN HACHIYA WASSERMAN
Invoking the Procedure for Judicial Disqualification
THE STATEMENT OF DISQUALIFICATION under Code of Civil recusal does not result, then a statement of disqualification becomes
Procedure Section 170.3(c) is used “when a judge who should dis- necessary.
Nevertheless, a judge may not be aware of facts that require disqualify himself or herself refuses or fails to do so.” Described as “outside the usual law and motion…rules,” the section is the basis for a closure, or a judge may simply err. A judge who recently left a law
unique procedure for disqualification.1 Every attorney in criminal or firm, for example, may not realize that a party to a current case was
civil trial practice should have a basic understanding of judicial dis- once a client of a lawyer with whom the judge was associated in the
qualification's numerous grounds and unique procedure. Lawyers may private practice of law within the previous two years.4 Or a judge may
inquire on the record in order to elicit facts that can generate a not realize that a lawyer involved in the proceeding is associated in
recusal or offer grounds for or against proceeding under the section. the private practice of law with a brother-in-law.5
Disqualification issues arise whenever the facts that support them do.
The statement of disqualification must be written and verified,
Disqualification is proper even after an adverse
summary judgment has been granted.2
Code of Civil Procedure Section 170.1 sets
The grounds for disqualification and their definitions require
grounds for disqualification under eight subsections. Seven of these refer to objective criteria—for example, whether the judge has a
close reading—and sometimes a passion for genealogy. Different
financial interest in the case as defined by
statute. However, Section 170.1(a)(6) includes
more subjective language: “[A] person aware
relationships matter for different grounds for disqualification.
of the facts might reasonably entertain a doubt
that the judge would be able to be impartial.”
Whatever subsection may apply, the grounds
for disqualification and their definitions require close reading—and objecting to the hearing or trial by the judge and setting forth facts
sometimes a passion for genealogy. Different relationships matter for constituting grounds for disqualification. The statement “shall be predifferent grounds for disqualification. Under Section 170.1(a)(1), sented at the earliest practicable opportunity after discovery of the
for example, a judge shall be deemed to have “personal knowledge facts constituting the ground for disqualification.”6 If investigation
of disputed evidentiary facts concerning the proceeding” and thus be and confirmation of preliminary facts take time, the statement should
disqualified if a material witness is the judge’s spouse, is related to the clearly show compliance with the timing requirement. Successive
judge or the judge’s spouse within the third degree (e.g., a niece or statements of disqualification are restricted to newly discovered
nephew), or is married to a third-degree relative.
grounds.7
In contrast, Section 170.1(a)(5) does not automatically disqualify a judge if a lawyer in the case is the spouse of a third-degree rel- Service of the Statement
ative. On the other hand, subsection (a)(5) automatically disqualifies A copy of the statement of disqualification “shall be personally
a judge when a lawyer is in practice with a sibling-in-law of the judge. served on the judge alleged to be disqualified, or on his or her clerk,
Furthermore, if none of these specifics correspond with the case at provided that the judge is present in the courthouse or in chambers.”8
hand, the provisions of 170.1(a)(6) may apply.3
The server and the court clerk need to understand that the judge is
Important facts often arise during an attorney’s initial research on being served, not merely receiving a courtesy copy. For this reason,
a trial judge, so composing a checklist for issue spotting and fact gath- the server should receive detailed instructions from the attorney on
ering can be helpful. Newer judges are covered by more subsections effecting the service and a number to call if any problems arise. For
of Section 170.1 than longtime bench officers, but the prior recusals example, a temporary court clerk may refuse the statement or direct
of more experienced judges may be available online to savvy searchers. the server to the filing window. Calling the courtroom clerk in
Whatever research a lawyer may conduct, a judge is in the best advance helps smooth the process, confirming the clerk’s underposition to know personal facts relevant to disqualification. Judges standing of the process and the judge’s presence for service. The
are required by Canon 3E of the Code of Judicial Ethics to “disclose server should confirm the judge’s presence and record the clerk’s
on the record information that the judge believes the parties or their name.
The judge who is served with a statement of disqualification has
lawyers might consider relevant to the question of disqualification,
even if the judge believes there is no actual basis for disqualification.” 10 days to act. The judge may 1) strike an untimely or legally insufJudges should regularly review the grounds for disqualification when
considering a case. If counsel becomes aware of facts supporting disGavin Hachiya Wasserman is managing partner of Wasserman & Wasserman,
qualification and brings those facts to the judge's attention but
LLP and is assistant vice president of the Barristers.
10 Los Angeles Lawyer April 2005
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12 Los Angeles Lawyer April 2005
ficient statement, 2) consent to or deny the
statement by filing a written verified answer
admitting or denying any or all of the allegations in the statement and setting forth
additional facts, or 3) pass the case on to a
judge agreed upon by the parties. Inaction is
deemed consent to disqualification.9
If the judge and court counsel file a written verified answer, the issue must be decided
by another judge. Generally, a Section 170.3
issue that arises in Los Angeles Superior
Court is decided by an Orange County
Superior Court judge. Attorneys should know
that Section 170.4 limits the actions of a
challenged judge and that the underlying
action may be stayed.
The judge who is assigned a Section 170.3
issue may decide the disqualification on the
statement, answer, “and such written arguments as the judge requests, or the judge may
set the matter for hearing as promptly as
practicable.”10 If the hearing is held, the parties and challenged judge may argue the issues
and the court “shall…hear evidence on any
disputed issue of fact.” No challenge is permitted against the assigned judge, although a
recusal by the assigned judge is possible.
A polite call to court staff may reveal the
assigned court’s policies, if any, on argument,
evidence, and hearings. For example, it is
the policy of one Orange County court that
frequently hears disqualifications not to set
hearings but to allow argument and evidence
to be submitted without leave of court. This
Orange County court also reserves the option
of disregarding material it deems irrelevant.
All filings on the disqualification are made in
the courtroom in Orange County. The
assigned court’s decision on disqualification
may be reviewed only by writ of mandate
within 10 days’ notice of the decision.11
At the beginning of a case and as it develops, an attorney’s due diligence may uncover
a judge’s family or professional ties to a party
involved in a case or simply create a reasonable doubt regarding whether the judge can
be impartial. Therefore, an attorney may
need to effect the filing of a statement of disqualification.
■
1
Urias v. Harris Farms, 234 Cal. App. 3d 415, 422
(1991).
2 Id. at 421-22.
3 See Johnston v. Brown, 115 Cal. 694 (1897) and CODE
CIV. PROC. §170.1(a)(6).
4 CODE CIV. PROC. §170.1(a)(2); Urias, 234 Cal. App.
3d 415.
5 See C ODE C IV . P ROC . §§170.1(a)(5), (a)(8)(b);
Hartford Casualty Ins. v. Superior Court, 125 Cal. App.
4th 250, 253 (2004). See also 28 U.S.C. §455; Mangini
v. United States, 314 F. 3d 1158 (2003).
6 CODE CIV. PROC. §170.3(c)(1).
7 CODE CIV. PROC. §170.4(c)(3).
8 CODE CIV. PROC. §170.3(c)(1).
9 CODE CIV. PROC. §170.4(b).
10 CODE CIV. PROC. §170.3(c)(5).
11 CODE CIV. PROC. §170.3(d).
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AL7616
Practice Tips
BY JAMES J. FARRELL AND JEREMY G. SUITER
RICHARD EWING
Assessing the Impact of the New Law on Punitive Damages
TAXATION WITHOUT REPRESENTATION led to a revolution in this
country almost 230 years ago. But taxation by litigation in California
has gone virtually unnoticed for the past several months. On August
16, 2004, with little public attention, the state enacted new Civil Code
Section 3294.5, which mandates that 75 percent of punitive damages
awards in California be paid into the state’s coffers.
At first glance, this revolutionary new law seems to be consistent
with the growing belief that massive punitive damages awards—
which inherently exceed actual damages—give plaintiffs an unwarranted windfall. But the plaintiffs’ bar supports Section 3294.5—no
doubt because its members will receive a guaranteed share of punitive damages awards that nearly equals their clients’ share, in addition to their other fees. The new law may also result in larger punitive damage verdicts if juries learn that the state will receive most of
the award. Conversely, because the 75 percent “tax” applies only to
final judgments, Section 3294.5 gives defendants facing punitive
damages substantially increased settlement leverage. By settling and
eliminating the state’s payment, a defendant could pay the plaintiff
his or her anticipated 25 percent portion, plus a portion of the 75 percent that would have otherwise gone to the state, and keep the
remainder of the 75 percent.
These conflicting results are not surprising because Section 3294.5
was not intended to reform the court system. Rather, its sole objective is to generate revenue—as much as $450 million—for cashstarved California.1 Indeed, in the language of the statute, the legislature notes that “extraordinary and dire budgetary needs have
forced the enactment of this extraordinary measure to allocate temporarily for the state’s Public Benefit Trust Fund a substantial portion of any punitive damages paid from a judgment during the limited time period specified in the statute.”2
However, it is unclear whether California will ever collect a dime
under the new law. Section 3294.5 applies only to cases filed after
August 16, 2004, and “finally adjudicated”—including the resolution
of all appeals—before July 1, 2006. Only a limited number of punitive damages cases may be resolved within that narrow 22-month window. Moreover, Section 3294.5 may generate more legal fees than state
revenues, because it could be subject to several constitutional challenges. Plaintiffs will lose most of their punitive damages award
under the new law, so they may argue that the statute constitutes an
unlawful taking or violates equal protection. Defendants may face
higher punitive damages verdicts as a result of the new law, so they
may challenge the statute on due process grounds. But no matter how
much revenue Section 3294.5 ultimately generates, every California
litigator should understand this important new law and its strategic
implications, which will affect every case seeking punitive damages
filed in California this year.
Section 3294.5 provides a procedure for the allocation of all
punitive damages that are awarded in a final judgment. The defendant pays the state’s 75 percent portion of the award to the director
of the Department of Finance for deposit into the newly created
14 Los Angeles Lawyer April 2005
Public Benefit Trust Fund.3 The state must hold 25 percent of the fund
to compensate the plaintiff’s attorney, and the state may use the
remainder of its portion for any purpose that is “consiste[nt] with the
nature of the award.”4 The plaintiff’s attorney is entitled to receive
the 25 percent of the state’s portion on July 1 of the next fiscal year.5
This statutory contingency fee is deemed to be the plaintiff’s attorney’s income for state and local taxation purposes6 and does not preclude any other fees negotiated with the plaintiff. After paying the
state’s 75 percent share, the defendant must notify the plaintiff’s
counsel of the amount of that payment and pay the 25 percent
remainder of the punitive damages award to the plaintiff through his
or her counsel.7
Section 3294.5 contains three procedural safeguards. First, to
prevent the state from taking advantage of the law, California may
not be a party in interest to, intervene in, or participate as amicus curiae
in “any action in which [the state’s] sole interest is the potential
recovery of a portion of a punitive damages award.”8 Second, to avoid
judicial bias, the money deposited into the Public Benefit Trust Fund
may not be appropriated to “the courts or judicial programs.”9
Third, to minimize juror misconduct, the jury may not be told that
a portion of a punitive damages award would go to the state; however, a juror’s independent knowledge of this fact will not disqualify
James J. Farrell is a partner and Jeremy G. Suiter is an associate in the Los
Angeles office of Latham & Watkins LLP, where they both specialize in securities and professional liability litigation.
that juror or otherwise provide a basis to set
aside the jury’s punitive damages award.10
By its own terms, Section 3294.5 has a
narrow window of applicability. The statute
applies only to actions that are filed on or after
August 16, 2004, and are “finally adjudicated” before July 1, 2006. 11 The term
“finally adjudicated” means truly final, and
includes “the resolution of all mandatory or
discretionary appeals, the resolution of any
motion for attorney’s fees on appeal and any
appeals therefrom, and the issue of final
remittitur.”12 This short 22-month time period
means that the new law may have little
impact. Large punitive damages cases can
take more than 22 months just to get to trial
and can last even longer if the defendant
exercises its right to bifurcate the liability
and damages phases.13 The median time to
conclude an appeal would be another 16
months.14 Thus, it is unlikely that a large
case will be “finally adjudicated” before the
July 1, 2006, sunset deadline. Even relatively
smaller punitive damages cases may elude
the statute’s grasp through continuances or
other procedural delays.
Of course, the legislature may extend the
limited life of Section 3294.5, bringing more
cases within its scope. The legislature stated
that this new law “shall not be construed to
establish any policy, precedent, presumption,
or inference in any case or any other setting,
including future legislatures, regarding the
award of punitive damages [or] its allocation.”15 Nevertheless, if Section 3294.5 successfully generates revenue, it could become
a permanent addition to the Civil Code.
California’s budget woes may make this
potential revenue source too tempting to
relinquish.
Settlements and Conflict of Interest
Because Section 3294.5 applies only to punitive damages that are “awarded pursuant to
a final judgment,”16 parties may wish to enter
into a settlement agreement prior to the entry
of final judgment. This approach could benefit both sides, particularly in cases in which
punitive damages have already been awarded
in a verdict. The settlement could be structured so that the defendant would pay, and
the plaintiff would receive, an amount that is
greater than the 25 percent share that the
plaintiff would receive under the statute but
is less than the total amount of punitive damages that the defendant would have to pay
under the judgment.
Consider, for example, a verdict for $1
million in punitive damages. As a purely economic matter, both the plaintiff and the defendant would prefer a settlement that requires
the defendant to pay $300,000 (30 percent)
to the plaintiff, rather than a judgment subject to the statute, under which the defendant
would pay $1 million (100 percent) but the
plaintiff would receive only $250,000 (25
percent). As a result, one likely effect of
Section 3294.5 is that the number of settlements will increase.17
The statutory contingency fee provision
may create a significant conflict of interest
between client and counsel on the issue of settlement. A plaintiff expecting a punitive damages award may want to settle for an amount
that is smaller than the potential verdict but
greater than the 25 percent share the plaintiff would otherwise receive under Section
3294.5. The plaintiff’s attorney, on the other
hand, has an incentive not to settle because
the attorney’s recovery could be far greater if
the statute, and its 25 percent statutory contingency fee, is applied.
In the scenario of the $1 million punitive
damages award, consider the consequences if
the plaintiff’s attorney charged a contractual
contingency fee of 40 percent. If Section
3294.5 is applied to that award, the attorney
may be entitled to both 25 percent of the
state’s portion and 40 percent of the plaintiff’s
portion of the punitive damages award. This
means that the attorney would receive
$287,500,18 and the plaintiff would receive
$150,000,19 while the state would receive
$562,500.20 But if the parties settle the punitive damages component for $300,000,
thereby eliminating California’s portion and
the 25 percent statutory contingency fee, the
attorney would receive just $120,000,21 and
the plaintiff would receive $180,000.22 That
settlement would increase the plaintiff’s recovery by $30,000 but cost his or her counsel
$167,500. As a result, a leading legal institute
has concluded that “allowing the plaintiff’s
attorney some contingent share of the state’s
award creates a potential conflict with the
interests of the plaintiff.”23 These competing
financial motivations of plaintiffs and their
counsel may create a new ethical dilemma.24
Legal Challenges
Similar punitive damages apportionment
statutes in other states have been challenged
on various legal grounds. One of the most
common attacks by plaintiffs is that apportioning punitive damages to the state violates the takings clause of the U.S. Constitution or an equivalent provision of a state
constitution. The takings clause prohibits the
government from taking private property for
public use without providing just compensation.25 Because property rights protected by
the takings clause are created by state law,26
these challenges have generally been rejected
on the ground that a plaintiff has no property
right in a punitive damages award if a state
statute assigns a portion of that award to
the state.27 As the Indiana Supreme Court
explained in a decision upholding an Indiana
statute apportioning punitive damages to the
state:
[A]ny interest the plaintiff has in a
punitive damages award is a creation
of state law.…The Indiana legislature
has chosen to define the plaintiff’s
interest in a punitive damages award
as only twenty-five percent of any
award, and the remainder is to go to
[a state fund]. The award to the Fund
is not the property of the plaintiff.…As
a result, there is no taking of any property by the statutory directive that the
clerk transfer a percentage of the punitive damages award to the Fund.28
Only one takings challenge has succeeded.
The Colorado Supreme Court struck down its
state’s punitive damages apportionment
statute as an unconstitutional taking of the
plaintiff’s property.29 Crucial to the court’s
decision was the fact that the state “affirmatively disavowed, pursuant to the statute
itself, ‘any interest in the claim for [punitive]
damages …at any time prior to the payment
becoming due.’”30 Because the statute provided that the state’s payment did not become
due until after the plaintiff obtained judgment
and did not require the judgment to name the
state as a creditor, the court concluded that
the plaintiff obtained a protected property
interest in the entire amount of its punitive
damages award upon entry of that judgment.31 As the court explained, “The legislature may well abate or diminish a pending
civil action, but when that claim ripens into
judgment ‘the power of the legislature to disturb the rights created thereby ceases.’”32
Although other courts have criticized the
Colorado decision, California’s Civil Code
Section 3294.5 could face a similar challenge
because it grants the state punitive damages
awarded in a “final judgment” without defining the state’s interest in the award. Further,
the California Supreme Court has observed
that the legislature lacks the authority “to take
away rights which have been once vested by
a judgment.”33 Nevertheless, the legislature
could easily remedy any constitutional infirmity that exists in Section 3294.5 by amending the statute to clarify that the plaintiff
does not acquire a property right in the state’s
portion of the punitive damages award, or
that the state has an interest in the punitive
damages award upon entry of the verdict.
Both provisions have passed constitutional
muster in other cases.34
Plaintiffs have also challenged punitive
damages apportionment statutes under the
excessive fines clause of the U.S. Constitution.35 In Browning-Ferris Industries of
Vermont, Inc. v. Kelco Disposal, Inc., the
U.S. Supreme Court observed that the excessive fines clause applies “primarily, and perhaps exclusively, to criminal prosecutions
Los Angeles Lawyer April 2005 15
and punishments.”36 Accordingly, the Court
held that the clause “does not constrain an
award of money damages in a civil suit when
the government neither has prosecuted the
action nor has any right to receive a share of
the damages awarded.”37
Seizing on this qualification in BrowningFerris, one federal district court has held that
Georgia’s punitive damages apportionment
statute violated the excessive fines clause
because it required the plaintiff to deposit a
portion of his punitive damages award into
the state treasury.38 But other state and federal courts have rejected similar challenges,
holding that the statutes in question did not
violate the excessive fines clause because the
state 1) could not intervene in private litigation and thus had no prosecutorial power, and
2) did not control the amount of punitive
damages sought or awarded and thus had no
interest in the award until it is made.39 Some
courts also drew a distinction for those statues directing that the award must be deposited
into a state fund with a specified purpose,
rather than the state’s all-purpose general
treasury.40 Given that Section 3294.5 similarly
prohibits California from intervening in private litigation seeking punitive damages and
requires that the state’s portion of any punitive damages award be deposited into a specified fund, a constitutional challenge based on
the excessive fines clause may be difficult.
A third challenge by plaintiffs is that punitive damages apportionment statutes violate
equal protection requirements. The equal
protection clause of the U.S. Constitution
provides that no state shall “deny to any person within its jurisdiction the equal protection
of the laws.”41 This “provision creates no substantive rights,” but instead “embodies a
general rule that States must treat like cases
alike but may treat unlike cases accordingly.”42 Provided that the law in question
does not burden a fundamental right (such as
the right to vote) or target a suspect class (such
as race), then the law would be upheld if it is
rationally related to a legitimate government
purpose.43
Many courts have rebuffed equal protection challenges to statutes similar to Section
3294.5. For example, the Missouri Supreme
Court rejected the argument that Missouri’s
apportionment statute, which applies only
to final judgments, violated the equal protection clause because it discriminated against
plaintiffs who do not settle. As the court
explained, there were several possible “legitimate reasons for the legislature to distinguish between punitive damages awarded by
court judgment and punitive damages recovered through settlement,” including the desire
to encourage settlement, and the fact that it
would be easier for the state to collect its
portion of punitive damages that are awarded
16 Los Angeles Lawyer April 2005
in a final judgment rather than in a settlement.44 Similarly, the Georgia Supreme Court
rejected the argument that Georgia’s apportionment law violated equal protection principles because it applies only to punitive damages awarded in product liability actions.45 As
the supreme court explained, “[T]he trial
court was correct in its finding that the statute
treats plaintiffs in various tort actions differently. However, all similarly situated plaintiffs and defendants, including those in product liability actions, are treated equally by the
statute.”46 In light of these consistent judicial
rejections of equal protection arguments
offered by plaintiffs, it is unlikely that Section
3294.5 violates the equal protection clause.
But plaintiffs may not be the only parties
who challenge Section 3294.5. Defendants
also may challenge the statute on due process
grounds. With respect to punitive damages,
the due process clause of the U.S. Constitution
prohibits the imposition of grossly excessive
or arbitrary awards.47 In determining whether
a punitive damages award is excessive or
arbitrary under the due process clause, courts
must consider three factors articulated in
BMW of North America, Inc. v. Gore and
reaffirmed in State Farm Mutual Automobile
Insurance Company v. Campbell: 1) The reprehensibility of the defendant’s misconduct,
2) the disparity between the actual or potential harm suffered by the plaintiff and the
punitive damages award, and 3) the difference
between the punitive damages award and
the civil penalties authorized or imposed in
similar cases.48 If the jury was influenced by
other arbitrary factors, such as prejudice or
bias, then its punitive damages award violates
due process.49
Ostensibly to prevent an arbitrary award,
Section 3294.5 prohibits a jury from being
“informed that any portion of a punitive damages award will be paid to a government
fund.”50 This prohibition is consistent with
appellate court decisions from other jurisdictions holding that it is reversible error to
inform a jury by way of jury instructions,
verdict forms, or closing arguments that the
state will receive part of any punitive damages
award pursuant to an apportionment statute.51
As one of those courts explained, any knowledge of the potential apportionment can
encourage the jury to 1) “award punitive
damages for an improper reason—to enhance
a state’s account,” and 2) “deliberate on the
plaintiff’s share of punitive damages and add
[an] additional amount to compensate for
the portion distributed to [the state.]”52
However, an exception contained in
Section 3294.5 threatens to undermine its
cautious—and constitutional—approach. The
exception provides that a juror’s independent knowledge that a portion of a punitive
damages award goes to the state will not
provide a basis to disqualify that juror or set
aside the jury’s punitive damages award.53
Thus, the statute acknowledges the risk of
improper influence created by the knowledge
that the state will take 75 percent of a punitive damages award but prohibits the dismissal of a juror who has that knowledge—
as long as it was gained before the trial. The
possibility of independent knowledge will
likely increase over time, particularly if the legislature extends the life of Section 3294.5, and
the apportionment process is delineated and
discussed in news reports about punitive
damages verdicts in California. As a result,
defendants who already face a median punitive damages verdict in California that is
three to six times higher than the national
average54 may soon see punitive damages
verdicts increase if juries attempt to increase
their awards to provide more money to the
state or to offset the plaintiff’s share that is
lost to the state.
Recent court decisions reflect a growing
national trend to reduce the perceived windfall that plaintiffs receive from large punitive
damages awards. Section 3294.5 may be the
next step in that trend, although it was
enacted simply to generate revenue for
California. Regardless of how much revenue
it generates, every practitioner should be
familiar with this important new law because
of its potential impact on litigating punitive
damages cases, including settlement strategy,
conflicts of interest, and the amount of and
frequency of punitive damages awards. ■
1
See L EGISLATIVE A NALYST O FFICE , C ALIFORNIA
SPENDING PLAN 2004-05 55 (Sept. 2004), available at
http://www.lao.ca.gov/2004/spend_plan_04/0904
_spend_plan.pdf.
2 CIV. CODE §3294.5(a).
3 CIV. CODE §3294.5(c)(1).
4 CIV. CODE §3294.5(b)(1). The statute does not explain
what this quoted phrase means.
5 CIV. CODE §3294.5(d).
6 CIV. CODE §3294.5(f). The U.S. Supreme Court
recently held that for federal taxation purposes, the portion of a verdict or settlement paid to the plaintiff’s
attorney pursuant to a contingency fee agreement is the
income of the plaintiff and not the attorney. Comm’r
of Internal Revenue v. Banks, ___ U.S. ___, 2005 WL
123825 (Jan. 24. 2005).
7 CIV. CODE §3294.5(c)(2), (c)(3).
8 CIV. CODE §3294.5(e).
9 CIV. CODE §3294.5(b)(1).
10 CIV. CODE §3294.5(g).
11 CIV. CODE §3294.5(h) & (i).
12 CIV. CODE §3294.5(h).
13 CIV. CODE §3295(d).
14 See JUDICIAL COUNCIL OF CALIFORNIA, 2004 COURT
S T A T I S T I C S R E P O R T 19 (2004), available at
http://www.courtinfo.ca.gov/reference/documents
/csr2004.pdf.
15 CIV. CODE §3294.5(a).
16 CIV. CODE §3294.5(b).
17 Rather than settle for a smaller portion, however,
some plaintiffs may try to recover their entire punitive
damages award by filing their action in federal court.
If §3294.5 is “procedural” rather than “substantive”
for purposes of the Erie doctrine, then federal courts
need not apply the statute, and California will have no
right to share in the punitive damages award. See generally Snead v. Metropolitan Prop. & Cas. Ins. Co., 237
F. 3d 1080, 1090 (9th Cir. 2001). In fact, California
is barred from appearing in any action for the sole purpose of collecting such an award. See CIV. CODE §3294
(e); see also Finley v. Empiregas, Inc. of Potosi, 28 F.
3d 782, 784 (8th Cir. 1994) (holding that similar
language in Missouri Revised Statutes §537.675 prevented state of Missouri from appearing in federal
diversity case to which it was not a party to request
portion of plaintiff’s punitive damages award). While
federal courts have not yet scrutinized §3294.5, they
are likely to hold that §3294.5 is a substantive statute
that applies to punitive damages awarded in federal
diversity cases. Cf. Finley, 28 F. 3d at 784 (describing
district court’s application of Iowa’s punitive damages apportionment statute to punitive damages award
in federal diversity action); Simpson v. Burrows, 90 F.
Supp. 2d 1108, 1131 (D. Or. 2000) (applying Oregon’s
punitive damages apportionment statute to punitive
damages award in federal diversity action).
18 $287,500 = $187,500 (plaintiff attorney’s statutory
contingency fee of 25% of state’s $750,000 portion)
+ $100,000 (plaintiff attorney’s contractual contingency fee of 40% of plaintiff’s $250,000 portion).
19 $150,000 = $250,000 (plaintiff’s 25% portion of $1
million award) - $100,000 (plaintiff attorney’s contractual contingency fee of 40% of plaintiff’s $250,000
portion).
20 $562,500 = $750,000 (state’s 75% portion of $1 million award) - $187,500 (plaintiff attorney’s statutory
contingency fee of 25% of state’s $750,000 portion).
21 $120,000 = 40% of $300,000.
22 $180,000 = 60% of $300,000.
23
2 AMERICAN LAW INSTITUTE, REPORTERS STUDY,
ENTERPRISE RESPONSIBILITY FOR PERSONAL INJURY:
APPROACHES TO LEGAL AND INSTITUTIONAL CHANGE
259 n.49 (Apr. 15, 1991).
24 See generally Santa Clara County Counsel Attorneys
Ass’n v. Woodside, 7 Cal. 4th 525, 546 (1994) (discussing CAL. RULES OF PROF’L CONDUCT R. 3-310(B)).
25 U.S. CONST. amend. V.
26 See Logan v. Southern Cal. Rapid Transit Dist.,
136 Cal. App. 3d 116, 125 (1982) (citing Board of
Regents v. Roth, 408 U.S. 546, 577 (1972)).
27 See, e.g., Shepherd Components, Inc v. Brice PetridesDonohue & Assocs., Inc., 473 N.W. 2d 612 (Iowa
1991); Cheatham v. Poole, 789 N.E. 2d 467 (Ind.
2003).
28 Cheatham, 789 N.E. 2d at 473.
29 Kirk v. Denver Publ’g Co., 818 P. 2d 262 (Colo.
1991).
30 Id. at 272 (quoting COLO. REV. STAT. §13-21-102(4)).
31 Id.
32 Id. (quoting McCollough v. Virginia, 172 U.S. 102,
123-24 (1898)).
33 People v. Barwick, 7 Cal. 696, 700 (1936) (quoting
McCollough, 172 U.S. at 123-24).
34 See Fust v. Attorney Gen., 947 S.W. 2d 424, 431
(Mo. 1997) (upholding MO. REV. STAT. §537.675
(1994)); DeMendoza v. Huffman, 51 P. 3d 1232,
1247 (Or. 2002) (upholding OR. REV. STAT. §18.540
(1996)).
35 U.S. CONST. amend VIII.
36 Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal,
Inc., 492 U.S. 257, 262 (1989).
37 Id. at 264.
38 See McBride v. General Motors Corp., 737 F. Supp.
1563, 1577-78 (M.D. Ga. 1990).
39 See, e.g., Burke v. Deere & Co., 780 F. Supp. 1225,
1242 (S.D. Iowa 1991), rev’d on other grounds, 6 F.
3d 497 (8th Cir. 1993); Hoskins v. Business Men’s
Assurance, 79 S.W. 3d 901, 904 (Mo. 2002); Spaur v.
Owens-Corning Fiberglass Corp., 510 N.W. 2d 854,
868-69 (Iowa 1994).
40 See Burke, 780 F. Supp. at 1242; Spaur, 510 N.W.
2d at 869.
41 U.S. CONST. amend. XIV, §1.
42 Vacco v. Quill, 521 U.S. 793, 799 (1997).
43 Silveira v. Lockyer, 312 F. 3d 1052, 1088 (9th Cir.
2003) (internal quotations omitted).
44 Fust v. Attorney Gen., 947 S.W. 2d 424, 432 (Mo.
1997).
45 Mack Trucks, Inc. v. Conkle, 436 S.E. 2d 635 (Ga.
1993).
46 Id. at 639 (emphasis in original).
47 See State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 416 (2003).
48 BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 57475 (1996); State Farm, 538 U.S. at 418.
49 See State Farm, 538 U.S. at 417-18.
50 CIV. CODE §3294.5(g).
51 See, e.g., Burke v. Deere & Co., 6 F. 3d 497, 51213 (8th Cir. 1993); Ford v. Uniroyal Goodrich Tire Co.,
476 S.E. 2d 565, 570-71 (Ga. 1996); Honeywell v.
Sterling Furniture Co., 797 P. 2d 1019, 1022 (Or.
1990).
52 Ford, 476 S.E. 2d at 571-72 (citing Honeywell, 797
P. 2d at 1021-22)).
53 CIV. CODE §3294.5(g).
54 See DR. LAWRENCE J. MCQUILLAN & ANTHONY
P. ARCHIE, PACIFIC RESEARCH INSTITUTE, CALIFORNIA
2005, R EFORM A GENDA : B USINESS & E CONOMIC
S TUDIES 1 (Dec. 2004), available at http://www
.pacificresearch.org/pub/sab/entrep/2004/Reform
_Agenda.pdf.
Los Angeles Lawyer April 2005 17
Practice Tips
BY DAVID S. KUPETZ
Filing Bankruptcy by Solvent Tenants to Cap Landlords’ Claims
BANKRUPTCY CODE SECTION 502(b)(6) provides a cap on claims of lion, and 15 percent of this amount is $1.8 million. Since the 15 perlandlords for damages under long-term real property leases. Businesses cent amount is greater than the amount of rent reserved for one year
such as retail chain stores often file reorganization cases under chap- and is less than rent for three years, the landlord’s claim would be
ter 11 of the Bankruptcy Code in order to take advantage of this cap capped at $1.8 million.
when closing unprofitable locations. These cases generally involve
insolvent entities that are facing many difficult financial issues and Solvent Chapter 11 Filings
challenges.
There is no question that insolvent entities may file bankruptcy to take
Courts recently have addressed whether a solvent entity may advantage of this cap. However, access to bankruptcy protection is
commence a chapter 11 reorganization solely to reject its one and only not conditioned on insolvency.5 A debtor does not have to demonreal estate lease and limit its landlord’s lease termination damages strate insolvency under either a balance sheet test (liabilities in excess
claim. While courts uniformly recognize
that chapter 11 is available to solvent entities, in two recent decisions—In re Integrated
The common thread that runs through the case law is that the question
Telecom Express, Inc.1 and In re Liberate
Technologies2—the use of chapter 11 by
solvent entities solely to apply the Section
of good faith is based on the totality of the circumstances.
502(b)(6) cap was limited to situations in
which the debtor was facing some level of
financial distress.
The Section 502(b)(6) cap is designed to limit lease termination of assets) or under a liquidity test (unable to pay its debts as they come
claims to prevent landlords from receiving a windfall at the expense due).6 While the Bankruptcy Code does not limit chapter 11 relief to
of other creditors. Depending upon the length of a lease, the landlord’s insolvent debtors or those who suffer any particular form of financlaim for future rent could be enormous and dramatically diminish cial distress, courts have held that this “does not mean that all solthe return to other unsecured creditors.3 Section 502(b)(6) limits vent firms should have unfettered access to Chapter 11.”7
the claim of a lessor for damages resulting from the termination of
The lack of any bankruptcy solvency test is rooted in the reality
a lease of real property to:
that, at times, solvent entities suffer from financial distress.8 In fact,
(A) The rent reserved by such lease, without acceleration, for
“[i]t is not uncommon for debtors to be solvent under the balance sheet
the greater of one year, or 15 percent, not to exceed three years,
test, and yet to have severe financial problems.”9 Congress rightfully
of the remaining term of such lease, following the earlier of—
believed that entities should be eligible for relief under chapter 11
(i) the date of the filing of the petition; and
before becoming insolvent under a balance sheet test: “The prospects
(ii) the date on which such lessor repossessed, or the lessee surfor reorganizing a debtor in financial difficulty are much better when
rendered, the leased property; plus
the debtor is still solvent than after it becomes insolvent.” 10
(B) Any unpaid rent due under such lease, without acceleraAccordingly, the absence of an insolvency requirement allows entition, on the earlier of such dates.
ties to enter chapter 11 before facing a financially hopeless situation.
The Section 502(b)(6) cap should be a relatively simple calculation.
Nevertheless, to safeguard the integrity of the purpose of chapFirst, the court calculates the total rent reserved4 under the lease from ter 11, courts have created a good faith doctrine.11 If a chapter 11
the earlier of the date of the tenant’s bankruptcy filing or the date on bankruptcy petition is not filed in good faith, a bankruptcy court may
which the landlord repossessed or the lessee surrendered the leased prop- dismiss the petition “for cause” or convert the chapter 11 case to a
erty. Second, the court calculates 15 percent of the total due under the chapter 7 liquidation case pursuant to Bankruptcy Code Section
lease. Third, the court compares this 15 percent amount to the rent 1112(b).12 The good faith determination is made on a case-by-case
reserved under the lease for one year following the earlier of the basis that focuses on the totality of the circumstances and involves
bankruptcy filing or repossession or surrender of the leased property. a fact-intensive inquiry.13
The cap is the greater of the two, subject to the 15 percent amount
In examining the question of good faith, courts generally address
not exceeding the amount of three years of rent. For example, in a sce- two primary areas: 1) whether the bankruptcy petition serves a legitnario in which the debtor is current on all lease payments and has five
years remaining, and the rent reserved under the lease is $100,000 per David S. Kupetz is a partner in Sulmeyer Kupetz, a Los Angeles and Menlo Park
month, the total amount of future rent is $6 million, of which 15 per- firm. He specializes in crisis avoidance consultation, troubled transactions,
cent is $900,000. The rent reserved for one year is $1.2 million, so the workouts, debt restructurings, business reorganizations, bankruptcies,
cap is $1.2 million. If instead of five years there are 10 years remain- receiverships, assignments for the benefit of creditors, and other insolvency
ing under the same lease, the total amount of future rent is $12 mil- matters.
18 Los Angeles Lawyer April 2005
imate bankruptcy purpose, such as preserving a going concern (along with employees’
jobs) by avoiding the piecemeal liquidation of
the enterprise or otherwise maximizing the
value of the debtor’s estate, and 2) whether
the petition was filed simply to create delay,
harass or impose hardship on creditors, or
otherwise obtain a tactical advantage in litigation.14 The Third Circuit Court of Appeals
has explained the development of the judicially created good faith requirement:
It is easy to see why courts have
required Chapter 11 petitioners to act
within the scope of the bankruptcy
laws to further a valid reorganizational
purpose. Chapter 11 vests petitioners
with considerable power—the automatic stay, the exclusive right to propose a reorganization plan, the discharge of debts, etc.,—that can impose
significant hardship on particular creditors. When financially troubled petitioners seek a chance to remain in
business, the exercise of those powers
is justified. But this is not so when a
petitioner’s aims lie outside those of the
Bankruptcy Code.15
The majority of chapter 11 debtors are
insolvent and, in those cases, the good faith
doctrine is generally not implicated. In contrast, when the debtor is solvent and files a
chapter 11 petition in order to use Section
502(b)(6) to cap its sole landlord’s claim,
thereby enhancing the recovery of the debtor’s
shareholders (as opposed to its creditors),
courts have struggled with the application
of the good faith doctrine. In chapter 11
cases involving multiple leases, the issue is less
likely to arise since these cases will involve
more than just a two-party dispute, and there
is a greater likelihood of more complicated
financial issues and problems.
Recent Case Law
Prior to 2004, courts examining whether the
commencement of a bankruptcy case for the
purpose of using a particular provision in the
Bankruptcy Code constituted bad faith found
that, absent other factors, it did not.16 Against
that backdrop, it is important to understand
the reasoning of Integrated Telecom Express17
and Liberate Technologies,18 in which the
Third Circuit Court of Appeals and a
Northern District of California bankruptcy
court, respectively, held that filing chapter 11
solely to use Section 502(b)(6) to cap a single
landlord’s lease termination damage claim
does not, by itself, establish good faith.
In Integrated Telecom Express, the Third
Circuit addressed a situation in which “a
Chapter 11 petition [was] filed by a financially
healthy debtor, with no intention of reorganizing or liquidating as a going concern, with
no reasonable expectation that Chapter 11
proceedings will maximize the value of the
debtor’s estate for creditors, and solely to
take advantage of a provision in the
Bankruptcy Code that limits claims on longterm leases….”19 The debtor had $105.4 million in cash and $1.5 million in other assets
at the time it filed its chapter 11 petition.
The landlord asserted a claim of approximately $26 million. The debtor listed other
miscellaneous liabilities of approximately
$430,000 and had exposure in connection
with a class action lawsuit of up to $5 million
(any liability in excess of that amount was
covered by insurance). Thus, the debtor was
not suffering financial distress and was highly
solvent and cash rich at the time it filed a
chapter 11 petition. Applying the Section
502(b)(6) cap, the landlord’s claim would be
reduced from $26 million to $4.3 million, and
the shareholders of the debtor would enjoy the
benefit of this reduction. In addition, the case
involved a smoking gun—a board resolution
and letter of counsel composed prior to the
bankruptcy filing stating that, if the landlord was unwilling to settle, the debtor would
file a chapter 11 petition and cap the landlord’s claim under Section 502(b)(6).
The Third Circuit found that the chapter
11 petition was not filed in good faith since the
debtor was not in financial distress, and the filing would not preserve any value for the
debtor’s creditors that would have been lost
absent the filing. According to the appeals
court:
To be filed in good faith, a petitioner
must do more than merely invoke some
distributional mechanism in the
Bankruptcy Code. It must seek to create or preserve some value that would
otherwise be lost—not merely distributed to a different stakeholder—outside of bankruptcy. This threshold
inquiry is particularly sensitive where,
as here, the petition seeks to distribute
value directly from a creditor to a company’s shareholders.20
The Third Circuit determined that the
question of good faith was antecedent to the
application of Section 502(b)(6), stating:
Ҥ502(b)(6) and the legislative policy underlying that provision assume the existence of
a valid bankruptcy, which, in turn, assumes
a debtor in financial distress.”21 Finding that
the petition was not filed in good faith, the
Third Circuit dismissed it.
The Third Circuit distinguished Integrated
Telecom Express from its earlier decision in
Solow v. PPI Enterprises (U.S.), Inc. (In re PPI
Enterprises (U.S.), Inc.)22 and from the Ninth
Circuit’s decision in Platinum Capital, Inc. v.
Sylmar Plaza, L.P. (In re Sylmar Plaza, L.P.)23
on the grounds that the debtors in those cases
were in financial distress and may actually
have been insolvent. In PPI, the debtor
claimed to have been insolvent, although this
depended on whether claims of insiders were
allowed. The Third Circuit in PPI held that a
chapter 11 petition and liquidating chapter 11
plan filed for the primary purpose of capping
a landlord’s lease termination damages claim
did not contravene the good faith requirement. In its Integrated Telecom Express decision, the Third Circuit stated that “PPI stands
for the proposition that an insolvent debtor
can file chapter 11 in order to maximize the
value of its sole asset to satisfy its creditors
while at the same time availing itself of the
landlord cap under §502(b)(6).”24
Also, in Integrated Telecom Express the
Third Circuit distinguished Sylmar Plaza as a
case in which solvency was at issue and chapter 11 was used to maximize value for creditors. The appeals court stated that “although
the debtors appear to have come out solvent
in Sylmar Plaza, there is no indication that
they would have come out solvent had the
bank’s claim not been limited, or that solvency was a foregone conclusion when the petition was filed.”25
Although Sylmar Plaza did not involve
Section 502(b)(6), the Ninth Circuit in that
case addressed a plan in which the sole purpose was to enable the debtors to “cure and
reinstate” an obligation under Bankruptcy
Code Section 1124(2). In so doing, the debtor
avoided an approximately $1 million contractual liability for default interest owed to
the debtor’s secured creditor bank. The Ninth
Circuit rejected the bank’s argument that a
chapter 11 plan lacked good faith when it left
the debtors solvent while allowing them to
reverse and avoid paying default interest to
the bank, stating that “[g]iven the specific
power to cure defaults, it makes no sense to
treat a plan invoking that power as lacking
good faith.”26
The Northern District bankruptcy court’s
finding in Liberate Technologies27 that filing bankruptcy solely to use Section 502(b)(6)
did not constitute the requisite good faith
emerged from a situation in which the debtor
had ongoing business operations that were
suffering significant losses and faced several
pending lawsuits. However, the debtor had
$212 million of unrestricted cash on hand
and had total liabilities between approximately
$59 million and $167 million, depending upon
the outcome of the pending litigation.
Accordingly, the debtor’s cash exceeded its
liabilities by between $45 million and $153
million. Further, the debtor had received an
offer from an entity willing to purchase the
debtor’s business assets without a bankruptcy
filing.
Facing a motion to dismiss the chapter 11
petition as a bad faith filing, the debtor
asserted that it needed bankruptcy relief
because of pending litigation, operational
Los Angeles Lawyer April 2005 19
losses, its desire to cap its landlord’s lease termination damage claim, and problems in
selling its assets. The bankruptcy court
rejected each of these reasons. The court
found that the pending litigation did not
create a present need for bankruptcy relief
because 1) it did not threaten the continuation of the debtor’s business, 2) the debtor
might never incur significant liabilities from
the lawsuits, and 3) the debtor could pay
any judgments without liquidating business
assets. The court further found that the
debtor’s lack of profitability and the prospect
of further losses did not show a present need
for bankruptcy relief when the debtor had the
present ability to pay all its debts without
liquidating business assets. Moreover, the
debtor’s own evidence showed that the debtor
did not need chapter 11 protection to effect
a sale of its assets as a going concern, according to the court. Also, the court noted that
allowing the chapter 11 case to proceed
would impose real hardship on the debtor’s
landlord since the debtor sought to reduce the
amount of the landlord’s claim from $45
million due under state law to the capped
sum of $8 million allowed under Section
502(b)(6). In dismissing the chapter 11 case,
the court found that the debtor’s proposed
use of Section 502(b)(6) was simply a neutral factor that did not establish either good
faith or bad faith.
Chameleon Systems and Chapter 7
By contrast, in In re Chameleon Systems,
Inc.,28 an earlier decision, another Northern
District bankruptcy court held that a solvent
debtor could use chapter 11 to cap lease
damages. The debtor in that case filed its
chapter 11 petition for the purpose of rejecting its sole real estate lease and then capping the landlord’s lease termination damage
claim under Section 502(b)(6). The debtor had
no ongoing operations, no income, and no
employees other than a consultant it had
hired to wind down its affairs, liquidate its
assets, and settle various obligations owed to
creditors. The debtor had in excess of $4
million in its bank accounts and, other than
its $4 million-plus obligation to its landlord,
the debtor’s total outstanding obligations
amounted to approximately $25,000. Unlike
Integrated Telecom Express and Liberate
Technologies, the debtor would have been
insolvent if the landlord’s claim was not
capped. However, if the Section 502(b)(6)
cap were to be applied, the debtor would
have cash substantially in excess of the amount
of its debt.
Prior to filing its chapter 11 petition, the
debtor attempted to surrender possession of
the premises to the landlord and to negotiate
a termination of the lease, but the parties
were not able to reach an agreement. There
20 Los Angeles Lawyer April 2005
were approximately three years remaining
before the lease would expire, and the debtor
did not want to continue paying the landlord
the monthly rent through the expiration date
despite the fact that it had adequate funds to
do so. In its decision, the bankruptcy court
summarized applicable California landlordtenant law:
Under California law…[the landlord]
had the option of accepting the surrender of the property and then having the state court fix the damages for
the breach of the lease. This would
have adjudicated the total damages
suffered by…[the landlord] as a result
of the breach of the lease. Rather than
pursue this course of action…[the landlord] elected its other option, to continue to consider…[the debtor] its tenant and to seek to collect rent on a
monthly basis…[for approximately
another three years].29
After filing its chapter 11 petition, the
debtor filed a motion seeking to reject the
lease and cap the landlord’s claim at $1.816
million. The landlord responded by filing a
motion requesting that the bankruptcy court
dismiss the case as a bad faith filing. While
recognizing that reorganization of an ongoing business or the liquidation of assets are
valid purposes for filing chapter 11, the
Chameleon Systems court noted that, in this
case, there was no ongoing business, and the
liquidation of assets had been completed
prior to the filing of the chapter 11 petition.
The court focused on whether the debtor’s filing was a legitimate use of the Bankruptcy
Code or whether the debtor was attempting
to unreasonably deter and harass creditors
simply as a litigation tactic.30 The court
acknowledged that:
[T]he resolution of this dispute involves
a possible windfall no matter what
the decision. If the court decides in
favor of the debtor and allows the
bankruptcy to continue the claim will
be capped and it appears that additional funds will flow to shareholders
of the debtor. On the other hand if the
case proceeds under California law,
the debtor is presented with a Hobson’s
choice. Chameleon must stay in existence for another two or three years, or
pay…[the landlord] now whatever it
demands to terminate the lease regardless of what might happen in terms of
mitigation later in 2004, 2005 or 2006.
In the latter case, if the property is
rented in the next 2 years for any
amount the landlord will receive a
windfall and the debtor will not be in
existence to complain. Either way there
is the possibility of a windfall.31
Ultimately, the court found that if the case
had been filed under chapter 7 of the
Bankruptcy Code, the landlord’s claim would
be capped—because bad faith does not constitute cause to dismiss a chapter 7 case—and
the fact that the debtor was solvent and filed
under chapter 11 should not change that
result.
Chameleon Systems suggests that, when a
debtor is liquidating its assets, a potential
means for completely avoiding the good faith
issue would be for the debtor to file under
chapter 7 instead of chapter 11. Section
502(b) is not tethered to chapter 11. It applies
equally to chapter 7 cases. The problem,
however, is that entities other than individuals do not receive a discharge in chapter 7 or
liquidating chapter 11 cases.32 Moreover,
according to one bankruptcy court and
echoed by others, “the Bankruptcy Code simply does not contemplate that equity security
holders will share in the distribution of the
estate in cases under Chapter 7—any surplus is to be distributed to the debtor.”33
In Liberate Technologies, the court
explained that “Section 502(b)(6) limits distributions in the bankruptcy case; it does not
preclude enforcement of the liability outside
of bankruptcy where there is no discharge.”34
As a result, in a case in which the debtor does
not obtain a discharge, capping a landlord’s
claim in the bankruptcy estate under Section
502(b)(6) may not prevent the landlord, after
all creditors have been paid in full, from seeking its share of surplus funds returned to the
debtor. This result might be avoided, even in
a liquidating chapter 11 case, if the debtor sufficiently continues in business under its plan
in order to obtain a discharge.35
Another problem with the chapter 7
approach is that, unlike chapter 11, an independent trustee is automatically appointed to
marshal and distribute the debtor’s assets,
and this may not appeal to the board of directors of a debtor of questionable solvency if
millions of dollars of cash remain on hand.
However, chapter 7 is an option that should
influence the negotiations between the parties.
A better understanding of the alternatives
might even help the parties avoid any sort of
excursion into bankruptcy jurisdiction.
The common thread that runs through
the case law is that the question of good faith
is based on the totality of the circumstances.
This requires a fact-intensive inquiry on a
case-by-case basis. In situations in which 1)
a petition is filed solely as a litigation tactic
in a two-party dispute or 2) the sole intent of
a solvent debtor that is not suffering from
financial distress is to avail itself of the Section
502(b)(6) cap, the recent decisions suggest
that the court may find the requisite good faith
lacking. Accordingly, counsel should advise
debtors to find other bona fide reasons for filing a chapter 11 petition and to continue to
engage in business pursuant to a chapter 11
plan in order to obtain a discharge.
■
1 In re Integrated Telecom Express, Inc., 384 F. 3d 108
(3d Cir. 2004).
2 In re Liberate Techs., 314 B.R. 206 (Bankr. N.D. Cal.
2004).
3 See Solow v. PPI Enters. (U.S.) Inc. (In re PPI Enters.
(U.S.), Inc.), 324 F. 3d 197, 207 (3d Cir. 2003); In re
Klein Sleep Prods., Inc., 78 F. 3d 18, 28 (2d Cir. 1996).
4 For a charge to constitute “rent reserved,” three requirements must be met. The charge must be 1) designated as “rent” or “additional rent” in the lease or provided as the tenant’s/lessee’s obligation in the lease, 2)
related to the value of the property or the lease, and 3)
must be properly classifiable as rent because it is fixed,
regular, or periodic. In re McSheridan, 184 B.R. 91, 99100 (Bankr. 9th Cir. 1995).
5 See Integrated Telecom Express, 384 F. 3d at 121 (citing In re SGL Carbon Corp., 200 F. 3d 154, 163-64
(3d Cir. 1999)).
6 In re Marshall, 300 B.R. 507, 510 (Bankr. C.D. Cal.
2003) (citing Platinum Capital, Inc. v. Sylmar Plaza, L.P.
(In re Sylmar Plaza, L.P.), 314 F. 3d 1070, 1074-75 (9th
Cir. 2002); In re James Wilson Assocs., 965 F. 2d
160, 170 (7th Cir. 1992)).
7 Integrated Telecom Express, 384 F. 3d at 121-22; see
also Liberate Techs., 314 B.R. at 211 (citing SGL
Carbon Corp., 200 F. 3d at 163).
8 See Marshall, 300 B.R. at 512-13; Integrated Telecom
Express, 384 F. 3d at 122.
9 Marshall, 300 B.R. at 512.
10 Id. at 513.
11 See Liberate Techs., 314 B.R. at 211 (citing In re
Marsch, 36 F. 3d 825, 828 (9th Cir. 1994)).
12 See Integrated Telecom Express, 384 F. 3d at 118 (citing SGL Carbon Corp., 200 F. 3d at 159-62; Solow v.
PPI Enters. (U.S.), Inc. (In re PPI Enters. (U.S.), Inc.),
324 F. 3d 197, 211 (3d Cir. 2003)).
13 See Platinum Capital, Inc. v. Sylmar Plaza, L.P. (In re
Sylmar Plaza, L.P.), 314 F. 3d 1070, 1074-75 (9th Cir.
2002); Integrated Telecom Express, 384 F. 3d at 118.
14 See Marsch, 36 F. 3d at 828.
15 SGL Carbon Corp., 200 F. 3d at 165-66.
16 Sylmar Plaza, 314 F. 3d at 1075; PPI, 324 F. 3d at 21112; Integrated Telecom Express, 384 F. 3d at 128; In re
Chameleon Sys., Inc., 306 B.R. 666, 669-71 (Bankr. N.D.
Cal. 2004); Liberate Techs., 314 B.R. at 215.
17 Integrated Telecom Express, 384 F. 3d 108.
18 Liberate Techs., 314 B.R. 206.
19 Integrated Telecom Express, 384 F. 3d at 112.
20 Id. at 129.
21 Id. at 128.
22 Solow v. PPI Enters. (U.S.), Inc. (In re PPI Enters. (U.S.),
Inc.), 324 F. 3d 197 (3d Cir. 2003).
23 Platinum Capital, Inc. v. Sylmar Plaza, L.P. (In re
Sylmar Plaza, L.P.), 314 F. 3d 1070 (9th Cir. 2002).
24 Integrated Telecom Express, 384 F. 3d at 123 (emphasis added).
25 Id. at 123.
26 Sylmar Plaza, 314 F. 3d at 1075.
27 In re Liberate Techs., 314 B.R. 206 (Bankr. N.D. Cal.
2004).
28 In re Chameleon Sys., Inc., 306 B.R. 666 (Bankr. N.D.
Cal. 2004).
29 Id. at 669.
30 Id. at 670-71.
31 Id. at 671.
32 See 11 U.S.C. §§727(a)(1), 1141(d)(3).
33 In re Rimsat, Ltd., 229 B.R. 910, 913 (Bankr. N.D.
Ind. 1998); see also Georgian Villa, Inc. v. United States
(In re Georgian Villa, Inc.), 55 F. 3d 1561, 1563 (11th
Cir. 1995), and 11 U.S.C. §726(a)(6).34 In re Liberate
Techs., 314 B.R. at 218 n.9.
35 See 11 U.S.C. §1141(d)(3).
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Los Angeles Lawyer April 2005 21
CLASS
To ward off objectors, class counsel may solicit the guidance of
judges and mediators in the settlement process
by Brad W. Seiling
WARS
KEN SUSYNSKI
A
funny thing happened to a law
firm on the way to
collecting a $90
million judgment
in favor of its clients. One of the
clients—a member
of a certified class
of more than 2,000 insurance claims
adjusters—sued the attorneys for malpractice.
The California Court of Appeal has allowed
the claim to proceed as a second putative
class action. This recent appellate decision
raises some obvious questions. Where could
these attorneys possibly have gone wrong?
When is a $90 million judgment not enough?
The court of appeal’s answers to these questions have wide-ranging significance in class
action litigation.
In Janik v. Rudy, Axelrod & Zieff,1 the
court of appeal held that class counsel owed
its clients (members of the class in the underlying litigation) a duty to consider and assert
additional claims that could have increased
the class’s recovery, even though those claims
were not part of the trial court’s certification order. Janik appears to be the first
reported California decision recognizing that
class counsel can be liable in malpractice
based on its successful representation of a certified class. The duties articulated in Janik
extend beyond actions for legal malpractice
and potentially raise a new obstacle to class
settlements.
Class settlements are often criticized and
challenged as collusive deals between greedy
class counsel out to line their pockets and
unscrupulous defendants trying to buy an
inexpensive resolution of claims alleging serious injury to consumers. The sweeping rationale announced in Janik would apply equally
to class counsel that settle class claims, even
if they achieve substantial benefits for the
class. Dissatisfied class members (and the
counsel who represent them) now may attack
class counsel for breaching duties to a settlement class by selling out the class’s claims
too cheaply.
Before examining the conundrum that
Janik poses for class action settlements, it is
useful to understand how the court of appeal
could conclude that seemingly successful class
counsel potentially breached their duties to the
class. The underlying litigation in Janik was
one of the seminal cases in the area of wage
and hour law in California. The case involved
a class action against Farmers Insurance on
behalf of more than 2,400 claims adjusters to
recover nonpayment of overtime wages. The
complaint, which was filed in 1996, asserted
a single cause of action under the Labor
Code. In 1998, the trial court certified a class
of all claims adjusters who worked for
Farmers from October 1, 1993 (three years
prior to the filing of the complaint), to the date
of trial.
After notice was sent and class members
were given the opportunity to opt out of the
Brad W. Seiling is a partner in Manatt, Phelps &
Phillips and is cochair of the firm’s Unfair Competition Practice Group. He specializes in the defense
of class action lawsuits and lawsuits brought under
the Unfair Competition Law.
Los Angeles Lawyer April 2005 23
class, class counsel successfully moved for
summary adjudication on the ground that
the members of the class were not exempt
from overtime regulations. This favorable
ruling was affirmed on appeal.2
A jury then awarded the class approximately $90 million in unpaid overtime wages,
and that judgment was affirmed on appeal.3
Class counsel had won a substantial award for
the class and in the process had made new law
in the area of wage and hour class actions.
These results would not seem to support a
malpractice case, but that is exactly what
happened next.
After the trial, a second putative class
filed a malpractice suit alleging that class
counsel breached their duties to the class by
failing to assert a claim under California’s
Unfair Competition Law, codified at Business
and Professions Code Section 17200 et seq.,
which carries a four-year statute of limitations
period—one year longer than the limitations
period under the Labor Code. By not amending the complaint to assert a UCL claim,
class counsel allegedly deprived the class of
millions of dollars of additional unpaid wages.
The trial court sustained the attorneys’
demurrer without leave to amend and dismissed the malpractice action. The demurrer
contended that the trial court’s certification
order in the underlying litigation proscribed
the bounds of any duty the attorneys owed to
the class, and unnamed class members had no
right to demand that class counsel assert
additional claims.4
The court of appeal reversed, finding that
the plaintiff had stated claims for negligence
and breach of fiduciary duty. The court
rejected the attorneys’ argument that their
duty to the class was limited to competently
prosecuting the claims that the court certified.
Class counsel, like all attorneys, have a duty
to at least consider and advise their clients of
related matters that could be pursued to
avoid prejudice to the client:
In the context of a class action, both
the representative plaintiffs and the
absent class members similarly are
entitled to assume their attorneys will
consider and bring to the attention of
at least the class representatives additional or greater claims that may exist
arising out of the circumstances underlying the certified claims that class
members will be unable to raise if not
asserted in the pending action. The
class members are entitled to assume
their attorneys are attempting to maximize their recovery for the conduct
they are challenging and that they are
not, without good reason, failing to
assert those claims that will do so.5
The court of appeal also rejected the argument that the class action litigation was the
24 Los Angeles Lawyer April 2005
exclusive forum to challenge the adequacy of
class counsel’s representation. The initial
determination of whether counsel were adequate to represent the class—a prerequisite to
any certification order—was very different
from the determination of whether class counsel actually adequately represented the class
throughout the litigation. The trial court in
the underlying class action never considered
whether class counsel had adequate reason to
forego asserting a UCL claim.6
There were many good reasons why the
attorneys chose not to risk asserting a UCL
claim after obtaining favorable rulings on
certification and summary adjudication on liability. When counsel filed their original complaint in 1996, it was not clear whether back
wages were recoverable as restitution under
the UCL. Cortez v. Purolator Air Filtration
Products Company,7 the California Supreme
Court’s decision recognizing that unpaid
wages could be recovered as an item of restitution under the UCL, was decided in 2000,
after the trial court had certified the class in
the underlying litigation. Class counsel did not
believe that it was even possible to amend the
complaint to assert a claim recognized by
the Cortez decision, and counsel certainly
would not have wanted to risk reopening
the issue of certification or to otherwise jeopardize their favorable rulings on the merits.8
Notwithstanding the “sound strategic reasons for not seeking to amend the complaint
after the Supreme Court decided Cortez,”
the Janik court held that whether such tactical decisions amount to a breach of a class
counsel’s duties to the class presents a question of fact that could not be resolved on
demurrer.9
Sweeping New Duty
The court’s rationale confirms the central
role that the UCL plays in consumer litigation.
UCL claims are common in consumer class
action cases, even if the comparatively limited
remedies available under the UCL (particularly the limited monetary remedies in light
of recent California Supreme Court rulings)
mean that a UCL claim adds little to a class’s
potential recovery. That a plaintiff can take
advantage of the four-year statute of limitations under the UCL in itself would justify
asserting a UCL claim in almost every consumer case. Indeed, in light of Janik, plaintiff’s
lawyers act at their peril if they do not allege
a UCL claim in a class action lawsuit.
Underscoring the importance of the UCL is
nothing new.10
What is new is the sweeping new duty that
the court of appeal imposed on class counsel.
The California Supreme Court previously
had considered a malpractice case against
class counsel in Ferguson v. Lief, Cabraser,
Heiman & Bernstein LLP.11 However, the
issue presented in Ferguson was whether a
stipulated dismissal of punitive damages allegations as part of an $80 million class settlement constituted malpractice. The supreme
court held that lost punitive damages were not
recoverable as compensatory damages in a
legal malpractice action, but the court did not
analyze the scope of class counsel’s duty to
members of the class. Janik expressly states
what may have been implied in Ferguson—
class counsel can be held liable for failing to
pursue claims on behalf of a class.
In addition to recognizing new potential
liability for class counsel, Janik also has
potentially broad implications for class action
settlements. Commentators and courts have
expressed concerns that class action settlements offer an opportunity for attorneys to
generate fees without any effective monitoring by class members, particularly when the
settlement has been reached prior to class
certification.12
There also is concern that defendants may
use the settlements to buy their way out of
serious situations in a relatively nominal way
or to structure settlements to achieve a
“tremendous sales bonanza” for themselves
while providing little relief to the settlement
class.13 This criticism applies particularly to
coupon settlements, which require class members to redeem coupons for the defendant’s
products in order to realize the benefits of the
settlement.
A new legal subspecialty has developed in
recent years: lawyers who make a living representing class members who challenge the
settlements of their class actions.14 These
attorneys insist on modifications to settlement terms as well as fees for themselves in
exchange for their clients’ decision to drop
their objections to final approval of the settlement. Clearly, “objecting has become big
business.”15
Dealing with these objections can be
extremely costly, particularly if the trial court
permits discovery into the settlement process
and the terms of the settlement.16 Litigating
challenges to settlements delays finality for
defendants and usually puts a hold on any
award for attorney’s fees. For that reason,
defense counsel and class counsel regard
objectors and their lawyers as expensive nuisances who threaten to derail settlements
that required countless hours to achieve.
In their defense, settlement objectors often
achieve beneficial modifications to class settlements or derail settlements that courts ultimately concluded were not in the interests of
the class.17 In these cases, the objectors raise
issues that may not otherwise have been presented to or considered by the trial court in ruling on a stipulated application for settlement
approval.18 Regardless of how one regards settlement objectors, they are here to stay.
Janik provides a new angle for attorneys
seeking to challenge class action settlements.
An argument that a proposed settlement is not
fair and reasonable to the settlement class
would support a malpractice claim against
class counsel as well as a direct challenge to
the settlement. There is no reason to think that
future class members—and the counsel who
represent them—will not use Janik’s rationale
to challenge class settlements.
the parties submitted the matter to a respected
independent mediator in itself is frequently
cited as a factor in favor of approving class
settlements.22
Negotiate fees after substantive terms.
Whether the parties negotiate the settlement
between themselves or retain a mediator, the
substantive terms of the settlement—class
definition, form and content of class notice,
consideration to the class members, proce-
Protecting Class
Settlements from
Attack
There are many ways for
counsel to protect class
settlements from collateral attack. Of course,
no single step—or even a
combination of steps—
will insulate a settlement
from collateral attack or
ensure its approval.
Ultimately, whether a settlement survives and
class counsel can avoid
malpractice liability
depends on the fairness
of the settlement to the
class.19 Class members
will have no basis to
complain if the settlement is fair and has not
caused the relinquishment of any substantial
legal rights without adequate justification. The
following are effective
ways to enhance the
chances of defeating any
attack on a class action
settlement.
Use a mediator. Using a
mediator to oversee settlement negotiations adds
a layer of protection for the interests of class
members and thus undercuts a claim that
the settlement was collusive. The trial judge
may feel more comfortable approving a settlement that has been mediated before a neutral third party, particularly if the mediator is
one whom the trial judge knows and respects.
Courts have cited the parties’ use of a mediator as a factor in finding that a class settlement was fair, reasonable, and not collusive.20
There are limits to how much mileage the
parties can get from using a mediator.
Declarations from the mediator describing the
mediation process or opining on the fairness
of the settlement may not be admissible in any
subsequent proceedings.21 Indeed, the mediator may not even be willing to provide such
a declaration. Even without a statement of
support from the mediator, the mere fact that
dures for redeeming consideration, and
injunctive relief (for example, requiring
changes in the defendant’s business practices)—should be the first order of business.
The issue of attorney’s fees should not be
placed on the table until after the substantive
terms have been resolved.
Attorney’s fees often are one of the most
controversial components of a class settlement, and a substantial stipulated fee award
can provide a tempting target for settlement
objectors or malpractice plaintiffs attacking
the settlement as a sellout of the class by
class counsel. The mediator’s presence can
undercut these arguments and underscore
the adversarial nature of the settlement
process.
Waiting to negotiate class counsel’s fees
until the substantive terms have been resolved
is often very difficult for defendants. Clients
want to know the bottom line, and in class
action settlements, the plaintiffs’ attorney’s
fees award forms one of the most significant
components of the bottom line. Both sides
may be reluctant to engage in protracted settlement discussions without addressing a
material term. But rushing to deal with fees
first or tying an agreement to substantive
terms to a particular fee award may expose
the settlement to challenge (or at a minimum, close scrutiny by
the trial court).
Submitting the
question of fees to the
trial court eliminates
any argument regarding collusion. While the
taint of collusion evaporates, plaintiffs’ counsel and defense counsel
often are unwilling to
place this important
issue entirely in the
hands of a neutral third
party. In a settlement,
defendants can cap
their exposure for fees,
but they have no such
assurances if they allow
the trial court to decide
the issue entirely.
Conversely, class counsel may prefer the certainty of knowing that
the defendant will not
oppose its fee request
to having to litigate its
entitlement to fees.
There are ways to
reduce the risks to both
sides of submitting the
fee issue to a third party
for resolution. For
example, a baseball-style arbitration procedure may be appropriate. In this procedure,
each side presents one number for consideration, and the judge or arbitrator must select
one of the two numbers. Alternatively, each
side could propose a number that forms the
range between which the fee award will fall.
If the trial court is unwilling to resolve these
issues, the matter could be referred to a third
party for determination. Regardless of the
procedure, placing the issue of fees into the
hands of a third party makes it much more
difficult for an objector or malpractice plaintiff to sell the argument that class counsel
breached duties to the class in favor of their
own fees.
Don’t skimp on class notice. Preparing a
comprehensive class notice can also protect
the settlement and class counsel from collatLos Angeles Lawyer April 2005 25
eral attack. Here is where defense counsel can
be helpful. Many defendants try to cut corners on class notice to save potentially substantial costs.23 Other defendants hope to
minimize the response rate and thus reduce
the ultimate payout. These are short-sighted
concerns that could threaten the settlement.
The notice is often the first and only time
the class receives any information about the
case or the settlement. Courts have adopted
flexible standards for determining whether
class notice is adequate. In general, notice
must be given in a manner that has “a reasonable chance of reaching a substantial percentage of the class members.”24 The notice
should be as broad as possible to avoid subsequent charges that the class did not receive
adequate notice of the rights they were relinquishing. The notice should be sent in a way
that is most likely to reach members of the settlement class.
Personal notice, if practicable, is always
the best form of notice—both to satisfy due
process concerns and to insulate the settlement
from collateral attack. Posting the notice on
a company’s Web site or publishing the notice
in newspapers or magazines have been recognized as valid means of notice and may contribute to insulating a settlement from collateral attack.25
The contents of the notice are also important in avoiding subsequent challenges.
“[N]otice given to class members must fairly
apprise members of the terms of the proposed compromise and of the options open
to dissenting class members.”26 All class
notices briefly describe the nature of the
action and the settlement terms. In light of
Janik, settlement notices also should describe
any claims that are not being pursued or that
the class could pursue but for the settlement.
If possible, the notice should set forth the
reasons why these claims are not being pursued. Providing this detail will make any
challenge to the settlement more difficult
because class members will have been advised
of the rights and claims that they relinquished
under the settlement.
Involve the trial court in the process. Trial
courts—particularly judges in the complex
civil departments throughout the state—take
an active role in class litigation to protect
the rights of absent class members. Court
oversight of settlements protects class members “whose rights may not have been given
due regard by the negotiating parties.”27 This
action by the court may provide an early line
of defense to any collateral attack on a class
settlement. In fact, the Janik court encouraged
class counsel to enlist the trial court to resolve
questions about the scope of its duties to the
class: “If class counsel has any question concerning the course that is required by the
duty it owes to absent class members, the
26 Los Angeles Lawyer April 2005
attorneys may seek guidance from the
court.”28 There is absolutely no reason not to
heed that advice.
Parties should inform the trial court of
their settlement negotiations and the parameters of the settlement terms they are considering. This approach brings the trial court
into the settlement process—even if the trial
judge is not actually mediating the case—
and may enhance the likelihood of approval.
The judge may even spot issues that could present problems when the settlement is ready for
approval.
Some trial judges may be reluctant to
offer what might be regarded as advisory
rulings on matters that are not properly before
them on a noticed motion or other recognized
procedure. The federal Manual for Complex
Litigation suggests that on occasion “a judge
might retain a special master or a magistrate
judge to examine issues regarding the value
of nonmonetary benefits to the class and their
fairness, reasonableness and adequacy,”29
although such appointments are rare.30
Trial courts are supposed to act as “fiduciaries” of absent class members.31 Disclosing
the reasons why counsel seeks guidance from
the court and appealing to the court’s unique
role as protector of the interests of absent class
members may dispel some of the reluctance
of courts to get involved. Citing Janik also
may be compelling. Concerns about the trial
court’s willingness to provide settlement guidance should not, however, dissuade counsel
from making the inquiry. Counsel who refrain
from asking for the trial judge’s help may
never know what the judge is thinking until
it is too late.
Request detailed findings from the trial court.
Counsel should request specific findings from
the trial court concerning the fairness of the
settlement, the adequacy of class counsel’s representation, the lack of collusion in the settlement process, and the decision not to pursue certain claims or forms of relief in
exchange for the settlement. These findings
could be used in a subsequent action as collateral estoppel. Indeed, the Janik court suggested that such rulings could serve as a complete defense to a subsequent malpractice
action: “If the issue on which the malpractice
complaint is based has been considered and
determined in the class action proceedings, the
rulings of the class action court will be binding on the members of the class and preclude
reconsideration of those matters in another
forum.”32
Of course, asserting this defense assumes
that the class action court made the requisite
findings. Existing class action procedures—
both at the certification stage and the settlement stage—require courts to examine the
adequacy of class counsel’s representation of
the class. More often than not, the trial court’s
findings generally recite the requirements for
settlement approval without delving into specific issues. That is perfectly understandable
because most class settlement approval hearings proceed without opposition or objection. Those general findings may not, however, satisfy a subsequent court faced with a
malpractice action against class counsel.
For that reason, class counsel should put
themselves in the shoes of an objector or
potential malpractice plaintiff and consider
what aspects of the settlement might raise concerns in a subsequent collateral attack. Those
issues should be presented to the trial court
in the settlement approval papers and at the
preliminary and final settlement approval
hearings. Draft final approval orders also
should include specific findings on these issues.
Encourage objectors to speak now or forever
hold their peace. Potential objectors often contact counsel to raise their concerns with a proposed settlement before filing formal objections. It may be tempting for the proponents
of a class settlement to ignore these objectors
and hope they simply go away. The better
course is to insist that any objector submit formal objections to the trial court and appear
at the final approval hearing.
Res judicata and collateral estoppel principles apply to judgments in class action
cases,33 including judgments that result from
class actions settlements.34 Objectors who
have appeared and had their concerns considered and addressed by the trial court in the
underlying class action case will have a difficult time relitigating the same issues in a subsequent malpractice case.35 Indeed, the findings against them should serve as collateral
estoppel and bar relitigation of those same
objections in a subsequent action.36
Malpractice and Other Concerns
The appropriate response to a malpractice
action filed before final approval of a class settlement is to seek an immediate stay or dismissal of that action on the basis of another
action pending. While such a contemporaneously filed malpractice action likely is premature, the case will ripen once judgment is
entered approving the settlement. The trial
court in the malpractice action should be
apprised that counsel appears to be engaged
in forum shopping and should be forced to litigate the concerns in the context of settlement
approval.
Most class settlements provide that the
trial court will retain jurisdiction over enforcement of the settlement. In light of Janik, proponents of a class settlement should ask the
trial court to retain jurisdiction over collateral challenges to matters related to the settlement. That would provide a basis to transfer any subsequent malpractice case to the
same judge who approved the settlement in
the first place. The judge who found that
class counsel adequately represented a settlement class and approved the settlement
may be much less inclined to allow a malpractice action to proceed than a judge considering the matter for the first time.
Janik is not merely a problem for the
plaintiffs’ bar. It is undoubtedly tempting for
the defense bar to savor a case that exposes
their adversaries to lawsuits by disgruntled
clients. This may seem to be a welcome payback for all of the times defense counsel has
had to deal with disgruntled clients complaining about the costs of class action litigation and settlements. Nonetheless, this view
is shortsighted. Any vehicle that opens the
door to challenges to class action settlements
ultimately will affect defense counsel and the
clients they represent in class action settlements.
Another unintended impact of Janik may
be to increase class settlement demands.
Plaintiffs’ counsel may seek to insulate themselves from subsequent attacks by demanding
higher amounts in settlements and refusing to
enter into settlements that do not provide
relief to every class member. Coupon settlements, which many defendants like but which
have been criticized by courts and commentators, may fall further out of favor because
their low redemption rates may leave large
numbers of class members with a reason to
complain about the settlement.
Settling a class action lawsuit is never
easy. Class counsel and defense counsel must
first deal with each other in contentious negotiations that often follow protracted litigation.
They must face the trial court twice, first at
the preliminary approval hearing, then at the
final approval hearing. During that process,
they also may have to deal with objectors.
Now, there is the possibility of contemporaneous or subsequent malpractice lawsuits.
Counsel negotiating class settlements owe
a duty to each other to make sure that the settlement is not subject to collateral attack.
Working together to structure a settlement
and a settlement process may ensure approval
of the settlement and insulate it from collateral attack. At the end of the day, no one
wants to face the $90 million question. ■
1 Janik v. Rudy, Axelrod & Zieff, 119 Cal. App. 4th
930 (2004).
2 Bell v. Farmers Ins. Exch., 87 Cal. App. 4th 805
(2001).
3 Bell v. Farmers Ins. Exch., 115 Cal. App. 4th 715
(2004).
4 Janik, 119 Cal. App. 4th at 936.
5 Id. at 941-42.
6 Id. at 945-46.
7 Cortez v. Purolator Air Filtration Prods. Co., 23
Cal. 4th 163 (2000).
8 Janik, 119 Cal. App. 4th at 946-47.
9 Id. at 947.
10 Since November 2, 2004, no discussion of the UCL
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Los Angeles Lawyer April 2005 27
is complete without referring to Proposition 64—the
voter initiative that changed the previously broad
standing provisions under the UCL. With the passage
of Proposition 64, plaintiffs must have suffered an
injury in fact as well as a loss of money or property in
order to sue a defendant for violation of the UCL.
Proposition 64 also eliminated the ability of private parties to represent others unless the parties comply with
class action procedures. Practitioners should note that
Proposition 64 actually makes Janik even more important in UCL litigation. Since class action procedures will
apply to any UCL suit prosecuted on behalf of others,
the duties articulated in Janik potentially apply to all
suits brought under the UCL.
11 Ferguson v. Lief, Cabraser, Heiman & Bernstein LLP,
30 Cal. 4th 1037 (2003).
12 See Mars Steel Corp. v. Continental Ill. Nat’l Bank
& Trust Co., 834 F. 2d 677, 678 (7th Cir. 1987)
28 Los Angeles Lawyer April 2005
(Judge Posner observed that class settlements, which are
often presented to the class as a fait accompli, pose significant problems for abuse because “lawyers for the
class, rather than the clients, have all the initiative
and are close to being the real parties in interest….”).
13 In re General Motors Corp. Pick-Up Truck Fuel
Tank Prods. Liab. Litig., 55 F. 3d 768, 787 (3d Cir.
1995) (Third Circuit found that district court abused
its discretion in approving the class settlement because,
among other reasons, the coupon settlement did not
provide adequate value to class members.).
14 See Weissman v. Quail Lodge Inc., 179 F. 3d 1194
(9th Cir. 1999). In Weissman, the Ninth Circuit reversed
a district court order prohibiting an attorney from
objecting to class action settlements. The district court
characterized the attorney as “something of a class
action settlement gadfly.” The Ninth Circuit reversed
the restrictive order on the ground that trial courts do
not have the power to sanction an attorney appearing
on behalf of a client as a vexatious litigant. Id. at
1196. See also In re Mexico Money Transfer Litig., 164
F. Supp. 2d 1002 (N.D. Ill. 2001), aff’d, 267 F. 3d 743
(7th Cir. 2001) (Dissident attorney who objected to settlement solicited more than 90% of all opt outs.).
15 ALBA CONTE & HERBERT NEWBERG, 4 NEWBERG ON
CLASS ACTIONS §11.55, at 168 (4th ed. 2002).
16 See In re General Motors Corp. Engine Interchange
Litig., 594 F. 2d 1106 (7th Cir. 1979) (holding that trial
court abused its discretion by not permitting objectors
to conduct discovery to show that settlement prejudiced
interests of the class); see also 4 NEWBERG ON CLASS
ACTIONS, supra note 15, §11.57 (detailed discussion on
an objector’s right to independent discovery).
17 See General Motors Corp. Pick-Up Truck Fuel Tank
Prods. Liab. Litig., 55 F. 3d 768.
18 See Shaw v. Toshiba Am. Info. Sys., Inc., 91 F.
Supp. 2d 942, 974-75 (E.D. Tex. 2000) (finding by district court that objectors’ counsel had conferred a substantial benefit on the class by extending the coupon
redemption period from 180 days to one year).
19 Officers for Justice v. Civil Serv. Comm’n, 688 F. 2d
615, 625 (9th Cir. 1982). In class action litigation,
California courts routinely look to federal authority for
guidance. Vasquez v. Superior Court, 4 Cal. 3d 800,
821 (1971).
20 Wershba v. Apple Computer, Inc., 91 Cal. App.
4th 224, 245 (2001).
21 See Foxgate Homeowners Ass’n, Inc. v. Bramaela
Cal., Inc., 26 Cal. 4th 1 (2001) (holding that statements
from a mediator regarding a party’s conduct during
mediation proceeding were not admissible in connection with a motion for sanctions).
22 See Rebney v. Wells Fargo Bank, 220 Cal. App. 3d
1117, 1139 (1990); Dunk v. Ford Motor Co., 48 Cal.
App. 4th 1794 (1996).
23 See, e.g., In re Lorazapem & Clorazepate Antitrust
Litig., 205 F.R.D. 369 (D.D.C. 2002) (The court
reported total notice costs of $8.250 million for a
class that included more than 1.2 million members.).
24 Cartt v. Superior Court, 50 Cal. App. 3d 960, 974
(1975).
25 Wershba, 91 Cal. App. 4th at 251 (upholding class
notice as adequate under circumstances in which defendant mailed or e-mailed notice to class members, published notice in USA Today and MacWorld, and posted
notice for more than 30 days on its Internet Web site).
26 Trotsky v. Los Angeles Fed. Sav. & Loan Ass’n, 48
Cal. App. 3d 134, 151-52 (1975).
27 Officers for Justice v. Civil Serv. Comm’n, 688 F. 2d
615, 624 (9th Cir. 1982).
28 Janik v. Rudy, Axelrod & Zieff, 119 Cal. App. 4th
930, 946 (2004).
29 MANUAL FOR COMPLEX LITIGATION, FOURTH 329
(Federal Judicial Center 2004); available at
http://www.fjc.gov.
30 THOMAS E. WILLGING ET AL., EMPIRICAL STUDY OF
CLASS ACTIONS IN FOUR FEDERAL DISTRICT COURTS 6465 (Federal Judicial Center 1996).
31 7-Eleven Owners for Fair Franchising v. Southland
Corp., 85 Cal. App. 4th 1135, 1151 (2001).
32 Janik, 119 Cal. App. 4th at 946.
33 Daar v. Yellow Cab Co., 67 Cal. 2d 695, 706
(1967); Payne v. National Collection Sys., Inc., 91
Cal. App. 4th 1037, 1047 (2001).
34 Citizens for Open Access to Sand & Tide, Inc. v.
Seadrift Ass’n, 60 Cal. App. 4th 1053, 1065 (1998).
35 See, e.g., Mortimer v. River Oaks Toyota, 278 Ill.
App. 3d 597 (1996) (Plaintiffs who objected but did not
opt out were subject to the preclusive effect of the
judgment in a settled class action.).
36 See In re Bridgestone/Firestone, Inc. Tires Prods.
Liab. Litig., 333 F. 3d 763 (7th Cir. 2003) (A finding
that nationwide class was inappropriate acted as collateral estoppel in state court proceedings.).
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 31.
by Howard S. Klein
Tales of
Two Courts
Legal changes in marital status can have a
dramatic impact on existing estate plans
M
atters that involve a combination of probate law and family law issues are common.
Crossover issues can arise when clients require services regarding property ownership, estate planning, incapacity, family court proceedings (including marital dissolution, legal separation, and nullity), and death. The convergence of probate and family law issues can be confusing to the lawyer who practices in one area but not both.
The Family Code contains the statutory law of marriage, dissolution, separation, and nullity, while the
Probate Code addresses the capacity issues relating to those topics. In addition, the effect of marriage
or divorce upon an existing estate plan is covered in the Probate Code, while the determination of permissible estate planning during a family court proceeding is set forth in the Family Code. Thus, practitioners must consult both codes for an understanding of many crossover issues.
A subsequent marriage, for example, generally has a dramatic effect on existing wills and trusts.
The omitted spouse who married the decedent after execution of a “testamentary instrument” (defined
to include the decedent’s will or revocable trust) will normally receive the equivalent of an intestate
share of the “decedent’s estate” (defined to include a probate estate and all property held in a revocable trust that becomes irrevocable on the death of the settlor).1
However, certain conditions mandate that the omitted spouse will take no share of the estate. These
conditions include: a showing that the the decedent’s failure to provide for the omitted spouse was intentional, so long as the intention appears on the face of the testamentary instrument;2 evidence that the
decedent provided for the spouse in other ways;3 proof that the surviving spouse made a valid waiver
of probate rights;4 or a showing that a valid premarital agreement contains a waiver of probate rights.5
Like subsequent marriages, judgments of marital dissolution and nullity and judgments of legal separation that terminate the marital property rights of a party may alter existing wills and nonprobate transfers, including living trusts. With regard to wills, unless a testator’s will expressly provides to the contrary, dispositions, powers, and nominations favoring the former spouse are revoked by such judgments.6
The revoked will, however, is subject to revival by the testator’s remarriage to the former spouse.7
For estate planning documents other than wills, a change in the spousal status of the beneficiary is
Howard S. Klein is a partner of Feinberg Mindel Brandt Klein & Kline, LLP, where he heads the Probate and Trust
Department and handles family law matters. He is a certified specialist in estate planning, trust, and probate law,
and is a commissioner on the State Bar Estate Planning, Trust, and Probate Advisory Commission.
Los Angeles Lawyer April 2005 29
key. For example, a nonprobate transfer to the
transferor’s former spouse in an instrument
executed before or during the marriage fails
if, at the time of the transferor’s death, the former spouse is not the surviving spouse.8 The
exceptions to the rule occur when there is
clear and convincing evidence that the transferor intended to preserve the transfer9 or a
court order maintaining the transfer exists at
the transferor’s death.10 “Nonprobate transfers” is a term that not only applies to living
trusts but also to Totten trusts (bank accounts
mentally competent to make a will if the
individual suffers from a mental disorder,
such as delusions or hallucinations, that interferes with the testamentary act.16
Further, a court’s determination that a
person is of unsound mind or lacks the capacity to make a decision to do a certain act, such
as the execution of a will or trust, must be
supported by evidence of a deficit in at least
one of several specified mental functions—
including alertness and attention, information
processing, thought processes, and the abil-
capacity for the proposed action. Second,
the court must determine that the proposed
action will have no adverse effect on the
estate, or that the estate remaining after the
proposed action is taken will be adequate to
provide for the needs of the conservatee and
those persons legally entitled to be supported
by the conservatee.21 The duty to support
the conservatee’s spouse and children can
factor heavily into the probate court’s decision whether to grant substituted judgment
powers.
Incapacity issues arise in estate planning
when a person under conservatorship—
>
the conservatee—wishes to make a will or trust,
or when the conservatee’s conservator wishes to
make a will or trust for the conservatee.
that designate a beneficiary), Payable-onDeath (P.O.D.) accounts, and like accounts
described in Probate Code Section 5000, but
not life insurance policies.11 The term “surviving spouse” has been defined as a spouse
whose marriage has not been dissolved or
annulled and whose marital property rights
were not terminated by court order.12 A legal
separation order not terminating property
rights does not affect a will or nonprobate
transfer.13
Incapacity issues arise in estate planning
when a person under conservatorship—the
conservatee—wishes to make a will or trust,
or when the conservatee’s conservator wishes
to make a will or trust for the conservatee.
The starting point for analysis is the law stating that nothing shall be construed to deny a
conservatee the right to make a will. 14
Furthermore, a person who has a mental disorder may still have the legal mental capacity to execute a will or trust.15 However, an
individual is not mentally competent to make
a will if the individual did not have sufficient mental capacity to 1) be able to understand the nature of the testamentary act, 2)
understand and recollect the nature and situation of the individual’s property, or 3)
remember or understand the individual’s relations to his or her living spouse, descendants,
and parents and those whose interests are
affected by the will. Also, an individual is not
30 Los Angeles Lawyer April 2005
ity to modulate mood and affect—and by
evidence of a correlation between any deficits
and the act in question.17
When the conservatee lacks the capacity
to make estate planning decisions, the Probate
Code’s “substituted judgment” provisions18
come into play. These provisions enable the
conservator or other interested person to
petition the probate court for an order authorizing or requiring the conservator to take
action on behalf of the conservatee for one or
more of the following purposes: 1) the benefit of the conservatee or the estate, 2) the minimizing of prospective taxes or expenses of
administration upon the conservatee’s death,
or 3) the making of gifts that the conservatee would have been likely to make.19 In
addition, the provisions include a nonexclusive list of 13 possible substituted judgment
acts and activities.20 These involve several
with real implications for the conservatee’s
spouse and children, such as making gifts to
the spouse and the children; conveying or
releasing the conservatee’s contingent and
expectant interests in property, including
marital property rights; creating, revoking, or
modifying trusts; and making a will.
The court may make a substituted judgment order only if the court determines two
pairs of issues. First, the court must find that
either the conservatee is not opposed to the
proposed action or, if opposed to it, lacks legal
Another issue involving incapacity arises
when a conservatee wishes to marry. Like
the right of a conservatee to make a will, the
capacity to marry is unaffected by conservatorship, absent an order to the contrary.22 An
unmarried adult not otherwise disqualified is
capable of consenting to and consummating
marriage.23 Thus, unless the order establishing the conservatorship disqualifies the conservatee from marrying, or there is a subsequent order to that effect,24 the conservatee
retains the right to marry. Like the determination of a person’s lack of capacity to make
a will, a judicial determination that a person
lacks the capacity to marry must be supported by evidence of a mental function
deficit, which by itself or in combination
with other mental function deficits significantly impairs the person’s ability to understand and appreciate the consequences of his
of her actions regarding the marriage, and
there also must be evidence of a correlation
between those deficits and the act of marriage.25 If, after marriage, the conservator
seeks to establish the validity of the marriage, the conservator may initiate a family
court proceeding for this purpose and to have
the marriage declared valid.26
Restraining Orders and Estate Planning
Arguably the most frequently encountered
crossover issue between family law and pro-
MCLE Test No. 136
The Los Angeles County Bar Association certifies that this activity has been approved for Minimum
Continuing Legal Education credit by the State Bar of California in the amount of 1 hour.
1. An omitted spouse who married the decedent after
the execution of the decedent’s living trust receives an
intestate share unless there is an intentional failure to
provide for the spouse—whether or not the intent
appears on the face of the trust.
True.
False.
2. A judgment of marital dissolution revokes all powers and nominations favoring the former spouse in a
will unless the will expressly provides to the contrary.
True.
False.
3. A nonprobate transfer to the transferor’s former
spouse, in an instrument executed before or during the
marriage, always fails if at the time of the transferor’s
death, the former spouse is not the surviving spouse.
True.
False.
4. A paranoid schizophrenic may have the capacity to
execute a will or trust.
True.
False.
5. The court’s determination of incapacity to make a will
or trust must be supported by evidence of a mental function deficit.
True.
False.
6. The probate court may make a substituted judgment order only if the court determines that the proposed action will have no adverse effect on the conservatee’s estate.
True.
False.
7. A judicial determination of a person’s lack of capacity to marry need not be supported by evidence of a
mental function deficit.
True.
False.
8. Standard (or Automatic) Temporary Restraining
Orders—Family Law (ATROs) are binding on both parties to a family court proceeding upon the filing of the
petition.
True.
False.
9. The preparation of a new will during the pendency
of a family court proceeding is not a violation of the
ATROs.
True.
False.
10. A party to a legal separation proceeding who serves
his or her spouse with a notice of immediate revocation of the parties’ revocable living trust is not in violation of the ATROS.
True.
False.
11. If death of a party to a marital dissolution pro-
ceeding occurs after a bifurcated judgment terminating marital status, the family court retains jurisdiction
over division of the community property.
True.
False.
12. A nullity proceeding does not survive the death of
the petitioner.
True.
False.
13. Absent entry of a bifurcated judgment terminating
marital status, upon the death of one of the parties, the
title presumption of right of survivorship is applicable
to the joint tenancy property of the parties.
True.
False.
14. The death of either party to a marital dissolution
proceeding terminates an existing spousal support
order unless the parties have otherwise agreed, whether
orally or in writing.
True.
False.
15. The right of the obligee parent to collect child support from the estate of the deceased obligor parent continues as long as a valid child support order is in place.
True.
False.
16. An order for payment of child support is modifiable
following the death of the obligor parent.
True.
False.
17. The conservator of a person’s estate may file a
marital dissolution proceeding on behalf of the conservatee if the conservatee is capable of expressing a
wish to dissolve the marriage on grounds of irreconcilable differences, whether or not the conservatee
has expressed that wish.
True.
False.
18. If a conservator who is the conservatee’s spouse
files a nullity proceeding, the conservator must file
and serve a notice with the probate court within 30 days
of filing the nullity.
True.
False.
19. A conservator has the power to manage and control the conservatee’s share of community property, and
the conservatee’s spouse has the right to manage and
control his or her own share of community property.
True.
False.
20. If an incapacitated spouse is under conservatorship and the well spouse refuses to comply with a probate court support order, the probate court has the
authority to divide the community property.
True.
False.
MCLE Answer Sheet #136
TALES OF TWO COURTS
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INSTRUCTIONS FOR OBTAINING MCLE CREDITS
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5. For future reference, please retain the MCLE
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ANSWERS
Mark your answers to the test by checking the
appropriate boxes below. Each question has only
one answer.
1.
■ True
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2.
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3.
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■ True
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■ True
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6.
■ True
■ False
7.
■ True
■ False
8.
■ True
■ False
9.
■ True
■ False
10.
■ True
■ False
11.
■ True
■ False
12.
■ True
■ False
13.
■ True
■ False
14.
■ True
■ False
15.
■ True
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16.
■ True
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17.
■ True
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18.
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19.
■ True
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20.
■ True
■ False
Los Angeles Lawyer April 2005 31
bate is the effect of the filing of a family law
proceeding on the right of a party to that
proceeding to initiate estate planning or to
revise existing estate planning documents.
This is because of the Standard (or Automatic)
Temporary Restraining Orders—Family Law
(called ATROs) that appear on the back of the
Judicial Council form Family Law Summons.
The ATROs are binding upon the petitioner
when an action for dissolution, legal separation, or nullity is filed and are binding upon
the respondent upon service of the petition and
summons.27 One ATRO precludes any transfer, encumbrance, or disposal of community
or separate property without the written consent of the other party or an order of the
court, except in the usual course of business
or for necessities of life. It further requires the
parties to give each other five business days’
prior notification of proposed extraordinary
expenditures and to account to the court for
all extraordinary expenditures made after the
ATROs are in effect. Another ATRO precludes cashing, borrowing against, canceling,
transferring, or changing beneficiaries of any
insurance policies. Thus, if certain estate planning activities occur after the effective date of
the ATROs and without the consent of the
spouse or court approval—such as, for example, creating and funding a living trust for
the benefit of persons other than the spouse,
or replacing the spouse with another beneficiary on a life insurance policy—the party
performing those acts is in contempt of court.
Under Family Code Section 2040, some
activities are expressly not restrained by the
ATROs: 1) the creation, modification, or
revocation of a will, 2) the revocation of a
nonprobate transfer, including a revocable
trust, pursuant to the instrument—provided
that notice of the change is filed and served
on the other party before the change takes
effect, 3) the elimination of a right of survivorship to property—provided that notice
of the change is filed and served on the other
party before the change takes effect, 4) the
creation of an unfunded revocable or irrevocable trust, and 5) the execution and filing
of a disclaimer pursuant to Probate Code
Sections 260 et seq.28
The ATROs, along with these unrestrained
activities, suggest some estate planning strategies to consider when divorce is imminent or
even after a dissolution petition has been
filed. For lawyers representing a client who is
about to be involved in a dissolution or is
already a party to one, these strategies include:
• Preparing a new will that revokes the former will and designates a different executor
and new beneficiaries.
• Revoking an existing living trust (after giving the requisite notice) and then returning the
revoked trust’s assets to the parties.
• Severing any joint tenancies of the spouses
32 Los Angeles Lawyer April 2005
(after giving the required notice), so that the
former joint tenancy assets will be held by the
parties as tenants in common, with each
party having testamentary power over his or
her one-half share.
• Terminating P.O.D. and similar accounts,
so that the client’s spouse is not the beneficiary
in the event of the client’s death during the dissolution proceedings, and the client has testamentary power over those assets.
• Withdrawing half of the contents of jointly
held bank accounts, while leaving the other
half to the control of the other spouse.
• Preparing a new unfunded revocable trust
together with a pour-over will to add the
client’s assets to the new trust at the client’s
death. With the unfunded trust and pourover will, no transfers will be made to the new
trust during the family court proceedings,
thus preserving the status quo. However, if the
client dies during the proceedings, his or her
will adds to the new trust all assets belonging to the client that were formerly in the
revoked trust, together with the client’s share
of the joint tenancy, P.O.D., and similar assets
over which he or she acquired the right of testamentary disposition. While those assets
would have to be administered in the decedent’s estate—that is, a probate estate—at
least they would pass to the client’s desired
beneficiaries and would be under the stewardship of the client’s desired fiduciaries. The
family court will likely scrutinize any and all
of these transactions for compliance with the
interspousal fiduciary duties of Family Code
Section 721. But they are permissible within
the language of Family Code Section 2040
and, more critically, they do not affect the status quo of the marital assets during the pendency of the family court proceedings.
Death and Family Court Proceedings
A marriage is dissolved by death as a matter
of law. Moreover, if there is no entry of a
bifurcated judgment terminating marital status before death, any pending action abates
upon the death of a party, and the family
court is divested of jurisdiction regarding status or anything else.29 Judgment, however,
may be entered on any issues already decided
by the family court.30 Except for those issues,
no further order is possible regarding property
rights, support, attorney’s fees, or costs.31
A wholly different result occurs if death
follows entry of the judgment terminating
marital status. Under this circumstance, the
family court’s jurisdiction to decide any
remaining issues, most importantly the division of community property, is unaffected.32
The deceased spouse’s estate will be substituted as a party to the dissolution proceeding.33 However, the status judgment does not
divest the probate court of its jurisdiction
over issues of succession, family allowance,
probate homestead, and other purely probate matters.
The impact of the death of a party to a dissolution proceeding absent entry of a status
judgment is not the same as the death of a
party during a nullity proceeding. This proceeding involves a completely different issue:
whether a valid marriage existed in the first
place. Thus, the nullity proceeding survives
the party’s death.34
An issue related to these jurisdictional
considerations is the effect of the death of a
party to a family court proceeding upon the
characterization of marital property, particularly property held in joint tenancy by the
spouses. Absent entry of a bifurcated status
judgment of dissolution or a judgment of
legal separation, the right of survivorship is
applicable to joint tenancy property unless a
party rebuts the title presumption or establishes a transmutation of the property into
some other form of ownership.35 By contrast, when death follows a judgment on status, the community property presumption
continues to apply to property held in joint
form.36 Further, the deceased spouse’s community share passes through the probate
estate to his or her devisees and heirs, and not
to the surviving spouse, absent rebuttal of the
community property presumption or establishment of a transmutation.37
The death of a party to a family court
proceeding has varying effects upon existing
orders for spousal support and child support.
According to the Family Code, death of either
the supporting or supported party terminates
an existing spousal support order unless the
parties have “otherwise agreed” in writing.38
Some court decisions, however, make it unclear
what “otherwise agreed” really means. For
example, a court held that the failure to list
death or remarriage of the supported spouse
as terminating events meant that the parties
had “otherwise agreed” that death or remarriage should not be terminating events—
although one might argue that the parties’
failure should not rise to the level of agreement.39 Similarly, a court held that the failure
to list death as a terminating event along with
a requirement in the lower court’s judgment
that the supporting spouse maintain life insurance in the amount of the present value of the
support obligation meant that death and the
life insurance requirement were “otherwise
agreed” to as nonterminating events.40
Practitioners should be aware that, even
if spousal support terminates due to the death
of the payor spouse, a family court order for
the purchase of an annuity or life insurance
policy or establishment of a trust to provide
for the supported spouse remains enforceable.41 However, the obligation to pay medical insurance premiums to provide proper
healthcare for a supported spouse has been
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held to be in the nature of spousal support and
terminates by operation of law upon the supported spouse’s death.42
The death of a party paying court-ordered
child support usually has an opposite effect
to the death of a spousal support payor.
Unless otherwise provided in the support
order, child support does not terminate at
the death of either the supporting spouse or
the supported spouse, since the order is based
on the child’s support needs during minority.43
Child support is chargeable against the estate
of the deceased obligor parent. The enforcement of this right following the death of the
obligor parent requires that the party receiving the child support timely file a creditor’s
claim in the decedent’s estate of the obligor.44
In addition, and perhaps counter intuitively,
the child support payment is modifiable following the death of the payor spouse.45
Securing future child support payments
after the death of the obligor parent may
pose a challenge. Several potentially helpful
Probate Code procedures can be used to
secure the future payment of a debt that is not
yet due, such as future child support payments. These include a court-approved agreement of the parties, the deposit of an amount
in a financial institution, the distribution of
an amount to a distributee who assumes personal liability, the appointment of a trustee to
receive payment of the debt, and the distribution of estate property to a distributee subject to a bond conditioned on payment of the
debt.46 The child support obligation is enforceable against the deceased obligor’s share
of community property held with a subsequent spouse.47 Further, property that was put
into a supporting parent’s living trust before
his or her death is properly chargeable for that
parent’s child support obligation.48
Incapacity in Family Court Proceedings
When an incompetent person or a person
for whom a conservator has been appointed
is a party to a family court proceeding, either
a conservator of the estate or a guardian ad
litem must appear in court on behalf of the
person.49 Thus, if an incapacitated person is
already a party to a family court proceeding,
his or her attorney should either petition the
probate court for the appointment of a conservator of the estate or make a motion to the
family court for the appointment of a
guardian ad litem.
The California Supreme Court held in the
landmark case of In re Marriage of Higgason50
that a dissolution may be brought on behalf
of a spouse under conservatorship by the
spouse’s guardian ad litem, provided there is
a showing that the spouse is capable of exercising a judgment and expressing a wish that
the marriage be dissolved on account of irreconcilable differences, and the spouse has
34 Los Angeles Lawyer April 2005
already expressed that wish. In Higgason,
Mrs. Higgason signed and verified the dissolution petition and the two order-to-showcause declarations and gave her deposition
expressing her desire to divorce. The court
held that her actions met the test. Family
lawyers may ponder, what else could constitute expressing a wish? For example, what if
the impaired spouse left the other spouse for
protracted periods, or consulted a family
lawyer about commencing a dissolution, or
set up a residence separate and apart from the
other spouse, or unequivocally stated orally
or in writing that he or she wanted a divorce
but took no further steps?
Higgason is a marital dissolution opinion,
but its reasoning should apply equally to
legal separation proceedings. The Durable
Power of Attorney Act provides a formal
measure to nominate a conservator and
thereby creates a rebuttable presumption in
favor of the designated attorney in fact or conservator nominee for appointment as guardian
ad litem.51 The conservator may commence
a nullity of marriage proceeding for a party
of unsound mind.52
Note that if the conservator is the conservatee’s spouse, and the conservator files a
proceeding for marital dissolution, legal separation, or nullity, the conservator must file a
notice with the probate court and serve it
within 10 days of filing the action. The court
may then issue an order to show cause why
the spouse should not be removed and
replaced as conservator.53
Community Property
The issue of the management and control of
community property when one spouse retains
legal capacity but the other spouse lacks legal
capacity or is under conservatorship is of
significant interest to the family court and the
probate court. An analysis of this issue begins
with the Probate Code’s provision that the
spouse with capacity has the power to manage and control the community property,
and the community property is not part of the
conservatorship estate unless the spouse with
capacity consents to its inclusion in the conservatorship estate.54 However, a tension
exists between the well spouse’s management
of the community property and the duty of
a spouse to support his or her spouse.55 That
statutory duty of support is nonwaivable and
cannot be limited or rescinded by contract.56
Matters become complicated if the spouse
with capacity fails or refuses to apply the
community income, which he or she manages
and controls, for the support of the incapacitated spouse. Under any circumstances, these
matters can be handled in probate court,
since conservatorships are a creature of the
Probate Code.57 They may also be resolved
in family court if the Higgason58 burden of
proof can be met or if the matter is already
before the family court.
The Probate Code provides a panoply of
relief to the incapacitated spouse under conservatorship.59 Some of these forms of relief—
and their Family Code analogs if the conservator files an action in family court—include:
• The probate court can issue an order that
the well spouse who has management and
control of the community property must apply
that property to the other spouse’s support.60
• The probate court can issue an order that
the well spouse must pay pendente lite support to the other spouse.61
• Income and expense declarations and property declarations must be filed by the well
spouse when petitions under the appropriate
Probate Code sections are filed.62
• The probate court has the power to determine the character of the property of the
parties if that issue is raised63—a power comparable to that in Family Code Sections 2550
and 2551.
• The six circumstances for support and
maintenance in conservatorship proceedings
under the Probate Code64 are comparable to
the 14 Family Code circumstances,65 since the
sixth circumstance of the Probate Code is
“any other relevant factors which [the court]
considers just and equitable.”
• If the well spouse refuses to comply with
any support order under an appropriate
Probate Code section or in a separate support
action, the probate court may divide the community property equally so that the conservatee’s community share can be administered
in his or her conservatorship proceeding and
not by the well spouse.66
• The probate court’s orders are enforceable
by execution, contempt, and any other order
deemed appropriate by the court.67
Assuming that issues involving the rights of
the spouse with legal capacity and the incapacitated spouse can properly be before the
family court, is the family court or the probate
court the preferable forum for the determination of these matters? In In re Marriage of
Caballero,68 the court of appeal, without discussing the provisions of Probate Code Sections
3000 et seq., held that a determination of the
property and support rights of a person under
conservatorship is more properly resolved
under the Family Law Act than under conservatorship law. The court’s conclusion was
based on the fact that 1) the incapacitated
spouse may obtain immediate temporary
spousal support consistent with the parties’
standard of living during marriage, and support orders may be effective as of the date of
filing, and 2) support payments must first be
paid from postseparation earnings (the supporting spouse’s separate property), then from
community and quasi-community property,
and only lastly from the supported spouse’s sep-
arate property. The Caballero court also reasoned that the supported spouse has the right
to recover fees and costs incurred in seeking his
or her family law rights. Also, the court noted
that the family court may issue immediate ex
parte restraining orders to preclude conduct
contrary to the incapacitated spouse’s property
rights—and in fact family law summonses
contain ATROs regarding property transfers
and related matters. Moreover, the family
court has the authority to provide appropriate
compensation for the well spouse’s exclusive
possession and use of the family residence
while the other spouse receives care elsewhere.
Finally, Caballero asserts that family court
provides the only satisfactory forum to obtain
an accounting of property and obligations—
including full financial disclosure and cooperation with complete discovery within a
short period of time—and the family court’s
“power and experience in the determination
of community property rights after fullydeveloped adversarial proceedings” are of
“substantial importance.” Still, parties should
consider the extensive experience of probate
court judges in protecting conservatees, who
are generally unable to protect themselves.
When family law issues collide with probate issues, the probate lawyer must look to
the Probate Code, the Family Code, and case
law, or must seek to associate counsel who
are familiar with California family law. The
prudent family lawyer must realize the possible effects of family court proceedings upon
the client’s existing estate plan and should
either consult with the client to modify that
plan or refer the client to a qualified probate
lawyer, with instructions about the possible
effect of the ATROs. Of course, serious ethical considerations confront the probate
lawyer who has represented both spouses
in family estate planning and then is asked
to represent either party against the other in
family court proceedings.69
■
1
PROB. CODE §§21600-21630.
PROB. CODE §21611(a).
3 PROB. CODE §21611(b).
4 PROB. CODE §21611(c). See PROB. CODE §§140-147
(waivers).
5 See the Uniform Premarital Agreement Act, FAM.
CODE §§1610-1617.
6 PROB. CODE §§6122(a), (c).
7 PROB. CODE §6122(b).
8 PROB. CODE §5600(a).
9 PROB. CODE §5600(b)(2).
10 PROB. CODE §5600(b)(3).
11 PROB. CODE §5600(e).
12 PROB. CODE §78. See also Estate of Lahey, 76 Cal.
App. 4th 1056 (2000).
13 PROB. CODE §§6122(d), 5600(a).
14 PROB. CODE §1871(c).
15 PROB. CODE §810(b).
16 PROB. CODE §6100.5.
17 PROB. CODE §811.
18 PROB. CODE §§2580 et seq.
19 PROB. CODE §2580(a).
2
20
PROB. CODE §2580(b).
PROB. CODE §2582.
22 PROB. CODE §1900.
23 FAM. CODE §301.
24 PROB. CODE §1901.
25 PROB. CODE §§810(c), 811(a).
26 FAM. CODE §309.
27 FAM. CODE §§231 et seq., 2040.
28 FAM. CODE §2040.
29 Bevelle v. Bank of Am., 80 Cal. App. 2d 333 (1947);
In re Marriage of Shayman, 35 Cal. App. 3d 648
(1973).
30 CODE CIV. PROC. §669.
31 Kinsler v. Superior Court, 121 Cal. App. 3d 808
(1981).
32 In re Marriage of Hilke, 4 Cal. App. 4th 215 (1992);
In re Marriage of Allen, 8 Cal. App. 4th 1225 (1992);
Kinsler, 121 Cal. App. 3d 808; FAM. CODE §2337(c).
33 CODE CIV. PROC. §§375, 377.31, 377.41.
34 In re Marriage of Goldberg, 22 Cal. App. 4th 265
(1994).
35 Swan v. Walden, 156 Cal. 195 (1909); Estate of
Blair, 199 Cal. App. 3d 161 (1988); FAM. CODE §§850
et seq.
36 FAM. CODE §2581.
37 Hilke, 4 Cal. App. 4th 215; Allen, 8 Cal. App. 4th
1225; FAM. CODE §§850 et seq. Cf. Estate of Layton,
44 Cal. App. 4th 1337 (1996).
38 FAM. CODE §4337.
39 In re Marriage of Nicolaides, 39 Cal. App. 3d 192
(1974).
40 Lucas v. Elliott, 3 Cal. App. 4th 888 (1992).
41 FAM. CODE §4360.
42 In re Marriage of Benjamins, 26 Cal. App. 4th 423
(1994).
43 In re Marriage of Gregory, 230 Cal. App. 3d 112
(1991).
44 In re Marriage of O’Connell, 8 Cal. App. 4th 565
(1992).
45 Stein v. Hubbard, 25 Cal. App. 3d 603 (1972).
46 PROB. CODE §§11460 et seq.
47 PROB. CODE §§13550, 13551, 13553.
48 In re Marriage of Perry, 58 Cal. App. 4th 1104
(1997).
49 CODE CIV. PROC. §372.
50 In re Marriage of Higgason, 10 Cal. App. 3d 476
(1973).
51 Caballero v. Caballero, 27 Cal. App. 4th 1139
(1994).
52 FAM. CODE §§2210(c), 2211(c).
53 PROB. CODE §1813(b).
54 PROB. CODE §3051.
55 FAM. CODE §§720, 4300.
56 In re Marriage of Higgason, 10 Cal. App. 3d 476
(1973); In re Marriage of Pendleton & Fireman, 24 Cal.
4th 39 (2000).
57 PROB. CODE div. 4, §§1400 et seq.
58 Higgason, 10 Cal. App. 3d 476.
59 PROB. CODE §§3000 et seq.
60 PROB. CODE §3080 (analogous to spousal support
under FAM. CODE §§4300 et seq.).
61 PROB. CODE §3083 (analogous to temporary spousal
support under FAM. CODE §3600).
62 PROB. CODE §3084 (similar to family law requirement
of CAL. R. OF CT. 1243 that both spouses file income
and expense declarations in all proceedings involving
financial issues).
63 PROB. CODE §3087.
64 PROB. CODE §3088(b).
65 FAM. CODE §4320.
66 P ROB . C ODE §3089 (comparable to F AM . C ODE
§2550).
67 PROB. CODE §3090.
68 Caballero v. Caballero, 27 Cal. App. 4th 1139 (1994).
69 See, e.g., CAL. RULES OF PROF’L CONDUCT R. 3-310,
Avoiding the Representation of Adverse Interests.
21
Legislative Intent.
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Tracking down sources of information can be
a frustrating and time consuming process.
When legislative history is important to your
case it can be very cost effective to engage our
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and intent of the statutes or administrative
enactments at issue in your case.
When you call, you can explain what
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State Bar #88703
Los Angeles Lawyer April 2005 35
by Antonio R. Sarabia II
Marked
RECOVERY
The calculation of statutory damages for
trademark infringement could be simplified by
using the “class system” to determine
goods and services
means for awarding damages for trademark infringement were not
deterring this illegal practice and decided to supplement these measures with statutory damages—a specific range that a court could
award even in the absence of proof of a plaintiff’s losses or the
defendant’s profits. Despite the fact that almost a decade has passed
since Congress passed this statute, most courts that award trademark
infringement damages continue to cite as their authority copyright law
on statutory damages. While it is true that there is a much longer common law history for copyright statutory damages, the assumption of
most courts, practitioners, and even trademark treatises, that there
is little jurisprudence on trademark statutory damages is not correct.
In fact, a solid body of trademark cases awarding statutory damages
exists. At least 25 reported cases in which statutory damages were
awarded for counterfeiting can be found.1
Before statutory damages provided an alternative, courts awarded
damages based on a plaintiff’s actual damages or a defendant’s profits from the sales of counterfeit goods. Because the records of defendants were often poor or nonexistent, plaintiffs were forced to reveal
important information about their businesses in order to recover
36 Los Angeles Lawyer April 2005
damages. This put pressure on plaintiffs—particularly privately held
companies—either to reveal confidential information about their
sales practices and profits or forgo damages. Moreover, this information was to be revealed to the very persons who already had a track
record of taking the plaintiff’s intellectual property. To plaintiffs, it
seemed like they were being asked to give the key to the safe to the
person who had just broken into their house. The choice between disclosing trade secrets or forgoing damages added insult to injury to a
company that had already suffered a serious trademark infringement. Congress enacted statutory damages to provide an alternative:
The creation of this alternative to the more traditional remedies of recovery of the plaintiff’s damages or the defendant’s
profits reflected a harsh reality—counterfeiters often do not keep
or secrete records of their unlawful activities, thus making proof
of the extent of the plaintiff’s injury or the counterfeiter’s
profits impossible as a practical matter.2
Antonio R. Sarabia II is an attorney with IP Business Law Group, Inc., specializing in trademarks, copyrights, licensing, the apparel industry, business
transactions, and victim restitution.
KEN CORRAL
EIGHT YEARS AGO Congress decided that the existing
There are three prerequisites to an award of statutory damages in
trademark cases. First, there must be a trademark registration.3
Second, the infringing mark must be nearly identical to the authentic mark.4 The third requirement is that the infringing product or service is listed in the federal trademark registration.5
Courts have a wide range of discretion in setting statutory damages. A court may award $500 to $100,000 per counterfeit mark per
type of goods or services. If the infringement is willful the range
increases to $1 million.6 In practice, courts have employed the full
range of statutory damages. In one case, a court awarded only $500
per mark,7 and several courts have made awards of the full $1 million per mark.8
In most counterfeiting cases liability can be quickly established
without trial. A plaintiff proves that it owns the trademark by offering its federal registration. A plaintiff offers samples of the products
or services that the defendant offered that bore the mark and proves
that this use was without authorization. Because counterfeiting cases
involve only infringing uses in which the mark the infringer used is
virtually identical to the registration, there is less room for litigation
over issues such as similarity. Relatively simple counterfeiting cases
thus lend themselves to resolution before trial.
In fact, in the vast majority of trademark statutory damage cases
there were insufficient contested facts for a trial on the merits. Almost
half involved default judgments.9 Another third of the statutory
damage awards were made during or after a motion for summary judgment.10 To a defendant the message is that you may be at greatest risk
for a statutory damage award in a case that can be quickly resolved.
To a plaintiff, these quick cases look like the ideal setting in which
to seek statutory damages.
Consistent with the summary stage in which most statutory damages are awarded—and with a defendant having insufficient contested
issues to get to trial—the average award per mark is substantial:
$219,739. This figure must be considered in view of not only the relatively uncontested state of most of the cases but also in view of the
factors that the various courts considered, such as defendant’s profits or sales.
The amount of damages a plaintiff recovered on other claims, such
38 Los Angeles Lawyer April 2005
as state punitive damages, may also be important.11 It seems that the
greater the recovery on other counts, the less likely a court was to
award large statutory damages. None of the courts said this explicitly, but because discretion is so wide, it is probably considered.
Determining Statutory Damages
In almost all the decisions, the court considered the statutory factors
of willfulness and the number of marks counterfeited. Because the
statute requires a determination of damages “per mark,” many
courts (more than 40 percent) reported that they first determined a
damage amount and then multiplied it by the number of marks
counterfeited.12 Although these decisions explicitly stated that the court
followed the statute by first determining the damage amount and then
multiplying by the number of trademarks counterfeited, one wonders
if the real process was somewhat different. Did the courts tend to determine what a just total award was
and work backwards by dividing it
by the number of marks counterfeited? Or did courts determine the
amount without regard to the number of marks?
Since the courts are under a
statutory mandate to multiply the
damages by the number of marks
counterfeited, it is surprising that
a number of courts admitted that
they did the opposite, that they
determined a reasonable total statutory damage award and then
divided it by the number of marks
to reach the award per mark.13 In
other words if the “right” award
were $5,000 and there was one
mark, the damages were set at
$5,000 per mark. If there were l0
marks, the award would be pegged
at $500 per mark. One way to
view this is that it converts the
statutory mandate to multiply
times the number of marks into a
meaningless exercise. Another way
to view it is as the determination of
courts to award what they view as fair. This highlights a critical point
about statutory awards: Because they are discretionary, the computation a court uses may not be the cause of the award as much as a
reflection of what the court deems correct.
While the number of trademarks infringed—despite the statutory
mandate—may not be important, there are a number of factors that
did play an important role when courts have determined statutory
damages. When a defendant’s profits could be determined, most
courts considered that factor in awarding statutory damages. Some
cases used a multiplier of defendant’s profits.14 In other cases the statutory award bore some relation to the defendant’s profits.15 Although
lack of information about a defendant’s profits was a main reason that
Congress authorized statutory damages, when courts could obtain this
information they used it in determining statutory damages. This
makes sense because it is the best indicator of the extent to which an
infringer has profited from the infringement, and therefore makes a
good basis upon which to calculate an award.
A factor that three courts considered in calculating statutory
damages was whether infringing sales were made over the Internet.16
The rationale was that sales over the Internet increased the amount
of an award because use of the Internet made the infringement widely
available. These cases did not provide proof that the plaintiff’s Web
site sales of legitimate product were actually reduced. The logic of this
approach is not strong. Without information about an infringer’s sales
volume (or the reduction in the plaintiff’s Internet sales) the fact that
the infringer marketed in a particular way does not make the infringement more or less harmful.
The Second Circuit provided the most rigorous analysis of statutory damages by analogizing to copyright law. Although many cases
referred to precedent in copyright statutory damage cases, Judge
Motley in New York most thoughtfully applied this analysis.17 Citing
Second Circuit copyright cases, Judge Motley identified the factors
a court should consider in determining an award of statutory damages. Her analysis was later refined into seven factors: 1) the profits
made by the defendant, 2) the revenues lost by the plaintiff, 3) the value
of the mark, 4) the deterrent effect on others, 5) whether the conduct
was innocent or willful, 6) whether the defendant has cooperated in
encompasses profit made by the defendants. The Second Circuit’s
“whether the conduct was innocent or willful” is already mandated
by the statute. The Ninth Circuit’s “what is just” includes the Second
Circuit’s “whether a defendant has cooperated in providing records.”
However, it is a broader term that has the benefit of allowing a court
to consider many other factors.
Determining Goods and Services
A feature of the trademark statute that differs from its copyright counterpart is the inclusion of the language “per type of goods or services
sold” after “per counterfeit mark.”23 This language suggested to
two courts that the award should be multiplied by both the number
of marks and the number of types of goods or services sold.24 Under
the “per type” analysis damages are computed differently. This analysis was first used in Nike, Inc. v. Variety Wholesalers.25 The courts
Did the courts tend to determine what a just total award was
and work backwards by dividing it by the number of marks
counterfeited? Or did the courts determine the amount
without regard to the number of marks?
providing records, and 7) the deterrent effect on the defendant.18 These
factors were used in three other cases in the Southern District of New
York.19
The value of Motley’s reasoning is that it identifies the factors a
court should consider in making the discretionary award. It increases
the likelihood that a range of factors are considered and reduces the
likelihood that a court reacts merely on the basis of a feeling about
the case. This approach also encourages placing the case in a larger
perspective—its deterrence effect on others.
If the same approach were used in the Ninth Circuit—closely following copyright precedent—the guiding case would probably be Los
Angeles News Service v. Reuters TV International,20 which lists these
factors:
The district court has wide discretion in determining the
amount of statutory damages to be awarded, constrained only
by the specified maxima and minima. The court is guided by
what is just in the particular case, considering the nature of the
copyright, the circumstances of the infringement and the like.
Because awards of statutory damages serve both compensatory and punitive purposes, a plaintiff may recover statutory
damages whether or not there is adequate evidence of the
actual damages suffered by plaintiff or of the profits reaped by
defendant in order to sanction and vindicate the statutory
policy of discouraging infringement.21
This description may be distilled into six criteria to be used when
determining statutory damages: 1) what is just, 2) the nature of the
trademark, 3) the circumstances of the infringement, 4) compensation to the plaintiff, 5) deterrence of the defendant, and 6) deterrence
of other infringers. None of the three district court cases within the
Ninth Circuit identified or used these factors.22
These factors are similar, but not identical, to those used in the
Second Circuit. Both include the factors of deterrence of the defendant and deterrence of other infringers. The Ninth Circuit’s “nature
of the trademark” and “compensation to plaintiff” are similar to the
Second Circuit’s “the value of the mark” and “revenues lost by
plaintiff.” The Ninth Circuit’s “circumstances of the infringement”
using this approach read the statute to mean that there are two multipliers: the number of trademark registrations and the number of different goods counterfeited. For example, if bracelets, earrings, and rings
(all in the description of goods in the registration) are counterfeited
using two different trademarks, the statutory damage amount is
multiplied by three because there are three different types of goods,
then by two because there are two trademarks. This analysis turns
“type of goods or services” into key terms, which might be the subject of expert testimony (to determine whether particular goods are
of one or more types) and must be considered by the court in its computation.
None of the courts that used the Nike analysis referred to the class
of the trademark registrations. There is no indication in the statute
or its legislative history that the phrase “type of goods or services”
is meant to refer to the different classes on a registration. But there
are a number of important advantages to using the class system as a
multiplier on damage awards under the phrase “type of goods or services”—especially when compared to using “type of goods” as a multiplier without reference to class.
First, as the Nike analysis shows, this creates the separate issue of
determining what are the “type of goods or service.” This results in
another issue upon which courts must hear testimony, a process at
odds with one feature of statutory damages: allowing courts to more
readily award damages without extensive proof on a party’s income
or losses. Thus, while the concept of statutory damages allows simplification of the awards process, determining the type of goods adds
a complication. However, if the class system were used, courts would
not have to make an independent finding; the answer would lie in the
registration. This would better serve the purpose of a simplified
damage calculation process.
Second, the Nike analysis hinges on the exact description chosen
by the registrant. For example, if a registration specifies “boys’
underwear” and “girls’ underwear,” that registrant is in a much better position to argue that it has two types of goods (assuming the
infringer sold boys’ and girls’ underwear) than a registrant with a
description of “children’s underwear.” Under the analysis of Nike, a
Los Angeles Lawyer April 2005 39
registrant of boys’ underwear and girls’ underwear would receive double the damages of a
registrant of children’s underwear. It makes
little sense to reward such an arbitrary difference.
Third, the class system is established and
allocated by the agency with expertise—the
U.S. Patent and Trademark Office. It is
arguably better to rely on its determination,
which is likely to be more consistent, than to
rely on determinations by individual courts
and witnesses.
Fourth, using a class system (awarding
damages per mark per class) is better than
using the system most courts have followed—
awarding damages per registration. For example, if a registration covers clothes in class 25
and fragrance in class 3, and a counterfeiter
sold both, it would stand to reason that there
should be a greater measure of damages. But
since most courts use only the number of
registrations, there would only be one unit of
damages. However, if the same mark were
covered by two registrations—one in class 3
and one in class 25—most courts would
award two measures of damages. There seems
no reason why a trademark owner of one
multiclass registration should be treated differently than the owner of two registrations,
each in a different class.
To reward multiple, single-class registrations encourages inefficient trademark applications—numerous applications in individual
classes, instead of a single multiple class application. Allowing a multiplier based on class
would make better public policy by encouraging efficient registrations.
One issue not addressed by any of the
courts awarding statutory damages is how to
deal with the lazy plaintiff. For example,
consider a plaintiff that seeks ex parte relief.
In its application for ex parte relief it argues
that it needs to seize the defendant’s records
so that it will have information about the
extent of counterfeiting. The application is
granted and defendant’s records of its sales
and profits are seized.
In litigation the plaintiff claims that it is
not seeking its lost profits, so that it does
not have to respond to the defendant’s discovery requests about its financial information. In another economizing move, the plaintiff decides not to hire a damage expert. At
trial, the plaintiff simply asks the court to
award statutory damages.
While this is within the scope of the
statute, it was enacted for those situations in
which accurate information about the defendant’s conduct is not available. In this case,
however, the plaintiff has that information in
the records it seized but does not want to be
bothered to analyze it and present it to the
court. The plaintiff is depriving the court of
information that would be useful in deter40 Los Angeles Lawyer April 2005
mining damages and is depriving the court of
this information after representing in its exparte motion that it needed the information.
If a Ninth Circuit district court were faced
with this situation and it chose to use the criteria of Los Angeles News, it could consider
the plaintiff’s conduct under the “what is
just” prong of the analysis. However, in the
Second Circuit, the plaintiff’s conduct is not
one of the factors considered.
Statutory damage trademark cases have
already covered a fair amount of ground.
The Second Circuit decisions reflect the most
thorough analysis. Ninth Circuit cases have
not been as carefully reasoned. None of the
cases has read the statute in light of the existing trademark classification system. This is
particularly unfortunate because using the
classification system in computing damages
would more evenly reward plaintiffs and
would encourage efficient use of the trademark application system.
■
1
There are actually two types of trademark statutory
damages, one type for counterfeiting, 15 U.S.C.
§1117(c), and one for cybersquatting, 15 U.S.C.
§1117(d). Only statutory damages for counterfeiting
are discussed in this article.
2 Guess?, Inc. v. Gold Center Jewelry, 997 F. Supp. 409,
411 (S.D. N.Y. 1998) (citing Senate report).
3 15 U.S.C. §1116(d)(1)(B)(i); Momentum Luggage
& Leisure Bags v. Jansport, Inc., 2001 U.S. Dist. LEXIS
1517 (S.D. N.Y. 2001) (no counterfeit goods without
a registration).
4 15 U.S.C. §1116(d)(1)(B)(ii); Tommy Hilfiger
Licensing, Inc. v. Goody’s Family Clothing, Inc., 2003
U.S. Dist. LEXIS 8788 n.8 (N.D. Ga. 2003) (no statutory damages for trim package that does not include
a nearly identical mark).
5 Carroll Shelby Licensing, Inc. v. Superperformance
Int’l, Inc., 251 F. Supp. 2d 983 (D. Mass. 2002) (summary judgment granted for defendants because the
infringing goods were not listed in the registration
and therefore were not counterfeit). See also 15 U.S.C.
§1115(a) (registration establishes exclusive rights to
goods listed in the registration); 15 U.S.C. §1057(b)
(registration is evidence of exclusive right to use the
listed goods).
6 15 U.S.C. §§1117(c)(1), (2).
7 Polo Ralph Lauren, LP. v. 3M Trading Co., 1999 U.S.
Dist. LEXIS 7913 (S.D. N.Y. 1999) (statutory damages
of $500 per mark for some counterfeits where only basis
was that allegations of complaint were true by virtue
of default).
8 Gucci America, Inc. v. Duty Free Apparel, 315 F.
Supp. 2d 511 (S.D. N.Y. 2004), amended by, injunction granted at Gucci America, Inc. v. Duty Free
Apparel, 328 F. Supp. 2d 439 (S.D. N.Y. 2004); Philip
Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D.
494 (C.D. Cal. 2003); Rolex Watch U.S.A., Inc. v.
Brown, 2002 U.S. Dist. LEXIS 10054 (S.D. N.Y.
2002).
9 Petmed Express, Inc. v. Medpets.com, Inc., 2004
U.S. Dist. LEXIS 19176 (S.D. Fla. 2004); Philip Morris
v. Castworld, 219 F.R.D. 494; Rolex Watch v. Brown,
2002 U.S. Dist. LEXIS 10054; Louis Vuitton Malletier
v. Veit, 211 F. Supp. 2d 567 (E.D. Pa. 2002); Microsoft
Corp. v. Wen, 2001 U.S. Dist. LEXIS 18777 (N.D. Cal.
2001); Rolex Watch U.S.A., Inc. v. Voiers, 2000 U.S.
Dist. LEXIS 22127 (S.D. N.Y. 2000), adopted by,
judgment entered by Rolex Watch U.S.A., Inc. v.
Voiers, 2000 U.S. Dist. LEXIS 22128 (S.D. N.Y. 2000);
Polo Ralph Lauren, 1999 U.S. Dist. LEXIS 7913; Sara
Lee Corp. v. Bags of New York, Inc., 36 F. Supp. 2d
161 (S.D. N.Y. 1999); Gucci America, Inc. v. Gold
Center Jewelry, 997 F. Supp. 399 (S.D. N.Y. 1998);
Guess?, Inc. v. Gold Center Jewelry, 997 F. Supp. 409
(S.D. N.Y. 1998); Playboy Enters., Inc. v. Asiafocus
Int’l, Inc., 1998 U.S. Dist. Lexis 10359 (E.D. Va.
1998).
10 Philip Morris USA, Inc. v. Felizardo, 2004 U.S.
Dist. LEXIS 11154 (S.D. N.Y. 2004); Rolex Watch
U.S.A., Inc. v. Zeotec Diamonds, 2003 U.S. Dist.
LEXIS 5595 (C.D. Cal. 2003); Microsoft Corp. v. V3
Solutions, Inc., 2003 U.S. Dist. LEXIS 15008; Copyright
L. Rep. (CCH) ¶28, 661 (N.D. Ill. 2003); Rolex Watch
U.S.A., Inc. v. Jones, 2002 U.S. Dist. LEXIS 6657
(S.D. N.Y. 2002); Microsoft Corp. v. Logical Choice,
Inc., 2001 U.S. Dist. LEXIS 479, Copyright L. Rep.
(CCH) ¶28, 211 (E.D. Ill. 2001); Microsoft Corp. v.
Software Wholesale Club, Inc., 129 F. Supp. 2d 995
(S.D. Tex. 2000); Microsoft Corp. v. Compusource
Distribs., Inc., 115 F. Supp. 2d 800 (E.D. Mi. 2000);
Altadis U.S.A., Inc. v. Monte Cristo de Tabacos, 2001
U.S. Dist. LEXIS 6892 (S.D. N.Y. 2001).
11 E.g., Altadis U.S.A., Inc., 2001 U.S. Dist. LEXIS
6892.
12 Gucci v. Duty Free Apparel, 315 F. Supp. 2d 511;
Rolex v. Zeotec, 2003 U.S. Dist. LEXIS 5595;
Microsoft v. V3, 2003 U.S. Dist. LEXIS 15008; Tommy
Hilfiger Licensing, Inc. v. Goody’s Family Clothing,
Inc., 2003 U.S. Dist. LEXIS 8788 (N.D. Ga. 2003);
Microsoft v. Logical Choice, 2001 U.S. Dist. LEXIS
479; Microsoft v. Tierra, 184 F. Supp. 2d 1329 (N.D.
Ga. 2001); Microsoft v. Software Wholesale, 129 F.
Supp. 2d 995; Microsoft v. Compusource, 115 F.
Supp. 2d 800; Polo Ralph Lauren, 1999 U.S. Dist.
LEXIS 7913; Gucci v. Gold Center, 997 F. Supp. 399.
13 Tommy Hilfiger v. Goody’s, 2003 U.S. Dist. LEXIS
8788; Louis Vuitton Malletier v. Veit, 211 F. Supp. 2d
567 (E.D. Pa. 2002).
14 Philip Morris v. Felizardo, 2004 U.S. Dist. LEXIS
11154; Altadis, 2001 U.S. Dist. LEXIS 6892; Guess?
v. Gold Center, 997 F. Supp. 409.
15 Rolex Inc. v. Zeotec, 2003 U.S. Dist. LEXIS 5595;
Microsoft v. Software Wholesale, 129 F. Supp. 2d
995.
16 Petmed Express, Inc. v. Medpets.com, Inc., 2004 U.S.
Dist. LEXIS 19176 (S.D. Fla. 2004); Louis Vuitton, 211
F. Supp. 2d 567; Rolex Watch U.S.A., Inc. v. Jones,
2002 U.S. Dist. LEXIS 6657 (S.D. N.Y. 2002).
17 Sara Lee Corp. v. Bags of New York, Inc., 36 F. Supp.
2d 161 (S.D. N.Y. 1999).
18 Polo Ralph Lauren, L.P. v. 3M Trading Co., 1999
U.S. Dist. LEXIS 7913 (S.D. N.Y. 1999).
19 Gucci America, Inc. v. Duty Free Apparel, 315 F.
Supp. 2d 511 (S.D. N.Y. 2004), amended by, injunction granted at Gucci America, Inc. v. Duty Free
Apparel, 328 F. Supp. 2d 439 (S.D. N.Y. 2004); Polo
Ralph Lauren, 1999 U.S. Dist. LEXIS 7913; Sara Lee,
36 F. Supp. 2d 161.
20 Los Angeles News Serv. v. Reuters TV Int’l, 149 F.
3d 987 (9th Cir. 1998), cert. denied, 525 U.S. 1141
(1999).
21 Id. at 996 (Citations and quotations omitted.).
22 Philip Morris USA, Inc. v. Castworld Prods., Inc., 219
F.R.D. 494 (C.D. Cal. 2003); Rolex Watch U.S.A., Inc.
v. Zeotec Diamonds, 2003 U.S. Dist. LEXIS 5595
(C.D. Cal. 2003); Microsoft Corp. v. Wen, 2001 U.S.
Dist. LEXIS 18777 (N.D. Cal. 2001).
23 Cf. 17 U.S.C. §504(c) (copyright damages statute).
24 Nike, Inc. v. Variety Wholesalers, 274 F. Supp.
1352, 1374 (S.D. Ga. 2003); Playboy Enters., Inc. v.
Asiafocus Int’l, Inc., 1998 U.S. Dist. Lexis 10359 (E.D.
Va. 1998). A third case recognized this approach, but
elected not to use it. See Gucci America, Inc. v. Duty
Free Apparel, 315 F. Supp. 2d 511 (S.D. N.Y. 2004).
25 Nike, 274 F. Supp. 1352, 1374.
The LOS ANGELES LAWYER
Semiannual Guide to
Expert Witnesses
Improving Cross-Examination of Expert Witnesses by David Nolte
IN MANY RESPECTS, the cross-examination of an expert witness is the same as
that of other witnesses. Some basics include: Be brief, do not quarrel with the
witness, never ask a question to which you do not already know the answer, avoid
asking one question too many, and so on. However, there are some important differences.
First, preparation is even more important when dealing with an expert witness. Your research should include:
• Has this witness written or testified previously with inconsistent conclusions
to those being taken in your case?
• Does the expert always testify for the same side? An impartial expert can consistently apply his or her trade on behalf of plaintiffs and defendants.
Attacking the opposing expert’s theory or conclusions is much more difficult
than attacking their qualifications. To prepare for the substance of the opinions,
you should be schooled by your (equally competent) expert. Your expert can educate you as to weaknesses and flaws in the opposing position as well as the jargon necessary to understand what is being said. Your expert may also know information about your opposing expert that you would otherwise have difficulty
learning.
Your cross-examination plan should emphasize quality over quantity. The more
qualified and/or experienced the expert, the less likely that you will gain much
from a more lengthy cross. The reason is that the expert has years of training and
experience from which to draw in answering your questions. A wide-ranging
cross is more likely to give the witness a new chance to demonstrate his expertise or explain his views. Particularly with complex subjects, focus on the big problems that you know you can demonstrate.
question’s exceptions or subtleties to avoid answering in the desired way.
Most questions should be leading, meaning the question can be answered
with a yes or a no. This has the practical effect of having the attorney serve as a
witness, with the real witness ratifying the attorney’s testimony. However, as long
as you have a good deposition transcript to support you, some questions are better left open for the expert to complete. Some examples, all of which ask for specific objective data, include:
• How much money did you make last year testifying for other plaintiffs?
• Of the thousands of medical journals published around the world, how many
of them have asked you to publish the opinions you are expressing in this case?
• When is the last time you treated a real patient?
Lawyers often try to impeach an expert with the fact that he or she has been
paid for his work. This backfires as often as it works. For example, if the expert
has put significant time and cost into the matter, does this indicate thoroughness rather than bias? If the expert has a high hourly rate, does this mean that
he or she is a liar, or rather that he or she is eminently qualified and in high
demand? The impeachment from fee-related questions is minor compared to the
witness’s confidence and preparation on other matters and the effectiveness of
the rest of your cross-examination.
Some experts attempt to demonstrate their superiority by using technical jargon. When dealing with a pompous expert, you must know the expert’s lingo. Get
the expert to agree with your alternative explanation that uses everyday language.
Doing this will demonstrate the expert’s arrogance and will raise your credibility with the jury.
What Questions to Ask
You should generally begin and end your cross-examination with your strongest
points. Otherwise, use the following sequence:
• Practically every opposing expert will have opinions that support your case. This
corroborating testimony will have a stronger impact than the same testimony from
your side. Therefore, start your examination with the areas or themes that will
allow you to turn the opposing expert into your witness. At the beginning, your
opposing expert will be less hostile.
• Next, dilute the opposing expert’s opinions by seeking agreement regarding
possible alternative explanations that favor your theories. A jury will often give
credit to a mere possibility, even if this possibility may not be probable.
• After the corroborative portion of the cross-examination, ask the more destructive and critical questions. However, do not be aggressive, as this might cause
the jury to be sympathetic toward the expert. You should attack an expert only
when you believe the jury will see the witness as being unfair, arrogant, or disrespectful of the truth. Even then, you must never cross the lines between tough
and mean or confident and arrogant.
Experts often make a huge difference in the trial. Additional attention to the expert
portion of your case is usually worth the effort.
Your deposition should have uncovered the assumptions upon which your opposing expert relies. These assumptions often control the result the expert reaches
and will likely be the centerpiece of your examination. Your ultimate goal is to provide the jurors with the basis to argue against the expert’s conclusions by showing that they are based on assumptions that the jury independently rejects.
The jury will generally find it much easier to critique the assumptions than to challenge the expert’s science or techniques.
All cross-examination is better when done with short and simple sentences.
Add only one new fact or point with each question. This makes it difficult for the
witness to disagree without appearing obstinate. Short questions provide less
room for the witness to squirm away from your control or provide explanations
that you would rather not hear.
The use of questions that do not contain extra details is particularly important when dealing with the complex subjects that experts address. Experts are
usually careful and understand the importance of precision. Avoid questions containing absolute words (such as “always” or “never”) or unnecessary adjectives
(such as “clearly” or “rapidly”). Otherwise, the expert may take advantage of your
The Order of Questions
David Nolte is a principal at Fulcrum Financial Inquiry LLP, with 30 years of experience performing forensic accounting, auditing, business appraisals, and
related financial consulting. He regularly serves as an expert witness.
Los Angeles Lawyer April 2005 41
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CERTIFIED INDOOR
ENVIRONMENTALISTS
CERTIFIED MOLD REMEDIATORS
IICRC CERTIFIED MASTERS
LIC. GEN. CONTRACTOR #299472
800-266-8988
FAX 909-591-7274
[email protected]
www.propertydamageinspections.com
CONSULTANTS/EXPERT WITNESS
42 Los Angeles Lawyer April 2005
ACCIDENT ANALYSIS/
RECONSTRUCTION
A R TECH FORENSIC EXPERTS, INC.
18075 Ventura Boulevard, Suite 209, Encino, CA 91316,
(818) 344-2700, fax (818) 344-3777. Engineers: experienced, registered, advanced degrees, extensive testimony
experience. Traffic accidents (all motor vehicle types, bicycles, pedestrians), collisions, rollovers, skid marks, visibility, signal phasing, time-motion, low-speed impact. Industrial and construction accidents: OSHA issues. Automotive, industrial, consumer products: brakes, seat belts,
forklifts, machinery, tools, protective equipment, lawn
mowers, heaters, chairs, fixtures, ladders, scaffolds, fasteners. Premises liability: code analysis, stairways, ramps,
doors, gates, windows, guardrails, pools, and lighting.
Slip-and-fall. Trip-and-fall. Biomechanics. Safety. Human
factors. See display ad on this page.
ACCIDENT RESEARCH & RECONSTRUCTION
4120 Elizabeth Court, Cypress, CA 90630, (714) 9955928, fax (714) 995-5929, cell (714) 904-5928. Contact
David Moses, MSc, PE, president, consulting engineer. Forensic engineering, accident research, investigation and reconstruction: trucks, automobiles, motorcycles,
bicycles, and pedestrians. All terrain vehicles (ATVs); lifting
eqiupment; dynamic collision analysis; powertrain malfunction (engine, etc.), industrial and agricultural equipment; machine safety and guarding; mechanical stress
and vibration; experimental stress analysis. Slip, trip, and
fall. Inspection, photographic documentation (including
video) testing, models. Sound level readings for noise exposure and safety analysis. Product liability for all the
above.
D. WYLIE ASSOCIATES
P.O. Box 60836, Santa Barbara, CA 93160, (805) 6819289, fax (805) 681-9299. Web site: www.drivingfatigue
.com. Contact Dennis Wylie. Internationally recognized
human factors expert on driver error, inattention, fatigue,
car, truck, and bus driver skill and knowledge requirements, driver and motor carrier standards of care, hours
of service violations, circadian rhythms, sleep debt, impaired vigilance, alertness, decision making, reaction
time, and control responses. See display ad on
page 59.
GUNZLER & ASSOCIATES
P.O. Box 5848, Santa Monica, CA 90409, (310) 3963430. Contact Thomas Gunzler, PE. Engineering consulting office provides extensive consulting experience,
individual case review, in-depth research and advice for
both plaintiff and defendant in the following areas: safety
engineering, traffic accident reconstruction, pedestrian
safety and premises liability, product failure analysis,
workplace accidents, fire cause analysis, chemical hazards, mechanical design, patent validity and infringement,
laboratory examinations, and field inspections. Principal
consultant has more than 40 years of experience in mechanical and safety engineering. CV’s of principal and associate consultants available on request.
FRED M. JOHNSON, PHD
P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax
(714) 526-6662. Contact Fred M. Johnson, PhD. For
those who seek the most qualified and the highest forensic workmanship. Extensive test facility and equipment
available. Lighting and illuminations: light intensity measurements, visual perception, times of sunset, twilight,
moon rise/set. Product failure analysis: medical devices,
glass, chairs (all types), ladders. Slip and fall: scientific
testing of slipperiness on tile, ceramic, walkways, supermarkets and retail industry. Fall from height: stairways,
balconies, platform, theatre pit, pole. Biomechanics. Traffic accident reconstruction: cars, trucks, pedestrian, bicycle. Professor of physics, fellow Am. Physical Society,
consultant to ANSI/BIFMA. Member SAE, SATAI, ASTM +
ICC. Author of textbook + 60 scientific publications. Over
35 years in research. Extensive expert witness experience.
See display ad on page 63.
WILLIAM KUNZMAN, PE
1111 Town and Country #34, Orange, CA 92868, (714)
973-8383, fax (714) 973-8821, e-mail: mail@traffic-engineer
.com. Web site: www.traffic-engineer.com. Contact
William Kunzman, PE Traffic expert witness since 1979,
both defense and plaintiff. Auto, pedestrian, bicycle, and
motorcycle accidents. Largest settlement: $2,000,000 solo
vehicle accident case against Caltrans. Before becoming
expert witnesses, employed by Los Angeles County Road
Department, Riverside County Road Department, City of
Irvine, and Federal Highway Administration. Knowledge of
governmental agency procedures, design, geometrics,
signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds of cases. Undergraduate work—
UCLA; graduate work—Yale University.
MR. TRUCK ACCIDENT INVESTIGATION &
RECONSTRUCTION
P.O. Box 398, Brentwood, CA 94513-0398, (800) 3374994, fax (925) 625-4995, e-mail: [email protected].
Contact William M. Jones. Accident analysis and reconstruction. Court-qualified expert witness regarding car vs.
car, truck vs. car cases, trucking industry safety, and driver
training issues, including Power Point court presentations.
See display ad on page 52.
RIMKUS CONSULTING GROUP, INC.
333 City Boulevard West, Suite 1805, Orange, CA 92868,
(877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski
@rimkus.com. Web site: www.rimkus.com. Contact Curt
Yaworski. Rimkus Consulting Group is a full-service forensic consulting firm. Since 1983, we have provided reliable
investigations, reports and expert witness testimony
around the world. Our engineers and consultants analyze
the facts from origin and cause through extent of loss. Services: construction defect and dispute analysis, vehicle accident reconstruction, fire cause and origin, property evaluation, mold evaluations, indoor air quality assessments,
biomechanical analysis, product failure analysis, foundation
investigations, industrial accidents and explosions, water
intrusion analysis, geotechnical evaluations, construction
accidents, construction disputes, financial analysis and assessments, forensic accounting, HVAC analysis, electrical
failure analysis, and video/graphics computer animation.
See display ad on page 65.
ACCOUNTING
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612, (949)
263-8700, fax (949) 263-0770, e-mail: info@mcsassociates
.com. Web site:www.mcsassociates.com. Contact
Norman Katz, managing partner. Nationally recognized
banking, finance, insurance, and real estate consulting
group (established 1973). Experienced litigation consultants/
experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of
lending (real estate, business/commercial, construction,
consumer/credit card), banking operations/administration,
trusts and investments, economic analysis and valuations/
damages assessment, insurance claims, coverages and bad
faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance.
ARNOLD L. STENGEL & COMPANY
2320 Cotner Avenue, Los Angeles, CA 90064, (310) 4797777, fax (310) 479-0983. Contact Arnold L. Stengel.
Expert witness services, litigation support services, structure for purchase/sale of professional practices, including
law and healthcare, business reorganizations, dairy/farming operations, representation before taxing agencies,
financial advisory and personal financial planning, estate
and gift tax planning, individual partnership, fiduciary, and
corporation tax planning and preparation.
BALLENGER, CLEVELAND & ISSA, LLC
10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA
90024, (310) 873-1717, fax (310) 873-6600. Contact
Bruce W. Ballenger, CPA, executive managing direc-
tor. Services available: assist counsel in determining overall strategy. Help evaluate depositions and evidence. Provide well-prepared, well-documented, and persuasive incourt testimony regarding complicated accounting, financial, and business valuation matters, fairness of interest
rates, feasibility of reorganization plans, fraudulent conveyances, bankruptcies, mergers and acquisitions, and
management misfeasance/malfeasance. More than 100
open-court testimonies, federal and state, civil and criminal. See display ad on page 48.
THE CAPANALYSIS GROUP, LLC
550 South Hope Street, Suite 1050, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for
complex litigation, arbitration, regulatory proceedings, and
strategic corporate decision making. Assist attorneys with
discovery, identification of relevant economic and financial
issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state
courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market
definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright
infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers
and acquisitions, and securities fraud. Degrees/licenses:
CPAs, CFEs, CVAs, JDs, PhDs economics.
COHEN, MISKEI & MOWREY LLP
15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA
91403, (818) 986-5070, fax (818) 986-5034, e-mail:
[email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic
accountants, fraud investigations, economic damages,
business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display
ad on page 57.
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 2.
GLENN M. GELMAN & ASSOCIATES,
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS CONSULTANTS
1940 East 17th Street, Santa Ana, CA 92705, (714) 6672600, fax (714) 667-2636. Web site: www.gmgcpa.com.
Contact Glenn Gelman. Expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting,
forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation.
GURSEY, SCHNEIDER & CO., LLP
10351 Santa Monica Boulevard, Suite 300, Los Angeles,
CA 90025, (310) 552-0960, fax (310) 557-3468. Web site:
www.gursey.com. Contact Roseanna Purzycki or Rory
Burnett. Forensic accounting and litigation support services in the areas of marital dissolution, business valuation
and appraisal, goodwill, business disputes, malpractice,
DAVID OSTROVE
•
•
•
•
•
•
•
•
■
AT T O R N E Y – C PA
Expert Witness — 47+ years
Lawyer/Accountant Malpractice
Forensic Accounting
Tax Matters
Business Valuation
Value of Services
Computation of Damages
Mediator, Arbitrator
323/939-3400
[email protected]
ConfidenceAtThe Courthouse.
Business litigation is increasingly complex. That is why we believe valuation
issues must be addressed with the same meticulous care
as legal issues. Analysis must be clear. Opinions must be
defensible. Expert testimony must be thorough and
articulate. HML has extensive trial experience and can
provide legal counsel with a powerful resource for expert
testimony and litigation support.
For More Information Call 213-617-7775
Or visit us on the web at www.hmlinc.com
BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS
Los Angeles Lawyer April 2005 43
tax matters, bankruptcy, damage and cost-profit assessments, insurance claims, court accounting, tracing, and
entertainment industry litigation. See display ad on
page 55.
HAYNIE & COMPANY, CPAs
4910 Campus Drive, Newport Beach, CA 92660,
(949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson
@hayniecpa.com. Web site: www.hayniecpa.com. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis,
business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination,
professional liability, and expert cross examination. Extensive public speaking background assists in courtroom presentations.
KAPLAN ABRAHAM BURKERT & COMPANY
Forensic valuation consultants. 5950 Canoga Avenue,
Suite 200, Woodland Hills, CA 91367, (818) 888-0066, fax
(818) 888-8860. Contact Michael G. Kaplan, CPA,
CVA, CFFA. Expert witness services and preparation in
matters involving business disputes, goodwill, economic
damages, loss of earnings and profits, fraud and embezzlement, forensic accounting, business valuation, marital
dissolution, legal and accountants’ malpractice, wrongful
termination, intellectual property, and bankruptcy. Member
of Voir Dire Partners, LLC. Affiliated offices nationwide.
KROLL
660 S. Figueroa St., Suite 900, Los Angeles, CA 90017,
(213) 443-6090, fax: (213) 443-6055. Contact Troy
Dahlberg, CPA/ABV [email protected] or
Christian Tregillis, CPA/ABV ctregillis@krollworldwide
.com. Investigations, economic damages, and valuation
firm with offices across the country and around the globe.
Specialties include accounting, financial, economic and
statistical analysis, as well as computer forensics, in the
context of commercial litigation and forensic investigations:
accounting/fraud, securities, intellectual property (including
damages analyses, licensing and valuation), breach of contract, lost profits, royalty audits, corporate governance,
business valuation, real estate, construction, bankruptcy.
Practitioners include former partners at big four accounting
firms, law enforcement/FBI, computer forensics, and appraisers. See display ad on page 49.
KRYCLER, ERVIN, TAUBMAN, & WALHEIM
15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA
91403, (818) 995-1040, fax (818) 995-4124. Web site:
[email protected]. Contact Michael J. Krycler. Litigation support, including forensic accounting, business
appraisals, family law accounting, business and professional valuations, damages, fraud investigations, and lost
earnings. Krycler, Ervin, Taubman and Walheim is a fullservice accounting firm serving the legal community for
more than 20 years. See display ad on page 53.
DIANA G. LESGART, CPA, CFE, AN
ACCOUNTANCY CORP.
22024 Lassen Street, Suite 106, Chatsworth, CA 91311,
(818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3
@msn.com. Contact Diana G. Lesgart, CPA, CFE. Specialized accounting and litigation support services in the
areas of family law litigation, tracing of assets, pension plan
tracing, forensic accounting, business valuation, goodwill,
expert testimony, commercial litigation, fraud investigations, economic damages, and real estate litigation. Over
21 years’ accounting experience with 17 years’ litigation
support specialization. Assigned as §730 accounting expert. Ms. Lesgart’s profile can be found at www.jurispro
.com. using “Lesgart” under Search by Name. Expert is
fully English/Spanish bilingual.
LEWIS, JOFFE & CO, LLP
10880 Wilshire Boulevard, Suite 520, Los Angeles, CA
90024, (310) 475-5676, fax (310) 475-5268. Contact
Brian Lewis, CPA, CVA. Forensic accounting, business
valuations, cash spendable reports, estate, and trust and
44 Los Angeles Lawyer April 2005
income tax services.
MIOD AND COMPANY, LLP CPAs
11600 Indian Hills Road, Building B, Suite 300, Mission
Hills, CA 91345-1225, (818) 898-9911, fax (818) 8989922, 74-478 Highway 111, Suite 254, Palm Desert, CA
92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod
@miod-cpa.com. Visit our Web site at www.miodcpa.com.
Contact Donald John Miod, CPA, ABV, CVA, CBA.
More than 30 years’ experience in litigation support, including computation of income available for support, tracing, business valuations, fraud investigations, earnings loss
calculations, and income tax matters. Our firm is very computer-oriented, involving the use of computer graphics. We
are members of the Institute of Business Appraisers, the
International Society of CPAs (founding member), the
American Institute of CPAs, and California Society of
CPAs. See display ad on page 61.
DAVID OSTROVE, ATTORNEY-CPA
5757 Wilshire Boulevard, Suite 535, Los Angeles, CA
90036-3600, (323) 939-3400, fax (323) 939-3500, e-mail:
[email protected]. Web site: www.lawyers.com
/ok&alaw. Contact David Ostrove. Accounting malpractice (defense/plaintiff). Experts in legal malpractice (defense/plaintiff), auditor’s malpractice (defense/plaintiff),
business valuations, breach of fiduciary duty, insurance
bad faith cases, tax matters, fraudulent conveyances,
leveraged buyout, analysis of financial statements, estate
planning, civil litigation, tax litigation, probate litigation,
criminal tax litigation, and business and real estate transactions. See display ad on page 43.
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and gift
tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations.
See display ad on page 47.
SCHULZE HAYNES & CO.
660 South Figueroa Street, Suite 1280, Los Angeles, CA
90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert
@schulzehaynes.com. Web site:www.schulzehaynes.com.
Contact Karl J. Schulze or Dana Haynes, principals.
Specialties: forensic business analysis and accounting, lost
profits, economic damages, expert testimony, discovery
assistance, business and real estate valuations, construction claims, corporate recovery, real estate transactions, financial analysis and modeling, major professional organizations, and have experience across a broad spectrum of
industries and business issues. Degrees/licenses: CPA;
CVA; CFE; PhD-economics.
STONEFIELD JOSEPHSON, INC.
1620 26th Street, Suite 400 South, Santa Monica, CA
90404, (310) 453-9400, fax (310) 453-1187, e-mail:
[email protected]. Web site: www.sjaccounting
.com. Contact Jeffrey Sumpter, director of financial
recovery. Stonefield Josephson, Inc., is a California-based
certified public accounting and business advisory firm
founded in 1975. Our services include assurance/accounting, business consulting (profit enhancement, finance
sourcing, mergers and acquisitions, family-owned business, succession planning, executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax consulting and compliance. Service area: throughout the United States and internationally. See display ad on page 11.
SUGARMAN & COMPANY, LLP
44 Montgomery Street, Suite 1310, San Francisco, CA
94104, (415) 395-7512, fax (415) 658-2858, e-mail:
[email protected]. Web site: www
.sugarman-company.com. Contact Diane LaBelle.
Expert witness testimony in federal, state, and local courts,
forensic accounting. Case involvement includes: damage
calculations, lost profits, business interruption, cash flow
analysis, forensic accounting, business and real estate valuations, construction damages, insurance claims, fraud investigations, lender liability, partnership dissolution, professional malpractice, white collar crime, liquidation and going
concern analysis, as well as bankruptcy and reorganization
management and consulting.
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Miguel Drive, Suite 130, Newport Beach, CA 92660, (949)
219-9816, fax (949) 219-9095, e-mail: expert@wzwlw
.com. Contact Barbara Luna, Drew Hunt, Paul White,
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax
planning and preparation and mergers and acquisitions.
Testified hundreds of times as expert witnesses. Prior Big
Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation,
asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real
estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 45.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAs
11900 West Olympic Boulevard, Suite 650, Los Angeles,
CA 90064-1151, (310) 826-1040, fax (310) 826-1065.
Web site: www.zsscpa.com. Contact Lester J.
Schwartz, CPA, DABFE, DABFA, Michael D. Saltsman, CPA, MBA, Ron B. Miller, CPA, ABV, CFE, or
David Dichner, CPA, ABV, CVA. Accounting experts in
forensic accounting, tax issues, business valuations, and
appraisals, marital dissolutions, eminent domain, insurance
losses, business interruption, goodwill, economic analysis,
investigative auditing, loss of earning, commercial damages, and lost profits. Expert witness testimony preparation, and settlement negotiations and consultations. See
display ad on page 46.
ADA/DISABILITY DISCRIMINATION
BIDDLE CONSULTING GROUP, INC.
2868 Prospect Park Drive, Suite 110, Rancho Cordova,
CA 95670, (916) 266-6722, ext. 113, fax (916) 266-4170,
e-mail: [email protected]. Web site: www.biddle.com.
Contact Dan Biddle, PhD, president. We specialize in
test development, EEO/AA reviews, validation studies
(content, criterion-related), and adverse impact analyses.
We have a special emphasis in the protective service fields.
Over 30 staff. Degrees/licenses: MA, PhD, other staff with
various degrees.
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272, (310)
454-2988, fax (310) 454-4516. Contact Marcia Haight.
Human resources expert knowledgeable in both federal
and California law. Twenty-five years’ corporate human resources management experience plus over 15 years as a
Human Resources Compliance Consultant in California.
Specializations include sexual harassment, ADA/disability
discrimination, other Title VII and FEHA discrimination and
harassment, retaliation, FMLA/CFRA, and safety. Courtroom testimony and deposition experience. Retained 60%
by defense, 40% by plaintiff. Audit employer’s actions in
White
Zuckerman
Warsavsky
Luna
Wolf
Hunt LLP
• Expert Witness Testimony
• Forensic Accounting & Economic Analysis
• Damage Analysis of Lost Profits and Earnings
in Commercial and Personal Litigation
• Business Valuation
• Fraud Investigation
• Marital Dissolution
• Accounting and Tax Planning/Preparation
• Client Service Oriented
• Excellent Communication Skills
Certified Public
Accountants
Call Barbara Luna, Drew Hunt, Bill Wolf, Paul White,
Jack Zuckerman or Fred Warsavsky
14455 Ventura Boulevard, Suite 300, Sherman Oaks, California 91423
Phone (818) 981-4226, Fax: (818) 981-4278
363 San Miguel Drive, Suite 130, Newport Beach, California, 92660
Phone (949) 219-9316, Fax (949) 219-9095
www.wzwlw.com • E-mail: [email protected]
Free In-House MCLE Presentations & Initial Consultations
Over 25 years of Experience in the Construction Industry
KENNETH J. FISCHBECK
CONSTRUCTION EXPERT WITNESS
ALCOHOL/DRUG/ADDICTION
ADDICTION FORENSICS GROUP
11301 West Olympic Boulevard, Suite 323, Los Angeles,
CA 90064, (310) 966-1907, fax (310) 477-0661, e-mail:
[email protected]. Web site: www
.becksonmd.com. Contact Mace Beckson, MD. Board
certified Addiction/Forensic Psychiatry; UCLA full-time faculty; Distinguished Fellow, APA; alcohol, drugs, addictions,
sexual compulsions, suicide, posttraumatic stress disorder, stalking, and professional sexual misconduct.
511 Oak Street, Laguna Beach, California 92651
714.609.7481 • Fax 949.715.6714
[email protected]
CA Lic #475327
www.ofs3.com
OFS
™•
The Business Doctors
™
● Sarbanes-Oxley (SOX) Compliance/COBIT IT Compliance
● Certified Expert Witness, Expert Counseling, Analysis, Practices and Expert
Testimony in Business Litigation
● Business Judgment; Prime-Sub Disputes
● Supply Chain Implementation & Practices: Procurement & Purchasing Issues/
Disputes, Supplier/Vendor Disputes; Corporate Supplier Diversity Programs
Contact BJ Hawkins PhD Certified Expert Witness
310.821.1893
preventing and resolving discrimination, harassment, and
retaliation issues. Assess human resources policies and
practices for soundness, for comparison to prevailing practices, and for compliance. Evaluate employer responsiveness to complaints and effectiveness of employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination of documents, and expert
testimony.
FAX 310.821.1083 E-MAIL [email protected]
POST OFFICE BOX 4182, INGLEWOOD, CALIFORNIA 90309
Zivetz, Schwartz & Saltsman CPA’s
With more than thirty years of experience as expert witnesses
in testimony, pre-trial preparation, settlement negotiations,
consultations and court appointed special master.
ALLERGY/ASTHMA/IMMUNOLOGY
ALLERGY ASTHMA RESPIRATORY CARE
MEDICAL CENTER, INC.
2600 Redondo Avenue, Suite 400, Long Beach, CA
90806, (562) 997-7888, fax (562) 997-8884, e-mail:
[email protected]. Web site: www.allergyasthma
.info. Contact Andrea Newsom. Specialties include latex
allergy, asthma, food allergy, drug allergy, anaphylaxis, sinusitis, hives, sick building syndrome, mold, and environmental disease. Experience, civil: retained or reviewed
more than 70 latex products liability cases, retained for allergy and internal medicine cases in the areas of occupational asthma, mold exposure, civil litigation, sick building
syndrome. Multiple chemical sensitivity, smoke inhalation,
and toxic exposure.
ROGER M. KATZ MD
1304 15th Street at Arizona, Suite 102, Santa Monica, CA
90404, (310) 393-1550, fax (310) 576-3601, e-mail:
[email protected]. Web site: www.rogermkatzmd.com.
Contact Roger M. Katz, MD. IME/expert witness/review.
Experienced plaintiff and defense. Expert witness record
review, IME.
ANESTHESIOLOGY
• Forensic Accounting • Marital Dissolutions
ROGER F. DONENFELD, MD
10557 Rocca Place, Los Angeles, CA 90077, (310) 4713777, fax (323) 209-0010, e-mail: rfdonenfeld@hotmail
.com. Contact Roger F. Donenfeld, MD. Chart review
and depositions. Expert witness, board certified, 1987.
Anesthesiology fellowship-trained. Ivy League, board review textbook author. Certified medical board of CA expert. Active clinical anesthesia practice. Extensive medical
legal experience.
• Business Valuation and Appraisal • Lost Profits
APPRAISAL AND VALUATION
• Economic Damages • Accounting Malpractice
CHARLES RIVER ASSOCIATES INCORPORATED
1055 East Colorado Boulevard, Suite 420, Pasadena, CA
91106-2327, (626) 564-2000, fax (626) 564-2099. Web
site: www.crai.com.Contact John Hirshleifer, vice
president. CRA provides economic, financial, and business analysis in such areas as antitrust, contracts, damages, energy, environment, entertainment, healthcare, intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry experts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial preparation and testimony) to attorneys, executives, and government officials the world over. See display ad on page 51.
Some of our specialties consist of:
• Employee Benefit Plans • Entertainment Entities
• Financial and Economic Analysis • Shareholder Disputes
• Wrongful Termination
Tel: (310) 826-1040
Lester J. Schwartz, CPA, DABFA, DABFE
Fax: (310) 826-1065
Michael D. Saltsman, CPA, MBA
E-mail: [email protected]
Ron B. Miller, CPA, ABV, CFE
www.zsscpa.com
David L. BASS, CPA
11900 W. Olympic Blvd.
Dave Dichner, CPA, ABV, CVA
Suite 650
Sandy Green, CPA
Los Angeles, CA 90064-1199
46 Los Angeles Lawyer April 2005
COLDWELL BANKER COMMERCIAL, ASG
2200 Pacific Coast Highway, Suite 318, Hermosa Beach,
CA 90254, (310) 937-7700. Coldwell Banker Commercial
ASG, specialties: Real estate, valuations, business valuations, condemnations, and FF & E. As part of the Coldwell
Banker Commercial group, over 450 offices nationwide.
Additional services for special purpose mixed use and contaminated/toxic properties, environmental/civil engineering.
Right-of-way eminent domain, structural defect reports,
and construction defect reports. In-house CPA, general
contractor, and engineers. Approved for IRS, federal,
state, and municipal courts. Offices in Orange County, San
Diego/Inland Empire, and Northern California. See display
ad on page 67.
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on
page 2.
Matthew Lankenau
213-996-2549
[email protected]
URS is the nation’s largest engineering, consulting and construction
services firm. URS specializes in the resolution of construction disputes.
Dispute Resolution & Forensic Analysis
Design/Construction Claims
Environmental Claims
Bid/Cost/Damage Analysis
Construction Defect Analysis
Delay/Acceleration/Disruption Analysis
Expert Witness Testimony
Insurance/Bond Claims
Technical Expertise
Architecture
Engineering
Scheduling
Construction Management
Cost Estimating & Auditing
Environmental
Geotechnical
HIGGINS, MARCUS & LOVETT, INC.
800 South Figueroa Street, Suite 710, Los Angeles, CA
90017, e-mail: [email protected]. Web site: www.hmlinc
.com. Contact Mark C. Higgins, ASA, president. The
firm has over 20 years of litigation support and expert testimony experience in matters involving business valuation,
economic damages, intellectual property, loss of business
goodwill, and lost profits. Areas of practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 43.
KAPLAN ABRAHAM BURKERT & COMPANY
Forensic valuation consultants. 5950 Canoga Avenue,
Suite 200, Woodland Hills, CA 91367, (818) 888-0066, fax
(818) 888-8860. Contact Michael G. Kaplan, CPA,
CVA, CFFA. Expert witness services and preparation in
matters involving business disputes, goodwill, economic
damages, loss of earnings and profits, fraud and embezzlement, forensic accounting, business valuation, marital
dissolution, legal and accountants’ malpractice, wrongful
termination, intellectual property, and bankruptcy. Member
of Voir Dire Partners, LLC. Affiliated offices nationwide.
KROLL
660 S. Figueroa St., Suite 900, Los Angeles, CA 90017,
(213) 443-6090, fax: (213) 443-6055. Contact Troy
Dahlberg, CPA/ABV [email protected] or
Christian Tregillis, CPA/ABV ctregillis@krollworldwide
.com. Investigations, economic damages, and valuation
firm with offices across the country and around the globe.
Specialties include accounting, financial, economic and
statistical analysis, as well as computer forensics, in the
context of commercial litigation and forensic investigations:
accounting/fraud, securities, intellectual property (including
damages analyses, licensing and valuation), breach of contract, lost profits, royalty audits, corporate governance,
business valuation, real estate, construction, bankruptcy.
Practitioners include former partners at big four accounting
firms, law enforcement/FBI, computer forensics, and appraisers. See display ad on page 49.
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and gift
tax planning (family limited partnerships), lost profit analy-
Los Angeles Lawyer April 2005 47
sis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations.
See display ad on page 47.
ARCHITECTURAL FORENSICS
SCHWARTZ / ROBERT & ASSOCIATES, INC.
42 Faculty Street, Thousand Oaks, CA 91360, (805)
777-1115, cell (818) 825-3247, fax (805) 777-1172,
e-mail: [email protected]. Web site: www
.schwartzrobert.com. Contact Robert I. Schwartz, AIA.
Real property development procedures & practices, all
building types, sizes & phases. Professional evaluation
of building design errors & omissions, building code
compliance & professional standards of practice.
Forensic investigation of construction defects. Repair
cost estimates. Construction contract/subcontract performance—project management administration & cost
accounting, CPM scheduling, cost estimating, change
order administration, quality assurance & building performance. Evaluation of delay claims. Documentation of
major property/casualty insurance losses. Excellent litigation support & trial exhibit preparation. Expert witness
testimony. Experienced AAA arbitrator & mediator.
Large & complex cases. Member, Dispute Resolution
Boards.
COMPUTER EVIDENCE
DataChasers® Inc.
CERTIFIED DATA
DISCOVERY
Complete Forensic
Examinations
SPIEGEL PROPERTY DAMAGE CONSULTING &
FORENSICS
(800) 266-8988, fax (909) 591-7274, e-mail: brispi711@aol
.com. Web site: www.propertydamageinspections.com.
Contact Brian Spiegel/David Spiegel. Consultants and
expert witnesses (plaintiff and defense), mold contamination structure and contents, mold remediation standards of
care, water damage/water intrusion detection/concrete
moisture testing, sewage backflows, and fire and smoke
damage. Troubleshooting/cause and origin. Invasive and
noninvasive testing. Industry standards for construction
and restoration. Insurance claims experts, determine if
damage is related to claim, flooring forensics, construction
defect, and detailed construction cost estimates. Inspections, formal reports and litigation support. Lic. Gen. Constractors B C15 C33 C61/D-52. Lic. Gen Contractor
#299472. Degrees/licenses: CRs, CIEs, CMRs, IICRC
Masters. See display ad on page 42.
ARCHITECTURE
• Intellectual property resolution.
PHILIP KROEZE, AIA, CONSULTING
ARCHITECTURAL SERVICES
19 Summerside, Coto De Caza, CA 92679, (949) 5890554, fax (949) 589-4351, e-mail: [email protected]. Contact Philip Kroeze, AIA. Expert witness: architectural and
engineering standard of care, construction defects, moisture intrusion, and construction documents. Thirty-five
years of experience in design and construction, residential,
commercial, and office buildings. Exhibits (photos, models,
charts, renderings). Service area: California and Nevada.
• Internet Use & Date Codes
BANKING
• Hidden and or/Deleted Files,
Document, Graphics, E-mail, and
any Internet Use.
• File Dates Associates with All Files.
• Expert Witness and Special Master
• Internet profiling, tracing and
recovery.
• Assessment of Discovery Evidence.
• State of the art Laboratory/
Equipment
• Complete CVs and References
Available.
TEL. 951-780-7892
DATACHASERS.COM
48 Los Angeles Lawyer April 2005
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612, (949)
263-8700, fax (949) 263-0770, e-mail: info@mcsassociates
.com. Web site: www.mcsassociates.com. Contact
Norman Katz, managing partner. Nationally recognized
banking, finance, insurance, and real estate consulting
group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants,
economists, accountants, insurance underwriters/brokers.
Specialties: lending customs, practices, policies, in all
types of lending (real estate, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis
and valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage, appraisal,
escrow, and construction defects/disputes, and title
insurance.
ANDELA CONSULTING GROUP, INC.
15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA
91403, (818) 380-3102, fax (818) 501-5412, e-mail:
[email protected]. Contact Thomas A. Tarter, managing director. Former CEO of two banks. Lending,
forgery, endorsements, letters of credit, guarantees,
lender liability, checking accounts, credit cards, and
bankruptcy. Expert witness, litigation consulting. Expert
referral service escrow, corporate governance, mortgage banking, and real estate. Over 500 cases nationally. See display ad on page 76.
MARK E. BUCHMAN
11973 San Vicente Boulevard, Suite 213, Los Angeles,
CA 90049, (310) 472-4677, fax (310) 472-5477, e-mail:
[email protected]. Contact Mark E. Buchman. Retired
CEO of two publicly held banks. GNMA president under
President Reagan. Forty-three years’ banking experience,
mostly in senior executive positions. Advises on general
management, lending policy, and board of director issues.
Currently director of a national bank. Prefer southern California cases. Education: BS, University of Pennsylvania,
Wharton School; Advanced Management Program, Harvard Business School.
BANKRUPTCY/TAX
ANDELA CONSULTING GROUP, INC.
15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA
91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter
@earthlink.net. Contact Thomas A. Tarter, managing
director. Former CEO of two banks. Lending, forgery, endorsements, letters of credit, guarantees, lender liability,
checking accounts, credit cards, and bankruptcy. Expert
witness, litigation consulting. Expert referral service escrow, corporate governance, mortgage banking, and real
estate. Over 500 cases nationally. See display ad on
page 76.
BALLENGER, CLEVELAND & ISSA, LLC
10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA
90024, (310) 873-1717, fax (310) 873-6600. Contact
Bruce W. Ballenger, CPA, executive managing director. Services available: assist counsel in determining overall strategy. Help evaluate depositions and evidence. Provide well-prepared, well-documented, and persuasive incourt testimony regarding complicated accounting, financial, and business valuation matters, fairness of interest
rates, feasibility of reorganization plans, fraudulent conveyances, bankruptcies, mergers and acquisitions, and
management misfeasance/malfeasance. More than 100
open-court testimonies, federal and state, civil and criminal. See display ad on page 48.
GREENBERG GLUSKER FIELDS CLAMAN
MACHTINGER & KINSELLA LLC
1900 Avenue of the Stars, Suite 2100, Los Angeles, CA
90067, (310) 201-7456, fax (310) 553-0687, e-mail:
[email protected]. Web site: www.ggfirm.com. Contact
Karl E. Block. Expert testimony and consulting.
STONEFIELD JOSEPHSON, INC.
1620 26th Street, Suite 400 South, Santa Monica, CA
90404, (310) 453-9400, fax (310) 453-1187, e-mail:
[email protected]. Web site: www.sjaccounting
.com. Contact Jeffrey Sumpter, director of financial
recovery. Stonefield Josephson, Inc., is a California-based
certified public accounting and business advisory firm
founded in 1975. Our services include assurance/accounting, business consulting (profit enhancement, finance
sourcing, mergers and acquisitions, family-owned business, succession planning, executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax consulting and compliance. Service area: throughout the United States and internationally. See display ad on page 11.
BIOMECHANICS
FRED M. JOHNSON, PHD
P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax
(714) 526-6662. Contact Fred M. Johnson, PhD. For
those who seek the most qualified and the highest forensic
workmanship. Extensive test facility and equipment available. Lighting and illuminations: light intensity measurements, visual perception, times of sunset, twilight, moon
rise/set. Product failure analysis: medical devices, glass,
chairs (all types), ladders. Slip and fall: scientific testing of
slipperiness on tile, ceramic, walkways, supermarkets and
retail industry. Fall from height: stairways, balconies, platform, theatre pit, pole. Biomechanics. Traffic accident reconstruction: cars, trucks, pedestrian, bicycle. Professor of
physics, fellow Am. Physical Society, consultant to
ANSI/BIFMA. Member SAE, SATAI, ASTM + ICC. Author
of textbook + 60 scientific publications. Over 35 years in
research. Extensive expert witness experience. See display ad on page 63.
TRUST DEED FORECLOSURES
“Industry Specialists For Over 18 Years”
Witkin & Eisinger we specialize in the Non-Judicial
of obligations secured by real property
Aor trealForeclosure
and personal property (mixed collateral).
When your client needs a foreclosure done professionally and at the lowest possible cost, please call us at:
1-800-950-6522
We have always offered free advice to all attorneys.
&
WITKIN
EISINGER, LLC
We try to be the Best–Not the Biggest
DEPENDABILITY SINCE 1961
INTEGRITY ■ COMPETENCE ■ FAIR PRICES
✔ Courthouse Service ✔ Investigative Research
✔ Court Fax Filing
✔ Process Serving
Agents in major cities throughout the State & Nation
CALL FOR INFORMATION • NO OBLIGATION
TEL: (213) 483-4900
RICHARD G. WITKIN, ESQ. ◆ CAROLE EISINGER
FAX: (213) 483-7777
1614 W. TEMPLE STREET, LOS ANGELES CA 90026
BUSINESS
ROBERT C. ROSEN
300 South Grand Avenue, Suite 2700, Los Angeles, CA
90071, (213) 362-1000, fax (213) 362-1001, e-mail:
[email protected]. Web site: www.rosen-law.com.
Specializing in securities law, federal securities law enforcement, securities arbitration and international securities, insider trading, NYSE, AMEX, NASD disciplinary proceedings, broker-dealer, investment company and investment adviser matters, liability under federal and state securities laws, public and private offerings, Internet securities,
and law firm liability. Former chair, LACBA Business & Corporations Law Section; LLM, Harvard Law School. More
than 30 years practicing securities law, 12 years with the
U.S. Securities & Exchange Commission, Washington, DC.
Published author/editor of securities regulations, including
multivolume treatises. See display ad on page 69.
How do you describe the integrity,
expertise and knowledge of an
independent advisory firm
such as ours?
We don't. We demonstrate it.
BUSINESS APPRAISAL/BUSINESS
VALUATION
BUSINESS ENTERPRISE APPRAISAL CO., INC.
23801 Calabasas Road, Suite 1016, Calabasas, CA
91302, (818) 591-9282, or (800) 928-7463. Contact
Larry Grant, ASA or Robert Weinstock, JD, CBA. Appraisal of businesses and professional practices for all litigation and nonlitigation purposes, including estate planning and taxation, for 706 filings, FLP and LLC discounts,
S corporation elections, corporate dissolutions, economic
damages, loss and earnings and condemnation of goodwill. Also real property appraisals. Expert witnesses in all
jurisdictions. Established 1972.
THE CAPANALYSIS GROUP, LLC
550 South Hope Street, Suite 1050, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for
complex litigation, arbitration, regulatory proceedings, and
strategic corporate decision making. Assist attorneys with
discovery, identification of relevant economic and financial
issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state
courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market
definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright
infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers
and acquisitions, and securities fraud. Degrees/licenses:
CPAs, CFEs, CVAs, JDs, PhDs economics.
COHEN, MISKEI & MOWREY LLP
15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA
91403, (818) 986-5070, fax (818) 986-5034, e-mail:
Forensic Accounting &
Litigation Consulting
> Forensic & Investigative Accounting
> Damages Quantification &
Expert Testimony
> Litigation Consulting
> Restatement Investigations
> SEC & Corporate Governance Services
> Investigative & Security
Technology Consulting
www.krollworldwide.com
For more information, contact:
Troy Dahlberg • Phone: 213.443.1072
Chris Tregillis • Phone: 213.443.1091
Los Angeles Lawyer April 2005 49
Construction Claims
[email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic
accountants, fraud investigations, economic damages,
business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display
ad on page 57.
When you’re handling a
construction dispute, you’ll be
glad to know who we are.
DESMOND MARCELLO AND AMSTER
Southern California Office: 6060 Center Drive, Suite 825,
Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400,
fax (310) 216-0800. Northern California Office: 228 Bush
Street, 16th Floor, San Francisco, CA 94104, (415) 4398390, fax (415) 439-8391. Web site: www.dmavalue.com.
Contact Wes Nutten, Aaron Amster, or Madeleine
Mamaux. Litigation consulting, forensic accounting, expert
witness testimony, class action claims administration services, and business valuation services. Staff qualifications
include CPA, CMA, ABV, CFA, and ASA designations.
Testimony experience in numerous court jurisdictions.
Established in 1968. See display ad on page 52.
Pacific Construction
Consultants, Inc. will assist in
uncovering and analyzing facts
important to your case.
Our highly experienced staff
will provide support from the
first analysis to the last day in
court–investigating, making the
complex understandable, and
presenting evidence through
expert testimony and trial
support graphics.
FMV OPINIONS, INC.
4199 Campus Drive, Suite 210, Irvine, CA 92612, (949)
759-4499, fax (949) 759-4498, e-mail: pdimeglio@fmv
.com. Web site: www.fmv.com. Contact Pamela
DiMeglio. For over two decades, Mr. Hall has been on the
forefront of valuation of equity interest (common stock,
preferred stock, options, carried interests, etc.), Section
2000, going-concern value, notes, intangible assets, lack
of marketability, and damages. Mr. Hall has testified in
hearings, arbitration, and federal and state courts. He has
spoken at numerous professional conferences and seminars on various business valuation topics and merger and
acquisition issues, and has authored numerous articles on
valuation. See fmv.com.
Pacific Construction
Consultants, Inc. is responsive,
factual, and results-oriented.
For more information, call
1-800-655-PCCI.
PACIFIC CONSTRUCTION
CONSULTANTS, INC.
THE BEST LEGAL MINDS
IN THE COUNTRY
TALK TO US
• Metallurgical Failures
• Corrosion & Welding Failures
• Glass & Ceramic Failures
• Chairs / Ladders / Tires
• Automobile/Aerospace/
Accidents
Contact:
• Bio-Medical/Orthopedic Implants
• Plumbing/Piping/ABS Failures
• Complete In-House Laboratory
Testing & Analysis Facilities
• Expert Witnesses/Jury Verdicts
• Licensed Professional Engineers
Dr. Naresh Kar, Fellow ASM, Fellow ACFE
Dr. Ramesh Kar, Fellow ASM, Fellow ACFE
ADVANCED MATERIALS, INC.
Testing & Research Labs
2528 W. Woodland Drive
Anaheim, CA 92801
■ TEL: (714)527-7100
■ FAX: (714)527-7169
■ www.karslab.com
■ email: [email protected]
50 Los Angeles Lawyer April 2005
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 2.
GURSEY, SCHNEIDER & CO., LLP
10351 Santa Monica Boulevard, Suite 300, Los Angeles,
CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail:
[email protected] site: www.gursey.com.
Contact Vanita M. Spaulding, CFA, ASA. Partner qualifications include MBA, CFA, ASA, and ABV. GSCO is an
accounting firm specializing in forensic accounting, litigation support services, business valuation and appraisal services, for a variety of purposes including marital dissolution, gift and estate planning, eminent domain goodwill
loss, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments, insurance
claims, court accounting, tracing, and entertainment industry litigation. GSCO has over 30 years’ experience as expert witnesses in litigation support. See display ad on
page 55.
HAYNIE & COMPANY, CPAs
4910 Campus Drive, Newport Beach, CA 92660,
(949) 724-1880, fax (949) 724-1889, e-mail: sgabrielson
@hayniecpa.com. Web site: www.hayniecpa.com. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis,
business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination,
professional liability, and expert cross examination. Extensive public speaking background assists in courtroom presentations.
HIGGINS, MARCUS & LOVETT, INC.
800 South Figueroa Street, Suite 710, Los Angeles, CA
90017, e-mail: [email protected]. Web site: www.hmlinc
.com. Contact Mark C. Higgins, ASA, president. The
firm has over 20 years of litigation support and expert testimony experience in matters involving business valuation,
economic damages, intellectual property, loss of business
goodwill, and lost profits. Areas of practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 43.
KAPLAN ABRAHAM BURKERT & COMPANY
Forensic valuation consultants. 5950 Canoga Avenue,
Suite 200, Woodland Hills, CA 91367, (818) 888-0066,
fax (818) 888-8860. Contact Michael G. Kaplan, CPA,
CVA, CFFA. Expert witness services and preparation in
matters involving business disputes, goodwill, economic
damages, loss of earnings and profits, fraud and embezzlement, forensic accounting, business valuation, marital
dissolution, legal and accountants’ malpractice, wrongful
termination, intellectual property, and bankruptcy. Member
of Voir Dire Partners, LLC. Affiliated offices nationwide.
NANCY A. KEARSON, CPA, ABV, CVA, DABFA
1801 Century Park East, Suite 2400, Los Angeles, CA
90067, (310) 785-9614, fax (310) 277-1278, e-mail:
[email protected]. Contact Nancy Kearson. Costeffective, timely expert witness/consultation services, investigative forensic accounting, asset tracing, shareholder
and partner disputes, business valuation, and professional
practice appraisal. Frequent lecturer on forensic accounting and business valuation. Director, California Society of
CPAs-LA. Past officer, Family Law Section. Certified Public
Accountant; Accredited in Business Valuation, Certified
Valuation Analyst, Diplomate of the American Board of
Forensic Accountants.
LEWIS, JOFFE & CO, LLP
10880 Wilshire Boulevard, Suite 520, Los Angeles, CA
90024, (310) 475-5676, fax (310) 475-5268. Contact
Brian Lewis, CPA, CVA. Forensic accounting, business
valuations, cash spendable reports, estate, and trust and
income tax services.
MIOD AND COMPANY, LLP CPAs
11600 Indian Hills Road, Building B, Suite 300, Mission
Hills, CA 91345-1225, (818) 898-9911, fax (818) 8989922, 74-478 Highway 111, Suite 254, Palm Desert, CA
92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod
@miod-cpa.com. Visit our Web site at www.miodcpa.com.
Contact Donald John Miod, CPA, ABV, CVA, CBA.
More than 30 years’ experience in litigation support, including computation of income available for support, tracing, business valuations, fraud investigations, earnings loss
calculations, and income tax matters. Our firm is very computer-oriented, involving the use of computer graphics. We
are members of the Institute of Business Appraisers, the
International Society of CPAs (founding member), the
American Institute of CPAs, and California Society of
CPAs. See display ad on page 61.
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and gift
tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and mar-
Los Angeles Lawyer April 2005 51
“Mr. Truck”
ACCIDENT
INVESTIGATION and RECONSTRUCTION
✔ Court Qualified Expert Witness Regarding
Car vs Car, Car vs Bicycle, Truck vs Car Cases
✔ Low Speed Accident Analysis
✔ Trucking Industry Safety and Driver Training Issues
✔ Power Point Court Presentations
William M. Jones
800 337 4994
P. O. Box 398
925 625 4994
Brentwood CA 94513-0398
Pager 510 840 4627
[email protected]
www.mrtruckar.com
Fax 925 625 4995
ket research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations.
See display ad on page 47.
SCHULZE HAYNES & CO.
660 South Figueroa Street, Suite 1280, Los Angeles, CA
90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert
@schulzehaynes.com. Web site: www.schulzehaynes
.com. Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery, real estate
transactions, financial analysis and modeling, major professional organizations, and have experience across a broad
spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; PhD-economics.
SINGLER VALUATION CONSULTING
2127 Lyans Drive, La Cañada, CA 91011, (818) 541-1500,
fax (818) 541-1565, e-mail: [email protected].
Contact Noa Singler. Valuation of closely held businesses, eminent domain, goodwill loss analysis, expert
witness testimony, litigation consulting, gift and estate tax,
damage analysis, and acquisitions.
STONEFIELD JOSEPHSON, INC.
1620 26th Street, Suite 400 South, Santa Monica, CA
90404, (310) 453-9400, fax (310) 453-1187, e-mail:
[email protected]. Web site: www.sjaccounting
.com. Contact Jeffrey Sumpter, director of financial
recovery. Stonefield Josephson, Inc. is a California-based
certified public accounting and business advisory firm
founded in 1975. Our services include assurance/accounting, business consulting (profit enhancement, finance
sourcing, mergers and acquisitions, family-owned business, succession planning, executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax consulting and compliance. Service area: throughout the United States and internationally. See display ad on page 11.
VALUATION AND LITIGATION CONSULTANTS
Since 1968
▲ BUSINESS VALUATION — Appraisal of tangible and intangible assets;
mergers. acquisitions, divestitures; public and private financings; litigation
involving partnership or corporate disputes; estate planning
▲ LITIGATION CONSULTING — Expert testimony on damage issues;
breach of contract; business interruption; partnership or shareholder disputes;
fraud investigations; personal injury matters
▲ EMINENT DOMAIN — Specialty practice in the appraisal of fixtures and
equipment and goodwill loss
▲ CLASS-ACTION CLAIMS ADMINISTRATION — Claimant database
management and settlement distribution services
COMMITMENT, INGENUITY, INTEGRITY
Contact: Aaron Amster, Wes Nutten
6060 Center Drive, Suite 825
225 Bush Street, 16th Floor
Los Angeles, California 90045
San Francisco, California 94104
Tel (310) 216-1400
Tel (415) 439-8390
Fax (310) 216-0800
Fax (415) 439-8391
Toll-free (888) 240-5184
www.dmavalue.com
52 Los Angeles Lawyer April 2005
VICENTI, LLOYD & STUTZMAN LLP
2210 East Route 66, Glendora, CA 91740, (626) 8577300, fax (626) 857-7302, e-mail: [email protected].
Web site: www.vlsllp.com. Contact Royce Stutzman,
CVA, CPA, Chairman. Our certified professionals serve
as consultants and experts in business valuations and litigation support. We conduct valuations related to mergers
and acquisitions, buy-sell agreements, purchase/sale of
closely held businesses, partner disputes, etc. Our forensic
accounting experts assess the amount of an economic
loss, whether it be business interruption from casualty, unfair competition, condemnation, damage caused by others, or loss of earnings from various events. Our fraud investigation team reviews documentation, interviews witnesses and suspects, and assesses evidence to resolve
allegations. We provide expert witness testimony and implement fraud prevention programs. VLS Celebrates 52
Years of Quality Service!
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Miguel Drive, Suite 130, Newport Beach, CA 92660, (949)
219-9816, fax (949) 219-9095, e-mail: expert@wzwlw
.com. Contact Barbara Luna, Drew Hunt, Paul White,
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax
planning and preparation and mergers and acquisitions.
Testified hundreds of times as expert witnesses. Prior Big
Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation,
asset tracing analysis, intellectual property (patent, trade-
mark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real
estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 45.
CHEMISTRY
CHEMICAL ACCIDENT RECONSTRUCTION
SERVICES, INC.
9121 East Tanque Verde Road, Suite 105, Tucson, AZ
85749, (800) 645-3369, fax (520) 749-0861, e-mail:
[email protected]. Web site: www.chemaxx.com.
Contact Dr. Michael Fox. Comprehensive chemical
accident investigation—specializing in complex industrial
chemical accidents and chemical-related consumer product injuries, chemical fires and explosions, chemical labeling, chemical packaging, chemical handling and shipping,
chemical burns, chemical warnings, chemical disposal,
chemical safety, EPA, DOT, OSHA, propane, natural gas,
flammable liquids, hazardous chemicals, aerosols, metallurgy, corrosion, failure analysis, water contamination,
water testing, plastics, acids, alkalis, and MSDSs. State-ofthe-art equipment available, including natural SEM/EDAX,
GC/MS, FTIR, etc. PhD physical chemistry, certified fire
and explosion investigator, NACE accredited in corrosion,
ASM accredited metallurgy and failure analysis, OSHA certified (hazardous chemicals and processes), DOT certified
(shipment of hazardous materials), accredited in aerosol
technology.
COMPUTER FORENSICS
DATACHASERS, INC.
P.O. Box 2861, Riverside, CA 92516-2861, (877) Data
Exam, (877) 328-2392, (951) 780-7892, fax (951) 7809199, e-mail: [email protected]. Web site: www
.datachasers.com. Contact Rick Albee. Hard drive imaging; use assessment and auditing; intellectual property and
trade secret disputes; restore hidden, deleted, or lost files
and images; file dates when created, modified, or deleted,;
Internet history and e-mail recovery; computer use auditing
and evaluations; human resources; employer/employee
exams, experienced expert witness and special master
and full computer laboratory. Many years of public sector
experience. Multiple certifications. Prior law enforcement.
See display ad on page 48.
EURISKO CORPORATION
18375 Ventura Boulevard, Suite 144, Tarzana, CA 91356,
(818) 774-0043, (818) 430-6705, e-mail: monique@
euriskocorp.com. Web site: www.euriskocorp.com.
Contact Monique Bryher, MSPH, CFCE, CCE. Computer forensics/electronic evidence discovery. Preservation
of evidence, hard drive/media acquisition, document timeline tracing, recovery of deleted, hidden, or partial files, including graphical formats, e-mail tracing; password recovery, thorough analysis, documentation and summary of examination, and hard drive/data recovery. More than 25
years of experience designing, evaluating and programming large computer systems and databases, especially in
healthcare and finance. Degrees/licenses: CFCE; CCE; BA
in Economics; MS in Public Health. See display ad on
page 69.
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 2.
COMPUTER SIMULATIONS/GRAPHIC
One Source.
Expert Witness Directory
VISUAL FORENSICS
(800) 426-6872, 130 Ryan Industrial Court, Suite 105, San
Ramon, CA 94583. Web site: www.visualforensics.com.
3D computer simulations for all aspects of accident reconstruction, vision related malpractice, criminal reenactment,
and more. Vision perception, site visibility, and human factors analysis. Opposing demonstrative evidence analysis.
In-house scientific and engineering experts. Led by internationally recognized vision scientist, Dr. Arthur P. Ginsburg,
who has over 16 years of experience as a vision and visibility expert consultant for the legal industry and government
agencies. Plaintiff and defense. Seen on CBS’s 60 Minutes
and Court TV. See display ad on page 78.
COMPUTERS/INFORMATION SCIENCES
COSGROVE COMPUTER SYSTEMS, INC.
7411 Earldom Avenue, Playa del Rey, CA 90293, (310)
823-9448, fax (310) 821-4021, e-mail: jcosgrove
@computer.org. Web site: www.cosgrovecomputer.com.
Contact John Cosgrove. John Cosgrove, PE, has over
40 years’ experience in computer systems and has been a
self-employed, consulting software engineer since 1970.
He is a part-time lecturer in the UCLA School of Engineering and LMU graduate school. He recently completed an
invited article, “Software Engineering & Litigation,” for the
Encyclopedia of Software Engineering. He holds the CDP,
is a member of ACM, NSPE, a senior member of IEEE
Computer Society, and a professional engineer in California. Formal education includes a BSEE from Loyola University and a master of engineering from UCLA.
GREAT SCOTT ENTERPRISES
P.O. Box 42047, Tucson, AZ 85733, (866) 795-7166,
(520) 722-6796, e-mail: [email protected]. Web site:
www.great-scott.com. Contact Scott Greene, CEO/
CIO. The professional computer consulting and computer
forensics firm with 20+ years’ experience. Deposition and
trial experience. Computer forensics consulting specializing
in recovery, acquisition, preservation, and analysis of data
as evidence, including data purposefully destroyed. Proper
handling techniques can save data from Web sites, files,
fax machines, all types of media and e-mails. Expert witness testimony for both plaintiffs and defendants in court
and arbitration cases. Skilled at databases, source code
copyright, documents, e-mails, images, accounting systems, hacking events, tracking down perpetrators, and
password cracking.
CONSTRUCTION
ABACUS PROJECT MANAGEMENT, INC.
20201 Southwest Birth Street, Suite 240, Newport Beach,
CA 92660, (949) 851-1015, fax (949) 851-0409, e-mail:
[email protected]. Web site: www.abacuspm
.com. Contact John Flynn. Expert witness. Cost estimation, construction management analysis, delay analysis,
and professionally trained mediator and arbitrator. Lead
expert with over 40 years’ experience in construction industry. Testified on 20 occasions in superior court.
AVONDALE RESOURCES, INC.
P.O. Box 8241, Newport Beach, CA 92660, (800) 8001735, fax (714) 644-6542. Contact Alex Robertson Jr.
Construction consulting including construction claims,
damages, defects, construction safety, project scheduling,
overhead and job cost analysis, site inspections, expert
testimony, and arbitration and trial. Building experience including commercial, office, special purpose buildings, industrial, manufacturing plants, distribution, restaurants,
and retail stores. Engineering construction experience including heavy equipment, installation, fuel terminals, refineries, excavation, and trench shoring. Asphalt and concrete paving. Gas distribution, pipeline, water distribution
systems, and underground utilities. Construction safety,
Over 200 qualified expert witnesses,
in one reliable source. Contact
Forensic Expert Witness Association
today for your FREE desktop copy:
949.640.9903
[email protected]
www.forensic.org
Los Angeles • Orange County • Sacramento/Sierra • San Diego • San Francisco
✒ Litigation support
✒ Expert witness
✒ Forensic accountants
✒ Family law matters
✒ Business valuations
✒ Loss of earnings
✒ Damages
When you need more than just
numbers... you can count on us...
Contact Michael Krycler
PHONE (818) 995-1040
FAX (818) 995-4124
E-MAIL [email protected]
VISIT US @ www.KETW.COM
15303 VENTURA BOULEVARD, SUITE 1040
SHERMAN OAKS, CALIFORNIA 91403
Los Angeles Lawyer April 2005 53
accident investigation, site inspections, building code, and
CAL-OSHA. Service area includes California, Arizona, Oregon, Washington, Utah, Idaho, and New Mexico.
BALL CM
24405 Chestnut Street, Suite 201, Newhall, CA 91321,
(661) 254-3357, fax (661) 254-2127, e-mail: chris@ballcm
.com. Web site: www.ballcm.com. Contact Chris Ball.
Contract claims, disputed change orders, schedule analysis, delay claims, labor impact claims, construction defect
investigations and analysis, cost estimating, destructive
testing, builders risk claims, commercial, residential, and
public works.
CHEMAXX CONSTRUCTION ASSOCIATES
9121 East Tanque Verde Road, Suite 105, Tucson, AZ
85749, (800) 645-3369, fax (520) 749-0861, e-mail:
[email protected]. Web site: www.chemaxx.com.
Contact Dr. Michael Fox. An associate of Chemaxx has
twenty years’ experience in construction project management, estimating, scheduling, and contract writing, and
four years’ experience as a government building inspector.
ICBO certifications include: residential building inspector,
commercial building inspector, building plans examiner,
residential plumbing inspector, and building inspector. Degreed. Construction quality control certified by U.S. Army
Corps of Engineers. Chemaxx also provides complimentary expertise in materials science, metallurgy, corrosion,
failure analysis, and wood science.
CONSTRUCTION FORENSICS
13823 Kerry Lane, San Diego, CA 92130, (858) 538-8798,
fax (858) 538-8690, e-mail: [email protected]. Contact
William C. Sterling or Kelley Roberts. Specialists in
above- and below-grade waterproofing, structural waterproofing (no excavation required) water/moisture intrusion
issues. Structural epoxy injection, pressure and chemical
grouting, decks, and coatings. Claims analysis/litigation,
cost estimating, and expert witness testimony. Invasive investigation and testing. E.I.F.S. wall systems, and concrete
and stucco. Trial and arbitration proven. Sixty-six years’
experience. California licenses Gen. Contr. (B) Engineering
(A) six sub. contr. lic. See display ad on page 52.
FORENSISGROUP
3452 East Foothill Boulevard, Suite 1160, Pasadena, CA
91107, (800) 555-5422, (626) 795-5000, fax (626) 7951950, e-mail: [email protected]. Web site: www
.forensisgroup.com. Contact Mercy Steenwyk. Thousands of our clients have gained the technical advantage
and the competitive edge in their cases from our resource
group of high-quality experts in construction, engineering,
product liability, safety, environmental, accident reconstruction, automotive, failure analysis, fires, explosions, slip
and fall, real estate, economics, appraisal, employment,
computers, and other technical and scientific disciplines.
We provide you with a select group of high-quality experts
as expeditiously as possible. Unsurpassed recruitment
standards. Excellent client service. See display ad on
page 43.
GLENN M. GELMAN & ASSOCIATES,
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS CONSULTANTS
1940 East 17th Street, Santa Ana, CA 92705, (714) 6672600, fax (714) 667-2636. Web site: www.gmgcpa.com.
Contact Glenn Gelman. Expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting,
forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation.
MPGROUP CONSTRUCTION CONSULTANTS •
FORENSIC EXPERT WITNESSES • MEDIATION
1202 Greenacre Avenue, West Hollywood, CA 900465708, (323) 874-8973, toll free (800) 684-9100, fax (323)
874-8948, email: [email protected]. Web site: www
.mpgroup.com. Contact Michael S. Poles, GC, CM,
RCI, DABFET, ACFE. MPGroup is a collaboration of architects, engineers, contractors and other technical experts
54 Los Angeles Lawyer April 2005
specializing in consulting, forensic expert witness, and litigation support services since 1962. Specialty areas: Accident reconstruction; Americans with Disabilities Act; building
code compliance; building code standards; claims analysis
and mitigation; construction administration; construction defects; contract compliance; cost estimating; customs and
practices; design and implementation; earthquake hazard;
flooring and floor covering; framing (wood and steel); geotechnical and hydrological; personal injury; quality of workmanship; reinforced concrete; reinforced masonry; roofing
and waterproofing; safety and OSHA standards; scaffolding;
scheduling and delays; slips, trips and falls; steps, stairs and
railings; Standards of Care; Standards of Practice; structural
failure; structural steel and welding; water intrusion and
mold. See display ad on page 35.
PACIFIC CONSTRUCTION CONSULTANTS, INC.
(800) 655-PCCI. Contact marketing director. Construction contract disputes (claims) analysis, prep and presentation, delay and monetary impact evaluation, including CPM
schedules. Architectural, civil, structural, mechanical, and
electrical specialties. Full in-house courtroom visual exhibit
preparation. Assistance in negotiations, mediation, arbitration, and litigation. Expert witness testimony. Additional
phone (310) 337-3131 or (916) 638-4848. See display ad
on page 50.
PCMI THE EXPERT CHOICE®
2402 Cross Street, Riverside, CA 92503, (800) 576-7264,
fax (888) 307-7264, e-mail: [email protected], Web
site: www.pcmi.biz. Contact Scott Vivian. PCMI is a
construction consulting firm providing litigation, mediation,
and court testimony since 1982 for construction defects,
delay claims, breach of contract, and personal injury. PCMI
has provided expert services for both plaintiff and defense.
See display ad on page 47.
RIMKUS CONSULTING GROUP, INC.
333 City Boulevard West, Suite 1805, Orange, CA 92868,
(877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski
@rimkus.com. Web site: www.rimkus.com. Contact Curt
Yaworski. Rimkus Consulting Group is a full-service forensic consulting firm. Since 1983, we have provided reliable
investigations, reports and expert witness testimony
around the world. Our engineers and consultants analyze
the facts from origin and cause through extent of loss. Services: construction defect and dispute analysis, vehicle accident reconstruction, fire cause and origin, property evaluation, mold evaluations, indoor air quality assessments,
biomechanical analysis, product failure analysis, foundation
investigations, industrial accidents and explosions, water
intrusion analysis, geotechnical evaluations, construction
accidents, construction disputes, financial analysis and assessments, forensic accounting, HVAC analysis, electrical
failure analysis, and video/graphics computer animation.
See display ad on page 65.
SCHWARTZ / ROBERT & ASSOCIATES, INC.
42 Faculty Street, Thousand Oaks, CA 91360, (805) 7771115, cell (818) 825-3247, fax (805) 777-1172, e-mail:
[email protected]. Web site: www.schwartzrobert.com.
Contact Robert I. Schwartz, AIA. Real property development procedures & practices, all building types, sizes &
phases. Professional evaluation of building design errors &
omissions, building code compliance & professional standards of practice. Forensic investigation of construction
defects. Repair cost estimates. Construction contract/subcontract performance—project management administration & cost accounting, CPM scheduling, cost estimating,
change order administration, quality assurance & building
performance. Evaluation of delay claims. Documentation of
major property/casualty insurance losses. Excellent litigation support & trial exhibit preparation. Expert witness testimony. Experienced AAA arbitrator & mediator. Large &
complex cases. Member, Dispute Resolution Boards.
ULTIMO ORGANIZATION, INC.
GEOTECHNICAL CONSTRUCTION & ENGINEERING
1411 East Borchard Avenue, Santa Ana, CA 92705, (714)
560-8999, fax (714) 560-8998, e-mail: fran@geotechnical
.com. Web site: www.geotechnical.com. Contact Frank
Ultimo Sr. Our team can provide the resources, expertise,
and techniques to identify causes and effects of a problem
and implement remedies. We can provide site, structure,
and geotechnical investigations; industry expert services;
foundation floor level surveys; repair plans; accurate documentation; estimates; emergency stabilization; and environmental remediation. Industry expert services for foundation and construction problems. Remedial foundation,
slope pool, ground stabilization, re-leveling and repairs;
forensic documentation, estimates, and repair plans; emergency stabilization services; hillside, and waterfront expertise, and repair techniques; environmental remediation services; geotechnical investigations; authorized installer of
Atlas and Chance foundation underpinning. See display
ad on page 57.
URS
915 Wilshire Boulevard, Suite 1800, Los Angeles, CA
90017, (213) 996-2549, fax (213) 996-2521, e-mail:
[email protected]. Expert witness for entitlement, causation damages on design, construction, and
geotechnical environmental disputes. Experienced in all
types of construction projects. See display ad on
page 47.
CONSTRUCTION CLAIMS
KGA, INC.
Offices in Laguna Beach, CA at 1205 North Coast Highway, Suite D, Laguna Beach, CA 92651, (949) 497-6000,
fax (949) 494-4893, and Scottsdale, AZ, (480) 767-8716.
Web site: www.kgainc.com. Contact Kurt Grosz at
[email protected] if you need expert witness testimony
for construction and environmental disputes. Past cases
include toxic mold, property loss, delay and contract
claims, code compliance, cost and method of repair, defect cause, surety, and bad faith, standards of care for
contractors and designers, and safety. Mr. Grosz is also a
respected and well-known arbitrator and mediator. KGA
experts have served as witnesses, mediators, insurance
appraisers, court appointed experts, and negotiators.
ROEL CONSULTING GROUP A DIVISION OF
ROEL CONSTRUCTION COMPANY
3366 Kurtz Street, San Diego, CA 92110, (619) 297-4156,
ext. 301, fax (619) 297-5510, e-mail: [email protected]. Web
site: www.roel.com. Contact Tom Coan. Backed by 88
years of construction experience, the Roel Consulting
Group offers a single source for tightly coordinated highquality expert services. Our staff includes experts in virtually every field of construction specialization. We offer a
wide variety of services to assist attorneys and their clients,
including testing, intrusive investigations, reports, cost of
repair analysis, mediation and litigation support. Serving
California, Nevada, Arizona, Oregon, New Mexico and
Utah. See display ad on page 58.
CONSTRUCTION & ENGINEERING
COMA CONSULTANTS, INC.
2220 Waterfront Drive, Corona Del Mar, CA 92625-1935,
(949) 673-7273, cell (949) 246-4385, fax (949) 673-2104,
e-mail: [email protected]. Contact D. Gordon
Follett, PE, president. Contractor/subcontractor/owner
contract disputes, construction quality control and standards of care, claims and construction defects, litigation
support—expert testimony, trial support, and consultation.
Working construction manager with over 40 years of experience; institutional, commercial, transportation, and general engineering contractor experience; licensed professional engineer, and licensed general contractor.
CORPORATE INVESTIGATIONS
THE CAPANALYSIS GROUP, LLC
550 South Hope Street, Suite 1050, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for
complex litigation, arbitration, regulatory proceedings, and
strategic corporate decision making. Assist attorneys with
discovery, identification of relevant economic and financial
issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state
courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market
definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright
infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers
and acquisitions, and securities fraud. Degrees/licenses:
CPAs, CFEs, CVAs, JDs, PhDs economics.
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs, and MBAs in accounting, finance,
economics, and related subjects. See display ad on
page 2.
CREDIT DAMAGE MEASUREMENT
PLAINTIFFS AND DEFENDANTS
Discover the Secrets to Equitable
Credit Damage Recovery
Protect your case value and get the
FAIREST COMPENSATION FOR YOUR CLIENT
including: Increased out-of-pocket costs,
Loss of Capacity, and Loss of Expectancy
ARNOLD L. GILBERG, M.D., PH.D
EXPERT WITNESS • PSYCHIATRY
• Appointed by 3 Governors to Medical Board
of California MQRC 11th District (1982-1991)
• Associate Clinical Professor of Psychiatry,
UCLA School of Medicine
• All areas of civil litigation
• Board Certified since 1971
Call the only expert witness with a proven compensable
method to measure credit damage since 1995.
E-Mail: [email protected]
Georg Finder 714.441.0900
TEL 310/274-2304
FAX 310/203-0783
For more information, visit
www.creditdamageexpert.com
(CLE training seminars available)
9915 Santa Monica Blvd., Suite 101
Beverly Hills, CA 90212
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Miguel Drive, Suite 130, Newport Beach, CA 92660, (949)
219-9816, fax (949) 219-9095, e-mail: expert@wzwlw
.com. Contact Barbara Luna, Drew Hunt, Paul White,
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax
planning and preparation and mergers and acquisitions.
Testified hundreds of times as expert witnesses. Prior Big
Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation,
asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real
estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 45.
CREDIT DAMAGE
GEORG FINDER
2501 East Chapman Avenue, Suite 100, Fullerton, CA
92831, (714) 441-0900, e-mail: [email protected]. Web
site: www.creditdamageexpert.com. Contact Georg
Finder. Defense/plaintiff. Consultant/expert witness testimony plus credit damage report reveals, change of creditworthiness, loss of capacity, loss of expectancy, in cases
of fraud, breach of contract, bad faith insurance, negligence, wrongful termination, identity theft, malpractice, PI,
divorce, creditor or credit bureau error. Very different than
the service of an economist, or CPA. Often increases plaintiff case value by 400% plus. May reduce defense liability
by 90%. CV: Director of Curr Financial Education Academy: Author of 3 MCLE seminars; credit reports: misconceptions and realities; credit reports: compliance and opportunity; credit damage: evaluation and compensation.
Numerous publications. See display ad on page 55.
Los Angeles Lawyer April 2005 55
CRIMINOLOGY/GANGS
DR. LEWIS YABLONSKY
2311 Fourth Street, Suite 312, Santa Monica, CA 90405,
phone and fax (310) 450-3697, e-mail: expertwitness
@lewyablonsky.com. Web site: www.lewyablonsky.com.
Contact Dr. Lewis Yablonsky, PhD-NYU. Emeritus professor criminology, California State University Northridge.
Professor at other universities, including UCLA, University
of Massachusetts, Harvard, Texas A&M, and Columbia
University. Published 19 books on criminology and social
problems, including Criminology (1990), Gangsters (1997),
and Gangs in Court (Lawyers & Judges Publishers, 2005).
Consultant/expert witness in 165+ legal cases in various
areas of criminality, especially gangs (150+ gang cases).
Also homicide, drug addiction, company security liability,
and responsibility. See Web site. Appointed to the “Panel
of Experts” approved by the L.A. County Superior Court
Judge’s Committee. See display ad on page 63.
DISCOVERY SERVICES
NAVIGANT CONSULTING
633 West 5th Street, 60th Floor, Los Angeles, CA 90071,
(213) 670-3285, fax (213) 670-3203, e-mail: elaykin
@navigantconsulting.com. Web site: www.navigantconsulting
.com. Contact Mina Trujillo. Computer and Internet
technology. Information management systems failure,
cyber fraud and crime, computer and network forensics,
multinational intellectual property, and economic
espionage.
DISPUTE ANALYSIS
THE CAPANALYSIS GROUP, LLC
550 South Hope Street, Suite 1050, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for
complex litigation, arbitration, regulatory proceedings, and
strategic corporate decision making. Assist attorneys with
discovery, identification of relevant economic and financial
issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state
courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market
definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright
infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers
and acquisitions, and securities fraud. Degrees/licenses:
CPAs, CFEs, CVAs, JDs, PhDs economics.
DESMOND MARCELLO AND AMSTER
Southern California Office: 6060 Center Drive, Suite 825,
Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400,
fax (310) 216-0800. Northern California Office: 228 Bush
Street, 16th Floor, San Francisco, CA 94104, (415) 4398390, fax (415) 439-8391. Web site: www.dmavalue.com.
Contact Wes Nutten, Aaron Amster, or Madeleine
Mamaux. Litigation consulting, forensic accounting, expert
witness testimony, class action claims administration services, and business valuation services. Staff qualifications
include CPA, CMA, ABV, CFA, and ASA designations.
Testimony experience in numerous court jurisdictions. Established in 1968. See display ad on page 52.
ECONOMIC DAMAGES
BALLENGER, CLEVELAND & ISSA, LLC
10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA
90024, (310) 873-1717, fax (310) 873-6600. Contact
Bruce W. Ballenger, CPA, executive managing director. Services available: assist counsel in determining overall strategy. Help evaluate depositions and evidence. Provide well-prepared, well-documented, and persuasive incourt testimony regarding complicated accounting, financial, and business valuation matters, fairness of interest
56 Los Angeles Lawyer April 2005
rates, feasibility of reorganization plans, fraudulent conveyances, bankruptcies, mergers and acquisitions, and
management misfeasance/malfeasance. More than 100
open-court testimonies, federal and state, civil and criminal. See display ad on page 48.
BUSINESS ENTERPRISE APPRAISAL CO., INC.
23801 Calabasas Road, Suite 1016, Calabasas, CA
91302, (818) 591-9282, or (800) 928-7463. Contact
Larry Grant, ASA or Robert Weinstock, JD, CBA. Appraisal of businesses and professional practices for all litigation and nonlitigation purposes, including estate planning and taxation, for 706 filings, FLP and LLC discounts,
S corporation elections, corporate dissolutions, damages,
loss and earnings and condemnation of goodwill. Also real
property appraisals. Expert witnesses in all jurisdictions.
Established 1972.
THE CAPANALYSIS GROUP, LLC
550 South Hope Street, Suite 1050, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for
complex litigation, arbitration, regulatory proceedings, and
strategic corporate decision making. Assist attorneys with
discovery, identification of relevant economic and financial
issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state
courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market
definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright
infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers
and acquisitions, and securities fraud. Degrees/licenses:
CPAs, CFEs, CVAs, JDs, PhDs economics.
CHARLES RIVER ASSOCIATES INCORPORATED
1055 East Colorado Boulevard, Suite 420, Pasadena, CA
91106-2327, (626) 564-2000, fax (626) 564-2099. Web
site: www.crai.com. Contact John Hirshleifer, vice
president. CRA provides economic, financial, and business analysis in such areas as antitrust, contracts, damages, energy, environment, entertainment, healthcare, intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry experts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial preparation and testimony) to attorneys, executives, and government officials the world over. See display ad on page 51.
CONLEY FORENSICS
15436 Albright Street, Pacific Palisades, CA 90272, (310)
454-7390, fax (310) 459-6386, e-mail: [email protected].
Contact Bryan C. Conley, PhD, principal. Specializing
in personal injury, wrongful death, wrongful termination and
breach of contract damages. Published in forensic economic and leading academic journals. Testifying since
1977.
ECON ONE RESEARCH, INC.
601 West 5th Street, 5th Floor, Los Angeles, CA 90071,
(213) 624-9600, fax (213) 624-6994, e-mail:lskylar
@econone.com. Web site: www.econone.com. Contact
Lisa Skylar, general manager. Econ One is an economic research and consulting firm of over 40 professionals with extensive experience with the litigation process.
We understand the need for clear, accurate, persuasive
answers to complex problems. We work with our clients to
keep our efforts focused on necessary tasks, with close attention to costs. We provide economic analysis and expert
testimony in many areas, including: antitrust, contract disputes, damages analysis/calculations, intellectual property
and patent infringement, market analysis, regulation, stock
price analysis and unfair competition. Industry specialties
include energy, biotechnology, computer hardware and
software, manufacturing, telecommunications, and financial services.
ECONOMIC CONSULTANTS & ASSOCIATES
2030 Main Street, Suite 1300, Irvine, CA 92614, (714)
547-6588, (310) 246-9993, fax (714) 547-9916, e-mail:
[email protected]. Contact Stephen T. Riley, PhD.
Quantifying losses in the following areas: P/I, wrongful
death, loss of household services, loss of earning capacity,
medical/legal malpractice, business losses (lost profits),
wrongful termination, and expert testimony.
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 2.
HIGGINS, MARCUS & LOVETT, INC.
800 South Figueroa Street, Suite 710, Los Angeles, CA
90017, e-mail: [email protected]. Web site: www.hmlinc
.com. Contact Mark C. Higgins, ASA, president. The
firm has over 20 years of litigation support and expert testimony experience in matters involving business valuation,
economic damages, intellectual property, loss of business
goodwill, and lost profits. Areas of practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 43.
HOLLIS & ASSOCIATES
238 Pasadena Avenue, Suite 200, South Pasadena, CA
91030-2920, (626) 441-1103, fax (626) 441-1107, e-mail:
[email protected]. Contact Michael R.
Hollis, MBA, MA (Econ). Economic damages analysis
and expert witness testimony regarding personal injury,
wrongful death, earning capacity, household services,
wrongful termination, employment discrimination, sexual
harassment, medical malpractice, business damages (lost
profits), products liability, and pediatrics.
KROLL
660 S. Figueroa St., Suite 900, Los Angeles, CA 90017,
(213) 443-6090, fax: (213) 443-6055. Contact Troy
Dahlberg, CPA/ABV [email protected] or
Christian Tregillis, CPA/ABV ctregillis@krollworldwide
.com. Investigations, economic damages, and valuation
firm with offices across the country and around the globe.
Specialties include accounting, financial, economic and
statistical analysis, as well as computer forensics, in the
context of commercial litigation and forensic investigations:
accounting/fraud, securities, intellectual property (including
damages analyses, licensing and valuation), breach of contract, lost profits, royalty audits, corporate governance,
business valuation, real estate, construction, bankruptcy.
Practitioners include former partners at big four accounting
firms, law enforcement/FBI, computer forensics, and appraisers. See display ad on page 49.
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and gift
tax planning (family limited partnerships), lost profit analy-
sis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations.
See display ad on page 47.
IS YOUR
HOMES
IS YOUR
SLOPE
SCHULZE HAYNES & CO.
660 South Figueroa Street, Suite 1280, Los Angeles, CA
90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert
@schulzehaynes.com. Web site: www.schulzehaynes
.com. Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery, real estate
transactions, financial analysis and modeling, major professional organizations, and have experience across a broad
spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; PhD-economics.
Our mission is to provide the most cost-effective
solutions to identify, document and develop the
best repair remedies for your foundation and slope
problems. At Ultimo Geotechnical Construction and
Engineering, we specialize in foundation soils stabilization, proprietary underpinning, and raising of sunken
structures. We have streamlined the process to quickly provide the bottom line, and back it up with our own
forces. We are authorized installers of Atlas and
Chance foundation underpinning.
VICENTI, LLOYD & STUTZMAN LLP
2210 East Route 66, Glendora, CA 91740, (626) 8577300, fax (626) 857-7302, e-mail: [email protected].
Web site: www.vlsllp.com. Contact Royce Stutzman,
CVA, CPA, Chairman. Our certified professionals serve
as consultants and experts in business valuations and litigation support. We conduct valuations related to mergers
and acquisitions, buy-sell agreements, purchase/sale of
closely held businesses, partner disputes, etc. Our forensic
accounting experts assess the amount of an economic
loss, whether it be business interruption from casualty, unfair competition, condemnation, damage caused by others, or loss of earnings from various events. Our fraud investigation team reviews documentation, interviews witnesses and suspects, and assesses evidence to resolve
allegations. We provide expert witness testimony and implement fraud prevention programs. VLS Celebrates 52
Years of Quality Service!
CONSTRUCTION
DEFECT?
?
I NK I NG
FA
I LIN G?
INDUSTRY EXPERT REVIEW AND REPORTS:
Attorneys and homeowners will appreciate our inhouse capabilities to meet their needs. Our team can
provide the resources, expertise, and techniques to
identify causes and effects of a problem, and
implement remedies. We can provide site, structure,
and geotechnical investigations, industry expert
services, foundation floor level surveys, repair plans,
accurate documentation, estimates, emergency
stabilization, and environmental remediation.
Since 1937 • Three generations • The oldest
company doing this type of work in California!
ULTIMO ORGANIZATION INC.
Geotechnical Construction & Engineering
1411 East Borchard Ave., Santa Ana, CA 92705
Tel 714-560-8999 Fax 714-560-8998
www.geotechnical.com
The Foundation Specialist
CA State Lic. #338922
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Miguel Drive, Suite 130, Newport Beach, CA 92660, (949)
219-9816, fax (949) 219-9095, e-mail: expert@wzwlw
.com. Contact Barbara Luna, Drew Hunt, Paul White,
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax
planning and preparation and mergers and acquisitions.
Testified hundreds of times as expert witnesses. Prior Big
Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation,
asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real
estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 45.
ECONOMICS
THE CAPANALYSIS GROUP, LLC
550 South Hope Street, Suite 1050, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for
complex litigation, arbitration, regulatory proceedings, and
strategic corporate decision making. Assist attorneys with
discovery, identification of relevant economic and financial
issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state
courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market
Los Angeles Lawyer April 2005 57
Your
Single Source
for construction-related
investigations and litigation support.
CHARLES RIVER ASSOCIATES INCORPORATED
1055 East Colorado Boulevard, Suite 420, Pasadena, CA
91106-2327, (626) 564-2000, fax (626) 564-2099. Web
site: www.crai.com. Contact John Hirshleifer, vice
president. CRA provides economic, financial, and business analysis in such areas as antitrust, contracts, damages, energy, environment, entertainment, healthcare, intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry experts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial preparation and testimony) to attorneys, executives, and government officials the world over. See display ad on page 51.
Consulting Services
Our experienced experts/consultants
ensure a coordinated, cost-effective, multidisciplined approach to visual and intrusive
site investigations, document review,
research and analysis of code and industry
standards issues, cost estimates,
arbitration, mediation, and courtroom
testimony involving:
Construction Defects
Delay and Disruption Claims
Insurance Investigation
Personal Injury/Safety
ADA Auditing and Compliance
Contractual Disputes
Error & Omission Claims
Surety Claims Services
Complete surety support, including initial
exposure analysis, project takeover and
completion, claims packaging and
resolution, and subrogation and recovery.
Takeovers and Completions
Exposure Analysis
Payment Bond Claim
Reconciliations
Construction Claims/Packaging
and Resolution
Dispute Resolution
Litigation Support
Expert Witness Testimony
Computerized Document Control
88
years
www.roel.com/800.662.7635
California / Arizona / Nevada
Utah / New Mexico / Oregon
CA Lic. # 184531-B1
58 Los Angeles Lawyer April 2005
definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright
infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers
and acquisitions, and securities fraud. Degrees/licenses:
CPAs, CFEs, CVAs, JDs, PhDs economics.
trical (power, lighting), energy systems, residential and
nonresidential buildings, construction defects, construction
claims, and mold.
ELECTRONIC DISCOVERY
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 2.
EMPLOYMENT
COHEN, MISKEI & MOWREY LLP
15303 Ventura Boulevard, Suite 1150, Sherman Oaks,
CA 91403, (818) 986-5070, fax (818) 986-5034, e-mail:
[email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic
accountants, fraud investigations, economic damages,
business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display
ad on page 57.
BIDDLE CONSULTING GROUP, INC.
2868 Prospect Park Drive, Suite 110, Rancho Cordova,
CA 95670, (916) 266-6722, ext. 113, fax (916) 266-4170,
e-mail: [email protected]. Web site: www.biddle.com.
Contact Dan Biddle, PhD, president. We specialize in
test development, EEO/AA reviews, validation studies
(content, criterion-related), and adverse impact analyses.
We have a special emphasis in the protective service fields.
Over 30 staff. Degrees/licenses: MA, PhD, other staff with
various degrees.
ECON ONE RESEARCH, INC.
601 West 5th Street, 5th Floor, Los Angeles, CA 90071,
(213) 624-9600, fax (213) 624-6994, e-mail: lskylar
@econone.com. Web site: www.econone.com. Contact
Lisa Skylar, general manager. Econ One is an economic research and consulting firm of over 40 professionals with extensive experience with the litigation process.
We understand the need for clear, accurate, persuasive
answers to complex problems. We work with our clients to
keep our efforts focused on necessary tasks, with close attention to costs. We provide economic analysis and expert
testimony in many areas, including: antitrust, contract disputes, damages analysis/calculations, intellectual property
and patent infringement, market analysis, regulation, stock
price analysis and unfair competition. Industry specialties
include energy, biotechnology, computer hardware and
software, manufacturing, telecommunications, and financial services.
G. GOVINE CONSULTING
260 North Mar Vista, Suite #2, Pasadena, CA 911061413, (626) 564-0502, fax (626) 564-8702, e-mail: info
@govineconsults.com. Web site:www.govineconsults.com.
Contact Dr. Gerda Govine. Specializes in employment
discrimination, sexual harassment including AB 1825 training, wrongful termination, age discrimination, communications, training and analysis, evaluation of human resource
policies, practices, procedures, handbooks, systems, and
evaluation of sexual harassment matters. Practices of employment discrimination, and mediation. See display ad
on page 60.
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and gift
tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations.
See display ad on page 47.
ELECTRICAL ENGINEERING
CTG FORENSICS, INC.
16 Technology Drive, Suite 109, Irvine, CA 92618, (949) 7900010, fax (949) 790-0020, e-mail: mlewis@CTGforensics
.com. Web site: www.CTGforensics.com. Contact Dr.
Malcolm Lewis, PE. Construction-related engineering,
plumbing, mechanical (heating, ventilating, A/C) and elec-
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272, (310)
454-2988, fax (310) 454-4516. Contact Marcia Haight.
Human resources expert knowledgeable in both federal
and California law. Twenty-five years’ corporate human resources management experience plus over 15 years as a
Human Resources Compliance Consultant in California.
Specializations include sexual harassment, ADA/disability
discrimination, other Title VII and FEHA discrimination and
harassment, retaliation, FMLA/CFRA, safety, and wrongful
termination. Courtroom testimony and deposition experience. Retained 60% by defense, 40% by plaintiff. Audit
employer’s actions in preventing and resolving discrimination, harassment, and retaliation issues. Assess human resources policies and practices for soundness, for comparison to prevailing practices, and for compliance. Evaluate
employer responsiveness to complaints and effectiveness
of employer investigations. Assist counsel via preliminary
case analysis, discovery strategy, examination of documents, and expert testimony.
EMPLOYMENT/DISCRIMINATION/
HARASSMENT
BRIAN H. KLEINER, PHD
Professor of Human Resource Management, California
State University, 800 North State College Boulevard, LH640, Fullerton, CA 92834, (714) 879-9705, fax (714) 8795600. Contact Brian H. Kleiner, PhD. Specializations include wrongful termination, discrimination, sexual harassment, ADA, evaluation of policies and practices, reason-
able care, progressive discipline, conducting third-party
workplace investigations, retaliation, RIFs, statistics, negligent hiring, promotion selections, CFRA/FMLA, compensation, wage and hours, ERISA, workplace violence, and
OSHA. Consultant to over 100 organizations. Over 500
publications. Five-time winner of CSUF Meritorious Performance Award. Extensive experience giving testimony
effectively.
ENGINEERING
ACORN CONSULTING SERVICES, LLC
2830 North Swan Road, Suite 140, Tucson, AZ 85712,
(520) 322-6150, fax (520) 327-0062, e-mail: bill@acs-eng
.com. Web site: www.acs-eng.com. Contact William R.
Acorn. PE. Over 30 years’ experience as a consulting engineer providing value added technical consultation, forensic analysis, and expert testimony. Specializing in HVAC
systems, cleanrooms, piping and refrigeration systems,
building and fire codes, design and construction issues,
and hazardous occupancies. Successfully represent plaintiffs, defendants and insurers in court, arbitration and mediation settings with claims up to $250 million. ACS provides a unique combination of practical, theoretical, and
teaching experience to support your litigation needs.
FORENSISGROUP
3452 East Foothill Boulevard, Suite 1160, Pasadena, CA
91107, (800) 555-5422, (626) 795-5000, fax (626) 7951950, e-mail: [email protected]. Web site:
www.forensisgroup.com. Contact Mercy Steenwyk.
Thousands of our clients have gained the technical advantage and the competitive edge in their cases from our resource group of high-quality experts in construction, engineering, product liability, safety, environmental, accident
reconstruction, automotive, failure analysis, fires, explosions, slip and fall, real estate, economics, appraisal, employment, computers, and other technical and scientific
disciplines. We provide you with a select group of highquality experts as expeditiously as possible. Unsurpassed
recruitment standards. Excellent client service. See display ad on page 43.
REAL ESTATE, BANKING, MALPRACTICE
EXPERT WITNESS – SAMUEL K. FRESHMAN, B.A., J.D.
Attorney and Real Estate Broker since 1956 • Banker • Professor • Legal
Malpractice • Arbitration • Brokerage • Malpractice • Leases
• Syndication • Construction • Property Management • Finance • Due
Diligence • Conflict of Interest • Title Insurance • Banking • Escrow
• Expert Witness • 48 Years Experience - 25 years State & Federal Courts
• 29 articles • Arbitrator • Mediator • $300,000,000+ Property
6151 W. Century Blvd., Suite 300, Los Angeles, CA 90045
Tel (310) 410-2300 ext. 306 ■ Fax (310) 410-2919
— DRIVER ERROR ANALYSIS —
Human Factors Forensic Science
Internationally
Recognized
Expert
Driver error • Inattention • Fatigue • Sensory,
perceptual, mental, and physical factors • Car, truck and
bus driver skill and knowledge requirements • Driver
and motor carrier standards of care • Hours of service
violations • Circadian rhythms • Sleep debt • Human
factors traffic accident analysis
www.drivingfatigue.com
DENNIS WYLIE
■
D. WYLIE ASSOCIATES
P O Box 60836, Santa Barbara, CA 93160
VOICE
(805) 681•9289
■ FAX
(805) 681•9299
HICHBORN CONSULTING GROUP
1988 North Tustin Avenue, Orange, CA 92865, (714) 6377400, fax (714) 637-7488, e-mail: hichbornsr@hichborn
.com. Web site: www.hichborn.com. Contact Geoffrey
Hichborn Sr. General civil design with specialties featuring
forensic investigations of concrete work and concrete
products, concrete, cement and related materials expertise, construction practices and materials evaluation, repair
recommendations, construction observation, public
works/residential/commercial/industrial, and specially designed tests of distressed materials.
RICK ENGINEERING CO.
1223 University Avenue, Suite 240, Riverside, CA 92507,
(951) 782-0707, fax (951) 782-0723, e-mail: rstockton
@rickengineering.com. Web site: www.rickengineering
.com. Robert A. Stockton, PE. Specialties include subdivision, commercial/industrial site design, construction
review and value engineering, flood control studies/engineering, aerial topographic mapping, and special computerized services, including forensic engineering and CADD
modeling. See display ad on page 50.
CARL SHERIFF, PE
101531⁄2 Riverside Drive, Suite 365, Toluca Lake, CA
91602, (818) 766-9259, fax (818) 908-9301. Contact
Carl Sheriff, PE, forensic engineer. Degreed in the law
and engineering. Registered professional engineer in mechanical, controls, and safety. General contractor, real estate broker, and certified building inspector. Licensed
truck driver. Consulting and expert testimony on premises
liability, product defects, and traffic accidents. Construction and industrial accidents. Building and OSHA code
compliance. Slip, trip, and falls. Human factors. Safety
evaluation. Computerized analysis and exhibits. Free initial
file review.
Los Angeles Lawyer April 2005 59
ENGINEERING/GEOTECHNICAL
G. GOVINE CONSULTING
Developing the Workforce for the 21st Century
LITIGATION CONSULTANT
AND EXPERT WITNESS:
EMPLOYMENT
SPECIALIZES IN:
✔ SEXUAL HARASSMENT,
AB 1825 TRAINING
INCLUDING
✔ EMPLOYMENT DISCRIMINATION:
AGE, RACE, SEX
✔ HUMAN RESOURCES AND
EMPLOYMENT PRACTICES
✔ WRONGFUL TERMINATION
✔ MEDIATION
DR. GERDA GOVINE
260 N. MAR VISTA, SUITE NO. 2
PASADENA, CA 91106
TEL: 626/564-0502
FAX: 626/564-8702
800-564-0501
www.govineconsults.com
Expert Witness
—Real Estate Matters—
SPECIALIST IN:
• Broker duties; Standard of Care
• Disclosure Issues – Buyer/Seller
• Agency Obligations
• Real Estate Malpractice
• Mortgage Brokerage Law
• Residential & Commercial Transactions
CREDENTIALS:
Supervising Broker
Responsible for overseeing more than
7,500 RE transactions in major
California-based real estate companies.
General Counsel
Legal adviser for two of nation’s largest
real estate companies.
Hotline Attorney
Supervising Senior Counsel at
California Association of Realtors (CAR)
DRE Master Instructor
Author, DRE Disclosure Course.
Alan D. Wallace, Esq.
14011 Ventura Blvd., Suite 406
Sherman Oaks, CA 91423
818/501-0133 ■ FAX 818/905-6091
www.expertwitnessre.com
e-mail: [email protected]
60 Los Angeles Lawyer April 2005
COTTON, SHIRES AND ASSOCIATES, INC.
330 Village Lane, Los Gatos, CA 95030-7218, (408) 3545542, fax (408) 354-1852, e-mail: pshires@cottonshires
.com. Web site: www.cottonshires.com. Contact Patrick
O. Shires. Full-service geotechnical engineering consulting firm specializing in investigation, design, arbitration,
and expert witness testimony with offices in Los Gatos
and San Andreas, California. Earth movement (settlement,
soil creep, landslides, tunneling and expansive soil), foundation distress (movement and cracking of structures),
drainage and grading (seeping slabs and ponding water in
crawlspace), pavement and slabs (cracking and separating), retaining walls (movement, cracking and failures),
pipelines, flooding and hydrology, design and construction
deficiencies, expert testimony at over 70 trials (municipal,
superior and federal); 100+ depositions; 200+ settlement
conferences in southern and northern California and
Hawaii.
ENVIRONMENTAL
THE CAPANALYSIS GROUP, LLC
550 South Hope Street Suite 1050, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Laura Robinson, PhD. Specialties: 1.
Valuation of environmental liabilities and other legal claims
using a decision tree approach that produces an accurate
representation of liability cost versus the probability of
those costs being incurred. 2. Provision of crucial information to help ensure that products or services meet the environmental, health, and safety requirements of the jurisdictions in which they do business. 3. Staff of Washington-based regulatory analysts monitor federal and state
regulatory developments and interact with government officials to explain the interests of their clients. Degrees/license: hydrogeology, geology, environmental scientists.
CHARLES RIVER ASSOCIATES
INCORPORATED
1055 East Colorado Boulevard, Suite 420, Pasadena, CA
91106-2327, (626) 564-2000, fax (626) 564-2099. Web
site: www.crai.com. Contact John Hirshleifer, vice
president. CRA provides economic, financial, and business analysis in such areas as antitrust, contracts, damages, energy, environment, entertainment, healthcare, intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry experts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial preparation and testimony) to attorneys, executives, and government officials the world over. See display ad on
page 51.
HARGIS + ASSOCIATES, INC.
2365 Northside Drive, Suite C-100, San Diego, CA 92108,
(800) 554-2744, (619) 521-0165, fax (619) 521-8580,
e-mail: [email protected]. Web site: www.hargis.com.
Contact David R. Hargis, PhD, RG. Expert witness testimony, technical consultation, and litigation support concerning hydrogeologic assessments to evaluate groundwater supply, basin studies, nature/extent of soil/groundwater contamination, source identification, identification of
potentially responsible parties, cost allocation studies, and
negotiations with USEPA and state regulatory agencies involving cleanup levels and approval of RI/FS/RD/RA documents for various state and federal Superfund sites. See
display ad on page 59.
PACIFIC HEALTH & SAFETY CONSULTING, INC.
2192 Martin, Suite 230, Irvine, CA 92612, (949) 253-4065,
e-mail: [email protected]. Web site: www.phsc-web
.com. Contact Tim Morrison. Providing quality consultation and expert witness for mold, bacteria, lead, and asbestos. Certified training for all health and safety OSHA,
AQMD and FPT regulations. See display ad on page 57.
PCR SERVICES CORPORATION
233 Wilshire Boulevard, Suite 130, Santa Monica, CA
90401, (310) 451-4488, fax (310) 451-5279, e-mail:
[email protected]. Web site: www.pcrnet.com.
Contact Gregory J. Broughton. PCR Services Corporation provides authoritative and experienced expert testimony related to matters subject to the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA), in general, and regarding technical aspects
of biological resources, archaeological, palentological or
historic resources, air quality, human health risk, meterology, noise, public utility and service systems, land use policy, and scenic and aesthetics resources, in particular.
ESCROW
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612, (949)
263-8700, fax (949) 263-0770, e-mail: info@mcsassociates
.com. Web site: www.mcsassociates.com. Contact
Norman Katz, managing partner. Nationally recognized
banking, finance, insurance, and real estate consulting
group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants,
economists, accountants, insurance underwriters/brokers.
Specialties: lending customs, practices, policies, in all
types of lending (real estate, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis
and valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage, appraisal,
escrow, and construction defects/disputes, and title
insurance.
EXPERT REFERRAL SERVICE
FORENSIC EXPERT WITNESS ASSOCIATION
2402 Vista Nobleza, Newport Beach, CA 92660, (949)
640-9903, fax (949) 640-9911, e-mail: [email protected].
Web site: www.forensic.org. Contact Norma S. Fox,
executive director. Referral service and nonprofit professional association. Chapters in Orange County, Los Angeles, San Francisco, San Diego. Monthly meetings, workshops, and annual conference. See display ad on page 53.
IMPACT GENERAL, INC.
1405 East Chapman Avenue, Orange, CA 92866, (714)
532-1621, fax (714) 532-5734, e-mail: assignments
@impactgeneral.com. Contact Bill King. Impact General,
Inc. is a forensic expert firm with over 500 experts working
in all engineering fields, science disciplines, and unique
specialties. Our 28 years of experience ensure in-depth
analysis with objective evaluations. A comprehensive approach guarantees that clients will receive consistency
within our firm’s business precepts of timeliness, effective
communications, and cost effectiveness.
PRO/CONSUL TECHNICAL AND MEDICAL
EXPERTS
1945 Palo Verde Avenue, Suite 200, Long Beach, CA
90815, (800) 392-1119, fax (562) 799-8821, e-mail: eexperts
@msn.com. Web site: www.expertinfo.com. Contact
Rebecca deButts. Right expert right away! We are listed
and recommended by the A.M. Best Company. We welcome your rush cases! 15,000 medical and technical experts in over 3,000 fields enables Pro/Consul to provide
the best experts at a reasonable cost, including: reconstruction, accounting, engineering, biomechanical, business valuation, construction, economics, electrical, human
factors, insurance, lighting, marine, metallurgy, mechanical,
roof, safety, security, SOC, toxicology, medmal, MDs,
RNs, etc. Free resume binder. Please see display ad on
page 75.
TASA
1166 DeKalb Pike, Blue Bell, PA 19422 (800) 523-2319,
fax (800) 329-8272. Find your expert in minutes. Fast, customized referrals to outstanding local, national, and global
experts and consultants, including hard-to-find specialists.
More than 10,000 categories of expertise. Our hallmark
AMFS, INC. (AMERICAN MEDICAL FORENSIC
SPECIALIST)
2640 Telegraph Avenue, Berkeley, CA 94704, (800) 2758903, (510) 549-1693, fax (510) 486-1255, e-mail:
[email protected], Web page: www.amfs.com.
Contact Barry Gustin, MD, MPH, FACEP. AMFS is a
physician and attorney managed company that provides
initial in-house case screenings by 72 multidisciplinary
physician partners. Medical experts are matched to meet
case requirements by AMFS Physician Partners from our
panel of over 3,500 carefully prescreened board-certified
practicing specialists in California. All recognized medical
specialties. Plaintiff and defense. Fast, thorough, objective,
and cost-effective. Medical negligence, hospital and managed care, personal injury, product liability, and toxic torts.
“A 92 percent win record” –California Lawyer magazine.
See display ad on this page.
CHARLES RIVER ASSOCIATES INCORPORATED
1055 East Colorado Boulevard, Suite 420, Pasadena, CA
91106-2327, (626) 564-2000, fax (626) 564-2099. Web
site: www.crai.com. Contact John Hirshleifer, vice
president. CRA provides economic, financial, and business analysis in such areas as antitrust, contracts, damages, energy, environment, entertainment, healthcare, intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry experts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial preparation and testimony) to attorneys, executives, and government officials the world over. See display ad on page 51.
EXPERT WITNESS WEB SITES
EXPERT4LAW—THE LEGAL MARKETPLACE
(213) 896-6561, fax (213) 613-1909, e-mail: forensics
@lacba.org. Web site: www.expert4law.org. Contact
Melissa Algaze. Still haven’t found who you’re looking
for? Click here! expert4law—The legal Marketplace is the
best online directory for finding expert witnesses, legal
consultants, litigation support, lawyer-to-lawyer networking, dispute resolution professionals, and law office technology. This comprehensive directory is the one-stop site
for your legal support needs. Available 24/7/365! Brought
to you by the Los Angeles County Bar Association.
FAILURE ANALYSIS
KARS ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland Drive,
Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 5277169, e-mail: [email protected]. Web site: www.karslab
.com. Contact Drs. Ramesh J. Kar or Naresh J. Kar.
Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineers with 20-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive,
bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant
cases. Complete in-house capabilities for tests. Extensive
deposition and courtroom experience (civil and criminal investigations). Principals are fellows of American Society for
Metals and board-certified diplomates, American Board of
Forensic Examiners. See display ad on page 50.
ETHICS
WITHOUT
COMPROMISE
Miod and Company has developed a solid
reputation for ethical Forensic Accounting
services. For all legal arguments that relate
to accounting issues, we deliver informed,
objective, honest opinions.
+ Non-partisan/Expert
Witness Testimony
+ Objective Business Appraisals
-Marital Dissolutions
-Estate Valuations
+ Tax Consultation
+ Thorough Investigative Accounting
-Asset Tracing
-Reimbursement Claims
+ Fraud Investigations
CALL FOR OUR COMPANY BROCHURE
LOS ANGELES OFFICE:
11600 INDIAN HILLS ROAD
BULDING B, SUITE 300
MISSION HILLS, CA 91345-1225
TEL: (818) 898-9911 FAX: (818) 898-9922
www.miod-cpa.com
PALM DESERT OFFICE:
74-478 HIGHWAY 111
SUITE 254, PALM DESERT, CA 92260
TEL: (760) 779-0990 FAX: (760) 779-0960
People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting
EXPERT WITNESS
People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting
People Plus Accounting People Plus Accounting
personal service includes unlimited searches, referrals,
faxed resumes, and your risk-free screening phone calls.
Plaintiff/defense; civil/criminal cases; ADR. From case merits assessment to deposition and testimony. Sample categories: accident reconstruction, computers, construction,
economics, electronics, engineering, healthcare, intellectual property, malpractice, medical devices, mold, OSHA,
personal injury, product liability, safety, and toxicology.
Over four decades of exceptional service to California’s
finest law and insurance firms. Please see insert in this
issue and display ad on page 69.
Behrooz (Bruce)
Broukhim, M.D.
Board Certified Orthopedic Surgeon
■
Shoulder, knee & hip surgery
■
Arthroscopic surgery
■
Neck & back injury eval. & treatment
■
Personal injury
■
Workers’ Compensation
■
QME, IME, AME
–
–
–
–
Am. Academy of Orthopedic Surgeons
American Board, of Ortho Surgeons
Arthroscopic Assn. of North America
International Society of Arthroscopy,
Knee Surgery & Ortho Sports Medicine
MEMBER:
LACMA – CMA
818-755-6500 TEL
310-552-1488 (L.A.)
818-980-7144 FAX
10640 Riverside Dr., North Hollywood, CA
9763 W. Pico Blvd., Los Angeles, CA
25 YEARS EXPERIENCE
IN ORTHO. MED. LEGAL WORK
AND EXPERT TESTIMONY
People Plus Accounting People Plus Accounting
37th Annual Family Law Symposium
Presented by the Family Law Section and the Los Angeles Superior Court
MAY 7, 2005 AT THE SHERATON UNIVERSAL HOTEL
333 UNIVERSAL HOLLYWOOD DRIVE, UNIVERSAL CITY
Panelists
will
discuss
Registration
Meal/Reception
Program
Pricing
Registration
by Phone
■ Significant
Crossover Issues
Brave New World of Domestic Partnerships
■ Enforcement and Defenses
■ Complex Valuation Issues
■ Recent Developments (Cases and Statutes)
■ The
8:00 a.m.-8:30 a.m.
8:00 a.m.-continental breakfast
8:30 a.m.-4:30 p.m. (Includes lunch)
$135 CLE+PLUS Members; $75 non-profit attys/court research attys/
barristers/non-attorney support staff/law students; $235 family law
section members/retired judges; $255 other LACBA members; $260
affiliate bar members; $285 all others; $295 at the door. Admission
price includes reference book, continental breakfast, luncheon, and
breaks.
Call (213) 896-6560 with Visa, MasterCard or American Express
Monday-Friday 9:00 a.m.-4:00 p.m.
REGISTRATION CODE: 008907
6.0 CLE hrs-approved for Legal Specialization Credit in Family Law
For questions about programs or program registration, send e-mail to our
Member Service Department at [email protected].
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider.
Los Angeles Lawyer April 2005 61
James F. Lineback, M.D., F.C.C.P.
EXPERT WITNESS
PLAINTIFF AND DEFENSE
(20 YEARS)
MEDICAL MALPRACTICE
PERSONAL INJURY
WORKERS’ COMPENSATION
(QME, AME)
SPECIALTIES
■
Internal Medicine
■
Pulmonary/Chest Medicine
■
Occupational Medicine
■
Wrongful Death Cases
■
Patient Care Issues
■
Medical Causation
■
Standard of Care Issues
■
Diagnostic Dilemmas
■
Toxic Exposure
■
Medical Records Review
MEDICAL PRACTICE IN
PULMONARY/CHEST MEDICINE
AND INTERNAL MEDICINE
SINCE 1983
Degrees: MS, MD, FCCP
Board Certified, Internal Medicine
Board Certified, Pulmonary Medicine
Fellow Am. College of Chest Physicians
Associate Clinical Professor Medicine
USC College of Medicine
Associate Clinical Professor of Medicine
UC Irvine College of Medicine
Lecturer in Physiology
UC Riverside College of Medicine
JAMES F. LINEBACK, M.D.
2100 N. Main St., Suite 202
Santa Ana, CA 92706
Telephone (714) 565-1012
Fax: (949) 721-9121
E-mail: [email protected]
62 Los Angeles Lawyer April 2005
SEAL LABORATORIES
250 North Nash Street, El Segundo, CA 90245, (310) 3222011, fax (310) 322-2243. E-mail: [email protected].
Web site: www.seallabs.com. Contact Arun Kumar,
PhD, president. Materials failure analysis, product liability,
and patent infringement support. Case evaluation and
strategy, analytical support, and expert witness testimony.
Metals, composites, plastics, and glass. Airplanes, autos,
helicopters, motorcycles, consumer products, medical devices, prostheses and implants, and electrical components. Analysis of failure due to fatigue, overload, corrosion, wear, or manufacturing/material defect.
FAMILY LAW
COHEN, MISKEI & MOWREY LLP
15303 Ventura Boulevard, Suite 1150, Sherman Oaks, CA
91403, (818) 986-5070, fax (818) 986-5034, e-mail:
[email protected]. Contact Scott Mowrey.
Specialties: consultants who provide extensive experience,
litigation support, and expert testimony regarding forensic
accountants, fraud investigations, economic damages,
business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display
ad on page 57.
GLENN M. GELMAN & ASSOCIATES, CERTIFIED
PUBLIC ACCOUNTANTS AND BUSINESS
CONSULTANTS
1940 East 17th Street, Santa Ana, CA 92705, (714) 6672600, fax (714) 667-2636. Web site: www.gmgcpa.com.
Contact Glenn Gelman. Expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting,
forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation.
GURSEY, SCHNEIDER & CO., LLP
10351 Santa Monica Boulevard, Suite 300, Los Angeles,
CA 90025, (310) 552-0960, fax (310) 557-3468. Web site:
www.gursey.com. Contact David Swan, Stephan
Wasserman, or Robert Watts. Forensic accounting and
litigation support services in the areas of marital dissolution, business valuation and appraisal, goodwill, business
disputes, malpractice, tax matters, bankruptcy, damage
and cost-profit assessments, insurance claims, court accounting, tracing, and entertainment industry litigation. See
display ad on page 55.
DIANA G. LESGART, CPA, CFE, AN
ACCOUNTANCY CORP.
22024 Lassen Street, Suite 106, Chatsworth, CA 91311,
(818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3
@msn.com. Contact Diana G. Lesgart, CPA, CFE. Specialized accounting and litigation support services in the
areas of family law litigation, tracing of assets, pension plan
tracing, forensic accounting, business valuation, goodwill,
expert testimony, commercial litigation, fraud investigations, economic damages, and real estate litigation. Over
21 years’ accounting experience with 17 years’ litigation
support specialization. Assigned as §730 accounting expert. Ms. Lesgart’s profile can be found at www.jurispro
.com. using “Lesgart” under Search by Name. Expert is
fully English/Spanish bilingual.
LEWIS, JOFFE & CO, LLP
10880 Wilshire Boulevard, Suite 520, Los Angeles, CA
90024, (310) 475-5676, fax (310) 475-5268. Contact
Brian Lewis, CPA, CVA. Forensic accounting, business
valuations, cash spendable reports, estate, and trust and
income tax services.
MIOD AND COMPANY, LLP CPAs
11600 Indian Hills Road, Building B, Suite 300, Mission
Hills, CA 91345-1225, (818) 898-9911, fax (818) 8989922, 74-478 Highway 111, Suite 254, Palm Desert, CA
92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod
@miod-cpa.com. Visit our Web site at www.miodcpa.com.
Contact Donald John Miod, CPA, ABV, CVA, CBA.
More than 30 years’ experience in litigation support, in-
cluding computation of income available for support, tracing, business valuations, fraud investigations, earnings
loss calculations, and income tax matters. Our firm is very
computer-oriented, involving the use of computer graphics. We are members of the Institute of Business Appraisers, the International Society of CPAs (founding member),
the American Institute of CPAs, and California Society of
CPAs. See display ad on page 61.
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and
gift tax planning (family limited partnerships), lost profit
analysis, mergers and acquisitions, goodwill impairment,
fairness and solvency opinions, ESOPs, incentive stock
options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and
market research. Extensive experience in expert witness
testimony, pretrial preparation, and settlement negotiations. See display ad on page 47.
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Miguel Drive, Suite 130, Newport Beach, CA 92660, (949)
219-9816, fax (949) 219-9095, e-mail: expert@wzwlw
.com. Contact Barbara Luna, Drew Hunt, Paul White,
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and
unjust enrichment, fraud investigation, business valuation,
tax planning and preparation and mergers and acquisitions. Testified hundreds of times as expert witnesses.
Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business
interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property
(patent, trademark and copyright infringement and trade
secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of
businesses, unfair advertising, unfair competition, and
wrongful termination. See display ad on page 45.
FEE DISPUTE
EDWARD LEAR (CENTURY LAW GROUP)
5200 West Century Boulevard, Suite 940, Los Angeles,
CA 90045, (310) 642-6900, fax (310) 642-6910, e-mail:
[email protected]. Contact Edward Lear. Former State Bar prosecutor; expert testimony and declarations regarding breach of standard care, breach of fiduciary duties, especially in context of California Rules of
Professional Conduct. Expert testimony and declarations
regarding legal fees and billing practices. Qualified in federal and state courts.
FINANCIAL
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612, (949)
263-8700, fax (949) 263-0770, e-mail: info@mcsassociates
.com. Web site: www.mcsassociates.com. Contact
Norman Katz, managing partner. Nationally recognized
banking, finance, insurance, and real estate consulting
group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants,
economists, accountants, insurance underwriters/brokers.
Specialties: lending customs, practices, policies, in all
types of lending (real estate, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis
and valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage, appraisal,
escrow, and construction defects/disputes, and title
insurance.
CHARLES RIVER ASSOCIATES INCORPORATED
1055 East Colorado Boulevard, Suite 420, Pasadena, CA
91106-2327, (626) 564-2000, fax (626) 564-2099. Web
site: www.crai.com. Contact John Hirshleifer, vice
president. CRA provides economic, financial, and business analysis in such areas as antitrust, contracts, damages, energy, environment, entertainment, healthcare, intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry experts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial preparation and testimony) to attorneys, executives, and government officials the world over. See display ad on page 51.
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on
page 2.
HAYNIE & COMPANY, CPAs
4910 Campus Drive, Newport Beach, CA 92660, (949)
724-1880, fax (949) 724-1889, e-mail: sgabrielson
@hayniecpa.com. Web site: www.hayniecpa.com.
Contact Steven C. Gabrielson. Alter ego, consulting
and expert witness testimony in a variety of practice areas:
commercial damages, ownership disputes, economic
analysis, business valuation, lost profits analysis, fraud/
forensic investigations, taxation, personal injury, wrongful
termination, professional liability, and expert cross examination. Extensive public speaking background assists in
courtroom presentations.
KROLL
660 S. Figueroa St., Suite 900, Los Angeles, CA 90017,
(213) 443-6090, fax: (213) 443-6055. Contact Troy
Dahlberg, CPA/ABV [email protected] or
Christian Tregillis, CPA/ABV ctregillis@krollworldwid
e.com. Investigations, economic damages, and valuation
firm with offices across the country and around the globe.
Specialties include accounting, financial, economic and
statistical analysis, as well as computer forensics, in the
context of commercial litigation and forensic investigations:
accounting/fraud, securities, intellectual property (including
damages analyses, licensing and valuation), breach of contract, lost profits, royalty audits, corporate governance,
business valuation, real estate, construction, bankruptcy.
Practitioners include former partners at big four accounting
firms, law enforcement/FBI, computer forensics, and appraisers. See display ad on page 49.
DR. LEWIS YABLONSKY – CRIMINOLOGY/GANGS
✔ Consultant/Expert Witness in over 165+ legal cases in various areas of criminality, especially gangs
(150+ cases). Also homicide, drug addiction, company security liability, and responsibility. See Web
site. Appointed as an expert witness in over 80 courts in California and on a national level. Appointed
to the Los Angeles County Superior Court “Panel of Experts.”
✔ Published 19 Books on criminology and social problems, including Criminology (1990); Gangsters:
50 Years of Madness, Drugs, and Death on the Streets of America (1997), and Juvenile Delinquency
(2000) and Gangs In Court (January, 2005).
✔ PhD – NYU Emeritus Professor Criminology, California State University Northridge. Professor at other
universities, including UCLA, University of Massachusetts, Harvard, Texas A&M, and Columbia
University.
PHONE/FAX 310.450.-3697 • E-MAIL [email protected]
WEB SITE www.lewyablonsky.com
2311 FOURTH STREET, SUITE 312, SANTA MONICA, CA 90405
EXPERT WITNESS — Claims Consultant
EXPERIENCE
OVER 40 YEARS EXPERIENCE as a claims adjuster, licensed in three states
and qualified in state and federal courts. Expert in good faith/bad faith,
standards and practices and standard in the industry. Specialties in
property/casualty construction defect, fire/water, uninsured/underinsured
motorist, warehouse and cargo claims. Litigation support, case review and
evaluation claim consultation, coverage review and evaluations.
INTEGRITY
HONESTY
3 3 1 0 A I R P O R T AVENUE, S U I T E 2 , S A N T A M O N I C A , C A L I F O R N I A 9 0 4 0 5
Over 35 years research and diverse
expert witness experience.
Accident
Reconstruction
For those
who seek the
highest quality
● LIGHTING & ILLUMINATION
Light Intensity measurements, visual perception, times of
sunset, twilight, moonrise/set.
● PRODUCT FAILURE ANALYSIS
Medical devices, glass, chairs (all types), ladders.
workmanship
from a qualified
expert.
● BIOMECHANICS
Head, neck, spine, and rotator cuff injuries
● TRAFFIC ACCIDENT RECONSTRUCTION
Cars, trucks, pedestrian, bicycle.
● FALL FROM HEIGHT
Stairways, balconies, platform, theatre pit, pole, ladders, chairs.
● SLIP & FALL
Scientific testing of slipperiness on tile, ceramic, walkways,
supermarkets and retail industry.
For a
JOFFREY LONG, CMC
17045 Chatsworth Street, Suite 100, Granada Hills, CA
91344-5845, (818) 366-5200, fax (818) 368-8932, e-mail:
[email protected]. Contact Joffrey Long. Mortgage
lender and broker, with 25 years’ experience, 22 years as
president of a mortgage company. Experienced in residential, construction, and commercial lending, institutional loan
brokerage, private money (hard money) loan brokerage,
loan escrow, trust deed investment, loan servicing, and
foreclosure. Member, Board of Directors, of the California
Contact Gene Evans at E. L. Evans Associates
Phone (310) 559-4005 / Fax (310) 390-9669 / E-mail [email protected]
FREE
consultation
call (714)
526-6661
State of the art equipment and test facility.
Fred M. Johnson, Ph.D
Professor of Physics, Fellow Am. Physical Society, Consultant to ANSI/BIFMA,
Member SAE, ASTM, SATAI, & ICC, Author Textbook + 60 scientific publications.
TELEPHONE (714)
526-6661/FAX (714) 526-6662
POST OFFICE BOX 3011, FULLERTON, CALIFORNIA 92831
Los Angeles Lawyer April 2005 63
YES, you can win
challenging
MED-MAL cases.
Form a Team with a Physician-Attorney
Gunther R. Bauer, M.D., J.D.
Visit
CONSULTANT AND EXPERT WITNESS
Image Processing and Analysis
Digital Signal Processing (DSP)
■ Computer/Machine Vision
■ Software Algorithms
■ Electronics and Electronic Systems
■ Patent Infringement Litigation
■
■
John R. Grindon, D.Sc.
ELECTRICAL ENGINEER
www.bauermdmedmallaw.com
310.377.5557 ■ 310.251.0106 cell
Compension only if recovery
Dr. Grindon is a practicing engineer and
court-qualified testifying expert experienced in
all phases of litigation support.
314-895-4747
[email protected]
www.jrgrindon.com
LEGAL MALPRACTICE, ETHICS AND
FEE DISPUTE EXPERT WITNESS
BOYD S. LEMON, ESQ.
38 YEARS TRIAL EXPERIENCE; RETAINED EXPERT
IN MORE THAN 600 CASES; FORMER MAJOR LAW
FIRM LITIGATION DEPARTMENT CHAIR; STATE BAR
DISCIPLINARY COMMITTEE; ATTORNEY FEE DISPUTE
ARBITRATOR; COURT APPOINTED MEDIATOR.
310/827-0840 • www.legalmalexpert.com
Mortgage Association. Designated as a Certified
Mortgage Consultant by the National Association of
Mortgage Brokers.
MIOD AND COMPANY, LLP CPAs
11600 Indian Hills Road, Building B, Suite 300, Mission
Hills, CA 91345-1225, (818) 898-9911, fax (818) 8989922, 74-478 Highway 111, Suite 254, Palm Desert, CA
92260, (760) 779-0990, fax (760) 779-0960, e-mail: dmiod
@miod-cpa.com. Visit our Web site at www.miod-cpa
.com. Contact Donald John Miod, CPA, ABV, CVA,
CBA. More than 30 years’ experience in litigation support,
including computation of income available for support,
tracing, business valuations, fraud investigations, earnings
loss calculations, and income tax matters. Our firm is very
computer-oriented, involving the use of computer graphics. We are members of the Institute of Business Appraisers, the International Society of CPAs (founding member),
the American Institute of CPAs, and California Society of
CPAs. See display ad on page 61.
FINANCE
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and gift
tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations.
See display ad on page 47.
FIRE/EXPLOSIONS
BOARD CERTIFIED ORTHOPEDIC SURGEON
MARC J. FRIEDMAN, M.D.
6815 Noble Avenue, Van Nuys, California 91405
Tel. 818.901.6600 ext. 2810 • Fax: 818.901.6685 • Email: [email protected]
Web Site: www.scoi.com
Education: Princeton University and Cornell Medical School
Certificate: Board Certified Orthopedic Surgeon
Memberships: Fellowship Sports Medicine
Fellow American Academy of Orthopedic Surgeons
Fellow in the Arthroscopy Association of North America
Fellow in the International Arthroscopy Association
Fellow in the International Knee Society
Fellow in the American Orthopedic Society of Sports Medicine
ACL Study Group
Certified QME, IME, AME
Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of
the Knee and Shoulder, and Knee Replacement
Appointments: Assistant Clinical Professor, Division of Orthopedics,
UCLA School of Medicine, Chairman, Education Committee
Arthroscopy Association of North America 1997-1999
World Cup Soccer Team Physician, 1985
Physician Specialist XXIII Olympiad 1984
Orthopedic Consultant–New York Knicks and Jets 1978-1985
Publications: 60 Publications including handbook for Orthopedic Surgeons
on Prosthetic Ligament Reconstruction of the Knee
Presentations: Lectures extensively with over 375 presentations worldwide
64 Los Angeles Lawyer April 2005
THE MCMULLEN COMPANY, INC.
1260 Lake Boulevard, Suite 250, Davis, CA 95616, (530)
757-1291, fax (530) 757-1293, e-mail: [email protected].
Web site: www.themcmullencompany.com. Contact
James F. McMullen. Former California state fire marshal.
Fire/building code analysis, code compliance inspections,
fire cause and origin investigation, fire services management review, emergency management planning and training, hazardous materials programs, and fire safety-related
product analysis. Forensic fire expert and litigation
consultation.
RIMKUS CONSULTING GROUP, INC.
333 City Boulevard West, Suite 1805, Orange, CA 92868,
(877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski
@rimkus.com. Web site: www.rimkus.com. Contact Curt
Yaworski. Rimkus Consulting Group is a full-service forensic consulting firm. Since 1983, we have provided reliable
investigations, reports and expert witness testimony
around the world. Our engineers and consultants analyze
the facts from origin and cause through extent of loss. Services: construction defect and dispute analysis, vehicle accident reconstruction, fire cause and origin, property evaluation, mold evaluations, indoor air quality assessments,
biomechanical analysis, product failure analysis, foundation
investigations, industrial accidents and explosions, water
intrusion analysis, geotechnical evaluations, construction
accidents, construction disputes, financial analysis and assessments, forensic accounting, HVAC analysis, electrical
failure analysis, and video/graphics computer animation.
See display ad on page 65.
FOOD SAFETY/HACCP
JEFF NELKEN, MA, RD
20938 De Mina Street, Woodland Hills, CA 91364, (818)
703-7147, e-mail: [email protected]. Web site: www
.foodsafetycoach.com. Contact Jeff Nelken, MA, RD.
Food safety expert knowledgeable in both food safety and
hazard analysis critical control point program development.
Specializes in expert witness testimony and litigation consultant in matters regarding food safety, HACCP, crisis
management, food-borne illness, health department representation, and customer complaints. Performs inspections,
vendor audits, and training. Hands-on food safety consultant for restaurants, manufacturers, distributors, country
clubs, schools, nursing homes, and casinos. NRA and NSF
HACCP certified instructor. Thirty years of food and hospitality experience. Registered as a food handler instructor
with the Los Angeles County Health Department.
Provider # 015.
FORENSIC ACCOUNTING
BALLENGER, CLEVELAND & ISSA, LLC
10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA
90024, (310) 873-1717, fax (310) 873-6600. Contact
Bruce W. Ballenger, CPA, executive managing director. Services available: assist counsel in determining overall strategy. Help evaluate depositions and evidence. Provide well-prepared, well-documented, and persuasive incourt testimony regarding complicated accounting, financial, and business valuation matters, fairness of interest
rates, feasibility of reorganization plans, fraudulent conveyances, bankruptcies, mergers and acquisitions, and
management misfeasance/malfeasance. More than 100
open-court testimonies, federal and state, civil and criminal. See display ad on page 48.
Insurance Bad Faith Expert
Clinton E. Miller, J.D., BCFE
Author: How Insurance Companies Settle Cases
39 YEARS EXPERIENCE
Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide
• Coverage Disputes • Customs and Practices in the Claims Industry
• Good Faith/Bad Faith Issues
(408) 279-1034 ■ FAX (408) 279-3562
DESMOND MARCELLO AND AMSTER
Southern California Office: 6060 Center Drive, Suite 825,
Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400,
fax (310) 216-0800. Northern California Office: 228 Bush
Street, 16th Floor, San Francisco, CA 94104, (415) 4398390, fax (415) 439-8391. Web site: www.dmavalue.com.
Contact Wes Nutten, Aaron Amster, or Madeleine
Mamaux. Litigation consulting, forensic accounting, expert
witness testimony, class action claims administration services, and business valuation services. Staff qualifications
include CPA, CMA, ABV, CFA, and ASA designations.
Testimony experience in numerous court jurisdictions. Established in 1968. See display ad on page 52.
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 2.
GUMBINER, SAVETT INC.
723 Cloverfield Boulevard, Santa Monica, CA 90404, (310)
828-9798, fax (310) 829-7853, e-mail: rgreene@gscpa
.com. Contact Ronald S. Greene, Executive Vice
President. Expert witness testimony, lost profits and damages calculations, assets and income tracing, fraud analyses and audits, family law accounting, business valuations,
income tax and estate tax support, standard of care analyses, and royalty and contract audits.
NANCY A. KEARSON, CPA, ABV, CVA, DABFA
1801 Century Park East, Suite 2400, Los Angeles, CA
90067, (310) 785-9614, fax (310) 277-1278, e-mail:
[email protected]. Contact Nancy Kearson. Costeffective, timely expert witness/consultation services, investigative forensic accounting, asset tracing, shareholder
and partner disputes, business valuation, and professional
practice appraisal. Frequent lecturer on forensic accountLos Angeles Lawyer April 2005 65
ing and business valuation. Director, California Society of
CPAs-LA. Past officer, Family Law Section. Certified Public
Accountant; Accredited in Business Valuation, Certified
Valuation Analyst, Diplomate of the American Board of
Forensic Accountants.
VICENTI, LLOYD & STUTZMAN LLP
2210 East Route 66, Glendora, CA 91740, (626) 8577300, fax (626) 857-7302, e-mail: [email protected].
Web site: www.vlsllp.com. Contact Royce Stutzman,
CVA, CPA, Chairman. Our certified professionals serve
as consultants and experts in business valuations and litigation support. We conduct valuations related to mergers
and acquisitions, buy-sell agreements, purchase/sale of
closely held businesses, partner disputes, etc. Our forensic
accounting experts assess the amount of an economic
loss, whether it be business interruption from casualty, unfair competition, condemnation, damage caused by others, or loss of earnings from various events. Our fraud investigation team reviews documentation, interviews witnesses and suspects, and assesses evidence to resolve
allegations. We provide expert witness testimony and implement fraud prevention programs. VLS Celebrates 52
Years of Quality Service!
FORENSIC COMPUTER EXAMINER
DATACHASERS, INC.
P.O. Box 2861, Riverside, CA 92516-2861, (877) Data
Exam, (877) 328-2392, (951) 780-7892, fax (951) 7809199, e-mail: [email protected]. Web site: www
.datachasers.com. Contact Rick Albee. Hard drive imaging, use assessment and auditing, intellectual property and
trade secret disputes, restore hidden, deleted, or lost files
and images, file dates when created, modified, or deleted,
Internet history and e-mail recovery, computer use auditing
and evaluations, human resources, employer/employee
exams, experienced expert witness and special master
and full computer laboratory. Many years of public sector
experience. Multiple certifications. Prior law enforcement.
See display ad on page 48.
FRAUD INVESTIGATIONS
DESMOND MARCELLO AND AMSTER
Southern California Office: 6060 Center Drive, Suite 825,
Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400,
fax (310) 216-0800. Northern California Office: 228 Bush
Street, 16th Floor, San Francisco, CA 94104, (415) 4398390, fax (415) 439-8391. Web site: www.dmavalue.com.
Contact Wes Nutten, Aaron Amster, or Madeleine
Mamaux. Litigation consulting, forensic accounting, expert
witness testimony, class action claims administration services, and business valuation services. Staff qualifications
include CPA, CMA, ABV, CFA, and ASA designations.
Testimony experience in numerous court jurisdictions. Established in 1968. See display ad on page 52.
STONEFIELD JOSEPHSON, INC.
1620 26th Street, Suite 400 South, Santa Monica, CA
90404, (310) 453-9400, fax (310) 453-1187, e-mail:
[email protected]. Web site: www.sjaccounting
.com. Contact Jeffrey Sumpter, director of financial
recovery. Stonefield Josephson, Inc. is a California-based
certified public accounting and business advisory firm
founded in 1975. Our services include assurance/accounting, business consulting (profit enhancement, finance
sourcing, mergers and acquisitions, family-owned business, succession planning, executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax consulting and compliance. Service area: throughout the United States and internationally. See display ad on page 11.
GEOLOGY
COTTON, SHIRES AND ASSOCIATES, INC.
330 Village Lane, Los Gatos, CA 95030-7218, (408) 3545542, fax (408) 354-1852, e-mail: bcotton@cottonshires
.com. Web site: www.cottonshires.com. Contact William
66 Los Angeles Lawyer April 2005
R. Cotton. Full-service engineering geologic and geotechnical engineering consulting firm specializing in investigation, design, arbitration, and expert witness testimony with
offices in Los Gatos and San Andreas, California. Earth
movement (settlement, soil creep, landslides, tunneling and
expansive soil), foundation distress (movement and cracking of structures) drainage and grading (seeping slabs and
ponding water in crawlspace), pavement and slabs (cracking and separating), retaining walls (movement, cracking
and failures), pipelines, flooding and hydrology, design and
construction deficiencies, expert deposition, settlement
conference and trial testimony.
GERONTOLOGY
GEROBIZ
9040 Harratt Street, #10, West Hollywood, CA 90069,
(310) 858-8956, e-mail: [email protected]. Contact
Wendy Goldman, MBA/MS Gerontology. Specializing
in business gerontology, a relatively new social science
discipline focusing on problems of an aging workforce, including analysis of an organization’s policies and practices
to identify areas of potential harmony and/or conflict with
accepted business practices. Emphasis on reducing employer liability for age discrimination in employment lawsuits, improving workforce diversity, analysis of employee
handbooks and benefits material for “age friendly” communications. Age discrimination, pension benefits evaluation,
and wrongful termination. Mediation training with L.A. District Attorney’s office.
GOLF COURSE
THE PIRKL ASSOCIATION
33752 Bridgehampton Drive, Dana Point, CA 92629, (949)
248-7098, fax (949) 248-7098, e-mail: [email protected]. Web
site: www.golfexpertwitness.com. Contact Gerald Pirkl.
Golf course architect with over 35 years experience on
over 100 projects, in golf course planning, design, layout,
construction supervision, and expert witness service. Registered landscape architect with an engineering background. Member of the American Society of Golf Course
Architects, United States Golf Association, American Society of Landscape Architects, Golf Course Superintendents
Association, etc. Expert areas of litigation—cart paths, errant golf balls, adjoining property conflicts, course design
and layout, fencing and netting, course construction, etc.
(over 150 cases).
HEALTHCARE
SINAIKO HEALTHCARE CONSULTING, INC.
1100 Glendon Avenue, Suite 1800, Los Angeles, CA
90024, (310) 826-4935, fax (310) 826-4212, e-mail:
[email protected]. Web site: www.sinaikohc.com.
Contact Jeff Sinaiko. Sinaiko is a nationally recognized
healthcare consulting firm. Our professionals are handpicked for their broad understanding of the industry, detailed expertise and superior communication skills. Clients
have found this expertise invaluable in litigation support
where there is no substitute for experience. Sinaiko’s litigation support practice includes, among others, industry standard practices evaluations: Medicare/Medicaid fraud;
provider/payor payment disputes; business valuation; transaction disputes; and facility and professional fee billing.
HEIR SEARCH SERVICE
AMERICAN RESEARCH BUREAU
Offices in Los Angeles, Salt Lake City, Fort Lauderdale,
and New York. (800) 628-7221, fax (800) 446-2626, email: [email protected]. Web site: www.arb.com. Contact
Thomas Nelson. International probate research since
1935. American Research Bureau (ARB) identifies and locates missing and unknown heirs. ARB performs a complimentary initial evaluation, provides a written quote with
deadline and prepares all needed documentation, including certified records, a genealogical chart, and declarations. Fees can be structured in various ways to best meet
the needs of your situation. CA State licensed PI # 11726.
Service area: United States and most foreign countries.
HOTEL
MAURICE ROBINSON & ASSOCIATES LLC
880 Apollo Street, Suite 125, El Segundo, CA 90245,
(310) 640-9656, fax (310) 640-9276, e-mail: maurice
@mauricerobinson.com. Web site: www.mauricerobinson
.com. Contact R. Maurice Robinson, president. Hotel
and real estate industry business issues, including market,
economic and financial feasibility, valuation, and disputes
between owner-operator, borrower-lender, and franchisorfranchisee. Fluent in management contracts, license agreements, ground and building leases, partnership and JV
agreement, concession contracts, development agreements, and loan docs. Can estimate damages and appraise
property values under multiple scenarios. Expert witness
testimony, litigation strategy, consultation and support, damage calculations, lost profits analysis, real estate appraisals,
deal structuring, workouts, new development, strategic
planning, market demand assessment, acquisition due diligence, and economic, financial, and investment analysis.
HUMAN FACTORS
D. WYLIE ASSOCIATES
P.O. Box 60836, Santa Barbara, CA 93160, (805) 6819289, fax (805) 681-9299. Web site: www.drivingfatigue
.com. Contact Dennis Wylie. Internationally recognized
human factors expert on driver error, inattention, fatigue,
car, truck, and bus driver skill and knowledge requirements, driver and motor carrier standards of care, hours of
service violations, circadian rhythms, sleep debt, impaired
vigilance, alertness, decision making, reaction time, and
control responses. See display ad on page 59.
HAYNIE & COMPANY, CPAS
4910 Campus Drive, Newport Beach, CA 92660, (949)
724-1880, fax (949) 724-1889, e-mail: sgabrielson
@hayniecpa.com. Web site: www.hayniecpa.com. Contact Steven C. Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages, ownership disputes, economic analysis,
business valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination,
professional liability, and expert cross examination. Extensive public speaking background assists in courtroom presentations.
INFERTILITY
GIL N. MILEIKOWSKY, MD, FACOG
Offices in Encino and Beverly Hills, 29341⁄2 Beverly Glen
Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or
(818) 981-1888, fax (310) 858-1303 or (818) 981-1994.
Web site: www.baby4you.net. Contact Gil N.
Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparoscopy, and reproductive endocrinology. Diplomate, board
certified by the American Board of OB/GYN. Board eligible,
American Board of Reproductive Endocrinology Division.
Fellow, American College of OB/GYN (FACOG). Member of
the American Society for Reproductive Medicine, Society
of Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge Hospital, former Chairman Laser and Safety Committee at Northridge
Hospital and member of the Los Angeles County Medical
Association. Author, numerous scientific papers and articles published in peer review journals. Former clinical instructor at USC. Former clinical assistant professor,
OB/GYN at UCLA. See display ad on page 67.
INSURANCE
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail: info
@mcsassociates.com. Web site: www.mcsassociates
.com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and real
estate consulting group (established 1973). Experienced
litigation consultants/experts include senior bankers,
lenders, consultants, economists, accountants, insurance
underwriters/brokers. Specialties: lending customs, prac-
tices, policies, in all types of lending (real estate, business/commercial, construction, consumer/credit card),
banking operations/administration, trusts and investments,
economic analysis and valuations/damages assessment,
insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance.
BERINGER & ASSOCIATES, INC.
2182 Dupont Drive, Suite 202, Irvine, CA 92612, (949)
752-0270, fax (949) 752-0503, e-mail: jmberinger
@beringerassociates.com. Contact John M. Beringer,
Jr. LPCS, RPA. B&A assists with insurance litigation, including both bad faith and Code of Reg 2695; analysis of
claims control systems and insurance carrier management
and business claim management systems. B&A assists
with the creation of risk management plans. B&A is a consultant to Creative Solutions, SPC, a Captive reinsurance
carrier. He consults for IMMS, IRMA. Credentials include
an LPCS and RPA. He is a member of SCLA, The National
Association of Insurance Litigation Managers (NAILM) and
published in Litigation Matters, the Property and Casualty
Newsletter and Close Up. Mr. Beringer’s carrier employment includes SRS (Hartford), Great American, ACSC and
WIIC, spanning approximately 30 years.
THE CAPANALYSIS GROUP, LLC
550 South Hope Street, Suite 1050, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for
complex litigation, arbitration, regulatory proceedings, and
strategic corporate decision making. Assist attorneys with
discovery, identification of relevant economic and financial
issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state
courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market
definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright
infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers
and acquisitions, and securities fraud. Degrees/licenses:
CPAs, CFEs, CVAs, JDs, PhDs economics.
— EXPERT WITNESS IN —
INFERTILITY, GYNECOLOGY & OBSTETRICS
IVF (In Vitro Fertilization) • LASER SURGERY •
LAPAROSCOPY • REPRODUCTIVE ENDOCRINOLOGY
GIL N. MILEIKOWSKY, M.D., FACOG
OFFICES: Encino and Beverly Hills
2934 1/2 Beverly Glen Circle #373, Bel Air, CA 90077
TEL (310) 858-1300 • FAX (310) 858-1303
TEL (818) 981-1888 • FAX (818) 981-1994
Web site: www.baby4you.net
Please see listing under INFERTILITY, OBSTETRICS AND GYNECOLOGY, and PEER REVIEW for information.
ACCREDITED PSYCHIATRY & MEDICINE
Distinguished Harvard Faculty and Alumni
Expert Testimony and Multi-Specialty Consulting Teams
Active Clinicians, P/D, Qualified to testify in state and federal courts
CA References
voice (617)
492-8366 fax (617) 441-3195
[email protected] • www.forensic-psych.com
E.L. EVANS ASSOCIATES
3310 Airport Avenue, Box # 2, Santa Monica, CA 90405,
(310) 559-4005, fax (310) 390-9669, e-mail: elevans66
@yahoo.com. Contact Gene Evans. Good faith/bad faith.
Over 45 years’ experienceclaims adjuster. Standards
and practices in the industry, litigation support, claims consultation, case review and evaluation, property/casualty
claims, construction claims, uninsured/underinsured motorist claims, general liability, fire/water/mold claims, damage assessment, professional liability claims, appraisal
under policy, arbitration, duty to defend, advertising claims,
coverage applications, and suspected fraud claims. CV
available on request. See display ad on page 63.
LAUNIE ASSOCIATES, INC.
1165K Tunnel Road, Santa Barbara, CA 93105, (805) 5699175, fax (805) 687-8597, e-mail: [email protected]. Contact Joseph J. Launie, PhD, CPCU, insurance professor, author and consultant. Over 25 years’ experience
as expert witness in state and federal courts. Coauthor of
books and articles on underwriting, insurance company
operations, and punitive damages. Consulting, expert witness on underwriting, company and agency operations,
and bad faith.
CLINTON E. MILLER, JD, BCFE
502 Park Avenue, San Jose, CA 95110, (408) 279-1034,
fax (408) 279-3562, e-mail: [email protected]. Contact
Clint Miller. Insurance expert regarding claims, underwriting, agent and brokers errors and omissions, coverage disputes, customs and practices, and bad faith. See display
ad on page 65.
Los Angeles Lawyer April 2005 67
THOMAS & ELLIOTT
12400 Wilshire Boulevard, Suite 400, Los Angeles, CA
90025, (310) 571-2727, fax (310) 207-0900, e-mail:
[email protected]. Web site: www.thomasandelliott.com.
Contact Deborah Stone. Coverage analysis of liability,
property, auto, malpractice, health, disability, life, title, and
fidelity insurance. Duty to defend, reservation of rights,
Cumis, bodily injury, property damage, business torts, privacy, bad faith, reasonableness of attorney’s fees, and defense cost reimbursement claims.
BARRY ZALMA, INC.; ZALMA INSURANCE
CONSULTANTS
4441 Sepulveda Boulevard, Culver City, CA 90230, (310)
390-4455, fax (310) 391-5614, e-mail: [email protected].
Web site: www.zalma.com or www.zic.bz. . Contact
Barry Zalma. Insurance coverage, insurance fraud, insurance claims, insurance bad faith consultant, and expert
witness. Author of Construction Defects: Litigation and
Claims, Insurance Claims—A Comprehensive Guide and
Mold: A Comprehensive Claims Guide.
INSURANCE BAD FAITH
DAVID F. PETERSON
10681 Encino Drive, Oak View, CA 93022, (805) 6498557, fax (805) 649-5957, e-mail [email protected].
Contact David F. Peterson. Fourteen years of claim experience. Twenty-five years as a bad faith and coverage
attorney. Qualified and testified in over 57 trials on bad
faith (first and third party), underwriting, legal malpractice,
coverage, and advice of counsel. Testimony in federal and
state courts in California, Arizona, Nebraska, Nevada, Saint
Lucia, West Indies, and U.S. Virgin Islands for insureds and
insurers.
INTELLECTUAL PROPERTY
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and gift
tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations.
See display ad on page 47.
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Miguel Drive, Suite 130, Newport Beach, CA 92660, (949)
219-9816, fax (949) 219-9095, e-mail: expert@wzwlw
.com. Contact Barbara Luna, Drew Hunt, Paul White,
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax
planning and preparation and mergers and acquisitions.
Testified hundreds of times as expert witnesses. Prior Big
Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation,
asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real
estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 45.
68 Los Angeles Lawyer April 2005
INTELLECTUAL PROPERTY/PATENTS
vices. In business since 1982. Spanish investigators.
JOHN R. GRINDON ASSOCIATES
P.O. Box 4067, Hazelwood, MO 63042, (314) 895-4747,
fax (314) 895-0830, e-mail: [email protected]. Web site:
www.jrgrindon.com. Contact John R. Grindon, DSc. Dr.
Grindon is a court-qualified expert witness and consultant
with experience in patent litigation cases. Services offered
include expert testimony, consulting, discovery research
and patent analysis in the areas of electronics, electronic
imaging, machine vision, signal processing, guidance and
control, and related systems and software algorithms. He
has extensive experience as a practicing engineer in these
fields, and is skilled in communicating technical matters in
clear language for expert reports and courtroom presentations. See display ad on page 64.
LAW ENFORCEMENT/SECURITY
INTERNAL MEDICINE/PULMONARY
STEVEN M. SIMONS, MD
435 North Roxbury Drive, Suite 311, Beverly Hills, CA
90210, (310) 274-7303, fax (775) 249-8082, e-mail: simon
@cshs.edu. Web site: www.simonsmd.com. Pulmonary
diseases, critical care, internal medicine. Twenty years’ experience—defense and plaintiff. Particular interests include
asthma, pulmonary embolism, and deep venous thrombosis pneumonia. Clinical professor, UCLA, former chief of
staff, chief of pulmonary, chief of medicine—Cedars-Sinai.
INVESTIGATIONS
DANIEL R. SULLIVAN, DEPUTY CHIEF,
LAPD, RET.
76766 Daffodil Drive, Palm Desert, CA 92211, (818) 5902486, e-mail: [email protected]. Web site: www
.investigativeservices.com. Contact Dan Sullivan. Expert
witness—use of force/police practices, event/facility security—consultant to cities of Los Angeles, Beverly Hills, U.S.
Department of Justice. Qualified as expert over 150 times
in superior/federal courts.
LEGAL MALPRACTICE
PHILLIP FELDMAN, BS, MBA, JD
15250 Ventura Boulevard, Suite 610, Sherman Oaks, CA
91403-3287, (310) LEG MALP (534-6257), fax (818) 9861757, e-mail: [email protected]. Web site: www
.legalmalpracticeexperts.com. Contact Phillip Feldman,
BS, MBA, JD. Board certified in professional negligencelegal et al by CA, ABA, ABPLA. Former Judge Pro Tem,
State Bar Prosecutor, Fee Dispute Arbitrator. Thirty-seven
years as litigator/transactional attorney, supervising partner. Never failed to qualify or disqualified, and 23 years as
expert. Any standard of care, conduct, causation, fiduciary
duty or fee dispute issues. Any transaction. Any litigation.
Any underlying case. (Also defends lawyers before the
State Bar).
BENCHMARK INVESTIGATIONS
32158 Camino Capistrano, # A-415, San Juan
Capistrano, CA 92675, (800) 248-7721, fax (949)
248-0208, e-mail: [email protected]. Web site: www
.BenchmarkInvestigations.com. Contact Jim Zimmer,
CPI. National agency. Professional investigations with emphasis upon accuracy, detail, and expedience. Asset/financial searches, background investigation, DMV searches,
domestic/marital cases, due diligence, process service,
surveillance/photograph, witness location, and statements.
LA branch plus correspondents nationwide. Multilingual
agents. Fully insured.
BOYD S. LEMON
330 Washington Boulevard, Suite 420, Marina del Rey, CA
90292, (310) 827-0840, fax (310) 827-7890. Contact
Boyd S. Lemon. Experienced expert witness in legal malpractice and attorney fee dispute cases, 38 years of business trial experience, extensive malpractice litigation experience, retained expert witness in over 600 cases, former
litigation department chairman major law firm, State Bar
disciplinary committee, and court appointed mediator and
arbitrator. See display ad on page 64.
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors and
industry specialists. Our analysis and research combined
with unique presentation techniques have resulted in an
unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis,
lost profit studies, business and intangible asset valuations,
appraisals, fraud investigations, statistics, forensic economic analysis, royalty audits, strategic and market assessments, computer forensics, electronic discovery, and
analysis of computerized data. Degrees/licenses: CPAs,
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ROUGHAN & ASSOCIATES AT LINC.
41 East Foothill Boulevard, Suite 102, Arcadia, CA 91006,
(626) 462-9675, fax (626) 462-9679, e-mail: [email protected]
Contact Jan Roughan. Specialties: Roughan & Associates at LINC is a case management and medical/legal
consulting firm. Services/products offered include 1) Life
care planning/future medical costs, 2) Expert testimony, 3)
Independent medical evaluation (IME) specialists identification, merit analysis. Medical chronologies, attendance at
IMEs/mediation/arbitrations, and settlement conferences.
ROBERT D. JONES INVESTIGATIONS
263 West Olive, Suite 330, Burbank, CA 91502, (818) 5585045, fax (818) 558-6976, e-mail: bjonespi2002@yahoo
.com. Web site: www.burbankinvestigators.com. Contact
Bob Jones. Investigative services for attorneys, insurance
companies, corporations, and individuals. Services include
witness locates, pre-trial preparation, evidence collection,
background checks, asset search, and fraud. Other services include domestic/spousal investigations, interviews
and witness statements.
SPECIALIZED INVESTIGATIONS
14530 Delano Street, Van Nuys, CA 91411, (818) 9099607, fax (818) 782-3012, e-mail: [email protected]. Web
site: www.specialpi.com. Contact Richard Harer. Trial
preparation, locates, statements, insurance, workers’ compensation, surveillance, employment/labor, civil, criminal,
asset searches, background checks, and information ser-
LIFE CARE PLANNING/CRITIQUE
LITIGATION
THE CAPANALYSIS GROUP, LLC
550 South Hope Street, Suite 1050, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
[email protected]. Web site: www.capanalysis
.com. Contact Laura Robinson, PhD. Specialties: economic, financial, accounting, and statistical analysis for
complex litigation, arbitration, regulatory proceedings, and
strategic corporate decision making. Assist attorneys with
discovery, identification of relevant economic and financial
issues, preparation of analytical models, critique of opposing experts, and expert testimony in federal and state
courts, and before the FTC and DOJ. Areas of expertise include antitrust (including cutting-edge analyses of market
definition, market power, coordinated interactions, and unilateral effects), economic damages, business valuation, investigative and forensic accounting and auditing, intellectual property (including patent, trademark, and copyright
infringement, and valuation of intellectual property), insurance coverage, contract disputes and tort claims, mergers
and acquisitions, and securities fraud. Degrees/licenses:
CPAs, CFEs, CVAs, JDs, PhDs economics.
CHARLES RIVER ASSOCIATES INCORPORATED
1055 East Colorado Boulevard, Suite 420, Pasadena, CA
91106-2327, (626) 564-2000, fax (626) 564-2099. Web
site: www.crai.com. Contact John Hirshleifer, vice
president. CRA provides economic, financial, and business analysis in such areas as antitrust, contracts, damages, energy, environment, entertainment, healthcare, intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry experts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial preparation and testimony) to attorneys, executives, and government officials the world over. See display ad on
page 51.
ECON ONE RESEARCH, INC.
601 West 5th Street, 5th Floor, Los Angeles, CA 90071,
(213) 624-9600, fax (213) 624-6994, e-mail: lskylar
@econone.com. Web site: www.econone.com. Contact
Lisa Skylar, general manager. Econ One is an economic research and consulting firm of over 40 professionals with extensive experience with the litigation process.
We understand the need for clear, accurate, persuasive
answers to complex problems. We work with our clients to
keep our efforts focused on necessary tasks, with close attention to costs. We provide economic analysis and expert
testimony in many areas, including: antitrust, contract disputes, damages analysis/calculations, intellectual property
and patent infringement, market analysis, regulation, stock
price analysis and unfair competition. Industry specialties
include energy, biotechnology, computer hardware and
software, manufacturing, telecommunications, and financial services.
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and gift
tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations.
See display ad on page 47.
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MECHANICAL ENGINEERING
CTG FORENSICS, INC.
16 Technology Drive, Suite 109, Irvine, CA 92618,
(949) 790-0010, fax (949) 790-0020, e-mail: mlewis
@CTGforensics.com. Web site: www.CTGforensics.com.
Contact Dr. Malcolm Lewis, PE. Construction related
engineering, plumbing, mechanical (heating, ventilating,
A/C) and electrical (power, lighting), energy systems, residential and nonresidential buildings, construction defects,
construction claims, and mold.
MEDICAL
AMFS, INC. (AMERICAN MEDICAL FORENSIC
SPECIALIST)
2640 Telegraph Avenue, Berkeley, CA 94704, (800)
275-8903, (510) 549-1693, fax (510) 486-1255, e-mail:
[email protected], Web page: www.amfs.com.
Contact Barry Gustin, MD, MPH, FACEP. AMFS is a
physician and attorney managed company that provides
initial in-house case screenings by 72 multidisciplinary
physician partners. Medical experts are matched to meet
case requirements by AMFS Physician Partners from our
panel of over 3,500 carefully prescreened board-certified
practicing specialists in California. All recognized medical
specialties. Plaintiff and defense. Fast, thorough, objective,
Los Angeles Lawyer April 2005 69
and cost-effective. Medical negligence, hospital and managed care, personal injury, product liability, and toxic torts.
“A 92 percent win record” –California Lawyer magazine.
See display ad on page 77.
GUNTHER RENE BAUER, MD, JD
4030 Palos Verdes Drive North, Suite 207, Rolling Hills
Estates, CA 90274, (310) 377-5557, fax (310) 541-9415,
cell (310) 251-0106, e-mail: [email protected]. Web
site: www.bauermdmedmallaw.com. Contact Gunther
R. Bauer, MD, JD. Diplomate, American Board of OBGyn, quality assurance/utilization review and forensic examiners/medicine. Member, California Bar, Health
Lawyers Association, and American College of Legal Medicine, 25 plus years in Clinical OB-Gyn, clinical teaching
background, consultant-medical legal issues, hospital
care, evaluation of cases for merit (CCP128.7), in-depth
discussion of cases after review of medical records and
discovery material, complete medical research of cases,
litigation support/deposition, and trial preparation. Experienced. References available. See display ad on
page 64.
BEHROOZ (BRUCE) BROUKHIM, MD
10640 Riverside Drive, North Hollywood, CA, 9763 West
Pico Boulevard, Los Angeles, CA, (818) 755-6500, (310)
552-1488 (LA), fax (818) 980-7144. Contact Angelina
Urquhart, MD. Board-certified orthopedic surgeon.
Shoulder, knee, and hip surgery, arthroscopic surgery,
neck and back injury evaluation and treatment, personal
injury, workers’ compensation, QME, IME, and AME.
Member: American Academy of Orthopedic Surgeons,
American Board of Ortho Surgeons, Arthroscopic Association of North America, International Society of
Arthroscopy, Knee Surgery and Ortho Sports Medicine.
Twenty-five years of experience in orthopedic medical
legal work and expert testimony. See display ad on
page 61.
ROUGHAN & ASSOCIATES AT LINC.
41 East Foothill Boulevard, Suite 102, Arcadia, CA 91006,
(626) 462-9675, fax (626) 462-9679, e-mail: [email protected]
Contact Jan Roughan. Specialties: Roughan & Associates at LINC is a case management and medical/legal
consulting firm. Services/products offered include 1) Life
care planning/future medical costs, 2) Expert testimony, 3)
Independent medical evaluation (IME) specialists identification, merit analysis. Medical chronologies, attendance
at IMEs/mediation/arbitrations, and settlement conferences.
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MEDICAL/DERMATOLOGY
STANLEY M. BIERMAN, MD, FACP
2080 Century Park East, #1008, Los Angeles, CA 90067,
(310) 553-3567, fax (310) 553-4538, e-mail: sbiermanmd
@aol.com. Contact Stanley Bierman, MD. Dr. Bierman
is an expert witness in matters relating to diagnosis and
treatment of skin cancers as well as matters relating to
sexually transmitted diseases. Dr. Bierman is Honorary
Associate professor of medicine and past president of Los
Angeles Dermatologic Society.
70 Los Angeles Lawyer April 2005
MEDICAL/EMERGENCY MEDICINE
BERNARD T. MCNAMARA, MD
409 North Pacific Coast Highway, Suite 923, Redondo
Beach, CA 90277, (310) 480-4770, fax (310) 943-3274,
e-mail: [email protected]. Contact Bernard
T. McNamara, MD. Current practice, full time emergency
medicine, and assistant clinical Professor of Medicine.
Over 20 years experience in the practice of emergency
medicine, infectious diseases, and HIV/AIDS. Experience
in medical malpractice for both plaintiff and defense.
Board certified, emergence medicine since 1987; Board
certified, infectious disease since 1984; Board certified, international medicine since 1980. Degrees/licenses: MD;
Fellow, American College of Physicians; Fellow, American
College of Emergency Medicine; Member, American
Academy of Emergency Medicine; and member, Infectious Disease Society of America; LACMA & CMA; Lic:
(CA, WA); CA Lic-G36838 since 1978, WA LicMD00041205 since 2002.
BRUCE WAPEN, MD
EMERGENCY MEDICINE EXPERT
969-G Edgewater Boulevard, Suite 807, Foster City, CA
94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail:
[email protected]. Web site: www.DrWapen
.com. Contact Bruce Wapen, MD. Board-certified
emergency physician and experienced public speaker offers consultation, chart review, and testimony as an expert
witness for defense or plaintiff involving litigation arising
from the emergency department. See display ad on
page 71.
MEDICAL/ENDOCRINOLOGY
RICHARD D. HORNICHTER MD
450 North Bedford Drive, Suite 209, Beverly Hills, CA
90210, (310) 274-7336, fax (310) 858-6972, e-mail:
[email protected]. Web site: www
.diabetesdoc.com. Contact Richard D. Hornichter,
MD. Diabetes and endocrinology. Diabetes and associated complications: amputation, retinopathy, vascular etc.
Experienced in medical record review, opinion, and expert
witness testimony. CV and prior medical/legal experience
data available. Clinical Assoc. Prof. UCLA. Degrees/licenses: MD (CA & TX).
Young Investigator (1997), UCLA Neurology Teaching
Awards (1994, 1996), American Academy Neurology Research (1991), Brown University Sigma XI (1989), and research/publications (14), lectures (180).
MEDICAL/PATHOLOGY
LESTHER WINKLER, MD
Encino-Tarzana Regional Medicine Center Pathologist.
(consulting emeritus status) 10155 Topeka Drive, Northridge, CA 91324, (818) 349-8568, fax (818) 993-9701.
Contact Lesther Winkler, MD. Specialties: surgical and
autopsy pathology, clinical pathology. Forty years of experience in reviewing medical records (hospital records, office
records) with emphasis on pathology aspects, gross and
microscopic, and relationships to general medical and hospital care. Experience with hospital bylaws, rules, and regulations, consent issues, and medical staff privileges. Also
experienced in hospital healthcare law, medical, hospital,
and “outside” ethical medical issues. Helped establish concepts and chaired hospital ethics committees for more
than 10 years. Represented physicians before California
Medical Board when requested by attorneys. Degrees/licenses: MD. See display ad on page 72.
MEDICAL/PLASTIC AND COSMETIC
RECONSTRUCTIVE SURGERY
JOHN M. SHAMOUN, MD, FACS, INC.
360 San Miguel, Suite 406, Newport Beach, CA 92660,
(949) 759-3077, fax (949) 759-5458, e-mail: jmshamoun
@aol.com. Web site: www.ideallook.com. Contact
Yvonne. Specialties: only plastic surgeon in the United
States board certified by the 1) American Board of
Surgery, 2) American Board of Plastic Surgery, 3) American Board of Facial Plastic and Reconstructive Surgery,
and 4) American Board of Forensic Medicine. Extensive experience in all aspects of cosmetic, plastic, and reconstructive surgery of the breast, nose, face, eye, and body.
Well-published author of several textbook chapters and
journal articles related to above topics. Extensive experience in medical malpractice case review, consultation,
written evaluation and testimony in depositions and trial for
plaintiff and defense. Articulate subspecialty consultant
with up-to-date knowledge and expertise of plastic surgery
literature and standards of care. Opinions supported by
extensive subspecialty education, training, and experience.
MEDICAL/NEUROLOGY
MEDICAL/RHEUMATOLOGY
ROGER V. BERTOLDI, MD
8610 South Sepulveda Boulevard, Suite 200, Los Angeles, CA 90045-4810, (310) 670-5555, fax (310) 670-9222.
Web site: www.bol.ucla.edu/~rbertold. Contact Leslie.
Traumatic brain injury (TBI): Neuro behavior-anatomicalfunctional (PET, brain-mapping, neuropsychological)
workup and treatment. Diplomate (ABPN) qualification in
clinical neurophysiology: electrodiagnostics of electromyography (EMG), electroencephalography (EEG), and evoked
potentials for carpal tunnel syndrome (CTS), complex regional pain syndrome (CRPS), back pain radiculopathy,
peripheral nerve injuries, neurotoxic injuries, and chronic
pain, somatoform disorders, epilepsy, dementia,
headache, assistant clinical professor of neurology, UCLA,
AME, QME, IME.
JEFF SARKOZI, MD, FRCPC, FACR
THE CALIFORNIA INSTITUTE FOR FIBROMYALGIA,
ARTHRITIS AND RHEUMATOLOGY
801 North Tustin Avenue, Suite 503, Santa Ana, CA
92705, (714) 973-4636, fax (714) 973-4776. Contact Jeff
Sarkozi, MD, FRCPC, FACR. Fibromyalgia, arthritis, occupational, industrial, and environmental post-traumatic
rheumatology/arthritis, syndromes of chronic fatigue and
pain, rheumatoid arthritis, osteoarthritis, neck pain, back
pain, lupus, scleroderma, Raynaud’s syndrome, spondylitis, myositis, connective tissue, and other rheumatologic
diseases. Consulting/expert experience: consultation, case
review, analysis, IME/AME, deposition, and trial experience. On behalf of manufacturers and physicians involved
in silicone implant litigation, plaintiff for 1-tryptophan EMS,
industry/defendant and selected plaintiffs for industrial/occupational/environmental/post-traumatic claims of fibromyalgia and syndromes of chronic fatigue and pain,
arthritis, connective tissue, and other rheumatologic diseases. Physician/plaintiff in rheumatology medical malpractice issues.
MEDICAL/NEUROLOGY/PERSONAL
INJURY
ANDREW WOO, MD, PHD
2021 Santa Monica Boulevard, Suite 525-E, Santa Monica, CA 90404, (310) 829-2126, fax (310) 998-8887, email: [email protected]. Contact Gail. Board-certified
neurology, clinical assistant professor UCLA, personal injury, pain, carpal tunnel, spine, memory, seizure, sleep,
and clinical protocols. Multiple sclerosis, migraine, and
stroke. Education: AB Cornell University, MD and PhD
Brown University; residency + EMG/EEG fellowship UCLA;
Advisory Boards: L.A. Neurologic Society, St. John’s
Sleep Lab; honors: Who’s Who in Medicine (2001) and science/engineering (1993), international electrophysiology
MEDICAL/TOXICOLOGY
JONATHAN S. RUTCHICK, MD, MPH, QME
20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941,
(415) 381-3133, fax (415) 381-3131, e-mail: jsrutch
@neoma.com. Web site: www.neoma.com. Jonathan S.
Rutchik, MD, MPH is a physician who is board certified in
both Neurology and Occupational and Environmental Med-
icine. He provides clinical evaluations and treatment, including electromyography, of individuals and populations
with suspected neurological illness secondary to workplace injuries or chemical exposure. Services include
medical record and utilization review and consulting to industrial, legal, government, pharmaceutical, and academic institutions on topics such as metals and solvents,
mold illness, Baychol issues, Persian Gulf War syndrome,
musicians’ injuries, and others. See display ad on
page 77 .
MEDICAL MALPRACTICE
JEFFREY KAUFMAN, MD
720 North Tustin Avenue, Suite 101, Santa Ana, CA
92705, (714) 973-4600, fax (714) 547-1259. Web site:
www.urodocs.net. Contact Jeffrey Kaufman, MD. Urologic surgery. Extensive experience in urologic case review
and testimony. Numerous articles published and presentations made. Sterilization and vasectomy, impotency, penile
implants, urologic cancer treatment, urologic trauma, and
urinary incontinence. Member and officer in numerous
medical associations. Detailed C.V. available.
J. CARLOS MAGGI, MD
Memorial/Miller Children’s Hospital. 2801 Atlantic Avenue,
Long Beach, CA 90815, (562) 933-8743, fax (562) 9338744, e-mail: [email protected]. Contact April
Johnson. Pediatric pulmonary, pediatric critical care, pediatric hospital care, pediatric emergencies and resuscitation, pediatric trauma and burns, and intoxications.
ROBERT WAGMEISTER, MD, FACS
2001 Santa Monica Boulevard, #1170-W, Santa Monica,
CA 90404, (310) 828-5626, fax (310) 828-2826, e-mail:
[email protected]. Contact Robert Wagmeister, MD,
FACS. Vascular surgery: diseases, trauma, and surgery of
the circulation, both arterial and venous. Includes carotid
surgery, aneurysms, bypass surgery, dialysis surgery, am-
putations, pulmonary embolus, and phlebitis. Special certification in vascular surgery. Member of Southern California
Vascular Surgery Society, Society for Vascular Surgery,
Society for Clinical Vascular Surgery and Peripheral Vascular Surgery Society. Extensive experience, numerous cases
each year, depositions, expert witness; court appearance
as required. Birth date: May 16, 1949. MD, Tufts Medical
School, 1974.
BRUCE WAPEN, MD
EMERGENCY MEDICINE EXPERT
969-G Edgewater Boulevard, Suite 807, Foster City, CA
94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail:
[email protected]. Web site: www.DrWapen
.com. Contact Bruce Wapen, MD. Board-certified emergency physician and experienced public speaker offers
consultation, chart review, and testimony as an expert witness for defense or plaintiff involving litigation arising from
the emergency department. See display ad on
this page.
LESTHER WINKLER, MD
Encino-Tarzana Regional Medicine Center Pathologist.
(consulting emeritus status) 10155 Topeka Drive, Northridge, CA 91324, (818) 349-8568, fax (818) 993-9701.
Contact Lesther Winkler, MD. Specialties: surgical and
autopsy pathology, clinical pathology. Forty years of experience in reviewing medical records (hospital records, office
records) with emphasis on pathology aspects, gross and
microscopic, and relationships to general medical and hospital care. Experience with hospital bylaws, rules, and regulations, consent issues, medical staff privileges. Also experienced in hospital healthcare law, medical, hospital and
“outside” ethical medical issues. Helped establish concepts and chaired hospital ethics committees for more
than 10 years. Represented physicians before California
Medical Board when requested by attorneys. Degrees/licenses: MD. See display ad on page 72.
— EMERGENCY
MEDICINE
LINEBACK, INC.
2100 North Main Street, Suite 202, Santa Ana, CA 92706,
(714) 565-1012, e-mail: [email protected]. Contact
James F. Lineback, MD. Internal medicine, chest medicine, occupational medicine, toxic exposure, death cases,
diagnostic dilemmas, patient management, causation, and
chart review. Twenty years of consulting/expert witness
experience in medical malpractice, personal injury, workers
compensation (QME, AMA). Degrees/license: MD, MS,
FCCP, Board Certified Internal Medicine/Pulmonary Medicine. See display ad on page 62.
METALLURGICAL AND CORROSION
ENGINEER
KARS ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland Drive,
Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 5277169, e-mail: [email protected]. Web site: www.karslab
.com. Contact Drs. Ramesh J. Kar or Naresh J. Kar.
Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineers with 20-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive,
bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant
cases. Complete in-house capabilities for tests. Extensive
deposition and courtroom experience (civil and criminal investigations). Principals are fellows of American Society for
Metals and board-certified diplomates, American Board of
Forensic Examiners. See display ad on page 50.
METALLURGY
KARS ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland Drive,
Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 527-
MEDICINE EXPERT
—
BRUCE WAPEN, MD, FACEP
YOUR EXPERT FOR MALPRACTICE LITIGATION
ARISING FROM THE EMERGENCY DEPARTMENT
• 29 years in Emergency Medicine
• Experience with cases for both defense and plaintiff
• Accomplished at deposition and trial testimony
• Teaching experience with Stanford, U.C. Davis, and
Letterman Army Medical Center
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Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineers with 20-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive,
bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant
cases. Complete in-house capabilities for tests. Extensive
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(Support for objections, motions, privileges, etc.)
8 8 8 . 5 7 7 . 3 7 7 1
www.litigationone.com
LAL6
AIR, WEATHER, & SEA CONDITIONS, INC.
P.O. Box 119, Agoura Hills, CA 91376-0119, (818) 6458632, fax (818) 991-1424, e-mail: [email protected].
Web site: [email protected]. Contact Jay Rosenthal.
Experienced and authoritative expert testimony, reports
and analyses of wind, rain, flooding, waves; specialist in
auto/boat/ship/aircraft accident reconstruction, property
damage, slip and falls, construction, homeland security applications, air pollution, transport, and risk identification.
Movie industry applications, cinematography, and visual effects. Determining unusualness, normalcy, and foreseeability. Official data, site visits, clear and convincing testimony.
See display ad on page 78.
GOLDEN GATE WEATHER
781 McDuff Avenue, Fremont, CA 94539, (510) 657-2246,
fax (510) 315-3015, e-mail: [email protected]. Web
site: http://ggweather.com. Contact Jan Null. Certified
consulting meteorologist experienced at trial and depositions. Weather event reconstruction and expert analysis for
rain, storms, wind, snow, flooding, ice, fog, and other
weather events. Twenty-three years’ experience with National Weather Service. Degrees: BS, MA, CCM.
MORTGAGE LENDING
EXPERT – PATHOLOGIST
LESTHER WINKLER, MD
Specialties:
Surgical and Autopsy Pathology
Clinical Pathology
40 YEARS EXPERIENCE
Medical record reviewing (hospital records,
office records) with emphasis on pathology
aspects, gross and microscopic, and relationship to general medical and hospital care.
Experience with hospital bylaws, rules, and
regulations, consent issues, and medical staff
privileges; as well as, hospital healthcare law,
medical, hospital, and “outside” ethical
medical issues.
Helped establish concepts and chaired
hospital ethics committees for more than 10
years. Represented physicians before California Medical Board when requested by
attorneys.
TEL
818/349-8568 FAX 818/993-9701
10155 Topeka Drive, Northridge, CA 91324
72 Los Angeles Lawyer April 2005
JOFFREY LONG, CMC
17045 Chatsworth Street, Suite 100, Granada Hills, CA
91344-5845, (818) 366-5200, fax (818) 368-8932, e-mail:
[email protected]. Contact Joffrey Long. Mortgage
lender and broker, with 25 years experience, 22 years as
president of a mortgage company. Experienced in residential, construction, and commercial lending, institutional loan
brokerage, private money (hard money) loan brokerage,
loan escrow, trust deed investment, loan servicing, and
foreclosure. Member, Board of Directors, of the California
Mortgage Association. Designated as a Certified Mortgage
Consultant by the National Association of Mortgage
Brokers.
NURSING
MED-LINK
3362 Budleigh Drive, Hacienda Heights, CA 91745, (626)
333-5110, fax (626) 968-0064, e-mail: dorothypollock
@adelphia.net. Contact Dorothy Pollock, LNCC. Registered nurse with 36 years’ clinical experience. Non-testifying services include case analysis/for merit, chronology,
translation, written reports, medical record organization.
DME/IME accompaniment including tape recording and
written report. Expert witness and testifying services, including affidavit, arbitration, declaration, deposition, and
trial. Courtroom experienced both plaintiff and defense.
American College of OB/GYN (FACOG). Member of the
American Society for Reproductive Medicine, Society of
Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge Hospital, former Chairman Laser and Safety Committee at Northridge
Hospital and member of the Los Angeles County Medical
Association. Author, numerous scientific papers and articles published in peer review journals. Former clinical instructor at USC. Former clinical assistant professor,
OB/GYN at UCLA. See display ad on page 67.
OPHTHALMOLOGY
ANDREW F. CALMAN, MD, PHD.
3201 Mission Street, San Francisco, CA 94110, (415) 6483600, fax (415) 648-7544, e-mail: [email protected]. Web
site: www.premier-eyecare.com. Contact Dr. Calman.
Expert witness for eye diseases and surgery including
cataract, glaucoma, retinal disease, and other ocular problems. Board certified in ophthalmology, UCSF faculty,
Medical Board of California Medical Expert, Associate Examiner for American Board of Ophthalmology, leadership
positions in national and state ophthalmology societies.
Plaintiffs and defendants welcome.
ORTHOPEDIC SURGEON
MARC J. FRIEDMAN, MD
6815 Noble Avenue, Van Nuys, CA 91405, (818) 9016600, fax (818) 901-6688, e-mail: [email protected]. Web
site: www.scoi.com. Contact Lonna Collier. Orthopedic
shoulder and knee, consulting, and expert witness testimony. IME, AME, QME and workers’ compensation evaluations. See display ad on page 64.
GRAHAM A. PURCELL, MD, INC.
Assistant Clinical Professor Orthopaedic Surgery, UCLA
3600 Wrightwood Drive, Studio City, CA 91604, (818) 9853051, fax (818) 985-3049, e-mail: expert@gpurcellmd
.com. Web site: gpurcellmd.com. Contact Graham A.
Purcell, MD. Dr. Purcell is a board certified orthopedic
surgeon, sub-specialty in spinal disorders affecting adults
and children. Examples of spinal disorders treated by Dr.
Purcell include disc diseases, stenosis, infections, tumors,
injuries, and deformities including scoliosis. He possesses
24 years of orthopedic and 15 years of med-legal experience, including defense, plaintiff, insurance carriers, CA Attorney General’s office and Public Defender’s office. Expert
testimony pertains to med-mal, personal injury, and workers’ compensation cases. As qualified medical evaluator,
Dr. Purcell has extensive experience in performing QMEs,
AMEs, IMEs, WC evals. See display ad on page 73.
RICHARD C. ROSENBERG, MD
18370 Burbank Boulevard, Suite 614, Tarzana, CA 91356,
(818) 996-6800, fax (818) 996-2929, e-mail: rcrnsx@aol
.com. Web site: www.drrosenberg.com. Contact Sheri
Roberts. Orthopedic surgery, sports medicine, and physical therapy. Experienced in IME, QME, agreed medical
exams, med/legal reports, and expert witness testimony.
Personal injury and workers’ compensation. Additional office in Oxnard, California.
JERROLD M. SHERMAN, MD
1260 15th Street, Suite 614, Santa Monica, CA 90404,
(310) 393-9829, fax (310) 476-8438. Contact Jan Lindsey. Orthopedic surgeon who is board certified as an independent medical examiner and chief executive officer of
Outpatient Surgery Center. Licensed in California and
Nevada.
OBSTETRICS AND GYNECOLOGY
PEER REVIEW
GIL N. MILEIKOWSKY, MD, FACOG
Offices in Encino and Beverly Hills, 29341⁄2 Beverly Glen Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or (818)
981-1888, fax (310) 858-1303 or (818) 981-1994. Web
site: www.baby4you.net. Contact Gil N. Mileikowsky,
MD, OB/GYN. IVF, laser surgery, laparoscopy, and reproductive endocrinology. Diplomate, board certified by the
American Board of OB/GYN. Board eligible, American
Board of Reproductive Endocrinology Division. Fellow,
GIL N. MILEIKOWSKY, MD, FACOG
Offices in Encino and Beverly Hills, 29341⁄2 Beverly Glen
Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or
(818) 981-1888, fax (310) 858-1303 or fax (818) 9811994. Web site: www.baby4you.net. Contact Gil N.
Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparoscopy, and reproductive endocrinology. Diplomate,
board certified by the American Board of OB/GYN. Board
eligible, American Board of Reproductive Endocrinology
Division. Fellow, American College of OB/GYN (FACOG).
Member of the American Society for Reproductive Medicine, Society of Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge Hospital, former Chairman Laser and Safety Committee at Northridge Hospital and member of the Los Angeles County Medical Association. Author, numerous scientific papers and articles published in peer review journals. Former clinical instructor at USC. Former clinical assistant professor, OB/GYN at UCLA. See display ad on
page 67.
’
’
PERSONAL INJURY
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
14455 Ventura Boulevard, Suite 300, Sherman Oaks, CA
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Miguel Drive, Suite 130, Newport Beach, CA 92660, (949)
219-9816, fax (949) 219-9095, e-mail: expert@wzwlw
.com. Contact Barbara Luna, Drew Hunt, Paul White,
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax
planning and preparation and mergers and acquisitions.
Testified hundreds of times as expert witnesses. Prior Big
Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation,
asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real
estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 45.
’
PHYSICAL MEDICINE AND REHAB, PAIN
MANAGEMENT/MEDICINE
HOLLYWOOD PAIN CENTER
1300 North Vermont Avenue, Suite 710, Los Angeles, CA
90027, (323) 953-2637, fax (323) 953-3520. Board certified in physical medicine and rehabilitation and pain medicine. Certified medical acupuncturist and complementary
medicine. Experienced IME and QME with 20 years’ experience as an expert witness for medical-legal courtroom
and deposition cases.
R E A L E S TAT E / R E A L P R O P E R T Y M AT T E R S
Specializations:
Customs & Standards of Practice, Agency Relationships
Material Disclosure in Residential Real Estate Sales
POLYGRAPH
JACK TRIMARCO & ASSOCIATES POLYGRAPH
INC.
9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA
90212, (310) 247-2637, fax (805) 383-9973, e-mail:
[email protected]. Web site: www.jacktrimarco.com.
Contact Jack Trimarco. Former manager of the Federal
Bureau of Investigation’s polygraph program in Los Angeles. Former Inspector General Polygraph Program—Department of Energy. Nationally known and respected Polygraph Expert. I have the credentials you would want when
you have a client polygraphed, a case reviewed, a motion
made regarding polygraph, or an in-depth professional investigation. My unique background allows me to bring the
highest levels of service and expertise to any polygraph situation. Degrees/licenses: BS Psychology; Certified APA,
AAPP, CAPE, AAFE. See display ad on page 80.
PROBATE LAW
DARLING, HALL & RAE, LLP
520 South Grand Avenue, 7th Floor, Los Angeles, CA
90071-2645, (213) 627-8104, fax (213) 627-7795, e-mail:
[email protected]. Contact Matthew S. Rae Jr.
Attorney specialists in estate planning, trust, and probate
law. Consultant and expert witness, special and associate
counsel, guardian ad litem, referee, special administrator,
and independent trustee.
TEMMY WALKER, REALTOR®
Real Estate Consulting Expert Witnessing
SERVICES RENDERED:
Litigation Consulting, Expert Testimony, Broker Practice,
Liability Audit, Educational Services, Industry Mediator
Certified Residential Broker Graduate Realtors Institute, Certified Residential Specialist,
California Association of Realtors® Director Since 1981, National Association of
Realtors® Director, State Faculty Master Instructor, Member, Real Estate Education
Association, Past President, San Fernando Valley Board of Realtors
5026 Veloz Avenue, Tarzana, California 91356
Telephone (818) 760-3355 • Cell (818) 438-0286
e-mail: [email protected]
CALIFORNIA BROKER LICENSE NO. 00469980
Los Angeles Lawyer April 2005 73
PROCESS SERVER
BENCHMARK INVESTIGATIONS
32158 Camino Capistrano, # A-415, San Juan
Capistrano, CA 92675, (800) 248-7721, fax (949) 2480208, e-mail: [email protected]. Web site: www
.BenchmarkInvestigations.com. Contact Jim Zimmer,
CPI. National agency. Professional investigations with emphasis upon accuracy, detail, and expedience. Asset/financial searches, background investigation, DMV searches,
domestic/marital cases, due diligence, process service,
surveillance/photograph, witness location, and statements.
LA branch plus correspondents nationwide. Multilingual
agents. Fully insured.
PRODUCT FAILURES
FRED M. JOHNSON, PHD
P.O. Box 3011, Fullerton, CA 92831, (714) 526-6661, fax
(714) 526-6662. Contact Fred M. Johnson, PhD. For
those who seek the most qualified and the highest forensic
workmanship. Extensive test facility and equipment available. Lighting and illuminations: light intensity measurements, visual perception, times of sunset, twilight, moon
rise/set. Product failure analysis: medical devices, glass,
chairs (all types), ladders. Slip and fall: scientific testing of
slipperiness on tile, ceramic, walkways, supermarkets and
retail industry. Fall from height: stairways, balconies, platform, theatre pit, pole. Biomechanics. Traffic accident reconstruction: cars, trucks, pedestrian, bicycle. Professor of
physics, fellow Am. Physical Society, consultant to
ANSI/BIFMA. Member SAE, SATAI, ASTM + ICC. Author
of textbook + 60 scientific publications. Over 35 years in
research. Extensive expert witness experience. See display ad on page 63.
PRODUCTS LIABILITY
A R TECH FORENSIC EXPERTS, INC.
18075 Ventura Boulevard, Suite 209, Encino, CA 91316,
(818) 344-2700, fax (818) 344-3777. Engineers: experienced, registered, advanced degrees, extensive testimony
experience. Traffic accidents (all motor vehicle types, bicycles, pedestrians), collisions, rollovers, skid marks, visibility,
signal phasing, time-motion, low-speed impact. Industrial
and construction accidents: OSHA issues. Automotive, industrial, consumer products: brakes, seat belts, forklifts,
machinery, tools, protective equipment, lawn mowers,
heaters, chairs, fixtures, ladders, scaffolds, fasteners.
Premises liability: code analysis, stairways, ramps, doors,
gates, windows, guardrails, pools, and lighting. Slip-andfall. Trip-and-fall. Biomechanics. Safety. Human factors.
See display ad on page 42.
PSYCHIATRY/PSYCHOLOGY
ACCREDITED PSYCHIATRY & MEDICINE
96 Larchwood Drive, Cambridge, MA 02138, (617) 4928366, fax (617) 441-3195, e-mail: harold_bursztajn@hms
.harvard.edu. Web site: www.forensic-psych.com. Contact Harold J. Bursztajn. Harold J. Bursztajn, MD, Harvard Medical School co-director of the program of psychiatry and the Law and associate professor of psychiatry, is
active in direct patient care, teaching, and research. He
consults to plaintiff and defense counsel, insurance firms,
state and federal agencies as an expert in general and
forensic psychiatry, medical malpractice decision analysis,
and organizational ethics. Dr. Bursztajn has nationwide experience as a distinguished expert qualified to testify in
state and federal courts. See display ad on page 67.
ADDICTION FORENSICS GROUP
11301 West Olympic Boulevard, Suite 323, Los Angeles,
CA 90064, (310) 966-1907, fax (310) 477-0661, e-mail:
[email protected]. Web site: www.becsonmd
.com. Contact Mace Beckson, MD. Board certified Addiction/Forensic Psychiatry; UCLA full-time faculty; Distinguished Fellow, APA; alcohol, drugs, addictions, sexual
compulsions, suicide, posttraumatic stress disorder, stalking, and professional sexual misconduct.
74 Los Angeles Lawyer April 2005
BARRINGTON PSYCHIATRIC CENTER
1990 South Bundy Drive, Suite 320, Los Angeles, CA
90025, (310) 826-3235, fax (310) 447-0840. Contact
David Gyepes, JD, PhD. Full range of civil litigation evaluation, sexual harassment, wrongful termination, personal
injury, neuropsychology, posttraumatic stress disorders,
child psychiatry/psychology, malpractice, mold and toxic
exposures, and Americans with (mental) disabilities claims.
Litigation consultation regarding case planning, record review, and behind-the-scenes case preparation. Expert witness testimony in which the right expert is matched to the
case.
ARNOLD L. GILBERG, MD, PHD
Associate Clinical Professor of Psychiatry, UCLA School of
Medicine, a professional corporation, 9915 Santa Monica
Boulevard, Suite 101, Beverly Hills, CA 90212, (310) 2742304, fax (310) 203-0783. Contact Arnold L. Gilberg.
Board certified and appointed by three governors to Medical Board of California 11th District MQRC 1982-1991.
Certified in psychiatry and psychoanalysis. All civil matters,
and experienced as expert witness. Degrees/licenses:
M.D., PhD. Licensed in California and Hawaii. See display
ad on page 55.
LAWRENCE R. MOSS, MD
2999 Overland Avenue, Suite 201, Los Angeles, CA
90064, (310) 838-6306, fax (310) 838-6362, e-mail: lmoss
@ucla.edu. Contact Lawrence R. Moss, MD. UCLAtrained, board certified in general and forensic psychiatry,
with 15 years’ experience as a forensic psychiatrist and
psychoanalyst. Clinical and teaching faculty at UCLA Medical School. Lengthy experience as a testifying expert in
areas of personal injury, medical malpractice, and employment law. Forensic consultant to large corporations and
government entities. Phi Beta Kappa MIT (1975), Fulbright
Scholar (1976).
JEFF SUGAR, MD
312 East Sycamore Avenue, El Segundo, CA 90245, (310)
322-6933, e-mail: [email protected]. Jeff Sugar, MD, child,
adolescent, and adult psychiatrist. Associate clinical professor, UCLA. A practicing psychiatrist for 15 years, he is
board certified in child and general psychiatry. He is past
president of the Southern California Society of Child and
Adolescent Psychiatry. As founding director of research at
Hathaway Children and Family Services, he led a study of
the long-term effects of trauma. Currently in private practice-general and child psychiatry. Dr. Sugar’s reports
and/or testimony have had an impact in cases (both child
and adult) involving: trauma: sexual and physical abuse
(with or without PTSD), personal injury and workers compensation, psychiatric medication issue, diagnosis and appropriate treatment, ethical issues and stress in legal practice, battered woman’s syndrome, child custody. Free initial telephone consultation with attorney. Attorney references and/or redacted past reports available on request.
See display ad on page 76.
PUBLISHING
BAY SHERMAN CRAIG & GOLDSTEIN, LLP
11845 West Olympic Boulevard, Suite 845, Los Angeles,
CA 90064, (310) 477-1400, fax (310) 479-0720, e-mail:
[email protected]. Web site: www.baysherman.com.
Contact Peter Craig or Hal Jaffe. Many legal disputes
involve financial, accounting, and income tax considerations. Bay Sherman Craig & Goldstein, LLP, work together
with counsel to resolve these conflicts. We specialize in intellectual property publishing. In addition to expert witness
testimony, we provide the following: services prior to trial,
financial, accounting and income tax issues defined,
record analysis, economic fact-finding and analysis, deposition preparation assistance, and settlement negotiations.
QUESTIONED DOCUMENTS
ANNE SILVER
520 Washington Boulevard, Suite 417, Marina del Rey, CA
90292, (310) 313-3997, fax (310) 313-4066, e-mail:
[email protected]. Web site: www.handwriting-expert
.biz. Contact Anne Silver. Handwriting and signature
comparisons, qualified over 700 times, referred to by
judges, experience in most Asian, Western, and Mid-Eastern languages.
REAL ESTATE
ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail: info
@mcsassociates.com. Web site:www.mcsassociates.com.
Contact Norman Katz, managing partner. Nationally
recognized banking, finance, insurance, and real estate
consulting group (established 1973). Experienced litigation
consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/
brokers. Specialties: lending customs, practices, policies,
in all types of lending (real estate, business/commercial,
construction, consumer/credit card), banking operations/
administration, trusts and investments, economic analysis
and valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage, appraisal,
escrow, and construction defects/disputes, and title insurance.
COLDWELL BANKER COMMERCIAL, ASG
2200 Pacific Coast Highway, Suite 318, Hermosa Beach,
CA 90254, (310) 937-7700. Coldwell Banker Commercial
ASG, specialties: Real estate, valuations, business valuations, condemnations, and FF & E. As part of the Coldwell
Banker Commercial group, over 450 offices nationwide.
Additional services for special purpose mixed use and contaminated/toxic properties, environmental/civil engineering.
Right-of-way eminent domain, structural defect reports,
and construction defect reports. In-house CPA, general
contractor, and engineers. Approved for IRS, federal,
state, and municipal courts. Offices in Orange County, San
Diego/Inland Empire, and Northern California. See display
ad on page 67.
STEPHEN B. FAINSBERT, ESQ., FAINSBERT
MASE & SNYDER, LLP
11835 West Olympic Boulevard, Suite 1100, Los Angeles,
CA 90064, (310) 473-6400, fax (310) 473-8702, e-mail:
[email protected]. Contact Stephen B. Fainsbert. Expert testimony in real property exchanges (coauthor CEB publication Real Property Exchanges, 2nd ed.),
real estate transactions, standard of care and practice for
real estate brokers, escrow, and real estate attorneys, disclosures in purchase and sale agreements, real estate financing, and secured real property transactions.
FINESTONE & RICHTER
11601 Wilshire Boulevard, Suite 1900, Los Angeles, CA
90025, (310) 575-0800, fax (310) 575-0170, e-mail:
[email protected]. Contact Howard N. Gould. Attorney malpractice in residential real estate, residential brokerage issues, and broker and finder issues.
SAMUEL K. FRESHMAN, BA, JD
6151 West Century Boulevard, Suite 300, Los Angeles, CA
90045, (310) 410-2300, fax (310) 410-2919. Contact
Samuel K. Freshman. Attorney and real estate broker
since 1956, banker, professor legal malpractice, arbitration, brokerage malpractice, leases, syndication, construction, property management, finance, due diligence, conflict
of interest, title insurance, banking, escrow, and development. Expert witness 20-plus years in state and federal
courts. Twenty-one published articles, arbitrator and mediator, general partner $300,000 plus, shopping centers,
apartments, and industrial property. JD Stanford (1956).
See display ad on page 59.
DAVID GRIBIN, MAI, CPM
22551 Ventura Boulevard, Suite 200, Woodland Hills, CA
91364, (818) 225-0097, fax (818) 225-0098, e-mail:
[email protected]. Contact David Gribin. David Gribin
has been involved in real estate for over 25 years. His
background includes brokerage, appraisals, property management, and expert witness in standard of care and ap-
EXPERT WITNESS
SERVICES
• Bankruptcy - Interest Rates
• Banking - Lending & Operations
• Lender Liability, Letters of
Credit, Guarantees
• Forgery, Credit Cards
Checking Account Disputes
• Consumer, Commercial, Real
Estate, Construction Loans
& Regulatory Issues
• Credit Damages
• Appraisal and Expert referrals
–35 years experience –
CEO, Director, Sr. Loan Officer,
State & Federal Court
THOMAS TARTER
ANDELA CONSULTING GROUP
818-380-3102 or 818-884-2525
E-Mail: [email protected]
www.commercepartners.org
EXPERT – PSYCHIATRY
JEFF SUGAR, MD
Child, Adolescent &
Adult Psychiatrist
Associate Clinical
Professor, UCLA
A practicing psychiatrist
for 15 years, he is board
certified in child and
general psychiatry. He is
Past President of the
Southern California Society
of Child and Adolescent Psychiatry and Associate
Clinical Professor at UCLA. As founding director of
research at Hathaway Children and Family Services
he led a study of the long-term effects of trauma.
Currently Chief of Child Inpatient at Kedren Community Health Center and in private practice-general
and child psychiatry.
Dr. Sugar’s reports and/or testimony have had
an impact in cases (both child and adult) involving:
• Trauma: Sexual and Physical Abuse (with
or without PTSD)
• Personal Injury and Workers’ Compensation
• Psychiatric Medication Issues
• Diagnosis and Appropriate Treatment
• Ethical issues and Stress in Legal Practice
• Battered Woman’s Syndrome
• Child Custody
–FREE Initial Telephone Consultation with Attorney–
ATTORNEY REFERENCES AND/OR REDACTED PAST
REPORTS AVAILABLE ON REQUEST.
TEL: (310)
322-6933 | E-MAIL: [email protected]
312 E SYCAMORE AVE, EL SEGUNDO, CA 90245
76 Los Angeles Lawyer April 2005
praisal cases. Gribin is one of only 59 people nationwide
who have achieved both the MAI and CPM designations.
He was 1994 president of the Institute for Real Estate
Management, Los Angeles Chapter, and is 2005 President
of the Southern California Chapter of the Appraisal Institute.
LAW OFFICE OF LORE HILBURG
1651 Virginia Road, Los Angeles, CA 90019, (323) 7374444, fax (323) 737-4411, e-mail: [email protected].
Contact Lore Hilburg. Recognized expert witness on
title, escrow, and foreclosure issues as well as legal malpractice regarding title and title insurance matters. Testified
in superior and federal courts and arbitrations.
LAWRENCE H. JACOBSON, ESQ.
9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA
90212, (310) 271-0747, fax (310) 271-0757, e-mail:
[email protected]. Web site: www.lawrencejacobson
.com. Practicing real estate law in California since 1968;
Real estate broker since 1978; Former VP-Legal Affairs,
California Association of Realtors; broker. Witness/consultant expertise in standard of care; brokerage; lawyer malpractice, transactions, custom, and usage.
JACK KARP/NATIONAL PROPERTIES GROUP
31115 Ganado Drive, Rancho Palos Verdes, CA 90275,
(310) 377-6349, fax (310) 868-2880, e-mail: jlkarp@cox
.net. Industrial and commercial broker’s care and duties,
professional obligations to clients. Mediation and arbitration between brokers and clients regarding disputes, ethical questions, and fee division. Deal structuring and site location analysis. Real estate leases and purchase contracts
and their interpretations. Author AIR Net and Gross Leases
and AIR Standard Offer and Agreement and Escrow Instruction for Purchase of Real Estate. See display ad on
page 72.
R.A. SNYDER PROPERTIES, INC.
2399 Camino Del Rio south, Suite 102, San Diego, CA
92108, (619) 297-0274, fax (619) 297-0779, e-mail:
[email protected]. Web site: www.rasnyde.com.
Contact Richard A. Snyder. Specialties: real estate professional for over 25 years. Experienced in a broad range
of agency representations, sale and exchange of residential and commercial properties, management of over 4,000
apartment units and 400,000 sq. ft. comml/indust. Serves
as a court-appointed receiver and as litigation consultants
in real estate custom and practice, ethics, and agency.
Past president, California Association of Realtors-1996;
S.D. Chapter IREM-1991; Resident Relations Foundations1991; County Council of R.E. Boards-1988; San Diego
Assoc. of Realtors-1985. Vice president, National Assoc.
of Realtors-1999-2000.
SCHULZE HAYNES & CO.
660 South Figueroa Street, Suite 1280, Los Angeles, CA
90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert
@schulzehaynes.com. Web site: www.schulzehaynes
.com. Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery, real estate
transactions, financial analysis and modeling, major professional organizations, and have experience across a broad
spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; PhD-economics.
TEMMY WALKER, INC.
5026 Veloz Avenue, Tarzana, CA 91356, (818) 760-3355,
fax (818) 999-0826, e-mail: [email protected]. Contact
Temmy Walker. Specializes in expert witness testimony
and litigation consultant in matters regarding residential
real estate, with emphasis on the customs and practice,
standards of care, disclosure requirements, agency relationships, and broker supervision. Complete assistance.
Extensive transaction and court experience. Director California Association of Realtors, master faculty instructor for
continuing education C.A.R. Excellent credentials and references. See display ad on page 73.
ALAN D. WALLACE, ESQ.
14011 Ventura Boulevard, Suite 406, Sherman Oaks, CA
91423, (818) 501-0133, fax (818) 905-6091, e-mail:
[email protected]. Contact Alan D. Wallace, Esq.
Expert witness and litigation consulting for general real estate matters, including law, custom and practice, agency,
disclosure, broker malpractice, standards of care for brokers, buyers and sellers. Broker and attorney. Involved as
broker in more that 7,500 real estate transactions. Department of Real Estate master instructor and author, former
CAR hotline attorney, university law professor in real estate. Successfully testified in dozens of cases. See
display ad on page 60.
REAL ESTATE APPRAISAL
ADELMAN APPRAISALS, INC.
14431 Ventura Boulevard, Suite 288, Sherman Oaks, CA
91423, (818) 995-0648, fax (818) 990-0326, e-mail:
[email protected]. Web site: www
.adelmanappraisals.com. Contact Chris Adelman. Specialties: 10+ years’ experience in residential real estate appraisals, high-end residential appraisals, divorces, separation, trust, and retroactive appraisals, expert witness, depositions for residential evaluations and litigation, vacant
land evaluations, extensive experience in dealing with law
offices, business managers, and accounting firms for various appraisal related business. Quoted 11/05 in the L.A.
Daily Journal, expert witness cover story.
COLDWELL BANKER COMMERCIAL, ASG
2200 Pacific Coast Highway, Suite 318, Hermosa Beach,
CA 90254, (310) 937-7700. Coldwell Banker Commercial
ASG, specialties: Real estate, valuations, business valuations, condemnations, and FF & E. As part of the Coldwell
Banker Commercial group, over 450 offices nationwide.
Additional services for special purpose mixed use and contaminated/toxic properties, environmental/civil engineering.
Right-of-way eminent domain, structural defect reports,
and construction defect reports. In-house CPA, general
contractor, and engineers. Approved for IRS, federal,
state, and municipal courts. Offices in Orange County, San
Diego/Inland Empire, and Northern California. See display
ad on page 67.
CURTIS-ROSENTHAL, INC.
5959 West Century Boulevard, Suite 1010, Los Angeles,
CA 90045, (310) 215-0482, fax (310) 215-3089, e-mail:
[email protected]. Web site: www
.curtisrosenthal.com. Contact David Rosenthal, MAI.
Appraisal of commercial and residential real estate for
eminent domain, bankruptcy, estate planning, divorce,
and general litigation. Accepted in local, state, and federal courts.
DAVID GRIBIN, MAI, CPM
22551 Ventura Boulevard, Suite 200, Woodland Hills, CA
91364, (818) 225-0097, fax (818) 225-0098, e-mail:
[email protected]. Contact David Gribin. David Gribin
has been involved in real estate for over 25 years. His
background includes brokerage, appraisals, property
management, and expert witness in standard of care and
appraisal cases. Gribin is one of only 59 people nationwide
who have achieved both the MAI and CPM designations.
He was 1994 president of the Institute for Real Estate
Management, Los Angeles Chapter, and is 2005 President
of the Southern California Chapter of the Appraisal
Institute.
MAURICE ROBINSON & ASSOCIATES LLC
880 Apollo Street, Suite 125, El Segundo, CA 90245,
(310) 640-9656, fax (310) 640-9276, e-mail: maurice
@mauricerobinson.com. Web site: www.mauricerobinson
.com. Contact R. Maurice Robinson, president. Hotel
and real estate industry business issues, including market,
economic and financial feasibility, valuation, and disputes
between owner-operator, borrower-lender, and franchisorfranchisee. Fluent in management contracts, license agreements, ground and building leases, partnership and JV
agreement, concession contracts, development agree-
Serving Attorneys Since 1990
ments, and loan docs. Can estimate damages and appraise property values under multiple scenarios. Expert
witness testimony, litigation strategy, consultation and support, damage calculations, lost profits analysis, real estate
appraisals, deal structuring, workouts, new development,
strategic planning, market demand assessment, acquisition due diligence, and economic, financial, and investment
analysis.
accounting, CPM scheduling, cost estimating, change
order administration, quality assurance & building performance. Evaluation of delay claims. Documentation of
major property/casualty insurance losses. Excellent litigation support & trial exhibit preparation. Expert witness
testimony. Experienced AAA arbitrator & mediator.
Large & complex cases. Member, Dispute Resolution
Boards.
RECEIVER
SHEPHERD CONSULTING SERVICES
P.O. Box 10010, Torrance, CA 90505, (310) 378-0791,
fax (310) 378-0794, e-mail: jds@shepherdconsulting
.com. Contact John Shepherd, RRC, RRO. Roofing,
waterproofing, sheet metal and building envelope consulting services for construction defect litigation, personal injury and water damage loss (standard of care
and building code issues), and property loss claims
(wind, fire, earthquake and hail). Support services includes: visual inspections, invasive testing, leak investigation, water testing, report development, documentation, document review, research, mediation and trial expert witness testimony, and cost estimating.
AMFS
provides the most
experienced
MEDICAL
EXPERTS
for your case.
SALTZBURG, RAY & BERGMAN, LLP
12121 Wilshire Boulevard, Suite 600, Los Angeles, CA
90025, (310) 481-6700, fax (310) 481-6720. Contact
David L. Ray, Esq. Specializes in handling complex
receivership matters, such as partnership and corporate
dissolutions, including law firm dissolutions, and government enforcement receivership actions, including actions
brought by the California Department of Corporations,
Department of Real Estate, Commodities Future Trading
Commission, and Federal Trade Commission. Nationally
recognized in both the lender and litigation communities
as qualified to assist in complicated and commercially
sophisticated liquidations, reorganizations, and ongoing
business operations.
RESTAURANTS
LEON GOTTLIEB
US-INT’L RESTAURANT, HOTEL & FRANCHISE CONSULTANT
4601 Sendero Place, Tarzana, CA 91356-4821, (818)
757-1131, fax (818) 757-1816, e-mail: [email protected].
Web site: http://members.aol.com/lgottlieb/myhomepage
/business.html. Specialties: USA/Int’l restaurant/hotel/
franchise experience since 1960. Hands-on consultant
and expert witness, all types of restaurants, franchises,
fast food, training, manuals, safety, security, injury, operating standards, and P&L damages. Former VP/Partner
IHOP, director to USA chains, author, arbitrator, and
expert witness.
VAN DIJK & ASSOCIATES, INC.
28 Hammond, Suite G, Irvine, CA 92618, (949) 5863828, fax (949) 586-7429, e-mail: info@vdaconsulting
.com. Web site: www.vdaconsulting.com. Contact Nils
Van Dijk. Experienced staff of consultants specializing in
forensic/expert witness litigation services, plan/document review, specification preparation, and quality control/management services.
SCHOOL SAFETY & SPECIAL
EDUCATION
SECURITIES
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272,
(310) 454-2988, fax (310) 454-4516. Contact Marcia
Haight. Human resources expert knowledgeable in both
federal and California law. Twenty-five years’ corporate
human resources management experience plus over 15
years as a Human Resources Compliance Consultant in
California. Specializations include sexual harassment,
ADA/disability discrimination, other Title VII and FEHA
discrimination and harassment, retaliation, FMLA/CFRA,
safety, and wrongful termination. Courtroom testimony
and deposition experience. Retained 60% by defense,
40% by plaintiff. Audit employer’s actions in preventing
and resolving discrimination, harassment, and retaliation
issues. Assess human resources policies and practices
for soundness, for comparison to prevailing practices,
and for compliance. Evaluate employer responsiveness
to complaints and effectiveness of employer investigations. Assist counsel via preliminary case analysis, discovery strategy, examination of documents, and expert
testimony.
CONFIDENTIAL BUSINESS
CONSULTANTS, LLC
2275 Huntington Drive, Suite 309, San Marino, CA
91108, (626) 419-0082, fax (626) 799-7960, e-mail:
[email protected]. Contact James F. Broder,
CFE, CPP, FACFE. Author of “Risk Analysis and Security Surveys,” premisis liability, adequate vs. inadequate
security procedures and practices, expert case analysis
and testimony, corporate procedures, training and operations, kidnap, ransom, extortion, and workplace violence issues. Thirty-five years of law enforcement and
security experience, domestic and international. Listed in
the Encyclopedia of Security Management as “One of
the most highly recognized security authorities in the
US.” CA PI Lic. 0021073.
SCHWARTZ / ROBERT & ASSOCIATES, INC.
42 Faculty Street, Thousand Oaks, CA 91360, (805)
777-1115, cell (818) 825-3247, fax (805) 777-1172,
e-mail: [email protected]. Web site: www
.schwartzrobert.com. Contact Robert I. Schwartz,
AIA. Real property development procedures & practices,
all building types, sizes & phases. Professional evaluation of building design errors & omissions, building code
compliance & professional standards of practice. Forensic investigation of construction defects. Repair cost
estimates. Construction contract/subcontract performance—project management administration & cost
SELECT:
ROBERT C. ROSEN
300 South Grand Avenue, Suite 2700, Los Angeles, CA
90071, (213) 362-1000, fax (213) 362-1001, e-mail:
[email protected]. Web site: www.rosen-law.com.
Specializing in securities law, federal securities law enforcement, securities arbitration and international securities, insider trading, NYSE, AMEX, NASD disciplinary
proceedings, broker-dealer, investment company and investment adviser matters, liability under federal and state
securities laws, public and private offerings, internet securities, and law firm liability. Former chair, LACBA Business and Corporations Law Section; LLM, Harvard Law
School. More than 30 years practicing securities law, 12
years with the U.S. Securities and Exchange Commission, Washington, DC. Published author/editor of securities regulations, including multivolume treatises. See
display ad on page 69.
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1451 Quail Street, Suite 108, Newport Beach, CA
92660, (949) 797-0150, fax (949) 635-5910,e-mail:
[email protected]. Contact Dr. Robert P. Gelhart. Determine the presence or absence of negligent supervision and its relationship with a school safety incident.
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JONATHAN S. RUTCHIK, MD, MPH
20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941
Los Angeles Lawyer April 2005 77
SEXUAL HARASSMENT/
DISCRIMINATION
traumatic stress disorder, stalking, and professional
sexual misconduct.
BETH K. WHITTENBURY & ASSOCIATES
30213 Via Borica, Rancho Palos Verdes, CA 90275,
(310) 612-2102, fax (310) 544-6048, e-mail:
[email protected]. Web site: www.bkwhittenbury
.com. Contact Beth Whittenbury. Fact-finding investigations and mediations of employee complaints, AB
1825 sexual harassment training, and expert witness
testimony. Member, Cal. Bar. Practice limited to consulting. Since 1992.
TAXATION
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272,
(310) 454-2988, fax (310) 454-4516. Contact Marcia
Haight. Human resources expert knowledgeable in
both federal and California law. Twenty-five years’ corporate human resources management experience plus
over 15 years as a Human Resources Compliance Consultant in California. Specializations include sexual harassment, ADA/disability discrimination, other Title VII
and FEHA discrimination and harassment, retaliation,
FMLA/CFRA, safety, and wrongful termination. Courtroom testimony and deposition experience. Retained
60% by defense, 40% by plaintiff. Audit employer’s actions in preventing and resolving discrimination, harassment, and retaliation issues. Assess human resources
policies and practices for soundness, for comparison to
prevailing practices, and for compliance. Evaluate employer responsiveness to complaints and effectiveness
of employer investigations. Assist counsel via preliminary
case analysis, discovery strategy, examination of documents, and expert testimony.
STEPHEN J. MOREWITZ, PHD & ASSOCIATES
5300 Bothwell Road, Tarzana, CA 91356, (818) 5941587, fax (818) 345-9981, e-mail: morewitz@earthlink
.net. Web site: http//home.earthlink.net/~morewitz/
Contact Dr. Steve Morewitz. Sexual harassment and
disability. Evaluates sexual harassment policies and procedures, sexual harassment impact, disability, rehabilitation, and quality of life losses. Provides other experts.
Eighteen years of experience. Professor and former
dean. Author of four books, including Sexual Harassment and Social Change in American Society (1996) and
Chronic Disease and Health Care (2005), and 70 other
publications. Two Outstanding Scholar Book Awards
and other honors.
Air Weather & Sea
Conditions, Inc.
Clear, plain-language and convincing
expert testimony, reports and analyses
to reconstruct weather, storm, and
atmospheric conditions at location and
time of interest.
Wind and rain assessments, and indications of their normalcy, unusualness
and foreseeability.
Authoritative, certified data acquisition,
preparation of exhibit materials, site
visits and evaluations of reports for
legal and insurance matters including
building projects and accidents.
Excellent client references provided on
request.
Jay Rosenthal CCM
CERTIFIED CONSULTING METEOROLOGIST
Phone 818.645.8632 or 818.991.0899
Fax 818.991.1424
E-mail [email protected]
P. O. Box 119, Agoura Hills, CA 91376-0119
78 Los Angeles Lawyer April 2005
SLIP, TRIP, AND FALL
A R TECH FORENSIC EXPERTS, INC.
18075 Ventura Boulevard, Suite 209, Encino, CA
91316, (818) 344-2700, fax (818) 344-3777. Engineers:
experienced, registered, advanced degrees, extensive
testimony experience. Traffic accidents (all motor vehicle
types, bicycles, pedestrians), collisions, rollovers, skid
marks, visibility, signal phasing, time-motion, low-speed
impact. Industrial and construction accidents: OSHA issues. Automotive, industrial, consumer products:
brakes, seat belts, forklifts, machinery, tools, protective
equipment, lawn mowers, heaters, chairs, fixtures,
ladders, scaffolds, fasteners. Premises liability: code
analysis, stairways, ramps, doors, gates, windows,
guardrails, pools, and lighting. Slip-and-fall. Trip-andfall. Biomechanics. Safety. Human factors. See display
ad on page 42.
SUICIDE
ADDICTION FORENSICS GROUP
11301 West Olympic Boulevard, Suite 323, Los Angeles, CA 90064, (310) 966-1907, fax (310) 477-0661,
e-mail: [email protected]. Web site: www
.becksonmd.com. Contact Mace Beckson, MD.
Board certified Addiction/Forensic Psychiatry; UCLA
full-time faculty; Distinguished Fellow, APA; alcohol,
drugs, addictions, sexual compulsions, suicide, post-
KAJAN MATHER & BARISH
9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA
90212, (310) 278-6080, fax (310) 278-4805, e-mail:
[email protected]. Web site: www.taxdisputes.com.
Contact Elliott H. Kajan. The firm’s practice is devoted
to representation of taxpayers before the Internal Revenue Service, Franchise Tax Board, State Board of
Equalization, and California Employment Development
Department, involving tax audits, administration appeals
proceedings, tax collection matters, complex tax litigation, and criminal tax investigations and trials. The firm
also represents and advises accountants and attorneys
regarding tax penalties and professional responsibility
matters.
TOXICOLOGY
PRINCETON-SOMERSET GROUP, INC.
4 Carroll Drive, Hillsborough, NJ 08844, (800) 5978836, fax (908) 369-6881. Contact Dr. Dennis
Stainken. Expert witness, toxicology, health issues,
chemical exposure, mold issues, worker exposure,
contamination issues, causation assessment, property
damage/contamination and remediation, sewage, gasoline and oil issues and age determination, petroleum releases, chemicals/products, risk assessment, indoor air
quality/health effects, toxic tort evaluation, chemistry,
site assessment, regulatory issues, environmental toxicology, environmental issues, and wetland/ecological.
Services nationwide. Thirty plus years of industrial and
government experience in pollution under NPDES,
CERCLA, RCRA, SDWA & CWA. Former federal and
state regulator, professor, consultant, industrial research. Seventy-five plus publications.
TRAFFIC ENGINEER
WILLIAM KUNZMAN, PE
1111 Town and Country #34, Orange, CA 92868,
(714) 973-8383, fax (714) 973-8821, e-mail: mail
@traffic-engineer.com. Web site: www.traffic-engineer
.com. Contact William Kunzman, PE. Traffic expert
witness since 1979, both defense and plaintiff. Auto,
pedestrian, bicycle, and motorcycle accidents. Largest
settlement: $2,000,000 solo vehicle accident case
against Caltrans. Before becoming expert witnesses,
employed by Los Angeles County Road Department,
Riverside County Road Department, City of Irvine, and
Federal Highway Administration. Knowledge of governmental agency procedures, design, geometrics, signs,
traffic controls, maintenance, and pedestrian protection
barriers. Hundreds of cases. Undergraduate work—
UCLA; graduate work—Yale University.
WEATHER
GOLDEN GATE WEATHER
781 McDuff Avenue, Fremont, CA 94539, (510) 6572246, fax (510) 315-3015, e-mail: [email protected].
Web site: http://ggweather.com. Contact Jan Null.
Certified consulting meteorologist experienced at trial
and depositions. Weather event reconstruction and expert analysis for rain, storms, wind, snow, flooding, ice,
fog, and other weather events. Twenty-three years’ experience with National Weather Service. Degrees: BS,
MA, CCM.
Computer Counselor
BY GORDON ENG
Technology Trends Affecting the Practice of Law
IN THE COMING MONTHS, lawyers can look to electronic technology
not only to provide devices to improve office productivity but also
to provide new arenas for the practice of law. Perhaps most influential will be handheld devices, which continue to improve the connections between traveling attorneys and their office computers. A
related fact of life is the ever-growing ubiquity of computers and data.
This development will continue to affect such legal issues as privacy,
discovery, and intellectual property.
In the handheld world you are free to travel our land while being
able to receive phone calls, e-mail, and music; synchronize with contacts and appointments on your desktop; take and send photos;
organize your finances; and play video games on what used to be just
a cell phone. Take a look at the Handspring Treo 650 (www
.palmone.com). It can do it all. It uses the Palm OS, so there is a large
number of applications already available. The Sony Ericsson P910a
(www.sonyericsson.com/p910) is another great all-in-one, but it may
be less suited for law firm applications, because it is designed for the
Symbian operating system and several common time, billing, and case
management programs may not be compatible. In the corporate
environment, the Blackberry is more common as a result of the relative ease in which the e-mail client functions with the handheld unit.
Radio frequency identification tags, or RFIDs, can fit into a container about the size of a gelatin-capsule pill. They are no bigger than
the antitheft tags that many retail products already have and that contain no data. RFID tags, on the other hand, can be encoded with data—
for example, the type of product within a container (or, for that matter, your recent medical records, arrest record, or account and PIN
numbers). RFID tags come in two varieties: active and passive. The
passive type responds to the energy field produced by a reading
device. Active RFID tags have a battery or other power source and
can transmit their data over distances as great as 300 feet. RFID technology has been available since the 1970s, but the costs to produce
the tags and scanners have now been brought down to a more affordable range.
Passive RFIDs and their readers have a range of a few inches to
a few feet, and one of their functions is that of a more sophisticated
bar code that contains much more information about the product. One
clear advantage that they have over bar codes is that an item tagged
with a passive RFID can be scanned from any angle and the tag does
not depend on light to be read. Bar codes, on the other hand, can only
be read from a very short distance, at or near a right angle and
within line of sight of the reader. Some major retailers—for which
inventory control is always a great concern—are already demanding
that their suppliers use RFIDs.
The lack of uniform standards had impeded the implementation
of RFID technology, but in December 2004, EPC Global, a standardsetting body for RFID, announced a second generation of specifications that, if implemented, will resolve a number of compatibility issues.
A number of vendors have announced that they plan to offer tags that
comply with these specifications. In short, RFID technology may be
coming soon to a courtroom near you. In the near future, lawyers may
be called upon to advise their employers on the legalities of RFIDs
on employee ID cards and the placement of scanners around the office.
Government and criminal defense attorneys may argue about RFIDs
on driver’s licenses.
The privacy and security issues raised by RFID technology are not
as up-to-date as the technology itself. Appropriately, the Internet is
the best starting place for information on the conflict between privacy
rights and the facility with which they can be compromised with the
help of computers and other electronic devices, including RFIDs. Some
Web sites that cover privacy, RFIDs, and the technical standards for
RFIDs include www.epcglobal.org, www.epic.org, www.ala.org,
www.rfidnas.com, www.aimglobal.org/standards/stndrdorgs.asp, and
www.rfidjournal.com. On the Internet, some basic research on privacy laws can begin at www.privacy.ca.gov, www.epic.org, and
www.eff.org. For a general overview of federal security initiatives, start
with the Department of Homeland Security at www.dhs.gov and
Customs and Border Protection at www.cbp.gov.
Electronic Discovery
Another issue involving privacy and the increasing use of computers
and data-carrying devices is the burden of electronic discovery.
Electronic discovery in judicial settings and for internal investigations
will change the relationships among users, companies, and their
computers. Attorneys in many practice areas may soon need to be better informed about how many copies of an e-mail message reside in
the computer where it originated, each server along its path, and
backup files, not to mention what information is automatically
embedded in that message by the application that generated it.
RFIDs do not yet keep track of the movements of office workers,
but they have dramatically advanced the amount of information
that can ride along with a product from the manufacturer to the
retailer. Similarly, as computers are ever more widely used and
become steadily more capable of storing data, the field of electronic
discovery has been dramatically affected. The flood of information
that nearly any organization now harbors on its computers, servers,
and telephone systems may become subject to a discovery request, and
nothing more than compliance with the request can bring ruin.
In 2004 the federal courts issued proposed changes to the Federal
Rules of Civil Procedure to address some of the concerns over the intrusiveness, costs, and use of electronic discovery. (See www
.kenwithers.com/rulemaking/civilrules.) California has also addressed
some of these issues in Code of Civil Procedure Sections 2017 et seq.
In particular, Section 2017.730 provides that in certain cases the court
must find, or the parties must stipulate, that electronic discovery will
be cost-efficient. The court may appoint a third-party service provider
to work on the discovery process in an efficient and cost-effective manGordon Eng is a business transactional and real estate lawyer in Torrance and
a member of the Los Angeles Lawyer Editorial Board.
Los Angeles Lawyer April 2005 79
SUNBELT BUSINESS BROKERS OF BEVERLY HILLS
JOHN A. SCHMID
BUSINESS BROKER
310.678.8606
We discretely sell businesses from one to ten
million in valuation. All fees earned upon
successful conclusion of the transaction.
Confidentiality assured.
www.sunbeltbizbrokers.com
JACK TRIMARCO & ASSOCIATES
POLYGRAPH/INVESTIGATIONS, INC.
9454 Wilshire Blvd.
Sixth Floor
Beverly Hills, CA 90212
(310) 247-2637
Jack Trimarco - President
Former Polygraph Unit Chief
Los Angeles F.B.I. (1990-1998)
email: [email protected]
www.jacktrimarco.com
CA. P.I. # 20970
Member Society of Former Special Agents
Federal Bureau of Investigation
80 Los Angeles Lawyer April 2005
Former Polygraph Inspection Team Leader
Office of Counter Intelligence
U.S. Department of Energy
ner. In addition, corporate counsel, IT experts,
and management have been and will be
obliged to work together to create policies and
procedures for coping with electronic discovery.
Corporate Compliance
The burdens of electronic discovery can weigh
on anyone who relies on a computer, but
they may be especially worrisome for corporate counsel, who can also add compliance issues to their list of technological challenges. Before the Sarbanes-Oxley Act, when
the CEO of a public company stated that
“the buck stops here,” he or she was usually
assumed to be speaking figuratively. After
the act’s passage, executives and board members must spend an unprecedented amount of
time ensuring accountability for how the corporation’s decisions are made and how information is reported.
Sarbanes-Oxley is not the only recent legislation to focus on compliance issues.
Companies involved in healthcare, banking,
and the environment have recently faced
increased regulation, resulting in more frequent review of their compliance practices,
and attorneys in and out of house have had
to adjust their roles accordingly. There are no
signs that this will change soon.
Statutory certifications of compliance are
frequently based on a review of the process
by which a corporation makes decisions.
This review often depends on checklists concerning how information is collected and
how it is reviewed. The use of checklists, in
turn, is facilitated by computer-based tracking systems that can include all personnel,
from rank-and-file employees to the CEO. To
offer effective advice, counsel will need to
understand how these computerized checklists
are created and used.
For a taste of the size of this market one
need only conduct an Internet search for the
term “corporate compliance.” A multitude of
vendors and software companies are ready
to help make it easier for their clients to document compliance. In addition, various
organizations have Web pages to facilitate
research. These include complianceresources
.org, http://aicpa.org/antifraud/homepage
.htm, http://oig.hhs.gov, www.occ.treas.gov,
www.fdic.gov, www.hcca-info.org, and www
.int-comp.org.
Lawyers may have mixed feelings about
computers, which seem to create as much
drudgery as they prevent. While every computer-created legal liability is also an employment opportunity, many lawyers may wonder whether the machine serves them or the
other way around. In either case, thanks to
handheld devices, attorneys can stay in touch
with their office computers from almost anywhere at nearly any time.
■
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Attorney Wanted
Counseling and Psychotherapy
ASSOCIATE ATTORNEY FOR NORTHWEST LAW
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A minimum of three years’ experience with emphasis on complex litigation, construction litigation, or
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WORK ON FAMILY CONCERNS. Obtain expert help
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Richard Gottfried, JD, MBA, MFT (Lic.# MFC32871).
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LEADING ESTATE PLANNING LAW FIRM desires to
purchase or merge practices of retiring LA area
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ESTABLISHED 1985, LITIGATION RESOURCES is
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Los Angeles Lawyer April 2005 81
Index to Advertisers Index to Advertisers
Accredited Psychiatry & Medicine, p. 67
Tel. 617-492-8366 www.forensic-psych.com
John R. Grindon & Associates, p. 64
Tel. 314-895-4747 www.jrgrindon.com
Pro/Consul, Inc., p. 75
Tel. 800-329-1119 www.expertinfo.com
Advisory Services Group, p. 67
Tel. 310-937-7700
Gursey, Schneider & Company, p. 55
Tel. 310-552-0960 www.gursey.com
Graham A. Purcell, MD, p. 73
Tel. 818-985-3051 www.gpurcellmd.com
Air Weather & Sea Conditions, Inc., p. 78
Tel. 818-645-8632 www.weatherman.org
Hargis & Associates, Inc., p. 59
Tel. 800-554-2744 www.hargis.com
Quo Jure Corporation, p. 21
Tel. 800-843-0660 www.quojure.com
AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 77
Tel. 800-275-8903 www.amfs.com
Higgins, Marcus & Lovett, Inc., p. 43
Tel. 213-617-7775 www.hmlinc.com
Jan Raymond, p. 35
Tel. 888-676-1947 e-mail: [email protected]
The Andela Consulting Group, Inc., p. 76
Tel. 818-380-3102
G. L. Howard CPA, p. 12
Tel. 562-431-9844 e-mail: [email protected]
Rick Engineering Company, p. 50
Tel. 909-782-0707 www.rickengineering.com
Aon Direct Admin./LACBA Professional Liability, Inside Front Cvr.
Tel. 800-634-9177 www.attorneys-advantage.com
Jack Trimarco & Associates Polygraph, Inc., p. 80
Tel. 310-247-2637 www.jacktrimarco.com
Rimkus Consulting Group, Inc., p. 65
Tel. 877-978-2044 www.rimkus.com
A R Tech Forensic Experts, Inc., p. 42
Tel. 818-344-2700 e-mail: [email protected]
Jeffrey Kichaven, p. 21
Tel. 310-996-8465 www.jeffkichaven.com
ROEL Construction Company, p. 58
Tel. 619-297-4156 www.roel.com
AT&T Wireless, Inside Back Cvr.
Tel. 800-459-6524 www.attwireless.com
Fred M. Johnson, PhD., p. 63
Tel. 714-526-6661 e-mail: [email protected]
Rosen & Associates, PC, p. 69
Tel. 213-362-1000 www.rosen-law.com
Ballenger, Cleveland & Issa LLC, p. 48
Tel. 310-873-1717
KARS Advanced Materials, Inc., p. 50
Tel. 714- 892-8987 www.karslab.com
Ronsin Legal, p. 12
Tel. 323-526-7300 www.rosinlegal.com
Gunther R. Bauer, MD, Attorney at Law, p. 64
Tel. 310-377-5557 www.bauermdmedmallaw.com
Kroll, p. 49
Tel. 213-443-6090 www.krollworldwide.com
Jonathan S. Rutchik, MD, p. 77
Tel. 415-381-3133 www.neoma.com
Law Office of Donald P. Brigham, p. 4
Tel. 949-206-1661 e-mail: [email protected]
Krycler, Ervin, Taubman & Walheim, p. 53
Tel. 818-995-1040 www.ketw.com
Rutter Hobbs & Davidoff, Incorporated, p. 6
Tel. 310-286-1700 www.rutterhobbs.com
Bruce Broukhim, MD, p. 61
Tel. 818-775-6500
LACBA Family Law Section, p. 61
Tel. 213-896-6560 www.lacba.org
Sanli Pastore & Hill, Inc., p. 47
Tel. 310-571-3400 www.sphvalue.com
Charles River Associates, p. 51
Tel. 202-662-3800 www.crai.com
Lawyers’ Mutual Insurance Co., p. 7
Tel. 800-252-2045 www.lawyersmutual.com
Secure Evidence Storage Co., Inc., p. 12
Tel. 800-924-2883 www.secureevidencestorage.com
Cohen Miskei & Mowrey, p. 57
Tel. 818-986-5070 e-mail:[email protected]
Legal Tech, p. 33
Tel. 800-537-2128 www.legaltechshow.com
Spiegel Property Damage Consulting and Forensics, p. 42
Tel. 800-266-8988 www.propertydamageinspections.com
Commerce Escrow Company, p. 28
Tel. 213-484-0855 www.comescrow.com
Law Offices of Boyd S. Lemon, p. 64
Tel. 310-827-0840 www.legalmalexpert.com
Steven R. Sauer APC, p. 8
Tel. 323-933-6833 e-mail: [email protected]
Construction Forensics, p. 52
Tel. 800-559-0933 e-mail: [email protected]
Lexis Publishing, p. 5, 13
www.lexis.com
Anita Rae Shapiro, p. 27
Tel. 714-529-0415 www.adr-shapiro.com
D. Wylie Associates, p. 59
Tel. 805-681-9289 www.drivingfatigue.com
Lineback, Inc., p. 62
Tel. 714-565-1012 e-mail: [email protected]
Stonefield Josephson, Inc., p. 11
Tel. 866-225-4511 www.sjaccounting.com
DataChasers.com, p. 48
Tel. 951-780-7892 www.datachasers.com
Arthur Mazirow, p. 80
Tel. 310-255-6114 e-mail: [email protected]
Deadlines On Demand, p. 9
Tel. 888-363-5522 www.deadlines.com
MCLE4LAWYERS.COM, p. 6
Tel. 310-552-5382 www.MCLEforlawyers.com
Desmond, Marcello & Amster, p. 52
Tel. 310-216-1400 www.dmavalue.com
Gil Mileikowsky, MD p. 67
Tel. 310-858-1300 www.baby4you.net
Diversified Risk Management, Inc., p. 21
Tel. 800-810-9508 www.diversifiedriskmanagement.com
Clinton E. Miller, JD, p. 65
Tel. 408-279-1034 www.millerjd.qpg.com
E. L. Evans & Associates, p. 63
Tel. 310-559-4005
Miod and Company, LLP, p. 61
Tel. 818-898-9911 www.miod-cpa.com
Eurisko Corporation, p. 69
Tel. 818-774-0043 www.euriskocorp.com
MP Group, p. 35
Tel. 323-874-8973 www.mpgroup.com
Georg Finder, p. 55
Tel. 714-441-0900 www.creditdamageexpert.com
Mr. Truck, p. 52
Tel. 925-625-4994 or 800-337-4994 e-mail: [email protected]
Kenneth J. Fischbeck, p. 46
Tel. 714-609-7481 e-mail: kfi[email protected]
National Properties Group, p. 72
Tel. 310-516-0022
Forensic Expert Witness Associates, p. 53
Tel. 949-640-9903 www.forensic.org
Alan Burton Newman, Professional Law Corporation, p. 4
Tel. 310-306-4339 www.newmanslaw.com
ForensisGroup Inc., p. 43
Tel. 626-795-5000 www.forensisgroup.com
Nextel Communications, p.1
Tel. 866-805-9890 reference MLSAB www.nextel.com/lacba
Fragomen, Del Rey, Bernsen & Loewy, LLP, p. 17
Tel. 310-820-3322 www.fragomen.com
Noriega Clinics, p. 81
Tel. 323-728-8268
Samuel K. Freshman, p. 59
Tel. 310-410-2300 e-mail: [email protected]
OFS, “The Business Doctors”, p. 46
Tel. 310-821-1893 www.ofs3.com
Marc J. Friedman, M.D., p. 64
Tel. 818-901-6600 e-mail: [email protected]
Oliveri Fashion, p. 27
Tel. 310-899-1936 www.oliverifashion.com
FULCRUM Financial Inquiry LLP, p. 2
Tel. 213-787-4100 www.fulcruminquiry.com
David Ostrove, Attorney-CPA, p. 43
Tel. 323-939-3400 www.lawyers.com/ok&alaw
Arnold L. Gilberg, MD, PhD., A Professional Corporation, p. 55
Tel. 310-274-2304
Pacific Construction Consultants, Inc. (PCCI), p. 50
Tel. 916-638-4848 www.pcci.biz
Steven L. Gleitman, Esq., p. 4
Tel. 310-553-5080
Pacific Construction Management, Inc., p. 47
Tel. 800-576-7264 www.pcmi.biz
Dr. Lewis Yablonsky, PhD., p. 63
Tel. 310-450-3697
e-mail: [email protected]
G. Govine Consulting, p. 60
Tel. 526-564-0502 www.govineconsults.com
Pacific Health & Safety Consulting, Inc., p. 57
Tel. 949-253-4065 www.phsc-web.com
Zivetz, Schwartz & Saltsman, p. 46
Tel. 310-826-1040 www.zsscpa.com
82 Los Angeles Lawyer April 2005
Jeff Sugar, M.D., p. 76
Tel. 310-322-6933 e-mail: [email protected]
Sunbelt Business Brokers of Beverly Hills, p. 80
Tel. 310-678-8606 www.sunbeltbizbrokers.com
TASA, Technical Advisory Service for Attorneys, p. 69
Tel. 800-523-2319 www.tasanet.com
ULTIMO Organization, Inc., p. 57
Tel. 714-560-8999 www.geotechnical.com
URS, p. 47
Tel. 213-996-2571 www.urscorp.com
Vision Sciences Research Corporation, p. 78
Tel. 925-837-2083 www.apgvsrc.com
Temmy Walker, Inc., p. 73
Tel. 818-760-3355
Law Offices of Alan D. Wallace, p. 60
Tel. 818-501-0133 www.expertwitnessre.com
Bruce Wapen, MD, p. 71
Tel 650-577-8635 www.drwapen.com
Ward & Credell, Attorneys at Law, p. 27
Tel. 310-540-1771
West Group, Back Cover
Tel. 800-762-5272 www.westgroup.com
White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 45
Tel. 818-981-4226 www.wzwlw.com
Lesther Winkler, M.D., p. 72
Tel. 818-349-8568
Witkin & Eisinger, LLC, p. 49
Tel. 310-670-1500
Woody Financial Realty, p. 21
Tel. 562-439-3344 e-mail: dave@woodyfinancial.com
CLE Preview
Annual Environmental Law Super Symposium
ON THURSDAY, APRIL 7, the Environmental Law Section will present
the 19th Annual Environmental Law Super Symposium. This program
will emphasize creative solutions to the problem of diminishing
resources in Southern California due to environmental contamination,
population growth, and regulatory control. The symposium will take
place at the Omni Los Angeles Hotel, 251 South Olive Street,
Downtown. On-site registration will begin at 8 A.M., with the program
continuing—with a lunch break—from 8:30 A.M. to 4:30 P.M. The
registration code number is 008918. The prices below include the
meal.
$150—CLE+PLUS members
$275—Environmental Law Section members
$325—other LACBA members
$375—all others
$400—all at-the-door registrants
6.75 CLE hours
The 2005 Labor and Employment Law Section Annual Retreat
ON FRIDAY, APRIL 15, the Labor and Employment Law Section will sponsor
its annual retreat in beautiful Ojai. Share in learning, laughter, and allaround good times while earning CLE credits at a very reasonable price.
This retreat will take place at the Ojai Valley Inn and Spa (on Country Club
Road in Ojai). On Saturday and Sunday mornings, CLE programs will run
from 8 A.M. until 12:15 P.M. and will feature an ethics segment, an
opportunity to hear from well-respected judges, a debate between two of
the most outspoken members of the labor and employment bar, a
commentary on identification of liars, an up-to-date presentation on
creative uses of technology, and a program on using yoga to manage
stress. The inn’s toll-free number is (800) 422-6524, and its URL is
www.ojairesort.com. Participants must reserve rooms with the inn
separately from the program registration. A spouse or guest may attend
the reception on April 15, dinner on April 16, and breakfast on April 16
and 17 for $90. The retreat’s registration code number is 008944.
$120—CLE+PLUS members
$240—Labor and Employment Law Section members
$285—other LACBA members
$335—all others
7 CLE hours
EXCEL AND WORD
FOR ATTORNEYS
ON TUESDAY, APRIL 5, the Los
Angeles County Bar Association will
present a course on how to go
beyond the basics of Microsoft
Word and Excel. Speaker Russell
Jackman will demonstrate
techniques to use these programs
to benefit any practice. The
program is taught with hands-on
techniques that novice users can
follow but it is also designed so
that veteran users can gain useful
new skills. Techniques such as
using a pleading wizard; creating
templates; using autotext and
callouts; formatting and effective
use of text boxes, columns, and
page layouts; and using a
spreadsheet to create budgets,
graphs, and charts will all be
discussed in this informative
seminar. The program will take
place at the LACBA/LexisNexis
Conference Center, 281 South
Figueroa Street, Downtown. On-site
registration and the meal will begin
at 5:30 P.M., with the program
continuing from 6 to 9:15 P.M. The
registration code number is
008837. The prices below include
the meal.
$45—CLE+PLUS members
$75—LACBA members
$100—all others
3.25 CLE hours
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed
on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at http://calendar.lacba.org/.
For a full listing of this month’s Association programs, please consult the County Bar Update.
Los Angeles Lawyer April 2005 83
Closing Argument
BY KEITH PAUL BISHOP
A Washington Fable for Our Time
IMAGINE THAT you are the chief executive officer of a growing pub- not even initiate disciplinary proceedings against me if I do.”
This story may seem a farfetched fable, but most of the details are
lic company. You learn that a government agency has begun an
investigation of your industry, and your company is on the list of tar- already reality. In 2001, the Securities and Exchange Commission
geted companies. You call your company’s law firm, anxiously antic- issued its “Report of Investigation Pursuant to Section 21(a) of the
ipating learning your lawyer’s plans to defend vigorously the company’s Securities Exchange Act of 1934 and SEC Statement on the Relationship of Cooperation to Agency Enforcement.” That report emphaposition and achieve its ultimate vindication.
Your lawyer arrives at your initial meeting exuding experience and sizes the role of cooperation, including self-investigation and the
confidence but then tells you that the company must immediately begin disclosure of the results of any internal investigation, as a mitigating
to cooperate in the agency’s investigation. “What about a defense?” factor. In January 2003, the Department of Justice issued what is
you demand. With studied patience, your lawyer replies that any known as the Thompson Memorandum, which also emphasizes the
attempt to defend the company’s position
would be futile—indeed, worse than futile.
Because the government is investigating
As a profession, we have in large measure stood by silently as our
your industry, resistance would only paint
a bull’s eye on your company and result in
harsher penalties for failing to cooperate.
historic obligations to our clients have been eroded.
You realize that if every company receives
and follows this advice, the agency’s position will never be challenged effectively.
You ask what it means to cooperate. Your lawyer calmly explains waiver of the attorney-client privilege. Moreover, a California court1
that “cooperation” means “capitulation” but brings no formal assur- has concluded that this disclosure constitutes a waiver of the of the
ance of leniency from the agency. Counsel advises that your company attorney-client privilege and the attorney work-product doctrine.
hire another, “independent” law firm to conduct a thorough internal
The SEC has also made it clear that lawyers who conduct these
investigation and report the results of the investigation to the agency. investigations are potential targets. Last fall , the SEC’s director of
In other words, the agency wants your company to buy and bring the enforcement stated, “One area of particular focus for us is the role
rope for its own hanging. Moreover, the agency may prosecute the of lawyers in internal investigations of their clients or companies.”
investigating lawyer if that lawyer’s investigation exonerates your com- Cooperation with the commission can also endanger a target vis-àpany and the agency does not agree. Thus, the investigating lawyer vis other enforcement agencies. For example, in United States v.
will have every reason to err in the direction of finding a violation.
DiStefano,2 a registered representative of a broker-dealer submitted
Surely, you think, this investigation would be confidential and not to a nine-hour deposition by the SEC. Subsequently, the U.S. attoravailable to other litigants. Your lawyer explains that when your com- ney indicted him for conspiracy to commit securities, mail and wire
pany turns over the results of the investigation to the agency, the com- fraud, and securities fraud. Finally, the SEC’s recently adopted attorpany will be waiving the attorney-client privilege and work-product ney conduct rules3 permit lawyers, in some circumstances, to disclose
protection—so that other civil and criminal enforcement agencies, or information without the consent of their clients to the commission
anyone who wants to sue the company, will have access to the work. and purport to immunize lawyers who take advantage of these rules.
Not willing to give up, you protest that surely your lawyer could
As a former state securities regulator, I am deeply troubled by secumount a spirited defense on behalf of the company. Your attorney rities fraud and corporate malfeasance. However, I also fear the curresponds, “We have handled scores of these types of investigations. rent regulatory assault upon the attorney-client relationship. In a free
We always recommend immediate cooperation and settlement. We society, we must be free to seek the advice and counsel of private attorwould ruin our firm’s reputation with the agency if we did otherwise.” neys who are bound to maintain the trust and confidentiality of the
“Isn’t that a conflict of interest?” you ask incredulously. “Well, it would attorney-client relationship. As a profession, we have in large meabe, but the agency has decided that we are ‘gatekeepers’ and will ignore sure stood by silently as our historic obligations to our clients have
the professional obligations that lawyers once owed to clients.”
been eroded. We must speak up before it is too late.
■
You end the meeting by observing, “You are my company’s lawyer
and I must assume that you are obligated to keep confidential the mat- 1 McKesson HBOC, Inc. v. Superior Court, 115 Cal. App. 4th 1229 (2004).
ters that we discussed today.” Without hesitation, your lawyer replies, 2 United States v. DiStefano, Case. No. S2 98 Cr. 1316 (RWS) (S.D. N.Y. 2001).
3 See 17 C.F.R. §§205 et seq.
“Once it was true that we lawyers had to maintain the confidentiality of our client’s secrets ‘at every peril,’ but that era is over. The agency
has adopted formal rules that permit me to divulge your company’s
Keith Paul Bishop is a shareholder of Buchalter, Nemer, Fields & Younger and
secrets without its consent. According to the agency, the State Bar canformer California commissioner of corporations.
84 Los Angeles Lawyer April 2005
When your association membership
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Members of the Los Angeles County Bar Association can save with AT&T Wireless.
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© 2003 AT&T Wireless. All Rights Reserved. General requirements: Requires credit approval, $36 Activation Fee, annual contract, $175 cancellation fee and a compatible phone. Subject
to service terms and conditions and the calling plan brochure for the specific plan you choose. Service not available for purchase or use in all areas. May not be available with other
offers. 5% Discount: Available only to active members of associations participating in the AT&T Wireless Association Program or its predecessor. Discount is activated only when you
call the toll-free membership verification number listed above. Discount is only available on select AT&T Wireless digital calling plans and only applies to qualified charges as defined in
your association’s AT&T Wireless Services Wireless Association Agreement. It may take up to 90 days for the discount to appear on your account. Other terms, conditions and restrictions
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