November 2010 - Los Angeles County Bar Association

Transcription

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sta aw 72
Re L PAGE
Semiannual Guide to Expert Witnesses
November 2010 /$4
EARN MCLE CREDIT
Enforceability
of ForumSelection
Clauses
page 25
PLUS
Bad News
for Copyright
Claimants
page 32
Loss Deductions
from Wages
page 10
Undocumented
Personal Injury
Plaintiffs
page 15
Super
Powers
Los Angeles lawyers
Justin M. Goldstein (left) and
Noah Pérez-Silverman discuss
the inherent powers of
courts to address litigation
abuse page 18
Photograph used with permission of Creative Commons
THE SCHOOL OF LAW AND THE CENTER FOR GLOBAL LAW
AND DEVELOPMENT AT CHAPMAN UNIVERSITY
proudly announce
GLOBAL PROJECT FOR LGBTQ RIGHTS AND FEMINISM
Photograph used with permission of Marta Evry
PROJECT CO-DIRECTORS
CONFIRMED SPEAKERS FOR 2010-2011:
June Rose Carbone – Monday, October 4, 2010
Edward A. Smith/Missouri Chair in Law,
the Constitution and Society
Professor M. Katherine Baird Darmer served as an Assistant United States
Attorney in the Southern District of New York before joining the faculty at Chapman
University School of Law in 2000. She is co-editor of the book Morality, Justice and
the Law and has published several articles and spoken in legal forums across the
country on matters related to Proposition 8 and LGBTQ rights. She is a founding
board member and Chair of the Legal Team of the Orange County Equality Coalition
and a founding board member of Lavender Bar Association. She was recently awarded
a Community Bridge Award for her work on behalf of LGBTQ rights. In 2009, she
served as a sabbatical visitor and senior fellow in Columbia Law School’s Gender
and Sexuality Law Program in New York City. She was one of two lead authors of an
amicus brief filed on behalf of numerous Chapman University and Orange County individualsand married couples
in favor of overturning Proposition 8 before the California Supreme Court. Professor Darmer received her A.B.
from Princeton University, with high honors, and her Juris Doctor from Columbia University, where she was
a Harlan Fiske Stone Scholar. She will teach a new seminar on Sexual Orientation in spring 2011.
University of Missouri-Kansas City School of Law
“What Does Bristol Palin Have To Do With
Same-Sex Marriage?”
Dean Spade – Thursday, October 28, 2010
Assistant Professor of Law
Seattle University School of Law
"The End of G(LBT?) Rights Politics"
Katherine M. Franke – Wednesday, January 12, 2011
Professor of Law, Director of Center for Gender
and Sexuality Law
Columbia Law School
Professor Marisa S. Cianciarulo is the Director of Chapman’s Family Violence
Clinic, in which upper-level law students represent survivors of domestic violence, rape,
and other crimes in petitions for restraining orders and applications for immigration
relief. She is a specialist in clinical teaching and immigration law with a human rights
focus. Professor Cianciarulo taught in the Villanova Clinic for Asylum, Refugee and
Emigrant Services for three years prior to joining the faculty at Chapman. She previously
served as a Staff Attorney with the American Bar Association’s Commission on Immigration
in Washington, D.C., was a partner in a law firm specializing in immigration matters,
and served as interim legal director of a non-profit immigration services provider in
Arlington, Virginia. She publishes on the intersection of gender and immigration with an emphasis on vulnerable
immigrant populations. Professor Cianciarulo received her B.A. from the Catholic University of America, her J.D.
from American University Washington College of Law, and her M.A. from American University School of International
Service. She teaches the Family Violence Clinic, Gender & the Law, Refugee Law and Civil Procedure.
"Dignifying Rights: Reflections on the Same-Sex
Marriage Litigation"
BOARD OF ADVISORS
Catherine E. Smith – Spring 2011
Associate Dean of Institutional Diversity and Inclusiveness,
Ashleigh Aitken, president of the Orange County Women Lawyers Association and former Assistant
United States Attorney in the Central District of California.
Associate Professor
University of Denver Sturm College of Law
Tiffany Chang, board member of the Orange County Equality Coalition and former president of Outlaw,
Topic: TBA
the Chapman law student group for LGBTQs and straight allies.
Lt. Dan Choi, West Point graduate and Arab language specialist in the United States Army before being
discharged after publicly coming out as being gay.
MISSION STATEMENT
The mission of the Global Project for LGBTQ Rights and
Feminism is to bring leading scholars and policymakers
to Chapman University to discuss a wide range of issues
related to family law, marriage equality, discrimination based
on sex and sexual orientation, international human rights,
and the profound impact that gender and sexual orientation
have on law and society; to address the complex questions
evoked by feminist theory and LGBTQ rights through an
interdisciplinary approach; and to provide an important
forum for international dialogue about gender and
sexual orientation.
Karyl E. Ketchum, Ph.D., assistant professor of Women’s Studies at California State University, Fullerton
whose scholarship has examined the relationship between misogyny and homophobia.
Shannon Minter, Esq., legal director of the National Center for Lesbian Rights and lead attorney in the
California marriage cases whose work led to the first-ever state supreme court finding that gays and lesbians
are entitled to “suspect classification” status for equal protection purposes. Ford Foundation “Leadership
for a Changing World” award recipient.
Rev. Canon Albert J. Ogle, board member of Equality California and Integrity, U.S.A., which works closely
with Bishop Christopher Senyonjo of Uganda in battling the repression of LGBTQs in that country.
Jeffrey A. Redding, assistant professor of law at St. Louis University whose scholarship examines family
norms and family law practices across cultures. Former Oscar M. Ruebhausen Fellow in Law at Yale Law School.
VISION STATEMENT
The vision of the Global Project for LGBTQ Rights and
Feminism is a world safe for all persons, regardless
of gender, gender identification or sexual orientation.
One University Drive, Orange, CA 92866
■
www.chapman.edu/law
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F E AT U R E S
18 Super Powers
BY JUSTIN M. GOLDSTEIN AND NOAH PÉREZ-SILVERMAN
Recent court decisions confirm that a trial court’s inherent powers extend to
termination of litigation
25 Location Location Location
BY JULIE J. BISCEGLIA
California law, in contrast to federal rules, leaves little time at the initiation of
a lawsuit for enforcing a forum-selection clause
Plus: Earn MCLE credit. MCLE Test No. 197 appears on page 27.
32 Death of Copyright
BY STEVEN T. LOWE
Has an unbroken string of federal court decisions effectively denied
screenwriters protection against infringement by studios?
42 Special Section
Semiannual Guide to Expert Witnesses
Los Angeles Lawyer
D E PA RT M E N T S
the magazine of
the Los Angeles County
Bar Association
November 2010
Volume 33, No.8
COVER PHOTO: TOM KELLER
9 Barristers Tips
How to prepare for direct examination of
a witness
72 By the Book
The Essential Guide to California
Restaurant Law
BY DEVON MYERS
REVIEWED BY GORDON ENG
10 Practice Tips
The limits on employer deductions from
pay in California
76 Closing Argument
Leveraging justice with the Justice
Gap Fund
BY STEVEN G. PEARL
BY ASSEMBLYMEMBER MIKE FEUER,
HOLLY J. FUJIE, AND REX S. HEINKE
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15 Practice Tips
The immigration status of plaintiffs in
personal injury actions
73 Classifieds
BY CEDRIC M. SHEN AND HUMBERTO R. GRAY
74 Index to Advertisers
70 LACB Foundation
2009-2010 Fund Drive Results
75 CLE Preview
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MICHAEL A. GEIBELSON
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4 Los Angeles Lawyer November 2010
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ASSOCIATION OFFICERS
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JUDGE
LAWRENCE W. CRISPO
(RET.)
I
n a prior column, I noted that “in the absence of a precedent stating the obvious, common sense will suffice.”
Jeffer, Mangels & Butler v. Glickman, 234 Cal. App. 3d
1432, 1439 (1991). But Jeffer, Mangels was nearly 20 years ago,
long before the Internet infiltrated our homes and pockets.
Mediator
Referee
Arbitrator
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Now, common sense often requires confirmation via a quick Internet search. Still
we often quip with irony that “it’s on the Internet, so it must be true” and joke about
receiving “official request[s]” from Nigerian royalty to transfer money.
Notwithstanding the scams, the availability of information on the Internet has
entered our communal psyche. As a result, the vast majority of us now second-guess,
or at least feel more comfortable in confirming with an Internet search, what we simply knew via common sense in years past. For example, 20 years ago, who would
have questioned whether there were different designs of yellow hats? At a minimum,
there’s the Gorton’s fish stick guy, Dick Tracy, the San Diego Padres, and the Man
with the Yellow Hat from the Curious George books. (I must confess that, despite
reading the Curious George books as a child and to my children ad nauseam, I conducted an Internet search to confirm that the Man with the Yellow Hat had no proper
name. This was so until 1998, according to Wikipedia, when he was “Ted” in the
book See the Circus and “Ted Shackleford” in the 2006 movie Curious George.)
Finally, there is “precedent stating the obvious”—an Internet search may suffice
to confirm (or demonstrate) common sense. In United States v. Bari, 599 F. 3d 176
(2d Cir. 2010), the U.S. Court of Appeals considered, and confirmed in a limited context, the propriety of a district court taking judicial notice of Internet search results.
After his imprisonment for bank robbery, Bari commenced his supervised release.
At a supervised release revocation hearing the court found Bari guilty of a bank robbery violation and a firearms violation “on the cumulative effect of multiple items
of evidence.” The judge noted that the “strongest piece of evidence” was a yellow
hat worn by the perpetrator (as seen on the bank’s surveillance video footage)—the
same type found in Bari’s landlord’s garage. “To emphasize the similarity between
the hats, [the district judge] stated that ‘there are clearly lots of yellow hats out there,’
and that ‘[o]ne can Google yellow rain hats and find lots of different yellow rain hats.’”
After noting that the Federal Rules of Evidence, except those governing privileges,
do not apply in revocation proceedings, the court concluded, “Common sense
leads one to suppose that there is not only one type of yellow rain hat for sale. Instead,
one would imagine that there are many types of yellow rain hats, with one sufficient
to suit nearly any taste in brim-width or shade. The District Court’s independent
Internet search served only to confirm this common sense supposition.”
Moreover, continued the Bari court, “As the cost of confirming one’s intuition
decreases, we would expect to see more judges doing just that. More generally, with
so much information at our fingertips (almost literally), we all likely confirm hunches
with a brief visit to our favorite search engine that in the not-so-distant past would
have gone unconfirmed.” The observations by the court foreshadow the impending
merger of the so far distinct subparts of Federal Rule of Evidence 201 on judicial notice
that address what is “(1) generally known within the territorial jurisdiction of the trial
court,” and “(2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Perhaps the same fate awaits California
Evidence Code Sections 451(f) and 452(g) and (h).
■
Michael A. Geibelson is a business trial lawyer with Robins, Kaplan, Miller & Ciresi L.L.P., where
he handles unfair competition, trade secret, and class actions. He is the 2010-11 chair of the
Los Angeles Lawyer Editorial Board.
barristers tips
BY DEVON MYERS
How to Prepare for Direct Examination of a Witness
WHILE NO SINGLE LIST CAN ENCOMPASS all the fine points of
preparing and questioning a witness at trial, the following list highlights the important ones. The first step is to conduct a comprehensive review of the evidence that relates to the witness. Collect and
review all documents related to the witness—including declarations,
depositions, and exhibits—to construct a narrative, through questioning, for the jury. Review documents, if any, that are not part of
discovery.
Once you have reviewed what you know about the witness, consider what you do not know and what you want to avoid. Cross-examination cannot exceed the bounds of direct examination, so unless
absolutely necessary, avoid topics that may be problematic. Next, talk
to the witness about the information you do not have that may add
useful detail to the testimony. Ask about any potential problems
that the witness may not have disclosed, so you know exactly what
weaknesses exist. Ask the hard questions too, which may involve facts
that the witness may not want to discuss.
When the review is complete, it is time to create an outline of your
questions. A witness declaration, if you have one, is a good place to
start to structure your outline. Use the declaration to create a list of
witness questions and answers. Direct examination questions cannot
be leading. Writing the expected answers is important in case your
witness gives an incomplete answer to a question. When this happens,
you will know what follow-up questions are needed to obtain the full
answer. When drafting your questions and answers, keep them short.
You want to help your witness move through the testimony in bitesized pieces, not long narratives.
After writing an outline of the questions and answers, review it
for any questions that are not included but that could provide useful testimony. Review these potential questions with your witness. Do
not include any question in your outline to which you do not know
the answer.
Consider possible objections to each question and how to handle
them. You can include these notations in the margins for quick reference. Include in appropriate places in the outline those documents
that you want to introduce into evidence. Note in your outline next
to the document what you intend to rely on to pass hearsay and relevance objections. Review your outline again for any gaps or subjects
to flesh out. If you get sidetracked during questioning, a short checklist of crucial points that you want to elicit can help.
Create a binder for each witness that includes the outline and
exhibits. Number tabs so that they match the exhibit number. For
example, if you have three exhibits, do not use exhibit tabs 1, 2, and
3. Instead, use the tab number that matches the exhibit list. Be sure
to include a cheat sheet—a bare-bones list of all the hearsay exceptions, legal principles to support your relevance arguments, and
objections you can make when your witness is being cross-examined.
The cheat sheet should not be more than a page long, although you
can put the objections on the back and flip the page over when your
witness is being cross-examined.
Once the outline is fully prepared, it is time to practice with your
witness. You do not want your witness’s testimony to sound rehearsed,
so review your questions as needed, probably no more than once. Or
you can describe the order in which you plan to ask questions and
the important points that need to be covered. For questions that have
emotional impact, steer clear of them in preparation so that the witness’s answers will be fresher for testimony. For example, I recently
had the opportunity to question witnesses during trial in the challenge
led by Log Cabin Republicans to the Don't Ask, Don’t Tell policy. My
first witness had an excellent answer to why he spent a lot of his time
speaking out against the policy. He did so because his best friend, who
was an excellent soldier, left the military because he could not bear
the burden of having to lie about his sexual orientation all the time.
The witness, who was also an excellent soldier, spoke of how it was
not the country he loved that applied such a policy. It was an emotional answer because of how passionately he felt for his friend and
all the other people who want to serve their country but cannot. The
first time I asked him that question was about two weeks before trial.
I did not ask it again when we prepared for trial. When I asked him
that question at trial, his answer was so powerful that it felt like everyone else in the courtroom stopped breathing.
Hold your preparation session in an informal place, but where you
will not be overheard. Take time to help the witness become more comfortable with you and the examination. Get to know the witness apart
from his or her testimony if you can; it will help you to elicit the story
on direct. You may also develop new questions from informal discussions. Tell your witness to remain calm and composed during crossexamination and to give you time to object, if necessary, before
answering. Conduct a mock cross-examination of your witness or, even
better, have a colleague that the witness does not know do it. You want
your practice cross-examination to be more difficult than the one the
witness will likely face. Remind your witness to always be truthful
and to answer the question asked. Lastly, explain to your witness where
he or she will sit and how the courtroom is situated. If you can, let
the witness see the courtroom ahead of time.
At trial, bring your binder and cheat sheet to the lectern, along with
a blank piece of paper for notes, particularly for points you may need
to circle back to in your examination. Bring a few sticky tabs too so
you can hold a place in your outline if you are interrupted and have
to finish your examination later. If your witness gets off track, ask a
leading question. You will probably get an objection, but it will
remind your witness what testimony you need. For exhibits, lay the
foundation first before you move to admit the document into evidence.
You cannot put the document on a projector until it is admitted. Once
cross-examination begins, only object when necessary. Make your redirect as short as you can, and direct it to any points that require clarification or explanation from cross-examination.
■
Devon Myers is an associate at White & Case LLP and practices in its litigation department.
Los Angeles Lawyer November 2010 9
practice tips
BY STEVEN G. PEARL
RICHARD EWING
The Limits on Employer Deductions from Pay in California
BUSINESSES IN CALIFORNIA currently employ almost 14 million nonfarm payroll employees—most of them hourly wage earners.1 With
such a large number of workers, it is a safe bet that each workday,
some California employees experience cash shortages, broken merchandise and equipment, and product theft. Equally inevitable is
that many employers who have lost money or merchandise look to
their employees to make up for shortages, breakage, and loss with
deductions from employee paychecks. These deductions are not necessarily legal.
Are employers legally justified in docking employee pay for the
losses employees cause by negligence or suspected theft? California
law does not give a clear answer. On the one hand, the Labor Code
requires employers—not employees—to bear the cost of doing business; further, the code expressly prohibits employers from making
deductions from pay except under very limited circumstances. In
addition, the due process clause of the Fourteenth Amendment to the
U.S. Constitution requires employers, like all other creditors, to provide notice and an opportunity to be heard before depriving a person of a property right, such as an employee’s pay for work already
performed.
On the other hand, the administrative regulations—specifically, the
Industrial Welfare Commission (IWC) wage orders that implement
the Labor Code—explicitly allow deductions under certain circumstances. The IWC regulates all California employees with a system
of 17 wage orders that constitute comprehensive statements of
employee rights and employer responsibilities. Section 8 of all but two
of the 17 wage orders covers shortages, breakages, and loss. The section states, “No employer shall make any deduction from the wage
or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the
shortage, breakage, or loss is caused by a dishonest or willful act, or
by the gross negligence of the employee.”2
Because this provision appears to conflict with the Labor Code and
the U.S. Constitution, a strong argument can be made that payroll
deductions for lost money or merchandise are not lawful. However,
no court has decided whether the administrative regulations that
permit deductions from an employee’s pay lawfully regulate the standard conditions of employment in California, unlawfully exceed the
administrative agency’s mandate, or violate the constitutional due
process rights of employees.
The history of employee rights in California goes back almost 100
years. After the Triangle Shirtwaist garment factory fire in 1911, a
wave of legislation intended to protect women and children workers
swept the nation. California passed its first minimum wage law in
1913.3 The law created the IWC and empowered it to establish a minimum wage, a maximum on hours of work, and standard conditions
of labor demanded by the health and welfare of employees.4 The legislature also initiated a voter-approved constitutional amendment to
confirm its new authority.5 With some exceptions, the laws defining
the IWC’s powers remain unchanged. The Labor Code still empow10 Los Angeles Lawyer November 2010
ers the IWC to adopt a series of wage orders prescribing the minimum
wages, maximum hours, and standard conditions of employment for
all employees in California.6
The IWC’s wage orders have general support in case law. In
Martinez v. Combs, the California Supreme Court strongly emphasized the importance of the IWC’s wage orders, holding that the wage
orders, rather than common law, define the employment relationship for purposes of California’s wage and hour laws. The court held
that “the IWC Wage Orders are entitled to extraordinary deference.”7
Section 8 of most of those orders, however, does not explain what
procedures should be used to show whether a shortage, breakage,
or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. The use of the passive voice—“unless it can
be shown”—raises questions about the burden of proof. There is
no designation of the tribunal that is charged with determining
whether the burden of proof has been met or whether the aggrieved
party has a right to review of that decision. However, employers may
understandably believe that, under Section 8 of the wage orders, they
Steven G. Pearl is a mediator and attorney in Los Angeles whose practice
focuses on wage and hour matters. He is a coauthor of California Wage and
Hour Law and Litigation (CEB).
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have the right to deduct for shortages, breakage, or loss from employee paychecks.
Kerr’s Catering Service
Kerr’s Catering Service v. Department of
Industrial Relations,8 a 1962 loss deductions
case, dealt with an employer that operated
lunch trucks. It paid its “salesgirls” minimum wage plus a commission based on sales.
The commission was “subject to reduction in
the amount of any cash shortage attributable to the salesgirl during the month.”9
The employer sued to have Section 8 of the
applicable wage order declared unconstitutional on grounds that it improperly regulated
matters beyond the minimum wage and maximum hours of work.10 In other words, the
employer argued that, as long as it paid its
employees minimum wage and overtime compensation, the IWC could not regulate its
deductions from sales-based commissions on
account of cash shortages.
The California Supreme Court rejected
the employer’s challenge. First, it held that the
IWC has “general power” to regulate “the
standard conditions of labor” beyond just
the minimum wages and maximum hours of
work.11 Second, the court held that the IWC
had authority to prohibit deductions that are
not caused by dishonest, willful, or negligent
employee conduct. The court held that such
deductions affect the “standard conditions of
labor” and therefore fall within the IWC’s
broad power.12
However, despite 1) the broad constitutional and statutory authority given to the
IWC, 2) the supreme court’s holding in
Kerr’s that the IWC can protect employees
from certain deductions, and 3) the supreme
court’s strong endorsement of the wage
orders, there are limits on what the IWC may
do in its wage orders. The orders are regulations, and the law is clear that “no regulation adopted is valid or effective unless
consistent and not in conflict with the statute
and reasonably necessary to effectuate the
purpose of the statute.”13 This strongly suggests that Section 8 of the wage orders, by
allowing employers to deduct from employee
wages under even limited circumstances,
conflicts with the Labor Code and exceeds
the authority given to the IWC. Sections
221 to 223 of the Labor Code clearly prohibit employers from collecting or receiving
earned wages from their employees and
from forcing employees to bear the employer’s costs of doing business.
The only statutory exception to the prohibition against payroll deductions can be
found in Section 224, which allows employers to withhold wages for the standard deductions with which most wage earners are familiar: taxes, healthcare, and union dues.14 In
particular, Section 224 allows deductions
only when one of the following three circumstances applies: 1) the employer is
required or empowered to do so by state or
federal law, or 2) the employee expressly
authorizes the deduction in writing and the
deduction is to cover insurance premiums,
hospital or medical dues, or other deductions not amounting to a rebate or deduction
from the standard wage arrived at by collective bargaining or pursuant to wage agreement or statute, or 3) a deduction to cover
health and welfare or pension plan contributions is expressly authorized by a collective
bargaining or wage agreement.
The compensation protected from payroll deductions by Sections 221 to 223
includes forms of compensation beyond what
most employees would recognize as wages.
The terms used in the Labor Code are given
broad meaning to effectuate the code’s purpose of protecting workers. Thus, as used in
the Labor Code, the term “wages” includes
“all amounts for labor performed by employees of every description, whether the amount
is fixed or ascertained by the standard of
time, task, piece, commission basis, or other
method of calculation.”15
An employee’s wages or earnings are the
amount the employer has offered or promised
to pay, or has paid pursuant to such an offer
or promise, as compensation for that employee’s labor. The employer takes a deduction or
contribution from an employee’s wages or
earnings when it subtracts, withholds, sets off,
or requires the employee to return a portion
of the compensation offered, promised, or
paid as offered or promised, so that the
employee, having performed the labor, actually receives or retains less than the paid,
offered, or promised compensation, and effectively makes a forced “contribution” of the
difference.16
Sections 221 to 223 are designed to protect
employees from fraud and deceit perpetrated
by employers, who typically enjoy a superior
economic and bargaining position relative to
their employees.17 These sections were enacted
to prevent the utilization of secret deductions,
or kickbacks, to make it appear that the
employer paid wages provided by a collective
bargaining contract or by statute.18
Other Labor Code provisions support the
view that employers cannot deduct from
wages for shortages, breakage, or loss, even
if caused by employee misconduct. Sections
400 to 410, sometimes referred to as the
Employee’s Bond Law, prohibit an employer
from requiring an employee to provide a
bond unless certain conditions are satisfied.19
Finally, Section 2802 requires an employer
to “indemnify his or her employee for all
necessary expenditures or losses incurred by
the employee in direct consequence of the
discharge of his or her duties.” The employ-
ee’s rights under Section 2802 are considered so important that the law prohibits their
waiver.20
Case Law
Arguably, statutory law offers no support
for the wage orders allowing deductions from
wages for shortages, breakage, or loss. Case
law, however, is less clear. In the nearly 50
years since Kerr’s, California courts have
considered several additional cases in which
employees have alleged that their employers
illegally deducted from their wages, with
mixed results.
In Quillian v. Lion Oil Company,21 the
manager of a gas station challenged her
employer’s policy of calculating bonus compensation by deducting cash and merchandise
shortages from the gas station’s sales to arrive
at a net profit figure from which it calculated the bonus.22 This is similar to the issue
raised in Kerr’s, but it involved bonus compensation rather than commissions. Following
Kerr’s, the court of appeal held that because
both commissions and bonuses are wages, the
employer’s bonus policy constituted an unlawful deduction from those wages. There was no
allegation or evidence that any shortage was
caused by the plaintiff’s misconduct. The
court did not consider whether the wage
order contravenes the Labor Code but did
hold that “the bonus…is in contravention
of the public policy expressed in sections 400
to 410 of the Labor Code.”23
In another case, Hudgins v. Neiman Marcus
Group, Inc.,24 the court of appeal held that
an employer’s policy of deducting from its
employees’ wages for “unidentified returns”—
that is, merchandise returns for which the particular salesperson could not be identified—
violated Labor Code Sections 221 and 400
through 410.25 The court held that the policy allowed for unlawful deductions from
wages.
The Hudgins court also held that the
employer had “numerous other tools for dealing with the problem of unidentified returns,”
including careful training and supervision of
its employees and investigation of employees
reasonably believed to be engaging in abuse
of its policies.26 “The one tool that is not
available to Neiman Marcus, however, is an
employment agreement by which Neiman
Marcus requires its employees to consent to
unlawful deductions from their wages.”27
In Ralphs Grocery Company v. Superior
Court,28 the court of appeal again considered
whether an employer may deduct certain
items when calculating bonus compensation.
After considering Kerr’s, Quillian, and
Hudgins, the court held that the wage order
prohibited Ralphs from deducting cash and
merchandise losses from profits in calculating
bonus compensation, but only for nonex-
empt employees.29 The court also noted that
Section 8 of the wage order applies only to
those employees deemed not to be exempt
from the wage order’s protections. Thus,
Section 8 does not apply to employees who
are deemed exempt as executive, administrative, or professional.30
However, the court departed from earlier authority in holding that the Labor Code
itself does not prohibit deductions from
employee compensation: “Nothing in the
Labor Code itself, unlike the wage orders
applicable to non-exempt employees,
expressly prohibits deductions from wages for
cash or merchandise shortages.”31
On the other hand, the Kerr’s court specifically held it was not “unjust” for inevitable
business losses, such as cash shortages, breakage, and loss of equipment, to be borne as
“expenses of management.”32 As the court
reasoned in Ralphs Grocery, “By using the
term ‘management,’ the supreme court suggested the legitimacy of requiring exempt
employees to bear some burden of business
losses and expenses.33 It would require a significant extension of the supreme court’s dicta
regarding the underlying spirit of the Labor
Code provisions protecting workers’ wages to
conclude an incentive compensation plan
that determines an exempt employee’s bonus
on a full range of revenue and expense items,
including cash shortages, is unlawful.”34
As the supreme court later explained,
“Though Ralphs Grocery did not expressly
disagree with Quillian as to the rights of
managerial employees, the two decisions are
at odds on the point. Quillian involved a
managerial employee, and no Commission
wage order was cited there as a source of her
rights. Instead, Quillian held that the deduction of cash and merchandise losses from a
manager’s incentive pay contravened sections
400 through 410, and insinuated that it might
also violate section 221.”35
In Prachasaisoradej v. Ralphs Grocery
Company, Inc.,36 the supreme court considered
the same bonus compensation plan considered in Ralphs Grocery. The court disagreed
with Ralphs Grocery, holding that nothing in
the relevant statutes, regulations, and decisions suggests that an employer violates
California wage protection laws by providing,
as Ralphs did, “supplementary compensation
designed to reward employees, over and above
their regular wages, if and when their collective efforts produced a positive financial result
for the store where they worked.”37
Under the Ralphs plan, each Ralphs store
employee was paid—as full compensation
for his or her individual work—a dollar wage
that did not vary with the store’s financial fortunes, and from which no unauthorized
amounts were deducted. In addition, Ralphs
sought to encourage and reward coopera-
tive and collective contributions to the profitable performance of its stores by sharing
with employees, in addition to their regular
wages, a portion of the profits, if any, their
efforts had produced, which Ralphs would
otherwise be entitled to retain for itself.38
Section 8 and Due Process
Upholding the Ralphs plan, however, is
arguably quite different from upholding
Section 8 of the wage orders. Section 8 allows
an employer to do precisely what the Labor
Code prohibits: deduct for breakage, shortage, and loss, provided that “it can be shown”
that the cash shortage, breakage, or loss was
“caused by a dishonest or willful act, or by
the gross negligence of the employee.” This
provision conflicts directly with the Labor
Code, and in case of conflict, the Labor Code
governs. The wage orders present a procedural as well as a substantive difficulty. The
taking of an employee’s wages, without notice
and an opportunity to be heard, is a violation
of the employee’s due process rights.
More than 40 years ago, the U.S. Supreme
Court held that extrajudicial deductions from
wages—like the deductions apparently permitted under the wage orders—provide creditors an unconstitutional self-help remedy.
In Sniadach v. Family Finance Corporation,39 the Supreme Court concluded that a
Wisconsin prejudgment wage garnishment
statute violated a debtor’s right to procedural
due process by sanctioning the taking of his
property without affording him prior notice
and hearing.
In 1970, the California Legislature changed
California law to conform to Sniadach.40 As
one California appellate court narrates, “In
McCallop v. Carberry…and Cline v. Credit
Bureau of Santa Clara Valley…we examined
the California wage garnishment statutes in
light of Sniadach and, although the California
provisions differed from the Wisconsin statute
in several respects…we concluded that the
California procedure exhibited the same fundamental, constitutional vice as the statute
invalidated in Sniadach.”41
In Barnhill v. Robert Saunders & Company,42 the First District Court of Appeal
rejected an employer’s efforts to set off an
employee’s earned wages against debts
allegedly owed to the employer by the employee. The court held that the setoffs violate
due process: “[F]undamental due process
considerations underlie the prejudgment
attachment exemption. Permitting [an
employer] to reach [the employee’s] wages by
setoff would let it accomplish what neither it
nor any other creditor could do by attachment
and would defeat the legislative policy underlying that exemption. We conclude that an
employer is not entitled to a setoff of debts
owing it by an employee against any wages
due that employee.”43
In California State Employees’ Association
v. State of California,44 the First District held
that the state of California, as an employer,
could not deduct amounts from its employees’ paychecks to repay alleged salary overpayments. Although Government Code
Section 17051 explicitly allowed the government to deduct amounts owed to the government from “any warrant drawn in favor
of a payee,” the court recognized that Section
17051, when applied to wages, conflicted
with the post-Sniadach wage garnishment
and attachment laws.
The court held that the wage garnishment law and the attachment law protect
wages from creditors. The wage garnishment law provides the exclusive judicial procedure by which a judgment creditor can
execute against the wages of a judgment
debtor, except for cases of judgments or
orders for support. It limits the amount of
earnings that may be garnished in satisfaction
of a judgment and establishes certain exemptions from earnings that may not be garnished. The attachment law expressly prohibits any prejudgment attachment or levy of
execution against wages.45
Citing Barnhill, the California State
Employees’ Association court held that “the
specific provisions of the attachment and
wage garnishment laws take precedence over
the general provisions of Government Code
section 17051.” 46 The court concluded,
“[T]his general language is superseded by
the specific provisions of the attachment and
wage garnishment laws protecting earnings
from such extra-judicial seizures.”47
To date, no California appellate court has
considered an employee’s challenge to Section
8 of the IWC wage orders as contradicting the
Labor Code or violating constitutional due
process rights. However, given the ongoing
focus on wage and hour cases in the appellate
courts, it can only be a matter of time before
a challenge arises. The weight of authority
strongly suggests that employers that deduct
money from their payrolls for shortages,
breakage, or loss are treading on thin ice.
Employers should carefully consider the risks
compared to the rewards of following what
may ultimately be deemed an unenforceable
provision of the IWC’s wage orders.
■
1
See California Employment Development Department, California Employment Highlights (July 2010),
available at http://www.calmis.ca.gov/file/lfmonth
/Employment-Highlights.pdf.
2 Industrial Welfare Commission wage orders, available
at http://www.dir.ca.gov/iwc/wageorderindustries.htm.
Wage Order No. 16—which applies to certain on-site
occupations in the construction, drilling, logging, and
mining industries—contains different language. Wage
Order No. 17 does not address this issue.
3 1913 Cal. Stat. ch. 324, at 632, 637, §13.
4 LAB. CODE §1182 (enacted in 1913 Cal. Stat. ch. 324,
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§6, at 634-35); see Martinez v. Combs, 49 Cal. 4th 35,
slip op. at 12 (2010).
5 See Martinez, 49 Cal. 4th 35, slip op. at 18.
6 LAB. CODE §§70-74, 1171-1204; Industrial Welfare
Comm’n v. Superior Court (California Hotel and
Motel Ass’n), 27 Cal. 3d 690, 698 (1980).
7 Martinez, 49 Cal. 4th 35, slip op. at 28-29.
8 Kerr’s Catering Serv. v. Department of Indus.
Relations, 57 Cal. 2d 319 (1962).
9 Id. at 322.
10 IWC Wage Order No. 5-57 §8, 8 CAL. ADMIN.
CODE §11380 (1962).
11 Kerr’s, 57 Cal. 2d at 325; LAB. CODE §1182.
12 Kerr’s, 57 Cal. 2d at 328.
13 Bearden v. Borax, 138 Cal. App. 4th 429, 436 (2006).
See also Industrial Welfare Comm’n v. Superior Court,
27 Cal. 3d 690 (1980).
14 LAB. CODE §224.
15 LAB. CODE §200(a).
16 Prachasaisoradej v. Superior Court (Ralphs Grocery
Co., Inc.), 42 Cal. 4th 217, 228 (2007).
17 Sublett v. Henry’s Turk & Taylor Lunch, 21 Cal. 2d
273 (1942).
Relations, 57 Cal. 2d 319 (1962).
19 Id. at 328.
20 LAB. CODE §2804; Gattuso v. Harte-Hanks Shoppers,
Inc., 42 Cal. 4th 554, 570 (2007) (Any agreement
made by the employee is null and void insofar as it
waives the employee’s rights to full expense reimbursement under LAB. CODE §2802.).
21 Quillian v. Lion Oil Co., 96 Cal. App. 3d 156 (1979).
22 Id. at 158-59.
23 Id. at 163.
24 Hudgins v Neiman Marcus Group, Inc., 34 Cal.
App. 4th 1109 (1995).
25 Id. at 1111-24 (citing Quillian, 96 Cal. App. 3d at
156).
26 Id. at 1124.
27 Id.
28 Ralphs Grocery Co. v. Superior Court (Swanson), 112
Cal. App. 4th 1090 (2003).
29 Id. at 1102.
30 See, e.g., IWC Wage Order No. 1-2001 §1A
(“Provisions of Sections 3 through 12 shall not apply
to persons employed in administrative, executive, or professional capacities.”).
31 Hudgins, 34 Cal. App. 4th at 1119.
Relations, 57 Cal. 2d 319, 329 (1962).
33 See CAL. CODE REGS. tit. 8, §11070, subdiv. 1(A)
(Exempt employees “manage” the enterprise for which
they are employed.).
34 Ralphs Grocery Co., 112 Cal. App. 4th at 1105-06
(citations omitted).
35 Prachasaisoradej v. Ralphs Grocery Co., Inc., 42
Cal. 4th 217, 235, n.8 (2007).
36 Id. at 217.
37 Id. at 223.
38 Id. at 228.
39 Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969).
40 See CODE CIV. PROC. §487.020(c).
41 Randone v. Appellate Dep’t, 5 Cal. 3d 536 (1971).
See also McCallop v. Carberry, 1 Cal. 3d 903, 906, n.7
(1970) and Cline v. Credit Bureau of Santa Clara
Valley, 1 Cal. 3d 908 (1970).
42 Barnhill v. Robert Saunders & Co., 125 Cal. App. 3d
1 (1981).
43 Id. at 6.
44 California State Employees’ Ass’n v. State of Cal., 198
Cal. App. 3d 374 (1988).
45 Id. at 377 (1988) (notes omitted); CODE CIV. PROC.
§§487.020(c), 706.020, 706.050-706.052.
46 California State Employees’ Ass’n, 198 Cal. App. 3d
at 378.
47 Id.
practice tips
BY CEDRIC M. SHEN AND HUMBERTO R. GRAY
The Immigration Status of Plaintiffs in Personal Injury Actions
THERE ARE SEVERAL FORMS OF DAMAGES a plaintiff may seek in a reversed the trial court’s decision and determined that “whenever a
civil personal injury action. Some, such as medical expenses, are plaintiff whose citizenship is challenged seeks to recover for loss of
readily quantifiable. Other damages, such as emotional distress or loss future earnings, his status in this country shall be decided by the trial
of future earnings, are not as easily measured. In cases involving size- court as a preliminary question of law” pursuant to Evidence Code
able claims for loss of future earnings, battles are often fought con- Section 310.8 The court acknowledged that evidence relating to citcerning the plaintiff’s education and employment history. Given the izenship and deportation would be prejudicial to the party whose staspeculative nature of future income claims, attorneys for both sides tus was at issue.9 Thus, the court of appeal held that the issue could
will often retain economists and experts to inflate or deflate the be resolved by treating “any question regarding a plaintiff’s citizenamount of future earnings to which a plaintiff may be entitled.
ship or lawful place of residence as one of law, to be decided excluHowever, attorneys often overlook the importance of immigration sively by the trial court outside of the presence of a jury.”10 During
status in civil personal injury actions as it
relates to a plaintiff’s loss of future earnings. In
an action involving a plaintiff who is undocuIf the plaintiff cannot demonstrate that he or she is legally allowed
mented in the United States, immigration status may play a significant role in the amount
of future earnings he or she may be awarded.
to work for compensation in the United States, he or she will not
Recovery for loss of future earnings is limited
for plaintiffs who are in the United States illegally to what they would make in their counbe entitled to future earnings based on U.S. wages.
try of citizenship. This could mean the difference of tens—if not hundreds—of thousands of
dollars in a jury verdict.
For example, consider a 30-year-old plaintiff of Mexican citizenship this hearing, the defendant has the initial burden of producing proof
who is severely injured and permanently disabled. Assume that at the that the plaintiff is undocumented and subject to deportation.11 If the
time of his injury he was earning $10 per hour doing manufacturing defendant is successful, the burden shifts to the plaintiff to demonwork. He files a negligence lawsuit seeking, among other things, strate that he or she has “taken steps” to correct his or her deportable
loss of future earnings. The plaintiff’s expert places his loss of future condition.12
earnings at $624,000 in U.S. wages ($10 per hour at 40 hours per week
If the plaintiff cannot demonstrate that he or she is legally allowed
for the next 30 years). However, if the plaintiff’s future earnings are to work for compensation in the United States, he or she will not be
calculated according to Mexican wages (roughly 13 percent of U.S. entitled to future earnings based on U.S. wages. If the judge finds in
wages), it would decrease the value to $81,120—a reduction of more favor of the plaintiff, all evidence relating to his or her illegal status
than $540,000.1 This hypothetical example illustrates the importance “shall be excluded and his projected earning capacity may be comin determining the loss of future earnings in the early stages of disputed upon the basis of his past and projected future income in the
covery. A recent California case, Rodriguez v. Kline, offers practitioners United States.”13 If the judge finds in favor of the defendant, then evia guide.2
dence of the plaintiff’s future earnings is “limited to those he could
In Rodriguez, plaintiff Jesus Rodriguez, who was illegally present anticipate receiving in his country of lawful citizenship.”14
in the United States, brought an action against defendant Samuel Kline
In applying this reasoning to the plaintiff in Rodriguez, the court
for injuries he sustained in a traffic accident.3 The trial court con- of appeal held that he may have been able to meet his burden in a
cluded that the defendant had the burden of demonstrating the pretrial hearing.15 The plaintiff had been in the country for nearly
plaintiff’s current illegal status as well as the possibility of his even- 20 years and had been a hardworking person with high moral chartual deportation.4 The trial court also allowed evidence of the plain- acter. While it was clear that the plaintiff was subject to deportation,
tiff’s projected earnings in the United States and Mexico, and then it was not clear whether the verdict of $99,000 compensated him for
instructed the jury to determine whether the plaintiff was subject to his loss of future earnings and, if so, whether the award was based
deportation and whether he was entitled to future loss of earnings.5 on his earning capacity in the United States or Mexico. 16 Since the
The plaintiff was awarded a judgment of $99,000, which the defen- jury was improperly instructed, the judgment was reversed and
remanded. Upon remand, the trial court was ordered “to conduct
dant appealed.6
The court of appeal decided whether a person who is in the
United States illegally is entitled to be compensated for personal Cedric M. Shen and Humberto R. Gray practice immigration law in Los
injuries based upon projected earning capacity in the United States Angeles. The authors wish to thank Courtney A. Morgan for her contributions
or in the country of lawful citizenship.7 In doing so, the court of appeal to this article.
a hearing that would afford plaintiff an
opportunity to present proof regarding his
legal status.”17
Rodriguez and Civil Discovery
Attorneys should apply Rodriguez to civil
actions in California by ascertaining early in
discovery whether the plaintiff may not be
entitled to future earnings in U.S. wages.
Presumably, a plaintiff’s attorney knows prior
to filing a lawsuit whether his or her client is
entitled to future earnings damages—as this
would have an impact on the amount of any
potential verdict. Whether a plaintiff is entitled to future earnings in U.S. wages may
not be readily apparent to a defense attorney,
especially if the plaintiff is undocumented
and his or her attorney attempts to withhold
this information.
The simplest way for a defense attorney to
determine a plaintiff’s immigration status via
formal discovery is to propound California
Judicial Form Interrogatories to the plaintiff
shortly after the commencement of litigation. Form Interrogatories 2.2 and 8.0 ask for
the plaintiff’s date and place of birth and
information about loss of income or earning
capacity. From these two interrogatories, a
defense attorney will get an idea as to whether
the plaintiff’s immigration status will play a
role in any future lost earnings claim.
Obviously, if the plaintiff was born in the
United States, there would not likely be an
issue. However, if the plaintiff was born in
Mexico, for example, and is making a loss of
future earnings claim, it is important to determine his or her immigration status in the
United States.
After receiving these responses, defense
counsel should propound further interrogatories regarding the plaintiff’s immigration status. Is he or she a U.S. citizen? A permanent
resident? When did he or she first come to the
United States? Did he or she enter with a
visa? If so, what type? Has he or she maintained that visa? Has he or she been convicted of a crime anywhere in the world?
Does he or she have any immediate family
members who are residents or citizens of the
United States? Has he or she applied for an
immigration benefit in the United States?
While these may certainly be asked at deposition, it would help the defense attorney to
know the answers beforehand in order to
prepare for the deposition.
The plaintiff’s attorney may object to any
questions involving the plaintiff’s immigration status—especially if the plaintiff is undocumented. In fact, the plaintiff’s attorney should
object to these questions—not only to protect the loss of future earnings claim but to
demonstrate that the attorney has taken steps
to protect the plaintiff from admitting undocumented status. If the plaintiff’s counsel objects
to interrogatories regarding citizenship or legal
status in the United States, the defense attorney should be sure to lay the foundation in a
meet and confer letter to compel responses.
After the written discovery is complete, the
defense attorney will have a good idea as to
whether the plaintiff is undocumented. At
this point, the defense attorney should take
the plaintiff’s deposition. Prior to doing so, it
is important to outline the proposed deposition examination to ensure the proper questions are asked regarding the plaintiff’s immigration status. While the value of every case
is different, it would be prudent to consult
with an immigration attorney to determine
what questions to ask in order to assess the
viability and legitimacy of the plaintiff’s loss
of future earnings claim.
Questions framed for the deposition will
vary depending on the specific facts of each
case and will require different inquiries relating to specific immigration issues. The first
question to ask a plaintiff is whether he or she
is a U.S. citizen or a lawful permanent resident. If he or she is not, the defense attorney
should ask the plaintiff whether he or she is
illegally present in the United States. The
plaintiff’s counsel will probably object to this
question and instruct the client not to respond.
Understandably, the plaintiff’s counsel will not
want a client to admit to violating federal law.
However, the defense attorney should not
back down from inquiring into a plaintiff’s
immigration status—citing Rodriguez and
its relevance in determining the plaintiff’s
loss of future earnings. If the plaintiff’s attorney instructs the client not to answer the
question, defense counsel should file a timely
motion to compel.
Regardless of whether or not the plaintiff’s
counsel objects to questions regarding the
plaintiff’s immigration status, it is important
for a defense attorney to ask several additional
questions at the deposition. A party cannot
be deposed more than once absent a court
order based on a showing of good cause.18
Thus, if counsel objects to questions regarding the plaintiff’s immigration status, defense
counsel should operate on the presumption
that the plaintiff is undocumented or
deportable.
It is important to understand the term
“deportable.” A person can be deportable
for various reasons, even if he or she is a permanent resident of the United States. Formal
grounds for deportability may be found in the
Immigration and Naturalization Act.19 Some
grounds for deportability include entering the
U.S. illegally, failing to maintain legal status,
and convictions for certain crimes.
Under Rodriguez, once defense counsel
can establish that the plaintiff is deportable,
the burden shifts to the plaintiff to prove he
or she has taken steps to correct the deport-
able condition. Given this, defense counsel
should inquire into two general categories
regarding the undocumented status of the
plaintiff: 1) what steps he or she has taken to
correct the deportable condition, and 2)
whether he or she can correct the deportable
condition.
Correcting a Deportable Condition
A key term in Rodriguez is whether the plaintiff has “taken steps” to correct the deportable
or removable condition. What constitutes
steps that would be sufficient to meet the
burden? No case law defines the standard.
Merely seeking counsel is probably insufficient, while filing an application for immigration benefits may be sufficient where the
application is still pending.
Taking steps to be placed in removal proceedings would certainly constitute sufficient
steps but is not an easy task. Usually, if an
undocumented person is convicted of a crime,
Immigration Customs and Enforcement (ICE)
will initiate removal proceedings. However,
if the undocumented person presents himself or herself to ICE, it has discretion to
commence removal proceedings. Immigration
courts are currently backlogged, and ICE is
usually reluctant to place people in removal
proceedings.
Even if the plaintiff demonstrates steps
taken to correct the deportable condition,
the defense attorney can ask questions to
determine if the plaintiff has a realistic hope
of correcting his or her deportable status.
There are several legal ways that an undocumented individual can correct a deportable
condition. One is to immigrate through immediate family members. These include parents, children, or siblings who are permanent residents or citizens of the United
States.20 Another way to correct a deportable
condition is through employment. There are
five categories under which a foreigner can
seek immigration benefits.21 Even if an undocumented individual has a family- or employment-based option to immigrate, he or she
must also be eligible to adjust status.22
There are also avenues in deportation
proceedings by which an undocumented individual can correct his or her deportable condition. These proceedings are held in front of
an immigration judge in federal immigration
court. Avenues of relief include asylum, withholding of removal, protection under the
convention of torture, and two types of cancellation of removal. However, all types of
relief are difficult to secure. For example,
under one cancellation of removal provision,
the person in removal proceedings must prove
that he or she has been in the United States
for 10 years and is a person of good moral
character (no criminal convictions). In addition, those in removal proceedings must show
that if they are deported, a family member
(spouse, parent or child) who is a resident or
citizen of the United States faces exceptional
and extremely unusual hardship.23 The standard for hardship is difficult. It may be satisfied if a qualifying family member has a
serious illness.24
Finally, it is also important to ask the
plaintiff his or her educational level, what type
of work he or she did in the native country,
and most importantly, what his or her wages
were there. If the judge finds that the plaintiff has not met his or her burden, then future
earnings will be decided based on the wages
in the native country.
Rodriguez was issued more than 20 years
ago and remains good law. Given that
California courts have not further explored
the issue of undocumented individuals and
future earnings claims, the term “taken steps”
remains murky. What steps must a plaintiff
take to meet the Rodriguez burden? Is it sufficient that a plaintiff merely consulted with
an immigration attorney? Should the plaintiff voluntarily place himself or herself into
removal proceedings so that he or she can seek
a cancellation of removal? Is filing an application for immigration benefits, or being
placed in deportation proceedings without the
ability to correct the deportable condition,
enough to satisfy the standard of Rodriguez
in taking steps to correct the deportable condition? While there is no definitive answer, it
is safe to conclude that the more actions that
the plaintiff shows he or she has taken, the
better chance he or she has of prevailing
under the test in Rodriguez.
Rodriguez also poses a dilemma for attorneys who represent undocumented plaintiffs.
Should the attorney proceed with a loss of
future earnings claim, knowing that a client
is illegally present in the United States? Doing
so may subject the plaintiff to admit—in deposition or written discovery responses—that
he or she is in the country illegally. Or should
the plaintiff’s attorney waive the claim, thereby
protecting his or her client’s privacy but foregoing the potential for a larger verdict? Before
commencing litigation, a plaintiff’s attorney
should confer with the client about the client’s
immigration status and whether he or she
wishes to make a claim for future earnings. In
doing so, the attorney should also advise the
client that he or she may be entitled to future
earnings in U.S. wages, but that doing so may
require him or her to divulge his or her illegal immigration status.
It is also interesting to see whether the test
in Rodriguez will be expanded to include nonU.S. citizen plaintiffs in different immigration
categories. For example, should plaintiffs in
nonimmigrant temporary status who verify
their intent to return to their home country
upon expiration of their visas be entitled to
future earnings in U.S. wages? An argument
can certainly be made that these plaintiffs
should not be entitled to lost U.S. earnings.
On balance, it is important to remember
that assessing a loss of future earnings claim
in a civil action must be considered by attorneys for both sides from the inception of litigation. In personal injury actions, attorneys
often focus on the most common forms of
damages, such as hospital bills, future medical care, pain and suffering, and emotional
distress. Details of a loss of future earnings
claim may often be overlooked until the parties reach the expert discovery phase of litigation. At this time, proving these damages
may reveal—possibly for the first time—that
the plaintiff is not entitled to future earnings
in U.S. dollars. If a defense attorney has not
presented the case with the plaintiff’s immigration status in mind, it may be difficult to
meet the burden of proof established in
Rodriguez. This error may substantially
increase a jury award. Conversely, a plaintiff’s
attorney who does not make a preliminary
consideration of the viability of a loss of
future earnings claim may later be put in the
uncomfortable position of asking a client to
either admit his or her illegal status or to
waive the claim altogether.
■
1 STATISTICAL ABSTRACT OF THE UNITED STATES tbl.
1318.
2 Rodriguez v. Kline, 186 Cal. App. 3d 1145, 1147
(1986).
3 Id.
4 Id. at 1149.
5 Id. at 1149-50.
6 Id. at 1147.
7 Id.
8 Id. at 1149.
9 Id. at 1148.
10 Id.
11 Deportation is also known as removal. The court of
appeal in Rodriguez uses the term “deportable.”
However, “deportable” and “removable” are interchangeable. “Removable” is a broadly used term that
encompasses certain grounds of inadmissibility and
deportability found in Immigration and Naturalization
Act §212, 8 U.S.C. §1182, and Immigration and
Naturalization Act §237, 8 U.S.C. §1227. The term
“removable” encompasses §212(a) grounds of inadmissibility and §237(a) grounds of deportability, and
it may ordinarily be used in place of either term. See
Rodriguez, 186 Cal. App. 3d at 1149.
12 Rodriguez, 186 Cal. App. 3d at 1149.
13 Id.
14 Id.
15 Id.
16 Id. at 1150.
17 Id.
18 CODE CIV. PROC. §2025.610.
19 See 8 U.S.C. §§1227 et seq.
20 8 U.S.C. §1154.
21 8 U.S.C. §1153.
22 See 8 U.S.C. §1255i. To qualify, the individual
should be the beneficiary of an application filed before
April 30, 2001.
23 8 U.S.C. §1229a(b).
24 Matter of Monreal, 23 I&N Dec. 56 (BIA 2001);
Matter of Recinas, 23 I&N Dec. 467 (BIA 2002).
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by JUSTIN M. GOLDSTEIN and NOAH PÉREZ-SILVERMAN
SUPER
POWERS
California courts have broad inherent powers
to redress litigation misconduct
Act identifies categories of conduct that can
justify sanctions and sets forth specific measures a court can impose against “any party
engaging in the misuse of the discovery
process.”2
But what of litigation misconduct that
cannot be categorized as a “misuse of the discovery process”? As one court has observed,
“[I]t is impossible to establish a rule of law for
every conceivable situation which could arise
in the course of a trial…[or] in the discovery
process.”3 It seems inconceivable that there
would be no remedy for a party issuing death
threats to witnesses, wiretapping the opposition’s attorneys, or the like.
The U.S. Supreme Court has affirmed
that courts possess certain inherent powers
that “necessarily result…from the nature of
their institution, powers that cannot be dispensed with…because they are necessary to
the exercise of all others.”4 These powers are
“not confined by or dependent on statute”5
and include the power to “fashion[] procedures and remedies as necessary to protect litigants’ rights.”6
California courts agree and have found
occasion to flex their inherent powers when
confronted with litigation abuses. The inherent powers of California courts include not
only precluding evidence and issues but also,
as confirmed recently, the power to terminate
Justin M. Goldstein, a counsel in the litigation
department of O’Melveny & Myers, specializes in
entertainment, intellectual property, and complex
business disputes. He was a member of the
O’Melveny defense team led by Daniel M. Petrocelli
in Stephen Slesinger, Inc. v. Walt Disney Company.
Noah Pérez-Silverman is an associate in the litigation department.
MICHAEL CALLOWAY
CIVIL LITIGATION is not always civil. Nevertheless, there is a line between fighting hard
and cheating.
Imagine a party materially altering or fabricating evidence and presenting it as authentic, or surreptitiously reviewing and copying
documents from the opposing party’s briefcase, or threatening witnesses. These scenarios may seem far-fetched, but each was raised
and addressed in a published decision.1
Litigation abuses undermine the fairness
of the judicial system for the participants,
and more broadly, do the same for the public’s perception of the courts as a fair venue
for resolving disputes. It is therefore no surprise that legislatures have empowered courts
to redress misconduct.
Remedies for misconduct are often found
in procedural discovery rules. California is
no exception. Chapter 7 of the Civil Discovery
cases to redress litigation misconduct when
justice requires.
The notion that courts possess inherent
powers—powers separate and apart from
those specifically granted to courts by legislatures—is rooted in English tradition.7
Norman monarchs possessed absolute sovereignty, which they used to assign administrative and judicial tasks to personal ministers and advisers: “Through these councils, the
king exercised his vast prerogative authority,
which included guaranteeing justice and preserving the peace.” 8 As these councilors
evolved into more formal judges and courts,
they were entrusted with judicial duties and
given certain powers essential to the efficient
functioning of the courts. However, these
early English judges were merely the king’s
representatives; all their powers stemmed
from the king’s absolute authority.
The Magna Carta affirmed for the first
time that there existed laws even the king
must obey. Over the next several centuries the
notion of a constrained monarch became
more potent. As judges gradually became
more independent, a shift took place from
allegiance to a particular king to allegiance to
the impersonal concept of “the Crown” and,
ultimately, to “the law.”9 As a result, judicial
powers once merely derivative of the monarch’s supreme power became viewed as the
“inherent powers” of the court.10
The U.S. Constitution established the
American judiciary as a separate branch of
government with even greater autonomy. As
early as 1812, the U.S. Supreme Court
acknowledged that Article III federal courts
possessed inherent powers: “Certain implied
powers must necessarily result to our Courts
of justice from the nature of their institution.…[O]ur Courts no doubt possess powers not immediately derived from statute.”
The Court described those powers as ones
that “cannot be dispensed with in a Court,
because they are necessary to the exercise of
all others.”11
The same is true of California courts.
They were created by the California Constitution12 and are deemed to have inherent powers “not confined by or dependent on
statute.”13 Moreover, the California Legislature has expressly recognized these powers.
For example, in addressing the issue of dismissing cases for failure to prosecute, the
legislature stated its clear intention not to
interfere with the courts’ inherent powers:
“This chapter does not limit or affect the
authority of a court to dismiss an action or
impose other sanctions…under inherent
authority of the court.”14 The legislature was
similarly cautious in its general guidelines
for handling the dismissal of cases: “The provisions of this section shall not be deemed to
be an exclusive enumeration of the court’s
power to dismiss an action or dismiss a complaint as to a defendant.”15
The California Supreme Court has recognized two types of inherent powers: 1)
“courts’ equitable power derived from the historic power of equity courts,” and 2) “supervisory or administrative powers which all
courts possess to enable them to carry out
their duties.”16 The latter powers, in particular, enable a court to “control litigation
before it, to prevent abuse of its process, and
to create a remedy for a wrong even in the
absence of specific statutory authority.”17
Redressing Litigation Misconduct
Over the last century, there has been no shortage of reported decisions describing a court’s
exercise of inherent powers to redress litigation misconduct. For approximately the last
20 of those 100 years, arguably the most
important decision in California on the inherent authority of courts was Peat, Marwick,
Mitchell & Co. v. Superior Court.18 In Peat,
Marwick, the state of California sued accounting firm Peat, Marwick for having negligently
performed an audit. The state retained the
accounting firm Main Hurdman as an expert.
Shortly after its retention, however, Main
Hurdman began secretly negotiating with
Peat, Marwick over a potential merger.
Neither Main Hurdman nor Peat, Marwick
informed the state of the intended merger. In
fact, when news of the merger prematurely
leaked to the press, Main Hurdman assured
the state that there was no truth to the
“rumors.” Formal announcement of the
merger came almost a year later.
The court exercised its inherent power to
sanction Peat, Marwick for having interfered
with the state’s expert relationship—conduct
that the court deemed an “abuse of the litigation process.”19 To “prevent the compromise of confidential information and to preserve the integrity of the judicial process,” the
court precluded Peat, Marwick from presenting any evidence controverting certain
elements of the plaintiff’s case.20 Beyond its
core holding, what made the Peat, Marwick
decision so influential was its thorough treatment of the reach of courts’ inherent powers.
The Peat, Marwick court recognized that
inherent powers “have been flexibly applied
in response to the many vagaries of the litigation process” and reasoned that there is no
“intrinsic limitation” that would justify
restricting their application to redressing only
specific types of litigation abuse.21 Invading
or damaging a party’s unique relationship
with its expert, the court found, is fundamentally no different from disadvantaging a
party by destroying evidence.22 Nor did the
court find due process considerations to be an
insurmountable obstacle to the exercise of
inherent powers: “We cannot accept the
notion that due process of law entitles a litigant to present certain evidence after it has
compromised its opponent’s ability to counter
that evidence with the sort of litigation abuse
found in this case.”23 When a party seeks to
take unfair advantage or “the integrity of
the judicial system” is at risk, the Peat,
Marwick court affirmed that judges are
empowered to act.24
The Peat, Marwick decision drew heavily
from prior California decisions addressing
California courts’ inherent powers to respond
to “the many vagaries of the litigation
process.” These include Conn v. Superior
Court, in which a court exercised its inherent
powers to require the return of documents
wrongfully taken by an employee from his
former employer’s office.25 The Peat, Marwick
decision has been cited on numerous occasions by courts assessing whether and how to
apply their inherent powers to redress litigation abuses.26 However, until recently, no
published decision had directly tackled the
question of whether the arsenal of inherent
powers includes the authority to terminate a
case for litigation misconduct. Enter the longstanding Stephen Slesinger, Inc. v. Walt Disney
Company royalty dispute concerning the
Winnie the Pooh children’s stories.27
In 2004, the trial court imposed a terminating sanction against Stephen Slesinger,
Inc., based on its finding that SSI engaged in
severe and irremediable litigation misconduct.28 Among its findings, the court concluded that SSI had 1) hired an investigator
who wrongfully obtained Disney documents,
2) reviewed privileged and confidential Disney
papers, and 3) materially altered evidence in
an effort to conceal its possession of confidential Disney documents.29 In granting the
terminating sanction, the trial court made
clear that it was “[e]xercising its inherent
powers to preserve and protect the integrity
of the judicial process.”30 This gave the court
of appeal an opportunity to address whether
trial courts have the inherent power to dismiss
litigation based on misconduct—a question
the court described as one of “first impression.”31
Although no published California decision
had affirmed a court’s exercise of inherent
power to grant a terminating sanction to
redress litigation abuses, California courts
have long-recognized inherent powers to terminate cases for other reasons. If a litigant
unreasonably delays in prosecuting its case,
or pursues a “sham, frivolous or wholly vexatious” claim or defense, California courts
have the inherent power to dismiss the entire
action.32
California courts also have given strong
indications that the inherent power to dismiss
should be extended to redressing litigation
misconduct. For example, one court of appeal
upheld the exercise of
inherent authority by
a peer review panel to
terminate an administrative proceeding
based on findings of
discovery delays, violations of orders, and
disruptive behavior.33
The court likened the
inherent powers of
administrative officers
to those of judges, and
found that “hearing
officers must have the
power to control the
parties and prevent
deliberately disruptive
and delaying tactics.
The power to dismiss
an action and terminate the proceeding is
an important tool that
should not be denied
them.”34 During the
pendency of the Slesinger appeal, another
division of the California Court of
Appeal affirmed that
trial courts “have
inherent authority to
dismiss an action,”
even though the dismissal in that case was
based on statutory
authority.35
Courts from other jurisdictions have also
found that their inherent powers extend to termination. Federal courts have regularly exercised inherent powers to terminate cases for
all manner of litigation misconduct, including the manufacturing of evidence,36 perjury
in discovery responses,37 and bad faith delay.38
The same is true of state courts around the
country.39
Three-Part Standard
In the end, the Slesinger court concluded that
California courts necessarily must have the
power to dismiss cases for pervasive litigation
abuse. The court established a three-part
standard for determining when a court may
exercise its inherent power to terminate. A
party’s misconduct during the course of litigation must:
1) Be “deliberate.”
2) Be “egregious.”
3) Render “any remedy short of dismissal
inadequate to preserve the fairness of the
trial.”40
In Slesinger, the court found that SSI’s
abuses were sufficiently deliberate and egregious, and no remedy short of dismissal could
preserve the fairness of trial. Thus, the court
concluded that dismissal was warranted under
its new standard.
The standard is notable for several reasons.
First, it sets the bar. No prior court in California had articulated what conditions would
justify exercising the court’s inherent power to
dismiss a case for misconduct. Until Slesinger,
no appellate court had reason to do so.
Second, the Slesinger court did not
expressly adopt a standard articulated by
courts from other jurisdictions. For example,
Florida courts have ruled that dismissal is
appropriate when the conduct of the litigant
shows “[a] deliberate and contumacious disregard of the court’s authority,…bad faith,
willful disregard or gross indifference to an
order of the court, or conduct which evinces
deliberate callousness.”41 In Maryland, a dismissal for litigation misconduct is “warranted
only in cases of egregious misconduct such as
willful or contemptuous behavior, a deliberate attempt to hinder or prevent effective
presentation of defenses or counterclaims,
or stalling in revealing one’s own weak claim
or defense.”42 The Ninth Circuit has stated
that federal courts “have inherent power to
dismiss an action
when a party has willfully deceived the
court and engaged
in conduct utterly
inconsistent with the
orderly administration of justice.” 43
Had the court explicitly adopted another
jurisdiction’s standard, decisions from
that jurisdiction
would have become
more relevant.
Finally, the Slesinger court explicitly
made dismissal an
appropriate remedy
only when no lesser
remedy would guarantee fairness. This
criterion sets California apart from
many jurisdictions—
including federal
courts—which seem
to allow room for
courts to exercise the
inherent power to dismiss even when it is
not absolutely necessary to do so. Dismissals for misconduct in
other jurisdictions
may explicitly serve
as a form of punishment or deterrence. According to the U.S.
Supreme Court, for example, “The most
severe in the spectrum of sanctions provided
by statute or rule must be available to the district court in appropriate cases, not merely to
penalize those whose conduct may be deemed
to warrant such a sanction, but to deter those
who might be tempted to such conduct in the
absence of such a deterrent.”44 A number of
state courts have concluded likewise.45
Slesinger is the only published California
state court appellate decision upholding the
invocation of inherent powers to dismiss a
case based on litigation abuses. Still,
California courts have recognized and applied
the three-part standard.46
One court even intimated that the standard may apply to any exercise of inherent
power to sanction based on litigation misconduct.47 In New Albertsons, Inc. v. Superior
Court, the trial court imposed an evidentiary
sanction after finding the defendant destroyed
security camera footage despite having
received a request for its production. The
court of appeal reversed because the destruction of video footage was deemed not to constitute “egregious misconduct.”48 The court
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also did not consider the sanctions to be
“necessary to ensure a fair trial.”49 Based on
those findings, and relying on Slesinger, the
court reversed the lower court’s use of inherent powers to sanction.50 Only time will tell
whether the three-part standard will emerge
as the yardstick for California courts to assess
all nonmonetary sanctions for litigation abuse.
Limitations on Inherent Judicial Powers
Although broad, courts’ inherent powers are
not limitless. They can, for example, be circumscribed by legislation. In McMahon v.
Superior Court, the court of appeal reversed
a trial court’s exercise of inherent authority
to shorten the statutory notice period for a
summary judgment motion.51 The court held
that even when legislative acts bear directly
on inherent judicial powers, lawmakers may
exercise “a reasonable degree of regulation”
of the judiciary—so long as the statutes do not
“materially impair the constitutional functions
of the courts.”52 This ruling is consistent
with the California Supreme Court’s general
caution that “inherent powers should never
be exercised in such a manner as to nullify
existing legislation or frustrate legitimate legislative policy.”53
The inherent power of federal courts are
subject to even greater legislative control.
That is because the U.S. Supreme Court is the
only constitutionally created federal court. All
other federal courts are “ordained and established” by Congress.54 Thus, for example,
even though the power of contempt is considered “inherent in all courts [and] essential
to the preservation of order in judicial proceedings,” the Supreme Court held that
Congress could nevertheless regulate that
power’s application in circuit and district
courts because those courts’ “powers and
duties depend upon [Congress] calling them
into existence.”55
The judiciary itself also can set limits on
its inherent powers. California courts have
imposed one important doctrinal limitation
with implications for parties confronted with
litigation misconduct. In Bauguess v. Paine,
the California Supreme Court ruled that trial
courts lack the inherent power to award
attorneys’ fees based on misconduct.56 The
supreme court recognized the American Rule,
which makes each party responsible for its
own fees, absent an agreement or statutory
basis.57 But that point did not prove dispositive. The court observed that even when
no agreement or statute exists, a trial judge
has inherent supervisory power to “take
appropriate action to secure compliance with
its orders, to punish contempt, and to control its proceedings.” However, the court
concluded, “It would be both unnecessary
and unwise to permit trial courts to use fee
awards as sanctions apart from those situa-
tions authorized by statute.”58
Driving this determination were due
process concerns about fee awards without
statutory safeguards, as well as the prospect
of a chilling effect on attorneys’ zealous advocacy. According to the court, “The use of
courts’ inherent power to punish misconduct
by awarding attorneys’ fees may imperil the
independence of the bar and thereby undermine the adversary system.” Tempered by
procedural safeguards, courts already have
“ample power to punish the misconduct by
contempt.”59
That the Bauguess court spoke of monetary awards as a way to “punish” misconduct
helps reconcile this decision with other decisions giving trial courts broad inherent powers to dismiss and impose evidentiary sanctions
to redress litigation abuse.60 In California,
courts have the inherent power to impose
nonmonetary sanctions to remedy threats to
the judicial system and rebalance the process
when one party takes unfair advantage. It
makes sense to exclude monetary sanctions
from the court’s inherent powers to the extent
they are viewed solely as a form of punishment. This analysis helps explain why
California courts do not have the inherent
power to impose monetary sanctions to
redress misconduct but federal courts do.61
Federal courts are permitted to use their
inherent power to impose sanctions to punish or deter.62
Nevertheless, this analysis is not entirely
satisfying because courts could conceivably
award nonpunitive monetary sanctions—for
example, if the sanction were designed merely
to compensate a party for fees incurred as a
direct consequence of misconduct by the
opposing party. California courts have not
carved out an exception to permit the exercise of inherent powers to grant purely
restorative monetary sanctions.
At least three explanations for this inaction seem to emerge from California decisions.
The first is a concern about abuse, absent
statutory safeguards. The Bauguess court
commented that if it “were to hold that trial
courts have the inherent power to impose
sanctions in the form of attorneys’ fees for
alleged misconduct, trial courts would be
given a power without procedural limits and
potentially subject to abuse.”63 Second, courts
seem to view the inherent power to impose
nonmonetary sanctions to redress misconduct as more “necessary.” The Slesinger court
observed that the Bauguess decision described
the inherent power to impose monetary sanctions as “unnecessary” in light of courts’
contempt power.64 In contrast, the court
described the inherent power to terminate
litigation when deliberate and egregious misconduct renders any lesser sanction inadequate to be “essential for the court to preserve
the integrity of its proceedings.” This power,
according to the court, “restores balance to
the adversary system when the misconduct of
one party has destroyed it.”65 Finally, the
California Legislature has “expressly acknowledged the inherent power of courts to dismiss,” but has not done so with respect to
monetary sanctions.66
In fact, since the Bauguess decision, the
legislature took a number of steps to ensure
that trial courts have statutory authority to
impose monetary sanctions for different forms
of misconduct. For example, the legislature
enacted Code of Civil Procedure Section
128.5, giving courts broad authority to
impose monetary sanctions for “bad faith
actions or tactics.” The legislature specifically observed that this power was “now not
presently authorized by the interpretation of
the law in Baug[u]ess v. Paine.”67 Section
128.5 was later superseded by Section 128.7,
which was modeled after Rule 11 of the
Federal Rules of Civil Procedure and remains
in place today. Section 128.7 grants more
limited authority to impose monetary sanctions than Section 128.5 and also provides
greater procedural safeguards by allowing an
offending filing to be withdrawn without
consequence. This and other authorities like
Section 177.5 and Rule 2.30 of the California
Rules of Court (formerly Rule 227), which
authorize imposition of monetary sanctions for
certain forms of litigation impropriety, further underscore “the Legislature’s acceptance
of [the Bauguess court’s] core holding that
trial courts may not award attorney fees as a
sanction for misconduct absent statutory
authority (or an agreement of the parties).”68
The inherent powers of California courts
provide an important check on litigation
abuses. Recent decisions underscore this
fundamental fact, even as the contours of
the courts’ inherent powers continue to
evolve.
■
1 See,
e.g., Aoude v. Mobil Oil Corp., 892 F. 2d 1115
(1st Cir. 1989); R.S. Creative, Inc. v. Creative Cotton,
Ltd., 75 Cal. App. 4th 486 (1999); Perna v. Electronic
Data Sys. Corp., 916 F. Supp. 388 (D. N.J. 1995);
Cummings v. Wayne County, 533 N.W. 2d 13 (Mich.
Ct. App. 1995).
2 Civil Discovery Act, ch. 7, C ODE C IV . P ROC .
§§2023.010-2023.040. See CODE CIV. PROC. §2023.010
(listing specific discovery abuses potentially justifying
sanctions); CODE CIV. PROC. §2023.030 (catalogue of
remedies).
3 Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983).
4 Stephen Slesinger, Inc. v. Walt Disney Co., 155 Cal.
App. 4th 736, 758 (2007) (quoting United States v.
Hudson & Goodwin, 11 U.S. 32, 34 (1812) (internal
quotations omitted)).
5 Walker v. Superior Court, 53 Cal. 3d 257, 267
(1991).
6 Slesinger, 155 Cal. App. 4th at 762.
7 See Robert J. Pushaw Jr., The Inherent Powers of
Federal Courts and the Structural Constitution, 86
IOWA L. REV. 735 (2001) (providing historical overview
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of courts’ inherent powers).
8 Id. at 800.
9 Id. at 806.
10 Id. at 810.
11 United States v. Hudson & Goodwin, 11 U.S. 32, 34
(1812).
12 CAL. CONST. art. VI, §1.
13 Walker v. Superior Court, 53 Cal. 3d 257, 267
(1991).
14 CODE CIV. PROC. §583.150.
15 CODE CIV. PROC. §581(m).
16 Peat, Marwick, Mitchell & Co. v. Superior Court,
200 Cal. App. 3d 272, 287 (1988) (internal quotations
omitted).
17 Western Steel & Ship Repair, Inc. v. RMI, Inc., 176
Cal. App. 3d 1108, 1116-17 (1986).
18 Peat, Marwick, 200 Cal. App. 3d 272. For the factual background of the case, see generally id. at 27683.
19 Id. at 289.
20 Id. at 275.
21 Id. at 287-89.
22 Id. at 289.
23 Id. at 290.
24 Id. at 289.
25 Conn v. Superior Court, 196 Cal. App. 3d 774
(1987).
26 See, e.g., Silvestro v. Bondex Int’l, Inc., 2005 WL
2435833, at *2-4 (Cal. App. 2d Dist. 2005); Hilton v.
Bressler, 2008 WL 2526241, at *4 (Cal. App. 2d Dist.
2008).
App. 4th 736 (2007).
28 Id. at 755-56.
29 Id. at 741-56.
30 Id. at 756.
31 Id. at 740.
32 See,
e.g., Estate of King, 121 Cal. App. 2d 765, 774
(1953); Karras v. Western Title Ins. Co., 270 Cal.
App. 2d 753, 757 (1969).
33 Mileikowsky v. Tenet Health Sys., 128 Cal. App. 4th
531 (2005).
34 Id. at 561.
35 Del Junco v. Hufnagel, 150 Cal. App. 4th 789, 799
(2007).
36 Aoude v. Mobil Oil Corp., 892 F. 2d 1115, 111822 (1st Cir. 1999).
37 Martin v. DaimlerChrysler Corp., 251 F. 3d 691,
694-95 (8th Cir. 2001).
38 Woodson v. Surgitek, Inc., 57 F. 3d 1406, 1417-18
(5th Cir. 1995).
39 See, e.g., Schultz v. Sykes, 638 N.W. 2d 604, 610
(Wis. Ct. App. 2001); Tramel v. Bass, 672 So. 2d 78
(Fla. Dist. Ct. App. 1996); Rockdale Mgmt. Co. v.
Shawmut Bank, N.A., 418 Mass. 596 (1994);
Cummings v. Wayne County, 210 Mich. App. 249
(1995).
App. 4th 736, 764 (2007).
41 Tramel, 672 So. 2d at 83.
42 Klupt v. Krongard, 126 Md. App. 179, 202 (1999).
43 Anheuser-Busch, Inc. v. Natural Beverage Distribs.,
69 F. 3d 337, 348 (9th Cir. 1995).
44 NHL v. Metropolitan Hockey Club, 427 U.S. 639,
643 (1976).
45 See, e.g., Tramel, 672 So. 2d at 84 (Florida); Abtrax
Pharms. v. Elkins-Sinn, 139 N.J. 499, 517-18 (1995)
(New Jersey).
46 In re Sepuya, 2009 Cal. App. Unpub. LEXIS 6173,
at *13-14 (July 30, 2009) (unpublished); In re Marriage
of Jayraj & Bindu Nair, 2010 Cal. App. Unpub.
LEXIS 1658, at *12-13 (Mar. 9, 2010) (unpublished);
Union Carbide Corp. v. Superior Court, 2010 Cal.
App. Unpub. LEXIS 326, at *16-17 (Jan. 15, 2010)
(unpublished).
47 See New Albertsons, Inc. v. Superior Court, 168 Cal.
App. 4th 1403 (2008).
48 Id. at 1434.
49 Id.
50 Id. The court also concluded that a court order violation was required to impose evidentiary sanctions
under the relevant statute. Id. at 1431-34.
51 McMahon v. Superior Court, 106 Cal. App. 4th 112,
118 (2003).
52 Id. at 117.
53 Ferguson v. Keays, 4 Cal. 3d 649, 654 (1971) (citing Martin v. Superior Court, 176 Cal. 289 (1917)).
54 U.S. CONST. art. III.
55 Ex Parte Robinson, 86 U.S. 505, 510-11 (1873).
56 Bauguess v. Paine, 22 Cal. 3d 626, 637-39 (1978).
57 Id. at 634; CODE CIV. PROC. §1021.
58 Bauguess, 22 Cal. 3d at 637.
59 Id. at 638.
60 See also Andrews v. Superior Court, 82 Cal. App. 4th
779, 782 (2000) (observing that the Baugess court
“made it clear that a punitive monetary sanction” is not
authorized under inherent powers of the court).
61 Chambers v. NASCO, Inc., 501 U.S. 32, 45-46
(1991).
62 NHL v. Metropolitan Hockey Club, 427 U.S. 639,
643 (1976).
63 Bauguess, 22 Cal. 3d at 638.
App. 4th 736, 760-61 (2007).
65 Id. at 761.
66 Clark v. Optical Coating Labs., Inc., 165 Cal. App.
4th 150, 165 (2008).
67 Trans-Action Commercial Investors, Ltd. v. Jelinek,
60 Cal. App. 4th 352, 367 (1997) (quoting 1981 Cal.
Stat. ch. 762, §2, at 2968).
68 Clark, 165 Cal. App. 4th at 164.
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 27.
by Julie J. Bisceglia
Location
Location
Location
In the enforcement of forum-selection clauses, courts will
distinguish between mandatory and permissive language
A WELL-WROUGHT forum-selection clause,
with or without a companion choice-of-law
clause, can have a profound impact on a lawsuit. Because California law requires—and
federal law permits—a defendant seeking a
change of forum to do so early in litigation,
a forum-selection clause can make an action
grind to a halt before it even gets underway.
As these clauses become more commonplace
in commercial contracts, counsel need to be
familiar with the governing law. Indeed,
searching for and evaluating a forum-selection
clause should be one of the top items on a litigation checklist—right alongside insurance
coverage.
A forum-selection clause represents an
agreement between contracting parties about
where a dispute that arises between them
will be litigated. Such a clause is usually,
though not always, paired with a choice-oflaw clause that specifies which law will govern their dispute.1
In simpler times, courts often refused to
enforce forum-selection clauses, perceiving
them as attempts by private parties to “oust”
the court’s jurisdiction and also as contrary
to public policy.2 In 1972, however, the U.S.
Supreme Court, in The Bremen v. Zapata
Off-Shore Company,3 took a decidedly more
hospitable view. The case concerned a contract to tow an oil rig. A clause within the contract appointed the London Court of Justice
as the forum for any dispute. When the oil rig
was damaged in the Gulf of Mexico, the
owner sued the towing company in Florida.
The Florida district court and the Fifth Circuit
refused to enforce the forum-selection clause,
on the usual “ousting” and public policy
grounds. The appellate court added that the
plaintiff’s choice of forum should rarely be disturbed. Applying a straight inconvenientforum analysis—one that would be applied in
the absence of a forum-selection clause—the
appellate court found that the crucial events
took place in U.S. waters, potential witnesses
Julie J. Bisceglia is a research attorney for California
Court of Appeal Justice William Bedsworth, Fourth
District. She wrote this article as a civil litigator
practicing at the Los Angeles office of Payne &
Fears, LLP.
were nearby, and London had no interest in
the matter.4
The Supreme Court, however, took the
opposite view. Signaling a major shift in the
law, the Court remarked that “far too little
weight and effect were given to the forum
clause in resolving this controversy.”5 The
Court instead held that forum-selection
clauses “are prima facie valid and should be
enforced unless enforcement is shown by the
resisting party to be ‘unreasonable’ under
the circumstances.”6 This rule assisted American commercial interests by enforcing the
Court focused on the economic realities, both
commercial and judicial, underlying Carnival’s
clause. Holding that the lack of bargaining
power between the passenger and the cruise
line did not render a forum-selection clause
unenforceable, the Court ticked off the reasons
that a cruise line would insist on having one:
First, a cruise line has a special interest in limiting the fora in which it
potentially could be subject to suit.
Because a cruise ship typically carries
passengers from many locales, it is not
unlikely that a mishap on a cruise
California Supreme Court decided Smith,
Valentino & Smith v. Superior Court.19 The
Smith court cited The Bremen and the “modern trend” of enforcing these clauses,20 concluding that “forum selection clauses are
valid and may be given effect, in the court’s
discretion and in the absence of a showing
[that] enforcement of such a clause would
be unreasonable.”21 The court even helpfully
defined “unreasonable”: “[T]he forum selected would be unavailable or unable to accomplish substantial justice.”22 Moreover, the
court placed the burden of demonstrating
California hopped on the forum-selection-clause
bandwagon in 1976 when the California Supreme Court
decided Smith, Valentino & Smith v. Superior Court. The
Smith court cited The Bremen and the “modern trend” of
enforcing these clauses, concluding that “forum selection
clauses are valid and may be given effect, in the court’s
discretion and in the absence of a showing [that]
enforcement of such a clause would be unreasonable.”
sanctity of contracts and holding parties to
their bargain.7 If English law—assumed to
apply in the absence of a choice-of-law
clause8—was less favorable to the American
rig owner than to the German towing company, that was part of the bargain and not
grounds for refusing to enforce the clause.9
The Court also made short work of the
“ousting” notion, implying that overworked
federal district court judges would be happy
to be “ousted” from having to hear a complex maritime case.10 Although the Court’s
holding in The Bremen applied to “federal district courts sitting in admiralty,”11 other
courts, federal and state, soon gave it a much
broader application,12 and so did the Court
itself.13
The Bremen dealt with a unique, carefully negotiated contract concerning international commerce between American and
foreign businesses.14 In Carnival Cruise Lines
v. Shute, the Court examined a forum-selection clause in a form contract between an
American company and its customers.15 Shute
involved a clause on a ticket purchased by a
couple, the Shutes, for a cruise vacation, during which Mrs. Shute was injured. The Shutes
lived in Washington. The forum-selection
clause specified Florida—Carnival’s home
state. When the Shutes sued in Washington,
Carnival moved to enforce the clause.16
As it had in The Bremen, the Supreme
could subject the cruise line to litigation in several different fora.…Additionally, a clause establishing ex ante
the forum for dispute resolution has
the salutary effect of dispelling any
confusion about where suits arising
from the contract must be brought
and defended, sparing litigants the
time and expense of pretrial motions
to determine the correct forum and
conserving judicial resources that otherwise would be devoted to deciding
those motions.…Finally, it stands to
reason that passengers who purchase
tickets containing a forum clause like
that at issue in this case benefit in
the form of reduced fares reflecting
the savings that the cruise line enjoys
by limiting the fora in which it may
be sued.17
The Court also noted the lack of any evidence that Carnival had picked Florida for an
untoward purpose, such as discouraging lawsuits, or that Carnival had gained the Shutes’
agreement by “fraud or overreaching.” Finally
the Court observed that the Shutes did not
have to go on the cruise if they objected to the
clause. They failed to satisfy the “‘heavy burden of proof’” required to render the clause
unenforceable.18
California hopped on the forum-selection-clause bandwagon in 1976 when the
unreasonableness on the party opposing
enforcement.23
Since the decision in Smith, forum-selection clauses have generally encountered
smooth sailing in California courts.
Arguments that they appear in adhesion contracts,24 or that it may be more expensive to
litigate in the selected forum,25 or that the law
of the selected forum may be unfavorable or
even hostile to the plaintiff’s claims,26 or that
the plaintiff did not read the clause,27 have all
been held to be insufficient to overcome the
plaintiff’s heavy burden of showing unreasonableness. As courts and dockets become
more crowded, no one even bothers to make
the “ousting” argument anymore.28
In California state court, the mechanism
for enforcing a forum-selection clause is a
motion to dismiss or stay for forum non conveniens under Code of Civil Procedure Section
410.30.29 This motion must be filed within the
time to plead to the complaint, unless the
court extends the time for good cause.30
Section 418.10 provides directions for review
by writ of an order denying the motion.31 A
defendant who does not make this motion at
the proper time waives any objection on
inconvenient forum grounds.32
In federal court, a defendant has more
options for enforcing a forum-selection clause,
depending on the circumstances and on which
circuit’s law applies. A defendant can make
MCLE Test No. 197
The Los Angeles County Bar Association certifies that this activity has been approved for Minimum
Continuing Legal Education credit by the State Bar of California in the amount of 1 hour.
MCLE Answer Sheet #197
LOCATION LOCATION LOCATION
Name
Law Firm/Organization
1. Under federal and California law, the nonmoving
party bears the burden of showing why a forum-selection clause should not be enforced.
True.
False.
11. The fact that a forum-selection clause is accessible
only by a link on the defendant’s Web site does not render the clause unenforceable.
True.
False.
2. Smith, Valentino & Smith v. Superior Court—the only
California Supreme Court decision addressing forumselection clauses—refers in passing to the distinction
between mandatory and permissive clauses.
True.
False.
12. A service-of-suit clause expressly allows a defendant to be sued in more than one jurisdiction.
True.
False.
3. When the U.S. Supreme Court decided The Bremen
v. Zapata Off-Shore Company in 1972, it was following
the “modern trend” of enforcing forum-selection
clauses.
True.
False.
4. Under California law, proper forum is jurisdictional
and cannot be waived.
True.
False.
5. Federal law provides several procedures for enforcing a forum-selection clause; California law provides
only one procedure.
True.
False.
6. Which of these findings is not one that would preclude enforcement of a forum-selection clause in the
Ninth Circuit?
A. The clause was obtained by fraud or overreaching.
B. The clause is contained in a contract of adhesion.
C. The clause deprives the nonmoving party of a day in
court.
D. The clause contravenes a strong public policy of the
forum.
7. A federal court sitting in diversity applies the law of
the state in which it sits when deciding whether to
enforce a forum-selection clause.
True.
False.
8. If the out-of-state forum’s law is unfavorable to the
California plaintiff, a California court will not enforce an
out-of-state forum-selection clause.
True.
False.
9. A properly drafted forum-selection clause can preclude removal to federal court.
True.
False.
10. A California statute that prohibits out-of-state
forum-selection clauses precludes enforcement of such
a clause.
True.
False.
13. If a federal court finds that a forum-selection clause
is permissive, it will determine the correct forum using
the standard forum non conveniens analysis employed
in the absence of a forum-selection clause.
True.
False.
14. A California court will enforce a forum-selection
clause that selects a particular California county or
city only if venue is otherwise proper under California’s
venue statutes.
True.
False.
15. An order denying a motion to enforce a forumselection clause is an appealable order.
True.
False.
16. The standard of review for an order enforcing a
forum-selection clause is de novo.
True.
False.
17. A forum-selection clause that specifies a federal district court is not enforceable unless the parties also meet
federal subject-matter jurisdiction requirements.
True.
False.
Address
City
State/Zip
E-mail
Phone
State Bar #
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2. Answer the test questions opposite by marking
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3. Mail the answer sheet and the $15 testing fee
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5. For future reference, please retain the MCLE
test materials returned to you.
ANSWERS
Mark your answers to the test by checking the
appropriate boxes below. Each question has only
one answer.
1.
■ True
■ False
2.
■ True
■ False
18. Under California law, a forum-selection clause is
deemed unreasonable if the forum is unavailable.
True.
False.
3.
■ True
■ False
4.
■ True
■ False
5.
■ True
6.
■A
19. Under California law, a motion to enforce a forumselection clause may be made by summary judgment,
so long as the defendant pleads improper forum as an
affirmative defense.
True.
False.
7.
■ True
■ False
8.
■ True
■ False
9.
■ True
■ False
10.
■ True
■ False
11.
■ True
■ False
20. Under the Ninth Circuit test for forum-selection
clauses, the district court must resolve all factual conflicts in favor of the nonmoving party.
True.
False.
12.
■ True
■ False
13.
■ True
■ False
14.
■ True
■ False
15.
■ True
■ False
16.
■ True
■ False
17.
■ True
■ False
18.
■ True
■ False
19.
■ True
■ False
20.
■ True
■ False
■ False
■B
■C
■D
a motion under 28 USC Section 1404 for a
change of venue “in the interest of justice,”33
a motion to dismiss or transfer under 28
USC Section 1406, or, in some circuits (including the Ninth Circuit), a motion to dismiss
under Rule 12(b)(3) of the Federal Rules of
Civil Procedure.34 Federal law, rather than the
law of the state in which the district court sits,
governs whether the motion is granted.35 It
is also possible to enforce a forum-selection
clause through summary judgment, as the
cruise line did in Shute.36 A plea of improper
forum must, however, be asserted as an affirmative defense.37 If the opposing party has
already launched a lawsuit in another forum,
the party seeking to enforce the clause may
move for an antisuit injunction.38
Terminology and Enforcement
Counsel in both state and federal courts must
confront the vexed question of what kind of
forum-selection clause they are dealing with—
mandatory or permissive. Mandatory clauses
usually will be enforced in both California and
federal courts. In federal court, however, permissive clauses face an uphill battle. To complicate matters further, forum-selection clauses
are sometimes expressed in terms of jurisdiction or venue instead of court location
and type. All these refinements have generated
voluminous and confusing case law. Minute
changes in terminology are deemed sufficient
to differentiate two clauses that look indistinguishable to the untutored eye.
Ideally, a mandatory forum-selection
clause addresses court location and type
(state, federal, or both) and jurisdiction separately and in unmistakably exclusive terms:
“Exhibitor…expressly agrees that any and all
disputes arising out of or in connection with
this Agreement shall be litigated only in the
Superior Court for Los Angeles, California
(and in no other), and Exhibitor hereby consents to the jurisdiction of said court.”39 In
reality, however, many clauses are not drafted
so tidily.
The most troublesome clauses are those
phrased in terms of jurisdiction rather than
court location and type. Although a permissive forum-selection clause hardly seems
worth the trouble to print, a permissive jurisdiction clause makes sense. For example, a
buyer agrees to be subject to the jurisdiction
of the seller’s home state, with no arguments
about minimum contacts, although other
states may also have jurisdiction over the
buyer. Agreeing to be subject to the home
state’s jurisdiction, however, is not necessarily the same as agreeing to litigate disputes in
the home state’s courts.40
When faced with this kind of ambiguity—does “jurisdiction” mean “jurisdiction”
or does it mean “forum”?—courts will do
what they can to give effect to the parties’
intentions, while remaining mindful of other
issues that may bear on the choice of forum.
Thus, in one case, the disputed clause stated,
“For the purpose of resolving disputes regarding this Agreement…the Government [of
Guyana], ATN and GT&T shall submit themselves to the jurisdiction of the courts of
Guyana.”41 The court combined this clause
with a waiver of sovereign immunity by the
government of Guyana and a choice of
Guyana law and held that litigation had to
take place in Guyana’s courts.42 In another
case, however, the clause “The courts of California, County of Orange, shall have jurisdiction over the parties in any action at law
relating to the subject matter or the interpretation of this contract” was held not to
require litigation in Orange County.43
If a federal court decides that the clause is
mandatory, it will enforce it unless the plaintiff can show that enforcement would be
unreasonable or unjust.44 In the Ninth Circuit,
the court has identified three circumstances
under which a forum-selection clause would
not be enforced: fraud or overreaching,
depriving nonmoving parties of their day in
court, or contravening a strong public policy
of the forum.45 The court has further held that
if a motion to dismiss is based on controverted
facts, “the trial court must draw all reasonable inferences in favor of the non-moving
party and resolve all factual conflicts in favor
of the non-moving party.”46 Even under this
test, however, the nonmoving party still carries a heavy burden to establish that the
clause is unreasonable or unjust. Inconvenience, even a substantial amount of it, is not
enough to “deprive” the nonmoving party of
a day in court.47
If the clause is permissive, one of two
results can occur. Either the court will ignore
the clause and proceed with a standard analysis based on forum non conveniens,48 or the
court will take the clause into account as
one factor in a standard forum non conveniens analysis.49 This latter alternative is
much more likely if the defendant has moved
for a transfer rather than for outright dismissal. Here too, courts differ. Some courts
give “substantial” weight to a permissive
clause,50 while others simply regard it as one
of the interests reviewed as part of the standard forum non conveniens analysis.51
California’s Legal Wrinkle
The published California state court opinions
on forum-selection clauses are mercifully
fewer than the federal cases and far more uniform. California, however, has its own legal
wrinkle that makes the distinction between
mandatory and permissive troublesome.
The California Supreme Court has not
issued an opinion on forum-selection clauses
since 1976, when it decided the Smith case.52
The Smith court did not address, or even
mention, mandatory and permissive clauses.
The California Court of Appeal introduced the concept of mandatory and permissive forum-selection clauses into California
law in Berg v. MTC Electronics Technologies
Company, Ltd.53—a case that abounds in
difficulties. Berg involved a series of shareholder class action lawsuits, most of which
were consolidated or coordinated in the
Eastern District of New York. After these
cases were safely berthed in New York, the
Berg plaintiffs filed another shareholder action
in Los Angeles, alleging substantially the
same theories as those alleged in the New
York cases. Not surprisingly, the California
court granted the defendants a stay.54
The Berg plaintiffs argued that a statement in the MTC prospectus—not in any
agreement—required the defendants to litigate in Los Angeles. According to the sentence in the prospectus, “‘The company
[MTC] has expressly submitted to the jurisdiction of the State of California and United
States Federal courts sitting in the City of Los
Angeles, California, for the purpose of any
suit, action, or proceedings arising out of
this Offering.’”55
The Berg court identified this sentence as
a “service of suit clause,” a particular type
of clause developed for insurance policies.56
A service-of-suit clause provides that an
insurer “‘will submit to the jurisdiction of any
court of competent jurisdiction and will comply with all requirements necessary to give
such Court jurisdiction.…’” 57 The court
observed that service-of-suit clauses operate to “confer personal jurisdiction on the
selected forum, but not to mandate resolution of the dispute in that forum regardless
of other considerations.”58
While this is true enough, it is irrelevant
to the analysis of a forum-selection clause. By
definition, service-of-suit clauses do not
“select” a particular forum. In an earlier
case, the court in Appalachian Insurance
Company v. Superior Court identified the
key difference between the two kinds of
clauses:
The difference between The Bremen
and the case at bench [which dealt
with a service of suit clause] lies in
the type of forum selection clause
involved. In The Bremen selection of
the specific forum in London was
“clearly a reasonable effort to bring
vital certainty to this international
transaction and to provide a neutral
forum.…” Given the strong evidence
that the clause was an important part
of the agreement, the parties must have
conducted their negotiations with the
clause prominently in mind.…59
By contrast, the service-of-suit clauses
served an entirely different purpose. Lloyd’s
used them to make its products more attractive to American businesses, which might
otherwise have hesitated to contract with an
insurer that could not be sued in the United
States.60 Rather than providing “vital certainty” or protection “from being confronted
by a myriad of different state, provincial,
and national forums”61 afforded by The
Bremen-type forum-selection clauses, a typical service-of-suit clause invites lawsuits in
multiple jurisdictions.
Having confused two types of clauses
with very different purposes, Berg launches
into a discussion of mandatory and permissive forum-selection clauses, a discussion that
has no bearing on service-of-suit clauses. The
cases cited in Berg regarding mandatory and
permissive clauses are, without exception,
federal cases applying federal law.62
Since Berg, the fate of a permissive forumselection clause has been extremely murky
under California law. On the one hand, Berg
states that the clause is to be given substantial weight.63 On the other hand, Berg says
that the “traditional” forum non conveniens
analysis, such as that set forth in Stangvik v.
Shiley,64 applies.65
The Stangvik analysis, however, was developed for torts. It makes no allowance for a
forum-selection clause at all. The traditional
California forum non conveniens analysis
causes a forum-selection clause simply to disappear, as if it had never existed.66 Moreover,
the defendant, not the plaintiff, bears the
burden of proof. 67 In practice, however,
although published opinions since Berg have
cited it for the distinction between mandatory
and permissive clauses, 68 no published
California appellate court decision has held
a forum-selection clause unenforceable on
the grounds that it is merely permissive.69
In state court practice, a forum-selection
clause should not be confused with a true
venue-selection clause.70 A clause that selects
a California county in which a dispute must
be litigated will run into trouble if the county
is not otherwise appropriate.71 California
courts will not allow private parties to override the legislature’s determination as to which
California county should host an action.72 If
the clause selects a county or city in some
other state, however, California courts will
enforce it, assuming, no doubt, that the other
state’s courts can sort out their own venue
problems.73
California courts usually regard forumselection clauses with a benign eye.
Nevertheless, a court will refuse to enforce
even a mandatory clause if enforcement
would compromise some important
California public policy. An unconscionable
forum-selection clause, just like any other
unconscionable contract provision, will not
be enforced.74 And some California statutes
explicitly forbid enforcement of out-of-state
forum-selection clauses. For example, Business
and Professions Code Section 20040.5 prohibits out-of-state forum-selection clauses in
franchise agreements involving a California
franchise.75
Still other statutory schemes have been
interpreted to forbid enforcement of an outof-state forum-selection clause indirectly. In
America Online, Inc., v. Superior Court,76 the
court of appeal interpreted the nonwaiver
provision of California’s Consumer Legal
Remedies Act77 to prohibit enforcement of a
Virginia forum-selection clause. Because
Virginia did not afford consumers the same
rights that they would have under the CLRA,
the court reasoned that enforcement of the
forum-selection clause would be tantamount
to a waiver of the CLRA’s provisions.78
Realistically, a successful motion to dismiss
or stay for forum non conveniens in state
court or to dismiss or transfer in federal court
often signals the end of a lawsuit. In many
cases, litigation in a distant forum is simply
impractical for one reason or another.
Counsel for defendants in state court
must be particularly alert to the presence
and nature of a forum-selection clause
because of the short time period provided by
California law for asserting it. When defense
counsel receive a lawsuit based on a contract,
especially a commercial or boilerplate contract, the terms should be checked immediately for an out-of-state forum-selection
clause. If the complaint involves e-commerce,
counsel should review the terms and conditions posted on the defendant’s Web site.
These terms and conditions have been held
enforceable, even if they are only accessible
by a link.79 If the contract includes a forumselection clause and the client wishes to
enforce it, counsel should then determine as
best they can whether a court is likely to
regard it as mandatory or permissive. A decision must be made quickly whether to move
for dismissal or stay for forum non conveniens. Finally, counsel should become famil-
Mandatory or Permissive?
Counsel for clients faced with a forum-selection clause must predict whether a court will
find the clause mandatory or permissive. Each of the following clauses appeared in a
federal case. The endnotes reveal how the clauses were categorized.
1. “I agree and consent to the jurisdiction of the courts of the State of Vermont, with venue
in Windham County, Vermont or the United States District Court for the District of
Vermont for the resolution of all legal matters concerning this agreement.…”1
2. “This Agreement shall be construed and enforced in accordance with the laws of the
State of California and the parties agree that in any dispute jurisdiction and venue shall
be in California.”2
3. “A decision of the Board of Adjustment…or the decision of a permanent arbitrator shall
be enforceable by a petition to confirm an arbitration award filed in the Superior Court
of the City and County of San Francisco, State of California.”3
4. “The parties hereunto consent to jurisdiction in the State of Nevada and the terms of
this agreement to be interpreted pursuant to the laws of said State.”4
5. “Jurisdiction: Each party expressly submits to the jurisdiction of the State of New York,
U.S.A. and the federal courts situated in New York City and to service of process by registered mail.”5
6. “The undersigned further acknowledges and agrees…that Michigan is a mutually
reasonably convenient place for any trial concerning disputes arising from this Agreement
and further agrees to submit to the jurisdiction of the Courts of the State of Michigan with
respect to claims arising out of the agreement.”6
7. “The undersigned further acknowledges and agrees…that Michigan is a mutually
reasonably convenient place for any trial concerning disputes arising from this Agreement
and further agrees to submit to the jurisdiction of the Courts of the State of Michigan with
respect to claims arising out of the agreement.”7—J.J.B.
1 Paster v. Putney Student Travel, Inc., No. 99-2062, 1999 U.S. Dist. LEXIS 9194, at *2 (C.D. Cal., June 17,
1999) (mandatory).
2 Sterling Forest Assocs. Ltd. v. Barnett-Range Corp., 840 F. 2d 249, 251-52 (4th Cir. 1988) (mandatory).
3 Northern Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F. 3d 1034, 1036 (9th Cir. 1995)
(permissive).
4 Kachal, Inc., v. Menzie, 738 F. Supp. 371 (D. Nev. 1990) (permissive).
5 Central Coal Co. v. Philbro Energy, Inc., 685 F. Supp. 595, 596 (W.D. Va. 1988) (mandatory).
6 Furrey v. First Nat’l Monetary Corp., 602 F. Supp. 6, 8 (W.D. Okla. 1984) (mandatory).
7 First Nat’l Monetary Corp. v. Chesney, 654 F. Supp. 649, 654 (E.D. Mich. 1980) (permissive).
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iar with any statutes, such as those protecting consumers, that could directly or indirectly affect enforcement.
In federal court, the pace need not perhaps
be quite so hectic, as a defendant may be
able to assert improper venue as an affirmative defense and make a motion for summary judgment at its leisure. But counsel
must be careful to follow the dictates of Rule
12 of the Federal Rules of Civil Procedure
regarding motions to dismiss to avoid inadvertently waiving the issue.80
Plaintiffs’ counsel also should be looking
for forum-selection clauses while litigation is
being considered. A client who suddenly finds
out that he or she will have to litigate in a distant state—and perhaps under different and
less favorable law—will likely be annoyed, at
the very least, with counsel for failing to
bring this game-changer to the client’s attention before filing.
■
1 The choice-of-law clause usually specifies the law of
the state selected as the forum. But see Vogt-Nem,
Inc. v. M/V Tramper W. African Shipping Co., N.V.,
263 F. Supp. 2d 1226, 1231-32 (N.D. Cal. 2002)
(Netherlands forum, Dutch and American law applied).
2 See, e.g., Carbon Black Export v. The SS Monrosa,
254 F. 2d 297, 300-01 (5th Cir. 1958).
3 The Bremen v. Zapata Off-Shore Co., 407 U.S. 1
(1972).
4 Id. at 6, 7.
5 Id. at 8.
6 Id. at 10.
7 Id. at 11.
8 Id. at 14 n.15.
9 Id. at 15.
10 Id. at 12.
11 Id. at 10.
12 See, e.g., Pelleport Investors, Inc., v. Budco Quality
Theaters, Inc., 741 F. 2d 273, 279 (9th Cir. 1984), disapproved on other grounds by Powerex Corp. v.
Reliant Energy Servs., 551 U.S. 224 (2007).
13 Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974);
see also Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614 (1985).
14 The Bremen, 407 U.S. at 9, 10.
15 Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991),
superseded by statute, 46 U.S.C. §30509.
16 Id. at 587-88.
17 Id. at 593-94.
18 Id. at 595.
19 Smith, Valentino & Smith v. Superior Court, 17
Cal. 3d 491 (1976).
20 Id. at 494-95. In his dissent, Justice Mosk wrote in
favor of the traditional view. Id. at 497-98.
21 Id. at 496.
22 Id. at 494.
23 Id.; see also Benefit Ass’n Int’l, Inc. v. Superior
Court, 46 Cal. App. 4th 827, 835 (1996). An inconvenient-forum analysis operating in the absence of a
forum-selection clause places the burden on the party
advocating dismissal or stay (usually the defendant) to
show that the chosen forum is not the right one.
Century Indem. Co. v. Bank of Am., 58 Cal. App. 4th
408, 411 (1997).
24 Intershop Commc’ns AG v. Superior Court, 104
Cal. App. 4th 191, 201-02 (2002).
25 Smith, 17 Cal. 3d at 496.
26 CQL Original Prods., Inc. v. National Hockey League
Players Ass’n, 39 Cal. App. 4th 1347, 1356-57 (1995).
27 Intershop Commc’ns, 104 Cal. App. 4th at 202;
but see Carnival Cruise Lines v. Superior Court, 234
Cal. App. 3d 1019, 1027 (1991) (lack of notice renders
clause unenforceable).
28 States differ, however, in their acceptance of forumselection clauses. For example, the U.S. Supreme Court
in Stewart Organization, Inc., v. Ricoh Corporation
alluded to the hostility of Alabama state courts toward
these clauses. Stewart Org., Inc., v. Ricoh Corp., 487
U.S. 22, 24, 30 (1988).
29 Olnick v. BMG Entm’t, 138 Cal. App. 4th 1286,
1294 (2006); Cal-State Business Prods. & Servs., Inc.,
v. Ricoh, 12 Cal. App. 4th 1666, 1680 (1993). If the
plaintiff is a California resident, the court will almost
always stay, rather than dismiss, the case. See, e.g.,
Furda v. Superior Court, 161 Cal. App. 3d 418, 425
(1984).
30 CODE CIV. PROC. §418.10(a).
31 CODE CIV. PROC. §418.10(c). The standard of review
for enforcement of a forum-selection clause is all over
the map. See Intershop Commc’ns, 104 Cal. App. 4th
at 198-99 (substantial evidence, abuse of discretion, de
novo). The standard chosen will most likely depend on
how the trial court arrived at its decision. For example, if it interpreted contract language as a matter of
law, then the appellate court will probably review de
novo. Id.
32 CODE CIV. PROC. §418.10(e)(3).
33 Stewart, 487 U.S. at 29. If there is no enforceable
choice-of-law provision, the law of the state in which
the original court sat will still apply—even if the motion
is granted and the case is moved. Van Dusen v. Barrack,
376 U.S. 612, 639 (1964).
34 Argueta v. Banco Mexicano, S.A., 87 F. 3d 320, 324
(9th Cir. 1996). It is important to check the law of the
circuit in which the motion is made. In the Sixth
Circuit, for example, a FED. R. CIV. P. 12(b)(3) motion
will be denied if the suit was originally filed in a court
in which venue would be proper. Kerobo v.
Southwestern Clean Fuels Corp., 285 F. 3d 531, 536
(6th Cir. 2002). If the case is transferred for improper
venue under 28 U.S.C. §1406, the law of the new
forum will apply in the absence of an enforceable
choice-of-law provision. Nelson v. International Paint
Co., 716 F. 2d 640, 643 (9th Cir. 1983).
35 Stewart, 487 U.S. at 32. Although the court has discretion to dismiss the action pursuant to 28 U.S.C.
§1406(a), it will usually transfer the case if the selected
forum is domestic and if it perceives that a dismissal
may cause limitation problems. See, e.g., Roberson v.
Norwegian Cruise Line, 897 F. Supp. 1285, 1289
(C.D. Cal. 1995).
36 Carnival Cruise Lines v. Shute, 499 U.S. 585 (1991),
superseded by statute, 46 U.S.C. §30509; see also John
Boutari & Sons v. Attiki Imps. & Distribs., Inc., 22 F.
3d 51 (2d Cir. 1994).
37 American Home Assurance Co. v. TGL Container
Lines, Ltd., 347 F. Supp. 2d 749, 765 (N.D. Cal.
2004); FED. R. CIV. P. 12(h).
38 Applied Med. Distrib. Corp. v. The Surgical Co., 587
F. 3d 909 (9th Cir. 2009); E. & J. Gallo Winery v.
Andina Licores S. A., 446 F. 3d 984 (9th Cir. 2006).
This procedure is also available in state court, but an
injunction is granted only in exceptional circumstances.
Advanced Bionics Corp. v. Medtronic, Inc., 29 Cal. 4th
697, 707-08 (2002).
39 Pelleport Investors, Inc., v. Budco Quality Theaters,
Inc., 741 F. 2d 273, 275 (9th Cir. 1984), disapproved
on other grounds by Powerex Corp. v. Reliant Energy
Servs., 551 U.S. 224 (2007). The court held that this
clause defeated removal to federal court. Pelleport, 741
F. 2d at 280. Parties may not, however, “contract”
themselves into federal court. They must still satisfy the
subject-matter jurisdictional requirements of federal
question or diversity. A clause that specifies a federal district court as the exclusive forum will be unenforceable
if the jurisdictional requirements are not met.
40 See
Hunt v. Superior Court, 81 Cal. App. 4th 901,
908 (2000).
41 Atlantic Tele-Network, Inc. v. Inter-American Dev.
Bank, 251 F. Supp. 2d 126, 133 (D. D.C. 2003).
42 Id. at 134.
43 Hunt Wesson Foods v. Supreme Oil Co., 817 F. 2d
75, 76 (9th Cir. 1987).
44 The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15
(1972).
45 Murphy v. Schneider Nat’l, Inc., 362 F. 3d 1133,
1140 (9th Cir. 2003).
46 Id. at 1138.
47 See, e.g., Sharani v. Salviati & Santori, Inc., No. C
08-03854 SI, U.S. Dist. LEXIS 105685, at *6-11 (N.D.
Cal. Dec. 29, 2008) (Oakland couple did not provide
enough evidence to establish that requiring them to litigate in London would deprive them of their day in
court.).
48 See, e.g., Utah Pizza Serv. v. Heigl, 784 F. Supp. 835,
839 (D. Utah 1992).
49 See, e.g., Kachal, Inc., v. Menzie, 738 F. Supp. 371,
374 (D. Nev. 1990); Softwareworks Group, Inc., v.
IHosting, Inc., No. C06-04301, 2006 U.S. Dist. LEXIS
75989, at *10 (N.D. Cal. Oct. 4, 2006).
50 See, e.g., Unisys Corp. v. Access Co., Ltd., No. C053378, 2005 U.S. Dist. LEXIS 31897 (N.D. Cal. Nov.
23, 2005).
51 See, e.g., Kachal, 738 F. Supp. at 374.
52 The state supreme court repeatedly referred to the
Smith decision in its Nedlloyd Lines choice-of-law
case. The court did not, however, add to the Smith
analysis in Nedlloyd. Nedlloyd Lines, B.V. v. Superior
Court, 3 Cal. 4th 459 (1992).
53 Berg v. MTC Elecs. Techs. Co., Ltd., 61 Cal. App.
4th 349 (1998).
54 Id. at 355.
55 Id. at 357.
56 Id. at 352-53.
57 Ford Motor Co. v. Insurance Co. of N. Am., 35 Cal.
App. 4th 604, 608-09 (1995). These clauses were
inserted into insurance policies for marketing purposes. As one insurance company executive explained,
the clause “‘was voluntarily developed by Lloyd’s of
London many years ago, as a response to competitor’s
arguments that Lloyd’s was not amenable to process
in the United States and that the potential customer
should therefore place its business with a domestic
company that was subject to service [of] process.’”
Appalachian Ins. Co. v. Superior Court, 162 Cal. App.
3d 427, 432 (1984).
58 Berg, 61 Cal. App. 4th at 353.
59 Appalachian Ins. Co., 162 Cal. App. 3d at 439.
60 Id. at 432.
61 CQL Original Prods., Inc. v. National Hockey
League Players Ass’n, 39 Cal. App. 4th 1347, 1355
(1995).
62 Berg, 61 Cal. App. 4th at 359-60.
63 Id. at 359.
64 Stangvik v. Shiley, 54 Cal. 3d 744, 751 (1991).
65 Berg, 61 Cal. App. 4th at 359.
66 See, e.g., Hemmelgarn v. Boeing Co., 106 Cal. App.
3d 576, 584-85 (1980).
67 Century Indem. Co. v. Bank of Am., 58 Cal. App.
4th 408, 411 (1997).
68 See Olnick v. VMG Entm’t, 138 Cal. App. 4th 1286,
1294 (2006); Intershop Commc’ns AG v. Superior
Court, 104 Cal. App. 4th 191, 196 (2002); Hunt v.
Superior Court, 81 Cal. App. 4th 901, 907 (2000).
69 The trial court in TSMC North America v.
Semiconductor Manufacturing International
Corporation found that a forum clause was permissive,
following Berg, but this was only one factor in the
court’s analysis of whether to grant an antisuit injunction prohibiting litigation in China. TSMC N. Am. v.
Semiconductor Mfg. Int’l Corp., 161 Cal. App. 4th
581, 588-89 (2008). TSMC was not a forum non con-
veniens case.
70 Federal courts do not need to be concerned about
enforcing clauses that specify a particular location
within a state. In addition, the terms “venue” and
“forum” are often used interchangeably in federal
practice. See Sterling Forest Assocs., v. Barnett-Range
Corp., 840 F. 2d 249, 251 (4th Cir. 1988).
71 CODE CIV. PROC. §§392 et seq.
72 Alexander v. Superior Court, 114 Cal. App. 4th
723, 731-32 (2003); see also General Acceptance Corp.
v. Robinson, 207 Cal. 285, 289 (1929).
73 See, e.g., Smith, Valentino & Smith v. Superior
Court, 17 Cal. 3d 491 (1972) (court enforces clause
requiring litigation in Philadelphia).
74 Bolter v. Superior Court, 87 Cal. App. 4th 900,
909-10 (2001).
75 This statute has encountered some difficulties. The
Ninth Circuit has held that it is preempted by the
Federal Arbitration Act when the forum-selection
clause purports to regulate the forum for an arbitration.
Bradley v. Harris Research, Inc., 275 F. 3d 884, 890
(9th Cir. 2001).
76 America Online, Inc., v. Superior Court, 90 Cal. App.
4th 1 (2001).
77 CIV. CODE §§1750 et seq.
78 America Online, 90 Cal. App. 4th at 15; see also Hall
v. Superior Court, 150 Cal. App. 3d 411 (1983) (antiwaiver provision of California securities law prevented
enforcement of forum-selection clause).
79 Net2phone, Inc. v. Superior Court, 109 Cal. App. 4th
583, 588 (2003); see also Schlessinger v. Holland Am.,
N.V., 120 Cal. App. 4th 552, 555 (2004) (sample
contracts available on cruise line Web site).
80 See, e.g., American Home Assurance Co. v. TGL
Container Lines, Ltd., 347 F. Supp. 2d 749, 765 (N.D.
Cal. 2004).
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By STEVEN T. LOWE
DEATH
OF COPYRIGHT
Copyright infringement may be the only remaining area of
law in which courts seem increasingly willing to decide
material facts on summary judgment
As a result, the determination of each case
now rests almost entirely in the unfettered discretion of trial judges, who have consistently
dismissed plaintiffs’ claims. Unless the current
trend changes, longstanding principles once
favorable to creators may be eclipsed by an
evolving body of law so unfavorable to them
that the studios and networks are essentially
immunized from liability except in cases of
identical copying and conceded access to the
plaintiff’s work.
Since direct evidence of copying rarely is
available in a copyright infringement suit,3
plaintiffs typically must establish that the
defendant had access to the plaintiff’s work
and that the two works are substantially similar.4 Proof of access requires only a “reasonable possibility” to view or copy the plaintiff’s work.5 However, courts commonly cite
to the countervailing principle that “mere
speculation or conjecture” is insufficient.
Because the analysis of a reasonable possibility
necessarily includes some conjecture and
speculation, the “line between a ‘bare’ pos-
sibility and a ‘reasonable’ possibility of access
is difficult to draw.”6 If the work has not
been widely disseminated—which is usually
the case for unpublished screenplays—“a
particular chain of events” must be established
between the plaintiff’s work and the defendant’s access to that work.7
Early cases outside of the Ninth Circuit
found access even when the plaintiff could not
actually place the work in the hands of the
defendant. For example, in the First Circuit
case of Morrissey v. Procter & Gamble Company, the plaintiff offered evidence that he had
mailed his copyrighted work to the defendant’s principal office. The court held that this
mailing created “an inference that the letter
reached its proper destination,” and to require
the plaintiff to show that the “particularly
Steven T. Lowe is a principal of Lowe Law, a boutique entertainment litigation firm in Los Angeles.
He wishes to thank Daniel Lifschitz, Chris Johnson,
and Michael Salvatore for their assistance in the
preparation of this article.
AMANE KANEKO
COPYRIGHT INFRINGEMENT claims against
motion picture studios and television networks, for all intents and purposes, are dead.
Of the 48 copyright infringement cases against
studios or networks that resulted in a final
judgment within the Second and Ninth
Circuits (and the district courts within those
circuits) in the last two decades,1 the studios
and networks prevailed in all of them—and
nearly always on motions for summary judgment. (See “Perfect Storm,” at 34.) In fact, in
the last 20 years, only two publicly available copyright infringement cases (published
or unpublished) against studios or networks
proceeded to jury trial—with verdicts for the
defendants.2
Were all these cases without merit, or did
the studios and networks simply have far
superior counsel in each case? These suppositions are very unlikely. The case law governing these actions simply has become so
amorphous that for almost every principle of
law favorable to creators, the courts have
endorsed and applied an opposite principle.
responsible employees had received his communication” would have been unfair. 8
Similarly, in 1971, a New York district court
held in Bevan v. Columbia Broadcasting System, Inc., that corporate receipt could be
“sufficient to raise a triable issue, despite
plaintiff’s inability to show receipt by the
responsible employee,”9 because it would be
unfair to “saddle a plaintiff with disproving
non-access within a corporate structure foreign to him and with witnesses not his own.”10
Unfortunately for creators, the Bevan
holding was rejected by some courts.11 For
example, in Meta-Film Associates, Inc. v.
MCA, Inc., a 1984 case, the Central District
of California identified only three circumstances that would meet the type of close
relationship between coworkers necessary to
give rise to a reasonable opportunity of access.
The person who received the plaintiff’s work
must 1) be “a supervisor with responsibility
for the defendant’s project,” or 2) “part of the
same work unit as the copier,” or 3) have
“contributed creative ideas or material to
the defendant’s work.”12 By limiting, as a
matter of law, the instances in which a plaintiff can prove access within a corporate structure, the Meta-Film court effectively precluded plaintiffs from establishing access in
numerous scenarios in which there is actual
access but the facts do not fall into one of the
court’s enumerated categories.13
The Meta-Film court also recognized situations in which a third-party intermediary
not of the same business enterprise as the
alleged infringer may be found to have passed
along the plaintiff’s work.14 The court limited
such situations, however, to instances when the
third-party intermediary “provided creative
suggestions and ideas” concerning the
allegedly infringing work, and “the dealings
between the three entities (plaintiff, defendants, and [intermediary])…related to the
identical subject matter.”15 Although MetaFilm’s effect in the Ninth Circuit has been
limited to several district court cases16—and
the Ninth Circuit has not adopted its holding17—Meta-Film has been influential in the
Second Circuit, which expressly relied on the
case when it overruled the Bevan holding.18
Thus, Meta-Film remains a prominent example of why commentators note that “many
courts set an unrealistically high bar as to
what constitutes a close relationship” for
establishing access.19
Substantial Similarity
Even when access is established, the path to
a favorable judgment remains perilous for
plaintiffs.20 In fact, in many cases in which
summary judgment has been granted for
defendants, the courts simply presumed that
access existed.21 This is because “even massive evidence of access cannot by itself avoid
the necessity of also proving the full measure
of substantial similarity.”22 And this full measure has become virtually impossible to establish under recent case law.
To determine whether substantial similarity exists between works at the summary
judgment phase, the Ninth Circuit has
instructed that courts perform an “extrinsic” analysis of the works’ objective elements,
focusing on “articulable similarities between
the plot, themes, dialogue, mood, setting,
pace, characters, and sequence of events.”23
In application, however, this analysis has
been unpredictable and has resulted in wildly
conflicting case law and results. In addition,
in recent years, the Ninth Circuit has ignored
established case law that requires the court to
not only include “unprotectable elements” in
its analysis24 but also exclude dissimilarities
between the two works.25
A long line of copyright infringement
cases holds that a plaintiff and defendant’s
works should be compared in their entirety,
including both protectable and unprotectable
elements,26 to determine whether a qualitatively (or quantitatively) significant portion of
Perfect Storm
In the last 20 years, in the Second and Ninth Circuits and the lower courts within those
circuits, 48 copyright infringement cases against studios or networks were litigated to final
judgment. In all 48 cases, the victors were the studio and network defendants. Most of the cases
were determined by a grant of summary judgment.
✖ Arden v. Columbia Pictures Industries, 908 F. Supp. 1248 (S.D. N.Y.
1995) (summary judgment for defendant) (Groundhog Day).
✖ Benay v. Warner Bros. Entertainment, Inc., 607 F. 3d 620 (9th Cir. 2010)
(summary judgment for defendant affirmed) (The Last Samurai).
✖ Benjamin v. Walt Disney Company, 2007 U.S. Dist. LEXIS 91710 (C.D.
Cal. 2007) (summary judgment for defendant) (Sweet Home Alabama).
✖ Bethea v. Burnett, 2005 WL 1720631 (C.D. Cal. 2005) (summary judgment for defendant) (The Apprentice).
✖ Blakeman v. Walt Disney Company, 613 F. Supp. 2d 288 (E.D. N.Y. 2009)
(summary judgment for defendant) (Swing Vote).
✖ Burns v. Imagine Films Entertainment, Inc., 2001 U.S. Dist. LEXIS 24653
(W.D. N.Y. 2001) (summary judgment for defendant) (Backdraft).
✖ Brown v. Perdue, 177 Fed. Appx. 121 (2d Cir. 2006) (summary judgment for defendant affirmed) (The Da Vinci Code).
✖ Bunick v. UPN, 2008 U.S. Dist. LEXIS 35536 (S.D. N.Y. 2008) (summary
judgment for defendant) (South Beach).
✖ Cabell v. Sony Pictures Entertainment, Inc., 2010 U.S. Dist. LEXIS 54667
(S.D. N.Y. 2010) (summary judgment for defendant) (You Don’t Mess with
the Zohan).
✖ Cox v. Abrams, 1997 U.S. Dist. LEXIS 6687 (S.D. N.Y. 1997) (summary
judgment for defendant) (Regarding Henry).
✖ Flaherty v. Filardi, 2009 U.S. Dist. LEXIS 22641 (S.D. N.Y. 2009) (sum-
mary judgment for defendant) (Bringing Down the House).
✖ Flynn v. Surnow, 2003 U.S. Dist. LEXIS 26973 (C.D. Cal. 2003) (summary judgment for defendant) (24).
✖ Funky Films v. Time Warner Entertainment, 462 F. 3d 1072 (9th Cir.
2006) (summary judgment for defendant) (Six Feet Under).
✖ Gable v. NBC, 2010 WL 2990977 (C.D. Cal. 2010) (summary judgment
for defendant) (My Name Is Earl).
✖ Gilbert v. New Line Productions, 2010 U.S. Dist. LEXIS 27134 (C.D. Cal.
2010) (summary judgment for defendant) (Monster in Law).
✖ Gregory v. Murphy, 1991 U.S. App. LEXIS 4893 (9th Cir. 1991) (summary judgment for defendant affirmed) (Coming to America).
✖ Grosso v. Miramax Film Corporation, 2001 U.S. Dist. LEXIS 26199 (C.D.
Cal. 2001) (summary judgment for defendant) (Rounders).
✖ Historical Truth Productions v. Sony Pictures Entertainment, 1995 U.S.
Dist. LEXIS 17477 (S.D. N.Y. 1995) (summary judgment for defendant)
(Universal Soldier).
✖ Hudson v. Universal Pictures Corporation, 2004 U.S. Dist. LEXIS
11508 (E.D. N.Y. 2004) (summary judgment for defendant) (Life).
✖ Idema v. Dreamworks, Inc., 162 F. Supp. 2d (C.D. Cal. 2001) (summary
judgment for defendant) (The Peacemaker).
✖ Kodadek v. MTV Networks, 1996 U.S. Dist. LEXIS 20776 (C.D. Cal. 1996)
(summary judgment for defendant) (Beavis & Butthead).
a plaintiff’s work was appropriated.27 This
comports with basic principles of copyright
law and is known as the “selection and
arrangement” test.28
In the seminal 1991 case Feist Publications
Inc. v. Rural Telephone Services Company, the
U.S. Supreme Court held that when dealing
with works largely (or even entirely) composed of unprotectable elements, “choices
as to selection and arrangement, so long as
they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original.”29 Transposed to
the literary arts, the test provides that
although copyright law does not generally
protect basic plot premises in literary works
or commonly used expressions that flow naturally from those premises (“scenes a faire”),
the original selection and arrangement of
these elements can constitute a protectable
work in and of itself.30 Therefore, the wholesale exclusion of all “unprotectable” elements improperly limits the scope of copyright
protection. The Ninth Circuit has recognized
this principle on numerous occasions but
has spent the better part of the past decade
aggressively denying its use to plaintiffs in
copyright infringement cases against studios
and networks.
Metcalf v. Bochco, decided in 2002, is
one of only two copyright infringement cases
against a studio or network in the last 20
years that proceeded to trial. (The other is
Shaw v. Lindheim.31) In Metcalf, the plaintiff
offered evidence that the defendant had misappropriated many elements of the plaintiff’s screenplay to create a television series for
NBC. The court recognized that “the similarities proffered by [the plaintiff] are not
protectable when considered individually;
they are either too generic or constitute ‘scenes
a faire.’”32 However, “the presence of so
many generic similarities and the common
patterns in which they arise help satisfy the
extrinsic test.”33 The court memorably compared the elements of literary works to those
of musical compositions:
The particular sequence in which an
author strings a significant number of
unprotectable elements can itself be a
protectable element. Each note in a
scale, for example, is not protectable,
but a pattern of notes in a tune may
earn copyright protection.34
The court did not strip the works of their
unprotectable elements before diving into an
extrinsic analysis of substantial similarity,
consistent with the general purpose of the
selection and arrangement test (that is, to
protect in combination that which cannot
✖ Kouf v. Walt Disney Pictures and Television, 16 F. 3d 1042 (9th Cir. 1994)
(summary judgment for defendant affirmed) (Honey, I Shrunk the Kids).
✖ Kretschmer v. Warner Bros., 1994 U.S. Dist. LEXIS 7805 (S.D. N.Y. 1994)
(summary judgment for defendant) (Defending Your Life).
✖ Lane v. Universal City Studios, 1994 U.S. App. LEXIS 23769 (9th Cir.
Cal. 1994) (summary judgment for defendants affirmed) (Kojak: Fatal
Flaw).
✖ Laskay v. New Line Cinema, 1998 U.S. App. LEXIS 23461 (C.D. Cal.
1998) (summary judgment for defendant) (Don Juan DeMarco).
✖ Lassiter v. Twentieth Century Fox Film Corporation, 238 Fed. Appx. 194
(9th Cir. 2007) (summary judgment for defendant affirmed) (Drumline).
✖ Mallery v. NBC Universal, Inc., 331 Fed. Appx. 821 (2d Cir. 2009) (summary judgment for defendant affirmed) (Heroes).
✖ Merrill v. Paramount Pictures Corporation, 2005 U.S. Dist. LEXIS 45401
(C.D. Cal. 2005) (summary judgment for defendant) (Crossroads).
✖ Mestre v. Vivendi Universal U.S. Holding Co., 273 Fed. Appx. 631 (9th
Cir. 2008) (summary judgment for defendant affirmed) (Billy Elliot).
✖ Metcalf v. Bochco, 294 F. 3d 1069 (9th Cir. 2002) (jury verdict in favor
of defendant studio), aff’d, Metcalf v. Bochco, 200 Fed. Appx. 635 (9th
Cir. 2006) (City of Angels).
✖ Milano v. NBC Universal, Inc., 584 F. Supp. 2d 1288 (C.D. Cal. 2008)
(summary judgment for defendant) (The Biggest Loser).
✖ Mowry v. Viacom International, Inc., 2005 U.S. Dist. LEXIS 15189 (S.D.
N.Y. 2005) (summary judgment for defendant) (The Truman Show).
✖ Novak v. National Broadcasting Company, 752 F. Supp. 164 (S.D. N.Y.
1990) (summary judgment for defendant) (Saturday Night Live).
✖ Ostrowski v. Creative Artists Agency, 1994 U.S. App. LEXIS 23732 (9th Cir.
Cal. 1994) (summary judgment for defendant affirmed) (To Forget Palermo).
be protected separately).35 In the years since
its publication, however, the analysis of
Metcalf has proven to be the exception and
not the rule.
The 2003 case of Rice v. Fox Broadcasting
Company may have played the heaviest hand
against the use of the selection and arrangement test. The Rice court stated that “similarities derived from the use of common ideas
cannot be protected.”36 This assertion ignored
the holdings and rationales of the cases that
the court cited, including Metcalf, but the
Rice court attempted to distinguish Metcalf
by stating that it was “based on a form of
inverse ratio rule analysis” (i.e., the rule
whereby more access requires less substantial
similarity and vice versa) and seemed to imply
that the selection and arrangement test is
only applicable when access is conceded.37
This implication, which limits Metcalf to its
facts, overlooks that nowhere in Metcalf (or
any case prior to it) is the inverse ratio rule
required for the application of the selection
and arrangement test.38 Nevertheless, Rice’s
misinterpretation of Metcalf has been repeatedly followed by the Ninth Circuit in subsequent opinions.
Indeed, in the 2006 case of Funky Films,
Inc. v. Time Warner Entertainment Company,
L.P., the Ninth Circuit once again ignored the
✖ Pelt v. CBS, Inc., 1993 U.S. Dist. LEXIS 20464 (C.D. Cal. 1993) (summary judgment for defendant) (Listen Up! Young Voices for Change).
✖ Rice v. Fox Broadcasting Company, 330 F. 3d 1170 (9th Cir. 2003) (summary judgment for defendant affirmed) (The Mystery Magician).
✖ Robinson v. Viacom International, 1995 U.S. Dist. LEXIS 9781 (S.D.
N.Y. 1995) (summary judgment for defendant) (Hi Honey).
✖ Rodriguez v. Heidi Klum Company, LLC, 2008 U.S. Dist. LEXIS 80805
(S.D. N.Y. 2008) (summary judgment for defendant) (Project Runway).
✖ Rosenfeld v. Twentieth Century Fox Film, 2009 U.S. Dist. LEXIS 9305
(C.D. Cal. 2009) (summary judgment for defendant) (Robots).
✖ Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal. 1992) (upon remand,
judgment as a matter of law in favor of defendant studio) (The Equalizer).
✖ Stewart v. Wachowski, 574 F. Supp. 2d 1074 (C.D. Cal. 2005) (summary judgment for defendant) (The Matrix).
✖ The Sheldon Abend Revocable Trust v. Steven Spielberg, 2010 WL
3701343 (S.D. N.Y. 2010) (summary judgment for defendants) (Disturbia).
✖ Thomas v. Walt Disney Company, 337 Fed. Appx. 694 (9th Cir. 2009)
(defendant’s motion to dismiss affirmed) (Finding Nemo).
✖ Walker v. Viacom International, Inc., 2010 U.S. App. LEXIS 1475 (9th
Cir. 2010) (summary judgment for defendant) (SpongeBob SquarePants).
✖ Weygand v. CBS, 1997 U.S. Dist. LEXIS 19613 (C.D. Cal. 1997) (summary judgment for defendant) (Charlie).
✖ Williams v. Crichton, 84 F. 3d 581 (2d Cir. 1996) (summary judgment for defendant) (Jurassic Park).
✖ Willis v. HBO, 2001 U.S. Dist. LEXIS 17887 (S.D. N.Y. 2001) (summary
judgment for defendant) (Arli$$).
✖ Zella v. E. W. Scripps Company, 529 F. Supp. 2d 1124 (C.D. Cal. 2007)
—S.T.L.
(defendant’s motion to dismiss granted) (Rachael Ray).—
selection and arrangement test, holding that:
[Courts] must take care to inquire only
whether the protectable elements,
standing alone, are substantially similar. In so doing, [courts] filter out and
disregard the non-protectable elements
in making [their] substantial similarity
determination.39
Moreover, in one flourish of its pen, the
Funky Films court created a whole new
defense for alleged infringers where none
previously existed and which has been heav-
arrangement test, comfortably stripping all
unprotected elements from the works and
ultimately using the new Funky Films dissimilarity analysis as a basis to rule against the
plaintiffs on their copyright claim.49
In the end, the Benay plaintiffs only were
able to continue to pursue their state law
claim of breach of implied contract.50 Though
this claim can be satisfied when copying does
not rise to a level of substantial similarity, it
requires a higher level of access to establish
an implied contract, as well as privity between
favored on the substantial similarity issue in
copyright cases,”54 the overwhelming majority of copyright cases are dismissed on exactly
that issue. Admissible expert testimony normally can defeat summary judgment against
the party it supports.55 When two expert
witnesses reasonably contradict one another,
the contradiction should create a material
issue of fact that a jury is required to resolve.56
However, courts inexplicably have carved
out literary analysis as an exception to this
rule. Courts have become more willing to
Not only has the ad hoc use of substantial
dissimilarity and the refusal to acknowledge
selection and arrangement stripped creators of the
doctrines that once protected them, but it also
effectively endorses creative theft whenever the
elements of an implied contract are not satisfied.
ily relied upon in subsequent court opinions.
The court stated that a “reading of the two
works reveal[ed] greater, more significant differences” than similarities.40 In essence, the
court constructed a brand new test of “substantial dissimilarity” in the context of copyright infringement, one that completely contravenes the well-established principle that
dissimilarity is irrelevant as long as the plaintiff makes a showing of the defendant work’s
similarity to a substantial element of the
plaintiff’s work.41
It appears that the old Learned Hand
chestnut that “no plagiarist can excuse the
wrong by showing how much of his work he
did not pirate” may no longer be true.42 The
result of this shift in copyright law is that third
parties now have the freedom to steal from
screenplays with impunity, provided they
cover their tracks by creating sufficient dissimilarities in what is, in reality, a “derivative
work.”43 The recent case of Benay v. Warner
Bros. illustrates this point.44
In Benay, decided in June 2010, the plaintiffs’ agent pitched and provided a copy of
their screenplay The Last Samurai to the
president of production at Warner Bros.45
The studio declined to proceed further with
the screenplay but later produced and released
a film with the exact same title and premise
as the plaintiffs’ work.46 Despite compelling
evidence that actual copying of the plaintiff’s screenplay occurred,47 the court deemed
it “insufficient to overcome the overall lack
of similarities between protected elements of
the works.”48 The Ninth Circuit’s extrinsic
analysis once again ignored the selection and
the parties.51 Furthermore, even if established, the remedies available in a breach of
implied contract claim are not as broad as
those for copyright claims.52 Overall, the
state claim is a poor substitute for the once
robust protections offered to creators under
copyright law. The claim also has been limited extensively by the application of the
preemptive effect of federal copyright law—
the very law creators hoped it would supplement.53
Phasing Out Experts and Juries
The outcome in Benay is emblematic of just
how far copyright decisions have strayed
from maintaining a balance between the interests of creators and the interests of producers. Not only has the ad hoc use of substantial dissimilarity and the refusal to
acknowledge selection and arrangement
stripped creators of the doctrines that once
protected them, but it also effectively endorses
creative theft whenever the elements of an
implied contract are not satisfied. If more
juries were exposed to the facts of these cases,
creators might hope to reverse the imbalance. However, the determination of appropriation has time and again been allocated to
the presiding judge of each case instead.
Indeed, copyright infringement may be the
only remaining area of the law in which
judges seem increasingly willing to decide
material facts on summary judgment, effectively removing both experts and juries from
the process entirely.
While courts repeatedly cite the proposition that “summary judgment is not highly
dismiss expert witnesses to screenplay copyright infringement claims and analyze the
works themselves.57
In 2001, the Central District of California
stated in Fleener v. Trinity Broadcasting
Network (a case that was not against a major
studio), “There is abundant case-law establishing that expert testimony is particularly
appropriate in summary judgment motions
under the copyright ‘extrinsic test.’” 58
However, judges have become comfortable
with disregarding this type of testimony when
they believe they can do their own comparison, regardless of how it comports with wellestablished legal standards.59
Many troubling questions arise from this
trend. Why do judges believe they can perform the extrinsic analysis of literary works
better than plaintiffs’ experts?60 An extrinsic
analysis is no easy feat. A judge who dismisses an expert witness, believing the subject matter within his or her grasp, effectively acts as a self-appointed expert. This is
a disservice to the creators of literary works.
It implies that writing a screenplay is a less
complex and involved undertaking than writing a song or a software program. Moreover,
the judge essentially deprives plaintiffs of
their constitutional right to a jury trial.
Nevertheless, this is the current state of copyright law for literary works, with no signs of
rebalancing anytime soon.
In copyright infringement cases, judges
are supposed to play the role of gatekeeper to
the jury. Their task in analyzing substantial
similarity is supposed to be extrinsic—that is,
objective.61 If a plaintiff can show objective
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similarity, a jury is brought in to determine
whether the total concept and feel—the
intrinsic test—of the plaintiff’s and defendant’s works are substantially similar. In
practice, however, the extrinsic test has been
devoured by an intrinsic test performed by
the judge. Simply put, with judges able to
substitute their opinions for those of experts
and juries on issues of material fact, all other
witnesses to the case become effectively
redundant.
Case law has provided defendants with an
impenetrable shield of confusing and often
contradictory principles that thwart plaintiffs in nearly every instance, with only tiny
cracks in that shield providing a mere glimpse
of hope. Unless the Ninth Circuit seriously
reexamines where courts have taken the law
of copyright infringement, the cards will
remain completely stacked in favor of the
studios and networks.
■
1 One
case arguably did not result in a clear-cut victory
for the defendant studio. See Miller v. Miramax Film
Corp., 2001 U.S. Dist. LEXIS 25967, at *28 (2001).
However, the case achieved no final judgment on the
merits. The court denied summary judgment to the
defendant on the plaintiff’s copyright infringement
claim (much like two other cases discussed infra) before
the case disappeared from the docket entirely.
2 See Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal.
1992) (upon remand, judgment as a matter of law in
favor of defendant studio); Metcalf v. Bochco, 294 F.
3d 1069 (9th Cir. 2002) (jury verdict in favor of defendant studio, aff’d Metcalf v. Bochco, 200 Fed. Appx.
635 (9th Cir. 2006)).
3 See 4 M ELVILLE B. N IMMER & D AVID N IMMER ,
NIMMER ON COPYRIGHT §13.02[A] (2007).
4 Sid & Marty Krofft Television Prods., Inc. v.
McDonald’s Corp., 562 F. 2d 1157, 1162 (9th Cir.
1977); Berkic v. Crichton, 761 F. 2d 1289, 1291 (9th
Cir. 1985); Apple Computer, Inc. v. Microsoft Corp.,
35 F. 3d 1435, 1442 (9th Cir. 1994); Three Boys
Music Corp. v. Bolton, 212 F. 3d 477, 481 (9th Cir.
2000).
5 Id.
6 Id.
7 Three Boys Music, 212 F. 3d at 482.
8 Morrissey v. Procter & Gamble Co., 379 F. 2d 675,
677 (1st Cir. 1967).
9 Bevan v. Columbia Broad. Sys., 329 F. Supp. 601, 609
(D.C. N.Y. 1971).
10 Id. at 610.
11 See Jorgensen v. Epic/Sony Records, 351 F. 3d 46 (2d
Cir. 2003); Meta-Film Assocs., Inc. v. MCA, Inc., 586
F. Supp. 1346 (C.D. Cal. 1984).
12 Meta-Film, 586 F. Supp. at 1355-56.
13 See Mestre v. Vivendi Universal U.S. Holding Co.,
2005 WL 1959295 (D. Or. 2005), aff’d, 273 Fed.
Appx. 631 (9th Cir. 2008); Merrill v. Paramount
Pictures Corp., 2005 WL 3955653 (C.D. Cal. 2005).
14 Meta-Film, 586 F. Supp. at 1358.
15 Id. at 1359 (analyzing and distinguishing Kamar
Int’l, Inc. v. Russ Berrie & Co., 657 F. 2d 1059 (9th
Cir. 1981)).
16 See Merrill, 2005 WL 3955653, at *8 (citing only
Meta-Film’s three categories as a requirement for
access); Mestre, 2005 WL 1959295, at *5 (applying the
three categories as limiting but adding the requirement that “at a minimum, the dealings between the
plaintiff and the intermediary and between the intermediary and the alleged copier must involve some
overlap in subject matter”); Weygand v. CBS Inc., 43
U.S.P.Q. 2d 1120, 1123 (C.D. Cal. 1997) (ignoring the
three categories altogether, and instead citing general
Meta-Film language as a catch-all provision: “courts
have found access when…an individual in a position
to provide suggestions or comments with respect to the
defendant’s work…had the opportunity to view the
plaintiff’s work”).
17 The Ninth Circuit has cited Meta-Film but never for
this proposition. See Cleary v. News Corp., 30 F. 3d
1255, 1263 (9th Cir. 1994); E. W. French & Sons v.
General Portland, 885 F. 2d 1392, 1401 (9th Cir.
1989); Lloyd v. Schlag, 884 F. 2d 409, 414 (9th Cir.
1989); Little Oil Co. v. Atlantic Ritchfield Co., 852 F.
2d 441, 445 (9th Cir. 1988).
18 Jorgensen v. Epic/Sony Records, 351 F. 3d 46 (2d Cir.
2003).
19 Nick Gladden, When California Dreamin’ Becomes
a Hollywood Nightmare; Copyright Infringement and
the Motion Picture Screenplay: Toward an Improved
Framework, 10 J. INTELL. PROP. L. 359, 359-84 (2003).
20 One unreported case may offer some hope for creators. See Miller v. Miramax Film Corp., 2001 U.S.
Dist. LEXIS 25967, at *28 (2001) (holding that evidence of a screenplay submitted to Universal Pictures,
along with evidence that agents were common to the
writers of both works, was sufficient to preclude summary judgment on access).
21 See Benay v. Warner Bros. Entm’t, Inc., 607 F. 3d
620 (9th Cir. Cal. 2010); Funky Films, Inc. v. Time
Warner Entm’t Co., L.P., 462 F. 3d 1072 (9th Cir.
2006); Mestre, 2005 WL 1959295, at *5; Zella v. E.
W. Scripps Co., 529 F. Supp. 2d 1124 (C.D. Cal.
2007).
22 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER
ON COPYRIGHT §13.03[D] (2007).
23 Kouf v. Walt Disney Pictures & Television, 16 F. 3d
1042, 1045 (9th Cir. 1994) (citation and internal quotation marks omitted).
24 Metcalf v. Bochco, 294 F. 3d 1069, 1074 (9th Cir.
2002), aff’d Metcalf v. Bochco, 200 Fed. Appx. 635
(9th Cir. 2006) (“The particular sequence in which an
author strings a significant number of unprotectable elements can itself be a protectable element.”).
25 See Shaw v. Lindheim, 919 F. 2d 1353, 1362 (1990)
(quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81
F. 2d 49, 56 (2d Cir. 1936)); Aliotti v. R. Dakin & Co.,
831 F. 2d 898, 901 (9th Cir. 1987) (“Dissection of dissimilarities is inappropriate because it distracts a reasonable observer from a comparison of the total concept and feel of the works.”); 4 MELVILLE B. NIMMER
& DAVID NIMMER, NIMMER ON COPYRIGHT §
13.03[B][l][a] (2007).
26 See Weitzenkorn v. Lesser, 256 P. 2d 947 (Cal.
1953) (en banc); Morse v. Fields, 127 F. Supp. 63
(S.D. N.Y. 1954); Roth Greeting Cards v. United Card
Co., 429 F. 2d 1106 (9th Cir. 1970); United States v.
Hamilton, 583 F. 2d 448 (9th Cir. 1978); Feist Publ’ns,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991);
Shaw, 809 F. Supp. 1393; Three Boys Music Corp. v.
Bolton, 212 F. 3d 477, 481 (9th Cir. 2000); Fleener v.
Trinity Broad. Network, 203 F. Supp. 2d 1142 (C.D.
Cal. 2001); Metcalf, 294 F. 3d 1069; Satava v. Lowry,
323 F. 3d 805 (9th Cir. 2003); Swirsky v. Carey, 376
F. 3d 841 (9th Cir. 2004).
27 Baxter v. MCA, 812 F. 2d 421, 425 (9th Cir. 1987);
4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON
COPYRIGHT §13.03[B][1][a] (2007).
ON COPYRIGHT §2.11 (2007).
29 Feist Publ’ns, 499 U.S. 340.
30 Metcalf, 294 F. 3d at 1074.
31 Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal.
1992).
32 Metcalf, 294 F. 3d at 1074.
33 Id. at 1073.
34 Id.
at 1074.
Fleener v. Trinity Broad. Network, 203 F. Supp.
2d 1142, 1150 (C.D. Cal. 2001) (“[C]opyright also protects the expressive act of arranging completely unprotected works. See Apple Computer, Inc. v. Microsoft
Corp., 35 F. 3d 1435, 1445 (9th Cir. 1994).”).
36 Rice v. Fox Broad. Co., 330 F. 3d 1170, 1174-75
(2003) (“In analyzing the scope of copyright protection
afforded to The Mystery Magician, we note at the
outset that ideas generally do not receive protection,
only the expression of such ideas do.”); Metcalf, 294
F. 3d at 1074 (“It is true that this dichotomy between
an idea and its expression is less clear when the idea
and expression are “merged” or practically indistinguishable. However, we have held that ‘similarities
derived from the use of common ideas cannot be protected; otherwise, the first to come up with an idea will
corner the market.’ Apple, 35 F. 3d at 1443.”).
37 Rice, 330 F. 3d at 1179. See Mestre v. Vivendi
Universal U.S. Holding Co., 273 Fed. Appx. 631, 632
(9th Cir. 2008) (“Moreover, even if ‘[t]he particular
sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element’ in certain contexts, Mestre has not
demonstrated sufficient similarities in sequence to
qualify for such protection.”) (citations omitted)).
38 While the plaintiff’s case in Metcalf was “strengthened considerably” by the defendant’s concession of
access, the Metcalf court never actually invoked the
inverse ratio rule, nor did it hold that finding substantial similarity through selection and arrangement
was contingent on access being admitted.
39 Funky Films, Inc. v. Time Warner Entm’t Co., L.P.,
462 F. 3d 1072, 1077 (9th Cir. 2006) (citations omitted) (emphasis in original).
40 Id. at 1078.
ON COPYRIGHT §13.03[B][1][a] (2007).
42 Shaw v. Lindheim, 919 F. 2d 1353, 1362 (1990)
(quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81
F. 2d 49, 56 (2d Cir. 1936)).
43 A “derivative work,” as defined by 17 U.S.C. §101,
is “a work based upon one or more pre-existing
works…including any form in which a work may be
recast, transformed, or adapted.” 17 U.S.C. §106 provides that, subject to other sections of the Copright Act,
a copyright owner “has the exclusive rights to do and
to authorize…derivative works based upon the copyrighted work.”
44 Benay v. Warner Bros. Entm’t, Inc., 607 F. 3d 620
(9th Cir. 2010).
45 Id. at 622.
46 Id. at 622-23.
47 Benay v. Warner Bros. Entm’t, 2008 U.S. 9th Cir.
Briefs 55719 (9th Cir. June 9, 2009) (“Defendants
copied plaintiffs’ work right down to the historical inaccuracy of cannons being new when in fact cannons date
back to the fourteenth century.”).
48 Benay, 607 F. 3d at 629.
49 Id. at 625(“We agree with the district court that
‘[w]hile on cursory review, these similarities may
appear substantial, a closer examination of the protectable elements including plot, themes, dialogue,
mood, setting, pace, characters, and sequence of events,
exposes many more differences than similarities between
Plaintiffs’ Screenplay and Defendants’ film.’”).
50 Id. at 629, 633.
51 See Rokos v. Peck, 182 Cal. App. 3d 604, 617-18
(1986) (holding that an implied-in-fact contract between
the plaintiff and the writer was effective only between
them).
52 While copyright law allows for recovery of actual
damages and profits resulting from the infringement,
a breach of contract allows recovery of damages only
for the amount the plaintiff would have received under the contract. See 17 U.S.C.A. §504; RESTATEMENT
35 See
(SECOND) OF CONTRACTS §345; Benay, 607 F. 3d
620.
53 In Montz v. Pilgrim Films & TV, Inc., decided less
than a week before Benay, the court affirmed the
defendants’ motion to dismiss on the grounds that the
plaintiff’s implied-in-fact contract claim was “merely
derivative” of the plaintiff’s rights under 17 U.S.C. §106
and was thus preempted by federal copyright law.
Montz v. Pilgrim Films & TV, Inc., 606 F. 3d 1153,
1159 (9th Cir. 2010). Montz thus stands as another
major blow for creators, who saw a chance to protect
their works through implied contract claims based on
earlier Ninth Circuit cases. See Grosso v. Miramax Film
Corp., 2004 U.S. App. LEXIS 28043 (holding that
the implied promise to pay constituted an extra element
for preemption purposes that transformed the action
from one arising under the ambit of federal copyright
law to one sounding in contract).
54 See Funky Films, Inc. v. Time Warner Entm’t Co.,
L.P., 462 F. 3d 1072, 1076 (9th Cir. 2006); Berkic v.
Crichton, 761 F. 2d 1289, 1292 (9th Cir. 1985);
Litchfield v. Spielberg, 736 F. 2d 1352, 1355 (9th Cir.
1984); Shaw v Lindheim, 809 F. Supp. 1393, 1355
(C.D. Cal. 1992).
55 In re Apple Computer Sec. Litig., 886 F. 2d 1109,
1116 (9th Cir. 1989) (citing Bieghler v. Kleppe, 633 F.
2d 531, 534 (9th Cir. 1980) (“As a general rule, summary judgment is inappropriate where an expert’s testimony supports the nonmoving party’s case.”).
56 Wyler Summit P’ship v. Turner Broad. Sys., Inc.
235 F. 3d 1184, 1192 (9th Cir. 2000) (“Weighing the
credibility of conflicting expert witness testimony is the
province of the jury.”).
57 See Rice v. Fox Broad. Co., 330 F. 3d 1170 (2003)
(holding that district court did not abuse its discretion
in disregarding the testimony of plaintiff’s expert);
Bethea v. Burnett, 2005 WL 1720631, at *12 (C.D. Cal.
2005) (ignoring plaintiff’s expert’s testimony, finding
it unhelpful to the court’s own analytic dissection);
Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal. 1992)
(disregarding plaintiff’s expert’s testimony in overturning jury verdict in favor of plaintiff); Funky Films,
462 F. 3d at 1076 (“[T]he district court conducted an
independent analysis of [the works].”); Gable v. NBC,
2010 U.S. Dist. LEXIS 77772, at *59 (C.D. Cal. 2010)
(“Expert testimony is far less critical in a case like this
than it is in a case where specialized knowledge is
required to dissect the objective components of the
copyrighted work.”).
58 Fleener v Trinity Broad. Network, 203 F. Supp. 2d
1142, 1147 (C.D. Cal. 2001) (denying defendants’
requests for reconsideration and summary adjudication
based on substantial similarities between the two
works).
59 But see Swirsky v. Carey, 376 F. 3d 841, 846 (9th
Cir. 2004) (The district court’s dismissal of expert testimony and use of its own substantial similarity analysis to discount similarities between the two works as
scenes a faire was erroneous.) (quoting Brown Bag
Software v. Symantec Corp., 960 F. 2d 1465, 1472 (9th
Cir. 1992)).
60 See Brown Bag Software, 960 F. 2d at 1473-74
(relying on expert testimony in order to identify the
objective points of comparison among different computer software programs); Swirsky, 376 F. 3d at 84748 (relying on expert testimony comparing the objective elements—pitch, melodies, baselines, tempo,
chords, structure, and harmonic rhythm—of musical
works).
61 In re Apple Sec. Litig., 886 F. 2d 1109, 1442 (9th Cir.
1989) (citing Brown Bag Software, 960 F. 2d at 1475;
Shaw v. Lindheim, 919 F. 2d 1353, 1357 (9th Cir.
1990)) (“[T]he extrinsic test now objectively considers
whether there are substantial similarities in both ideas
and expression, whereas the intrinsic test continues to
measure expression subjectively.”).
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Expert Witnesses
ACCIDENT ANALYSIS/RECONSTRUCTION
ACCIDENT RECONSTRUCTION SPECIALISTS
(Field Test Engineering Inc,) 340 Golden Shore, Suite 400,
Long Beach, CA 90802, (800) 675-7667, fax (562) 4322322. Also: 11440 Bernardo Court, Suite 300, San Diego,
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92604; 7362 Remcon Circle, El Paso, TX 79912. Web site:
www.FieldAndTestEngineering.com. Contact Robert F.
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NCUTCD, I.T.F., ASTM, Transp. Research Board, ASCE,
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factors, failure analysis, traffic, and transportation engineering. Auto/truck/train/ped/bike/cycle accidents. See display
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CALIFORNIA TECHNOLOGY ASSOCIATES
17410 Mayerling Street, Granada Hills, CA 91344, (800)
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Dr. Ojalvo, chairman. Over 1700 cases. Our staff of PhDs
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Licensed general contractor, real estate broker, and certified
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Consulting and expert testimony on premises liability, product defects, and traffic accidents. Construction and industrial accidents. Building and OSHA code compliance. Slip,
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ADVISORS/EXPERTS @ MCS ASSOCIATES
18881 Von Karman, Suite 1175, Irvine, CA 92612,
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Contact Norman Katz, managing partner. Nationally
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estate, financial institutions, and general business litigation.
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MR. TRUCK ACCIDENT INVESTIGATION AND
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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 54.
CAPSTONE ADVISORY GROUP, LLC
CORNERSTONE RESEARCH
WILLIAM KUNZMAN, PE
1111 Town and Country #34, Orange, CA 92868, (714)
973-8383, fax (714) 973-8821, e-mail: mail@traffic-enginee
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William Kunzman, PE. Traffic expert witness since 1979,
both defense and plaintiff. Auto, pedestrian, bicycle, and
motorcycle accidents. Largest verdict: $10,300,000 in
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accident case against Caltrans. Before becoming expert witness, employed by Los Angeles County Road Department,
Riverside County Road Department, City of Irvine, and Federal Highway Administration. Knowledge of governmental
agency procedures, design, geometrics, signs, traffic controls, maintenance, and pedestrian protection barriers. Hundreds of cases. Undergraduate work—UCLA; graduate
work—Yale University.
tices, policies, in all types of lending (real estate, subprime,
business/commercial, construction, consumer/credit card),
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economic analysis and valuations/damages assessment,
insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance.
800-659-8464
www.tasamed.com
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888 South Figueroa Street, Suite 2000, Los Angeles, CA
90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte
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David Nolte. Our professionals are experienced CPAs,
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expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals,
fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic and
market assessments, computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses:
CPAs, CFAs, ASAs, PhDs, and MBAs in accounting,
finance, economics, and related subjects. See display ad
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GLENN M. GELMAN & ASSOCIATES
CERTIFIED PUBLIC ACCOUNTANTS AND
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1940 East 17th Street, Santa Ana, CA 92705, (714) 6672600, fax (714) 667-2636, e-mail: [email protected].
Web site: www.gmgcpa.com. Contact Richard M. Squar.
Winner of Inside Public Accounting’s 2008 “Best of the
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Glenn M. Gelman and Associates provides these litigation
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accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation. Our areas of
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ForensisGroup Expert Witness Services
GURSEY/SCHNEIDER LLP
1888 Century Park East, Suite 900, Los Angeles, CA 90067,
(310) 552-0960, fax (310) 557-3468, e-mail: rpurzycki
@gursey.com. Web site: www.gursey.com. Contact
Roseanna Purzycki. Forensic accounting and litigation
support services in the areas of marital dissolution, civil litigation, business valuation and appraisal, goodwill, business
disputes, malpractice, tax matters, bankruptcy, damage and
cost-profit assessments, insurance claims, court accounting, tracing, and entertainment industry litigation. See display ad on page 51.
HARGRAVE & HARGRAVE, AN ACCOUNTANCY
CORPORATION
520 Broadway, Suite 680, Santa Monica, CA 90401, (310)
576-1090, fax (310) 576-1080, e-mail: [email protected].
Web site: www.taxwizard.com. Contact Terry M.
Hargrave, CPA/ABV/CFF, CFE. Litigation services for
family law and civil cases. Past chair of California Society of
CPAs’ Family Law Section, business valuation instructor for
California CPA Education Foundation. Services include
business valuations, income available for support, tracing
separate property, litigation consulting, real estate litigation,
mediation, fraud investigations, damage calculation, and
other forensic accounting work.
KRYCLER, ERVIN, TAUBMAN, AND WALHEIM
15303 Ventura Boulevard, Suite 1040, Sherman Oaks, CA
91403, (818) 995-1040, fax (818) 995-4124. Web site:
[email protected]. Contact Michael J. Krycler. Litigation support, including forensic accounting, business
appraisals, family law accounting, business and professional
valuations, damages, fraud investigations, and lost earnings.
Krycler, Ervin, Taubman and Walheim is a full-service
accounting firm serving the legal community for more than
20 years. See display ad on page 46.
DIANA G. LESGART, CPA, CFE, CVA, CFF, AN
ACCOUNTANCY CORP.
22024 Lassen Street, Suite 106, Chatsworth, CA 91311,
(818) 886-7140, fax (818) 886-7146, e-mail: Lesgart3@msn
.com. Contact Diana G. Lesgart, CPA, CFE, CVA, CFF.
Specialized accounting and litigation support services in the
areas of family law litigation, including tracing of separate
and community property assets, pension plan tracing, forensic accounting, business valuations, goodwill calculation,
expert testimony, cash available for support, Moore-Marsden calculations, fraud investigations, real estate analysis,
community property balance sheet. Over 25 years of
accounting experience with 20 years litigation support specialization. Appointed as Section 730 accounting expert.
Ms. Lesgart’s profile can be found at
http://www.jurispro.com/DianaLesgartCPA. Expert is English/Spanish bilingual. See display ad on page 49.
Securities & Business Law
SEC Enforcement Defense
International Business & Securities
Class & Derivative Actions
Insider Trading
NYSE, AMEX, FINRA Disciplinary Proceedings
Broker-Dealer, Investment Company & Investment Adviser Matters
Liability Under Federal & State Securities Laws
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Law Firm Liability
AV Rated, Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School.
37 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission,
Washington D.C. Published Author of Securities Regulations, including eight volume treatise.
Wells Fargo Center • 333 S. Grand Avenue, Suite 1925 • Los Angeles, CA 90071
MAYER HOFFMAN MCCANN PC
10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA
90025, (310) 268-2000, fax (310) 268-2001, e-mail:
[email protected]. Web site: www.MHM-PC.com,
www.CBIZ.com. Contact Steve Franklin. Specializes in
business litigation; business valuation and appraisal, marital
dissolutions, transactional due diligence, financial reconstruction, fraud investigation, family limited partnerships,
commercial damage and lost profits computations and business interruption. Experienced expert testimony and tax
controversy representation.
MICHAEL D. ROSEN, CPA, PHD., ABV
3780 Kilroy Airport Way, Suite 200, Long Beach, CA 90806,
(562) 256-7052, fax (562) 256-7001, e-mail mrosencpa
@verizon.net Contact Michael D. Rosen. We are litigation
consultants, forensic accountants, expert witnesses. Our
mission is to tell the financial story that underlies every business litigation matter, and to convey that story in a clear and
concise manner to the trier of fact. Our findings allow a realistic assessment of the case and support settlement efforts.
Our work is designed to render conclusive opinions and to
withstand cross-examination. We specialize in Business
Damages—lost profits and loss in value; Personal Damages—lost earnings; and Business Valuation.
SCHULZE HAYNES LOEVENGUTH AND CO.
660 South Figueroa Street, Suite 1280, Los Angeles,
CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail:
[email protected]. Web site: www
.schulzehaynes.com. Contact Karl J. Schulze, principal.
Specialties: forensic business analysis and accounting, lost
profits, economic damages, expert testimony, discovery
assistance, business valuations, construction claims, corporate recovery, financial analysis and modeling, major professional organizations, and have experience across a broad
spectrum of industries and business issues.
Degrees/licenses: CPA; CVA; CFE; ABV; PhD-economics.
STEINWALD & KAUFMAN, CERTIFIED PUBLIC
ACCOUNTANTS
Wilshire Bundy Plaza, 12121 Wilshire Boulevard, Suite 501,
Los Angeles, CA 90025, (310) 207-9980, fax (310) 2075179. Contact Eric R. Steinwald, CPA. Forensic
accounting specialists with more than 25 years of experience. The firm’s emphasis is on expert testimony, litigation
support, forensic accounting, insurance defense, family law,
insurance loss recover, business valuation, loss of income,
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THOMAS NECHES & COMPANY LLP
investigation, investigative analysis of liability, marital dissolution, and tax planning and preparation. Excellent communicators with extensive testimony experience. Prior Big Four
accountants. Specialties include accounting, breach of
contract, business interruption, business dissolution, construction defects, delays, and cost overruns, fraud, insurance bad faith, intellectual property including trademark,
patent, and copyright infringement, and trade secrets, malpractice, marital dissolution, personal injury, product liability,
real estate, tax planning and preparation, IRS audit defense,
tracing, unfair advertising, unfair competition, valuation of
businesses, and wrongful termination. See display ad on
page 45.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAS
11900 West Olympic Boulevard, Suite 650, Los Angeles,
CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web
site: www.zsscpa.com. Contact Lester J. Schwartz,
CPA/CFF, DABFE, DABFA, Michael D. Saltsman, CPA,
MBA, David L. Bass, CPA, David Dichner, CPA, ABV,
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accounting, tax issues, business valuations, and appraisals,
marital dissolutions, eminent domain, insurance losses, business interruption, goodwill, economic analysis, investigative
auditing, loss of earning, commercial damages, and lost
profits. Expert witness testimony preparation, settlement
negotiations, and consultations. See display ad on
page 59.
ADA/DISABILITY DISCRIMINATION
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272, (310)
454-2988, fax (310) 454-4516. Contact Marcia Haight,
SPHR—CA. Human resources expert knowledgeable in
both federal and California law. Twenty-five years’ corporate
human resources management experience plus over 20
years as a Human Resources Compliance Consultant in
California. Specializations include sexual harassment,
ADA/disability discrimination, other Title VII and FEHA discrimination and harassment, retaliation, FMLA/CFRA, safety,
and wrongful termination. Courtroom testimony and deposition experience. Retained 60 percent by defense, 40 percent by plaintiff. Audit employer’s actions in preventing and
resolving discrimination, harassment, and retaliation issues.
Assess human resources policies and practices for soundness, for comparison to prevailing practices, and for compliance. Evaluate employer responsiveness to complaints and
effectiveness of employer investigations. Assist counsel via
preliminary case analysis, discovery strategy, examination of
documents, and expert testimony.
609 South Grand Avenue, Suite 1106, Los Angeles, CA
90017-3848, (213) 624-8150, fax (213) 624-8152, e-mail:
[email protected]. Web site: www.thomasneches
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CFE, CFF. Accounting, financial, business valuation, and
statistical analyses to assist attorneys in litigation. Expert testimony in state and federal courts. Cases: Antitrust, breach
of contract, fraud, intellectual property, lost business value,
lost profits, wrongful death, and wrongful termination. Industries: banking, construction, entertainment, insurance, manufacturing, retail, securities, and wholesale. Credentials: certified public accountant/accredited in business valuation,
certified valuation analyst, certified fraud examiner and certified in financial forensics. Education: BA (Mathematics) UC
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HRM CONSULTING, INC.
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
SHLOMO ELSPAS MD
91423, (818) 981-4226, fax (818) 981-4278; 363 San
Miguel Drive, Suite 130, Newport Beach, CA 92660, (949)
Contact Barbara Luna or Bill Wolf. Expert witness testimony for complex litigation involving damage analyses of
lost profits, unjust enrichment, reasonable royalties, lost
earnings, lost value of business, forensic accounting, fraud
P.O. Box 1786, Murphys, CA 95247, (209) 728-8905, fax
(209) 728-8970, e-mail: [email protected]. Web
site: www.hrmconsulting.com. Contact Beth Brascugli
De Lima, MBA, SPHR-CA. Ms. De Lima’s experience
includes working on employment and vocational rehabilitation matters from both the employee and employer perspective. Her expertise is utilized in ADA/FMLA, FMLA/CFRA,
wrongful termination, and sexual harassment cases. We
provide litigation support, expert testimony, and investigations, and specialize in helping companies implement strategies to comply with the complicated realm of personnel
management regulations. Ms. De Lima is nationally certified
as a SPHR-CA with a state specific certificate and sat on the
International Employment Health, Safety and Security Panel.
ANESTHESIOLOGY/PAIN MANAGEMENT
1200 North State Street, Suite 14901, Los Angeles, CA
90033, (323) 409-4597, e-mail: [email protected]. Contact
Shlomo Elspas, MD. Education: MIT, Harvard, UCLA.
Specialties: clinical assistant professor of Anesthesiology at
USC-Keck School of Medicine. Board certified in anesthesiology, with fellowships in pediatric and obstetric anesthesiology and pain management. Regional, nerve block, hypotensive, transfusion-free, and safety in anesthesia. Consultation
and expert witness for plaintiff and defense.
APPRAISAL & VALUATION
BTI APPRAISAL
605 West Olympic Boulevard, Suite 820, Los Angeles, CA
90015, (213) 532-3800, fax (213) 532-3807, e-mail: ben
@btiappraisal.com. Web site: www.btiappraisal.com. Contact Ben F. Tunnell III, Chairman. BTI Appraisal has been
providing litigation and appraisal services, both nationally
and internationally, since 1974 in the areas of real estate,
machinery and equipment, and business valuation. Wellwritten and documented reports reduce litigation costs and
speed dispute resolution. Our work has passed the most
rigorous scrutiny of the IRS, the SEC, government condemning agencies, and the state and federal courts. The
collective experience of our nationally regarded professionals
can address projects of all sizes and locations.
FULCRUM INQUIRY
90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte
inside back cover.
CORPORATION
Web site: www.taxwizard.com. Contact Terry M. Hargrave, CPA/ABV/CFF, CFE. Litigation services for family
law and civil cases. Past chair of California Society of CPAs’
Family Law Section, business valuation instructor for California CPA Education Foundation. Services include business
valuations, income available for support, tracing separate
property, litigation consulting, real estate litigation, mediation, fraud investigations, damage calculation, and other
forensic accounting work.
HIGGINS, MARCUS AND LOVETT, INC.
90017, e-mail: [email protected]. Web site: www.hmlinc
.com. Contact Mark C. Higgins, ASA, president. The
firm has 30 years of litigation support and expert testimony
experience in matters involving business valuation, economic damages, intellectual property, loss of business
goodwill, and lost profits. Areas of practice include business
disputes, eminent domain, bankruptcy, and corporate and
marital dissolution. See display ad on page 53.
91403, (818) 995-1040, fax (818) 995-4124. Web site:
WARONZOF ASSOCIATES, INC.
2250 East Imperial Highway, Suite 120, El Segundo, CA
90245, (310) 322-7744, fax (310) 322-7755. Web site:
www.waronzof.com. Contact Timothy R. Lowe, MAI,
CRE. Waronzof provides real estate and land use litigation
support services including economic damages, lost profits,
financial feasibility, lease dispute, property value, enterprise
value, partnership interest and closely-held share value, fair
Expert witnesses and litigation consultants for complex litigation
involving analyses of lost profits, lost earnings and lost value of
business, forensic accounting and fraud investigation
Other areas include marital dissolution, accounting and tax
Excellent communicators with extensive testimony experience
Offices in Los Angeles and Orange County
Call us today. With our litigation consulting, extensive experience and
expert testimony, you can focus your efforts where they are needed most.
818-981-4226 or 949-219-9816
www.wzwlw.com
[email protected]
compensation, lender liability and reorganization plan feasibility. Professional staff of five with advanced degrees and
training in real estate, finance, urban planning and accounting. See display ad on page 67.
determination of pilot error, failure analysis, design defect, etc.
Qualifications BS and MS in engineering, engineering test pilot,
airline pilot, aircraft owner, instructor pilot, CF-II and ME-I.
ASSET INVESTIGATIONS
44 Argos, Laguna Niguel, CA 92677, (949) 363-8205, fax
(949) 429-5972, e-mail: [email protected]. Web site:
www.argos-engineering.com. Contact John D. Pratt,
PhD, PE. Litigation consulting, inspections, expert reports,
patent infringement and validity analysis, deposition, and trial
testimony.
BENCHMARK INVESTIGATIONS
✒ Litigation support
✒ Expert witness
✒ Forensic accountants
✒ Family law matters
✒ Business valuations
✒ Loss of earnings
✒ Damages
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 on accuracy, detail, and expedience. Asset/financial searches; background investigation; DMV searches;
domestic/marital cases; due diligence investigations; mergers/acquisitions specialist; process service;
surveillance/photograph; witness location/interviews; workplace investigations—theft, harassment, and drugs. Bilingual
agents. Fully insured. Correspondents nationwide. CA Private Investigator license # PI 12651. See display ad on
page 56.
ATTORNEY FEES
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
LAW OFFICES OF PHILLIP FELDMAN
14401 Sylvan Street, Suite 208, Van Nuys, CA 91401, (818)
986-9890, fax (818) 986-1757, e-mail: LegMalpExpert@aol
.com; [email protected]; PreventativeLaw@aol
.com. Web sites: www.LegalMalpracticeExperts.com;
www.LegalEthicsExperts.com. Contact Phillip Feldman.
B.S. Accounting, former accountant CPA firm and industry.
M.B.A.—USC. Fee dispute arbitrator 31 years. Judge Pro
Tem—25 years. Fee dispute litigator and expert witness—
42 years. Certified Specialist Legal Malpractice ABPLA/ABA.
Consulting and testifying regarding attorney fees—30 years.
Litigating fee disputes—42 years.
AUDIO/VIDEO FORENSIC
AUDIO ENGINEERING ASSOCIATES
1029 North Allen Avenue, Pasadena, CA 91104, (626) 7989128, fax (626) 798-2378, e-mail: [email protected]. Web
site: www.AEAForensics.com. Contact Wes Dooley.
Enhancement and authentication fixed price intelligibility
evaluations. Audio and video evidence analysis.
KGR VIDEO IMAGE AND AUDIO EVALUATION
LA PANEL OF EXPERT WITNESSES
4578 Delancy Drive, Yorba Linda, CA 92886, (714) 9260606, fax (714) 996-1033, e-mail: [email protected]
or [email protected]. Web site: www.kgrproductions
.com. Contact Ron Guzek. Since 1995, I have worked
extracting usable information from poor quality video/audio
and provide clear presentations of these findings. My history
includes expert testimony, defense, prosecution, and investigative work with various L.A. Alternate Pub. Def., LAPD,
FBI, OCFD, Tiffany and Co., B of A, and others. Measurements, ratios, characteristics, photogammetry evaluation
and enhancement are used to establish similarities and differences in image details. Very specific attention is given to
the details of every case. See display ad on page 53.
AUTOMOTIVE
JOHNSON FORD, INC.
1155 Auto Mall Drive, Lancaster, CA 93534, (661) 9493586, ext 200, fax (661) 949-8803, e-mail: flyingmj1@aol
.com. Web site: www.auford.com. Contact Michael Johnson. Auto industries: all sales, DMV, pay plans, Song-Beverly, Magnus Moss, advertising and all other issues regarding the automotive retail business. Thirty-seven years in the
business, 30 years as a dealer.
AVIATION
ARGOS ENGINEERING
BANKING
underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, subprime,
BANKRUPTCY
FULCRUM INQUIRY
90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte
inside back cover.
BANKRUPTCY/TAX
BIOMECHANICS/ RECONSTRUCTION /
HUMAN FACTORS
AEROPACIFIC CONSULTING
3858 Carson Street, Suite 120, Torrance, CA 90503,
(310) 503-4350, fax (815) 550-8766, e-mail: doug.moss
@aeropacific.net. Web site: www.aeropacific.net. Contact
Doug Moss. Aircraft accident investigation, causal analysis,
INSTITUTE OF RISK & SAFETY ANALYSES
KENNETH A. SOLOMON, PHD, PE, POST PHD,
CHIEF SCIENTIST
5324 Canoga Avenue, Woodland Hills, CA 91364, (818)
348-1133, fax (818) 348-4484, e-mail: kennethsolomon
@mac.com. Web site: www.irsa.us. Specialized staff, broad
range of consulting and expert testimony, 38 years of courtroom experience. Accident reconstruction, biomechanics,
human factors, safety, accident prevention, adequacy of
warnings, computer animation and simulations, construction
defect, criminal defense, criminal prosecution, premises,
product integrity, product liability, product testing, warnings,
and lost income calculations. Auto, bicycle, bus, chair, elevator, escalator, forklift, gate, ladder, machinery, motorcycle,
press, recreational equipment, rollercoaster, slip/trip and fall,
stairs, swimming pool, and truck. Litigation and claims;
defense/plaintiff; educational seminars; and mediation and
arbitration services.
BUSINESS
ROBERT C. ROSEN
Wells Fargo Center, 333 South Grand Avenue, Suite 1925,
Los Angeles, CA 90071, (213) 362-1000, fax (213) 3621001, 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. AV rated. Former chair,
LACBA Business and Corporations Law Section; LLM, Harvard Law School. More than 37 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 43.
BUSINESS APPRAISAL/VALUATION
Life Care
Planning
•
JAN ROUGHAN, RN
www.linc.biz
•
•
•
•
LIFE CARE PLANS Comprehensive (Trial) – Mini (Mediation/
Settlement Conference) – Critique
EXPERT TESTIMONY Trial – Arbitration – Mediation/Settlement
VIDEO SERVICE Day in Life – Mediation/Settlement Documentary
MEDICAL RECORDS Review – Chronology
IME Attendance Report/Critique
114 W. COLORADO BLVD., MONROVIA, CA 91016 | 626.303.6333 EXT. 16 OR 17
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
BRIAN LEWIS & COMPANY
10900 Wilshire Boulevard, Suite 610, Los Angeles, CA
90024, (310) 475-5676, fax (310) 475-5268, e-mail: brian
@brianlewis-cpa.com. Contact Brian Lewis, CPA, CVA.
Forensic accounting; business valuations; cash spendable
reports; estate, trust, and income tax services.
COHEN, MISKEI & MOWREY LLP
5700 Canoga Avenue, Suite 300, Woodland Hills, CA
91367, (818) 986-5070, fax (818) 986-5034, e-mail:
[email protected]. Web site: www.cmmcpas.com.
Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations,
economic damages, business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs,
MBAs. See display ad on page 49.
633 West Fifth Street, 31st Floor, Los Angeles, CA 900712005, (213) 553-2500, fax (213) 553-2699, Web site: www
.cornerstone.com. Contact George G. Strong, Jr.,
Carlyn Irwin or Elisabeth Browne. Cornerstone Research
provides attorneys with expert testimony and economic and
financial analyses in all phases of commercial litigation. We
work with faculty and industry experts in a distinctive partnership that combines the strengths of the business and
academic worlds. Our areas of expertise include identifying
and supporting expert witnesses in intellectual property,
antitrust, securities, entertainment, real estate, financial institutions, and general business litigation.
FULCRUM INQUIRY
90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte
inside back cover.
(310) 552-0960, fax (310) 557-3468, e-mail: rwatts@gursey
.com or [email protected]. Web site: www.gursey
.com. Contact Robert Watts or Stephan Wasserman.
Gursey/Schneider is an accounting firm specializing in forensic accounting, litigation support services, business valuation, and appraisal services for a variety of purposes including marital dissolution, gift and estate planning, eminent
domain, goodwill loss, business disputes, malpractice, tax
matters, bankruptcy, damage and cost-profit assessments,
insurance claims, and entertainment industry litigation.
Gursey/Schneider has over 30 years experience as expert
witnesses in litigation support. See display ad on page 51.
HAYNIE & COMPANY, CPAS
4910 Campus Drive, Newport Beach, CA 92660, (949) 7241880, fax (949) 724-1889, e-mail: sgabrielson@hayniecpa
.com. Web site: www.hayniecpa.com. Contact Steven C.
Gabrielson. Consulting and expert witness testimony in a
variety of practice areas: commercial damages, ownership
disputes, economic analysis, business valuation, lost profits
analysis, fraud/forensic investigations, taxation, personal
injury, wrongful termination, professional liability, and expert
cross examination. Extensive public speaking background
assists in courtroom presentations.
[email protected]. Web site: www.schulzehaynes.com. Contact Karl J. Schulze, principal. Specialties: forensic business analysis and accounting, lost profits,
economic damages, expert testimony, discovery assistance,
business valuations, construction claims, corporate recovery, financial analysis and modeling, major professional
organizations, and have experience across a broad spectrum of industries and business issues. Degrees/licenses:
CPA; CVA; CFE; ABV; PhD-economics. See display ad on
page 53.
90017-3848, (213) 624-8150, fax (213) 624-8152, e-mail:
statistical analyses to assist attorneys in litigation. Expert testimony in state and federal courts. Cases: Antitrust, breach
of contract, fraud, intellectual property, lost business value,
lost profits, wrongful death, and wrongful termination. Industries: banking, construction, entertainment, insurance, manufacturing, retail, securities, and wholesale. Credentials: certified public accountant/accredited in business valuation,
page 57.
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278; 363 San
accountants. Specialties include accounting, breach of contract, business interruption, business dissolution, construction defects, delays, and cost overruns, fraud, insurance bad
faith, intellectual property including trademark, patent, and
copyright infringement, and trade secrets, malpractice, marital dissolution, personal injury, product liability, real estate, tax
planning and preparation, IRS audit defense, tracing, unfair
advertising, unfair competition, valuation of businesses, and
wrongful termination. See display ad on page 45.
HIGGINS, MARCUS AND LOVETT, INC.
10474 Santa Monica Boulevard, Suite 200, Los Angeles,
CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail:
90017, (213) 627-8280, fax (213) 627-8301, e-mail:
CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web
auditing, loss of earning, commercial damages, and lost
profits. Expert witness testimony preparation, settlement
negotiations, and consultations. See display ad on
page 59.
CHEMISTRY
CHEMICAL ACCIDENT RECONSTRUCTION
SERVICES, INC.
9121 East Tanque Verde Road, Suite 105, Tucson, AZ
85749, (800) 645-3369, e-mail: [email protected].
Web site: www.chemaxx.com. Contact Dr. Michael Fox.
Comprehensive chemical accident investigation—specializing in complex industrial chemical accidents and chemicalrelated consumer product injuries, chemical fires and explosions, chemical labeling, chemical packaging, handling and
shipping, burns, warnings, labels, MSDSs, disposal, safety,
EPA, OSHA, DOT, propane, natural gas, hydrogen, flammable liquids, hazardous chemicals, aerosols (hairspray, spray
paint, refrigerants), DOT certified (hazardous materials shipment), certified fire and explosion investigator, OSHA
process hazard analysis team leader, PhD Physical Chemistry. Extensive experience in metallurgy, corrosion, and failure analysis.
CIVIL LITIGATION
(310) 552-0960, fax (310) 557-3468. 20355 Hawthorne
Boulevard, First Floor, Torrance, CA 90503, (310) 370-6122,
fax (310) 370-6188, e-mail: [email protected] or [email protected]. Web site: www.gursey.com. Contact
Robert Watts or Stephan Wasserman. Gursey/Schneider specializes in forensic accounting and litigation support
services in the areas of civil litigation, business disputes,
bankruptcy, damage and cost-profit insurance claims, court
accountings, fraud investigations, accounting malpractice,
intellectual property, construction, government accounting
and entertainment litigation. Gursey/Schneider has over 30
years of experience as expert witnesses in accounting
related matters. See display ad on page 51.
COMPUTER EVIDENCE DISCOVERY
ROBERT J. ABEND, PE
1658 Laraine Circle, San Pedro, CA 90732, (310) 346-6543,
e-mail: [email protected] Web site: www.linkline.com/
personal/rabend. Specialties: Electrical engineering, computer forensics, data recovery, electronic discovery, computer engineering, software, electronics, microelectronics,
electronics manufacturing, printed circuit boards, intellectual
property, and trade secret litigation. Technical support during case preparation. Practiced at court and deposition testimony. Thirty-five years of experience in the electronics and
computer industry. Fifteen years as a forensic engineering
consultant. References provided on request.
Degrees/licenses: BSEE, MS, Registered Professional Engineer, Computer Forensics Examiner, FCC General
Radiotelephone license.
COSGROVE COMPUTER SYSTEMS, INC.
7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 8239448, fax (310) 821-4021, e-mail: [email protected].
Web site: www.cosgrovecomputer.com. Contact John
Cosgrove. John Cosgrove, PE, has over 45 years’ experience in computer systems and has been a self-employed,
consulting software engineer since 1970. He was a parttime lecturer in the UCLA School of Engineering and LMU
graduate schools. He provided an invited article, “Software
Engineering and Litigation,” for the Encyclopedia of Software
Engineering. He is a Certified Forensic Consultant (CFC),
holds the CDP, is a member of ACM, ACFEI, FEWA, a life
senior member of IEEE Computer Society, NSPE, a Fellow
of the National Academy of Forensic Engineers (an affiliate of
NSPE), and a professional engineer in California. Formal
education includes a BSEE from Loyola University and a
master of engineering from UCLA.
COMPUTER FORENSICS
ROBERT J. ABEND, PE
e-mail: [email protected] Web site: www.linkline.com
/personal/rabend. Specialties: Electrical engineering, computer forensics, data recovery, electronic discovery, computer engineering, software, electronics, microelectronics,
consultant. References provided on request. Degrees/
licenses: BSEE, MS, Registered Professional Engineer,
Computer Forensics Examiner, FCC General Radiotelephone license.
DATACHASERS, INC.
P.O. Box 2861, Riverside, CA 92516-2861, (877)
DataExam, (877) 328-2392, (951) 780-7892, e-mail:
[email protected]. Web site: www.DataChasers
.com. E-Discovery: Full e-discovery services…you give us
the mountain, we give you the mole hill: Tiff production,
de-duplication, redaction, bates stamped data, and electronically stored information (ESI) production. Computer
forensic: full forensic computer lab. Recovering deleted
text files (documents), graphics (pictures), date codes on
all files, e-mail, and tracing Internet activity. Intellectual
property cases; family law; employment law; probate resolution; asset verification; criminal law (prosecution or
defense); etc. Litigation support, trial preparation, experienced expert witnesses, and professional courtroom displays. See display ad on page 49.
FULCRUM INQUIRY
90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte
inside back cover.
SETEC INVESTIGATIONS
8391 Beverly Boulevard, Suite 167, Los Angeles, CA
90036, (800) 748-5440, fax (323) 939-5481, e-mail: tstefan
@setecinvestigations.com. Web site: www.setecinvestigations.com. Contact Todd Stefan. Setec Investigations
offers unparalleled expertise in computer forensics and
enterprise investigations providing personalized, case-specific forensic analysis and litigation support services for law
firms and corporations. Setec Investigations possesses the
necessary combination of technical expertise, understanding
of the legal system, and specialized tools and processes
enabling the discovery, collection, investigation, and production of electronic information for investigating and handling
computer-related crimes or misuse. Our expertise includes
computer forensics, electronic discovery, litigation support,
and expert witness testimony.
CARPE DATUM TM …… SEIZE THE DATA
COMPUTER FORENSICS
• Recover Critical Data
• E-Mail Recovery
• Dates on All Files
• Websites Visited
E-DISCOVERY
• De-Duplication
• Redaction
• Bates Stamped Data
• Electronic (ESI) Production
951.780.7892 | DataChasers.com
DIANA G. LESGART, CPA, CFE, CVA, CFF
—An Accountancy Corporation—
LITIGATION CONSULTING
Certified
Public
Accountant
Certified
Fraud
Examiner
Certified
Valuation
Analyst
Certified in
Financial
Forensics
TEL 818.886.7140 • FAX 818.886.7146 • E-MAIL [email protected]
22024 LASSEN STREET, SUITE 106, CHATSWORTH, CA 91311
www.jurispro.com/DianaLesgartCPA
COMPUTERS/INFORMATION SCIENCES
ROBERT J. ABEND, PE
/personal/rabend. Specialties: Electrical engineering, computer forensics, data recovery, electronic discovery, computer
engineering, software, electronics, microelectronics, electronics manufacturing, printed circuit boards, intellectual property, and trade secret litigation. Technical support during
case preparation. Practiced at court and deposition testimony. Thirty-five years of experience in the electronics and
consultant. References provided on request. Degrees/
licenses: BSEE, MS, Registered Professional Engineer,
Computer Forensics Examiner, FCC General Radiotelephone license.
COSGROVE COMPUTER SYSTEMS, INC.
7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 8239448, fax (310) 821-4021, e-mail: [email protected].
Web site: www.cosgrovecomputer.com. Contact John
Cosgrove. John Cosgrove, PE, has over 45 years’ experience in computer systems and has been a self-employed,
consulting software engineer since 1970. He was a parttime lecturer in the UCLA School of Engineering and LMU
graduate schools. He provided an invited article, “Software
Engineering and Litigation,” for the Encyclopedia of Software
Engineering. He is a Certified Forensic Consultant (CFC),
holds the CDP, is a member of ACM, ACFEI, FEWA, a life
senior member of IEEE Computer Society, NSPE, a Fellow
of the National Academy of Forensic Engineers (an affiliate of
NSPE), and a professional engineer in California. Formal
education includes a BSEE from Loyola University and a
master of engineering from UCLA.
CONSTRUCTION
ARCADIS
Construction Claims Analysis, ARCADIS, 445 South
Figueroa Street, Suite 3650, Los Angeles, CA 90071, (213)
486-9884, fax (213) 486-9894, e-mail: william.broz
@arcadis-us.com. Web site: www.arcadis-us.com. Contact
William Broz, P.E., LEED AP. ARCADIS’ PMCM division is
an industry leader in the analysis of construction claims and
specializes in the prevention, investigation, evaluation and
resolution of construction disputes. Our firm offers a full
range of services including litigation support, expert testimony, schedule analysis, change order evaluation,
delay/impact analysis, discovery/deposition assistance,
cause-effect-impact analysis, contractor financial audits,
merit analysis, document database development/management, and performance audits.
555 South Flower Street, Suite 3200, Los Angeles,
CA 90071, (213) 542-7121, fax (213) 542-7102, e-mail:
inspections.
COOK CONSTRUCTION COMPANY
7131 Owensmouth Avenue, Canoga Park, CA 91303, (818)
438-4535, fax (818) 595-0028, e-mail: scook16121@aol
.com. Contact Stephen M. Cook. Specialties: Lawsuit
preparation, residential construction, single and multifamily,
hillsides, foundations, concrete floors, retaining walls, stairs,
excavation, waterproofing, water damages, roofing, carpentry/rough framing, tile, stone, materials/costs, and building
codes. Vibration trespass, expert witness, creditable, strong,
concise testimony in mediation, arbitration involving construction defect for insurance companies and attorneys,
consulting services for construction, document preparation,
construction material lists, costs, building codes analysis,
site inspections, and common construction industry standards of practice and its relationship with the California
Building Codes. See display ad on page 55.
DONLEY CONSTRUCTION CONSULTANTS
1099 D Street, San Rafael, CA 94901, (415) 456-9242, fax
www.donleycc.com. John Donley. Litigation support services; technical analysis and consulting, expert witness testimony, claims management in complex litigation, forensic
accounting and architecture. Document management systems. Construction claims expertise: construction defects,
remediation scope and cost, costs and change orders, such
as unforeseen conditions claims, delays and productivity,
labor inefficiency, total cost claims, contract termination
claims, real estate claims, leasehold and disclosure claims,
site injury claims, and construction accidents.
FORENSISGROUP, INC
EXPERT WITNESS SERVICES
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 T. Steenwyk.
ForensisGroup is an expert witness services and consulting
company, providing expert court witnesses, consultants and
litigation support specialists to law firms, private-practice
attorneys, and insurance professionals and other firms since
1991! Our experts have been retained in over 10,000 cases
nationwide. Our highly experienced staff will connect you
with top engineering consultants, medical expert witnesses,
forensic accountants, construction expert witnesses, securities specialists, and others representing hundreds of technical and scientific disciplines. Thousands have gained the
TECHNICAL ADVANTAGE and the COMPETITIVE EDGE in
their cases. Referrals and searches are free. Call us now at
(800) 555-5422 for your free initial telephone consultations
with our experts. See display ad on page 43.
analysis, opinion, testimony, and claim preparation assistance services regarding construction defect, contract dispute, personal injury, warranty, etc. Nolta is an impressive
construction expert, detailed analyst, communicator, and
presenter.
CONSTRUCTION DEFECT
Exclusive LA and Orange County representative for CICPAC
(Construction Industry CPA/Consultants Association) This is
a nationwide network of CPA firms specifically selected for
their experience in and commitment to serving the construction industry. We are one of only six firms in all of California
that are members of this prestigious organization. We provide these litigation support services: expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration
consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation. Our areas of expertise include: business interruption,
loss of earnings analysis, breach of contract, partnership
dissolution, profits distribution, tax consequences of settlements, reconstruction of accounting records, embezzlement
and fraud, contract costs, lost profits, construction claims,
and damage computations cases. Chosen by publishers of
Accounting Today as one of 2008 “Best Accounting Firms
to Work For.” Honored by Construction Link as the “Best
Accounting Firm for the construction industry.” Glenn M.
Gelman has been appointed and served as Special Master
in litigation support matters and has testified over 30 times.
Our comprehensive case list is available upon request. See
display ad on page 63.
KGA, INC.
1409 Glenneyre Street, Suite A, Laguna Beach, CA 92651,
(949) 497-6000, fax (949) 494-4893, e-mail: Kurtg@kgainc
.com. Web site: www.kgainc.com. Contact Kurt Grosz.
Construction and Environmental Consultants since 1991.
Licensed engineers and contractors. ICC building, plumbing,
mechanical, concrete and accessibility inspectors. Certified
professional estimator. California EPA environmental assessors. Trial expert, arbitrator, and insurance appraiser.
MATHENY SEARS LINKERT & JAIME LLP
P.O. Box 13711, Sacramento, CA 95853, 4711, (916)
978-3434, fax (916) 978-3430, e-mail: rberrigan
@mathenysears.com. Web site: www.mathenysears.com.
Contact Robert Berrigan. Specialties: Contractor licensing issues; proper license class to perform work; B & P section 7031 issues. Contractor State License Board (CSLB)
investigations and disciplinary proceedings; obtaining
licenses or documents from CSLB. Also violations of subletting and subcontracting Fair Practice Act. Expert witness at
trial/arbitration. Degrees/licenses: BA; JD; Commercial Pilot;
SEL; MEL.
NOLTA CONSULTING
6115 Syracuse Lane, San Diego, CA 92122, (858) 2329299, e-mail: [email protected]. Contact L.
Fredrick C. (Fred) Nolta. California licensed general engineering, general building, and concrete contractor with 30+
years of continuous experience. Expertise covers all aspects
including contracts, estimates, schedules, submittals/shops,
cost control, quality control, change orders, claims and warrantees. Product type experience in office, retail, residential,
multifamily high-rise, healthcare, Indian gaming, hospitality,
education, parking, tilt-up and high-rise concrete, power
generation, waste treatment, site development, Forensic
URS
915 Wilshire Boulevard, Suite 800, Los Angeles, CA 90017,
(213) 996-2549, fax (213) 996-2521, e-mail: matthew-lankenau
@urscorp.com. 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.
M.A. CALABRESE ASSOCIATES
P.O. Box 50534, Pasadena, CA 91115, (626) 825-5444, fax
www.macalabreseassociates.com. Contact Michael Calabrese. Mr. Calabrese is a hands-on California licensed
general contractor who has been in the construction field for
over 30 years. Over the past 14 years, he has shifted his
focus and expertise onto developing his consulting skills in
construction forensics. Among his specialty areas is tracing
the cause and origin of water intrusion resulting in mold
growth and collateral damage, personal injury resulting from
faulty construction components, job site safety, standards of
care applied, contractor professional diligence, contractor
license laws, earthquake repair and cost analyses, cost estimates for building repairs and remodeling, cost comparisons and analyses, property damage assessment and
indoor air quality surveys and inspections. See display ad
on page 52.
CONSULTING
PLUMBING INSPECTION PIPE EVALUATION
SERVICES (PIPES)
43141 Business Center Parkway, Suite 201, Lancaster, CA
93535, (661) 949-8811, fax (661) 940-7318. Contact
Arnold A. Rodio. Specialties include evaluation of plumbing
systems and installation in housing, apartment, condominium, and commercial. Expert on uniform plumbing codes
and installation standards. Thirty-two years of experience,
8,000+ residential units and assorted commercial projects.
Active plumbing contractor. Call for CV.
CONTRACTORS LICENSING (CSLB)
DAVID KALB
1225 8th Street, Suite 580, Sacramento, CA 95814, (866)
443-0657, fax (916) 443-1908, e-mail: david@cutredtape
.com. Web site: www.CutRedTape.com. Contact David at
Capitol Services Inc. Declarations and expert testimony
regarding B&P code 7031, substantial compliance, classification determination, contractor license requirements for a
construction project, plus CSLB policies, rules and regulations. Based in Sacramento, David has been helping
lawyers, contractors, and the construction industry since
1982. Author, What Every Contractor Should Know:
Answers to Real World Licensing Questions in CA, NV and
AZ. David’s construction industry column, Kalb’s Capitol
Connection, appears regularly in over 30 industry publications.
COPYRIGHT
A PHOTOGRAPHY EXPERT WITNESS
PO Box 6339, Altadena, CA 91003, (626) 808-0000, e-mail:
[email protected]. Web site: www.photographyexpertwitness
.com. Contact Professor Jeff Sedlik. The leading consultant and testifying forensic expert witness on all issues
related to photography: copyright, licensing, contracts, business practices, industry standards, stock photography,
model releases, rights of privacy/publicity, evaluation of lost
or damaged photographs and film, evaluation of photography assets, technical matters, forensic digital analysis, forensic photography, and litigation support.
CORPORATE INVESTIGATIONS
90071, (213) 542-7121, fax (213) 542-7102, e-mail:
inspections.
FULCRUM INQUIRY
90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte
inside back cover.
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278; 363 San
copyright infringement, and trade secrets, malpractice, marital dissolution, personal injury, product liability, real estate,
tax planning and preparation, IRS audit defense, tracing,
unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on
page 45.
DOCUMENT EXAMINER
SANDRA L. HOMEWOOD, FORENSIC
DOCUMENT EXAMINER
1132 San Marino Drive, Suite 216, Lake San Marcos, CA
92078, (760) 931-2529, fax (760) 510-8412, e-mail: [email protected]. Contact Sandra L. Homewood.
Highly skilled and experienced document examiner and
expert witness in many complex and high profile civil and
criminal cases with fully equipped document laboratory.
Specializing in handwriting and handprinting identification,
handwriting of the elderly in financial elder abuse cases and
will contests, and examination of altered medical and corporate records. Trained in government laboratory including
specialized training by the FBI and Secret Service. Former
government experience includes document examiner for the
San Diego Police Department crime lab, Arizona State crime
lab, and San Diego County District Attorney’s office. Currently in private, criminal, and civil practice.
DOGS
JILL KESSLER
341 North Grenola Street, Pacific Palisades, CA 90272,
(310) 573-9615, fax (310) 573-1304, e-mail: jillkessler
@mac.com. Web site: www.jillkessler.com. Opinion, consultation, reports, evaluations in dog bites, aggression, behaviors, training, showing, breed tendencies, and rescued dogs.
Specializing in Rottweilers and pit-bull type dogs. See display ad on page 59.
ECONOMIC ANALYSIS
90025, (310) 268-2000, fax (310) 268-2001, e-mail:
ECONOMIC DAMAGES
18881 Von Karman, Suite 1175, Irvine, CA 92612, (949)
263-8700, fax (949) 263-0770, e-mail: [email protected]. Web site: www.mcsassociates.com. Contact
Norman Katz, managing partner. Nationally recognized
banking, finance, insurance, and real estate consulting
group (established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants,
economists, accountants, insurance underwriters/brokers.
EVALUATION
■ TESTING
■ TREATMENT
■
Neurology and Electromyography
Specialties: lending customs, practices, policies, in all types
of lending (real estate, subprime, business/commercial,
construction, consumer/credit card), banking
operations/administration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes,
and title insurance.
Neurotoxicology
Occupational/Environmental
Medicine
415.381.3133 / FAX 415.381.3131
[email protected]
www.neoma.com
TEL
E-MAIL
San Francisco
Sacramento
Petaluma
90071, (213) 542-7121, fax (213) 542-7102, e-mail:
.com. Contact Michael Spindler. Capstone’s typical litigation and forensic services include expert testimony in
complex commercial litigation, arbitration, mediation, and
other dispute resolution forums, damages claims preparation and assessment, analysis of the relationship between
events and damages, construction damages analysis, project reconstruction, and job history analysis, internal investigations, SEC matters, purchase price disputes, critique of
reports by other experts, business fraud investigations, and
third-party inspections.
Richmond
Eureka
JONATHAN S. RUTCHIK, MD, MPH
20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941
Research provides attorneys with expert testimony and
economic and financial analyses in all phases of commercial
litigation. We work with faculty and industry experts in a distinctive partnership that combines the strengths of the business and academic worlds. Our areas of expertise include
identifying and supporting expert witnesses in intellectual
property, antitrust, securities, entertainment, real estate,
financial institutions, and general business litigation.
CORPORATE SCIENCES, INC.
EXPERT WITNESS IN GENERAL
CONSTRUCTION FORENSICS
M.A. CALABRESE
ASSOCIATES
Contractor’s License No. 496208-B
MULTIPLE TRADE DISCIPLINES
30 YEARS HANDS-ON EXPERIENCE
• Water Intrusion Cause
& Origin
• Mold Growth &
Microbial Infestation
• Indoor Air Quality
Surveys
• Standards of Care
Applied
• Professional Diligence
• Contractor License Laws
• Cost Estimates, Analysis
& Comparisons
• Property Preservation &
Damage Assessment
• Project Value & Safety
Analysis
• Property Maintenance
& Safety Effects
• Mechanics Liens
TEL:
Certified Mold Inspector
Certified Remediation
Contractor
CMI# 79243
CMRC# 79162
Former CSLB:
• Construction Consultant
• Arbitrator & Mediator of
Construction Disputes
• Instructor of Contractor’s
State License Exam
626.825.5444 FAX: 909.267.9670
E-MAIL: [email protected]
P.O. Box 50534, Pasadena, CA 91115
www.macalabreseassociates.com
3215 East Foothill Boulevard, Pasadena, CA 91107, (626)
440-7200, fax: (626) 440-1800, e-mail: jsdantoni@hotmail
.com. Web site: www.corporatesciences.com. Contact Dr.
Joseph S. D’Antoni, Managing Principal. Corporate Sciences, Inc. provides financial analysis and expert testimony
in all types of commercial litigation. Extensive experience in
a broad range of industries for computing economic damages, lost profits, valuation and appraisal, fraud, breach of
contract, partnership disputes, and bankruptcy related matters. Professionals also serve as mediators, arbitrators, special masters, third party administrators as well as consulting
and testifying experts.
FULCRUM INQUIRY
90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte
fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty audits, strategic
and market assessments, computer forensics, electronic
discovery, and analysis of computerized data.
Degrees/licenses: CPAs, CFAs, ASAs, PhDs, and MBAs in
accounting, finance, economics, and related subjects. See
display ad inside back cover.
Since 1983, our firm has specialized in delivering forensic
accounting and litigation support services that give our
clients an edge. We provide the quality and depth traditionally associated with Big Four firms with the personal attention and fee structure of a local firm. We are recognized
throughout southern California for the effectiveness of our
work. Areas of expertise include: business interruption, loss
of earnings analysis, breach of contract, partnership dissolution, profits distribution, tax consequences of settlements,
reconstruction of accounting records, embezzlement and
fraud, contract costs, lost profits, construction claims, and
damage computations cases. Selected by Inside Public
Accounting as recipient of 2008 “Best of the Best” award
given to only 25 firms across the country. Our practice
focuses on closely held entrepreneurial firms in the following
industries: construction, real estate development, equipment leasing, auto parts (wholesale and retail), manufacturing, and professional services. Glenn M. Gelman has been
appointed and served as Special Master in litigation support
matters and has testified over 30 times. Our comprehensive
case list is available upon request. See display ad on
page 63.
HIGGINS, MARCUS & LOVETT, INC.
10474 Santa Monica Boulevard, Suite 200, Los Angeles,
CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail:
commercial damage and lost profits computations and
business interruption. Experienced expert testimony and tax
MICHAEL D. ROSEN, CPA, PHD., ABV
3780 Kilroy Airport Way, Suite 200, Long Beach, CA 90806,
(562) 256-7052, fax (562) 256-7001, e-mail mrosencpa
@verizon.net Contact Michael D. Rosen. We are litigation
consultants, forensic accountants, expert witnesses. Our
mission is to tell the financial story that underlies every business litigation matter, and to convey that story in a clear and
concise manner to the trier of fact. Our findings allow a realistic assessment of the case and support settlement efforts.
Our work is designed to render conclusive opinions and to
withstand cross-examination. We specialize in Business
Damages—lost profits and loss in value; Personal Damages—lost earnings; and Business Valuation.
90017, (213) 627-8280, fax (213) 627-8301, e-mail:
[email protected]. Web site: www.schulzehaynes.com. Contact Karl J. Schulze, principal. Specialties: forensic business analysis and accounting, lost profits,
economic damages, expert testimony, discovery assistance, business valuations, construction claims, corporate
recovery, financial analysis and modeling, major professional
organizations, and have experience across a broad spectrum of industries and business issues. Degrees/licenses:
CPA; CVA; CFE; ABV; PhD-economics. See display ad on
page 53.
90017-3848, (213) 624-8150, fax (213) 624-8152, e-mail:
statistical analyses to assist attorneys in litigation. Expert
testimony in state and federal courts. Cases: Antitrust,
breach of contract, fraud, intellectual property, lost business
value, lost profits, wrongful death, and wrongful termination.
Industries: banking, construction, entertainment, insurance,
manufacturing, retail, securities, and wholesale. Credentials:
certified public accountant/accredited in business valuation,
page 57.
90245, (310) 322-7744, fax (310) 322-7755. Web site:
Schulze Haynes Loevenguth & Co.
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278; 363 San
FORENSIC/LITIGATION EXPERTS
Designations include:
Certified Public
Accountant (CPA)
Certified in Financial
Forensics (CFF)
Certified Valuation
Analyst/Accredited in
Business Valuation
(CVA/ABV)
Certified Fraud
Examiner (CFE)
✒
✒
✒
✒
•
•
•
•
Financial Forensic Analysis
Expert Testimony
Turnaround and Bankruptcy
Business Valuation
CONTACT KARL J. SCHULZE
[email protected] • www.schulzehaynes.com
213.627.8280
660 SOUTH FIGUEROA STREET, SUITE 1280, LOS ANGELES, CALIFORNIA 90017
CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web
auditing, loss of earning, commercial damages, and lost profits. Expert witness testimony preparation, settlement negotiations, and consultations. See display ad on page 59.
ECONOMICS
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, subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic
analysis and valuations/damages assessment, insurance
claims, coverages and bad faith, real estate brokerage,
appraisal, escrow, and construction defects/disputes, and
title insurance.
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
91367, (818) 986-5070, fax (818) 986-5034, e-mail:
FULCRUM INQUIRY
INSURANCE BAD FAITH EXPERT
Clinton E. Miller, J.D., BCFE
Author: How Insurance Companies Settle Cases
39 YEARS EXPERIENCE
Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide
Coverage Disputes – Customs and Practices in the Insurance
Industry – Good Faith/Bad Faith Issues
TEL 408.279.1034 | EMAIL [email protected] | FAX 408.279.3562
www.millerjd.qpg.com
CHOOSE A BETTER & MORE SUCCESSFUL
EXPERT WITNESS
90017, (213) 787-4100, fax (213) 891-1300, e-mail:
[email protected]. Web site: www.fulcrum.com. Contact
inside back cover.
ELECTRICAL
ROBERT J. ABEND, PE
/personal/rabend. Specialties: Electrical engineering, computer forensics, data recovery, electronic discovery, computer engineering, software, electronics, microelectronics,
consultant. References provided on request.
Degrees/licenses: BSEE, MS, Registered Professional Engineer, Computer Forensics Examiner, FCC General
Radiotelephone license.
ELECTRICAL ENGINEERING
CTG FORENSICS, INC.
16 Technology Drive, Suite 109, Irvine, CA 92618, (949)
790-0010, fax (949) 790-0020, e-mail: jflynn@ctgforensics
.com. Web site: www.CTGforensics.com. Contact John
Flynn, managing director. Construction-related engineering, plumbing, mechanical (heating, ventilating, A/C) and
electrical (power, lighting), energy systems, residential and
nonresidential buildings, construction defects and delay
analysis, cost to repair, construction claims, mold, and
green/LEED buildings.
■
■
■
■
■
Expert Witness Directory – call today for your free copy
Approved ca MCLE provider for attorneys and law firms
Annual expert witness conference: April 2011
National association of professional consultants providing
forensic services: los angeles, orange county, sacramento,
san diego, san francisco, dallas, houston, midwest, phoenix
Visit www.forensic.org for immediate access to hundreds
of forensic experts in diverse disciplines
562.695.4600 PHONE | 714.459.7198 FAX |
WWW.FORENSIC.ORG
|
[email protected]
ELECTRONIC DISCOVERY
SETEC INVESTIGATIONS
8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90036,
(800) 748-5440, fax (323) 939-5481, e-mail: tstefan
@setecinvestigations.com. Web site: www.setecinvestigations.com. Contact Todd Stefan. Setec Investigations
offers unparalleled expertise in computer forensics and
enterprise investigations providing personalized, case-specific forensic analysis and litigation support services for law
firms and corporations. Setec Investigations possesses the
necessary combination of technical expertise, understanding
of the legal system, and specialized tools and processes
enabling the discovery, collection, investigation, and production of electronic information for investigating and handling
computer-related crimes or misuse. Our expertise includes
computer forensics, electronic discovery, litigation support,
and expert witness testimony.
EMBEZZLEMENT AND FRAUD
Glenn M. Gelman and Associates provides a variety of highquality services traditionally associated with the Big Four
firms along with the personal attention that is the hallmark of
local firms. Our litigation support services include: embezzlement and fraud, expert witness testimony, strategy development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic
accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit preparation and reconstruction of accounting records. Winner of Inside Public
Accounting’s 2008 “Best of the Best” award given to only
25 firms across the country. Our practice focuses on closely
held entrepreneurial firms in the following industries: construction, real estate development, equipment leasing, auto
parts (wholesale and retail), Manufacturing, and professional
services. Glenn M. Gelman has been appointed and served
as Special Master in litigation support matters and has testified over 30 times. Our comprehensive case list is available
upon request. See display ad on page 63.
EMPLOYMENT/DISCRIMINATION/HARASSMENT
BRIAN H. KLEINER, PHD, MBA
Professor of Human Resource Management, California State
University, 551 Santa Barbara Avenue, Fullerton, CA 92835,
(714) 879-9705, fax (714) 879-5600. Contact Brian H.
Kleiner, PhD. Specializations include wrongful termination,
discrimination, sexual harassment, ADA, evaluation of policies and practices, reasonable 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. Testified at trial over 55 times.
EMPLOYMENT LAW
HAIGHT CONSULTING
EMPLOYMENT/WAGE EARNING CAPACITY
CALIFORNIA CAREER SERVICES
6024 Wilshire Boulevard, Los Angeles, CA 90036,
(323) 933-2900, fax (323) 933-9929, e-mail: susan
@californiacareerservices.com. Web site: www
.californiacareerservices.com. Contact Susan Wise Miller,
MA. Career counselor, vocational expert vocational examinations, labor market research, and testimony on employability and earning capacity, as well as educational options.
Specializing in divorce and wrongful termination cases.
PERSONNEL SYSTEMS ASSOCIATES, INC.
P.O. Box 28597, Anaheim, CA 92809, (714) 281-8337, fax
(714) 281-2949, e-mail: [email protected].
Web site: www.personnelsystems.com. Contact Mae Lon
Ding, MBA, CCP. Expert witness in employment, business
dispute, disability, and divorce cases involving issues of
employee or owner compensation, discrimination, wrongful
termination, exemption from overtime, labor market/employability, lost wages/benefits, employee performance, and
evaluation of personnel policies and practices. Nationally
recognized human resource management and compensation consultant, speaker, author of book and articles, university instructor. Quoted in Los Angeles Times, Orange County
Register, Business Week, Workforce, and Working Woman.
Over 19 years of testifying in cases involving major national
organizations in a large variety of industries involving multiple
plaintiffs. MBA, Certified Compensation Professional.
ENGINEER/TRAFFIC
WILLIAM KUNZMAN, PE
973-8383, fax (714) 973-8821, e-mail: mail@traffic-engineer
.com. Web site: www.traffic-engineer.com. Contact
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
Air Weather & Sea
Conditions, Inc.
Clear, plain-language and convincing expert
testimony, reports and analyses to reconstruct
weather, climate, storm, and atmospheric
conditions at location and time of interest.
Wind and rain and ice assessments, and
indications of their normalcy, unusualness
and foreseeability.
Authoritative, certified data acquisition,
preparation of exhibit materials, site visits
and evaluations of reports for legal and
insurance matters including building
projects, mold, and accidents, homeland
security and alternative energy applications.
Excellent client references provided on request.
EXTENSIVE COURT EXPERIENCE
Jay Rosenthal CCM
AMS CERTIFIED CONSULTING METEOROLOGIST
NATIONAL WEATHER SERVICE WEATHER SPOTTER
Phone 818.645.8632 or 310.454.7549
Fax 310.454.7569
E-mail [email protected]
www.weatherman.org
P. O. Box 512, Pacific Palisades, CA 90272
ENGINEERING
FALLBROOK ENGINEERING
355 West Grand Avenue, Suite 4, Escondido, CA 92025,
(760) 489-5400, fax (760) 489-5412, e-mail: veronicav
@fallbrook-eng.com. Web site: www.fallbrookeng.com.
Contact Richard P. Meyst. Fallbrook Engineering provides
expert witness services in the areas of IP (patent infringement, invalidity, claim construction and trade dress), personal injury, product liability, and product failure analysis.
Our professionals have represented both plaintiff and defendant. We have done analysis, prepared declarations, been
deposed, and testified in court. We have years of design
and development experience making us effective expert witnesses in all matters involving medical devices. Visit our Web
site at www.fallbrook-eng.com.
FORENSISGROUP, INC
EXPERT WITNESS SERVICES
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 T. Steenwyk. ForensisGroup is an expert witness services and consulting company, providing expert court witnesses, consultants and litigation support specialists to law firms, private-practice
attorneys, and insurance professionals and other firms since
1991! Our experts have been retained in over 10,000 cases
nationwide. Our highly experienced staff will connect you
with top engineering consultants, medical expert witnesses,
forensic accountants, construction expert witnesses, securities specialists, and others representing hundreds of technical and scientific disciplines. Thousands have gained the
TECHNICAL ADVANTAGE and the COMPETITIVE EDGE in
their cases. Referrals and searches are free. Call us now at
(800) 555-5422 for your free initial telephone consultations
with our experts. See display ad on page 43.
– EXPERT WITNESS –
CONSTRUCTION
41 YEARS
CONSTRUCTION EXPERIENCE
SPECIALTIES:
Lawsuit Preparation/Residential
Construction, Single and Multi-family,
Hillside Construction, Foundations,
Vibration Trespass, Concrete, Floors, Tile,
Stone, Retaining Walls, Waterproofing,
Water Damages, Roofing, Sheet Metal,
Carpentry/Rough Framing, Stairs,
Materials/Costs, Building Codes,
Construction Contracts.
CIVIL EXPERIENCE:
Construction defect cases for insurance
companies and attorneys since 1992
COOK
CONSTRUCTION COMPANY
STEPHEN M. COOK
California Contractors License B431852
Nevada Contractors License B0070588
Graduate study in Construction
L.A. Business College, 1972
Tel:
818-438-4535 Fax: 818-595-0028
Email:
[email protected]
7131 Owensmouth Avenue, Canoga Park, CA 91303
ENGINEERING/GEOTECHNICAL
COTTON, SHIRES AND ASSOCIATES, INC.
When the need
for confidential
information
arises...
3201 Corte Malpaso, Suite 301, Camarillo, CA 93012-8074,
(805) 484-5500, fax (805) 484-5530, e-mail: [email protected]. Web site: www.cottonshires.com. Contact
Michael Phipps or Patrick O. Shires. Full-service geotechnical engineering consulting firm specializing in investigation, design, arbitration, and expert witness testimony with
offices in Los Gatos, Camarillo 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 77+
trials (municipal, superior and federal); 207+ depositions;
208+ settlement conferences in southern and northern California and Hawaii.
ENVIRONMENTAL
KGA, INC.
Benchmark Investigations is
a full service investigation agency
serving attorneys, corporations,
insurance firms, government
agencies and financial institutions.
We provide professional
investigations with emphasis on
accuracy, detail and expedience.
• Asset/Financial Investigations
• Locates/Skiptracing
• Process Service
• Surveillance
• Witness Interviews & Statements
• Background Investigations
• Due Diligence Research
• Merger & Acquisition Specialist
• DMV Searches
• Employee Misconduct & Sexual
Harassment Investigations
• Workers’ Compensation:
AOE/COE & Sub-rosa surveillance
Contact us today for prompt
attention to your case.
PACIFIC HEALTH AND SAFETY
CONSULTING, INC.
2192 Martin, Suite 230, Irvine, CA 92612, (949) 253-4065,
e-mail: [email protected]. Web site: www.phscweb.com. Contact Tim Morrison. Providing quality consultation and expert witness for mold, bacteria, lead, and
asbestos. Certified training for health and safety, OSHA, and
AQMD regulations. See display ad on page 61.
THE REYNOLDS GROUP
P.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397,
fax (714) 730-6476, e-mail: edreynolds@reynolds-group
.com. Web site: www.reynolds-group.com. Contact Ed
Reynolds. Principal of the Reynolds Group, an environmental consulting, contracting, and consulting firm. Experienced
in matters related to environmental contamination, assessment and remediation, reasonable value of construction,
and related financial matters. Degrees from USC, BS, Civil
Eng., 1981; University of Houston, MS, Civil Eng., 1984; and
Harvard, MBA, 1986. California registered civil engineer,
licensed contractor. Adjunct faculty member at the USC
School of Engineering and member of its Board of Councilors.
ENVIRONMENTAL ENGINEER
WZI INC (ENVIRONMENTAL ENGINEERS)
1717 28th Street, Bakersfield, CA 93301, (661) 326-1112,
fax (661) 326-6480, e-mail: [email protected]. Web site:
www.wziinc.com. Contact Mary Jane Wilson. BS, petroleum engineering environmental assessor #00050. Specialties include regulatory compliance, petroleum, and power
generation.
ESCROW
JIM ZIMMER, CPI
800.248.7721
[email protected]
www.BenchmarkInvestigations.com
32158 Camino Capistrano, Ste. A-415
San Juan Capistrano, CA 92675
California License #PI 12651
LAW OFFICE OF LORE HILBURG
1625 South Cimarron Street, Los Angeles, CA 90019, (323)
737-4444, fax (323) 737-4411, e-mail: [email protected]
or [email protected]. Contact Richard Reinhardt.
Lore Hilburg Esq. is a seasoned professional who has
served as an expert witness as to escrow issues, and real
property title disputes such a easements, constructive
notice and grantor/grantee index searches. Ms. Hilburg also
serves as a consultant on these issues whether they arise in
litigation involving a tort claim, legal malpractice, or breach of
contract or a transactional setting.
EXPERT REFERRAL SERVICE
FORENSIC EXPERT WITNESS ASSOCIATION
10820 Beverly Boulevard, Suite A5 PMB 310, Whittier, CA
90601, (562) 695-4600, fax (562) 692-3425 or (714) 4597198, e-mail: [email protected] or [email protected]. Web
site: www.forensic.org. Contact Lynn Gilbert or Don
Gilbert, ED. Expert Witness Directory—call today for your
free annual print copy or visit www.forensic.org to find an
expert in a wide range of disciplines to contact your expert
directly! Recently upgraded Web site includes dynamic
search capabilities for attorneys and the public to find an
expert by expertise categories or by keyword searches.
National Association of professional consultants providing
forensic services: in California, Arizona, Texas and Illinois.
Annual Expert Witness Conference April 28-30, 2011 in Las
Vegas. See display ad on page 54.
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: [email protected]. 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.
TASA (TECHNICAL ADVISORY SERVICE FOR
ATTORNEYS) EXPERTS IN ALL CATEGORIES
Contact Heather Williamson. (800) 523-2319, fax (800)
329-8272, e-mail: [email protected]. Web site:
www.TASAnet.com. The TASA Group is your timesaving,
cost-effective source for superior, independent Testifying
and Consulting Experts in all fields and locations. We offer
11,000+ diverse categories of expertise and hard-to-find
specialties in technology, business, the arts, and sciences,
including 1000+ medical areas. Our experienced Referral
Advisors target your specific criteria and connect you with
experts available to discuss your case. There is NO
CHARGE for our search and referral services unless you
designate or engage an expert we refer. Plaintiff/Defense;
Civil/Criminal. Visit TASAnet.com where you can search
expert profiles by expertise keyword, request a Challenge
History Report on an expert’s past testimony, and request
an expert on our online form. Explore TASAnet.com’s
Knowledge Center to read expert-authored articles and view
archived webinars for attorneys. To receive invitations to our
free, expert-led webinars for attorneys, register at www
.TASAnet.com/knowledgecenterregistration.aspx. Benefit
from 54 years of TASA Group experience. See insert in
this issue and display ad on page 42.
EXPERT WITNESS
the Los Angeles County Bar Association.
AMFS MEDICAL EXPERTS NATIONWIDE
FAILURE ANALYSIS
6425 Christie Avenue, Suite 260, Emeryville, CA 94608,
(800) 275-8903. Web site: www.AMFS.com. Medical
experts for malpractice and personal injury cases. AMFS is
America’s premier medical expert witness and consulting
company. We are a trusted partner with the legal community
and provide a superior method of retaining medical experts.
For over 20 years, AMFS has provided board-certified
experts in over 10,000 malpractice and personal injury
cases. • Board-Certified experts in all medical specialties •
Practicing physicians with legal experience, • No cost attorney consultations, • Record review and testimony, • Independent Medical Examinations (IME) and autopsies, •
Essential affidavits and reporting. Discuss your case at no
charge with one of our Medical Directors who will identify
and clarify your case issues to ensure you retain the appropriate specialists. Cost-effective Initial Case reviews for
merit. Have your case reviewed for merit by members of our
50+ member multi-specialty Physician Advisory Panel.
Review and select expert CVs. Our experience, resources,
and large proprietary database enable us to quickly identify
and interview a large number of potential medical experts on
your behalf and provide you with the CVs of those who are
best suited to your case. See display ad on page 46.
KARS ADVANCED MATERIALS, INC.
91367, (818) 986-5070, fax (818) 986-5034, e-mail:
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
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 30-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive, bicycles,
tires, fire, paint, plumbing, corrosion, and structural failures.
We work on both plaintiff and defendant cases. Complete
in-house capabilities for tests. Extensive deposition and
courtroom experience (civil and criminal investigations). Principals are fellows of American Society for Metals and boardcertified diplomates, American Board of Forensic Examiners.
KGA, INC.
FAMILY LAW
90024, (310) 475-5676, fax (310) 475-5268, e-mail: brian
@brianlewis-cpa.com. Contact Brian Lewis, CPA, CVA.
Forensic accounting; business valuations; cash spendable
reports; estate, trust, and income tax services.
Thomas Neches
(310) 552-0960, fax (310) 557-3468. 20355 Hawthorne
Boulevard, First Floor, Torrance, CA 90503, (310) 370-6122,
fax (310) 370-6188, e-mail: [email protected] or tkatz
@gursey.com. Web site: www.gursey.com. Contact
Robert Watts or Tracy Katz. Forensic accounting and litigation support services in all areas relating to marital dissolution; including, business valuation, tracing and apportionment of real property and assets, net spendable evaluations,
determination of gross cash flow available for support and
analysis of reimbursement claims and marital standards of
living. See display ad on page 51.
CORPORATION
576-1090, fax (310) 576-1080, e-mail: terry@taxwizard
.com. Web site: www.taxwizard.com. Contact Terry M.
Hargrave, CPA/ABV/CFF, CFE. Litigation services for
family law and civil cases. Past chair of California Society of
CPAs’ Family Law Section, business valuation instructor for
California CPA Education Foundation. Services include
business valuations, income available for support, tracing
separate property, litigation consulting, real estate litigation,
mediation, fraud investigations, damage calculation, and
other forensic accounting work.
• Expert testimony
• Damages calculation
• Forensic accounting
• Business valuation
• Database analysis
Certified Public Accountant
Accredited in Business Valuation
Certified Valuation Analyst
Thomas Neches & Company LLP
Certified Fraud Examiner
Certified in Financial Forensics
voice: (213) 624-8150
e-mail: [email protected]
609 South Grand Avenue, Suite 1106
Los Angeles, California 90017-3848
www.thomasneches.com
4910 Campus Drive, Newport Beach, CA 92660, (949) 7241880, fax (949) 724-1889, e-mail: sgabrielson@hayniecpa
.com. Web site: www.hayniecpa.com. Contact Steven C.
Gabrielson. Consulting and expert witness testimony in a
variety of practice areas: commercial damages, ownership
disputes, economic analysis, business valuation, lost profits
analysis, fraud/forensic investigations, taxation, personal
injury, wrongful termination, professional liability, and expert
cross examination. Extensive public speaking background
assists in courtroom presentations.
91403, (818) 995-1040, fax (818) 995-4124. Web site:
PAMELA WAX-SEMUS, CFE
107 North Reino Road, #402, Newbury Park, CA 91320,
(805) 499-3035, fax (805) 498-0468, e-mail: tracing.queen
@verizon.net. Web site: www.tracingqueen.net. Contact
Pamela Wax-Semus, CFE. I am experienced in most
areas of litigation support services with a particular emphasis
in tracing, property allocation, reimbursements, stock
options and related allocations issues. I have vast experience not only in marital dissolution matters. My expertise
expands to trust and probate accountings, fraud, and other
litigation related matters.
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278; 363 San
11900 West Olympic Boulevard, Suite 650, Los Angeles, CA
90064-1046, (310) 826-1040, fax (310) 826-1065. Web site:
www.zsscpa.com. Contact Lester J. Schwartz,
FASTENERS-LATCHES
ARGOS ENGINEERING
(949) 429-5972, e-mail: [email protected]. Web site: www
.argos-engineering.com. Contact John D. Pratt, PhD, PE.
Litigation consulting, inspections, expert reports, patent infringement and validity analysis, deposition, and trial testimony.
FEE DISPUTE
EDWARD LEAR
5200 West Century Boulevard, Suite 345, Los Angeles, CA
90045, (310) 642-6900, fax (310) 642-6910, e-mail: lear
@centurylawgroup.com. Web site: www.CalStateBarDefense
.com Contact Edward Lear. Specialties: Former State Bar
prosecutor, expert testimony and declarations regarding
breach of standard of care, breach of fiduciary duties, especially in context of California Rules of Professional Conduct.
Expert testimony and declarations regarding legal fees and
billing practices. Experience includes state and federal,
plaintiff and defense. Fees: $450/hour, $500/hour (depo and
trial). Degrees/license: JD, UCLA (Law Review); AB, Dartmouth College; State Bar of California 1987.
ery, and analysis of computerized data. Degrees/licenses:
inside back cover.
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. 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.
FEES & ETHICS
FINANCIAL STATEMENTS
JOEL MARK
NORDMAN CORMANY HAIR & COMPTON LLP
1000 Town Center Drive, 6th Floor, Oxnard, CA 93936,
(805) 988-8300, fax (805) 988-7700, e-mail:
[email protected]. Web site: www.nchc.com. Contact Joel
Mark. Mr. Mark has had in excess of 35 matters as an
expert witness in attorney malpractice cases, attorneys’ fee
disputes and cases involving issues of attorney ethics. He
served 12 years on the State Bar Committee on Mandatory
Fee Arbitration, a term on the State Bar Committee on Professional Responsibility and Conduct, and has been
appointed as an expert consultant by the Los Angeles
Superior Court.
FINANCIAL
90025, (310) 268-2000, fax (310) 268-2001, e-mail: sfranklin
@cbiz.com. Web site: www.MHM-PC.com, www.CBIZ
.com. Contact Steve Franklin. Specializes in business litigation; business valuation and appraisal, marital dissolutions, transactional due diligence, financial reconstruction,
fraud investigation, family limited partnerships, commercial
damage and lost profits computations and business interruption. Experienced expert testimony and tax controversy
representation.
FIRE/EXPLOSIONS
SERVICES, INC.
of lending (real estate, subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages
and bad faith, real estate brokerage, appraisal, escrow, and
construction defects/disputes, and title insurance.
FOOD SAFETY/HACCP
FOOD SAFETY AND HACCP COMPLIANCE
FULCRUM INQUIRY
90017, (213) 787-4100, fax (213) 891-1300, e-mail:
[email protected]. Web site: www.fulcrum.com. Contact
market assessments, computer forensics, electronic discov-
20938 De Mina Street, Woodland Hills, CA 91364, (818)
703-7147, e-mail: [email protected]. Web site: www.foodsafetycoach.com. Contact Jeff Nelken, BS, MA. Forensic
food safety expert knowledgeable in both food safety and
hazard analysis critical control point program development.
Specializes in expert witness testimony and litigation consultant in matters regarding food safety, Q.A., standards of performance, HACCP, crisis management, food-borne illness,
health department representation, food spoilage, allergy,
and customer complaints. Performs inspections, vendor
audits, and training. Hands-on food safety consultant for
restaurants, manufacturers, distributors, country clubs,
schools, nursing homes, and casinos. NRA 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 food safety expert. Food safety expert for CBS,
NBC, Inside Edition, and CNN. Free Consultation.
FORENSIC ACCOUNTING
90071, (213) 542-7121, fax (213) 542-7102, e-mail:
.com. Contact Michael Spindler. Capstone’s typical litiga-
tion and forensic services include expert testimony in complex commercial litigation, arbitration, mediation, and other
inspections.
CHARLES PEREYRA-SUAREZ
— ARBITRATOR AND MEDIATOR —
RELEVANT EXPERIENCE:
• Trial/Appellate Attorney, U.S. Justice Department
Civil Rights Division
• Federal Prosecutor in Los Angeles
• Litigation Partner in Two National Law Firms
• Judge Pro Tem, Los Angeles County Superior Court
• Diverse ADR and Expert Witness Practice
FULCRUM INQUIRY
90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte
inside back cover.
Since 1983, our firm has specialized in delivering forensic
accounting and litigation support services that give our
clients an edge. We provide the quality and depth traditionally associated with Big Four firms with the personal attention and fee structure of a local firm. Our litigation support
services include: forensic accounting, investigative auditing,
embezzlement and fraud, expert witness testimony, strategy
development, document discovery, deposition assistance,
computation of damages, arbitration consulting, rebuttal testimony, fiduciary accountings, and trial exhibit preparation
and reconstruction of accounting records. Winner of Inside
Public Accounting’s 2008 “Best of the Best” award given to
only 25 firms across the country. Our practice focuses on
closely held entrepreneurial firms in the following industries:
construction, real estate development, equipment leasing,
auto parts (wholesale and retail), manufacturing, and professional services Glenn M. Gelman has been appointed and
served as Special Master in litigation support matters and
has testified over 30 times. Our comprehensive case list is
available upon request. See display ad on page 63.
445 S. FIGUEROA STREET, SUITE 3200, LOS ANGELES CA 90071
Tel
213.623.5923 Fax 213.623.1890 http://www.cpsarbitration.com
Do You Have A Case
Involving Dogs?
• aggression
• behaviors
• training
• breeding
• rescue
• protocols
Specializing in
Rottweilers and
Pit Bulls
• temperament
• cruelty
• hoarding
— EVALUATIONS, CONSULTATION, BITE INVESTIGATIONS —
Jill Kessler • Dog Expert | 310-573-9615 | e-mail: [email protected]
www.jillkessler.com
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.
Some of our specialties consist of:
• Forensic Accounting • Marital Dissolutions
• Business Valuation and Appraisal • Lost Profits
• Economic Damages • Accounting Malpractice
• Employee Benefit Plans • Entertainment Entities
• Financial and Economic Analysis • Shareholder Disputes
• Wrongful Termination
Tel: (310) 826-1040
Lester J. Schwartz, CPA/CFF, DABFA, DABFE
Fax: (310) 826-1065
Michael D. Saltsman, CPA, MBA
RGL FORENSICS
E-mail: [email protected]
David L. Bass, CPA
Los Angeles Office: 660 South Figueroa Street, Suite 980,
Los Angeles, CA 90017, (213) 996-0900. Contact Alan
Lurie, [email protected] or Bob Jones, [email protected]
l.com. Orange County Office: 625 City Drive South, Suite
290, Orange, CA 92868, (714) 740-2100. Contact Hank
Kahrs, [email protected]. RGL Forensics is an international firm of forensic financial experts exclusively dedicated
to damage analysis, fraud investigation, and valuation. Serv-
www.zsscpa.com
Dave Dichner, CPA, ABV, CVA
11900 W. Olympic Blvd.
Sandy Green, CPA
Suite 650
Los Angeles, CA 90064-1046
ing the legal, insurance, and business communities for more
than 30 years, the firm is unique in its ability to combine
investigative accounting, business valuation, fraud, and
forensic technology expertise. For attorneys, we discover
and define financial value in transactions and civil and criminal disputes, and when necessary provide expert witness
testimony in court and arbitration proceedings. For more
information about RGL and its 23 offices worldwide, please
visit www.rgl.com. See display ad on page 65.
PAMELA WAX-SEMUS, CFE
107 North Reino Road, #402, Newbury Park, CA 91320,
(805) 499-3035, fax (805) 498-0468, e-mail: tracing.quee
[email protected]. Web site: www.tracingqueen.net. Contact
Pamela Wax-Semus, CFE. I am experienced in most
areas of litigation support services with a particular emphasis
in tracing, property allocation, reimbursements, stock
options, and related allocations issues. I have vast experience not only in marital dissolution matters. My expertise
expands to trust and probate accountings, fraud, and other
litigation related matters.
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278; 363 San
Contact Barbara Luna or Bill Wolf. Expert witness testimony for complex litigation involving damage analyses of lost
profits, unjust enrichment, reasonable royalties, lost earnings,
lost value of business, forensic accounting, fraud investigation, investigative analysis of liability, marital dissolution, and
tax planning and preparation. Excellent communicators with
extensive testimony experience. Prior Big Four accountants.
Specialties include accounting, breach of contract, business
interruption, business dissolution, construction defects,
delays, and cost overruns, fraud, insurance bad faith, intellectual property including trademark, patent, and copyright
infringement, and trade secrets, malpractice, marital dissolution, personal injury, product liability, real estate, tax planning
and preparation, IRS audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful
termination. See display ad on page 45.
disputes, industry standards/practices, safety, and security.
Former partner, V.P. IHOP, president, Copper Penny chain,
author, director, and expert witness.
FRAUD INVESTIGATIONS
CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web
90071, (213) 542-7121, fax (213) 542-7102, e-mail:
inspections.
FORENSIC ANALYSIS
90024, (310) 475-5676, fax (310) 475-5268, e-mail:
[email protected]. Contact Brian Lewis, CPA,
CVA. Forensic accounting; business valuations; cash
spendable reports; estate, trust, and income tax services.
FRANCHISING
LEON GOTTLIEB
USA-INT’L RESTAURANT, HOTEL FRANCHISE
CONSULTANT & EXPERT WITNESS
4601 Sendero Place, Tarzana, CA 91356, (818) 757-1131,
http://flashjordan.com/leongottlieb.htm. Over 45 years
hands-on experience; all types of restaurants, fast foods,
hotels, operations, training, manuals, franchisor-franchisee
DAVID L. RAY
RICHARD WEISSMAN
SALTZBURG, RAY & WEISSMAN, LLP
RECEIVERSHIP ACTIONS
• Partnerships and Corporate Dissolutions
• Government Enforcement Receivership Actions
• Partition Actions/Marital Dissolution
90025, (310) 268-2000, fax (310) 268-2001, e-mail: sfranklin
@cbiz.com. Web site: www.MHM-PC.com,www.CBIZ.com.
Contact Steve Franklin. Specializes in business litigation;
business valuation and appraisal, marital dissolutions, transactional due diligence, financial reconstruction, fraud investigation, family limited partnerships, commercial damage and
lost profits computations and business interruption. Experienced expert testimony and tax controversy representation.
GEOTECHNICAL ENGINEERING
SHEPARDSON ENGINEERING GROUP, INC.
10035 Prospect Avenue, Suite 101, Santee, CA 920714398, (619) 449-9830, fax (619) 449-5824, e-mail:
[email protected]. Contact Don Shepardson. Over
45 years as a Geotechnical Engineer of Record on residential, commercial, and governmental projects. Projects range
from 6,000 AC subdivisions to multistory commercial buildings. Over 40 years of experience as a designated expert
with extensive court experience, including electronic data
presentations. Professional engineer license in 10 states,
prior contractor license in engineering, concrete, and grading (inactive).
HANDWRITING
DOCUMENT EXAMINER
expert witness in many complex and high-profile civil and
lab, and San Diego County District Attorney’s office. Currently in private, criminal, and civil practice.
HORSE/EQUINE
EQUINE EXPERT WITNESS
TEL
310.481.6780
310.481.6707
[email protected] • [email protected]
FAX
www.srblaw.com
11451 Shippigan Way, Cypress, CA 90630, (714) 248-9484
e-mail: [email protected]. Contact Marcy Shelton. Experienced in depositions and trial testimony. Twenty-five years
of experience working with racehorses. I know all aspects of
horse and rider behavior.
INSURANCE
DVISORS/EXPERTS @ MCS ASSOCIATES
12121 WILSHIRE BOULEVARD, SUITE 600, LOS ANGELES CA 90025
263-8700, fax (949) 263-0770, e-mail: experts@mcsassoci-
ates.com. Web site: www.mcsassociates.com. Contact
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’ experienceæclaims 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 6.
LAUNIE ASSOCIATES, INC.
2627 Tunnel Ridge Lane, Santa Barbara, CA 93105, (805)
Contact Joseph J. Launie, PhD, CPCU, insurance professor, author, and consultant. Over 30 years of experience as expert witness in state and federal courts. Coauthor of books and articles on underwriting, insurance
company operations, and punitive damages. Consulting,
expert witness on underwriting, company and agency
operations, and bad faith.
CLINTON E. MILLER, JD, BCFE
NSURANCE BAD FAITH EXPERT
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 54.
PAUL PAULIN AND ASSOCIATES
567 West Channel Islands Boulevard, Suite 329, Port
Hueneme, CA 93041, (805) 985-3917, fax (805) 985-6407,
e-mail: [email protected]. Contact Paul Paulin.
Property/casualty insurance; surplus lines insurance;
agent/broker; standard of care; bad faith; insurance office
procedures practice; 37 years as agent/broker; former chair,
senate advisory commission on business insurance.
Degrees/licenses: CPCU, AMIM, ASLI, broker/agent, life
agent, surplus lines agent.
JANICE A. RAMSAY, ESQ
5 Savos, Irvine, CA 92603, (949) 854-9375, (949) 400-5040
(cell), fax (949) 854-0073, e-mail: [email protected]. Contact Janice A. Ramsay, Esq. Experienced in testifying in
depositions and at trial. Can provide consultation to litigation
counsel on property insurance coverage issues and proper
claim handling. Practiced law in property insurance specialty
since 1971. Has acted as appraiser, arbitrator, and mediator
in coverage or valuation disputes.
RICHARD MASTERS INSURANCE
SERVICES, INC.
35 West Main Street, #B170, Ventura, CA 93001, (805)
377-2688, fax (805) 830-0432, e-mail: richard.masters
@mac.com. Contact Richard Masters. Forty-two years of
experience. Agent and broker standard of care. Claims handling, underwriting and claims, specialty lines, custom and
practice of industry, certificate and additional insured issues.
ROBERT HUGHES ASSOCIATES, INC.
508 Twilight Trail, #200, Richardson, TX 75080, (972) 9800088, fax (972) 233-1548, e-mail: joakley@roberthughes
.com. Web site: www.roberthughes.com. Contact John
Oakley. Founded in 1979, RHA is an international insurance
and risk management consulting company based in Dallas.
Our consultants’ experience in the insurance industry allows
us to provide highly qualified expert witness and litigation
support services. Our expertise includes: property/casualty
insurance, life/health insurance, Lloyd’s, London Market
Research, claims handling, bad faith, decision analysis,
agency management and practices, insurance laws and
regulations, statistical forecasting, insurance sales and marketing practices, insurance archaeology and policy interpretation and analysis.
SHARP AND ASSOCIATES; INSURANCE CONSULTANTS AND EXPERTS.
West coast office: 21520 Yorba Linda Boulevard, Suite G257, Yorba Linda, CA 92887, (213) 407-9957; East coast
office: 325 East Paces Ferry Road, Suite 1603, Atlanta, GA
30305, (213) 407-9957, e-mail: [email protected] Web
site: www.sharpandassociates.org. Contact Robert
Sharp. Good faith/bad faith. In regard to all insurance
related issues and insurance industry standards. Mr. Sharp
has 33 years of experience, retiring as president and CEO of
a property-casualty insurance company. He also held the
positions of senior vice president, claims, and executive vice
president. He is providing services to law firms, insurance
companies, and corporations as a consultant and expert.
Mr. Sharp has testified in state and federal court in insurance
related matters such as property/casualty claims, sales and
underwriting issues, policy cancellations, coverage denials,
general liability, uninsured/underinsured claims, and bad
faith claims. CV upon request. For immediate background
information please see the Web site listed above.
THOMAS & ELLIOTT
90025, (310) 571-2727, fax (310) 207-0900, e-mail:
[email protected] or [email protected].
Web site: www.thomasandelliott.com. Contact Jay Elliott.
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.
INTELLECTUAL PROPERTY
FULCRUM INQUIRY
90017, (213) 787-4100, fax (213) 891-1300, e-mail: dnolte
inside back cover.
EXPERT WITNESS
—Real Estate Matters—
SPECIALIST IN:
• Broker duties; Standard of Care
• Disclosure Issues – Buyer/Seller
• Agency Obligations
• Real Estate Malpractice
• Mortgage Brokerage Law
• Residential & Commercial Transactions
• Escrow Standard of Care
• Foreclosure Related Issues
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.
Adjunct Professor
Loyola Law School
Hotline Attorney
Supervising Senior Counsel at California
Association of Realtors (CAR)
DRE Master Instructor
Author, DRE Disclosure Course.
Alan D. Wallace, Esq.
14011 Ventura Blvd., Suite 406, Sherman Oaks, CA 91423
818/501-0133 ■ FAX 818/905-6091
www.expertwitnessre.com
e-mail: [email protected]
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278; 363 San
copyright infringement, and trade secrets, malpractice, marital dissolution, personal injury, product liability, real estate,
tax planning and preparation, IRS audit defense, tracing,
unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on
page 45.
INVESTIGATIVE SERVICES
SPECIALIZED INVESTIGATIONS
9255 Corbin Avenue, Suite 200, Northridge, CA 91324,
(818) 909-9607, fax (866) 782-3012, e-mail: SI@specialpi
.com. Web site: www.specialpi.com. Contact Richard
Harer. Specialized Investigations was established in 1982.
Through the years, Specialized Investigations has expanded
to provide a full range of investigative services, including, but
not limited to: employment law investigations; insurance
fraud and claims investigations; disability claims investigations;
surveillance; workers’ compensation investigations; background checks; skiptracing/locates; asset searches; medical
clinic investigations; and other services. Our primary territory
includes California and Arizona, with three offices in California
and investigators throughout each state. We have Spanish
speaking investigators in all major metropolitan areas.
LAND SURVEYING
O’MALLEY ENGINEERING CORPORATION
650 East Chase Drive, Corona, CA 92881, (951) 734-0633,
fax (951) 737-9487. Web site: www.omalleyengineering
.com. Contact James O’Malley. Mr. James O’Malley PE,
LS, JD a civil engineer and land surveyor, has 40 years
experience designing and building land developments with
particular expertise in boundary disputes, drainage issues,
entitlements and processing. The fundamental element in
drainage cases is determining why the damage occurred
and knowing who is responsible for that. His knowledge of
the permitting and construction process and understanding
of legal issues is helpful when putting a case together.
LEGAL ETHICS
986-9890, fax (818) 986-1757, e-mail: LegMalpExpert@aol
.com; [email protected]; PreventativeLaw@aol
.com. Web sites: www.LegalMalpracticeExperts.com;
www.LegalEthicsExperts.com, www.CaStateBarDefense
.com. Contact Phillip Feldman. Former State Bar Examiner (Prosecutor) now State Bar Defense, Consultant, Preventative law/risk management, and testimony. Forty-two
years of professional responsibility-ethics. Former Chair
SFVB Professional Responsibility & Ethics committee. Testifying, consulting, lecturing and writing nationally on legal
ethics over 30 years. Former judge pro tem—25 years.
Attorney-client arbitrator—31 years. Certified Specialist
Legal Malpractice ABPLA/ABA.
LEGAL MALPRACTICE
986-9890, fax (818) 986-1757, e-mail: LegMalpExpert
@aol.com; [email protected]; PreventativeLaw@ao
l.com. Web sites: www.LegalMalpracticeExperts.com;
www.LegalEthicsExperts.com. Contact Phillip Feldman.
Designated, consulting & testifying expert—30 years. Certified specialist legal malpractice ABPLA/ABA. Forty-two
years litigating and testifying regarding standard of care,
causation, fiduciary duties, time bars, ethics, standard of
conduct, professional responsibility, and fee disputes. Any
underlying case—litigation, transaction, real property, contracts, trusts & probate, family, administrative, criminal, tort
(was board certified med-mal specialist). State or federal.
Former accountant. Degrees: BS, MBA. Former managing
partner plaintiff and defense firms. Also State Bar Defense
Counsel and preventative law. Judge pro tem—25 years,
and attorney/client arbitrator—31 years.
LAWRENCE H. JACOBSON, ESQ.
9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA
90212, (310) 271-0747, fax (310) 271-0757, e-mail: law.jac
@lhjpc.com. Web site: www.lawrencejacobson.com. Expert
witness: lawyer malpractice in business and real estate
transactions, standard of care for real estate brokers and
mortgage brokers, and real estate document custom and
usage. Practicing real estate and business law in California
since 1968. See display ad on page 67.
EDWARD LEAR
5200 West Century Boulevard, Suite 345, Los Angeles,
CA 90045, (310) 642-6900, fax (310) 642-6910,
e-mail: [email protected]. Web site: www
.CalStateBarDefense.com Contact Edward Lear. Specialties: Former State Bar prosecutor, expert testimony and
declarations regarding breach of standard of care, breach of
fiduciary duties, especially in context of California Rules of Professional Conduct. Expert testimony and declarations regarding legal fees and billing practices. Experience includes state
and federal, plaintiff and defense. Fees: $450/hour, $500/
hour (depo and trial). Degrees/license: JD, UCLA (Law
Review); AB, Dartmouth College; State Bar of California 1987.
JOEL MARK
(805) 988-8300, fax (805) 988-7700, e-mail: jmark@nchc
.com. Web site: www.nchc.com. Contact Joel Mark. Mr.
Mark has had in excess of 35 matters as an expert witness
in attorney malpractice cases, attorneys’ fee disputes and
cases involving issues of attorney ethics. He served 12 years
on the State Bar Committee on Mandatory Fee Arbitration, a
term on the State Bar Committee on Professional Responsibility and Conduct, and has been appointed as an expert
consultant by the Los Angeles Superior Court.
LAW OFFICES OF CHRISTOPHER ROLIN
5707 Corsa Avenue, Suite 106, Westlake Village, CA
91362, (818) 707-7065, fax (818) 735-9992, e-mail: crolin
@chrisrolin.com. Web site: www.chrisrolin.com. Contact
Christopher Rolin. After more than 40 years as a trial
attorney, Christopher Rolin is now focusing on advising litigants and transactional attorneys as a consultant and expert
witness. His area of emphasis is attorney malpractice,
focusing on the applicable community standard of care for
practicing attorneys in the litigation and business area. His
trial experience has resulted in numerous assignments as an
expert witness on trial and standard of care issues. He has
been retained as an expert by both plaintiff and defendants
in legal malpractice cases. He is also an expert in fee dispute
cases including cases before State Bar Arbitration Panels.
LEGAL PRACTICE
JOEL MARK
(805) 988-8300, fax (805) 988-7700, e-mail: jmark@nchc
.com. Web site: www.nchc.com. Contact Joel Mark. Mr.
Mark has had in excess of 35 matters as an expert witness
in attorney malpractice cases, attorneys’ fee disputes and
cases involving issues of attorney ethics. He served 12 years
on the State Bar Committee on Mandatory Fee Arbitration, a
term on the State Bar Committee on Professional Responsibility and Conduct, and has been appointed as an expert
consultant by the Los Angeles Superior Court.
LEGISLATIVE INTENT
WILLIAM H. KELLER
1219 Morningside Drive, Manhattan Beach, CA 90266,
(310) 343-9893, fax (800) 856-9965, e-mail: bkellerlaw
@gmail.com. Web site: www.calcodes.com. Contact Bill
Keller. Consultation on statutory construction problems.
Expert witness testimony. Written opinion declarations on
legislative history and legislative intent. Qualified as an expert
over 45 times in state, federal and administrative actions.
LITIGATION
LAW OFFICES OF CHARLES PEREYRA-SUAREZ
90071, (213) 623-5923, fax (213) 623-1890, e-mail:
[email protected]. Web site: www.cpsarbitration
.com. Contact Charles Pereyra-Suarez. Acted as an
expert witness for the plaintiffs in a legal malpractice case
that resulted in a $38 million jury verdict in favor of the plaintiffs against a prominent international law firm. This was the
fifth largest jury verdict in California in 2005. See display ad
on page 59.
MARINE AND MARITIME BOATING
CAPTAIN TOM CARNEY
980 Orma Drive, San Diego, CA 92106, (619) 417-6766, fax
.sandiegoyachtdelivery.com. Contact Tom Carney. Experienced consultant & expert witness in the marine industry
representing plaintiff or defendant, testimony for recreational
or commercial boats, power and sail, accident reconstruction, damage analysis, collision causes, rules of the road,
insurance investigation, fraud, proper seamanship, navigation, marine propulsion, mechanical and electrical systems
on vessels, proper boat handling, liability analysis and
weather analysis. Degrees/license: BA; Captain, US Merchant Marine; 3000 Ton International—all oceans, any
waters.
MARKETING AND SURVEY RESEARCH
MARYLANDER MARKETING RESEARCH
MMR STRATEGY GROUP
16501 Ventura Blvd. Suite, Suite 601, Encino, CA 91367,
(818) 464-2400, fax (818) 464-2399, e-mail: cjaffe
@mmrstrategy.com. Web site: www.mmrstrategy.com.
Contact Cheryl Jaffe. MMR Strategy Group (MMR) provides trial ready surveys, rebuttals, and expert witness services in marketing for intellectual property litigation. Our
studies measure consumer attitudes and behaviors for matters involving topics such as confusion, secondary meaning,
deceptive advertising, dilution, and claim substantiation. We
work on matters involving trademarks, copyrights, advertising, pricing, and other intellectual property issues. MMR
principals have extensive experience and top-tier credentials, and the firm has been in business for more than 35
years.
MECHANICAL ENGINEERING
ARGOS ENGINEERING
.argos-engineering.com. Contact John D. Pratt, PhD, PE.
Litigation consulting, inspections, expert reports, patent
infringement and validity analysis, deposition, and trial testimony.
CTG FORENSICS, INC.
MEDICAL
AMFS MEDICAL EXPERTS NATIONWIDE
6425 Christie Avenue, Suite 260, Emeryville, CA 94608,
(800) 275-8903. Web site: www.AMFS.com. Medical
experts for malpractice and personal injury cases. AMFS is
America’s premier medical expert witness and consulting
company. We are a trusted partner with the legal community
and provide a superior method of retaining medical experts.
For over 20 years, AMFS has provided board-certified
experts in over 10,000 malpractice and personal injury
cases. • Board-Certified experts in all medical specialties •
Practicing physicians with legal experience, • No cost attorney consultations, • Record review and testimony, • Independent Medical Examinations (IME) and autopsies, •
Essential affidavits and reporting. Discuss your case at no
charge with one of our Medical Directors who will identify
and clarify your case issues to ensure you retain the appropriate specialists. Cost-effective Initial Case reviews for
merit. Have your case reviewed for merit by members of our
50+ member multi-specialty Physician Advisory Panel.
Review and select expert CVs. Our experience, resources,
and large proprietary database enable us to quickly identify
and interview a large number of potential medical experts on
your behalf and provide you with the CVs of those who are
best suited to your case. See display ad on page 46.
TASAMED LOCAL AND NATIONAL MEDICAL
EXPERTS (A DIVISION OF THE TASA GROUP,
INC.)
Customized Expert Referrals in all Medical Practice Areas.
(800) 659-8464, fax (800) 850-8272, e-mail: tasamed
@tasanet.com. Web site: www.tasamed.com. Contact
Linda Bartorillo. FIND THE TESTIFYING OR CONSULTING MEDICAL EXPERT YOU NEED quickly with one call or
click to TASAmed. We refer superior, independent, experienced medical experts—including hard-to-find-specialists—
for case merit reviews, testimony at deposition or trial,
research, IME’s, and more in • 1,000+ medical fields. Our
skilled Referral Advisors • target your criteria, • forward
resumes for your review, and • help arrange your initial telephone screening interviews with experts. • No charge unless
you designate or engage an expert we refer • Plaintiff or
defense • Local, regional, national referrals. • Exceptional
personal service. Sample categories include anesthesiology,
cardiology, dentistry, emergency medicine, forensic pathology, general surgery, hospital administration, neurology,
nursing homes, OB/GYN, oncology, orthopedics, pediatrics,
pharmacology, plastic surgery, psychiatry, radiology, and
more. Visit TASAnet.com, where you can search expert profiles by expertise keyword, request a Challenge History
Report on an expert’s past testimony, and request an expert
on our online form. Please see our insert in this issue
and display ad on page 42.
MEDICAL/CARDIO-THORACIC SURGERY
HENRY FEE, MD
14911 National Avenue, #6, Los Gatos, CA 95032, (408)
358-8771, fax (408) 358-8621. Contact Henry Fee, MD.
Graduated Harvard Medical School. Residency Johns Hopkins and UCLA. Expert witness in adult heart and lung
surgery for the defendant or the plaintiff. Twenty-five years of
experience in medical legal field. Full-time surgical practice in
private hospital.
MEDICAL/CARDIOVASCULAR DISEASES
HAROLD L. KARPMAN, MD, FACC, FACP
Cardiovascular Medical Group of Southern California, Inc.
414 North Camden Drive #1100, Beverly Hills, CA 90210,
(310) 278-3400, fax (310) 887-2979. Contact Harold L.
Karpman, MD, FACC, FACP. Cardiovascular diseases (cardiology and medical vascular problems), and internal medicine. Special expertise in coronary disease, valvular heart disease, arrhythmias, devices, hypertension, drug studies,
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
product liability, bacterial endocarditis, angioplasty, CABG,
etc. Expert and reviewer with 40+ years of experience.
MEDICAL/TOXICOLOGY
JONATHAN S. RUTCHIK, MD, MPH, QME
MEDICAL/DERMATOLOGY
BIERMAN FORENSIC DERMATOLOGY
2080 Century Park East, #1008, Los Angeles, CA 90067,
(310) 553-3567, fax (310) 553-4538, e-mail: sbiermanmd
@aol.com. Web site: www.biermandermatology.com. Contact Stanley Bierman, MD. Dr. Bierman is an expert witness in matters relating to diagnosis and treatment of skin
cancers including melanoma. He is an acknowledged expert
in legal matters relating to sexually transmitted diseases. Dr.
Bierman is honorary associate professor of medicine and
past president of Los Angeles Dermatologic Society.
MEDICAL/EMERGENCY MEDICINE
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 Medicine. He
provides clinical evaluations and treatment, including electromyography, of individuals and populations with suspected neurological illness secondary to workplace injuries
or chemical exposure. Services include medical record and
utilization review and consulting to industrial, legal, government, pharmaceutical, and academic institutions on topics
such as metals and solvents, mold illness, Persian Gulf War
syndrome, musicians’ injuries, and others. See display ad
on page 52.
RYAN O’CONNOR, MD
P.O. Box 26381, Los Angeles, CA 90026, (310) 990-9979,
e-mail: [email protected]. Contact Ryan O’Connor,
MD. Board certified emergency medical physician. Los
Angeles County Superior Court list of expert witnesses.
Acknowledged wound expert for the Los Angeles County
Public Defenders’ office. Available for medical record review
and interpretation, consultation, and testimony.
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 teacher/public speaker
offers consultation, chart review, and testimony as an expert
witness for defense or plaintiff involving litigation arising from
the emergency department.
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. Contact
Gail. Board-certified neurology, clinical assistant professor
UCLA, personal injury, pain, carpal tunnel, spine, memory,
seizure, sleep, and clinical protocols. Multiple sclerosis,
migraine, and stroke. Education: AB Cornell University, MD
and PhD Brown University; residency + EMG/EEG fellowship
UCLA; Advisory Boards: L.A. Neurologic Society, St. John’s
Sleep Lab; honors: America’s Top Physicians (Consumer
Research Consul of America) 2005, 2006, 2007, Who’s
Who in Medicine (2001) and science/engineering (1993),
international electrophysiology Young Investigator (1997),
UCLA Neurology Teaching Awards (1994, 1996, 2006),
American Academy Neurology Research (1991), Brown University Sigma XI (1989), and research/publications (22), lectures (552).
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 DEVICES
@fallbrook-eng.com. Web site: www.fallbrook-eng
.com. Contact Richard P. Meyst. Fallbrook Engineering
provides expert witness services in the areas of IP (patent
infringement, invalidity, claim construction and trade dress),
personal injury, product liability, and product failure analysis.
Our professionals have represented both plaintiff and defendant. We have done analysis, prepared declarations, been
MEDICAL LEGAL
ROUGHAN & ASSOCIATES AT LINC, INC.
114 West Colorado Boulevard, Monrovia, CA 91016,
(626) 303-6333, fax (626) 303-8080, e-mail: [email protected].
Contact Jan Roughan at ext. 16. Specialties: Roughan
and Associates at LINC is a case management and medical/legal consulting firm. Services/products offered include:
1) Expert Testimony, 2) Life Care Plan (LCP) Construction
/LCP Critique, 3) Medical Record Organization/Summarization/Analysis, 4) Medical Bill Auditing, 5) Expert Witness
Identification, 6) IME Attendance, 7) Video Services (e.g.,
Day In Life, Settlement Brief, IME Evaluation, NDT/PT Evaluation, etc.), 8) Questions for: Deposition/Cross Examination
9) Medical/Psychiatric Case Management. See display ad
on page 47.
MEDICAL MALPRACTICE
GRAHAM A. PURCELL, MD, INC.
Assistant Clinical Professor Orthopedic Surgery, UCLA
3600 Wrightwood Drive, Studio City, CA 91604, (818) 9853051, fax (818) 985-3049, e-mail: [email protected].
Web site: gpurcellmd.com. Contact Graham A. Purcell,
MD. Dr. Purcell is a board certified orthopedic surgeon,
subspecialty 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 30 years of
orthopedic and 22 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 a qualified medical evaluator, Dr. Purcell has
extensive experience in performing QMEs, AMEs, IMEs, WC
evals. See display ad on page 65.
MERGERS/ACQUISITIONS
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 on accuracy,
detail, and expedience. Asset/financial searches; background investigation; DMV searches; domestic/marital
cases; due diligence investigations; mergers/acquisitions
specialist; process service; surveillance/photograph; witness
location/interviews; workplace investigations—theft, harassment, and drugs. Bilingual agents. Fully insured. Correspondents nationwide. CA Private Investigator license # PI
12651. See display ad on page 56.
METALLURGICAL AND CORROSION
ENGINEER
SERVICES, INC.
METALLURGY
METEOROLOGY
AIR, WEATHER, AND SEA CONDITIONS, INC.
P.O. Box 512, Pacific Palisades, CA 90272, (818) 6458632, fax (310) 454-7569, e-mail: [email protected].
Web site: www.weatherman.org. Contact Jay Rosenthal,
AMS Certified Consulting Meteorologist (CCM). Experienced and authoritative expert testimony, reports and analyses of wind, rain, storms, climatic conditions, flooding,
waves; specialist in auto/boat/ship/aircraft accident reconstruction, property damage, slip and falls, construction, mold
issues, homeland security applications, air pollution, transport, and risk identification. Movie industry applications, cinematography, and visual effects. Determining unusualness,
normalcy, and foreseeability. Official data, site visits, clear
and convincing testimony. See display ad on page 55.
NURSING/SURGERY/MEDSURG
MED-LINK CONSULTATION
3362 Budleigh Drive, Hacienda Heights, CA 91745, (626)
333-5110, fax (626) 968-0064, e-mail: dorothypollock
@roadrunner.com. Contact Dorothy Pollock, LNCC. Registered nurse with over 40 years of clinical experience. Nontestifying services include case analysis/for merit, chronology, translation, written reports, medical record organization.
DME/IME accompaniment including CD recording and written report. Expert witness and testifying services, including
affidavit, arbitration, declaration, and trial. Courtroom experienced both plaintiff and defense.
OBSTETRICS & GYNECOLOGY
ANTON L AMBROSE, MD, FACOG
18350 Roscoe Boulevard, Suite 504, Northridge, CA
91325, (818) 341-3111, fax (818) 886-6925, e-mail:
[email protected]. Contact Anton L. Ambrose,
MD, FACOG. Specialties: OB/GYN. Diplomate, American
Board of OB/GYN; Fellow, American College of OB/GYN;
member; American Medical Association, Los Angeles
County Medical Association, Sri Lanka Medical Association
of North America; Assistant clinical professor, UCLA School
of Medicine; OB/GYN Coordinator Family Practice Residency Program, Northridge Hospital; private practice
OB/GYN, Northridge California. Experienced expert witness.
ORTHOPEDIC SURGEON
MARC J. FRIEDMAN, MD
6815 Noble Avenue, Van Nuys, CA 91405, (818) 901-6600,
www.scoi.com. Contact Holly Robinson, Ext 2810.
Orthopedic shoulder and knee, consulting, and expert witness testimony. IME, AME, QME and workers’ compensation evaluations. See display ad on page 63.
RICHARD C. ROSENBERG, MD
Others get too wrapped up
in the numbers. We discover
and define financial value.
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. 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 offices in Oxnard and Santa Ana California.
RGL Forensics is an international firm of accounting,
valuation and technology professionals who are
specially trained to sort through the details and
make sense of the data.
WILLIAM B. STETSON, MD
191 South Buena Vista Street, Suite 470, Burbank, CA
91505, (818) 848-3030, fax (818) 848-2228, e-mail:
[email protected]. Web site: www.sportsmedicinedr
.com. Contact W. Stetson, MD. Dr. Stetson is fellowship
trained in arthroscopic surgery of the shoulder, knee, elbow,
and ankle. He is an Associate Clinical Professor of orthopedic surgery at the USC Keck School of Medicine. He also
has extensive experience in sports medicine and orthopedic
trauma.
We specialize in litigation support services:
pre-trial preparation, economic damage analysis,
investigative accounting and embezzlement,
business valuation, fraud, business interruption,
loss of earnings calculations, e-discovery, and
expert witness testimony.
ARGOS ENGINEERING
6OJUFE4UBUFT
www.argos-engineering.com. Contact John D. Pratt,
PhD, PE. Litigation consulting, inspections, expert reports,
patent infringement and validity analysis, deposition, and trial
testimony.
@fallbrook-eng.com. Web site: www.fallbrook-eng
.com. Contact Richard P. Meyst. Fallbrook Engineering
provides expert witness services in the areas of IP (patent
infringement, invalidity, claim construction and trade dress),
personal injury, product liability, and product failure analysis.
Our professionals have represented plaintiffs and defen-
"TJB1BDJGJD
Henry J. Kahrs, CPA/ABV/
CFF, CFE, CMA, CM
625 City Drive South,
Suite 290
Orange, CA 92868
213.996.0900
714.740.2100
rgl.com
&VSPQF
Alan J. Lurie, CPA/CFF, CFE
Robert D. Jones, CBM, CFE
800 S. Figueroa Street,
Suite 980
local
PATENTS
dants. We have done analysis, prepared declarations, been
PEDIATRIC EXPERT WITNESS
MICHAEL WEINRAUB, MD
90071, (213) 236-3662, fax (213)236-3663, e-mail:
[email protected]. Contact Dr. Michael Weinraub.
Board Certified Pediatrician. Child abuse and neglect, Munchausen syndrome by proxy, shaken baby syndrome (SBS),
lead poisoning, fetal alcohol spectrum disorder (FASD),
pediatric malpractice, childhood injury and product liability,
developmental disabilities (autism), healthcare of foster children, and custody evaluation for pediatric concerns.
PERSONAL INJURY
KGA, INC.
RYAN O’CONNOR, MD
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278; 363 San
PLUMBING
CTG FORENSICS, INC.
POLICE
DANIEL R. SULLIVAN, DEPUTY CHIEF,
LAPD, RET.
39432 Narcissus Way, 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.
pedestrian biomechanics, rollover, visibility issues, golf car,
and low speed vehicle safety. Computer animation and simulation services, scene inspections, crush measurements, tire
skid testing and calculations are also provided. Free phone
consultation or visit our Web site for more information.
QUESTIONED DOCUMENTS
RILE & HICKS, FORENSIC DOCUMENT
EXAMINERS
HOWARD C. RILE, JR. AND A. FRANK HICKS
100 Oceangate, Suite 670, Long Beach, CA 90802-4312,
(562) 901-3376, fax (562) 901-3378, e-mail: [email protected]. Web site: www.rileandhicks.com. Diplomates,
American Board of Forensic Document Examiners. Members, ASQDE, SWAFDE, SAFDE; Fellow AAFS. Combined
65+ years’ experience in examination and evaluation of disputed documents, including handwriting and signatures
(wills, deeds, checks, etc.) medical records, business
records, typewriting, printing, and/or other business
machine processes, alterations, indentations, obliterations,
and ink and paper questions. Fully equipped darkroom and
laboratory, including VSC-4C and ESDA. Testified more than
600 times.
PRIVATE INVESTIGATIONS
DOCUMENT EXAMINER
expert witness in many complex and high profile civil and
lab and San Diego County District Attorney’s office. Currently in private, criminal, and civil practice.
CA 92675, (800) 248-7721, fax (949) 248-0208, e-mail:
[email protected]. Web site: www.BenchmarkInvestigations.com. Contact Jim Zimmer, CPI. National agency.
PROBATE LAW
HONORABLE ANITA RAE SHAPIRO
Superior Court Commissioner (Retired), P.O. Box 1508,
Brea, CA 92822-1508, e-mail: [email protected]. Web site: http://adr-shapiro.com. Retired Los
Angeles Superior Court commissioner (15 years) available to
serve as a probate expert witness in cases involving wills
and trust issues. Presided in Long Beach Probate Department five years. See display ad on page 41.
PROCESS SERVER
CA 92675, (800) 248-7721, fax (949) 248-0208, e-mail: [email protected]. Web site: www.BenchmarkInvestigations.com. Contact Jim Zimmer, CPI. National agency.
PRODUCT LIABILITY
CALIFORNIA TECHNOLOGY ASSOCIATES
17410 Mayerling Street, Granada Hills, CA 91344, (800)
358-9909. Web site: www.technology-assoc.com. Contact
Dr. Ojalvo, chairman. Over 1700 cases. Our staff of PhDs
and professors has many scientific publications and
decades of testing and testifying experience. We handle all
types of vehicle issues such as crash and precrash speeds,
seatbelt usage, airbag deployment, component failure, roadway design, low speed rear-end impacts, occupant and
REAL ESTATE
STEPHEN B. FAINSBERT, ESQ., FAINSBERT
MASE AND SNYDER, LLP
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.
HOWARD N. GOULD
FINESTONE & RICHTER
1875 Century Park East, Suite 1500, Los Angeles, CA
90067, (310) 575-0800, ext. 249 fax (310) 575-0170, email: [email protected]. Web site: www.frlawcorp.com.
Attorney malpractice in residential real estate, residential
brokerage issues including standard of care, agent/broker
employment issues, broker and finder issues, corporate,
LLC, partnership and shareholder disputes.
LAW OFFICE OF LORE HILBURG
1625 South Cimarron Street, Los Angeles, CA 90019, (323)
737-4444, fax (323) 737-4411, e-mail: [email protected]
or [email protected]. Contact Richard Reinhardt.
Lore Hilburg Esq. is a seasoned professional who has
served as an expert witness as to escrow issues, and real
property title disputes such as easements, constructive
notice and grantor/grantee index searches. Ms. Hilburg also
serves as a consultant on these issues whether they arise in
litigation involving a tort claim, legal malpractice, or breach of
contract or a transactional setting.
LAWRENCE H. JACOBSON, ESQ.
9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA
90212, (310) 271-0747, fax (310) 271-0757, e-mail:
[email protected]. Web site: www.lawrencejacobson.com.
Expert witness: lawyer malpractice in business and real
estate transactions, standard of care for real estate brokers
and mortgage brokers, and real estate document custom
and usage. Practicing real estate and business law in California since 1968. See display ad on page 67.
MAURICE ROBINSON AND ASSOCIATES LLC
880 Apollo Street, Suite 125, El Segundo, CA 90245, (310)
640-9656, fax (310) 640-9276, e-mail: [email protected]. 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 franchisor-franchisee.
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.
ALAN D. WALLACE, ESQ.
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
than 7,500 real estate transactions. Department of Real
Estate master instructor and author, adjunct professor Loyola Law School, former CAR hotline attorney, university law
professor in real estate. Successfully testified in dozens of
cases. See display ad on page 61.
90245, (310) 322-7744, fax (310) 322-7755. Web site:
As an Expert Witness in Real Estate Litigation, Attorney
LAWRENCE H. JACOBSON
has consistently been on the Winning Team
• Real estate and
mortgage brokers’
standard of care
• Lawyer malpractice
in business and real
estate transactions
• Interpretation
of real estate
documents
Practicing real estate law in California since 1968. Member, Executive Committee, Beverly Hills Bar Association.
Former Vice President-Legal Affairs, California Association of Realtors. California Real Estate Broker since 1978.
LAWRENCE H. JACOBSON AB, UCLA 1964, JD UCLA SCHOOL OF LAW 1967
Tel 310.271.0747 Fax 310.271.0757 email [email protected] www.lawrencejacobson.com
LAW OFFICES: 9401 WILSHIRE BLVD. SUITE 1250, BEVERLY HILLS, CA 90212
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.
REAL ESTATE APPRAISAL
Testing & Research Labs
ADELMAN APPRAISALS, INC.
2528 W. Woodland Drive
Anaheim, CA 92801
91423, (818) 995-0648, fax (818) 990-0326, e-mail: [email protected]. Web site: www.adelmanappraisals.com. Contact Chris Adelman. Specialties: 20+
years of experience in residential real estate appraisals, high-
■ TEL: (714)527-7100
■ FAX: (714)527-7169
■ www.karslab.com
■ email: [email protected]
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.
RECEIVER
SALTZBURG, RAY & WEISSMAN, LLP
90025, (310) 481-6780, fax (310) 481-6707, e-mail: DLR
@srblaw.com: [email protected]. Web site: www
.srblaw.com. Contact David L. Ray, Esq., or Richard
Weissman, Esq. Specializes in handling complex receivership matters, such as partnership and corporate dissolutions, including law firm dissolutions, and government
enforcement receivership actions, including actions brought
by the California Department of Corporations, Department of
Real Estate, Commodities Future Trading Commission, and
Federal Trade Commission. Nationally recognized in both
the lender and litigation communities as qualified to assist in
complicated and commercially sophisticated liquidations,
reorganizations, and ongoing business operations. See display ad on page 60.
RESTAURANT/HOTEL
LEON GOTTLIEB
USA-INT’L RESTAURANT, HOTEL FRANCHISE
COSULTANT & EXPERT WITNESS
4601 Sendero Place, Tarzana, CA 91356, (818) 757-1131,
http://flashjordan.com/leongottlieb.htm. Over 45 years
hands-on experience; all types of restaurants, fast foods,
hotels, operations, training, manuals, franchisor-franchisee
disputes, industry standards/practices, safety, and security.
Former partner, V.P. IHOP, president, Copper Penny chain,
author, director, and expert witness.
RETALIATION
HAIGHT CONSULTING
ROOFING AND WATERPROOFING
KGA, INC.
VAN DIJK & ASSOCIATES, INC.
28 Hammond, Suite G, Irvine, CA 92618, (949) 586-3828,
fax (949) 586-7429, e-mail: [email protected]. 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.
SECURITIES
MARKET CONSULTING CORPORATION
(213) 627-0440, (888) 397-9867, e-mail: [email protected]. Web site: www.market-consulting.com.
Contact Dr. Ronald W. Cornew. Twenty plus years as
consultants in investment and trading litigation. Asset management, pension investments, securities and futures tax
matters including IRS examinations, appeals, U.S. Tax Court
appearances. Broker/customer disputes: stocks and bonds,
options, commodity futures, currency trading; derivatives
including swaps; limited partnerships, hedge funds, managed futures. Consultants to NYSE, Options Clearing Corporation, CBOT, CME, COMEX, TIAA/CREF, banks, other
major clients. Arbitrator NASD, NYSE, AAA, NFA, mediator
with NASD training. Member: Compliance and Legal Division, Securities Industry Association.
ROBERT C. ROSEN
Wells Fargo Center, 333 South Grand Avenue, Suite 1925,
Los Angeles, CA 90071, (213) 362-1000, fax (213) 3621001, 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. AV rated. Former chair,
LACBA Business and Corporations Law Section; LLM, Harvard Law School. More than 37 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 43.
SECURITY
DR. STEVE ALBRECHT, PHR, CPP
9528 Miramar Road, #270, San Diego, CA 92126, (619)
445-4735, e-mail: [email protected]. Web site:
www.drstevealbrecht.com. Contact Dr. Steve Albrecht,
PHR, CPP. Workplace violence threat assessment expert.
HR policies and procedures, negligent hiring, supervision,
training, background checks, sexual/racial liability, discipline
and termination practices. Security failures, premise liability,
forseeability, prior notice, and employee injury/deaths due to
violence. Police procedures, arrests and use of force, criminal behavioral, gang violence, and homicides. Speaker,
trainer, author, retired San Diego PD, coauthor, Ticking
Bombs. Expert witness history, CV, and fees upon request.
See YouTube.com link at www.drstevealbrecht.com.
CONFIDENTIAL BUSINESS CONSULTANTS
1049 Linda Glen Drive, Pasadena, CA 91105, (626) 4190082, fax (626) 792-9805, e-mail: [email protected].
Contact James F. Broder, CFE, CPP, FACFE. Author of
“Risk Analysis and the Security Survey,” (4th edition),
premises liability, adequate versus inadequate security pro-
cedures 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.
SEXUAL HARASSMENT/DISCRIMINATION
HAIGHT CONSULTING
SPINAL CORD INJURY
TAXATION
KAJAN MATHER AND BARISH
9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA 90212,
(310) 278-6080, fax (310) 278-4805, e-mail: KMBlaw
@taxdisputes.com. 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, administrative 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.
TRAFFIC ENGINEERING
ACCIDENT RECONSTRUCTION SPECIALISTS
(Field Test Engineering Inc,) 340 Golden Shore, Suite 400,
Long Beach, CA 90802, (800) 675-7667, fax (562) 4322322. Also: 11440 Bernardo Court, Suite 300, San Diego,
CA 92127, 8275 South Eastern Avenue, Suite 200, Las
Vegas, NV 89123; 2900 Adams Street, Riverside, CA
92604, 7362 Remcon Circle, El Paso, TX 79912. Web site:
www.FieldAndTestEngineering.com. Contact Robert F.
Douglas, PE—engineering manager. Registered professional engineer in California and Arizona, member—
NCUTCD, I.T.F., ASTM, Transp. Research Board, ASCE,
SAE, ATSSA, IEEE. Profile: Accident reconstruction, human
factors, failure analysis, traffic, and transportation engineering. Auto/truck/train/ped/bike/cycle accidents. See display
ad on page 47.
WILLIAM KUNZMAN, PE
973-8383, fax (714) 973-8821, e-mail: [email protected]. Web site: www.traffic-engineer.com. Contact
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
TRAVEL AND TOURISM
ALEXANDER ANOLIK, ESQ.
280 Round Hill Road, Tiburon, CA 94920, (415) 673-3333,
www.travellaw.com. Contact Al Anolik. Consultation and
expert testimony on custom and practice for airline, cruise
line, travel agencies, tour operators, motor coach, tour
escorts/guides, incentive/meeting planners, and applicability
of travel and tourism regulation. Evaluation, computation/valuation of tourism entities for purchase, sale, economic damages, or ADR hearings. Tourism security and restraint issues
and crisis management implementation and manuals.
Author and professor with actual consulting experience with
more tour entities than any other legal/custom and practice
consultant.
WASTEWATER
WOUND ANALYSIS
JOHN SHAW CONSULTING, LLC
P.O. Box 4259, Truckee, CA 96160, (530) 550-1576, fax
www.shaweng.com. Contact John Shaw, PE. Water/
wastewater/sewer industry—unique combination of operations and engineering background. Sanitary engineering
including water (potable) and wastewater (industrial and
domestic) treatment, conveyance, hydraulics, storage,
reuse, master planning, operations, maintenance, and
expert witness and forensic (mode of failure and standard of
care analysis; engineering analysis; product suitability and
construction defect issues). Wastewater treatment plants,
disposal/reuse facilities, sewage lift station design, sewer
collection systems, and sludge treatment. Water treatment
plants, pipelines, and swimming pools.
WORKERS’ COMPENSATION
RYAN O’CONNOR, MD
WRONGFUL TERMINATION
HAIGHT CONSULTING
THE LOS ANGELES COUNTY BAR FOUNDATION’S 2009-2010
FUND DRIVE raised more than $306,000 from corporations, individuals, law firms, and others. Direct contributions from law firms totaled
$111,375; individuals contributed $109,604; and corporations and
others contributed $18,291. In addition to these direct contributions,
$67,096 was contributed to the Foundation by individuals, corporations,
and law firms by means of the Association’s annual dues statement voluntary contribution.
The Foundation wishes to express sincere thanks to all who contributed during the 2009-2010 campaign. As part of the procedures
required in connection with its annual audit, the Foundation hereby lists
INDIVIDUAL
CONTRIBUTIONS
$3,500 and above
Brian K. Condon
Richard H. Nakamura, Jr.
$2,000-$3,499
Ruth J. Lavine
James C. Martin
$1,000-$1,999
Don Mike Anthony
Morgan Chu
John J. Collins
Robert W. Dickerson
Stephen R. English
Mark Garscia
William J. Glucksman
Lawrence E. Leone
Margaret Levy
Justice Nora M. Manella
Edith R. Matthai
Frederick M. Nicholas
Ellen A. Pansky
Avisha A. Patel
John J. Quinn
Thomas V. Reichert
Laura A. Seigle
Mr. and Mrs. Ralph J. Shapiro
Shondell M. Spiegel
Linda M. Stude
Susan Koehler Sullivan
Rebecca L. Torrey
Eric A. Webber & Gerard C.
Kraaijeveld
Daniel J. Woods
Donna J. Zenor
$500-$999
Linda Auerbach Allderdice
Paula Ambrosini
Laura W. Brill
Joanne E. Caruso
Meryl K. Chae
Paul S. Chan
Christopher C. Chaney
Tyrone R. Childress
Glen B. Collyer
Su-Lyn Combs
F. Milton Condon
Lawrence A. Cox
Mark T. Cramer
Patricia Egan Daehnke
Julia I. De Beers
Bryant S. Delgadillo
Alexandra Denman
David A. Dillard
Hon. Lee Smalley Edmon and
Richard J. Burdge, Jr.
Eric C. Egaas
Seth M. Gerber
John A. Girardi
Noah Graff
Robert A. Green
Feris M. Greenberger
James I. Ham
Amos E. Hartston
Shirley Hayton
Rex S. Heinke
Edward C. Ho
Brian L. Holman
Peter Hsiao
Patrick O. Hunnius
David C. Hunter
Andres C. Hurwitz
Princeton H. Kim
Jason B. Komorsky
Richard G. LaPorte
Larry & Bobbie Liebenobaum
Jana I. Lubert
Eric R. McDonough
Sarretta C. McDonough
Hon. Anthony J. Mohr
W. Stuart Ogg
Henry E. Orren
Ivan Price
Douglas C. Rawles
Alice A. Salvo
Dianne Baquet Smith
Richard K. Smith, Jr.
Jeffrey C. Soza
Alan K. Steinbrecher
Margaret P. Stevens
John D. Taylor
A. Patricia Ursea
Hon. Charles S. Vogel
Joel D. Whitley
$200-$499
Roy H. Aaron
Michael Allderdice
Joseph R. Austin
Donald P. Baker
Kenneth J. Betts
John H. Brinsley
Michael K. Brown
William Clark Brown
Rachel M. Capoccia
John D. Carpenter
Richard Chernick
Jeffrey H. Cohen
John R. Danos
Katessa Charles Davis
Beatriz M. Dieringer
Richard D. Esbenshade
Gregory Evans
Casey T. Fleck
Charles A. Gessler
Laurence R. Goldman
Joseph G. Gorman, Jr.
Sarah Heck Griffin
Christopher Hall
Myron E. Harpole
Syed A. Hasan
Marc I. Hayutin
Byron C. Hibdon
Eric Howard
Shirley M. Hufstedler
Joan R. Isaacs
Hon. Samantha Phillips
Thomas J. Johnston
Barry G. Kaiman
Michael C. Kelley
Deborah A. Kelly
Carlos M. Lazatin
James A. Lonergan
Michael S. Lurey
Kerry Lyon-Grossman
LeAnne E. Maillian
Robin Meadow
Danette E. Meyers
Neal S. Millard
Irma Rodriguez Moisa
Hon. Richard C. and Barbara
Reeves Neal
2009-2010
FUND DRIVE
RESULTS
Gretchen M. Nelson
Andrea Sheridan Ordin
David J. and Cynthia F.
Pasternak
Patricia D. Phillips
Gary S. Rattet
Anne E. Rea
Ronald C. Redcay
Maria M. Rohaidy
Dawn Sestito
Nancy A. Shaw
Susan Steinhauser
Susan R. Stockel
N. Denise Taylor
Paul D. Tripodi II
John D. Vandevelde
Lucy Varpetian
Catalina J. Vergara
Caroline C. Vincent
Robert S. Warren
Roxanne M. Wilson
Suzanne V. Wilson
Willard Mark Wood
Duke & Penni Wynne
Michael C. Zellers
Justice Laurie D. Zelon
LAW FIRM
CONTRIBUTIONS
9,000 and above
Latham & Watkins LLP
$6,000-$8,999
all individuals who made contributions of $200 or more, and all law
firms, corporations, and other organizations that contributed $1,000 or
more during the period beginning July 1, 2009, and ending June 30,
2010. If you are not listed below, and you made a contribution to the
Foundation fitting any of the above criteria, please contact the Foundation’s independent certified public accountants, Green, Hasson & Janks
LLP, by calling Tom Barry directly at (310) 873-1647. (Note: The Foundation records gifts made by check on the date of receipt, not the date written on the check.)
The Foundation regrets that space limitations prevent the listing of
the names of all contributors.
Gibson, Dunn & Crutcher LLP
Greenberg Traurig LLP
Greines, Martin, Stein &
Richland LLP
Hahn & Hahn LLP
Hochman, Salkin, Rettig,
Toscher & Perez P.C.
Holland & Knight LLP
Horvitz & Levy LLP
Hughes, Hubbard & Reed LLP
Khorrami, Pollard & Abir LLP
Lewis, Brisbois, Bisgaard &
Smith LLP
Milberg LLP
Morgan, Lewis & Bockius LLP
Perkins Coie LLP
Sedgwick, Detert, Moran &
Arnold LLP
Seyfarth Shaw LLP
Sidley Austin LLP
Snell & Wilmer LLP
Steptoe & Johnson LLP
Tucker Ellis & West LLP
$500-$999
Bate Peterson Deacon Zinn &
Young LLP
Mitchell, Silberberg &
Knupp LLP
Musick, Peeler & Garrett LLP
OTHER
CONTRIBUTIONS
Bingham McCutchen LLP
Munger Tolles & Olson LLP
Reed Smith LLP
$2,000 and above
$5,000-$5,999
Greiner Consulting, Inc.
LECG, LLC
Lexolution LLC
Rusnak Group
Arnold & Porter LLP
Christie, Parker & Hale LLP
Irell & Manella LLP
Kirkland & Ellis LLP
Morrison & Foerster
Foundation
O’Melveny & Myers LLP
Skadden, Arps, Slate,
Meagher & Flom LLP
$3,000-$4,999
Akin, Gump, Strauss,
Hauer & Feld LLP
Bird, Marella, Boxer, Wolpert,
Nessim, Drooks &
Lincenberg APC
Jones Day
Manatt, Phelps & Phillips LLP
McKenna, Long & Aldridge
Sheppard, Mullin, Richter &
Hampton LLP
$2,000-$2,999
Foley & Lardner LLP
Howrey LLP
Kaye Scholer LLP
Orrick, Herrington &
Sutcliffe LLP
White & Case LLP
$1,000-$1,999
Atkinson, Andelson, Loya,
Ruud & Romo APC
Bonne, Bridges, Mueller,
O’Keefe & Nichols APC
Scherzer International
$1,000-$1,999
IN MEMORY OF...
CHRISTOPHER MICHAEL
ANTHONY, by
Los Angeles County Bar
Association
JOSEPH A. BALL, by
Thomas J. Leanse
PAULA ELLIS BATSELL, by
Carter R. Batsell
ALLENE BAUM, by
Lynn R. Levitan
HON. RICHARD E. DENNER, by
Aster C. Chang
Kathleen J. Dillon
Steven L. Finston
Jami K. Fosgate
Lynn E. Goebel
Suzanne Harris
John P. Le Phong
Miyuki Nishimura
Ellen V. Palmer
Barbara Jean Penny
Kelly C. Rickert
Marilyn P. Sipes
Lane J. Thomas
Wasserman, Comden,
Casselman & Esensten LLP
Jeannette J. Wright
Wen W. Yang
AMOS HARTSTON, by
Cristin M. Zeisler
CHARLES R. ENGLISH, by
Charles A. Gessler
LeAnne E. Maillian
ROBERT HOLTZMAN, by
Mr. & Mrs. Bradley S.
Holtzman
Mr. & Mrs. Mark Holtzman
METTA FARMER, by
Angela F. Proffitt
HON. PAUL GUTMAN, by
Aster C. Chang
Kathleen J. Dillon
Steven L. Finston
Jami K. Fosgate
Abby B. Friedman
Lynn E. Goebel
Neil & Carol Goldberg
Suzanne Harris
John P. Le Phong
Miyuki Nishimura
Ellen V. Palmer
Barbara Jean Penny
Kelly C. Rickert
Barry & Beth Rosenbloom
Maxine Rudoff
Lane J. Thomas
Wasserman, Comden,
Casselman & Esensten LLP
Jeannette J. Wright
Duke & Penni Wynne
Wen W. Yang
RODERICK W. LEONARD, by
Charles A. Gessler
R. GERALD MARKLE, by
James I. Ham
Ellen A. Pansky
MILDRED MCDANIEL, by
Norma J. Williams
BENJAMIN B. SALVATY III, by
Richard J. Ward, Jr.
JOSEPH TABACK, by
Laurence R. Goldman
Kolodny & Anteau
VINCENT M. TOWNSEND, by
David S. Ettinger
ELIOT WALD, by
Jane Shay Wald
PROF. CHARLES H.
WHITEBREAD, by
John D. Carpenter
IN HONOR OF...
LINDA AUERBACH
ALLDERDICE, by
Alexandra Denman
DONALD P. BAKER, by
Alan B. Clark
BRIAN CONDON, by
F. Milton Condon
Ronald C. Redcay
Suzanne V. Wilson
MARK GARSCIA, by
Robert A. Green
LAURA SEIGLE, by
Laura W. Brill
LINDA M. STUDE, by
Don Mike Anthony
Joseph R. Austin
Robert E. Carlson
Richard Chernick
Tyrone R. Childress
Glen B. Collyer
Brian K. Condon
Grace M. Danziger
Noah Graff and Audra Mori
Rex S. Heinke
Ruth J. Lavine
Margaret Levy
James C. Martin
Neal S. Millard
Laura A. Seigle
Mr. and Mrs. Ralph J. Shapiro
Susan R. Stockel
John D. Taylor
Gerald A. Tomsic
John D. Vandevelde
Richard Walch
Robert S. Warren
Rosalyn S. Zakheim
RICHARD WALCH, by
Roy H. Aaron
Don Mike Anthony
Donald P. Baker
Anthony H. Barash
John H. Brinsley
John M. Byrne
Richard Chernick
Roland L. Coleman, Jr.
Beatriz M. Dieringer
Hon. Lee Smalley Edmon and
Richard J. Burdge, Jr.
Larry R. Feldman
Commr. H. Jay Ford III
Dolly M. Gee
Richard B. Goetz
Harry L. Hathaway
Rex S. Heinke
Reginald A. Holmes
Joan R. Isaacs
Jessner
Patrick M. Kelly
Miriam Aroni Krinsky
LeAnne E. Maillian
Joseph D. Mandel
Hon. Elaine W. Mandel
Edith R. Matthai
Robin Meadow and
Margaret P. Stevens
Danette E. Meyers
Charles E. Michaels
Hon. Margaret M. Morrow
Gretchen M. Nelson
Louise Nemschoff
Hon. Nancy L. Newman
Pasternak
Patricia D. Phillps
John J. Quinn
Marc L. Sallus
Hon. Patricia M. Schnegg
Charles D. Siegal
Sheldon H. Sloan
Commr. Matthew C. St.
George, Jr.
Hon. Maria E. Stratton
John D. Taylor
Robert S. Warren
MARK WEINER &
ASSOCIATES, by
Thomas J. Johnston
The Foundation would also
like to give special recognition to the following individuals whose participation in
various pledge programs (as
of 6/30/10) reflects a firm
commitment to the Foundation’s goals:
HONOR ROLL
Participants have contributed,
or pledged to contribute, the
amounts shown for each category in annual minimum
installments of at least
$1,000. (List includes participants as of 6/30/10.)
Founder ($50,000 or more)
Hyman J. Bradofsky
Thomas V. Girardi
Hutto Patterson Charitable
Foundation
J.W. & Ida M. Jameson
Foundation
Hon. Richard A. & Ruth J.
Lavine
Donald C. Mitchell
Ralph J. Shapiro
Benefactor ($25,000$49,999)
Roy H. Aaron
Jules & Doris Stein Foundation
Lloyd & Susan Stockel
Patron ($15,000-$24,999)
Don Mike Anthony
Joseph R. Austin
William J. Bogaard
Robert E. Carlson
Richard Chernick
Glen B. Collyer
Knox M. Cologne III
Stephen R. English & Molly
Munger
Stanley F. Farrar
Robert K. Johnson
Margaret Levy
Robin Meadow
Gavin Miller
In Honor of David Pascale
John J. Quinn
In Honor of Richard Walch
Robert S. Warren
Daniel J. Woods
Sponsor ($10,000$14,999)
Joseph W. Aidlin
John Carson
Gerald L. Chaleff
John J. Collins
Brian K. Condon
Robert W. Dickerson
Charles R. English
Richard E. Garcia
Mark Garscia
Harry L. Hathaway
Richard E. Hodge
Patrick M. Kelly
Joel W. H. Kleinberg
Larry & Bobbie Liebenbaum
James C. Martin
Neal S. Millard
Theodore N. Miller
Richard H. Nakamura, Jr.
Covert E. Parnell III
Wayne Simon
Joseph Taback
David H. Vena
Martin H. Webster
Donna J. Zenor
Friend ($5,000-$9,999)
Steven W. Bacon
Charles G. Bakaly, Jr.
Donald P. Baker
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Walter Cochran-Bond
Paul F. & Isabel R. Cohen
Joe D. Crider
Donald A. Daucher
Andrew J. Demetriou
Lee Edmon & Dick Burdge
Larry R. Feldman
Albert S. Golbert
David E. Gordon & Mary D.
Lane
Noah Graff & Audra Mori
Hon. William P. Gray
Sarah Heck Griffin
James I. Ham
Amos E. Hartston
Rex S. Heinke
Hon. William P. Hogoboom
Maria D. Hummer
John D. Hussey
Joan R. Isaacs
Leonard S. Janofsky
Vincent W. Jones
Martha B. Jordan
James H. Kindel, Jr.
Sandra R. King
Richard G. LaPorte
Lawrence E. Leone
Bernard E. & Joan M. LeSage
Edith R. Matthai
Malissa Hathaway McKeith
Danette E. Meyers
Hon. Anthony J. Mohr
Hon. Margaret A. Nagle
Gretchen M. Nelson
John F. O’Hara
Ronald L. Olson
Ellen A. Pansky
David J. & Cynthia F. Pasternak
Aulana L. Peters
Thomas D. Phelps
Patricia D. Phillips
Mitchell C. Regenstreif
Kenneth O. Rhodes
Douglas Ring
Reade H. Ryan, Jr.
Harvey L. Silbert
Sheldon H. Sloan
Linda J. Smith
Linda M. Stude
Susan Koehler Sullivan
Jill Switzer
John D. Taylor
Rebecca L. Torrey
William W. Vaughn
Eric A. Webber & Gerard C.
Kraaijeveld
Hon. Robert Weil
John S. Welch
Francis M. Wheat
Kenneth P. White
In Memory of Arnold V.
Winthrop
Hon. Paul Wyler
PRESIDENTS CLUB
Former Bar Association or
Bar Foundation presidents
who have contributed or
pledged to contribute a
minimum of $5,000 to the
Foundation. (List includes
participants as of 6/30/10.)
Roy H. Aaron
Don Mike Anthony
Joseph R. Austin
Donald P. Baker
Robert E. Carlson
John Carson
Gerald Chaleff
Richard Chernick
John J. Collins
Glen B. Collyer
Knox M. Cologne III
Brian K. Condon
Donald A. Daucher
Hon. Lee Smalley Edmon
Charles R. English
Stephen R. English
Larry R. Feldman
David E. Gordon
Hon. William P. Gray
Sarah Heck Griffin
Harry L. Hathaway
Rex S. Heinke
John D. Hussey
Joan R. Isaacs
Leonard S. Janofsky
Vincent W. Jones
Patrick M. Kelly
Ruth J. Lavine
Fred L. Leydorf
Lawrence F. Liebenbaum
James C. Martin
Edith R. Matthai
Robin Meadow
Danette E. Meyers
Neal S. Millard
Gavin Miller
Gretchen M. Nelson
John F. O’Hara
Pasternak
Patricia Phillips
John J. Quinn
Sheldon H. Sloan
Susan R. Stockel
John D. Taylor
Robert S. Warren
Martin H. Webster
John S. Welch
Francis M. Wheat
Daniel J. Woods
Donna J. Zenor
LIFE FELLOWS
A Life Fellow has contributed,
or pledged to contribute,
$2,500 to the Foundation.
Annual installments must be
at least $500. (List includes
participants as of 6/30/10
who have made a contribution
within the last 10 years.)
James N. Adler
Paula Ambrosini
Justice Orville A. Armstrong
Jane H. Barrett
Commr. Lori R. Behar
Mollie F. Benedict
Jennifer A. Bensch
Ivy Kagan Bierman
Michael I. Blaylock
Merrick J. Bobb
Phillip L. Bosl
Kappy K. Bristol
Jamie Broder
Michael K. Brown
Thomas M. Brown
Carolyn C. Burger
John M. Byrne
Paul S. Chan
Tyrone R. Childress
Morgan Chu
Brett J. Cohen
Jordan S. Cohen
Arlene Colman-Schwimmer
Su-Lyn Combs
Maria Louise Cousineau
Mark T. Cramer
Hon. Lawrence W. Crispo
Justice H. Walter Croskey
Patricia Egan Daehnke
Grace M. Danziger
Albert F. Davis
Bryant S. Delgadillo
Alexandra Denman
Gregory Evans
Laura V. Farber
Gregg A. Farley
Hon. Macklin Fleming
Stuart A. Forsyth
Georgia Franklin-Shutan
Jeffrey C. Freedman
James J. Gallagher
Seth M. Gerber
Russell T. Ginise
John A. Girardi
Richard B. Goetz
Hon. Arnold H. Gold
Jo-Ann W. Grace
Feris M. Greenberger
Alan N. Halkett
Christopher J. Heck
Brian L. Holman
Peter Hsiao
Patrick O. Hunnius
David C. Hunter
Andres C. Hurwitz
Bernard S. Kamine
Jason B. Komorsky
Linda M. Lawson
James D. Layden
Jana I. Lubert
Michael S. Lurey
Kerry Lyon-Grossman
Rick C. Madden
LeAnne E. Maillian
Eric R. McDonough
Sarretta C. McDonough
Kathleen M. McDowell
Charles E. Michaels
Mark A. Neubauer
Frederick M. Nicholas
W. Stuart Ogg
Commr. Steff Padilla
Avisha A. Patel
Lee R. Petillon
Kalia C. Petmecky
Ivan Price
Douglas C. Rawles
Thomas V. Reichert
Dennis D. Resh
David K. Robinson
Deborah J. Ruosch
Harvey I. Saferstein
Nicholas P. Saggese
Marc L. Sallus
Alice A. Salvo
Laura A. Seigle
Marc M. Seltzer
Patricia L. Shanks
Jeffrey C. Soza
Sheryl E. Stein
David R. Stepp
David W. Steuber
Margaret P. Stevens
Kimberly M. Talley
William E. Thomson
Eugene L. Trope
Rhonda R. Trotter
Patric M. Verrone
Caroline C. Vincent
Richard Walch
Michael J. Wise
Karen B. Wong & Scott W. Lee
Rosalyn S. Zakheim
2009-10 FELLOWS
Individuals who contributed a
minimum of $500 between
7/1/09-6/30/10 and are not
Barristers Fellows, Life Fellows
or Honor Roll participants.
Laura W. Brill
Joanne E. Caruso
Meryl K. Chae
Christopher C. Chaney
F. Milton Condon
Lawrence A. Cox
Julia I. De Beers
David A. Dillard
Eric C. Egaas
William J. Glucksman
Robert A. Green
Shirley Hayton
Edward C. Ho
Malcolm S. McNeil
Henry E. Orren
Dianne Baquet Smith
Richard K. Smith, Jr.
Shondell M. Spiegel
Joel D. Whitley
BARRISTERS
FELLOWS
A Barristers Fellow has contributed, or pledged to contribute over a five-year period,
$500 to the Foundation.
Barristers are individuals who
are 36 years of age or less or
who have been in practice 10
years or less. (List includes
participants as of 6/30/10.)
Randee Barak
Jonathan L. Brophy
Kimberly H. Clancy
Anthony Paul Diaz
Cameron W. Fox
Alexander S. Gareeb
James W. Gilliam, Jr.
Ritu M. Hasan
Mark Kachner
Princeton H. Kim
Mark A. Kressel
Ryan S. LeVine
Seth D. Levy
Emma Luevano
Bonita Moore
Andrea Schoor
Michelle Inouye Schultz
Allison N. Shue
Michael G. Soutar
Courtney L. Stuart-Alban
David W. Swift
A. Patricia Ursea
Gavin Hachiya Wasserman
SUPPORTING
MEMBERS
Individuals who have pledged
to contribute a minimum of
$100 annually to the Foundation. Those with asterisks
have previously completed
pledges at the Barristers
Fellow*, Life Fellow** or Honor
Roll*** level and have chosen
to continue supporting the
Foundation with an annual
gift. (List includes participants as of 6/30/10.)
Don Mike Anthony***
Hon. Helen I. Bendix
Michael H. Bierman
George F. Bird, Jr.
Brad D. Brian
Kappy K. Bristol
William Clark Brown
Elizabeth M. Calciano*
John L. Carlton
Alan B. Clark
Justice H. Walter Croskey**
Brian L. Davidoff
Jeffrey W. Erdman
Jack I. Esensten
Amy J. Fink
Michele E. Flurer*
Thomas A. Freiberg, Jr.
Robert S. Gerstein
Ethan P. Greene
Brian D. Huben
Joan R. Isaacs***
Lois M. Jacobs
Jessner
Henry J. Josefsberg
Marcia L. Kraft
Miriam A. Krinsky
Hon. Robert N. Kwan
Edward A. Landry
Thomas J. Leanse
LeAnne E. Maillian**
Frederick L. McKnight
Ralph B. Perry III
John J. Quinn***
Toby J. Rothschild
Michael & Lara Schwartz*
Paul D. Supnik
John D. Vandevelde
Caroline C. Vincent**
Richard Walch**
Earl P. Willens
Roxanne M. Wilson
Rosalyn S. Zakheim**
Michael C. Zellers
Fundraising for the current fiscal year (7/1/2010-6/30/2011) is now underway. The Foundation makes grants to law-related projects serving Los Angeles County. Visit the LACBF Web page at
www.lacbf.org to learn more about the Foundation and to see a list of its 2010 grant recipients. You may also contact the Foundation’s Executive Director, Ivan Price, at (213) 896-6409 or e-mail him at
[email protected]. To lend your support, send a tax-deductible contribution to: Los Angeles County Bar Foundation, PO Box 55020, Los Angeles, CA 90055-2020. Donations may also be made online via
credit card at www.lacbf.org by clicking on the DONATE NOW button.
by the book
REVIEWED BY GORDON ENG
The Essential Guide to California Restaurant Law
The Essential Guide to California
Restaurant Law provides an overview
of the surprisingly broad range of legal
issues that a California restaurant owner
may expect to address. The authors, Paul
Tour-Sarkissian and Tonia Tour-Sarkissian, offer valuable general discussions of
the many areas of concern to restaurant
operators, including food handling and
health inspections, labor laws, federal
and state regulations, service of alcoholic
beverages, and theories of liability to customers.
The Essential Guide to
The authors discuss the California
California Restaurant Law
Retail Food Code, which has revamped
by Paul Tour-Sarkissian and the previous California Uniform Retail
Tonia Tour-Sarkissian
Food Facilities Law. The Food Code covCarolina Academic Press
ers the core issues of restaurant operation
$65, 486 pages
with comprehensive regulation of restaurant health and sanitation. The Food
Code introduced the framework for municipalities to adopt restaurant grading systems like the A, B, and C system used in Los Angeles.
The authors provide overviews, with references for more detailed
inquiry. For example, the labor law issues discussed in the book
include Cal/OSHA safety requirements and the handling of tip
income. Slip-and-fall injuries in the kitchen are a major concern, and
the authors suggest establishing a policy to encourage the use of
footwear that is more likely to help prevent injuries. A number of treatises will overlap these topics, but this book focuses on how these issues
are likely to be pertinent to a restaurant operator. A reader with less
familiarity with an area of law that is the book’s concern will have
a starting point that is grounded in the restaurant world.
Comprehensiveness
When the book’s coverage is not sufficiently detailed, the authors have
often provided links to other resources. This is not to say that the book
lacks detail. The discussion of liabilities, for example, is interesting.
Regarding customer illness or injury resulting from food the restaurant serves, the authors discuss common theories of liability—strict
liability, negligence, and breach of the implied warranty of merchantability. If the food contains a foreign object, liability may be
imposed under all three.
Foreign objects can include food-borne diseases such as salmonella.
It may be surprising to learn that there is no common law duty in
California for the restaurant to come to the aid of a customer who
may be choking on food that the restaurant has served. The authors
note, however, that in such cases it is a good idea to call 911 for an
ambulance.
The authors also cover a number of discrete legal issues related
to restaurant operations, including automobile valet and coat check
liability, use of surveillance cameras, emergency preparedness for
fire and natural dangers like earthquakes, accepting payment by
credit card, menu labeling, healthy lifestyle laws, and entertainment
in a restaurant.
The sale of alcoholic beverages is a major source of restaurant revenues and liabilities. Alcohol sales are subject to state licensing
requirements. The authors devote a chapter to the types of licenses
used by restaurants, obtaining a license, and the rules for record keeping and sales. The authors’ coverage in this area is a very helpful distillation of the regulations, but the reader would benefit further from
some practical advice and tips. A discussion of service providers—
including who they are and what they do—in this aspect of the
restaurant business could be very helpful.
The FDA and the Menu
Federal Food and Drug Administration regulations reach into the statements made in a restaurant’s menus. “Lite menu” or “heart healthy”
selections and other health claims need only be backed by a reasonable basis understanding and not by actual laboratory testing of the
food the restaurant serves. However, California has gone a step further than federal law and requires restaurants that have 19 or more
locations serving common menu items to provide nutritional labeling similar to the nutritional content information found on food
products sold at a grocery store.
Some aspects of restaurant operation are not addressed. For
example, there is no discussion about the alternative structures available for the formation of the restaurant business—sole proprietorship,
partnership (general and limited), corporation (or limited liability company)—and the benefits of each structure. Attorneys who are taking
on clients in this area need to have a basic understanding of how to
advise clients on the relationship between partners, owners, and
investors in a restaurant.
The ownership structure of the restaurant affects potential liability
and taxes, and this book could offer more guidance on how to guide
clients toward ownership structures that correctly cut the tax and liability pie. Franchises are another topic that would help to round out
the book as a more comprehensive resource for potential restaurant
owners. The franchise method of operation is significant in the
restaurant business. Some insights into how franchises work in the
restaurant business could be very useful.
A number of the topics, such as labor laws and prohibitions
against using trans fats in cooking, are developing rapidly at the local,
state, and federal level. It remains to be seen if the authors will
update the book on a regular basis so that it continues to be a timely
resource on restaurant-related laws. As it stands, this book is a great
start for any lawyer or restaurant owner or operator who needs a ready
reference on the legal aspects of running a restaurant.
■
Gordon Eng is a business lawyer who focuses on small business, financing,
and real estate issues.
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Accident Reconstruction Specialists, p. 47
Tel. 562-743-7230 www.FieldAndTestEngineering.com
Marc J. Friedman, M.D., p. 63
Tel. 818-901-6600 e-mail: [email protected]
Novation Capital, p. 4
Tel. 800-747-6472 www.NewCashOption.org
Affiniscape Merchant Solutions, p. 24
Tel. 866-376-0950 www.lawpay.com
FULCRUM Financial Inquiry LLP, Inside Back Cover
Tel. 213-787-4100 www.fulcruminquiry.com
PCG Consultants, p. 8
Tel. 213-629-9211 www.pcgci.com
Ahern Insurance Brokerage, p. 2
Tel. 800-282-9786 x101, [email protected]
Glenn M. Gelman & Associates, p. 63
Pacific Health & Safety Consulting, Inc., p. 61
Tel. 949-253-4065 www.phsc-web.com
Air, Weather & Sea Conditions, Inc., p. 55
Tel. 818-645-8632 www.weatherman.org
Steven L. Gleitman, Esq., p. 4
Tel. 310-553-5080
Charles Pereyra-Suarez, p. 59
Tel. 213-623-5923 www.cpslawfirm.com
The American Institute of Mediation, p. 23
Tel. 213-383-0454 www.americaninstituteofmediation.com
Gursey, Schneider & Company, p. 51
Tel. 310-552-0960 www.gursey.com
Graham A. Purcell, M.D., Inc., p. 65
AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 46
Tel. 800-275-8903 www.amfs.com
Higgins, Marcus & Lovett, Inc., p. 53
Tel. 213-617-7775 www.hmlinc.com
RGL-Forensic Accountants & Consultants, p. 65
Tel. 213-996-0900 www.rgl.com
Benchmark Investigations, p. 56
Tel. 800-248-7721 www.BenchmarkInvestigations.com,
The Holmes Law Firm, p. 22
Tel. 626-432-7222 www.theholmeslawfirm.com
Receivership Specialists, p. 14
Tel. 310-552-9064 www.receivershipspecialists.com
Lee Jay Berman, Mediator, p. 6
Lawrence H. Jacobson, Esq., p. 67
Tel. 310-271-0747 www.lawrencejacobson.com
Rosen & Associates, PC, p. 43
Tel. 213-362-1000 www.rosen-law.com
Boykoff Investigations, p. 22
Tel. 818-718-8000 www.boykoffinvestigations.com
Jill Kessler, p. 59
Tel. 310-573-9615, www.jillkessler.com
Roughan & Associates at LINC, p. 47
Tel. 626-303-6333 x16 e-mail: [email protected]
The California Academy of Distinguished Neutrals, p. 38, 39
Tel. 310-341-3879 www.CaliforniaNeutrals.org
KGR Video Image and Audio Evaluation, p. 53
Tel. 714-926-0606 www.kgrproductions.com
Jonathan S. Rutchik, M.D. p. 52
Tel. 415-381-3133 www.neoma.com
California Eminent Domain Law Group, APC, p. 23
Tel. 818-957-0477 www.caledlaw.com
Kantor & Kantor, LLP, p. 30
Tel. 877-783-8686 www.kantorlaw.net
Saltzburg, Ray & Bergman, LLP, p. 60
Tel. 310-481-6700 www.srblaw.com
Chapman University School of Law, Inside Front Cover
Tel. 877-CHAPLAW (877-242-7529) www.chaplaw.edu/law
KARS Advanced Materials, Inc., p. 67
Tel. 714- 892-8987 www.karslab.com
Schulze Haynes Loevenguth & Co., p. 53
Tel. 213-627-8280 www.schulzehaynes.com
Cheong, Denove, Rowell & Bennett, p. 31
Tel. 310-277-4857 www.cdrb-law.com
Krycler, Ervin, Taubman & Walheim, p. 46
Tel. 818-995-1040 www.ketw.com
Anita Rae Shapiro, p. 41
Tel. 714-529-0415 www.adr-shapiro.com
Cohen Miskei & Mowrey, p. 49
Law Office of Michael Kelly, p. 69
Shoreline Investigations, p. 41
Tel. 800-807-5440, 818-344-2193 www.shorelinepi.com,
Coldwell Banker–Michael Edlen, p. 30
Lawyers’ Mutual Insurance Co., p. 7
Tel. 800-252-2045 www.lawyersmutual.com
TASA, Technical Advisory Service for Attorneys, p. 42
Tel. 800-523-2319 www.tasanet.com
Cook Construction, p. 55
Diana G. Lesgart, An Accountancy Corp., p. 49
Union Bank of California, p. 5
Tel. 310-550-6400 (B.H.), 213-236-7736 (L.A.) www.uboc.com
Lawrence W. Crispo, p. 8
M.A. Calabrese Associates, p. 52
Tel. 626-825-5444 www.macalabreseassociates.com
URS, p. 47
Tel. 213-996-2555 www.urscorp.com
Crowe Horwath, LLP, p. 11
Tel. 800-599-2304 www.crowehorwath.com
MCLE4LAWYERS.COM, p. 4
Tel. 310-552-5382 www.MCLEforlawyers.com
Law Offices of Alan D. Wallace, p. 61
Tel. 818-501-0133 www.expertwitnessre.com
DataChasers.com, p. 49
Tel. 951-780-7892 www.datachasers.com
Michael Marcus, p. 23
Tel. 310-201-0010 www.marcusmediation.com
Walzer & Melcher, p. 1
DepoSums Deposition Summaries, p. 43
Tel. 800-789-DEPO (800-789-3376) www.deposums.biz
Law Offices of Matthew C. Mickelson, p. 41
Tel. 818-382-3360 www.mickelsonlegal.com
Waronzof Associates, P. 67
Tel. 310-954-8060 www.waronzof.com
James R. DiFrank, PLC, p. 17
Tel. 562-789-7734 www.bardefense.net e-mail: [email protected]
Clinton E. Miller, JD, p. 54
Tel. 408-279-1034 www.millerjd.qpg.com
Thomson West, Back Cover
Tel. 800-762-5272 www.thompsonwestgroup.com
E. L. Evans & Associates, p. 6
Tel. 310-559-4005
Mr. Truck, p. 54
Tel. 925-625-4994 or 800-337-4994
White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 45
Tel. 818-981-4226 www.wzwlw.com
Forensic Expert Witness Association, p. 54
Tel. 949-640-9903 www.forensic.org
Thomas Neches & Company, p. 57
Tel. 213-624-8150 www.thomasneches.com
Witkin & Eisinger, LLC, p. 41
Tel. 310-670-1500
ForensisGroup Inc., p. 43
Tel. 626-795-5000 www.forensisgroup.com
Northwestern Mutual–The Beer Financial Group, p. 6
Tel. 818-887-9191 www.beerfinancialgroup.com
Zivetz, Schwartz & Saltsman, p. 59
Tel. 310-826-1040 www.zsscpa.com
Ninth Annual Environmental Law Fall Symposium
ON WEDNESDAY, NOVEMBER 10, the Environmental Law Section will host the Ninth
Annual Environmental Law Fall Symposium, featuring panels on managing media
and public relations in high-profile environmental cases, an overview of recent
Ninth Circuit decisions under CERCLA, and a postelection perspective of the Global
Warming Solutions Act. The lunch keynote speaker will be Thomas Girardi, giving
his perspective as one of the best-known plaintiff attorneys in the environmental
arena. The symposium will take place at the Sheraton Delfina Santa Monica, 530
West Pico Boulevard. Hotel valet parking is complimentary. On-site registration
will begin at 11:30 A.M., with the program continuing from noon to 4:35 P.M. The
registration code number is 010992. The prices below include the meal.
$50—government/public interest attorney who is an Environmental Law Section
member
$80—government/public interest attorney who is not a section member
$85—CLE+PLUS member
$150—Environmental Law Section member
$160—Real Property Section member
$180—LACBA member
$220—at-the-door
4 CLE hours
Environmental
Compliance in Real Estate
On Thursday, December 2, the Real
Property Section and the General Real
Property Subsection will host a program
featuring Roger J. Holt, who will provide a
practical overview of important
environmental regulations and issues that
are likely to affect transactional real
estate lawyers and their clients in
California. These issues include
Proposition 23, SB 375, CEQA, state and
local green building codes, and voluntary
private-sector sustainability initiatives.
The presentation will also cover trends
regarding environmental regulations
likely to impact California businesses.
This program will be available via
Webinar. Please check rules regarding
Complex Court Symposium
ON TUESDAY, NOVEMBER 16, the Los Angeles County Bar Association Litigation
Section and Labor and Employment Law Section, the Los Angeles Chapter of the
Association of Business Trial Lawyers, the Association of Southern California Defense
Counsel, and the Consumer Attorneys Association of Los Angeles will host a seminar
on the complex courts in California. Many of the 18 judges from the complex courts in
California, including all six Los Angeles complex court judges, are scheduled to
attend and participate. The program will provide insight into all aspects of complex
court litigation, including e-discovery, class certifications, JCCP matters, maintaining
and approving settlements, and conduct at trial. The seminar will take place at the
Omni Los Angeles Hotel, 251 South Olive Street, Downtown.
Valet parking costs $12. On-site registration will begin at 3 P.M., with the program
continuing from 3:30 to 7:30. Dinner will be served toward the end of the program.
The registration code number is 011046. The prices below include dinner.
$160—Litigation Section member
$160—ABTL, CAALA, and SCDC member
$180—LACBA member
$225—all others
2.5 CLE hours
how to register, view, and obtain CLE
credit for Webinars. The program will take
place at the Los Angeles County Bar
Association, 1055 West 7th Street, 27th
floor, Downtown. Parking is available at
1055 West 7th and nearby parking lots.
On-site registration and lunch will begin
at noon, with the program continuing from
12:30 to 1:30 P.M. The registration code
number is 011087. The prices below
include lunch.
$45—Real Property Section member
$55—LACBA member
$65—all others
1 CLE hour
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs
listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at
http://calendar.lacba.org/where you will find a full listing of this month’s Association programs.
closing argument
BY ASSEMBLYMEMBER MIKE FEUER, HOLLY J. FUJIE, AND REX S. HEINKE
Leveraging Justice with the Justice Gap Fund
MORE THAN SIX MILLION INDIGENT CALIFORNIANS face serious funding for legal aid programs. It authorizes the State Bar to “facillegal problems. There’s the domestic violence survivor who is afraid itate the professional responsibilities of members by collecting…volto go to her minimum wage job without the protection of a restrain- untary financial support for nonprofit organizations that provide
ing order. There’s the slumlord’s tenant who cannot get rid of the free legal services to persons of limited means.” Programs qualify for
roaches and rats that threaten his children’s health and safety. And funding through detailed annual applications and on-site monitoring
there’s the family struggling to care for an incapacitated grandpar- visits every three years that ensure that operations are efficient, serent whose medical care and daily needs have exhausted its energies vices are effective, and priorities reflect community concerns. By pigand its savings. These are true stories, and there are many more like gybacking on the existing IOLTA infrastructure, every penny donated
them. The people behind these stories desperately need legal help, and through the Justice Gap Fund goes directly to nonprofit legal aid organizations. The catch is, it only works if you contribute to it.
they will never be able to afford it on their own.
Pro bono service provides a key lifeline for
some people, and legal volunteers serve a crucial role in our justice system. But there is
Requests for assistance have skyrocketed, while funding
another way to assist every indigent Californian
in legal need, from Del Norte to El Centro, with
a simple, sweeping gesture of immeasurable
reductions have forced service providers to furlough or lay off staff.
impact: contributing to the Justice Gap Fund.
The Justice Gap Fund supports critical services to those most in need, helping them to
Sadly, that is where this great system has yet to reach its full
resolve their legal issues directly through self-help and community education, as well as through advice and counsel, courtroom represen- potential. Due to the recession, last year only a small percentage of
tation, and even impact advocacy. These services enhance indepen- California attorneys donated to the Justice Gap Fund. We need your
dence and stability for every person they touch, and they bring new help to reverse this trend. The Justice Gap Fund allows us all to stand
behind our justice system. Only through the engagement and parvitality to depressed communities.
Across California, nearly 100 nonprofit legal aid organizations ticipation of individual attorneys can the fund achieve its goal of
work tirelessly to help the disenfranchised, powerless, and poor. improving access to justice throughout California.
California attorneys enjoy unrivaled resources and opportunities.
They participate in every aspect of the legal process, from intakes to
appeals. Their wages do not begin to compete with the private sec- The Justice Gap Fund is one opportunity that California’s entire letor, and they have about 8,000 potential clients for every attorney on gal community can embrace and that brings resources to every one
the payroll, but the job does have one great compensation: The of our 58 counties. Skilled legal guidance is desperately needed to
attorneys know they truly make a difference in their clients’ lives. They defend the rights and protect the health and well-being of the voiceare protecting families, livelihoods, and communities—as well as less among us. Your contribution will advance the administration of
conserving judicial and social service resources that are stretched to justice while relieving the logjams clogging our courthouses.
We urge you to make a generous contribution to the Justice Gap
the breaking point. Put plainly, legal aid saves money and lives.
Legal aid in California is largely supported by private contribu- Fund. Contributions can be made as an add-on to your annual State
tions, government grants, and IOLTA (Interest on Lawyers’ Trust Bar dues by completing the appropriate line on the statement (either
Accounts) funding. Since 1982, the IOLTA program has leveraged the in hard copy or online). The new State Bar Web site is also equipped
tiny bits of interest earned on small and short-term client trust to accept online donations apart from the dues payment process, at
deposits into millions of dollars of legal aid funding. In the last three http://calbar.org/justicegapfund. You may also send a check payable
years, however, interest rates on these accounts have dropped lower to the State Bar of California to the attention of the Justice Gap Fund
than we have ever seen them, greatly reducing the flow of funding. at 180 Howard Street, San Francisco, California 94105. Staff are ready
■
Despite the key efforts of “leadership banks” that voluntarily pay to answer your questions at (415) 538-2098.
higher rates, this revenue has plummeted almost 70 percent since 2008.
At the same time, the economic crisis is putting unprecedented pres- Assemblymember Mike Feuer is majority policy leader of the California State
Assembly and chair of the Assembly Judiciary Committee. Holly J. Fujie,
sure on legal aid organizations. Requests for assistance have skyrocketed, while funding reductions have forced service providers to 2008-09 president of the State Bar of California, is a litigation shareholder
furlough or even lay off staff. These are conditions that just cannot in the Los Angeles office of Buchalter Nemer APC. Rex S. Heinke, head of the
national appellate practice at Akin, Gump, Strauss, Hauer & Feld LLP, is a forbe sustained. The resources are inadequate for the work that must be
mer member of the State Bar Board of Governors and chair of its Committee
done. And that is where you come in.
on Legal Services, Pro Bono, and Equal Access.
The Justice Gap Fund was enacted to create a new way to enhance
Associate runs a Key Facts
report to jumpstart a summary
judgment motion
Partner uses five minutes
at the airport to review the
evidence for tomorrow’s
deposition
Litigation Support Manager
is pleased with widespread
user-adoption, free training
and technical support
Paralegal finds documents,
sends them to West Case
Notebook, and annotates
the key sections
ORGANIZE • ANALYZE • COLLABORATE
West Case Notebook® helps you organize, analyze, and collaborate on your
cases with unprecedented efficiency and thoroughness. Accessible anytime,
anywhere – so that team members can easily gather, annotate, search and
review:
• Key facts
• Documents
• Transcripts
• Pleadings
• Legal research
• And more!
To learn more about how West Case Notebook can benefit your practice,
call 1-800-762-5272 or visit west.thomson.com/casenotebook.
© 2010 Thomson Reuters L-360258/6-10
Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters.

November 2010 - Los Angeles County Bar Association

Transcription

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