November 2005 - Los Angeles County Bar Association

Transcription

Semiannual Guide to Expert Witnesses
November 2005 / $4
State
Lines
E A R N MCLE CR E D I T
Federal versus
State Disability
Law page 31
Los Angeles lawyer
Paul J. Watford
discusses the
commerce clause and
the Rehnquist Court
page 24
PLUS
Allocating Repair Costs page 14
Lemon Law Arbitrations page 19
Trademark Law and the Internet page 38
November 2005
Vol. 28, No. 9
FEATURES
24 State Lines
BY PAUL J. WATFORD
The Supreme Court’s evolving commerce clause jurisprudence seems to have taken a
U-turn in Raich
31 Challenging Barriers
BY EVE HILL AND SHEILA KHAN-VARIBA
Unlike the Americans with Disabilities Act, California law allows parties to seek
damages for discrimination by private businesses
Plus: Earn MCLE credit. MCLE Test No. 142 appears on page 33.
38 Search Terms
BY STEVEN D. ATLEE AND BRIAN F. MCMAHON
The lawful use of trademarks in search engines may ultimately hinge on evolving
standards of “initial interest confusion”
LosAngelesLawyer
45 Special Section
Semiannual Guide to Expert Witnesses
The magazine of
The Los Angeles County
Bar Association
DEPARTMENTS
Cover photograph by Tom Keller
10 Barristers Tips
Working with court-appointed attorneys in
probate matters
85 Computer Counselor
Useful legal Web sites for California
lawyers
BY JOHN F. L. POMEROY
BY NANCY A. KAISER
14 Practice Tips
The allocation of repair obligations in form
leases
88 LACB Foundation
2004-2005 Fund Drive Results
BY WALTER R. ZAGZEBSKI
92 Closing Argument
The unmasking of a legal urban legend
19 Practice Tips
Handling Better Business Bureau vehicle
claims
BY DAVID HAZELKORN
87 Classifieds
BY MICHAEL B. RAINEY
90 Index to Advertisers
91 CLE Preview
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4 Los Angeles Lawyer November 2005
ELAINE R. ABBOTT
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JOHN C. MCBRIDE
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LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a
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AFFILIATED BAR ASSOCIATIONS
BEVERLY HILLS BAR ASSOCIATION
BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC.
CENTURY CITY BAR ASSOCIATION
CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES
CULVER/MARINA BAR ASSOCIATION
EASTERN BAR ASSOCIATION
GLENDALE BAR ASSOCIATION
IRANIAN AMERICAN LAWYERS ASSOCIATION
ITALIAN AMERICAN LAWYERS ASSOCIATION
JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES
JOHN M. LANGSTON BAR ASSOCIATION
JUVENILE COURTS BAR ASSOCIATION
KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA
LAWYERS' CLUB OF LOS ANGELES COUNTY
LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES
LONG BEACH BAR ASSOCIATION
MEXICAN AMERICAN BAR ASSOCIATION
PASADENA BAR ASSOCIATION
SAN FERNANDO VALLEY BAR ASSOCIATION
SAN GABRIEL VALLEY BAR ASSOCIATION
SANTA MONICA BAR ASSOCIATION
SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA
SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC.
SOUTHEAST DISTRICT BAR ASSOCIATION
SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION
WHITTIER BAR ASSOCIATION
WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
From the Chair
BY R. J. COMER
hy did you become a lawyer? “To help people,” many have answered—
some of them honestly. “To make money,” a few confess—all of
them honestly. Litigators sometimes claim that they love to argue. Few
lawyers say that they thought becoming a lawyer would make them
happy, but an expectation of happiness lay beneath all the ostensible
reasons for becoming a lawyer.
The “pursuit of happiness” ranks right up there with the other unalienable
rights of life and liberty. Yet, attorneys are notoriously unhappy. Perhaps the
Declaration of Independence should have included an explanatory footnote that the
pursuit of happiness is alienable from some classes of people—such as lawyers and
failed screenwriters, and especially lawyers who are also failed screenwriters.
Admittedly, some lawyers are deeply fulfilled by representing deserving clients
on meaningful cases. How many of those lawyers do you know? Contrary to popular cliché, the money some lawyers make does buy happiness, for a time. Purchased
happiness, however, loses value faster than a new house sliding down a hill, because
we quickly get used to the money. Our families get used to our money. Our kids really
get used to our money. And soon it’s not about having money, it’s about making
money. At this point, for many lawyers, what was once a calling slips past being a
career and becomes merely a job.
None of this is news. In her 2004 book Lawyer, Know Thyself, Susan Swaim Daicoff
provides a survey of studies done over two decades showing that attorneys suffer from
diagnosable depression at a rate that is at least twice the rate in the general population. Attorney dissatisfaction manifests itself in substance abuse, legal malpractice, professional incivility, medical complications attributable to stress, and family problems.
Daicoff suggests adapting one’s professional life to fit the not-very-endearing personality traits that she claims lawyers tend to have in common. By contrast, the mandatory CLE sections on stress management typically accept without question that practicing law is stressful. Instead of sympathizing with your secret desire to transform
your in-box chores into a Burning Man festival, CLE providers typically offer
relaxation techniques that are about as useful as a horse expert providing emergency
management during a hurricane.
The bottom line is that sometimes, oftentimes, being a lawyer just blows. Should
we, therefore, abandon all hope ye who enter here? Yes. So long as we think practicing law should bring happiness, we are bound to be dissatisfied.
Having abandoned that pesky rascal hope, we can now pursue satisfaction as a
scientifically attainable outcome of practicing law. This year Emory University neuroscientist Gregory Berns, in his book Satisfaction: The Science of Finding True
Fulfillment, distinguished satisfaction from happiness because achieving satisfaction
requires us to engage in activities that present us with novelty and challenge.
According to Berns, the neurotransmitter most associated with pleasure, dopamine,
is released when we encounter and overcome something novel and challenging.
A lawyer can easily create a professional rut by remaining too long in the comfort
zone of what that lawyer knows and does well. We are in demand. The work becomes
routine as the demands increase exponentially. Then we feel overwhelmed. So we work
harder at the same old thing until we have dug a deeper, increasingly boring hole.
Thus, the “feel good” goal of our profession should be finding evermore novel and
challenging ways to practice law within our areas of expertise and focus. Consider teaching a CLE course in your practice area. Defense attorneys might consider taking on a
plaintiff’s case—very selectively, of course. Here’s an idea: Write an article for Los Angeles
Lawyer magazine. Satisfaction awaits.
■
W
Professional
Arbitrator
and Mediator
Steven Richard Sauer, Esq.
“He is truly a master
in his art.”
Settled over 5,000 Federal
and State Litigated Cases
323.933.6833
Fax
323.933.3184
E-mail
[email protected]
4929 Wilshire Blvd., Suite 740 Los Angeles, CA 90010
R. J. Comer is a partner at Allen Matkins Leck Gamble & Mallory LLP, where he specializes in land
use law and municipal advocacy. He is the chair of the 2005-06 Los Angeles Lawyer Editorial Board.
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AL7993
Barristers Tips
BY JOHN F. L. POMEROY
Working with Court-Appointed Attorneys in Probate Matters
PROBATE MATTERS OFTEN INVOLVE parties who lack, or are asserted
to lack, the mental capacity to make financial decisions or personal
care decisions. In these situations, courts typically appoint an attorney to represent the allegedly incapacitated party. These attorneys,
taken from the Probate Volunteer Panel,1 are referred to as PVP
counsel. Attorneys whose work involves conservatorships, guardianships, or any other proceeding in which the capacity of a party is at
issue will encounter PVP counsel. Attorneys may encounter PVP
counsel in other situations as well, because a court may appoint a PVP
in one of various roles in a matter in which the court determines that
such an appointment is necessary to protect the interests of a party
or an estate.
Working with PVP attorneys presents challenges and opportunities. Among the challenges are determining how the PVP fits into
the overall picture: Is the PVP an ally? An adversary? An extension
of the court? While the matter proceeds, how may the relationship
with the PVP be conducted so as to best serve the client? If the PVP
is opposed to the client’s position, how can an attorney work around
the PVP?
PVP attorneys are appointed and discharged upon order of the
court. If there is a significant estate, the PVP’s fees are paid out of the
estate. In general, a PVP counsel is appointed whenever there are questions as to a party’s capacity. This occurs most often in conservatorship matters and in the various matters that can be described as
conservatorship substitutes (for example, petitions for approval of a
transaction when a party is asserted to lack capacity and petitions
related to healthcare decisions). PVP counsel will always be appointed
to represent a proposed conservatee when a petition for appointment
of a conservator of the person or estate is pending or when a substituted judgment petition is pending. In matters that substitute for
conservatorships, a PVP counsel will be appointed to represent the
person who is asserted to lack capacity. PVP counsel are sometimes
appointed in guardianship of the estate proceedings but rarely in
guardianship of the person proceedings. Appointment may also be
made in any other case in which the court determines that it would
be in the best interests of any party or estate.
For example, a recent guardianship of the estate matter involved
a dispute between parents over how to manage the significant income
earned by the minor. On an attorney’s recommendation, the court
appointed a PVP counsel for the minor while the guardianship petition was pending because of danger that the minor’s estate would be
dissipated. Had the estate been smaller, the appointment likely would
not have been made.
The appointment lasts while a particular petition is pending, and
the PVP is often discharged upon resolution of the pending petition.
In some matters, however, the PVP will stay on after the petition is
determined, particularly if disputes between the parties remain, or if
another petition will soon be filed about which the court would prefer a report from the PVP who is already familiar with the matter. Upon
determination of a petition, you may have the opportunity to argue
either in favor of or against the continued service of the PVP. If the
PVP has recommended against your client’s position, and the matter
is ongoing, you may get better results in the future if that PVP is no
longer involved.
Role of the PVP
The PVP counsel performs several functions. The primary function
of a PVP is to represent the interests of the client. After that, however, the PVP also acts as the “eyes and ears of the court.” This role
was so described by Judge Thomas Stoever, who recently retired
from the probate department in the Central District. The PVP reports
to the court on the condition of the client and on the person’s wishes
regarding a pending matter. In some cases, this overlaps with the duties
of the court investigator. For example, when a petition for appointment of a conservator is pending, the proposed conservatee will
likely be visited separately by a court investigator as well as a PVP,
who separately report to the court.
The PVP also recommends to the court how to rule on a pending
petition. The PVP’s assistance to the court in resolving a matter,
however, remains the PVP’s secondary duty after representing the best
interests of the client. This recommendation carries great weight. For
this reason alone, you should treat the PVP well.
The PVP’s recommendation is usually provided to the court in the
form of a written report as well as an appearance at the relevant hearing. The preparation of the report is often the most important function of the PVP. To prepare that report, the PVP reviews the evidence,
speaks with parties, and visits with the client. There are a number of
ways that an attorney can assist the PVP in preparing that report, primarily by ensuring that evidence and witnesses are available.
In contested matters, the PVP may be called upon to assist in resolution, including engaging in negotiations and even mediation with
the opposing parties. Finally, in unusual cases in which the PVP
determines that the client is in danger of either physical harm or imminent loss of assets, the PVP may commence proceedings on behalf of
the client. The PVP may, for example, seek the appointment of a conservator, removal of a conservator, or orders protecting the client’s
assets from dissipation.
The manner in which you should work with the PVP depends
on the circumstances. As with all probate matters, the situation
changes dramatically when a matter becomes contested. In addition,
the circumstances depend on which parties are involved and who
has retained counsel. When working with the PVP, it is important
to see the attorney as an extension—the eyes and ears—of the
court. Although the PVP will advocate a position before the court
(and you should be prepared to advocate a contrary position if necessary), the PVP may also assist the court in deciding the pending
matter. In a contested matter, you may even find that the PVP is havJohn F. L. Pomeroy is a Los Angeles attorney with practice experience in
estate planning, conservatorships, and guardianships.
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David L. Ray
Saltzburg, Ray & Bergman, LLP
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Government Enforcement Receivership Actions
Receivership
Partition Actions/Marital Dissolution
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FAX (310) 481-6707
TEL
e-mail: [email protected] • www.srblaw.com
12121 Wilshire Boulevard, Suite 600, Los Angeles CA 90025
ing too much contact with one party, to
such an extent that a judge may consider it
ex parte. If you treat the PVP as an adversary, however, you may later find that the
PVP’s recommendation to the court is not in
line with your client’s wishes. For this reason, the PVP should be treated with respect.
In uncontested matters in which you represent the petitioner, your goal is for the PVP
to do two things: report that there are sufficient factual grounds for the relief that you
seek and recommend approval of your petition. You should provide the PVP with as
much information as needed and make all
parties to the matter and all documents and
other sources of evidence available. Initially,
you may find that the PVP has not received
all pleadings. It is good practice to send the
PVP copies of all pleadings immediately upon
appointment. In many cases, the appointment happens a short time before the hearing. The PVP will be appreciative if, thanks
to the pleadings you provided, he or she has
an extra day or two to work on the matter.
For the same reason, it is important to be
responsive to requests from the PVP.
If the matter is contested, you may need
to be more persuasive with the PVP, while
remaining deferential and respectful. This
can be a tricky balance. You should try to
move the PVP to your client’s position and
against the position taken by an adversarial
party. Having a PVP on your side can make
matters easier for your client. You may find
that the PVP takes positions, in opposition to
an adversary, that your client would otherwise
take. In effect, the PVP can fight your battle
for you and allow your client to save capital
for a different dispute. On the other hand, if
the PVP opposes your client’s position, you
may find yourself arguing at a hearing against
opposing counsel and the PVP. This is an
uphill battle, and your client may best be
served with a settlement that leaves as little
as possible for the court to decide.
Working with a PVP provides an attorney
with less experience in probate matters good
opportunities for education. Attorneys on
the panel have years of experience in the
field and are appointed by the court because
they are respected. With regard to the matter at hand, the PVP may educate you about
solutions that you had not considered. More
generally, you may also learn new procedures or approaches that you can apply to
other matters.
The bottom line is that you should treat
the PVP with the professional courtesy that
you would provide to a colleague and the deference that you would provide to a judicial
officer.
■
1 See generally LOS ANGELES SUPER. CT. R. 10.173, and
app. E.
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Practice Tips
BY WALTER R. ZAGZEBSKI
The Allocation of Repair Obligations in Form Leases
NATURAL DISASTERS such as earthquakes and mudslides are an
ever-present risk in California. When they happen, landlords and tenants in leased property are often left fighting over who is required to
pay the repair bills and government-mandated upgrades.
Before 1994, the terms of a typical net lease expressly provided
that a tenant was required to pay for all repairs to leased property,
regardless of whether the tenant was big or small, regardless of the
length of the lease or amount of rent paid under the lease, and
regardless of the cost. Thus, when an earthquake or hazard damaged
leased property, many small tenants faced repair bills that were huge
in comparison to the rents paid under their leases. The California
Supreme Court sought to remedy this problem in Hadian v. Schwartz1
and Brown v. Green2 by creating a judicial balancing test that allowed
certain tenants to escape onerous repair burdens despite express
lease terms to the contrary.
This balancing test forced courts to look at the total repair cost
in comparison to the total rents payable under the term of the lease
and the length of the lease, among other factors, to decide whether
the landlord or tenant should pay the cost of repair. However, it opened
the door for protracted litigation because neither landlords nor tenants could rely solely on the terms of their leases to determine who
was required to repair leased property. The appellate courts have not
curtailed the uncertainty created by this balancing test because there
is no reported court of appeal decision that gives additional guidance.3
In an apparent attempt to respond to this test and restore confidence that their leases would be applied according to their terms, the
AIR Commercial Real Estate Association amended its form net leases
twice—once in 2001 and again in 2004—to make the provisions dealing with code compliance and repair obligations more tenant-friendly.
But neither the 2001 nor the 2004 AIR Multi-Tenant Net Leases foreclose the possibility of litigation under Hadian and Brown; instead,
they create new ambiguities that raise the likelihood of litigation.
However, adopting a more simple and streamlined approach to the
language of form net leases may provide landlords and tenants with
more confidence that the language of their form leases will be applied
by the courts without alteration.
RICHARD EWING
The Supreme Court Balancing Test
In Hadian and Brown, the California Supreme Court developed a sixfactor test to invoke when deciding whether the tenant or landlord
should pay for government-mandated repairs and upgrades, even when
a lease expressly provides that the tenant must pay for all repairs:
1) The ratio of the total cost of the repair to the total rent payments
required for the term of the lease.
2) The length of the lease.
3) A comparison of the benefit of the repairs to the lessee versus the
reversionary benefit to the landlord.
4) Whether the repair is structural or nonstructural.
5) The degree to which the lessee’s use and enjoyment of the premises
will be interfered with during the repair.
6) The likelihood that the parties anticipated the application of the
particular law or order involved.4
In Hadian, the tenant leased a very small space to operate a bar
and cabaret. The lease was for three years at $650 per month with
one five-year option to renew at a $800 per month, which the tenant exercised. During the five-year option period, the city issued an
order requiring a seismic upgrade of the property. The cost of the
upgrade was more than $30,000. The supreme court held that the landlord was required to make the repairs despite the fact that the express
terms of the lease imposed the burden on the tenant.
In applying that six-factor test, the court found that the repair cost
amounted to about 150 percent of the amount of the total lease payments under the initial three-year lease term and nearly half the total
lease payments under the extended term. The initial lease was also a
relatively short-term lease. As a result, the court decided that the first
two factors weighed in the tenant’s favor. The court decided that the
third factor also favored the tenant because the landlord stood to gain
far more benefit over the life of the repairs than the tenant. Further,
because the repairs were structural in nature and the tenant’s business suffered as a result of the repairs, the court decided that the fourth
and fifth factors favored the tenant. Finally, because the tenant was
unsophisticated and did not contemplate incurring the repairs at
issue, the court determined that the sixth factor also favored the tenant. As a result, the court held that the tenant could not be required
to incur the costs of the repairs.
Walter R. Zagzebski is a partner with Gaims, Weil, West & Epstein, LLP, and
practices real estate litigation. He thanks his colleagues Kenneth Feingold,
Damon Rubin, Marc Epstein, and Sander Zagzebski for their input.
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AL8354
By contrast, in Brown, the tenant operated
a large furniture business and was the sole tenant of the leased property. The tenant entered
into a 15-year lease with a total of $5 million
in rent paid over the term of the lease. During
the lease term, public officials inspected the
property and determined that asbestos had
begun to flake in one area of the leased property, requiring a repair and cleanup costing
$250,000. The repair cost was only 5 percent
of the rent paid under the lease, and the lease
was relatively long term. Therefore, the court
decided that the first and second factors
weighed in the landlord’s favor. The court
considered the third factor, a comparison of
benefits, to be neutral. There was substantial
time remaining on the lease, thus providing
the tenant with substantial benefit of the
repair. But the court also recognized a reversionary benefit to the landlord because the
repair would permanently remove an environmental hazard from the property. The
court considered the fourth factor to be in the
tenant’s favor because the repair at issue was
structural. The court found the fifth factor to
be in the landlord’s favor because the tenant
was able to mitigate the effects of the repair
on its business by closing off the affected
portion of the property and continuing operations with little disruption. The court also
considered the sixth factor to favor the landlord because, although there was no evidence
that the parties contemplated the exact repair
at issue, the tenant was an experienced lessee
who fully understood the terms of commercial leases. In weighing the factors, the court
required the tenant to incur the cost of the
repair.
The Hadian and Brown balancing test
resulted in a rule of thumb that big anchor
tenants with sophisticated management were
generally required to undertake substantial
repair obligations, while smaller, short-term,
unsophisticated tenants could likely escape
even potentially small repair burdens. As for
the numerous tenants who fell in the middle,
the court created uncertainty and the likelihood of protracted litigation.
The New AIR Cost-Sharing Formula
After Hadian and Brown, the AIR forms
were amended in 2001 and 2004 to create a
new approach to allocating repair burdens.
The repair burdens under the new forms
were addressed in two separate lease provisions: Paragraph 2.3, addressing legal compliance, and Paragraph 7, addressing maintenance and repairs.
Paragraph 2.3 of the 2001 form provides
a definition of “Applicable Requirements”
which essentially includes every type of law,
ordinance, code, or order that could possibly
affect the property. It also defines “Capital
Expenditure” as every type or alteration,
modification, remediation of hazardous substances, or any other type of upgrade to the
property mandated by the Applicable
Requirements. In the 2001 form, the landlord
absolutely warrants that the property was
in compliance with the Applicable Requirements at the time each improvement was
made. The tenant is advised to inspect the
property and is given six months after the
commencement of the lease to notify the
landlord if the property does not fully comply. If the tenant notifies the landlord, the
landlord is required to make any necessary
repair at its expense. Otherwise, the tenant
must make the repair.5 In the 2004 form, the
landlord’s absolute warranty is replaced by a
warranty limited to the best of the landlord’s
knowledge,6 meaning that the landlord is
only required to repair property for prior
noncompliance if it had knowledge that the
property did not comply.
Under both the 2001 and 2004 forms, if
the Applicable Requirements change when the
tenant is in possession, requiring a Capital
Expenditure, the following two rules apply:
1) If the required expenditure is caused by a
specific and unique use by the tenant, a change
in the intensity of the tenant’s use, or the
tenant’s alteration of the premises, the tenant
must either cease the changed use or pay for
the repair (with some minor exceptions).7
2) If the required expenditure is not caused
by a tenant’s specific or unique use, such as
a seismic upgrade, the parties shall “allocate
the obligation to pay for the portion of such
costs reasonably attributable to the premises
pursuant to the formula set out in Paragraph
7.1(d).”8
Paragraph 7.1 addresses which party must
pay for general repairs and maintenance to the
property, such as maintaining heating and
ventilation, boiler and pressure valves, and
any other type of utility equipment.9 Paragraph 7.1(d) states that if any utility equipment covered by Paragraph 7.1 cannot be
repaired at a cost that is less than 50 percent
of the amount it would cost to replace it as
new, the item shall be replaced and the
replacement cost prorated between the parties with the tenant’s share equal to 1/144th
the total cost times the number of months
remaining on the lease.10
Both the 2001 and 2004 forms are vulnerable to judicial redrafting under Hadian
and Brown. First, the language in Paragraph
2.3 that attempts to incorporate the costsharing formula in Paragraph 7.1(d) is
ambiguous. It would seem that the drafters
intended that the allocation formula of
Paragraph 7.1(d) apply to all capital expenditures other than those involving prior noncompliance for which the landlord breached
its warranty. But the express language of
Paragraph 7.1(d) provides that the alloca-
tion formula does not apply unless a replacement is required because the repair cost is
greater than 50 percent of the replacement
cost. Does this mean that the tenant must pay
the entire cost for all Capital Expenditures
that are less 50 percent of replacement cost,
just as the tenant would be required to do
with utility costs under Paragraph 7.1(d)?
Or, was it the intention of the 2001 and 2004
forms to skip the 50 percent triggering language in Paragraph 7.1(d) and assume that the
allocation formula applies to all Capital Expenditures made necessary by changes to the
Applicable Requirements that are not caused
by a tenant’s special use? This ambiguity
leaves the door open for the courts to apply
Hadian and Brown.
Second, the 2004 form has created a new
problem with the change from an absolute
warranty of the landlord’s prior compliance
to a warranty limited to the best of the landlord’s knowledge. Under the 2001 form, if a
repair became necessary because the property
was not in compliance as warranted, the
landlord was forced to incur the costs of the
repair, assuming the tenant gave proper notice.
Otherwise, the the tenant had to bear the
cost. There was no possibility of a third
option. But under the 2004 form, it is unclear
which party is responsible when the property
was not in compliance with the Applicable
Requirements at the time each improvement
was made, but the warranty was not breached
because the landlord had no knowledge.
Nothing in Paragraph 2.3 addresses who
must pay for these repairs. Even Paragraph
2.3(b), the section that makes reference to the
cost-sharing formula in Paragraph 7.1(d),
does not apply because by its terms it only
applies when the Applicable Requirements
have changed during the tenancy. Thus,
Paragraph 7, which addresses general repair
burdens, apparently applies.
Paragraph 7 imposes a general repair burden on the tenant but also provides that the
landlord must keep the “foundations, exterior
walls, [and] structural conditions” in good
repair.11 Thus, when the landlord does not
breach its warranty for noncompliance under
the 2004 form, it appears that if the mandated
repair is structural the landlord must incur the
entire cost, and if the repair is nonstructural
the tenant will have to pay the entire cost. This
all-or-nothing approach raises the risk that a
court would apply Hadian and Brown, allowing smaller tenants to escape repairs that are
onerous in comparison to the rent they pay.
Finally, the cost-sharing allocation formula expressed in Paragraph 7.1(d) is not tied
to the factors that the supreme court found
most important in Hadian and Brown and
thus remains vulnerable to judicial revision.
If the tenant in Hadian had been subject to
the 2001 or 2004 form (and assuming that the
cost-allocation formula in Paragraph 7.1(d)
applied despite its ambiguity) the tenant’s
share of the repair cost would have been
$15,550 (a total repair bill of $34,450.26
divided by 144 and multiplied by the 65
months remaining on the lease). That is a
pretty stiff bill for a tenant that was paying
$650 per month in rent and had just exercised
a renewal option at $850 per month for five
years. It is likely that the supreme court would
have struck down this repair burden.
For these reasons, even when the 2001 and
2004 forms are used, courts are likely to
look to Hadian and Brown to resolve disputes
between landlords and tenants regarding government-mandated repairs. This means that
the likelihood of protracted litigation continues to exist. However, it is possible to
overcome the danger of judicial intervention
by creating a cost-sharing formula that focuses
on the factor the supreme court found most
important in Hadian and Brown—the ratio
of the cost of repair to the total rent paid or
to be paid under the lease. If the tenant’s
share of a repair obligation is reasonable in
comparison to the lease payments, it will
most likely be upheld. Paragraph 2.3(a),
which requires the tenant to pay for all
Capital Expenditures made necessary by the
tenant’s special use of the premises, should
withstand judicial scrutiny. But Paragraph
2.3(b), which addresses all other Capital
Expenditures, should be amended to include
language similar to the following:
The cost of any Capital Expenditure or
repair (other than a Capital Expenditure or repair involving a breach of
warranty or the tenant’s special use
as set forth above) shall be allocated
between the landlord and tenant with
the tenant’s share of the cost being
either the total cost or an amount
equal to 5 percent of the total amount
of rent payable under the entire term
of the lease (excluding unexercised
options), whichever is less.
The exact percentage used in the above
paragraph can, of course, be negotiated
between the parties. The landlord, however,
should be advised not to demand too high a
percentage, or a court may find it overreaching and strike it down. The parties can
also negotiate other factors, such as the extent
of the landlord’s warranty of existing compliance and repairs and upgrades caused by
the tenant’s use. If landlords and tenants
adopt this approach to allocating repair burdens, the likelihood of protracted litigation
and the risk of a court rewriting the lease
should be minimized.
■
1
Hadian v. Schwartz, 8 Cal. 4th 836 (1994).
2
Brown v. Green, 8 Cal. 4th 812 (1994).
Lower court decisions that have cited Hadian and
Brown have not relied upon, expanded upon, or provided any further guidance for applying their balancing test. See, e.g., SDC/Pullman Partners v. Tolo Inc.,
60 Cal. App. 4th 37 (1998) (holding that a lease term
requiring a tenant to clean up all toxic substances did
not require a tenant to clean up soil that had minimal
toxicity and was not subject to a clean-up order). The
court of appeal relied on Hadian and Brown solely for
the proposition that the circumstance surrounding a
lease must be examined to determine the scope of lease
obligations.
See also Prudential Ins. Co. of Am. v. L.A. Mart,
68 F. 3d 370 (1995), in which a landlord obtained engineering reports recommending seismic upgrades to
leased property. The property was in compliance with
all statutory laws and was not subject to a repair
order. The landlord demanded that the tenant make and
pay for the recommended upgrades, the tenant refused,
and the landlord sued, claiming the tenant was responsible for the upgrades under Hadian and Brown. The
court of appeal ruled against the landlord and distinguished Hadian and Brown, holding that in both of
those cases there was a government-mandated repair
order.
4 Brown, 8 Cal. 4th at 830-33.
5 2001 AIR Multi-Tenant Net Lease [hereinafter 2001
Lease] ¶¶2.3, 2.4 (on file with author).
6 2004 AIR Multi-Tenant Net Lease [hereinafter 2004
Lease] ¶2.3, available at http://www.airea.com/Forms
_PDF/Multi-Tenant-Lease%20Net%2005.PDF.
7 2001 Lease, supra note 5, ¶¶2.3(a), (c).
8 Id. at ¶2.3(b).
9 Id. at ¶7.1(a).
10 Id. at ¶¶2.3(b), 7.1(d).
11 2004 Lease, supra note 6, ¶7.1(a), (b).
3
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San Diego
What law school ought to be.
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Practice Tips
BY MICHAEL B. RAINEY
Handling Better Business Bureau Vehicle Claims
A CALIFORNIA ATTORNEY MAY at some time represent a client in a for repair, if the manufacturer has conspicuously disclosed the proBetter Business Bureau (BBB) arbitration for a vehicle alleged to be visions of the Lemon Law and provided a contact address, the condefective. The requirements of California Civil Code Section 1793.22, sumer must notify the manufacturer of the need for the repair.
The second category of nonconformity is defined as service on the
commonly called the Lemon Law, are of primary importance in this
representation. When representing a client in a Lemon Law arbitra- vehicle for the “same nonconformity” that requires four or more
tion, counsel should build the case around the requirements and repairs. Like the first category of more serious or potentially fatal
educate the client as much as possible regarding the legal standards defects, if the manufacturer met its notice responsibility, the consumer
of a Lemon Law arbitration. When these standards are met, the has the responsibility to put the manufacturer on notice of the repair.
Finally, under either category, the vehicle must be out of service
client is prepared, and the typical defenses presented by the manufacturer’s representative are adequately addressed, counsel may feel for a cumulative period of 30 days. This period is measured in calmore confident of a successful resolution.
The Lemon Law, formally known as the
Tanner Consumer Protection Act, applies to
There are three critical components or elements that give rise to a
new vehicles registered in California. A new
vehicle is one primarily used for personal or
household transportation; a business vehicle
rebuttable presumption a new vehicle is a lemon. These elements
with a gross vehicle weight of less than 10,000
pounds (as long as the buyer/lessee does not
have more than five other vehicles registered in
are time/mileage, the number of attempts to repair and the time
California); the chassis, cab, and propulsion
part of a motor home; dealer owned vehicles;
demonstration vehicles; other vehicles sold
the vehicle has been out of service, and materiality of the defect.
with a new car warranty; and new purchased
or leased vehicles.1 The Lemon Law does not
apply to off-road vehicles, the part of a motor
home primarily used for human habitation, or vehicles that have been endar days and is not required to be consecutive.
Material defect. As Civil Code Section 1793.22(e)(1) states, the
abused. Examples of abuse would be street or off-road racing, serinonconformity must adversely affect the “use, value, or safety of the
ously overloading a vehicle, and avoiding necessary maintenance.
There are three critical components or elements that give rise to vehicle.” The critical element of materiality is usually the most difa rebuttable presumption a new vehicle is a lemon. These elements ficult to prove. Plastic body trim that is out of alignment, for examare time/mileage, the number of attempts to repair and the time the ple, is not material. A failed antilock braking system or failed engine
vehicle has been out of service, and materiality of the defect. If the clearly is.
Minor body defects, rattles, squeaks, and interior defects routinely
consumer meets the statutory criteria of Section 1792.22, he or she
is entitled to a presumption that the vehicle is defective. If the man- do not qualify. However, in one case, a vehicle was presented to the
ufacturer cannot rebut the presumption, the consumer is entitled to dealer on numerous occasions for a squeak. At every presentation,
a replacement vehicle or refund of the purchase price minus the rea- the dealer carefully inspected, analyzed, and repaired the vehicle. One
time the dealer replaced a right control arm. The next time it replaced
sonable use expense.2
Time/mileage. The statutory period of the presumption is 18 the left control arm. On another occasion it found chafing brake lines.
months or 18,000 miles, whichever occurs first. The time runs from The vehicle was out of service for 37 days in one year. The defect was
the date of delivery, which is usually on the sales contract or parts order not considered material in the BBB arbitration, but when counsel
if the car was purchased with cash. If the last repair event comes brought suit, the manufacturer offered to repurchase the vehicle.4
toward the end of the statutory time period, the statute is satisfied if
The defect must be the primary reason for returning the vehicle.
the vehicle enters the repair facility before the deadline of 18 months The squeak in the example, one should note, appeared to be only a
or 18,000 miles. The crucial date is the date the vehicle enters the repair symptom of a number of defects. Often, whether the BBB arbitrator
facility.
sees the defect as material may depend upon the persuasive power of
Number of attempts to repair. There are two general categories counsel. The gravity of some dangerous defects may not be obvious.
of nonconformity.3 The first category of nonconformity is a condition that is likely to lead to death or serious bodily harm. The man- Michael B. Rainey is an attorney in Woodland Hills and a professor at
ufacturer or its agent, usually a dealership, has two or more oppor- Pepperdine University. His practice focuses on mediation and arbitration,
tunities to fix the vehicle. In conjunction with presenting the vehicle including products, real estate, personal injury, and transactions.
Los Angeles Lawyer November 2005 19
For example, if the alleged defect is that the
vehicle stalls at inopportune times, it may
require explanation as to why this problem
adversely affects the use, value, or safety of
the vehicle. The car may stall on train tracks
or on a busy freeway.
Once the consumer meets the statutory criteria, the vehicle is presumed defective and the
manufacturer has the burden to rebut the
presumption.
The Arbitration Process
The BBB is separate from the California
Department of Consumer Affairs and is a
private business entity that engages in treaties
and agreements with dealers and manufacturers to provide arbitration. There is no cost
for the consumer. If he or she prevails, the
manufacturer is bound by the award. If the
consumer loses, he or she has alternatives.
In conjunction with the process of notification required under Civil Code Section
1792.22, the claimant can also request a separate BBB hearing. The claimant can handle
the case by himself or herself or engage counsel. The claim can be processed in several
ways. The consumer or counsel can call the
BBB Auto Line at (800) 955-5100. A claim
can also be processed online at http://www.dr
.bbb.org/autoline/caprocess.asp. The BBB
can also be contacted in writing at BBB Auto
Line, 4200 Wilson Boulevard, Suite 800,
Arlington, VA 22203-1838.
The arbitration process can involve both
parties presenting their cases in person, but
there are alternatives. The consumer can
request to present his or her statement and evidence by phone or in writing. If the consumer appears in person, the manufacturer
has the choice of appearing in person, by
phone, or in writing. If the consumer chooses
the phone, the manufacturer is restricted to
the phone or writing. If the consumer chooses
to present his or her case only in writing,
the manufacturer is likewise limited to presenting its case in writing. When one of the
parties does not appear in person, the BBB
Arbitration Rules, which are available online,
require the arbitrator to provide a speaker
phone or conference call so all the parties can
effectively participate in the hearing.
The consumer presents his or her case,
rests, and then the manufacturer presents its
case. The key to a successful resolution is
how the consumer or his or her counsel presents the facts.
The Consumer’s Presentation
The statutory presumption arises when the
consumer or the consumer’s counsel has
shown the three criteria called for in Section
1793.22. They are that the new vehicle falls
within the claim period; the consumer has put
the manufacturer on notice and has presented
the vehicle to the manufacturer or its agent
for the requisite number of times and it has
been out of service for the required days;
and the nonconformity adversely affects the
use, value, or safety of the vehicle.
Assuming counsel has prepared the proper
BBB paperwork, on the date of the arbitration, the consumer will have to show the
BBB a valid driver’s license, vehicle registration, and proof of insurance. It is probable the
arbitrator and/or the manufacturer will want
to take a test drive. For all parties, it is important to have proof of current license, vehicle
ownership, and current insurance.
The first step—the statutory period—is
adequately proven by presenting the arbitrator and manufacturer with copies of the
sales contract to indicate the date of delivery.
Photos of the odometer, repair orders, or
making the vehicle available to the arbitrator
can establish the mileage. This is usually the
easiest element to prove.
The next element is proof of the duration
and notice to the manufacturer. Copies of
the repair order or orders, in chronological
order, with a summary of the number of days
the car was out of service will be required for
the consumer to prove the time the vehicle
was out of service. The consumer will also
have to provide evidence that he or she put
the manufacturer on notice. A copy of the letter should suffice.
The last element—showing that the nonconformity adversely affects the use, value,
and safety—is often the most difficult. The
consumer has purchased an expensive commodity. When the consumer discovers a
defect, he or she does not want to be placated.
He or she does not want to be told the manufacturer has a range in which the vehicle can
be conforming.5 The consumer wants action.
The consumer wants redress. These desires do
not translate, however, into a legal requirement that a car be replaced.
In order to show the problem is a statutory nonconformity, counsel may have to do
some research. Online research on the
Highway Data Loss Institute (HDLI), the
National Highway Traffic Safety Administration (NHTSA), and Google can yield information. A number of very valuable Web sites
yield highly valuable information. For example, http://www.theautochannel.com/news
/recalls, http://www.internetautoguide
.com/auto-recalls/index.html, and http:/
/groups.msn.com/ToyotaOwnersUniteforReso
lution are all sites worthy of bookmarks for
research into how a given defect affects the
use, value, or safety of a motor vehicle. The
MSN group site requires the researcher to
join. This takes time, but the information
available is tremendous. One excerpt from the
site, for example, concerns brake defects:
Please see attached file on Toyota
Camry brake problems. This file is 62
pages long from 1997-2004 Toyota
Camrys. Many have resulted in accidents. My question is why are these
vehicles still on the road? Why hasn’t
the NHTSA recalled these vehicles? If
I were GM, Ford or Chrysler I would
be asking the NHTSA if Toyota is
exempt from recalls. Do you want
your family riding or driving in these
vehicles? Steering problems, brake system failures.…If you or someone you
know has had brake problems and
Toyota denies any problems[,] have
[that person] print out this file and
present it to Toyota.
The author of this message provides the
full report. The following is an example of the
information contained therein:
Make: Toyota
Model: Camry
Year: 1998
Complaint Number: 745143
SINCE BUYING MY TOYOTA IN
APRIL OF 1998, I HAVE NEEDED
TO REPLACE THE BRAKES AND
ROTORS 3 TIMES. I STILL CONTINUE TO HAVE SCREECHING
AND GRINDING NOISES. I HAVE
BEEN TOLD BY TOYOTA DEALERSHIPS THAT THIS NOISE HAS
BEEN A NOTED PROBLEM. I FIND
THIS TO BE UNACCEPTABLE FOR
A “NEW” CAR, I BOUGHT A NEW
CAR TO AVOID MAKING REPAIRS
AND I HAVE MADE MORE ON
THIS TOYOTA AND ITS BAD
BREAKS THAN I WOULD HAVE
SPENT ON KEEPING MY USED
RODEO. I MEAN WITH REGULAR
MAINTENANCE CHECK, OIL
CHANGE, CAR PAYMENTS, $200
BRAKE JOBS EVERY 8 TO 12
MONTHS, THIS IS RIDICULOUS. I
HAVE ALSO HAD PROBLEMS
WITH CLUNKING NOISES COMING FROM MY FRONT SUSPENSION, ESPECIALLY IF I GO OVER A
ROUGH ROAD. FOR A COMPANY
THAT HAS A REPUTATION FOR
SUPERIOR CARS, THIS HAS BEEN
A DISAPPOINTING FIRST BUY AS
I FIND THE CAR TO HAVE A VERY,
VERY POOR BRAKING SYSTEM
AND SUSPENSION. FROM READING YOUR TECHNICAL BULLETINS, THERE HAS BEEN 90
REPORTED COMPLAINTS ON
THE BRAKES.…
Another helpful source is a skilled
mechanic or a dealer. Often they will provide
you with copies of the manufacturer’s notices,
intercompany repair messages, or recall
notices.
— LEMON LAW SPECIALISTS —
We have obtained recoveries totaling millions of
dollars for defective and unsafe vehicles. We
enjoy a superb success rate and obtain speedy and
full recoveries without litigation in nearly all cases.
✔ Automobiles
✔ Motorcycles
✔ Motor Homes
✔ Boats
Delsack & Associates is known for experience, positive relationships with manufacturers,
and speedy and satisfactory settlements.
DELSACK & ASSOCIATES, P.C.
1801 CENTURY PARK EAST, SUITE 2400, LOS ANGELES CA 90067
PH
(310) 475-1700 •
(310) 475-1799 • E-MAIL [email protected]
www.lemonlawspecialists.com
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There have been “secret” problems regarding which customers were informed only
when they presented their vehicles for repair.
These problems are difficult, but not impossible, to uncover. A good example from the
late 1980s involved the alleged self-acceleration of the Nissan 280ZX and 300ZX. The
NHTSA complaint file contained numerous
claims. The first paragraph of Nissan’s
answering letters expresses sympathy for the
person’s plight and explains how this is the
“first incident of this nature” concerning the
model.6
Finally, it can be very helpful to know
about cars. Sometimes the danger of a defect
may not be obvious to a person who is unfamiliar with the mechanical and electrical
operations of cars. The customer and counsel must consider how to present the claimed
defect so that it falls within the statutory
definitions. Anyone presenting a Lemon Law
claim should be completely familiar with the
various codes that are found on the repair
orders. Often, a visit to a local dealer (even
the dealer that did the work) can help decipher the codes. It is a worthwhile exercise.
The Manufacturer’s Presentation
SERVING THE COMMUNITY
THROUGH YOUR BETTER
BUSINESS BUREAU
Successful completion of a one and a half-day
training will qualify you to become a volunteer
arbitrator for the BBB AUTO LINE program and
other consumer/business disputes for your local
Better Business Bureau. Training sessions are
being held throughout the state of California as
early as November 2005 and continuing into the
year 2006.
Applications can be completed online at
www.dr.bbb.org and click on Training.
Please call 1.800.334.2406 ext. 374 or e-mail
[email protected]. BBB certified arbitrators are
offered an honorarium of $100 for each
completed BBB AUTO LINE case they hear.
The manufacturer’s representative may present his or her case by phone or in person. A
local service manager or mechanic may also
be present as a live witness. At the hearing,
the manufacturer’s representative may examine the local service manager or mechanic. The
client’s attorney must assume that the representative and witness are very well prepared.
Depending on the relationship among the
consumer, the dealership, and its employees,
the service manager or mechanic may be
friendly and willing to talk to counsel before
the hearing. At this stage of the proceeding,
the witness is not usually represented by
counsel, so there is no ethical violation to talk
to the witness. A conversation at this time can
be crucial. If counsel carefully probes and
actively listens, he or she can glean a great deal
of information. Counsel can sense whether
this witness will be hostile. Counsel can also
ask the witness about his or her feeling as to
whether there is a real problem with the car
or if the heart of the problem is nothing more
than one customer’s dissatisfaction. If the
former scenario seems more likely, probe for
some facts. If the latter does, try to determine
the basis for the opinion: What does this or
that repair code mean? How many other
vehicles has the witness worked on with the
same or similar problem? What was done
while the vehicle was in the shop? Frequently,
the witness will give valuable information
that can be helpful in the hearing. Do not
make the witness become recalcitrant by
being too aggressive. Counsel should also
consider the ramifications of what happens
after the arbitration. If counsel takes an
aggressive stance against the witness and the
consumer loses the arbitration, where will
he or she get the vehicle serviced?
The consumer should understand that
whether appearing by phone or in person, the
manufacturer’s representative will be polished and professional at the arbitration. The
representative has the technical expertise of
a large corporation at his or her disposal and
can muster statistics, copies of all repair
orders, and a number of persuasive stories.
The consumer and counsel will need some
help to offset this technological asymmetry.
First, counsel should usually not attempt to
go head-to-head with the manufacturer’s representative, who, as a practical matter, is an
expert with unlimited resources. The consumer’s attorney also should be prepared for
the manufacturer’s representative to shower
the arbitrator with statistical data such as,
“The manufacturer has assembled 1,234,587
models of this vehicle in 17 countries in the
world. This vehicle has been badged as X in
North America, Y in South America, and Z
in Europe. There have been no recalls and no
governmental actions against any of the
badged vehicles.”
Most of this information will be irrelevant
to the particular case at hand; however, the
statistical display is very influential. In essence,
the manufacturer is attempting with this
argument to make the car’s failings statistically
insignificant. The consumer’s attorney should
not try to win a numbers-quoting contest
with a manufacturer’s representative. Instead,
the facts concerning the particular car in
question, whether or not they are part of a
larger pattern, may be what ultimately matters under the law.
Another tactic that manufacturer’s representatives sometimes rely on, especially if the
vehicle is not top of the line, is to imply that
if the consumer had purchased the top-of-theline model, he or she would not have had the
alleged problems. It is common for the manufacturer to take the position that if the consumer had purchased a more expensive
model, it would have had better construction,
insulation, or electronics. The consumer’s
attorney can call attention to the obvious
flaw in this argument.
It is likely the arbitrator has previously
dealt with the manufacturer’s representative
and anticipates dealing with him or her in the
future. It is common for the arbitrator to
show deference to the manufacturer’s representative. The consumer’s counsel should
therefore be prepared to object and to be
overruled. The consumer’s counsel may ask
the representative how any of the statistics
presented or comments offered are relevant,
for example, but should be prepared for a
response to the effect that the cumulative
information all goes to show what a great
vehicle the consumer has purchased.
The manufacturer’s representative will
then call his or her witness—typically, the
service manager or mechanic. The representative will introduce the work orders. His or
her job is to show how diligently the dealer
worked on the vehicle and that the problems
were normal. This is why it is important for
the consumer to have read and understood all
the repair orders, including the repair codes.
If the manufacturer’s witness dismisses
the seriousness of the problem, cross-examination should concentrate on how the defect
diminished the vehicle’s use, value, and safety
as viewed by a reasonable person or the general public. Counsel may even ask the witness
if he or she would take the vehicle on a busy
highway with his or her family. This may
make the allegation of defect or poor repair
personal. The witness may become so defensive that he or she becomes adversarial. In the
process, the witness may inadvertently compromise his or her credibility and objectivity.
Preparing the Client
Many consumers are emotional when it concerns their vehicles. This emotional relationship can play havoc with their objectivity.
Counsel’s best tactic is to thoroughly educate
the client about the Lemon Law. Counsel
should explain what the presumption in Civil
Code Section 1793.22 means and take time
to fully inform the client how important it is
to show that the defect is material. Once the
client understands the factual and legal
requirements, counsel must outline the plan
to gather the necessary evidence.
Most owners do not maintain complete
vehicle service records. It is not a good idea
to rely on the consumer’s recollection regarding the number of times the vehicle was presented for repair or how long it was kept in
the shop. Consequently, it is absolutely necessary to get copies of all work orders. An
attorney should not even consider filing for
a BBB arbitration until he or she has a complete history of the allegedly defective vehicle. Counsel must assume that the manufacturer will have all relevant documents.
Next, counsel should educate the client on
the arbitration process. It can be confusing to
someone who has never participated in an
arbitration. It can be productive to do some
role-playing. The BBB arbitration generally
adheres to the traditional arbitration mode of
question and answer.
First, both parties are given an opportunity to present an opening statement. Second,
the consumer presents his or her case-in-chief
with witnesses, evidence, and exhibits. It is
prudent to make sufficient copies of any
exhibits. Usually four copies are sufficient: one
each for the witness, counsel, other party,
and arbitrator. That way, all can follow the
testimony without the distraction of passing
a document around the room. Third, the
manufacturer is given the opportunity to
cross-examine the witness. Fourth, when the
consumer finishes his or her case, the manufacturer presents its defense. Finally, when
both sides rest, the arbitrator will give them
the opportunity to give a closing argument.
In the closing statement counsel for the
consumer client may reiterate the statutory
elements, then specifically connect the testimony and evidence to each element to show
that the burden of proof has been met. The
effectiveness of this last step of the arbitration
process is a function of prearbitration preparation. It is a usual tactic for the manufacturer’s representative to restate the statistics
and information showing how the model of
vehicle that the defective one came from is the
greatest ever made. This is not relevant, but
the arbitrator often allows it without comment. The manufacturer’s representative will
usually close by trying to show the consumer
did not prove the case. It is predictable the
defense will focus on the defect, trying to
show it was not material, because the other
elements are generally easier to establish.
Unless very gifted, the consumer is not
likely to be able to compete on the same
technical level as the manufacturer’s representative. It is also unlikely the arbitrator
can work at that heightened technical level
either. It is incumbent upon the consumer or
counsel to make the case simple, straightforward, and within the Lemon Law criteria.
Materiality of the alleged defect is the
Achilles heel of the typical Lemon Law case,
and building a solid foundation of materiality is the most crucial part of a Lemon Law
arbitration. Although the BBB arbitration is
a helpful forum for the consumer, it requires
adequate evidentiary showing. The BBB is a
business funded by businesses, and it is not
prone to distributing the assets of its participants without an adequate showing.
■
1
See CIV. CODE §1793.22(e)(2).
Civil Code §1793.2(d)(2)(C) provides the statutory
formula. The variables may be any significant modifications (sound system, new tires, or mechanical repairs
or upgrades). The manufacturer will also credit license,
title, registration, and sales and use tax.
3 Civil Code §1793.22(e)(1) defines “nonconformity”
as what substantially impairs the use, value, or safety
of the new motor vehicle to the buyer or lessee. This
is also referred to as a “material defect.”
4 Griffey v. Chevrolet, GM offer Mar. 18, 2005 Service
Request/File Number 1-239874049 (VIN1G1JH52FX47172523) (2005).
5 See UNIFORM COMMERCIAL CODE §2314(2)(d), warranty of merchantability. To be merchantable, “goods”
may “run, within the variations permitted by the agreement, of even kind, quality and quantity within each
unit and among all units involved.”
6 See NHTSA Investigation PE85-08 and 85-029,
1976-87 280Z & 300Z Recall, 87V-090.
2
by Paul J. Watford
State
Lines
Redefining the reach of the COMMERCE CLAUSE may be
one of the important legacies of the Rehnquist Court
ruling that effectively nullifies California’s medical marijuana statute.
The Raich decision calls into question the notion, widely accepted until
now, that the Rehnquist Court has initiated a dramatic realignment
of the legislative powers held by Congress and those reserved to the
states.
The commerce clause delegates to Congress the power “[t]o regulate Commerce with foreign Nations, and among the several
States….”5 Although the clause would eventually become a major
source of federal legislative authority, it played only a limited role in
defining the size and scope of the national government for the first
century following the ratification of the U.S. Constitution. Its principal purpose was to ensure that Congress had the power to prevent
individual states from erecting trade barriers that would hinder the
formation of a unified national market, and most of the early commerce clause cases that reached the Supreme Court arose in precisely
Paul J. Watford is a partner at Munger, Tolles & Olson LLP, where he specializes in appellate litigation. From 1995 to 1996, he served as a law clerk to U.S.
Supreme Court Justice Ruth Bader Ginsburg.
DENNIS IRWIN
R
eshaping the Supreme Court’s federalism jurisprudence
may be one of the central legacies of William Rehnquist’s
tenure as chief justice, particularly over the course of the
past decade. Beginning in the mid-1990s, the Court
issued a series of decisions that curtailed the power of
Congress to legislate under the commerce clause1 and shielded states
from the enforcement of federal mandates.2 These decisions have led
many to credit the Rehnquist Court with bringing about a fundamental shift in the balance of power between the states and the federal government.
Recent decisions, however, suggest that it is still too early to tell
how lasting a legacy the Rehnquist Court has left in this area. In the
latest case pitting state sovereignty interests against the commerce
clause powers of Congress—Gonzales v. Raich,3 which was decided
last term—the Court dealt a decisive defeat to those advocating
stronger protection of states’ rights.4 In Raich the Court held that application of the federal Controlled Substances Act (CSA) to the intrastate
cultivation and possession of marijuana for medicinal purposes does
not exceed the authority of Congress under the commerce clause, a
that context.6 In these cases the Supreme Court was asked to invalidate state laws that allegedly discriminated against interstate commerce.7 Thus the authority of Congress to enact legislation of its own
under the commerce clause was not at issue.
The first significant exercise of the “affirmative” commerce clause
powers of Congress did not come until late in the nineteenth century,
with the enactment of laws such as the Interstate Commerce Act in
18878 and the Sherman Antitrust Act in 1890.9 For the next half century, the Supreme Court struggled to develop a workable standard
for determining which legislative enactments fell within the power of
Congress to regulate interstate commerce and which did not. The
Court started from the premise that, because the Constitution created
a national government of enumerated powers, the authority granted
to Congress pursuant to the commerce clause had to be meaningfully
constrained. Otherwise, the Court feared, “there would be virtually
no limit to the federal power and for all practical purposes we should
have a completely centralized government.”10 Acting on that concern,
the Court showed no hesitation in striking down federal laws on the
ground that the legislation in question exceeded Congress’s authority under the commerce clause.11
By all accounts, however, the Court’s efforts to develop a coherent doctrine for limiting the scope of the commerce clause powers of
Congress were unsuccessful. The Court initially attempted to distinguish between “production” or “manufacturing” and commerce
and held that Congress had no authority to regulate activities on the
production side of the line—that is, prior to the point when goods
enter the stream of commerce.12 When that distinction proved
unworkable in subsequent cases, the Court abandoned it and adopted
instead a test that attempted to distinguish between “direct” and “indirect” effects on interstate commerce. Under this test, those activities
that had merely indirect effects on interstate commerce fell outside
Congress’s power to regulate.13 But in time that test, too, proved
unworkable.
Finally, in 1937, under pressure from President Franklin Roosevelt
to uphold the major legislative components of the New Deal, the Court
backed away from its earlier attempts to confine Congress’s commerce
clause authority within narrow channels. Beginning with NLRB v.
Jones & Laughlin Steel Corporation,14 the Court issued a series of
decisions upholding legislation that significantly expanded the size and
power of the federal government.15 The Court ultimately adopted a
test for assessing the constitutionality of legislation enacted under the
commerce clause that asked only whether Congress had a rational basis
for concluding that the regulated activity “substantially affects”
interstate commerce.16
Guns and Gender-Motivated Violence
For almost 60 years after Jones & Laughlin, the Supreme Court did
not strike down a single federal law on the ground that the enactment
exceeded Congress’s authority under the commerce clause. This
period of more relaxed commerce clause scrutiny saw the Court sustain the validity of a wide range of federal legislation that is now largely
taken for granted, such as the provisions of the Civil Rights Act of
1964 prohibiting racial discrimination in hotels, restaurants, and
other places of public accommodation.17
The tide appeared to turn in 1995, however, in United States v.
Lopez.18 In that case, by a 5-4 vote, the Court struck down the
Gun-Free School Zones Act of 1990, which prohibited possession of
a firearm within 1,000 feet of any public, parochial, or private
school.19 Writing for the majority, Rehnquist explained that the
Gun-Free School Zones Act did not regulate commercial or economic activity; it simply banned possession of a firearm within close
proximity to a school—an activity that had nothing to do with commerce.20 Moreover, the majority noted, the act was not “an essential part of a larger regulation of economic activity, in which the reg26 Los Angeles Lawyer November 2005
ulatory scheme could be undercut unless the intrastate activity
were regulated.”21
Justices Stevens, Souter, Ginsburg, and Breyer dissented. They noted
that the objective of Congress in passing the act was to reduce the
prevalence of school violence, which lowers educational attainment
among students and thus poses a substantial threat to economic
productivity and commerce generally.22 The majority, however, found
the act’s effects on interstate commerce too attenuated to satisfy the
demands of the commerce clause.23
The Court’s decision five years later in United States v. Morrison24
suggested that Lopez might have marked the beginning of a dramatic
reassessment of the Court’s commerce clause jurisprudence. In
Morrison, the Court struck down a provision of the Violence Against
Women Act that allowed victims of gender-motivated violence to bring
a civil suit against the perpetrators in state or federal court.25 The Court
split 5-4 along the same lines as in Lopez, with the chief justice
again writing for the Court. The majority rejected the extensive findings Congress had compiled to show the substantial effect violence
against women has on the national economy.26 According to the
majority, the civil remedy provision of the Violence Against Women
Act, like the Gun-Free School Zones Act, did not regulate commercial conduct. Instead, the Court held, the Violence Against Women
Act addressed noneconomic acts of violence that had no connection
with interstate commerce and were therefore beyond Congress’s
power to regulate under the commerce clause.27
Medical Marijuana
Lopez and Morrison set the stage for the next major test of the
Rehnquist Court’s apparent shift toward pre-New Deal conceptions
of the commerce clause authority of Congress. That test came last term
in Raich,28 which involved a conflict between California’s desire to
legalize medicinal marijuana use and the federal government’s interest in establishing a uniform national drug policy.
The respondents in Raich were California residents who sought
to use marijuana for medicinal purposes in compliance with
California’s Compassionate Use Act,29 an initiative measure passed
by California voters in 1996. The Compassionate Use Act authorizes
the cultivation and possession of marijuana for medicinal purposes
pursuant to a doctor’s recommendation.30 The federal Controlled
Substances Act, however, classifies marijuana as a Schedule I controlled
substance and renders essentially any possession of marijuana illegal
under federal law. The CSA reflects the judgment of Congress that there
are no currently acceptable medical uses of the drug.31 The respondents in Raich argued that Congress lacked authority under the
commerce clause to extend the CSA’s reach to their intrastate cultivation and possession of marijuana for medicinal use in compliance
with state law. They argued that the CSA, as applied to those activities, was therefore unconstitutional. The Ninth Circuit accepted
this argument, relying on the Supreme Court’s earlier decisions in
Lopez and Morrison.
To the disappointment of medical marijuana advocates, as well as
those who hoped Raich would further limit the commerce clause powers of Congress, the Supreme Court reversed the lower court in a 63 decision authored by Justice John Paul Stevens. The majority was
composed of the four dissenters in Lopez and Morrison—Justices
Stevens, Souter, Ginsburg, and Breyer—and two defectors from the
Lopez/Morrison majorities—Justices Scalia and Kennedy. Justice
Kennedy joined the opinion of the Court in full without setting forth
separate views of his own. Although Scalia authored an opinion
concurring only in the judgment, he appeared to articulate an even
broader view of Congress’s authority under the commerce clause than
that embraced by the majority.
Given the ostensible similarities between Lopez and Raich, the
immediate question confronting the Court was how the purely
intrastate cultivation and possession of marijuana differed in any material respect from the purely intrastate possession of a gun in Lopez.
Indeed, the respondents in Raich seemed to have a stronger hand, given
that they were acting in compliance with an otherwise valid state law.
The defendant’s possession of a gun on school grounds in Lopez constituted a violation of applicable state law, and thus the case did not
involve a clash between competing state and federal interests.32 The
effect of rejecting the commerce clause challenge by the respondents
in Raich was the nullification (or at least a substantial undermining)
of California’s policy judgment concerning a matter within a core area
of state sovereignty—
the protection of the
health and welfare of
the state’s citizens.
Despite the strong
state sovereignty interests at stake in Raich,
the majority had little difficulty rejecting
the arguments advanced by the respondents and the dissenters. The majority
noted initially that the
challenge asserted by
the respondents in
Raich regarding the
application of the
CSA differed from the
facial challenges asserted in Lopez and
Morrison.33 In Raich,
no one disputed that
the CSA was a valid
exercise of Congress’s
commerce clause powers. The respondents
contended only that,
given the purely intrastate nature of their
activities, Congress
had no authority to
sweep those activities
within the reach of the CSA.34 Moreover, unlike the legislation at issue
in Lopez and Morrison, which regulated a single class of activities,
the CSA’s ban on the cultivation and possession of marijuana was
arguably part of a larger regulatory scheme whose overall effectiveness would be thwarted if particular subclasses of activities were
exempted from its scope.35
After noting these distinctions, the majority concluded that Raich
was controlled not by Lopez and Morrison but by Wickard v.
Filburn,36 in which the Court upheld federal restrictions on wheat production as applied to a small farmer who grew wheat that was used
solely for personal consumption. In Wickard, the Court declared that
Congress’s power under the commerce clause extends to purely
intrastate activities if those activities, in the aggregate, will have a substantial effect on interstate commerce.37 That test was met in Wickard,
the Court held, because the regulatory scheme at issue was designed
to stabilize the price of wheat by limiting output, and exempting all
wheat produced for home consumption would undermine the government’s regulatory objective: “[Home-grown wheat] supplies a
need of the man who grew it which would otherwise be reflected by
purchases in the open market. Home-grown wheat in this sense
competes with wheat in commerce.”38
The majority in Raich held that the respondents stood in the
same shoes as the farmer in Wickard. Although the respondents’ own
intrastate cultivation and possession of marijuana did not have a substantial effect on interstate commerce, the majority held that Congress
had a rational basis for concluding that, in the aggregate, these activities could have a substantial effect on the interstate market for marijuana.39 That conclusion would be open to question if the relevant
subclass of regulated conduct had been defined narrowly to include
only the intrastate cultivation and possession of marijuana for medicinal use in compliance with state law, as the respondents urged.40
There was no evidence in the record
demonstrating the
impact, if any, that an
exemption of this
small subclass of
activities from the
CSA’s reach would
likely have on the
interstate market for
marijuana.41 But the
majority avoided this
problem by defining
the relevant subclass
of regulated conduct
more broadly—namely, possession of locally grown marijuana for personal use
of any kind. 42 Exempting all personal
use of marijuana from
the CSA’s general ban,
the majority concluded, would clearly
have a substantial
effect on the interstate
market for marijuana.43
Although there are
similarities between
Raich and Wickard,
the parallels between
the two cases are by no means perfect. The purpose of the regulatory
scheme at issue in Wickard was price control, and it was thus easy
to see how allowing an exemption for intrastate activities that significantly reduced demand for wheat sold in the interstate market
would thwart the achievement of the broader regulatory objective.
It is far less clear that the same can be said for the narrow exemption from the CSA sought by the respondents in Raich. The CSA’s purpose is to ban the interstate market for marijuana altogether. If a state
decides in limited circumstances to authorize possession of marijuana that is not intended for the interstate market at all, it is difficult to argue that this state action undermines the entire regulatory
objective of the CSA.
Thus the real conflict in Raich concerned the differing state and federal policy judgments as to whether medicinal use of marijuana should
be permitted. The federal government, despite a long-running campaign
by advocates of medical marijuana, has refused to remove marijuana
from Schedule I under the CSA, reflecting the judgment of federal
policymakers that marijuana has not yet been shown to have any
legitimate medical uses.44 The citizens of California have made the precisely opposite policy judgment, declaring that marijuana does have legitimate and acceptable medicinal uses in certain circumstances.45
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This conflict between state and federal
legislative policies formed the principal basis
for Justice O’Connor’s dissent in Raich. She
argued that California’s Compassionate Use
Act was an exercise of the state’s core sovereign power to “define criminal law and to protect the health, safety, and welfare of [its]
citizens.”46 She questioned whether the federal government should be permitted to
occupy this realm to the exclusion of the
states. In O’Connor’s view, the federalism
concerns that had animated the Rehnquist
Court’s decisions in prior cases provided a
fully sufficient justification for construing
narrowly the commerce clause powers of
Congress in this instance: “We enforce the
‘outer limits’ of Congress’s Commerce Clause
authority not for their own sake, but to protect historic spheres of state sovereignty from
excessive federal encroachment and thereby
to maintain the distribution of power fundamental to our federalist system of government.”47 As the outcome in Raich reflects,
these federalism concerns were simply not
strong enough to hold together the five-justice majority that had successfully defended
state sovereignty interests from federal intrusion during much of the Rehnquist Court’s
tenure.
Post-Raich Developments
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Following the Court’s decisions in Lopez
and Morrison, advocates relied on those
cases to attack a surprisingly diverse array of
federal enactments as exceeding Congress’s
commerce clause powers, and lower courts
were at least somewhat receptive. In the
wake of Raich, however, whatever momentum Lopez and Morrison had generated for
curtailing the commerce clause powers of
Congress seems to have been halted. At the
very least, Raich will likely cause lower
courts to proceed with more caution as they
ponder further commerce clause challenges
to federal legislation, a result perhaps foreshadowed by the cases the Supreme Court
disposed of immediately after issuing its decision in Raich.
In a closely watched case from the Fifth
Circuit, a developer asserted a commerce
clause challenge to the Endangered Species
Act on the ground that Congress had no
authority to extend the act’s coverage to several species of small insects that have no
commercial value and live entirely within a
single state. 48 Relying on Lopez and
Morrison, the developer argued that Congress
lacks authority to regulate species with no
conceivable connection to interstate commerce. One week after its decision in Raich,
however, the Supreme Court denied the developer’s petition for certiorari without a single
dissent. The case had been viewed by many
as the next logical battleground in the fight
over the proper scope of Congress’s commerce clause authority.49
In another closely watched case, the Ninth
Circuit relied on Lopez and Morrison to
reverse a criminal conviction for possession
of a homemade machine gun.50 Because the
machine gun had not moved in interstate
commerce, and because the mere possession
of the gun could not be said to “substantially affect” interstate commerce, the Ninth
Circuit concluded that the application of federal firearms laws in the case exceeded
Congress’s commerce clause powers. The
Supreme Court vacated that decision and
remanded the case to the Ninth Circuit for
reconsideration in light of Raich.
Finally, the Eleventh Circuit reversed a
federal criminal conviction for production
and possession of child pornography in a
case involving a defendant who took sexually
explicit photographs of underage girls and
kept them at his home. Relying on Lopez
and Morrison, the Eleventh Circuit held that
“purely intrastate, noncommercial production
and possession of child pornography” falls
outside the regulatory authority of Congress
under the commerce clause.51 The Supreme
Court vacated that decision as well and
remanded the case for reconsideration in
light of Raich.
As even this small sampling of cases
reflects, the commerce clause powers of
Congress remain highly relevant to the federal government’s ability to regulate a wide
range of conduct. The Supreme Court’s decisions construing the power of Congress to
“regulate Commerce…among the several
States” thus continue to have considerable
importance, despite the somewhat arcane
nature of the subject. Raich has left the direction of the law very much in flux in this area,
and the current changes in the Court’s composition only add to the uncertainty.
It may be that following the intervening
events of September 11, Raich signals a shift
away from the curtailment of Congress’s
commerce clause powers that began in Lopez
and Morrison. This type of shift would not
be without historical precedent. In the late
1930s the Court responded to the exigencies created by the Great Depression by relaxing the limits it had earlier placed on
Congress’s authority to legislate under the
commerce clause. A post-September 11 world,
in which many have called for the national
government to assume a more dominant role,
may similarly influence the direction the
Court’s commerce clause jurisprudence takes
in the years ahead.
■
1 United States v. Morrison, 529 U.S. 598 (2000);
United States v. Lopez, 514 U.S. 549 (1995).
2 See, e.g., Board of Trs. of Univ. of Ala. v. Garrett, 531
U.S. 356 (2001); Kimel v. Florida Bd. of Regents, 528
U.S. 62 (2000); Seminole Tribe of Fla. v. Florida, 517
U.S. 44 (1996).
3 Gonzales v. Raich, 545 U.S. __, 125 S. Ct. 2195
(2005).
4 Advocates of greater state autonomy also suffered a
defeat in last term’s Granholm v. Heald, 544 U.S. __,
125 S. Ct. 1885 (2005). In Granholm, the Court invalidated state laws that permitted in-state wineries to ship
directly to consumers but precluded out-of-state wineries from doing so. The Court held that these concededly discriminatory state laws were not saved by the
Twenty-first Amendment, which grants states significant control over the regulation of liquor within their
borders.
5 U.S. CONST. art. I, §8, cl. 3.
6 Raich, 125 S. Ct. at 2205.
7 See, e.g., Gibbons v. Ogden, 22 U.S. 1 (1824).
8 The Interstate Commerce Act, 24 Stat. 379 (1887).
9 The Sherman Antitrust Act, 26 Stat. 209 (1890).
10 A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 548 (1935).
11 See, e.g., Carter v. Carter Coal Co., 298 U.S. 238
(1936) (invalidating law that prohibited unfair labor
practices in the coal industry); Hammer v. Dagenhart,
247 U.S. 251 (1918) (invalidating law that banned
shipment of goods in interstate commerce that had
been manufactured using child labor); Adair v. United
States, 208 U.S. 161 (1908) (invalidating law that protected membership in labor unions).
12 See, e.g., United States v. E.C. Knight Co., 156 U.S.
1, 12 (1895) (“Commerce succeeds to manufacture, and
is not a part of it.”).
13 See, e.g., A.L.A. Schechter, 295 U.S. at 548.
14 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1937).
15 See, e.g., United States v. Darby, 312 U.S. 100
(1942) (upholding Fair Labor Standards Act); Jones &
Laughlin, 301 U.S. 1 (upholding National Labor
Relations Act).
16 See United States v. Lopez, 514 U.S. 549, 559 (1995).
17 Katzenbach v. McClung, 379 U.S. 294 (1964); Heart
of Atlanta Motel, Inc. v. United States, 379 U.S. 241
(1964).
18 Lopez, 514 U.S. 549.
19 18 U.S.C. §§921(a)(25), 922(q)(1)(A).
20 Lopez, 514 U.S. at 561.
21 Id.
22 Id. at 623-24 (Breyer, J., dissenting).
23 Id. at 565-66.
24 United States v. Morrison, 529 U.S. 598 (2000).
25 42 U.S.C. §13981.
26 Morrison, 529 U.S. at 614-15; see id. at 628-36
(Souter, J., dissenting).
27 Id. at 617-18.
28 Gonzales v. Raich, 545 U.S. __, 125 S. Ct. 2195
(2005).
29 H EALTH & S AFETY C ODE §§11362.5, 11362.711362.9 (2005).
30 HEALTH & SAFETY CODE §11362.5(d).
31 21 U.S.C. §812(c); see Raich, 125 S. Ct. at 2204,
2211.
32 See United States v. Lopez, 514 U.S. 549, 552 (1995).
33 Raich, 125 S. Ct. at 2209.
34 Id. at 2204-05.
35 Id. at 2210.
36 Wickard v. Filburn, 317 U.S. 111 (1942).
37 Id. at 127-28 (“That appellee’s own contribution to
the demand for wheat may be trivial by itself is not
enough to remove him from the scope of federal regulation where, as here, his contribution, taken together
with that of many others similarly situated, is far from
trivial.”).
38 Id. at 128.
39 Raich, 125 S. Ct. at 2206-07.
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40
Id. at 2224 (O’Connor, J., dissenting).
Id. at 2208; id. at 2226 (O’Connor, J., dissenting).
42 Id. at 2212.
43 Id. at 2206-07.
44 Schedule I drugs “are categorized as such because of
their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in
medically supervised treatment.” Id. at 2204; see
Alliance for Cannabis Therapeutics v. DEA, 15 F. 3d
1131, 1133 (D.C. Cir. 1994).
45 This term, the Court will confront another conflict
between differing federal and state policy judgments.
The subject this time is assisted suicide. The case
involves federal efforts to block the implementation of
Oregon’s Death With Dignity Act. Oregon v. Ashcroft,
368 F. 3d 1118 (9th Cir. 2004), cert. granted sub
nom. Gonzales v. Oregon, 125 S. Ct. 1299 (2005)
(No. 04-623).
46 Raich, 125 S. Ct. at 2221 (O’Connor, J., dissenting).
47 Id. at 2220 (O’Connor, J., dissenting).
48 GDF Realty Invs., Ltd. v. Norton, 326 F. 3d 622 (5th
Cir. 2003), cert. denied, 125 S. Ct. 2898 (2005).
49 The Court was presented with a somewhat similar
commerce clause challenge in Solid Waste Agency of
Northern Cook County v. Army Corps of Engineers,
531 U.S. 159 (2001). The case focused on whether provisions of the Clean Water Act could be applied to nonnavigable, intrastate bodies of water that provided
habitat for migratory birds. The Court held that
Congress never intended to extend the Clean Water Act
that far, thereby avoiding the need to decide whether
Congress had exceeded its authority under the commerce clause.
50 United States v. Stewart, 348 F. 3d 1132 (9th Cir.
2003), vacated, 125 S. Ct. 2899 (2005).
51 United States v. Smith, 402 F. 3d 1303, 1315 (11th
Cir.), vacated, 125 S. Ct. 2938 (2005).
41
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Los Angeles
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Orange County
Mitch Wexler, Partner
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MCLE ARTICLE AND SELF-ASSESSMENT TEST
By reading this article and answering the accompanying test questions, you can earn one MCLE credit.
To apply for credit, please follow the instructions on the test answer sheet on page 33.
by Eve Hill
and Sheila Khan-Variba
Challenging
Barriers
California’s more
expansive definition
of disability
provides protection
for more people
than federal law
California has prohibited discrimination
on the basis of disability for over 30 years1
through such laws as the Fair Employment
and Housing Act (FEHA),2 the Unruh Civil
Rights Act,3 and the Blind and Other Physically Disabled Persons Act.4 As other jurisdictions develop antidiscrimination laws of
their own, California continues to aggressively prohibit discrimination, including disability discrimination.
Federal law—including the Rehabilitation
Act of 1973,5 the Fair Housing Amendments
Act of 1988, 6 and the Americans with
Disabilities Act of 1990 (ADA)7—embodies
principles similar to those found in California
law on the issue of disability rights. However,
federal law has taken an approach fundamentally different from California’s regarding the redress of disability discrimination,
specifically in the definition of what constitutes a “disability.”
Moreover, while federal law preempts
state laws that provide lesser protection from
discrimination, state laws that exceed federal
requirements remain in force. As a result,
the application of disability discrimination
laws has varied from state to state. These
inconsistencies have led to disparate results
in cases alleging disability discrimination,
specifically in the context of claims about
physical access and academic testing.
The first challenge in applying the laws
prohibiting disability discrimination is to
determine who is entitled to protection by formulating an appropriate definition of a “disability.” Fortunately, a wealth of case law
shows that courts have done just that. The
cases have centered on whether the protected
group should be 1) large, with the court
focusing the legal inquiry on whether the
plaintiff was treated unfairly, or 2) small,
with the court focusing on whether the plaintiff is so significantly limited in his or her
abilities that a reasonable accommodation
is justified. The U.S. Supreme Court has interpreted the federal Americans with Disabilities
Act8 to protect a limited class of people with
disabilities: those whose impairments “substantially” limit major life activities.9
Eve Hill is the executive director of the Western Law
Center for Disability Rights. Sheila Khan-Variba
is an in-house counsel in the Fox Group Legal
Department.
In Sutton v. United Airlines, Inc.10 the
Supreme Court held that the ADA only protects people whose physical or mental impairments currently (that is, at the time of the
alleged discrimination) limit a major life activity substantially. The court reasoned that if a
person was using mitigating measures—such
as glasses, hearing aids, or medication—to
reduce the effects of his or her impairment at
the time of the alleged discrimination, the
limitation caused by the impairment should
be balanced against the mitigating measures.
Thus the plaintiffs in Sutton, whose vision
impairment was rectified by glasses, were
not substantially limited in the major life
activity of seeing, and United Airlines was free
to exclude them from its employment applicant pool without further consideration.
Federal courts have interpreted the “substantial limitation” requirement narrowly to
exclude people whose impairments can be
treated to some extent by medications or
equipment.11 Courts have applied the Sutton
interpretation to exclude from ADA protection people with a variety of mitigated impairments such as diabetes,12 depression,13 and
epilepsy.14
Many argue that this limitation is necessary to prevent the granting of unnecessary
civil rights protection to people who do not
have “real” disabilities—such as people who
are slightly near-sighted and wear contact
lenses or people who have backaches that
are controlled by pain medication. They posit
that businesses and employers need to be
protected from lawsuits and expensive
requests for reasonable accommodation by
people with minor impairments. Others disagree, contending that the substantial limitation requirement can go too far. In their
view, people with depression who respond
well to medication could be refused a job
because of their depression, even if it has no
relevance to job performance—a refusal with
a discriminatory basis. Employers could argue
successfully that people with medically treatable depression do not have a disability and
are not protected by the ADA because their
impairment is not substantially limiting when
they take their medication. Disability advocates argue that this type of irrational exclusion is exactly what the disability rights laws
should address and forbid.
A few years ago, the California Legislature
amended the Fair Employment and Housing
Act to make clear that California’s definition of “disability” diverges from that in the
ADA.15 Under California law, a person is
considered to have a disability if his or her
impairment limits a major life activity. Proof
of substantial limitation is not required.16
Moreover, California does not consider mitigating measures, such as medication or hearing aids, when determining whether a person’s
impairment is limiting. California thereby
avoids the Catch-22 that federal law imposes
on people with disabilities—mitigate an
impairment and lose protection, or do not
mitigate and lose the ability to perform a
job. Therefore, employees in California may
take their medication, for instance, and still
be considered persons with a disability under
the law.
Under California law, discrimination on
the basis of minor impairments is considered
irrational and thus prohibited. On the other
hand, the complexity and expense of the
accommodations required for the disability
must be proportional to the severity of the disability. Thus, California law attempts to focus
on the fairness of the treatment to which the
person is subjected, not on limiting the size
of the protected class. This is the same
approach that is used in the context of race
and gender civil rights laws. Those laws do
not consider how female or male a person is,
or how much minority ancestry he or she
has. They instead focus on the discrimination
and its causation.
Some businesses argue that California’s
seemingly boundless definition of a disability
permits employees and patrons to sue based
upon policies that are not intended to harm
people with disabilities. And they further
argue that the burdens of disability discrimination litigation on businesses and the courts
cannot be justified. However, these arguments seek to supplant the balance the
California Legislature has struck to prevent
discrimination on one hand and stymie frivolous lawsuits on the other.17 While suits
containing claims of disability discrimination may pose incidental burdens on businesses and the judicial system, significant
obstacles must be overcome before plaintiffs
can prevail in these suits. These hurdles principally are causation and available damages
and, absent significant discrimination, they
often make it impractical to bring suit in the
first place.
Damages for Discrimination
Another major difference between the ADA
and California law is the availability of damages for victims of discrimination by businesses. Both Title III of the ADA 18 and
California law require places of public accommodation (which include most private businesses that are open to the public) to remove
physical barriers to access—such as steps,
heavy doors, and narrow aisles—or to provide alternate means of access. The Unruh
Civil Rights Act19 provides for either $4,000
statutory damages or up to three times actual
damages.20 Similarly, the Blind and Other
Physically Disabled Persons Act21 provides for
$1,000 statutory damages or up to three
times actual damages.22 In most cases, a
plaintiff encountering disability discrimination
may pursue damages under either the Unruh
Act or the Blind and Other Physically
Disabled Persons Act, both of which prohibit the same forms of discrimination covered by the ADA.
The ADA does not provide for damages
for discrimination by private businesses.23
However, under federal and California law,
a prevailing plaintiff may recover his or her
reasonable attorney’s fees.24
In California, when access violations are
unremedied, damages are available based on
statutory liability and the doctrine of continuing violations.25 Under this doctrine, a
person who is deterred from seeking access
because of a known physical access barrier is
deemed to have been denied access. Therefore,
a business may be held liable for each time
that person is deterred.26 However, this does
not mean that the person with a disability is
entitled to $4,000 in damages for every day
of an architectural barrier’s existence.
Some businesses argue that the availability of statutory damages and attorney’s fees
has led to a rash of claims concerning barriers that businesses would have fixed voluntarily if they had been given notice. These
claims often seek only monetary compensation, without demanding that the barrier
actually be removed. Neither Title III of the
ADA nor California disability rights laws
require prefiling notification or the exhaustion
of administrative remedies for suits over
access to businesses. Thus, a person with a disability who encounters a barrier to access is
not statutorily required to inform the business
(or any government agency) about the violation before filing suit and recovering damages. However, there is a developing judicial
trend under both the ADA and California law
to require notification by imposing limitations on recovery.
Some courts have limited the recovery of
attorney’s fees in situations in which a prefiling
notice is not given to the offending business.
In Doran v. Del Taco, Inc.,27 although the
plaintiff was a prevailing party, and notification is not a prerequisite prior to filing a
lawsuit, the federal district court determined
as an exercise of its discretion that “no attorneys’ fees are recoverable in the absence of a
pre-litigation unambiguous warning notice
and a reasonable opportunity to cure the
ADA violation.” Similarly, in Graham v.
DaimlerChrysler Corporation,28 the California Supreme Court held that plaintiffs
must engage in a reasonable attempt to settle their dispute with the defendant before litigation in order to recover fees as a private
attorney general.
Other courts and defendants have sought
the protections of the restrictions on vexatious
litigants, which traditionally are used to curb
MCLE Test No. 142
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 #142
CHALLENGING BARRIERS
Name
Law Firm/Organization
1. The federal Americans with Disabilities Act (ADA) preempts state disability rights laws to the extent they provide lesser protection than the ADA.
True.
False.
2. California law has provided disability rights protections for over 30 years.
True.
False.
3. The ADA is the first federal law to outlaw disability
discrimination.
True.
False.
4. The ADA, as interpreted by the U.S. Supreme Court
in Sutton v. United Airlines, Inc., protects people with
physical or mental impairments that can be mitigated
by medication or devices such as glasses or hearing aids.
True.
False.
5. The Sutton decision interpreted the ADA as prohibiting discrimination on the basis of a disability,
even if the disability only existed in the past.
True.
False.
6. It is difficult for people with mitigated impairments—
such as diabetes, depression, and epilepsy—to be
protected from discrimination under the ADA.
True.
False.
7. Mitigating measures under the ADA include medications as well as equipment.
True.
False.
8. The ADA does not apply to private businesses.
True.
False.
9. The California Fair Employment and Housing Act
(FEHA) was amended in 2000 to adopt the same definition of disability contained in the ADA.
True.
False.
10. The California disability rights laws apply to a narrower group of people than the group protected by the
federal ADA.
True.
False.
11. FEHA protects people whose impairments limit,
but do not substantially limit, a major life activity.
True.
False.
12. Both California law (the Unruh Civil Rights Act and
the Blind and Other Physically Disabled Persons Act)
and Title 3 of the ADA allow parties to recover damages
for disability discrimination by private businesses.
True.
False.
13. The Unruh Civil Rights Act provides damages in the
sum of up to treble actual damages or statutory damages of $4,000 per violation.
True.
False.
14. A private business can be liable for a violation of
the California disability rights laws each time a person
with a disability is deterred from access to the business.
True.
False.
15. The ADA requires people with disabilities to notify
private businesses of any violations before filing a lawsuit.
True.
False.
16. The district court in Molski v. Mandarin Touch
Restaurant held that the only factor in deciding whether
a person with a disability is a vexatious litigant is
whether he or she has filed more than 300 lawsuits.
True.
False.
17. In Turner v. Association of American Medical
Colleges, the superior court held that California law
should be applied to accommodation requests made
by California examinees sitting for the Medical College
Admission Test.
True.
False.
Address
City
State/Zip
E-mail
Phone
State Bar #
INSTRUCTIONS FOR OBTAINING MCLE CREDITS
1. Study the MCLE article in this issue.
2. Answer the test questions opposite by marking
the appropriate boxes below. Each question
has only one answer. Photocopies of this
answer sheet may be submitted; however, this
form should not be enlarged or reduced.
3. Mail the answer sheet and the $15 testing fee
($20 for non-LACBA members) to:
Los Angeles Lawyer
MCLE Test
P.O. Box 55020
Los Angeles, CA 90055
Make checks payable to Los Angeles Lawyer.
4. Within six weeks, Los Angeles Lawyer will
return your test with the correct answers, a
rationale for the correct answers, and a
certificate verifying the MCLE credit you earned
through this self-assessment activity.
5. For future reference, please retain the MCLE
test materials returned to you.
ANSWERS
Mark your answers to the test by checking the
appropriate boxes below. Each question has only
one answer.
1.
■ True
■ False
2.
■ True
■ False
3.
■ True
■ False
4.
■ True
■ False
18. California has played a leading role in the early
development of disability discrimination law.
True.
False.
5.
■ True
■ False
6.
■ True
■ False
7.
■ True
■ False
8.
■ True
■ False
19. Courts in states other than California generally
have interpreted their state laws to define disability in
the same way as the ADA.
True.
False.
9.
■ True
■ False
10.
■ True
■ False
11.
■ True
■ False
12.
■ True
■ False
13.
■ True
■ False
20. The Unruh Civil Rights Act and the Blind and Other
Physically Disabled Persons Act, like FEHA, are designed
to regulate employer-employee relationships.
True.
False.
14.
■ True
■ False
15.
■ True
■ False
16.
■ True
■ False
17.
■ True
■ False
18.
■ True
■ False
19.
■ True
■ False
20.
■ True
■ False
pro se plaintiffs who file multiple, frivolous
lawsuits against the same defendant. Recently
courts have taken the position that a person
with a disability who files numerous complaints over access barriers may be considered
a vexatious litigant if he or she seeks compensation for similar injuries and resolves or
drops many of the cases without litigation. In
Molski v. Mandarin Touch Restaurant,29 the
plaintiff filed a suit claiming the defendant’s
inaccessible restroom caused him injury.
Because the plaintiff had filed over 300 suits
began enacting its laws in this area 30 years
ago and since the ADA went into effect 15
years ago. They also note that the number of
people with disabilities who abuse the disability laws are very few. Business advocates
respond that repetitive lawsuits are simply
extortion attempts that do not further the
goals of the disability rights laws but unduly
interfere with the legitimate conduct of business activities.
Legislators have attempted to address this
perceived problem through legislative pro-
Disability rights advocates argue that restrictions for
vexatious litigants in the context of disability
discrimination litigation unduly restrict the ability of
people with disabilities to enforce access laws that
businesses have been ignoring since California began
enacting its laws in this area 30 years ago and since
the ADA went into effect 15 years ago.
against different defendants for access problems in the several years prior to this suit
and had filed 13 suits claiming similar injuries
against other defendants for the same four-day
period of the claim in this case, the court
found that he was a vexatious litigant. The
Molski court considered five factors: 1) the
plaintiff’s history of litigation, 2) his motive
in pursuing the lawsuit at issue, 3) whether
the plaintiff was represented by counsel, 4)
whether the plaintiff had caused unnecessary expense to other parties or posed an
unnecessary burden on the courts, and 5)
whether other sanctions would sufficiently
protect the parties.
In finding that plaintiff Molski was a vexatious litigant, the court relied primarily on
the plaintiff’s history of filing lawsuits and
found that his motive was a bad faith desire
to extract cash. The court also found that the
plaintiff’s lawyer acted in bad faith by advising defendants not to defend themselves. The
court sanctioned Molski and his attorney by
requiring them to request court approval
before filing any future complaints.
Disability rights advocates argue that
restrictions for vexatious litigants in the context of disability discrimination litigation
unduly restrict the ability of people with disabilities to enforce access laws that businesses have been ignoring since California
posals that would require claimants to notify
businesses in advance of filing suit and provide businesses with an opportunity to fix the
identified problems.30 The proposals, however,
have been drafted so broadly that they would
excuse businesses not just for access barriers
but also for intentionally excluding people
with disabilities, such as through a blanket
“no pets” policy that is used to exclude blind
persons with service dogs.
These proposals also have failed to recognize that federal and California law impose
affirmative obligations on businesses to make
their facilities accessible. Like health and
safety laws, OSHA requirements, and other
civil rights laws, disability laws do not defer
compliance until after a complaint is filed. The
statutes also do not require the person with
a disability to educate a business about prohibitions against disability discrimination
after a violation, thereby acting as an access
consultant. Still, many businesses fail to comply with access laws despite the many years
that they have been in existence.
A more palatable approach for businesses
and people with disabilities may be a legislative response to the Del Taco and DaimlerChrysler decisions. This would involve an
increase in statutory damages when notice of
a violation is given and a business fails to
make its facility accessible. If modifications are
made and a plaintiff nevertheless files suit, the
business could be permitted to offer evidence
of the modifications as mitigation of the
alleged violation.
Disability Law and Standardized Testing
The differences between California and federal law have now extended beyond employment and physical barriers. Recently, a
California court ruled that California’s broad
definition of “disability” also applies in the
realm of standardized testing.
In July 2005, a number of California students (along with the International Dyslexia
Association and the National Disabled
Students Union) filed a lawsuit against the
Association of American Medical Colleges
(AAMC) claiming that they should be
afforded additional time to take the Medical
College Admission Test (MCAT) as a reasonable accommodation under state law.31 In
Turner v. Association of American Medical
Colleges, the students claimed that their various disabilities—including attention deficit
hyperactivity disorder and dyslexia—affect the
conditions, manner, and duration necessary
for their completion of the MCAT.32 The
plaintiffs are seeking accommodations for
their disabilities.
At issue in this lawsuit is the AAMC’s
eligibility criteria for testing accommodations. Specifically, the plaintiffs challenged
the AAMC’s use of the ADA “substantial
limitation” analysis instead of California’s
“limitation” disability standard when reviewing accommodation requests made by
California examinees. The plaintiffs argued
that the AAMC’s failure to provide accommodations violates their civil rights guaranteed by California law. This echoes the position of many disability rights advocates. The
plaintiffs also maintained that because the
MCAT is not designed to measure reading or
writing speed but instead assesses reasoning
skills, analytical abilities, and knowledge of
scientific topics, extra time would not compromise the predictive validity or integrity of
the exam. Without the requested accommodations, the plaintiffs claimed that they cannot demonstrate their knowledge and skills by
their performance on the MCAT.
The plaintiffs asserted claims under
California’s Unruh Civil Rights Act33 and
the Blind and Other Physically Disabled
Persons Act34 but none under the ADA. The
Unruh Civil Rights Act and the Blind and
Other Physically Disabled Persons Act are
public accommodations laws and, unlike
FEHA, are not designed to regulate employeremployee relationships. Nevertheless, both
statutes expressly invoke FEHA’s more expansive definition of “disability.”35
In an interim ruling, the court concluded
that the AAMC should apply California’s
disability laws when considering testing
accommodations for California examinees
who do not qualify as “disabled” under the
ADA.36 Testing organizations and other public entities will, no doubt, challenge this ruling on the grounds that it compromises the
uniformity and predictive validity of standardized exams. They also will argue, as did
the AAMC, that testing conditions will be
anything but uniform if public entities are
required to apply different state disability
discrimination laws to examinees from different states instead of a uniform standard
that comports with the ADA.
Arguably, the court’s ruling creates an
uneven playing field for MCAT examinees
with similar mental or physical limitations
residing in different states. However, the
court acknowledged that the scores of examinees whose disabilities are accommodated
pursuant to California law could be “flagged”
in some way. But this solution, while seemingly leveling the playing field, may do more
harm than good by singling out those who
received an accommodation for discriminatory treatment when scores are reviewed for
admissions purposes. Thus a victory for examinees seeking accommodations may be transitory and may ultimately result in undercutting the ADA’s objectives, which focus on
placing persons with disabilities on an equal
footing with others rather than doling out
special privileges.
Nevertheless, Congress allows states to
provide more expansive protections than
those contained in the ADA.37 And the court
in Turner acknowledged that the task of
applying a plethora of state disability laws to
examinees located in various states may prove
burdensome. However, the court held that the
logistical nightmare painted by the AAMC did
not outweigh California’s interest in protecting its disabled citizens. This result was in
part due to the recognition that the application of different state disability laws is no
more burdensome on standardized test organizations than the complex task national
employers face when adhering to a variety of
state labor and employment laws.
Other decisions involving testing accommodations reveal that the disability discrimination statutes in states other than California
generally are consistent with the ADA. Thus
courts situated outside California typically
defer to the ADA’s requirements when determining whether a denial of accommodations
is lawful or not.
For example, in a case decided by the
Second Circuit Court of Appeals, a former
medical student claimed that the National
Board of Medical Examiners (NBME) discriminated against her when it denied her
accommodation request.38 After twice failing
the medical licensing examination, the student
requested extra time to take the exam because
she has dyslexia and attention deficit disorder. Thereafter, she sued the NBME for disability discrimination, alleging both state and
federal claims.39 The court held that the
denial of the plaintiff’s accommodation
request was not discriminatory. In reaching
its conclusion, the court was persuaded by
many of the same arguments advanced by the
AAMC in the Turner case in California.
Specifically, the court emphasized that the
NBME’s procedures are designed to ensure
that individuals with “bona fide” disabilities receive accommodations and that those
without disabilities do not gain an unfair
advantage when sitting for the exam.40 It
further noted that if the NBME departs from
its procedure, including its use of the ADA’s
substantial limitation test, it would alter the
substance of its work or “product” because
the resulting scores would not be guaranteed to reflect each examinee’s abilities accurately.41
In Massachusetts, a medical student with
attention deficit hyperactivity disorder and a
learning disability was refused a preliminary
injunction requiring the NBME to grant her
extra time on a medical licensing examination.42 The district court noted that because
the state public accommodation statute provides the same kinds of protections as the
ADA, the ADA standard is applicable to the
plaintiff ’s federal and state claims. 43
Accordingly, the court applied the ADA’s
substantial limitation standard, determined
that the plaintiff was unlikely to show that
she was disabled, and ultimately denied the
plaintiff’s motion for a preliminary injunction.
A district court in Ohio reached a similar
result in a case involving a medical student
with a reading disorder and a generalized
anxiety disorder.44 Applying the ADA’s disability standard, the medical student failed to
prove that his reading disorder substantially
limited his ability to learn and thus did not
warrant extra time for the completion of his
written exams.45
In West Virginia, a student who claimed
to have a learning disability sued his college
for its failure to provide him with reasonable
testing accommodations.46 In addressing the
plaintiff’s claims under the ADA and state law,
the district court applied the ADA’s disability standard and also relied upon Department
of Justice regulations that described disability as “[a]ny mental or physiological disorder
such as…specific learning disabilities.”47 The
court granted the college’s summary judgment motion, concluding that the student
failed to show that he had a specific learning
disability. Also, the court emphasized that
the accommodation requests made by the
student, including taking exams orally and
receiving extra credit for passing scores,
Legislative Intent.
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would have given him an unfair advantage
over nondisabled students or would have
lowered the standards for course study at
the college.48
In Minnesota, an unsuccessful candidate
for teacher certification sued the state board
alleging that its refusal to waive the math
portion of a standardized licensure test was
discriminatory.49 The plaintiff was diagnosed
with two learning disabilities, dyslexia and
dyscalculia. Applying the ADA’s disability
standard to the plaintiff’s state disability discrimination claims, the district court deemed
the candidate’s accommodation request unreasonable and granted summary judgment in
favor of the state board.
It is fitting that California, which played
a leading role in the early stages of the development of disability discrimination law, once
again finds itself apart from the rest of the
nation in this area. For the sake of people with
disabilities and the businesses with which
they interact on a daily basis, hopefully it
will not take a span of 30 years and substantial litigation for the courts to settle what
is and is not a disability and what accommodations are required to prevent discrimination.
■
1
1973 Cal. Stat. 2498, 2598, ch. 1189, §1.
The Fair Employment and Housing Act, GOV’T CODE
§12926.1.
3 The Unruh Civil Rights Act, CIV. CODE §§51 et seq.
4 The Blind and Other Physically Disabled Persons
Act, CIV. CODE §54.
5 The Rehabilitation Act of 1973, 29 U.S.C. §§791794d.
6 The Fair Housing Amendments Act of 1988, 42
U.S.C. §§3601 et seq.
7 The Americans with Disabilities Act of 1990, 42
U.S.C. §§12101 et seq.
8 42 U.S.C. §§12101 et seq.
9 Sutton v. United Airlines, Inc., 527 U.S. 471, 480
(1999).
10 Id.
11 Id. at 482-83.
12 Anyan v. New York Life Ins. Co., 192 F. Supp. 2d
228, 244 (S.D. N.Y. 2002), aff’d, Anyan v. Nelson, 68
Fed. Appx. 260, 2003 WL 21523167 (2d Cir. 2003);
Sepulveda v. Glickman, 167 F. Supp. 2d 186, 191 (D.
P.R. 2001). But see Lawson v. CSX Transp., Inc., 245
F. 3d 916, 929 (7th Cir. 2001) (treated diabetes may
still limit ability to metabolize food).
13 Swanson v. University of Cincinnati, 268 F. 3d 307,
317 (6th Cir. 2001); Cooper v. Olin Corp., 246 F. 3d
1083, 1091 (8th Cir. 2001); Spades v. City of Walnut
Ridge, 186 F. 3d 897, 900 (8th Cir. 1999); Robb v.
Horizon Credit Union, 66 F. Supp. 2d 913, 919 (C.D.
Ill. 1999).
14 Brunke v. Goodyear Tire & Rubber Co., 344 F. 3d
819 (8th Cir. 2003); Arnold v. City of Appleton, Wis.,
97 F. Supp. 2d 937, 949 (E.D. Wis. 2000).
15 2000 Cal. Stat. ch. 1049, §5 (SB 2222; AB 2222).
16 GOV’T. CODE §12926.1.
17 Compare CIV. CODE §52(a) and CODE CIV. PROC.
§128.7.
18 42 U.S.C. §§12181 et seq.
19 CIV. CODE §§51 et seq.
20 CIV. CODE §52.
21 CIV. CODE §54.
2
22
CIV. CODE §54.3.
U.S. DEPARTMENT OF JUSTICE, THE AMERICANS WITH
D ISABILITIES A CT T ITLE III T ECHNICAL A SSISTANCE
MANUAL §III-8.2000 (Nov. 1993).
24 42 U.S.C. §12205.
25 See CIV. CODE §338; Kramer v. Regents of the Univ.
of Cal., 81 F. Supp. 2d 972, 977-78 (1999); Richards
v. CH2M Hill, 26 Cal. 4th 798 (2001).
26 See Lentini v. California Ctr. for the Arts, 370 F. 3d
837, 847-49 (9th Cir. 2004) (The plaintiff established
sufficient evidence that she was deterred from attending a performance at the facility by showing that the
plaintiff previously had attended events there and
would have gone back but for the violation.); see also
Botoson v. Fitzhugh, 13 F. Supp. 2d 1047, 1051-52 (D.
Cal. 1998) (holding that if a person is deterred from
going back on a daily basis to a facility, deterrence alone
suffices to establish a claim for actual damages).
27 Doran v. Del Taco, Inc., 2005 WL 1389270 (C.D.
Cal. 2005).
28 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553,
577 (2004). See also Tipton-Whittingham v. City of
L.A., 34 Cal. 4th 604, 608 (2004) (To recover private
attorney general fees, a plaintiff must reasonably
attempt to settle before litigation.).
29 Molski v. Mandarin Touch Rest., 359 F. Supp. 2d
924, 926-27, 934, 937 (C.D. Cal. 2005).
30 See, e.g., AB 20 (2005); SB 855 (2005) (Cal.).
31 Turner v. American Ass’n of Med. Colleges, No. RG
04166148 (Alameda County Super. Ct. (Cal.), Feb. 18,
2005) (The plaintiffs erroneously identified the name
of the defendant in their complaint.). The MCAT is a
timed, standardized entrance exam used by medical
schools nationwide. It is regarded as a reliable predictor of a candidate’s success in medical school and on
the United States Medical Licensing Examination (commonly referred to as the “national boards”) required
for medical licensure.
32 Two of the named plaintiffs in the Turner case,
Andres Turner and Brendan Pierce, have dropped out
of the lawsuit. Their respective accommodation requests
were approved by the AAMC shortly after the case was
filed. As stated in the complaint, Pierce has been diagnosed with dyslexia and attention deficit hyperactivity
disorder. Turner has been diagnosed with an unspecified learning disability.
33 CIV. CODE §§51 et seq.
34 CIV. CODE §54.
35 C I V . C O D E §§§51, 52, 54; G O V ’ T C O D E
§§12926(i)(1), 12926(k)(1).
36 Turner, No. RG 04166148 (order granting the
plaintiffs’ motion for summary adjudication).
37 42 U.S.C. §12201(b); see 42 U.S.C. §12189.
38 Powell v. National Bd. of Med. Exam’rs, 364 F. 3d
79 (2d Cir. 2004).
39 The court did not address the plaintiff’s state claims
because they were not the subject of her appeal. Id. at
81.
40 Id. at 89-90.
41 Id.
42 Baer v. National Bd. of Med. Exam’rs, No. Civ. A.
05-10724-GAO, 2005 WL 1027289 (D. Mass. May 3,
2005).
43 Id. at *3 n.1.
44 Brown v. University of Cincinnati, No. C-1-04-164,
2005 WL 1324885 (S.D. Ohio June 3, 2005).
45 Because the court granted summary judgment to the
university on the plaintiff’s federal claims, it declined
to exercise supplemental jurisdiction over the plaintiff’s
state claims. Id. at *16.
46 Dubois v. Alderson-Broaddus Coll., Inc., 950 F.
Supp. 754, 758 (N.D. W.Va. 1997).
47 Id. at 758.
48 Id. at 760-61.
49 Jacobsen v. Tillmann, 17 F. Supp. 2d 1018 (D.
Minn. 1998).
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by STEVEN D. ATLEE and BRIAN F. McMAHON
SEARCH
The use of trademarked terms by Web search pages has
challenged traditional boundaries of trademark protection
TERMS
engines. For example, a business may contract
with a search engine company to ensure that
links to its Web site are prominently displayed nearby the actual search results. This
would seem a perfectly appropriate business
strategy in order to maximize the effectiveness
of a search engine’s capabilities for the benefit of that business. Problems, however, may
arise under the Lanham Act if the search
term just happens to be another’s trademark.
Under the Lanham Act, a plaintiff must
prove five elements in order to succeed on a
claim of trademark infringement: 1) the plaintiff possesses a protectable mark, 2) the defendant uses this mark, 3) the defendant uses this
mark in commerce, 4) the mark is used “‘in
connection with the sale, offering for sale, distribution, or advertising’ of goods and services,” and 5) the defendant’s use of the mark
is likely to cause confusion.3 In the context of
trademark use in cyberspace, the first four ele-
ments are readily met in most instances, and
they have not warranted substantial treatment in case law.4 The likelihood of confusion
element, however, is frequently litigated.
To determine likelihood of confusion, various circuits employ some type of multifactor
test, commonly referred to by the name of the
seminal case in that circuit.5 In the Ninth
Circuit, courts determine the likelihood of
confusion by examining the Sleekcraft factors,
an eight-factor test first employed in 1979 in
Steven D. Atlee is a partner in the litigation department of Latham & Watkins LLP and specializes in
litigation of intellectual property, unfair competition, and class action matters. Brian F. McMahon
is an associate with Latham & Watkins in Los
Angeles and specializes in intellectual property
litigation. They would like to acknowledge the
assistance of Latham & Watkins summer associate
Michele Lorbieski.
KEN CORRAL
AS INTERNET COMMERCE has become a more
prominent part of everyday life and business, it has become increasingly important for
companies to ensure that their Web pages
get noticed.1 Businesses have devised all sorts
of strategies to gain visibility on search engines
and place links to their sites in front of users.
Some Webmasters have gone so far as to
download invisible copies of dictionaries
onto their Web sites in the hopes of attracting users who insert any cognizable word
into a search engine’s query box. Others have
employed a strategy known as “stuffing,”
which lists particular words many times in the
Web site’s HTML for the sole purpose of
increasing the relevancy of the business’s Web
site in response to particular search terms.2
In addition to such unsavory methods,
there are more scrupulous techniques available, such as buying sponsored ads based
upon certain key words from the major search
AMF, Inc. v. Sleekcraft Boats.6 The test is a
pliant one, and courts are free to determine
which factors warrant the most serious consideration depending on the facts in each
case. Thus, if five factors weigh in favor of the
defendant, but the three most important
weigh in favor of the plaintiff, courts can
conclude that a likelihood of confusion exists.
Also, courts need not consider every factor,
and they are free to create additional factors
if the need arises.7 In general, courts will
look to the following: 1) similarity of the
conflicting designations, 2) relatedness or
proximity of the two companies’ products or
services, 3) strength of the plaintiff’s mark, 4)
marketing channels used, 5) degree of care
isfied that the mark is sufficiently famous, a
plaintiff may obtain relief if further showings
are made that “the defendant is making commercial use of the mark in commerce; the
defendant’s use began after the plaintiff’s
mark became famous; and the defendant’s use
presents a likelihood of dilution of the distinctive value of the mark.”11 Because the
reach of the FTDA is “quite narrow” and
applies only to a “limited category of trademarks,” plaintiffs may have greater success in
attempting to show a likelihood of confusion
under the Lanham Act.12
The Ninth Circuit first applied the likelihood
public [was] likely to be somehow confused
about the source or sponsorship of West
Coast’s moviebuff.com Web site—and somehow to associate that site with Brookfield.”15
The court began its Sleekcraft analysis by
addressing the domain name issue, concluding that a likelihood of confusion did exist sufficient to support plaintiff’s request for a preliminary injunction.16 It then turned to the use
of trademarks in metatags. Acknowledging
that “all eight likelihood of confusion factors…with the possible exception of purchaser care…apply here as they did in [the]
analysis of domain names,” the court
expressed its view that while any confusion
resulting from metatag use was “not as great”
likely to be exercised by purchasers in selecting goods, 6) defendant’s intent in selecting
its mark, 7) evidence of actual confusion,
and 8) likelihood of expansion in product
lines.8
If a plaintiff cannot meet its burden in
showing a likelihood of confusion, relief is not
necessarily precluded. Under the Federal
Trademark Dilution Act (FTDA), a plaintiff
may seek injunctive relief (and in some cases
damages) if another party wrongfully uses the
plaintiff’s famous trademark.9 The rigorous
requirement that the mark be famous, however, renders the analysis of a claim of dilution under the FTDA quite dissimilar to a
claim for infringement under the Lanham
Act. To begin with, courts will look at a variety of factors, including those expressly provided by statute, to determine whether the
mark is sufficiently famous to warrant protection under the FTDA.10 If the court is sat-
of confusion Sleekcraft factors to cyberspace
in 1999 in Brookfield Communications, Inc.
v. West Coast Entertainment Corporation.13
The plaintiff, which was “founded in 1987 for
the purpose of creating and marketing software and services for professionals in the
entertainment industry,” had been using the
“MovieBuff” mark since 1993, had received
California state trademark registration in
1994, and had received federal trademark
registration in 1998. The defendant, which
was then one of the nation’s largest video
rental store chains, had been using the plaintiff’s yet-to-be federally registered trademark
“MovieBuff” as both a domain name
(Moviebuff.com) and as a metatag since
1996.14 After determining that the plaintiff
was the senior user (and therefore deeming the
mark protectable under the Lanham Act),
the court went on to examine whether,
through the defendant’s use of the mark, “the
as in the domain name context, such confusion was still actionable as “initial interest
confusion.” The court reasoned:
Web surfers looking for Brookfield’s
“MovieBuff” products who are taken
by search engine to “westcoastvideo
.com” will find a database similar
enough to “MovieBuff” such that a
sizeable number of consumers who
were originally looking for Brookfield’s
product will simply decide to utilize
West Coast’s offerings instead.
Although there is no source confusion
in the sense that consumers know they
are patronizing West Coast rather than
Brookfield, there is nevertheless initial interest confusion in the sense that,
by using “moviebuff.com” or
“MovieBuff” to divert people looking for “MovieBuff” to its Web site,
West Coast improperly benefits from
The Lanham Act in Cyberspace
the goodwill that Brookfield developed in its mark.17
As a result, West Coast was preliminarily
enjoined from using Brookfield’s marks as a
domain name and in metatags.18
The circumstances in Brookfield, however, can be viewed quite differently from
the use of trademarks to generate banner
advertisements on pages of search engine
results. While the Brookfield opinion focused
on the consumer’s plausibly likely initial confusion, given the growing sophistication of
Internet users in the past few years, it may be
that banner advertisements do not necessarily confuse today’s Internet user even momentarily.19 Most Internet users today are suffi-
will be confused as to the source, identity, or
sponsorship of the advertiser’s product.’”20
Given the threshold for invoking the defense
of nominative use, however, it is of little
value in instances in which confusion is likely.
A defendant who intends to assert the
nominative use defense when confusion is
likely must make three showings, first articulated in New Kids on the Block v. News
America Publishing, Inc.:
First, the product or service in question
must be one not readily identifiable
without use of the trademark; second,
only so much of the mark or marks
may be used as is reasonably necessary
to identify the product or service; and
Identification of the manufacturer or sponsor
of the good or the provider of a service. And
the wrong protected against was traditionally
equally limited: Preventing producers from
free-riding on their rivals’ marks.”23 The
court identified “a class of cases where the use
of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one.” This class of cases, in which use of
the mark is merely nominative, “lies outside
the strictures of trademark law.” Concluding
that the defendants could not possibly refer
to the New Kids on the Block without particularly naming them, that the defendants did
not use the mark in question beyond what
ciently savvy to recognize and distinguish
among Web sites and advertisements of competing companies. Moreover, even if there
were any confusion stemming from the use of
another’s trademark, such use quite possibly could be protected as a “nominative” or
“fair” use.
third, the user must do nothing that
would, in conjunction with the mark,
suggest sponsorship or endorsement
by the trademark holder.21
In New Kids, various newspapers had
established long-distance toll numbers in
order to gather data to determine which Kid
was most popular. The plaintiff filed several
claims, among which was a claim for common
law trademark infringement. The district
court granted summary judgment in favor
of the defendants on First Amendment
grounds, but on appeal, a desire to avoid the
constitutional issue caused the Ninth Circuit
to examine whether the plaintiff had viable
claims in the first instance.22
In addressing the trademark infringement
issue, the court began with the purpose of
trademark law: “Throughout the development of trademark law, the purpose of trademarks remained constant and limited:
was necessary for identification, and that the
defendants did nothing to suggest sponsorship
or endorsement, the newspapers were not
liable for any claim of trademark infringement.24 Rather, their use was merely nominative.
Whether the nominative use defense may
be successfully employed in the context of
generating Internet banner advertisements
will depend greatly on the facts of each case.
For instance, the Ninth Circuit recently
refused to extend nominative use to protect
the defendants’ use of plaintiffs’ trademarks
in Playboy Enterprises, Inc. v. Netscape Communications Corporation.25 There, citing
New Kids on the Block, the court concluded
that because other words besides the plaintiffs’
trademarks were available to identify the
goods or products sold, the defendants’ use
of “playboy” and “playmate” ran “afoul of
the first requirement for nominative use.”26
Nominative and Fair Use Defenses
Generally, nominative use of a trademark
occurs when a party refers to a mark as a matter of incidental use. Probably the most prevalent form of nominative trademark use is
comparative advertising, in which a business
uses another’s trademark only for purposes of
making truthful product comparisons. More
thoroughly stated, “The use of a competitor’s
trademark for purposes of comparative advertising is not trademark infringement ‘so long
as it does not contain misrepresentations or
create a reasonable likelihood that purchasers
This rationale may have wide application:
In many instances, given the breadth of the
English language, it will be difficult for a
defendant to claim that the only word available to identify a good in a search term happens to be the trademark of a competitor.
Whether use of a competitor’s trademark
in search terms constitutes a fair use, however,
is a different matter. Until recently, defendants in the Ninth Circuit could not rely on
the defense of fair use if the plaintiff could
show that there was a likelihood of confusion.27 For this reason, some courts have not
even addressed the issue.28 The defense is
now available, however, as the Supreme Court
recently overruled the Ninth Circuit in KP
sion.”30 This conclusion was consistent with
Ninth Circuit precedent, which previously
had prohibited reliance on any fair use defense
if there exists a likelihood of confusion. In KP
Permanent Make-Up, the Supreme Court
overruled this line of cases, reasoning that “it
is only when a plaintiff has shown likely confusion by a preponderance of the evidence that
a defendant could have any need of an affirmative defense.”31 Therefore, the fair use
defense may now be invoked even in those
instances in which likelihood of confusion is
manifest.32
In order to assert the fair use defense, one
must comport with the requirements of the
Lanham Act itself. Generally, a party may use
language.36 Furthermore, the court concluded
that this marketing activity was conducted in
good faith. As a result, no Lanham Act liability would follow.
In Government Employees Insurance Company v. Google, Inc.,37 an insurance company, Geico, sued two Internet search engine
companies, Google and Overture, alleging
several claims, including trademark infringement under the Lanham Act.38 The defendants were engaging in a practice whereby it
would “sell advertising linked to search terms,
so that when a consumer enters a particular
search term, the results page displays not
Permanent Make-Up, Inc. v. Lasting Impression I, Inc.29
In KP Permanent Make-Up, the parties
were both sellers of permanent makeup, a
product comprising an injectable solution
used to disguise injuries and blemishes. At
issue was whether the term “microcolor,” a
federally registered trademark of the defendant, could be used by the plaintiff to describe
the plaintiff’s own products. In the suit for
declaratory judgment, the U.S. District Court
for the Central District of California granted
summary judgment to the plaintiff, holding
that such use of the trademark was a fair
use. The court did not reach the issue of
whether there was a likelihood of confusion
under the Lanham Act. On appeal, the Ninth
Circuit reversed and remanded, concluding
that “it was error for the District Court to
have addressed the fair use defense without
delving into the matter of possible confu-
another’s trademark if it is used to describe
the defendant’s product, and such use is done
“fairly and in good faith.”33 For example, in
Wonder Labs, Inc. v. Procter & Gamble
Company,34 the plaintiff alleged, among other
things, that under the Lanham Act the defendant was infringing its trademark, Dentist’s
Choice, a brand it used to market its toothbrushes.
The defendant, in marketing its Crest
brand of toothpaste, had been referring to its
own product as “the dentists’ choice,” and
therefore asserted the defense of fair use.35
The court concluded that Proctor & Gamble
was indeed protected by the doctrine of fair
use because the defendant was using the
phrase in its “primary sense,” not as a trademark “to identify the source of the product”; the Crest mark always accompanied
the descriptive phrase; and the phrase was
often followed by modifying or explanatory
only a list of Web sites generated by the
search engine program using neutral and
objective criteria, but also links to Web sites
of paid advertisers.”39 Geico claimed that
this practice, when using Geico’s trademarks
as search terms, constitutes trademark
infringement. The defendants countered with
a motion to dismiss, claiming, among other
things, that their use of the mark was not a
use in commerce as contemplated by the
Lanham Act and that their use of the mark
did not involve displaying the mark to consumers, and no consumer confusion could
result from such use.40 The court denied the
motion:
The complaint clearly alleges that
defendants use plaintiff’s trademarks to
sell advertising, and then link that
advertising to results of searches. Those
links appear to the user as “sponsored
links.” Thus, a fair reading of the com-
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plaint reveals that plaintiff alleges that
defendants have unlawfully used its
trademarks by allowing advertisers to
bid on the trademarks and pay defendants to be linked to the trademarks.41
The court continued, “Where keyword
placement of banner advertising is being sold,
advertising is being sold, the portals and
search engines are taking advantage of the
drawing power and goodwill of these famous
marks. The question is whether this activity
is fair competition or whether it is a form of
unfair free riding on the fame of well-known
marks.” 42 Although Geico’s trademark
infringement claims initially survived the
motion to dismiss,43 the suit was ultimately
dismissed for lack of evidentiary support.44
Playboy Enterprises v. Netscape Communications45 involved similar facts. The
defendants were two search engine companies
generating revenue by way of advertising
that “require[d] adult-oriented companies to
link their ads” so that they would appear
whenever the words “playboy” and “playmate” were used in a search. The plaintiff held
federal trademark rights to these words. Like
the Google plaintiffs, Playboy filed a claim of
trademark infringement, alleging that such a
practice was unlawful. Though the district
court had granted summary judgment in
favor of the defendants, the Ninth Circuit
reversed and remanded because genuine issues
of material fact existed as to whether such
business practices were prohibited by the
terms of the Lanham Act.46
Interestingly enough, the court likened
this case to that of Brookfield: “In this case,
PEI [Playboy Enterprises, Inc.] claims that
defendants, in conjunction with advertisers,
have misappropriated the goodwill of PEI’s
marks by leading Internet users to competitors’ Web sites just as West Coast video misappropriated the goodwill of Brookfield’s
mark. Some consumers, initially seeking PEI’s
sites, may initially believe that unlabeled banner advertisements are links to PEI’s sites or
to sites affiliated with PEI. Once they follow
the instructions to ‘click here,’ and they access
the site, they may well realize that they are not
at a PEI-sponsored site. However, they may
be perfectly happy to remain on the competitor’s site, just as the Brookfield court surmised that some searchers initially seeking
Brookfield’s site would happily remain on
West Coast’s site. The Internet user will have
reached the site because of defendants’ use of
PEI’s mark. Such use is actionable.”47 A week
after the Ninth Circuit’s decision, the parties
settled the lawsuit for undisclosed terms.48
Both the Google and Playboy cases were
expressly distinguished most recently in 1-800
Contacts, Inc. v. WhenU.com, Inc.49 There,
the Second Circuit reversed and remanded a
grant of a preliminary injunction barring
WhenU from employing its “SaveNow” software. The “SaveNow” software, once willingly downloaded by Internet users, would
“generat[e] pop-up advertisement windows”
that corresponded to the particular Internet
user’s “‘in-the-moment’ activities.”50 In other
words, the software would scan the words
typed into a search engine or the words
appearing on an Internet user’s computer
screen and then generate pop-up advertising
that matched those results. In effect, the software would generate advertising that related
to, and in some cases competed with, the
products the Internet user was either currently viewing or in which the user had an
interest.
In reversing and remanding the district
court’s grant of a preliminary injunction, the
court first determined that WhenU is not
“using” 1-800’s trademark in the manner
that use is contemplated by the Lanham Act:
“WhenU does not ‘use’ 1-800’s trademark in
the manner ordinarily at issue in an infringement claim: it does not ‘place’ 1-800 trademarks on any goods or services in order to
pass them off as emanating from or authorized by 1-800.”51 In contrast to the use
alleged in Google, WhenU’s alleged use of
trademarks is entirely “internal,” limited
only to inclusion in the “SaveNow” database, inaccessible to the Internet user or the
general public. The use “is analogous to a[n]
individual’s private thoughts about a trademark. Such conduct simply does not violate
the Lanham Act….”52
The court then remarked that, in any
event, WhenU is not using 1-800’s trademarks “at all” because the trademark 1800CONTACTS and the Web site
www.1800contacts.com are too dissimilar.
WhenU uses only the Web site address in its
“SaveNow” database; as such, this does not
constitute use of a trademark.53 Finally, the
court distinguished the facts before it from
those in Playboy and Brookfield. Unlike banner ads in the former and metatags in the latter, pop-up ads do not “misdirect [Internet
users] away from [the plaintiff’s] website, or
alter in any way the results a [user] will
obtain when searching with the…trademark
or website address”54 Also, although the
court did not explicitly focus on it, the fact
that WhenU’s customers willingly chose to
download the “SaveNow” software would
tend to diminish the likelihood of consumer
confusion arising from the pop-up ads.
A Look into the Future
While these handful of cases may provide
some guidance, they seem insufficient to predict the outcome of future cases with any
certainty. Consider, for example, the following hypothetical scenario: An Internet user
goes to Google.com in order to find infor-
mation on hunting rifles. The user has heard
of Hatfield Hunting Rifles, and is vaguely
aware that it has a competitor. Typing the
search term, “Hatfield Hunting Rifles,” the
first entry in the search results is for Hatfield’s
primary competitor, McCoy Hunting Rifles.
The user looks at both the Hatfield Web site
and the McCoy Web site, considers the
options, and chooses the product that best fits
his or her requirements. Does Hatfield have
a claim for trademark infringement?
Under current law, the answer is not obvious. On the one hand, this smacks of the
initial interest confusion referred to in
Brookfield: “by using [Hatfield Hunting
Rifles] to divert people looking for [Hatfield
Hunting Rifles] to its Web site, [McCoy]
improperly benefits from the goodwill that
[Hatfield] developed in its mark.” Also, this
is the very wrong that trademark law was
designed to protect against: “Preventing producers from free-riding on their rivals’
marks,” as the court described in the New
Kids on the Block opinion. But for the
Internet user typing “Hatfield Hunting Rifles”
in Google’s query box, McCoy would not
have attracted that particular customer to
its Web site, at least in that particular instance,
and thus, McCoy gets a free ride on the
strength of the Hatfield mark. Furthermore,
McCoy cannot claim fair use, as “Hatfield”
does not describe its own product. And if
McCoy’s advertisements do not satisfy the
requisites of lawful comparative advertising,
its use of the Hatfield mark arguably is not
nominative because another term, such as
the generic “hunting rifles,” could just as
easily have been used to identify the pertinent
product as Hatfield Hunting Rifles.
On the other hand, it is not clear that the
consumer in this example was ever confused,
or that there was even any likelihood of confusion. This becomes problematic for Hatfield
on these assumed facts, because likelihood of
confusion is a statutory prerequisite to establishing a claim for trademark infringement
under the Lanham Act. Furthermore, the
Ninth Circuit has already begun to question
the applicability of Brookfield in the context
of banner advertisements. In Playboy, Judge
Berzon acknowledged in a concurrence that
the facts in Brookfield possibly limit the
extent of its reach:
[T]he metatag holding in Brookfield
[c]ould expand the reach of initial
interest confusion from situations in
which a party is initially confused to
situations in which a party is never
confused. I do not think it is reasonable
to find initial interest confusion when
a consumer is never confused as to
source or affiliation, but instead
knows, or should know, from the outset that a product or Web link is not
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related to that of the trademark holder
because the list produced by the search
engine so informs him.55
Indeed, if there is any sense that what McCoy
has done is wrong, perhaps the trademark
owner’s better remedy is to go to Congress
and ask for greater statutory protection to
address situations in which another’s mark is
used to generate traffic, but under circumstances that do not cause confusion.56
In this hypothetical situation, it may be
that the swing vote belongs to the consumer.
Courts have traditionally accommodated the
limited use of others’ trademarks when the
public derives a benefit from that use. In this
case, the consumer was diverted, if at all,
only as far as he or she was interested in
learning more about the competitor before
making a purchase. Setting aside any issues
of false advertising or misrepresentations,
one could argue that the effect on the consumer was purely beneficial, in that he or
she was able to gain exposure to additional
information and commercial choices in an
extremely efficient manner and was therefore able to make a more informed choice.
And lest anyone forget, protecting the consumer is one of the key purposes of the Lanham Act.57
The few cases to date involving the use of
trademarks on the Internet have yielded a
wide variety of outcomes that do not always
suggest easy or certain outcomes for future
cases. One thing is certain, however: In
Internet cases, no less than in brick-and-mortar cases, courts will need to continue to balance the competing interests of trademark
owners who have invested and built equity in
the brand, competitors striving for equal
attention in the marketplace, and consumers
entitled to accurate and fair information
about the products they buy.
■
1 A report published by the U.S. Department of Commerce on April 15, 2004, placed the value of U.S.
shipments, sales, and revenue stemming from e-commerce at over one trillion dollars in 2002. U.S. CENSUS
BUREAU, U.S. DEP’T OF COMMERCE, E-STATS (2004), at
www.census.gov/eos/www/papers/2002/2002finaltext
.pdf.
2 Joshua Paul, Trademarks on the Internet 20-21
(Presented at the Spring Meeting of the American
Intellectual Property Law Association, Apr. 18-20,
2002).
3 See Government Employees Ins. Co. v. Google, Inc.,
330 F. Supp. 2d 700, 702 (citing 15 U.S.C. §§1114,
1125(a)).
4 Recently, the requirement of “use in commerce” has
become more of an issue. See, e.g., the discussion of 1800 Contacts, Inc. v. WhenU.com, Inc., 04-0026cv(L), 04-0446-cv(CON), 2005 U.S. App. LEXIS 12711
(2d Cir. June 27, 2005).
5 R O G E R E. S C H E C H T E R & J O H N R. T H O M A S ,
INTELLECTUAL PROPERTY: THE LAW OF COPYRIGHTS,
PATENTS AND TRADEMARKS §29.1 (2003).
6 E.g., Brookfield Communications, Inc. v. West Coast
Ent’t Corp., 174 F. 3d 1036, 1046 (9th Cir. 1999) (citing AMF, Inc. v. Sleekcraft Boats, 599 F. 2d 341 (9th
Cir. 1979)).
7 Id. at 1054.
8 Sleekcraft, 599 F. 2d at 348-49.
9 15 U.S.C. §25(c).
10 The statute expressly provides eight factors that a
court may consider to determine whether a mark is
famous as contemplated by the FTDA: 1) the degree of
inherent or acquired distinctiveness of the mark, 2) the
duration and extent of use of the mark in connection
with the goods or services with which the mark is
used, 3) the duration and extent of advertising and publicity of the mark, 4) the geographical extent of the trading area in which the mark is used, 5) the channels of
trade for the goods or services with which the mark is
used, 6) the degree of recognition of the mark in the
trading areas and channels of trade used by the mark’s
owner and the person against whom the injunction is
sought, 7) the nature and extent of use of the same or
similar marks by third parties, and 8) whether the
mark was federally registered. A court may consider
other factors as well. 15 U.S.C. §25(c).
11 Avery Dennison Corp. v. Sumpton, 189 F. 3d 868,
873 (9th Cir. 1999) (citing Panavision Int’l, L.P. v.
Toeppen, 141 F. 3d 1316, 1324 (9th Cir. 1998)).
12 Id. at 875. See also, SCHECHTER, supra note 5, at
§30.2 (synthesizing various federal district and appellate cases to note that while marks such as Barbie,
Budweiser, and Porsche have been deemed sufficiently
famous to warrant protection under the FTDA, marks
like that of the board game Clue have not).
13 Brookfield Communications, Inc. v. West Coast
Ent’t Corp., 174 F. 3d, 1036, 1054 n.16 (9th Cir.
1999).
14 Id. at 1041-42. A metatag is part of a Web site’s
HTML code that is used generally to describe the contents of the Web site. See id. at 1044-45.
15 Id. at 1053.
16 Id. at 1061. Note that this case took place before an
amendment to the Lanham Act, the Anticybersquatting
Consumer Protection Act (ACPA), was passed on
November 29, 1999. The ACPA directly addresses the
improper use of another’s trademark as a domain
name. Today, a similar claim pertaining to domain
names would involve analysis under the plain language of the ACPA as well as a likelihood of confusion
analysis. See Coca-Cola Co. v. Purdy, 2005 WL 212797
(D. Minn. 2005).
17 Brookfield, 174 F. 3d at 1062.
18 Id. at 1066-67.
19 See Playboy Enters., Inc. v. Netscape Communications Corp., 354 F. 3d 1020, 1035 (9th Cir.
2004) (J. Berzon, concurring) (stating that Brookfield
should not be read to “expand the reach of initial
interest confusion to situations in which a party is
never confused”).
20 SSP Agric. Equip., Inc. v. Orchard-Rite, Ltd., 592 F.
2d 1096, 1103 (9th Cir. 1979) (citing Smith v. Chanel,
Inc., 402 F. 2d 562, 563 (9th Cir. 1968)).
21 New Kids on the Block v. News America Publ’g, Inc.,
971 F. 2d 302, 308 (9th Cir. 1992).
22 Id. at 304-05.
23 Id. at 305.
24 Id. at 308-09.
25 Playboy Enters., Inc. v. Netscape Communications
Corp., 354 F. 3d 1020 (9th Cir. 2004). See infra for a
discussion of this case.
26 Id. at 1030.
27 See KP Permanent Make-Up, Inc. v. Lasting
Impression I, Inc., 125 S. Ct. 542 (2004).
28 See, e.g., Playboy Enters., 354 F. 3d at 1029 (“A fair
use may not be a confusing one.”).
29 KP Permanent Make-Up, Inc., 125 S. Ct. at 551.
30 Id. at 547.
31 Id. at 549.
32 On remand, the Ninth Circuit reversed the district
court’s grant of summary judgment for the plaintiff. The
court determined that summary judgment was not
proper on the issue of fair use when there were genuine
issues of fact to determine. KP Permanent Make-up, Inc.
v. Lasting Impression I, Inc., 408 F. 3d 596 (9th Cir.
2005). The decision also directs the district court to
determine if there is a likelihood of confusion based on
the Supreme Court’s decision that allowing “some
degree of confusion does not foreclose the relevance of
the extent of any likely consumer confusion in assessing whether a defendant’s use is objectively fair.” Id.
at 607.
33 See 15 U.S.C. §1115(b)(4).
34 Wonder Labs, Inc. v. Procter & Gamble Co., 728 F.
Supp. 1058 (S.D. N.Y. 1990).
35 Id. at 1060.
36 Id. at 1064.
37 Government Employees Ins. Co. v. Google, Inc.,
330 F. Supp. 2d 700 (E.D. Va. 2004).
38 Id. at 701.
39 Id. at 703.
40 Id. at 702-03.
41 Id. at 703-704.
42 Id. at 704 (citing J. THOMAS MCCARTHY, MCCARTHY
ON TRADEMARKS & UNFAIR COMPETITION §25:70.1
(2004)).
43 Id. at 706.
44 Jefferson Graham, Judge Rules for Google on Key
Word Ad Spots, USA TODAY, Dec. 15, 2004, available
at http://www.usatoday.com/money/industries
/technology/2004-12-15-google-over-geico_x.htm. As
of June 27, 2005, no formal opinion had been issued.
It should also be noted that codefendant Overture settled with Geico prior to the dismissal of Google for an
undisclosed fee. Id.
45 Playboy Enters., Inc. v. Netscape Communications
Corp., 354 F. 3d 1020 (9th Cir. 2004).
46 Id. at 1034.
47 Id. at 1025-26. But see id. at 1034 (J. Berzon, concurring) (concurring in the opinion due to consistency
with precedent, but questioning the soundness of
Brookfield).
48 Stefanie Olsen, Playboy, Netscape Reach Trademark
Settlement, CNET News.com, Jan. 26, 2004, available
at http://news.com.com/Netscape%2C+Playboy
+settle+search+trademark+case/2100-1024_3-5146502
.html.
49 1-800 Contacts, Inc. v. WhenU.com, Inc., 04-0026cv(L), 04-0446-cv(CON), 2005 U.S. App. LEXIS 12711
(2d Cir. June 27, 2005).
50 Id. at *9 (citing 1-800 Contacts, Inc. v. WhenU.com,
309 F. Supp. 2d 467, 477 (S.D. N.Y., 2003).
51 Id. at *22.
52 Id. at *25.
53 Id. at *23-*24.
54 Id. at *32.
55 Playboy Playboy Enters., Inc. v. Netscape
Communications Corp., 354 F. 3d 1020, 1034-35
(9th Cir. 2004).
56 It was this type of action that resulted in the ACPA.
Consider, for example, its legislative history. Senate
Report 106-140 identified that “[c]urrent law does
not expressly prohibit the act of cybersquatting.” It also
recognized that though current federal law was helpful in preventing cybersquatting, “cybersquatters have
become increasingly sophisticated as the case law has
developed and now take the necessary precautions to
insulate themselves from liability.” It concluded,
“Legislation is needed to address these problems and
to protect consumers, promote the continued growth
of electronic commerce, and protect the goodwill of
American businesses.” S. REP. NO. 106-140 (1999),
available at thomas.loc.gov/cgi-bin/cpquery
/?&db_id=cp106&r_n=sr140.106&sel=TOC_12404&.
57 See Two Pesos v. Taco Cabana, 505 U.S. 763,
782 (1992) (identifying the protection of consumers
as one of the integral aims of trademark law).
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@msn.com. Contact Diana G. Lesgart, CPA, CFE,
FCPA. Specialized accounting and litigation support services in the areas of family law litigation, tracing of assets,
pension plan tracing, forensic accounting, business valuation, goodwill, expert testimony, commercial litigation,
fraud investigations, economic damages, and real estate
litigation. Over 21 years’ accounting experience with 17
years’ litigation support specialization. Assigned as §730
accounting expert. Ms. Lesgart’s profile can be found at
www.jurispro.com. using “Lesgart” under Search by
Name. Expert is fully English/Spanish bilingual.
MIOD AND COMPANY, LLP CPAS
11600 Indian Hills Road, Building B, Suite 300, Mission
Hills, CA 91345-1225, (818) 898-9911, fax (818) 8989922, 74-478 Highway 111, Suite 254, Palm Desert, CA
92260, (760) 779-0990, fax (760) 779-0960, 1055 East
Colorado Boulevard, Suite 500, Pasadena, CA 91106,
(626) 441-1090, fax (626) 441-1096, e-mail: dmiod
@miod-cpa.com. Visit our Web site at www.miodcpa.com.
Contact Donald John Miod, CPA, ABV, CVA, CBA.
More than 30 years’ experience in litigation support, including computation of income available for support, tracing, business valuations, fraud investigations, earnings loss
calculations, and income tax matters. Our firm is very computer-oriented, involving the use of computer graphics. We
are members of the Institute of Business Appraisers, the
International Society of CPAs (founding member), the
American Institute of CPAs, and California Society of
CPAs. See display ad on page 64.
DAVID OSTROVE, ATTORNEY-CPA
90036-3600, (323) 939-3400, fax (323) 939-3500, e-mail:
[email protected]. Web site: www.lawyers.com
/ok&alaw. Contact David Ostrove. Accounting malpractice (defense/plaintiff). Experts in legal malpractice (defense/plaintiff), auditor’s malpractice (defense/plaintiff),
business valuations, breach of fiduciary duty, insurance
bad faith cases, tax matters, fraudulent conveyances,
leveraged buyout, analysis of financial statements, estate
planning, civil litigation, tax litigation, probate litigation,
criminal tax litigation, and business and real estate transactions. See display ad on page 49.
SANLI PASTORE & HILL, INC.
1990 South Bundy Drive, Suite 800, Los Angeles, CA
90025, (310) 571-3400, fax (310) 571-3420, Web site address: www.sphvalue.com. Contact Nevin Sanli or Tom
Pastore. Sanli Pastore & Hill, Inc. is a premier provider of
business valuation and valuation advisory services, specializing in litigation support and expert witness testimony.
Services include valuations for goodwill loss, estate and gift
tax planning (family limited partnerships), lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive stock options, capital raises, corporate, partnership, and marital
dissolutions. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations.
SCHULZE HAYNES & CO.
90017, (213) 627-8280, fax (213) 627-8301, e-mail:
[email protected]. Web site: www
.schulzehaynes.com. Contact Karl J. Schulze or Dana
Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery,
real estate transactions, financial analysis and modeling,
major professional organizations, and have experience
across a broad spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; ABV; PhD-economics.
STONEFIELD JOSEPHSON
Valuation, Litigation & Forensic Group. 1620 26th
Street, Suite 400 South, Santa Monica, CA 90404, (866)
225-4511. Web site: www.sjaccounting.com. Contact
Jeffrey Sumpter, director of litigation. The Stonefield
Josephson Valuation, Litigation & Forensic Group serves
business leaders, attorneys, and other professionals with
business valuation, litigation support, and forensic ac-
counting services. Stonefield Josephson serves public and
privately held clients throughout the United States and internationally from four California locations: Los Angeles,
Orange County, San Francisco, and East Bay. See display ad on page 17.
SUGARMAN & COMPANY, LLP
44 Montgomery Street, Suite 1310, San Francisco, CA
94104, (415) 395-7512, fax (415) 658-2858, e-mail:
.sugarman-company.com. Contact Diane LaBelle.
Expert witness testimony in federal, state, and local courts,
forensic accounting. Case involvement includes: damage
calculations, lost profits, business interruption, cash flow
analysis, forensic accounting, business and real estate valuations, construction damages, insurance claims, fraud investigations, lender liability, partnership dissolution, professional malpractice, white collar crime, liquidation and going
concern analysis, as well as bankruptcy and reorganization
management and consulting.
THOMAS NECHES & COMPANY LLP
520 South Grand Avenue, Suite 350, Los Angeles, CA
90071-2662, (213) 624-8150, fax (213) 624-8152, e-mail:
[email protected]. Web site: www.thomasneches
.com. Contact Thomas M. Neches, CPA, ABV, CVA,
CFE. 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.
Education: BA (Mathematics) UC San Diego, MS (Operations Research) UCLA. Teaching: Adjunct Professor, Loyola Law School. See display ad on page 51.
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, DABFA, DABFE
Fax: (310) 826-1065
Michael D. Saltsman, CPA, MBA
E-mail: [email protected]
David L. BASS, CPA
www.zsscpa.com
Dave Dichner, CPA, ABV, CVA
11900 W. Olympic Blvd.
Sandy Green, CPA
Suite 650
Los Angeles, CA 90064-1199
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Miguel Drive, Suite 130, Newport Beach, CA 92660, (949)
219-9816, fax (949) 219-9095, e-mail: expert@wzwlw
.com. Contact Barbara Luna, Drew Hunt, Paul White,
Jack Zuckerman, Fred Warsavsky, and Bill Wolf.
Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis
of liability, damage analysis of lost profits, lost earnings,
and unjust enrichment, fraud investigation, business valuation, tax planning and preparation, and mergers and acquisitions. Testified hundreds of times as expert witnesses.
Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business
interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property
(patent, trademark and copyright infringement and trade
secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of
businesses, unfair advertising, unfair competition, and
wrongful termination. See display ad on page 48.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAS
11900 West Olympic Boulevard, Suite 650, Los
Angeles, CA 90064-1151, (310) 826-1040, fax (310) 8261065. Web site: www.zsscpa.com. Contact Lester J.
Schwartz, CPA, DABFE, DABFA, Michael D. Saltsman, CPA, MBA, Ron B. Miller, CPA, ABV, CFE, or
David Dichner, CPA, ABV, CVA. Accounting experts in
forensic accounting, tax issues, business valuations, and
appraisals, marital dissolutions, eminent domain, insurance
losses, business interruption, goodwill, economic analysis,
investigative auditing, loss of earning, commercial damages, and lost profits. Expert witness testimony preparation, and settlement negotiations and consultations. See
display ad on this page.
ADA/DISABILITY DISCRIMINATION
BIDDLE CONSULTING GROUP, INC.
193 Blue Ravine Road, Suite 270, Folsom, CA 95630,
(916) 294-4250, fax (916) 294-4255, e-mail: staff@biddle
.com. Web site: www.biddle.com. Contact Dan Biddle,
PhD, president. We specialize in compensation analysis,
test development, EEO/AA reviews, validation studies
(content, criterion-related), and adverse impact analyses.
We have a special emphasis in the protective service fields.
Over 30 staff. Degrees/licenses: MA, PhD, other staff with
various degrees.
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272, (310)
454-2988, fax (310) 454-4516. Contact Marcia Haight.
Human resources expert knowledgeable in both federal
and California law. Twenty-five years’ corporate human resources management experience plus over 15 years as a
Human Resources Compliance Consultant in California.
Specializations include sexual harassment, ADA/disability
discrimination, other Title VII and FEHA discrimination and
harassment, retaliation, FMLA/CFRA, and safety. Courtroom testimony and deposition experience. Retained 60
percent by defense, 40 percent by plaintiff. Audit employer’s actions in preventing and resolving discrimination, harassment, and retaliation issues. Assess human resources
policies and practices for soundness, for comparison to
prevailing practices, and for compliance. Evaluate employer responsiveness to complaints and effectiveness of
employer investigations. Assist counsel via preliminary
case analysis, discovery strategy, examination of documents, and expert testimony.
HRM CONSULTING, INC.
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 Hirsch.
Plaintiff and defense attorneys respect Ms. Hirsch’s experience working on employment and vocational rehabilitation
matters from both the employee and employer perspective. Her expertise is utilized in cases involving ADA (Americans with Disabilities Act), FMLA (Family Medical Leave
Act), sexual harassment, personal injury, or divorce. We
provide litigation support, expert testimony, and investigations. We also specialize in helping companies understand
and comply with regulations and issues in the complicated
realm of human resources management.
Over 25 years of Experience in the Construction Industry
KENNETH J. FISCHBECK
CONSTRUCTION EXPERT WITNESS
511 Oak Street, Laguna Beach, California 92651
714.609.7481 • Fax 949.715.6714
[email protected]
CA Lic #475327
DAVID OSTROVE
•
•
•
•
•
•
•
•
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AT T O R N E Y – C PA
Professor of Law and Accounting
Expert Witness — 47+ years
Lawyer Malpractice
Accountant Malpractice
Forensic Accounting
Business Valuation
Computation of Damages
Mediator, Arbitrator
323/939-3400
[email protected]
HUMAN RESOURCES MANAGEMENT NETWORK
544 West Wilshire Avenue, Fullerton, CA 92832, (714)
542-9525, fax (530) 885-4394, e-mail: [email protected].
Web site: www.lballexpertwitness.com. Contact
Lawrence P. Ball. Expert testimony related to human resources standard of care, discipline, wrongful discharge,
wrongful termination, sexual orientation/discrimination,
sex/sexual/gender discrimination, race/color/racial discrimination, religious discrimination, national origin/ancestry
discrimination, age discrimination, sex/sexual/gender harassment, sexual orientation harassment, race/racial/color
harassment, religious harassment, disability harassment,
national origin/ancestry harassment, age harassment,
FMLA/CRFA violations, ADA violations, negligent hiring/retention, performance evaluation/review, DFEH and DOL
regulations, pregnancy, and EEOC guidance. Cases: 45%
plaintiff, 55% defense.
ADEA/AGE DISCRIMINATION/AGING
GEROBIZ
9040 Harratt Street, Suite10, West Hollywood, CA 90069,
(310) 858-8956, e-mail: [email protected]. Contact
Wendy Goldman, MBA/MS Gerontology. GeroBiz offers expert witness testimony for age discrimination in employment cases. We also offer review and evaluation of
employee benefits policies to identify areas of potential
conflict, and analyze corporate literature to ensure ageneutral communications with shareholders. Pension bene-
fits background; dispute resolution training with L.A. District Attorney’s Office.
ALLERGY/ASTHMA/IMMUNOLOGY
ALLERGY ASTHMA RESPIRATORY CARE
MEDICAL CENTER, INC.
2600 Redondo Avenue, Suite 400, Long Beach, CA
90806, (562) 997-7888, fax (562) 997-8884, e-mail:
[email protected]. Web site: www.allergy-asthma
.info. Contact Andrea Newsom. Specialties include latex
allergy, asthma, food allergy, drug allergy, anaphylaxis,
sinusitis, hives, sick building syndrome, mold, and environmental disease. Experience, civil: retained or reviewed
more than 70 latex products liability cases, retained for allergy and internal medicine cases in the areas of occupational asthma, mold exposure, civil litigation, sick building
syndrome. Multiple chemical sensitivity, smoke inhalation,
and toxic exposure.
ROGER M. KATZ MD
1304 15th Street at Arizona, Suite 102, Santa Monica, CA
90404, (310) 393-1550, fax (310) 576-3601, e-mail: rmcat
@ucla.edu. Web site: www.rogermkatzmd.com. Contact
Roger M. Katz, MD. IME/expert witness/review. Experienced plaintiff and defense. Expert witness record
review, IME.
ANESTHESIOLOGY
ROGER F. DONENFELD, MD
10557 Rocca Place, Los Angeles, CA 90077, (310) 4713777, fax (323) 209-0010, e-mail: rfdonenfeld@hotmail
.com. Contact Roger F. Donenfeld, MD. Chart review
and depositions. Expert witness, board certified, 1987.
Anesthesiology fellowship-trained. Ivy League, board review textbook author. Certified medical board of CA expert. Active clinical anesthesia practice. Extensive medical
legal experience.
A R TECH
FORENSIC EXPERTS INC.
Experienced engineers
Advanced degrees
Extensive trial experience
ANESTHESIOLOGY & PAIN
MANAGEMENT
SHLOMO ELSPAS, MD
1200 North State Street, Suite 14901, Los Angeles, CA
90033, (323) 226-4597, 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.
▼ Accident Reconstruction
Vehicle Collision Analysis, Speed, Time
Motion History, Biomechanics, Vehicle
Components: brakes, seats, seatbelts, etc.
▼ Product Liability
Failure Analysis, Machinery, Guarding,
Safety, Industrial & Consumer Products
▼ Construction
Code Analysis, Stairways, Ramps, Doors,
Windows, Guardrails, Roofs, Walkways,
Pools, Industrial & Residential
▼ Slip/Trip & Fall
Coefficient or Friction. Trip Hazard, Lighting
TELEPHONE:
FAX:
818-344-2700
818-344-3777
18075 Ventura Blvd, Suite 209, Encino, CA 91316
APPRAISAL AND VALUATION
18881 Von Karman, Suite 1175, Irvine, CA 92612,
(949) 263-8700, fax (949) 263-0770, e-mail: experts
@mcsassociates.com. Web site: www.mcsassociates
.com. Contact Norman Katz, managing partner.
Nationally recognized banking, finance, insurance, and real
estate consulting group (established 1973). Experienced
litigation consultants/experts include senior bankers,
lenders, consultants, economists, accountants, insurance
underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, business/commercial, construction, consumer/credit card),
banking operations/administration, trusts and investments,
economic analysis and valuations/damages assessment,
insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance.
ADVISORY SERVICES GROUP
Coldwell Banker Commercial, 2200 South Pacific Coast
Highway, Suite 318, Hermosa Beach, CA 90254, (310)
937-7700, fax (310) 798-6836. Specialties: Real estate,
valuations, business valuations, condemnations, and FF &
E. As part of the Coldwell Banker Commercial group, over
450 offices nationwide. Additional services for special purpose mixed use and contaminated/toxic properties, environmental/civil engineering. Right-of-way eminent domain,
structural defect reports, and construction defect reports.
In-house CPA, general contractor, and engineers. Approved for IRS, federal, state, and municipal courts. Offices
in Orange County, San Diego/Inland Empire, and Northern
California. See display ad on page 83.
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 & equipment, and business valuation. Well-written 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.
CRA INTERNATIONAL
1055 East Colorado Boulevard, Suite 420, Pasadena, California 91106-2327, (626) 564-2000, fax (626) 564-2099.
Web site: www.crai.com. Contact John Hirshleifer, vice
president. CRA International provides economic, financial,
and business analysis in such areas as antitrust, contracts,
damages, energy, environment, entertainment, healthcare,
intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry experts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial preparation and testimony) to attorneys, executives, and government officials the world over. See display ad on page 59.
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
HARGRAVE & HARGRAVE
576-1090, fax (310) 576-1080, e-mail: terry@taxwizard.
com. Web site: www.taxwizard.com. Contact Terry M.
law and civil cases. Past chair of California Society of
CPAs’ Family Law Section, business valuation instructor
for California CPA Foundation and AICPA. 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. See display ad on
page 60.
HIGGINS, MARCUS & LOVETT, INC.
90017, e-mail: [email protected]. Web site: www.hmlinc
.com. Contact Mark C. Higgins, ASA, president. The
firm has over 20 years of litigation support and expert testimony experience in matters involving business valuation,
economic damages, intellectual property, loss of business
goodwill, and lost profits. Areas of practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad on page 63.
91403, (818) 995-1040, fax (818) 995-4124. Web site:
[email protected]. Contact Michael J. Krycler. Litigation support, including forensic accounting, business
more than 20 years. See display ad on page 46.
RICHARD R. SYLVESTER, JD, PHD
(310) 391-2080, fax (310) 827-1166. Valuation expert.
Specialist in business value, partial interests, securities
value, real property, goodwill, and intangible asset value,
including patents, trademarks, and copyrights. Valuation
for income tax, estate and gift tax, dissolution of marriage,
fairness opinions, solvency opinions, economic damages,
wrongful death, and personal injury. For two decades, selected by leading trial attorneys and Fortune 500 companies, and listed in Marquis’ Who’s Who in the World and
Who’s Who in Finance and Industry. See display ad on
page 77.
WARONZOF ASSOCIATES, INC.
12200 West Olympic Boulevard, Suite 480, Los Angeles,
C 90064, (310) 954-8060, fax (310) 954-8059. Web site:
www.waronzof.com. Contact Timothy R. Lowe, MAI,
CRE. Waronzof Associates provides real estate and land
use litigation support services including economic damages, lost profits, financial feasibility, highest and best use,
property value, enterprise value, partnership interest and
closely-held share value, fair compensation, lender liability
and reorganization plan feasibility. Professional staff of six
with advanced degrees and training in real estate, finance,
urban planning and accounting. See display ad on page
70.
APPRAISAL/BUSINESS VALUATION
@mcsassociates.com. Web site:www.mcsassociates.com.
Contact Norman Katz, managing partner. Nationally
recognized banking, finance, insurance, and real estate
consulting group (established 1973). Experienced litigation
consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, business/commer-
cial, 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.
ARCHITECTURE
PHILIP KROEZE, AIA, CONSULTING
ARCHITECTURAL SERVICES
19 Summerside, Coto De Caza, CA 92679, (949) 5890554, fax (949) 589-4351, e-mail: [email protected].
Contact Philip Kroeze, AIA. Expert witness: architectural
and engineering standard of care, construction defects,
moisture intrusion, and construction documents. Thirty-five
years of experience in design and construction, residential,
commercial, and office buildings. Exhibits (photos, models,
charts, renderings). Service area: California and Nevada.
AVIATION
CONDOR-AVSEC INC.
717 Camino Magnifico, San Marcos, CA 92069, (760)
Web site: www.condor-avsec.com. Contact Glen Winn.
Twenty-nine years of commercial aviation experience.
Knowledge of ACSSP, AOSSP, air cargo security, crew
hotel security, airport terminal security, passenger security
processing, aircraft security, counter-terrorism security as
it relates to civil aviation, flight kitchen security, hangar security, and travel security. Currently teach aviation security
at the University of Southern California. Coauthor Protection, Security, and Safeguards. Named in Peter Lance’s
book, 1000 Years for Revenge—International Terrorism
and the FBI. Former special agent US Secret Service. Review CV @ www.condor-avsec.com. Former Director of
Security Northwest Airlines, Western Airlines; Former Corp
• Expert testimony
• Damages calculation
• Forensic accounting
• Business valuation
• Database analysis
Thomas Neches
Certified Public Accountant
Accredited in Business Valuation
Certified Valuation Analyst
Certified Fraud Examiner
Thomas Neches & Company LLP
Biltmore Court, Suite 350
520 South Grand Avenue
Los Angeles, California 90071-2662
(213) 624-8150
www.thomasneches.com
Manager of Security Continental Airlines and United Airlines.
BANKING
263-8700, fax (949) 263-0770, e-mail: experts
ANDELA CONSULTING GROUP, INC.
91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter
@earthlink.net. Contact Thomas A. Tarter, managing
director. Former CEO of two banks. Lending, forgery, endorsements, letters of credit, guarantees, lender liability,
checking accounts, credit cards, and bankruptcy. Expert
witness, litigation consulting. Expert referral service escrow, corporate governance, mortgage banking, and real
estate. Over 500 cases nationally. See display ad on
page 84.
Construction Claims
When you’re handling a
construction dispute, you’ll be
glad to know who we are.
Pacific Construction
Consultants, Inc. will assist in
uncovering and analyzing facts
important to your case.
Our highly experienced staff
will provide support from the
first analysis to the last day in
court–investigating, making the
complex understandable, and
presenting evidence through
expert testimony and trial
support graphics.
Pacific Construction
Consultants, Inc. is responsive,
factual, and results-oriented.
For more information, call
1-800-655-PCCI.
PACIFIC CONSTRUCTION
CONSULTANTS, INC.
B & F EXPERTS
P.O. Box 700384, San Antonio, TX 78270, (866) 3657212, fax (866) 869-4062, e-mail: jfmorrow@earthlink
.net. Web site: www.jfmorrow.com. Contact J F “Chip”
Morrow. Expertise: financial institutions, banks, mortgage,
and real estate. Loans: mortgage, construction, real estate, SBA, international, secured, unsecured, business,
consumer, etc., checks, fraud, operations, lender liability;
policy/procedure; fiduciary duties, D/O duty/conduct,
other. Federal/state reports, depos, and court preparation
and testimony. Background: 35+ years’ experience financial/mortgage institutions and public companies including
president, CEO, and director. Thirty-plus years of all types
of lending experience. Fifteen-plus years of national and
state trade association leader/directorship. Clients: 150+
federal/state nationwide cases for FDIC, state of California,
financial and mortgage institutions, business, individuals.
Fifty percent plaintiff/50 percent defendant.
BANKRUPTCY/TAX
.com. Contact Norman Katz, managing partner. Nationally recognized banking, finance, insurance, and real
ANDELA CONSULTING GROUP, INC.
91403, (818) 380-3102, fax (818) 501-5412, e-mail: ttarter
@earthlink.net. Contact Thomas A. Tarter, managing
director. Former CEO of two banks. Lending, forgery, endorsements, letters of credit, guarantees, lender liability,
checking accounts, credit cards, and bankruptcy. Expert
witness, litigation consulting. Expert referral service escrow, corporate governance, mortgage banking, and real
estate. Over 500 cases nationally. See display ad on
page 84.
90024, (310) 873-1717, fax (310) 873-6600. Contact
GREENBERG GLUSKER FIELDS CLAMAN
MACHTINGER & KINSELLA LLC
1900 Avenue of the Stars, Suite 2100, Los Angeles, CA
90067, (310) 201-7456, fax (310) 553-0687, e-mail: kblock
@ggfirm.com. Web site: www.ggfirm.com. Contact Karl
E. Block. Expert testimony and consulting.
business leaders, attorneys and other professionals with
business valuation, litigation support, and forensic accounting services. Stonefield Josephson serves public and
94104, (415) 395-7512, fax (415) 658-2858, e-mail:
BOATING
CAPTAIN TUULI MESSER-BOOKMAN, ESQ.
230 Carlisle Way, Benicia, CA 94510, (707) 745-8335, fax
(707) 745-8335, e-mail: [email protected]. Maritime academy professor, personal injury, collision, rules of the road,
maritime training and education, seamanship, boat handling, tides, and weather.
BUSINESS
ROBERT C. ROSEN
90071, (213) 362-1000, fax (213) 362-1001, e-mail:
[email protected]. Web site: www.rosen-law.com.
Specializing in securities law, federal securities law enforcement, securities arbitration, and international securities, insider trading, NYSE, AMEX, NASD disciplinary proceedings, broker-dealer, investment company and investment adviser matters, liability under federal and state securities laws, public and private offerings, Internet securities,
and law firm liability. Former chair, LACBA Business & Cor-
porations Law Section; LLM, Harvard Law School. More
than 32 years practicing securities law, 12 years with the
U.S. Securities & Exchange Commission, Washington, DC.
Published author/editor of securities regulations, including
multivolume treatises. See display ad on page 65.
BUSINESS APPRAISAL/BUSINESS
VALUATION
BUSINESS ENTERPRISE APPRAISAL CO., INC.
23801 Calabasas Road, Suite 1016, Calabasas, CA
91302, (818) 591-9282, or (800) 928-7463. Contact
Larry Grant, ASA or Robert Weinstock, JD, CBA. Appraisal of businesses and professional practices for all litigation and nonlitigation purposes, including estate planning and taxation, for 706 filings, FLP and LLC discounts,
S corporation elections, corporate dissolutions, damages,
loss and earnings and condemnation of goodwill. Also real
property appraisals. Expert witnesses in all jurisdictions.
Established 1972.
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
DONALD L. GURSEY, CPA*
STANLEY B. SCHNEIDER, CPA*
DAVID E. BLUMENTHAL, CPA, ABV
ROSEANNA L. PURZYCKI, CPA
DAVID J. SWAN, CPA, ABV
STEPHAN H. WASSERMAN, CPA, ABV
RORY BURNETT, CPA
VANITA M. SPAULDING, CFA, ASA*
ROBERT O. WATTS, CPA
DIRECTORS
JOHN J. COSTELLO, CPA*
MICHAEL KAMEN
ROSEMARY REED, CPA
MARIE AMBROSINO
* A PROFESSIONAL CORPORATION
Setting the Standard In Litigation Support
COHEN, MISKEI & MOWREY LLP
91403, (818) 986-5070, fax (818) 986-5034, e-mail:
[email protected]. Contact Scott Mowrey. Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic
accountants, fraud investigations, economic damages,
business valuations, family law, bankruptcy, and reorganization. Degrees/license: CPAs, CFEs, MBAs. See display
ad on page 60.
¾ Accounting Related To Family Law And Civil Litigation
DESMOND MARCELLO AND AMSTER
Southern California Office: 6060 Center Drive, Suite 825,
Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400,
fax (310) 216-0800. Northern California Office: 228 Bush
Street, 16th Floor, San Francisco, CA 94104, (415) 4398390, fax (415) 439-8391. Web site: www.dmavalue.com.
Contact Wes Nutten, Aaron Amster, or Madeleine
Mamaux. Litigation consulting, forensic accounting, expert
witness testimony, class action claims administration services, and business valuation services. Staff qualifications
include CPA, CMA, ABV, CFA, and ASA designations.
Testimony experience in numerous court jurisdictions. Established in 1968. See display ad on page 47.
¾ Information Technologies Consulting
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
¾ Tax Preparation And Consulting
¾ Accounting And Auditing
¾ Business Management
¾ Business Valuation And Appraisals
An experienced and professional staff dedicated to your needs. A trusted
business partner, providing guidance towards success and prosperity.
Gursey, Schneider & Co. LLP
Much more than facts and figures.
10351 Santa Monica Boulevard, Suite 300
Los Angeles, California 90025-6912
20355 Hawthorne Boulevard, First Floor
Torrance, California 90503-2401
Tel 310.552.0960 ♦ Fax 310.557.3468
Tel 310.370.6122 ♦ Fax 310.370.6188
www.gursey.com
CA 90025, (310) 552-0960, fax (310) 557-3468, e-mail:
[email protected] site: www.gursey.com.
Contact Vanita M. Spaulding, CFA, ASA. Partner qualifications include MBA, CFA, ASA, and ABV. GSCO is an
accounting firm specializing in forensic accounting, litigation support services, business valuation, and appraisal
services, for a variety of purposes including marital dissolution, gift and estate planning, eminent domain goodwill
loss, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments, insurance
claims, court accounting, tracing, and entertainment industry litigation. GSCO has over 30 years’ experience as expert witnesses in litigation support. See display ad on
page 53.
4910 Campus Drive, Newport Beach, CA 92660, (949)
724-1880, fax (949) 724-1889, e-mail: sgabrielson
NANCY A. KEARSON, CPA, ABV, CVA, DABFA
1801 Century Park East, Suite 2400, Los Angeles, CA
90067, (310) 785-9614, fax (310) 277-1278, e-mail:
[email protected]. Contact Nancy Kearson. Costeffective, timely expert witness/consultation services, investigative forensic accounting, asset tracing, shareholder
and partner disputes, business valuation, and professional
practice appraisal. Frequent lecturer on forensic accounting and business valuation. Certified Public Accountant;
Accredited in Business Valuation, Certified Valuation Analyst, Diplomate of the American Board of Forensic Accountants.
92260, (760) 779-0990, fax (760) 779-0960, 1055 East
(626) 441-1090, fax (626) 441-1096, e-mail: dmiod
90025, (310) 571-3400, fax (310) 571-3420, Web site
address: www.sphvalue.com. Contact Nevin Sanli or
Tom Pastore. Sanli Pastore & Hill, Inc. is a premier
provider of business valuation and valuation advisory services, specializing in litigation support and expert witness
testimony. Services include valuations for goodwill loss,
estate and gift tax planning (family limited partnerships),
lost profit analysis, mergers and acquisitions, goodwill impairment, fairness and solvency opinions, ESOPs, incentive
stock options, capital raises, corporate, partnership, and
marital dissolutions. Comprehensive economic, industry,
and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiations. See display ad on page 69.
90017, (213) 627-8280, fax (213) 627-8301, e-mail: expert
@schulzehaynes.com. Web site:www.schulzehaynes.com.
Contact Karl J. Schulze or Dana Haynes, principals.
Specialties: forensic business analysis and accounting, lost
profits, economic damages, expert testimony, discovery
assistance, business and real estate valuations, construction claims, corporate recovery, real estate transactions, financial analysis and modeling, major professional organizations, and have experience across a broad spectrum of
industries and business issues. Degrees/licenses: CPA;
CVA; CFE; ABV; PhD-economics.
SINGLER VALUATION CONSULTING
2127 Lyans Drive, La Cañada, CA 91011, (818) 5411500, fax (818) 541-1565, e-mail: noasingler@earthlink
.net. Contact Noa Singler. Valuation of closely held
businesses, eminent domain, goodwill loss analysis, expert witness testimony, litigation consulting, gift and estate
tax, damage analysis, and acquisitions.
94104, (415) 395-7512, fax (415) 658-2858, e-mail:
VICENTI, LLOYD & STUTZMAN LLP
2210 East Route 66, Glendora, CA 91740, (626) 8577300, fax (626) 857-7302, e-mail: [email protected].
Web site: www.vlsllp.com. Contact Royce Stutzman,
CVA, CPA, Chairman. Our certified professionals serve
as consultants and experts in business valuations and litigation support. We conduct valuations related to mergers
and acquisitions, buy-sell agreements, purchase/sale of
closely held businesses, partner disputes, etc. Our forensic
accounting experts assess the amount of an economic
loss, whether it be business interruption from casualty, unfair competition, condemnation, damage caused by others, or loss of earnings from various events. Our fraud investigation team reviews documentation, interviews witnesses and suspects, and assesses evidence to resolve
allegations. We provide expert witness testimony and implement fraud prevention programs. VLS Celebrates 52
Years of Quality Service!
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Jack Zuckerman, Fred Warsavsky, and Bill Wolf.
Expert witness testimony for business, real estate, personal injury, and marital dissolution. Investigative analysis
of liability, damage analysis of lost profits, lost earnings,
and unjust enrichment, fraud investigation, business valuation, tax planning and preparation, and mergers and acquisitions. Testified hundreds of times as expert witnesses.
Prior Big Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business
interruption, business dissolution, construction, fraud investigation, asset tracing analysis, intellectual property
(patent, trademark and copyright infringement and trade
secrets), personal injury, product liability, professional malpractice, real estate, spousal support, tax, valuation of
businesses, unfair advertising, unfair competition, and
wrongful termination. See display ad on page 48.
ZAMUCEN, CURREN, HOLMES & HANZICH
17848 Sky Park Circle, Irvine, CA 92614, (949) 955-2522,
e-mail: [email protected]. Contact Joanna Hernandez.
Zamucen, Curren, Holmes & Hanzich, CPAs specialize in
the following: business valuations, economic damage calculation for businesses and individuals, forensic accounting, financial fraud investigation, expert witness testimony,
computer support for litigation, goodwill impairment,
merger and acquisition consulting, corporate “alter ego”
analysis and testimony, and other general CPA services.
Our designations include certified public accountant, certified business appraisers, certified fraud examiners, certified
valuation analyst, accredited business valuator, MBA, and
JD. We have been court appointed over 100 times in
cases involving valuation of business, economic damages,
and family law matters.
CHEMISTRY
CHEMICAL ACCIDENT RECONSTRUCTION
SERVICES, INC.
9121 East Tanque Verde Road, Suite 105, Tucson, AZ
85749, (800) 645-3369, fax (520) 749-0861, e-mail:
[email protected]. Web site: www.chemaxx.com.
Contact Dr. Michael Fox. Comprehensive chemical
accident investigation—specializing in complex industrial
chemical accidents and chemical-related consumer product injuries, chemical fires and explosions, chemical labeling, chemical packaging, chemical handling and shipping,
chemical burns, chemical warnings, chemical disposal,
chemical safety, EPA, DOT, OSHA, propane, natural gas,
flammable liquids, hazardous chemicals, aerosols, metallurgy, corrosion, failure analysis, water contamination,
water testing, plastics, acids, alkalis, and MSDSs. State-ofthe-art equipment available, including natural SEM/EDAX,
GC/MS, FTIR, etc. PhD physical chemistry, certified fire
and explosion investigator, NACE accredited in corrosion,
ASM accredited metallurgy and failure analysis, OSHA certified (hazardous chemicals and processes), DOT certified
(shipment of hazardous materials), accredited in aerosol
technology.
CLOCK
CLOCK
CONSTRUCTION
CONSTRUCTION
CONSULTANTS
CONSULTANTS
40+ Years Experience
CREDIBLE
• Built, developed and/or managed the construction of
400+ buildings totaling in excess of $100 million
• 1000+ physical inspections of buildings for real estate
investors
EXPERT
DESIGNATIONS &
TESTIMONY
• Construction
Defects
• Cost to Repair
• 100+ expert designations in construction litigation
matters
• Owner
Responsibilities
COMPETENT
• General Contractor
Standard of Care
A reputation for integrity earned through 40+ years of
credible and competent consultation with construction
users, real estate investors and legal professionals in
Southern California
• Subcontractor
Practices
• Job Site Safety
Time to call Clock! 949-640-7890
CLOCK CONSTRUCTION CONSULTANTS
TEL 949-640-7890 FAX 949-640-8778 E-MAIL [email protected]
2981 QUEDADA, NEWPORT BEACH, CALIFORNIA 92660
CIVIL LITIGATION
CA 90025, (310) 552-0960, fax (310) 557-3468. 20355
Hawthorne Boulevard, First Floor, Torrance, CA 90503.
Web site: www.gursey.com. Contact Jennifer Ziegler.
Forensic accounting and litigation support services in the
areas of marital dissolution, business valuation and appraisal, goodwill, business disputes, malpractice, tax matters, bankruptcy, damage and cost-profit assessments, insurance claims, court accounting, tracing, and entertainment industry litigation. See display ad on page 53.
COMPUTER FORENSICS
DATACHASERS, INC.
P.O. Box 2861, Riverside, CA 92516-2861, (877) Data
Exam, (877) 328-2392, (951) 780-7892, fax (951) 7809199, e-mail: [email protected]. Web site: www
.datachasers.com. Contact Rick Albee. Hard drive imaging, use assessment and auditing, intellectual property and
trade secret disputes, restore hidden, deleted, or lost files
and images, file dates when created, modified, or deleted,
Internet history and e-mail recovery, computer use auditing
and evaluations, human resources, employer/employee
exams, experienced expert witness and special master
and full computer laboratory. Many years of public sector
experience. Multiple certifications. Prior law enforcement.
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
SETEC INVESTIGATIONS
8391 Beverly Boulevard, Suite 167, Los Angeles, CA
90048, (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.
COMPUTER FORENSICS ELECTRONIC
DISCOVERY
ROBERT J ABEND, PE
1658 Laraine Circle, San Pedro, CA 90732, cell (310) 3466543, (310) 221-0716, fax (310) 221-0716, e-mail: rabend
@linkline.com Web site: www.linkline.com/peronal/rabend.
Specialties: Electrical engineering, computer forensics,
data recovery, electronic discovery, computer engineering,
software, electronics, microelectronics, electronics manufacturing, intellectual property, and trade secret litigation.
Technical support during case preparation. Practiced at
court and deposition testimony. Thirty-five years of experi-
ence in the electronics and computer industry. Thirteen
years as a forensic engineering consultant. References
provided on request. Degrees/licenses: BSEE, MS, Registered Professional Engineer, Cert EnCase Computer
Forensic Examiner, FCC General Radiotelephone licenses.
.com. Web site: www.ballcm.com. Contact Chris Ball.
Contract claims, disputed change orders, schedule analysis, delay claims, labor impact claims, construction defect
investigations and analysis, cost estimating, destructive
testing, builders risk claims, commercial, residential, and
public works.
COMPUTER SIMULATIONS/GRAPHIC
VISUAL FORENSICS
(800) 426-6872, 130 Ryan Industrial Court, Suite 105, San
Ramon, CA 94583. Web site: www.visualforensics.com.
3D computer simulations for all aspects of accident reconstruction, vision related malpractice, criminal reenactment,
and more. Vision perception, site visibility, and human factors analysis. Opposing demonstrative evidence analysis.
In-house scientific and engineering experts. Led by internationally recognized vision scientist, Dr. Arthur P. Ginsburg,
who has over 16 years of experience as a vision and visibility expert consultant for the legal industry and government
agencies. Plaintiff and defense. Seen on CBS’s 60 Minutes
and Court TV. See display ad on page 84.
COMPUTERS/INFORMATION SCIENCES
ROBERT J ABEND, PE
court and deposition testimony. Thirty-five years of experience in the electronics and computer industry. Thirteen
COSGROVE COMPUTER SYSTEMS, INC.
7411 Earldom Avenue, Playa del Rey, CA 90293, (310)
823-9448, fax (310) 821-4021, e-mail: jcosgrove
@computer.org. Web site: www.cosgrovecomputer.com.
Contact John Cosgrove. John Cosgrove, PE, has over
40 years’ experience in computer systems and has been a
self-employed, consulting software engineer since 1970.
He is a part-time lecturer in the UCLA School of Engineering and LMU graduate school. He recently completed an
invited article, “Software Engineering & Litigation,” for the
Encyclopedia of Software Engineering. He holds the CDP,
is a member of ACM, NSPE, a senior member of IEEE
Computer Society, and a professional engineer in California. Formal education includes a BSEE from Loyola University and a master of engineering from UCLA.
CONSTRUCTION
AVONDALE RESOURCES, INC.
14 Via Andorra, Coto de Caza, CA 92679, (949) 6441735, fax (949) 644-6542. Contact Alex Robertson Jr.
Construction consulting including construction claims,
damages, defects, construction safety, project scheduling,
overhead and job cost analysis, site inspections, expert
testimony, arbitration and trial. Building experience including commercial, office, special purpose buildings, industrial, manufacturing plants, distribution, restaurants, and retail stores. Engineering construction experience including
heavy equipment, installation, fuel terminals, refineries, excavation, and trench shoring. Asphalt and concrete paving.
Gas distribution, pipeline, water distribution systems, and
underground utilities. Construction safety, accident investigation, site inspections, building code, and CAL-OSHA.
Service area includes California, Arizona, Oregon, Washington, Utah, Idaho, and New Mexico.
BALL CM
24405 Chestnut Street, Suite 201, Newhall, CA 91321,
(661) 254-3357, fax (661) 254-2127, e-mail: chris@ballcm
KENNETH J. FISCHBECK
511 Oak Street, Laguna Beach, CA 92651, (714) 6097481, fax (949) 715-6714, e-mail: [email protected].
Contact Kenneth J. Fischbeck. A construction consultant/expert witness for construction litigation specializing in
critical path scheduling analysis, construction standards,
estimating, manpower, loading, construction techniques,
construction industry customs and practices, disputes involving payment, quality and scope of contract work between owners, contractors, subcontractors, and suppliers,
job site safety, and multi-employer and dual-employer
worksites. EDD and labor compliance. Service area: Los
Angeles, Orange, Riverside, and San Bernardino counties.
FORENSISGROUP
3452 East Foothill Boulevard, Suite 1160, Pasadena, CA
91107, (800) 555-5422, (626) 795-5000, fax (626) 7951950, e-mail: [email protected]. Web site:
www.forensisgroup.com. Contact Mercy Steenwyk.
Thousands of our clients have gained the technical advantage and the competitive edge in their cases from our resource group of high-quality experts in construction, medical, engineering, product liability, safety, environmental,
accident reconstruction, automotive, failure analysis, fires,
explosions, slip and fall, real estate, economics, appraisal,
employment, computers, and other technical and scientific
disciplines. We provide you with a select group of highquality experts as expeditiously as possible. Unsurpassed
recruitment standards. Excellent client service. See display ad on page 53.
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS CONSULTANTS
PHILIP KROEZE, AIA, CONSULTING ARCHITECTURAL SERVICES
19 Summerside, Coto De Caza, CA 92679, (949) 5890554, fax (949) 589-4351, e-mail: [email protected].
Contact Philip Kroeze, AIA. Expert witness: architectural
and engineering standard of care, construction defects,
moisture intrusion, and construction documents. Thirty-five
years of experience in design and construction, residential,
commercial, and office buildings. Exhibits (photos, models,
charts, renderings). Service area: California and Nevada.
MPGROUP
CONSTRUCTION CONSULTANTS • FORENSIC
EXPERT WITNESSES • MEDIATION
1202 Greenacre Avenue, West Hollywood, CA 900465708, (323) 874-8973, toll free (800) 684-9100, fax (323)
874-8948, email: [email protected]. Web site: www
.mpgroup.com. Contact Michael S. Poles, GC, CM, RCI,
DABFET, ACFE. MPGroup is a collaboration of architects,
engineers, contractors and other technical experts specializing in consulting, forensic expert witness, and litigation support services since 1962. Specialty areas: accident reconstruction; Americans with Disabilities Act; building code
compliance; building code standards; claims analysis and
mitigation; construction administration; construction defects;
contract compliance; cost estimating; customs and practices; design and implementation; earthquake hazard; flooring and floor covering; framing (wood and steel); geotechnical and hydrological; personal injury; quality of workmanship;
reinforced concrete; reinforced masonry; roofing and waterproofing; safety and OSHA standards; scaffolding; scheduling and delays; slips, trips and falls; steps, stairs and railings;
Standards of Care; Standards of Practice; structural failure;
structural steel and welding; water intrusion and mold. See
display ad on page 8.
PACIFIC CONSTRUCTION CONSULTANTS, INC.
(800) 655-PCCI. Contact marketing director. Construction contract disputes (claims) analysis, prep and presentation, delay and monetary impact evaluation, including CPM
schedules. Architectural, civil, structural, mechanical, and
electrical specialties. Full in-house courtroom visual exhibit
preparation. Assistance in negotiations, mediation, arbitration, and litigation. Expert witness testimony. Additional
phone (310) 337-3131 or (916) 638-4848. See display ad
on page 52.
PCMI THE EXPERT CHOICE®
2402 Cross Street, Riverside, CA 92503, (800) 576-7264,
fax (888) 307-7264, e-mail: [email protected], Web
site: www.pcmi.biz. Contact Scott Vivian. PCMI is a
construction consulting firm providing litigation, mediation,
and court testimony since 1982 for construction defects,
delay claims, breach of contract, and personal injury. PCMI
has provided expert services for both plaintiff and defense.
PINNACLEONE
90071, (213) 486-9884, fax (213) 486-9894, e-mail: DAR
@pinnacleone.com. Established in 1980, PinnacleOne is a
national firm of leading construction consultants who promote a full range of professional services, including dispute
avoidance and resolution, claims analysis and management, litigation support services, expert witness, project
management, financial services, and more. Headquartered
in Phoenix, PinnacleOne regional operations are located in
San Diego, Irvine, Los Angeles, Sacramento, and
Hartford, CT.
Yaworski. Rimkus Consulting Group is a full-service
forensic consulting firm. Since 1983, we have provided
reliable investigations, reports, and expert witness testimony around the world. Our engineers and consultants
analyze the facts from origin and cause through extent of
loss. Services: construction defect and dispute analysis,
vehicle accident reconstruction, fire cause and origin,
property evaluation, mold evaluations, indoor air quality
assessments, biomechanical analysis, product failure
analysis, foundation investigations, industrial accidents
and explosions, water intrusion analysis, geotechnical
evaluations, construction accidents, construction disputes, financial analysis and assessments, forensic accounting, HVAC analysis, electrical failure analysis, and
video/graphics computer animation. See display ad on
page 75.
SPECTRUM DEVELOPERS
1241 Flemington Road, Riverside, CA 92506, (909)
776-1194, fax (909) 776-1196, e-mail: steve
@spectrumdevelopers.com. Web site: www
.spectrumdevelopers.com. Contact Steve Koppes. Inspections, expert testimony, and consulting for construction defects related to swimming pools, fountains, and
spas.
TRAUNER CONSULTING SERVICES, INC.
3111 Camino del Rio North, Suite 1350, San Diego, CA
92108, (619) 640-8500, fax (619) 640- 8501,e-mail:
.traunerconsulting.com. Contact Ken Baker, VP. Extensive expert witness testimony on construction delays, CPM
scheduling, inefficiency claims, disputed extra work, claim
damages, specification interpretation, contractor termina-
tion, construction manager standard-of-care, general contractor practice, and design-build. Specialties: graphical
expert presentations, trial exhibits, written expert reports,
analysis/preparation of construction claims and damages,
and litigation support. Licenses/degrees: PE #14267 CO;
GC #B693646 CA; MBA-1978; BSCE-1972. Extensive
credentials as trainer. Member-CMAA, DBIA, ASCE,
ACEC, AGC.
ULTIMO ORGANIZATION INC.
Geotechnical Construction & Engineering
1411 East Borchard Avenue, Santa Ana, CA 92705, (714)
560-8999, fax (714) 560-8998, e-mail: fran@geotechnical
.com. Web site: www.geotechnical.com. Contact Frank
Ultimo Sr. Our team can provide the resources, expertise,
and techniques to identify causes and effects of a problem
and implement remedies. We can provide site, structure,
and geotechnical investigations; industry expert services;
foundation floor level surveys; repair plans; accurate documentation; estimates; emergency stabilization; and environmental remediation. Industry expert services for foundation and construction problems. Remedial foundation,
slope pool, ground stabilization, re-leveling and repairs;
forensic documentation, estimates, and repair plans; emergency stabilization services; hillside, and waterfront expertise, and repair techniques; environmental remediation services; geotechnical investigations; authorized installer of
Atlas and Chance foundation underpinning. See display
ad on page 80.
URS
90017, (213) 996-2549, fax (213) 996-2521, e-mail:
[email protected]. Expert witness for entitlement, causation damages on design, construction, and
geotechnical environmental disputes. Experienced in all
types of construction projects. See display ad on
page 83.
CREDIT DAMAGE MEASUREMENT
PLAINTIFFS AND DEFENDANTS
Discover the Secrets to Equitable
Credit Damage Recovery
Protect your case value and get the
FAIREST COMPENSATION FOR YOUR CLIENT
including: Increased out-of-pocket costs,
Loss of Capacity, and Loss of Expectancy
Call the only expert witness with a proven compensable
method to measure credit damage since 1995.
Georg Finder 714.441.0900
For more information, visit
www.creditdamageexpert.com
(CLE training seminars available)
ARNOLD L. GILBERG, M.D., PH.D
EXPERT WITNESS • PSYCHIATRY
• Appointed by 3 Governors to Medical Board
of California MQRC 11th District (1982-1991)
• Associate Clinical Professor of Psychiatry,
UCLA School of Medicine
• All areas of civil litigation
• Board Certified since 1971
E-Mail: [email protected]
TEL 310/274-2304
FAX 310/274-2476
9730 Wilshire Boulevard, Suite 101
Beverly Hills, CA 90212
CONSTRUCTION DEFECT
GHH ENGINEERING, INC.
11960 Heritage Oak Place, Suite 2B, Auburn, CA 95603,
(530) 886-3100, fax (530) 886-3108, e-mail: ghh@ghheng
.com. Web site: www.moldservicesgroup.com. Contact
Alisa Smith. Civil engineering and design, environmental
consulting, PSA’s, water and wastewater, storm water
management, hazardous waste, fuel storage tank compliance, construction defect, litigation support, third party
oversight, expert witness, mold management and consulting services, and mold training and certification.
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. Twenty-five years’ experience, 8,000+ residential units and assorted commercial
projects. Active plumbing contractor. Call for CV.
G. GOVINE CONSULTING
Developing the Workforce for the 21st Century
LITIGATION CONSULTANT
AND EXPERT WITNESS:
EMPLOYMENT
SPECIALIZES IN:
✔ SEXUAL HARASSMENT,
AB 1825 TRAINING
INCLUDING
✔ EMPLOYMENT DISCRIMINATION:
AGE, RACE, SEX
✔ HUMAN RESOURCES AND
EMPLOYMENT PRACTICES
CORPORATE INVESTIGATIONS
✔ WRONGFUL TERMINATION
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
courts, and before the FTC and DOJ. Areas of expertise in-
✔ MEDIATION
DR. GERDA GOVINE
260 N. MAR VISTA, SUITE NO. 2
PASADENA, CA 91106
TEL: 626/564-0502
FAX: 626/564-8702
800-564-0501
www.govineconsults.com
clude antitrust (including cutting-edge analyses of market
90017, (213) 787-4100, fax (213) 787-4141,e-mail: dnolte
SULTAN & COMPANY, LLC
805 Third Avenue, Suite 2800, New York, NY 10022, New
York (212) 753-8895, Los Angeles (213) 236-0933, e-mail:
[email protected]. Web site: www.sultanonline
.com. Contact Christina A. Sultan, managing director.
Sultan & Company provides litigation support, asset tracing, employment, forensic accounting, and federal and
state expert witness services. Private and corporate investigations, litigation support, due diligence, background investigations, international and US asset tracing, and international business intelligence. The firm is licensed in New
York and California.
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax
planning and preparation, and mergers and acquisitions.
Testified hundreds of times as expert witnesses. Prior Big
Four accounting firm experience. Specialties include accounting, antitrust, breach of contract, business interruption, business dissolution, construction, fraud investigation,
asset tracing analysis, intellectual property (patent, trademark and copyright infringement, and trade secrets), personal injury, product liability, professional malpractice, real
estate, spousal support, tax, valuation of businesses, unfair advertising, unfair competition, and wrongful termination. See display ad on page 48.
CREDIT DAMAGE
GEORG FINDER
2501 East Chapman Avenue, Suite 100, Fullerton, CA
92831, (714) 441-0900, e-mail: [email protected]. Web
site: www.creditdamageexpert.com. Contact Georg
Finder. Defense/plaintiff. Consultant/expert witness testimony plus credit damage report reveals, change of creditworthiness, loss of capacity, loss of expectancy, in cases
of fraud, breach of contract, bad faith insurance, negligence, wrongful termination, identity theft, malpractice, PI,
divorce, creditor or credit bureau error. Very different than
the service of an economist or CPA. Often increases plaintiff case value by 400 percent or more. May reduce de58 Los Angeles Lawyer November 2005
fense liability by 90 percent. CV: Director of Curr Financial
Education Academy: Author of 3 MCLE seminars; credit
reports: misconceptions and realities; credit reports: compliance and opportunity; credit damage: evaluation and
compensation. Numerous publications. See display ad
on page 57.
CRIMINOLOGY/GANGS
DR. LEWIS YABLONSKY
2311 Fourth Street, Suite 312, Santa Monica, CA 90405,
phone and fax (310) 450-3697, e-mail: expertwitness
@lewyablonsky.com. Web site: www.lewyablonsky.com.
Contact Dr. Lewis Yablonsky, PhD -NYU. Emeritus
professor criminology, California State University Northridge. Professor at other universities, including UCLA, University of Massachusetts, Harvard, Texas A&M, and Columbia University. Published 19 books on criminology and
social problems, including Criminology (1990), Gangsters
(1997), and Gangs in Court (Lawyers & Judges Publishers,
2005). Consultant/expert witness in over 180 legal cases in
various areas of criminality, especially gangs (165+ gang
cases). Also homicide, drug addiction, company security liability, and responsibility. See Web site. Appointed to the
“Panel of Experts” approved by the L.A. County Superior
Court Judge’s Committee. See display ad on page 83.
DISPUTE ANALYSIS
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400,
OFS™ THE BUSINESS DOCTORS
P.O. Box 4182, Inglewood, CA 90304, (310) 821-1893,
site: www.ofs3.com. Contact Linda Magalona. Senior
corporate executive, small business and entrepreneurial
experience. Over 20 years of business judgment, best
practices, and complex business issues/problems consultation. Identification and analysis of best practices and deliverables issues in eCommerce, eProcurement and supply
chain software applications and technology based implementation. Expert in analysis, concepts, and strategies related to business disputes, project management, and partnership dissolution. Special expertise in Sarbanes-Oxley issues including corporate governance and COBIT IT com-
pliance. See display ad on page 67.
ECONOMIC DAMAGES
consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/
brokers. Specialties: lending customs, practices, policies,
in all types of lending (real estate, business/commercial,
construction, consumer/credit card), banking operations/
administration, trusts and investments, economic analysis
and valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage, appraisal,
escrow, and construction defects/disputes, and title insurance.
90024, (310) 873-1717, fax (310) 873-6600. Contact
BUSINESS ENTERPRISE APPRAISAL CO., INC.
23801 Calabasas Road, Suite 1016, Calabasas, CA
91302, (818) 591-9282, or (800) 928-7463. Contact
Larry Grant, ASA or Robert Weinstock, JD, CBA. Appraisal of businesses and professional practices for all litigation and nonlitigation purposes, including estate planning and taxation, for 706 filings, FLP and LLC discounts,
S corporation elections, corporate dissolutions, damages,
loss and earnings and condemnation of goodwill. Also real
property appraisals. Expert witnesses in all jurisdictions.
Established 1972.
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
courts, and before the FTC and DOJ. Areas of expertise in-
clude antitrust (including cutting-edge analyses of market
CONLEY FORENSICS
15436 Albright Street, Pacific Palisades, CA 90272, (310)
Contact Bryan C. Conley, PhD, principal. Specializing in
personal injury, wrongful death, wrongful termination and
breach of contract damages. Published in forensic economic and leading academic journals. Testifying since 1977.
90071, (213) 553-2501, fax (213) 553-2699, e-mail:
[email protected]. Web site: www.cornerstone
.com. Contact Jeanene Moon. 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.
CORPORATE SCIENCES, INC.
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. Services
available: consultants with extensive litigation analysis and
testimonial experience providing economic, forensic and
litigation services to assist law firms and their clients analyze and present economic damages in civil litigation matters. Our highly skilled team is composed of a diverse
group of practitioners—economists, CPAs, CFAs, statisticians, real estate and business valuation specialists, insurance, financial and economic damages experts with Big
Four accounting firm experience. Services performed include real estate, business valuation, economic feasibility
studies, survey and market studies. Areas of litigation specialization include general economic damages, construction defects, insurance recovery and defense, intellectual
property, environmental damages, business valuations,
real estate valuations and damages, land economics, antitrust, standard of care, forensic investigations, employment, corporate and partnership dissolutions, securities,
and class action lawsuits. Professionals also serve as mediators, special masters, third party administrators, as well
as consulting and testifying experts.
CRA INTERNATIONAL
intellectual property, international trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing, telecommunications, and valuation. In concert with leading academic and industry experts, CRA multidisciplinary staff offers wide-ranging consulting assistance (from modeling projects to trial preparation and testimony) to attorneys, executives, and government officials the world over. See display ad on this
page.
ECON ONE RESEARCH, INC.
601 West Fifth Street, 5th Floor, Los Angeles, CA 90071,
(213) 624-9600, fax (213) 624-6994, e-mail: lskylr
@econone.com. Web site: www.econone.com. Contact
Antitrust
Bankruptcy
Contract Disputes
Damages
Energy & Environment
Entertainment
Finance
Tough questions call for
clear thinking, expert
insight, and a sharp focus
on the facts. That is why
CRA International is
considered the gold
standard by law firms,
businesses, and
governments that seek
clear and reliable answers.
Whether we are engaged to
provide expert witness
testimony in complex
litigation or to advise clients
in make-or-break corporate
strategy decisions, CRA
applies the same rare
combination of talents:
vertical specialization,
functional expertise, and
rigorous financial and
economic analysis. With a
proven 40-year track record
and a growing global
presence in more than 20
offices on four continents,
CRA is the partner of
choice when the right
decision matters.
Healthcare
Intellectual Property
International Trade
Mergers & Acquisitions
Pharmaceuticals
Professional Sports
Regulation
Securities
Taxation & Transfer Pricing
Telecommunications
Valuation
CRA International
1055 East Colorado Boulevard
Suite 420
Pasadena, CA 91106-2327
Contact:
John Hirshleifer, Vice President
Tel: 626-564-2000
Fax: 626-564-2099
Lisa Skylar, general manager. Econ One is an economic research and consulting firm with extensive experience combining theory and empirical analyses. We understand the need for clear, accurate, persuasive answers to
complex problems. We work with our clients to keep our
efforts focused on necessary tasks, with close attention to
costs. We provide economic analysis and expert testimony
in many areas, including: antitrust, contract disputes, damages analysis/calculations, intellectual property and patent
infringement, market analysis, regulation, employment issues, and unfair competition.
ECONOMIC CONSULTANTS & ASSOCIATES
2030 Main Street, Suite 1300, Irvine, CA 92614, (714)
547-6588, (310) 246-9993, fax (714) 547-9916, e-mail:
[email protected]. Contact Stephen T. Riley,
PhD. Quantifying losses in the following areas: P/I, wrongful death, loss of household services, loss of earning capacity, medical/legal malpractice, business losses (lost
profits), wrongful termination, and expert testimony.
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
(408) 279-1034 ■ FAX (408) 279-3562
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
HOLLIS & ASSOCIATES
238 Pasadena Avenue, Suite 200, South Pasadena, CA
91030-2920, (626) 441-1103, fax (626) 441-1107, e-mail:
[email protected]. Contact Michael R.
Hollis, MBA, MA (Econ). Economic damages analysis
and expert witness testimony regarding personal injury,
wrongful death, earning capacity, household services,
wrongful termination, employment discrimination, sexual
harassment, medical malpractice, business damages (lost
profits), products liability, and pediatrics.
KROLL
90017, (213) 443-6090, fax (213) 443-6055. Contact
or Christian Tregillis, CPA/ABV ctregillis@krollworldwide
.com. Investigations, economic damages, and valuation
firm with offices across the country and around the globe.
Specialties include accounting, financial, economic and
statistical analysis, as well as computer forensics, in the
context of commercial litigation and forensic investigations:
accounting/fraud, securities, intellectual property (including
damages analyses, licensing and valuation), breach of contract, lost profits, royalty audits, corporate governance,
business valuation, real estate, construction, bankruptcy.
Practitioners include former partners at Big Four accounting firms, law enforcement/FBI, computer forensics, and
appraisers. See display ad on page 67.
90017, (213) 627-8280, fax (213) 627-8301, e-mail: [email protected]. Web site: www.schulzehaynes
.com. Contact Karl J. Schulze or Dana Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery, real estate
transactions, financial analysis and modeling, major professional organizations, and have experience across a broad
spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; ABV; PhD-economics.
THOMAS NECHES & COMPANY LLP
90071-2662, (213) 624-8150, fax (213) 624-8152, e-mail:
[email protected]. Web site: www.thomasneches
.com. Contact Thomas M. Neches, CPA, ABV, CVA,
CFE. 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.
Education: BA (Mathematics) UC San Diego, MS (Operations Research) UCLA. Teaching: Adjunct Professor, Loyola Law School. See display ad on page 51.
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
219-9816, fax (949) 219-9095, e-mail:[email protected].
Contact Barbara Luna, Drew Hunt, Paul White, Jack
Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal injury,
and marital dissolution. Investigative analysis of liability,
damage analysis of lost profits, lost earnings, and unjust
enrichment, fraud investigation, business valuation, tax
asset tracing analysis, intellectual property (patent, trademark and copyright infringement and trade secrets), personal injury, product liability, professional malpractice, real
WILLIAMS & RIBB LLP
90017-3227, (213) 683-1013, fax (213) 683-0510, e-mail:
[email protected]. Contact Charles R Gross,
partner. Specialties: expert witness testimony and forensic accounting services in business and contract disputes,
marriage dissolution, and lost profits, and earnings disputes, earnings loss and economic damage calculations,
income tax analysis, and fraud investigations. Our expertise encompasses engineering training, operational business experience, plus accounting and financial consulting,
including economic analysis. Degrees/licenses: CPA; BS;
Engineering; Masters; Management Science; Registered
Investment Advisor; Insurance and Securities Advisor; Financial Planner.
ECONOMICS
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
91403, (818) 986-5070, fax (818) 986-5034, e-mail:
ad on page 60.
CRA INTERNATIONAL
(213) 624-9600, fax (213) 624-6994, e-mail: lskylar
ELECTRICAL
ROBERT J ABEND, PE
1658 Laraine Circle, San Pedro, CA 90732, cell (310) 3466543, (310) 221-0716, fax (310) 221-0716, e-mail:rabend
ELECTRICAL ACCIDENTS
JAMES A. SMITH, CONSULTANT
2562 Treasure Drive, Suite 4102, Santa Barbara, CA
93105-4177, (805) 687-7911, fax (805) 687-0832,
e-mail: [email protected]. Electrical accidents, electrocution and electric shock, analyzing what happened and
why, consulting on case strategy, and being an expert witness, National Electric Code compliance, California GO-95
compliance, National Electric Safety Code compliance,
protective relaying, and equipment and product testing.
ELECTRICAL ENGINEERING
CTG FORENSICS, INC.
16 Technology Drive, Suite 109, Irvine, CA 92618,
(949) 790-0010, fax (949) 790-0020, e-mail: mlewis
@CTGforensics.com. Web site: www.CTGforensics
.com. Contact Dr. Malcolm Lewis, PE. Construction-related engineering, plumbing, mechanical (heating, ventilating, A/C) and electrical (power, lighting), energy systems,
residential and nonresidential buildings, construction defects, construction claims, and mold.
ELECTRONIC DISCOVERY
ROBERT J ABEND, PE
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
SETEC INVESTIGATIONS
8391 Beverly Boulevard, Suite 167, Los Angeles, CA
90048, (800) 748-5440, fax (323) 939-5481, e-mail:
.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.
EMPLOYMENT
BIDDLE CONSULTING GROUP, INC.
193 Blue Ravine Road, Suite 270, Folsom, CA 95639,
(916) 294-4250, fax (916) 294-4255, e-mail: staff@biddle
.com. Web site: www.biddle.com. Contact Dan Biddle,
PhD, president. We specialize in compensation analysis,
test development, EEO/AA reviews, validation studies
— EXPERT WITNESS IN —
INFERTILITY, GYNECOLOGY & OBSTETRICS
IVF (In Vitro Fertilization) • LASER SURGERY •
LAPAROSCOPY • REPRODUCTIVE ENDOCRINOLOGY
GIL N. MILEIKOWSKY, M.D., FACOG
OFFICES: Encino and Beverly Hills
2934 1/2 Beverly Glen Circle #373, Bel Air, CA 90077
TEL (310) 858-1300 • FAX (310) 858-1303
TEL (818) 981-1888 • FAX (818) 981-1994
Web site: www.baby4you.net
Please see listing under INFERTILITY, OBSTETRICS AND GYNECOLOGY, and PEER REVIEW for information.
— DRIVER ERROR ANALYSIS —
Human Factors Forensic Science
Internationally
Recognized
Expert
Driver error • Inattention • Fatigue • Sensory, perceptual,
mental, and physical factors • Car, truck and bus driver
skill and knowledge requirements • Driver and motor
carrier standards of care • Hours of service violations •
Circadian rhythms • Sleep debt • Human factors traffic
accident analysis
www.drivingfatigue.com
DENNIS WYLIE
■
D. WYLIE ASSOCIATES
P O Box 60836, Santa Barbara, CA 93160
VOICE
(805) 681•9289
■ FAX
(805) 681•9299
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
(content, criterion-related), and adverse impact analyses.
We have a special emphasis in the protective service
fields. Over 30 staff. Degrees/licenses: MA, PhD, other
staff with various degrees.
G. GOVINE CONSULTING
260 North Mar Vista, Suite #2, Pasadena, CA 911061413, (626) 564-0502, fax (626) 564-8702, e-mail: info
@govineconsults.com. Web site: www.govineconsults
.com. Contact Dr. Gerda Govine. Specializes in employment discrimination, sexual harassment including AB 1825
training, wrongful termination, age discrimination, communications, training and analysis, evaluation of human resource policies, practices, procedures, handbooks, systems, and evaluation of sexual harassment matters. Practices of employment discrimination, and mediation. See
HAIGHT CONSULTING
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.
ETHICS
WITHOUT
COMPROMISE
Miod and Company has developed a solid
reputation for ethical Forensic Accounting
services. For all legal arguments that relate
to accounting issues, we deliver informed,
objective, honest opinions.
+ Non-partisan/Expert Witness Testimony
+ Objective Business Appraisals
-Marital Dissolutions
-Estate Valuations
+ Tax Consultation
+ Thorough Investigative Accounting
-Asset Tracing
-Reimbursement Claims
+ Fraud Investigations
CALL FOR OUR COMPANY BROCHURE
LOS ANGELES OFFICE:
11600 INDIAN HILLS RD., BULDING B, SUITE 300
MISSION HILLS, CA 91345-1225
TEL: (818) 898-9911 FAX: (818) 898-9922
PALM DESERT OFFICE:
74-478 HIGHWAY 111, SUITE 254
PALM DESERT, CA 92260
TEL: (760) 779-0990 FAX: (760) 779-0960
PASADENA OFFICE:
1055 E. COLORADO BLVD., SUITE 900
PASADENA, CA 91106
TEL: (626) 441-1090 FAX: (626) 441-1096
People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting
People Plus Accounting People Plus Accounting People Plus Accounting People Plus Accounting
People Plus Accounting People Plus Accounting
www.miod-cpa.com
People Plus Accounting People Plus Accounting
Plaintiff and defense attorneys respect Ms. Hirsch’s experience working on employment and vocational rehabilitation matters from both the employee and employer perspective. Her expertise is utilized in cases involving ADA
(Americans with Disabilities Act), FMLA (Family Medical
Leave Act), sexual harassment, personal injury, or divorce.
We provide litigation support, expert testimony, and investigations. We also specialize in helping companies understand and comply with regulations and issues in the complicated realm of human resources management.
HUMAN RESOURCES MANAGEMENT NETWORK
sex/sexual/gender discrimination, race/color/racial discrimination, religious discrimination, national origin/ancestry discrimination, age discrimination, sex/sexual/gender
harassment, sexual orientation harassment,
race/racial/color harassment, religious harassment, disability harassment, national origin/ancestry harassment,
age harassment, FMLA/CRFA violations, ADA violations,
negligent hiring/retention, performance evaluation/review,
DFEH and DOL regulations, pregnancy, and EEOC guidance, Cases: 45 percent plaintiff, 55 percent defense.
EMPLOYMENT/DISCRIMINATION/
HARASSMENT
BRIAN H. KLEINER, PHD
Professor of Human Resource Management, California
State University, 800 North State College Boulevard, LH-
640, Fullerton, CA 92834, (714) 879-9705, fax (714) 8795600. Contact Brian H. Kleiner, PhD. Specializations
include wrongful termination, discrimination, sexual harassment, ADA, evaluation of policies and practices, reasonable care, progressive discipline, conducting thirdparty workplace investigations, retaliation, RIFs, statistics,
negligent hiring, promotion selections, CFRA/FMLA, compensation, wage and hours, ERISA, workplace violence,
and OSHA. Consultant to over 100 organizations. Over
500 publications. Five-time winner of CSUF Meritorious
Performance Award. Extensive experience giving testimony effectively.
EMPLOYMENT HARRASSMENT
STEFANIE STOLINSKY, PHD, LICENSED
PSYCHOLOGIST, PSY 16053
9107 Wilshire Boulevard, Suite 200, Beverly Hills, CA
90210, (310) 788-3436. Web site: www.act-it-out.com.
Contact Stefanie Stolinsky, PhD. Neuropsychological
and psychological testing and measurement; personal injury evaluations, intelligence, cognitive and personality
testing. Expert witness for adults abused as children;
PTSD. See display ad on page 75.
EMPLOYMENT/WAGE EARNING
CAPACITY
CALIFORNIA CAREER SERVICES
6024 Wilshire Boulevard, Los Angeles, CA 90036, (323)
933-2900, fax (323) 933-9929, [email protected]. Web
site: www.californiacareerservices.com. Contact Susan
W. Miller, MA. Vocational examinations/labor market research and testimony on employability and earning capacity as well as educational options in divorce and wrongful
termination cases.
GOLDFARB AND ASSOCIATES
1101 Fremont Avenue, Suite 103, South Pasadena, CA
91030, (626) 441-9687, fax (626) 799-8736, e-mail:
[email protected]. Contact Howard
Goldfarb. Vocational rehabilitation consultant providing
expert witness testimony on employability and wage loss
in personal injury, marriage dissolution, ERLSA, age discrimination, and sexual harassment.
PERSONNEL SYSTEMS ASSOCIATES, INC.
7551 East Moonridge Lane, Anaheim, CA 92808,
(714) 281-8337, fax (714) 281-2949, e-mail: mding
@personnelsystems.com. Web site: www
.personnelsystems.com. Contact Mae Lon Ding, MBA,
CCP. Expert witness in employment, business dispute,
disability, and divorce cases involving issues of employee
or owner compensation, discrimination, wrongful termination, exemption from overtime, labor market/employability,
lost wages/benefits, employee performance, and evaluation of personnel policies and practices. Nationally recognized human resource management and compensation
consultant, speaker, author of book and articles, university
instructor. Quoted in Los Angeles Times, Orange County
Register, Business Week, Workforce, and Working
Woman. Over 14 years of testifying in cases involving
major national organizations in a large variety of industries
involving multiple plaintiffs. MBA, Certified Compensation
Professional.
ENGINEERING
FORENSISGROUP
3452 East Foothill Boulevard, Suite 1160, Pasadena, CA
91107, (800) 555-5422, (626) 795-5000, fax (626) 7951950, e-mail: [email protected]. Web site: www
.forensisgroup.com. Contact Mercy Steenwyk. Thousands of our clients have gained the technical advantage
and the competitive edge in their cases from our resource
group of high-quality experts in construction, medical, engineering, product liability, safety, environmental, accident
reconstruction, automotive, failure analysis, fires, explosions, slip and fall, real estate, economics, appraisal, em-
ployment, computers, and other technical and scientific
disciplines. We provide you with a select group of highquality experts as expeditiously as possible. Unsurpassed
recruitment standards. Excellent client service. See display ad on page 53.
.com. Web site: www.moldservicesgroup.com.
Contact Alisa Smith. Civil engineering and design, environmental consulting, PSA’s, water and wastewater, storm
water management, hazardous waste, fuel storage tank
compliance, construction defect, litigation support, third
party oversight, expert witness, mold management and
consulting services, and mold training and certification.
HICHBORN CONSULTING GROUP
1988 North Tustin Avenue, Orange, CA 92865, (714) 6377400, fax (714) 637-7488, e-mail: hichbornsr@hichborn
.com. Web site: www.hichborn.com. Contact Geoffrey
Hichborn Sr. General civil design with specialties featuring
forensic investigations of concrete work and concrete
products, concrete, cement and related materials expertise, construction practices and materials evaluation, repair
recommendations, construction observation, public
works/residential/commercial/industrial, and specially designed tests of distressed materials.
RICK ENGINEERING CO.
1223 University Avenue, Suite 240, Riverside, CA 92507,
(951) 782-0707, fax (951) 782-0723, e-mail: rstockton
@rickengineering.com. Web site: www.rickengineering
.com. Robert A. Stockton, PE. Specialties include subdivision, commercial/industrial site design, construction review and value engineering, flood control studies/engineering, aerial topographic mapping, and special computerized
services, including forensic engineering and CADD modeling. See display ad on page 64.
CARL SHERIFF, PE
101531⁄2 Riverside Drive, Suite 365, Toluca Lake, CA
91602, (818) 766-9259, fax (818) 908-9301. Contact
Carl Sheriff, PE, forensic engineer. Degreed in the law
and engineering. Registered professional engineer in mechanical, controls, and safety. General contractor, real estate broker, and certified building inspector. Licensed truck
driver. Consulting and expert testimony on premises liability, product defects, and traffic accidents. Construction
and industrial accidents. Building and OSHA code compliance. Slip, trip, and falls. Human factors. Safety evaluation.
Computerized analysis and exhibits. Free initial file review.
ENGINEERS/ELECTRONICS
JOHN R. GRINDON & ASSOCIATES
Image Processing, Image Analysis, and 3-D Scene
Measurement from Images. P.O. Box 4067, Hazelwood
MO 63042, (314)895-4747, fax (314)895-0830, e-mail: john
[email protected]. Web site: www.image-analytics
.com, Contact John R. Grindon, DSc. Services include
processing and analyzing still and video images for information about the imaged scenes or objects. Dr. Grindon
has developed systems and software that process images,
measurements, and data for information extraction and
analysis. He holds patents for electronic imaging systems
and processing methods for computing three-dimensional
scene measurements from images. Dr. Grindon is a consultant and court-qualified expert witness experienced in
working with litigation teams during discovery and trial.
ENVIRONMENTAL
550 South Hope Street Suite 1100, Los Angeles, CA
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
.com. Contact Laura Robinson, PhD. Specialties: 1.
SECURITIES
Securities Law
Federal Securities Law Enforcement
International Securities Regulation
Insider Trading
NYSE, AMEX, NASD Disciplinary Proceedings
Broker-Dealer, Investment Company & Investment Adviser Matters
Liability Under Federal & State Securities Laws
Public & Private Offerings
Internet Securities
Securities Arbitration
Law Firm Liability
Robert C. Rosen
Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School. Over
32 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission,
Washington D.C. Published Author of Securities Regulations, including nine volume treatise.
Rosen & Associates, P.C.
LAW OFFICES
California Plaza • 300 S. Grand Avenue, Suite 2700 • Los Angeles, CA 90071
TEL 213/362-1000 ■ FAX 213/362-1001
Web site: Rosen-law.com E-mail: [email protected]
THE BEST LEGAL MINDS
IN THE COUNTRY
TALK TO US
• Metallurgical Failures
• Corrosion & Welding Failures
• Glass & Ceramic Failures
• Chairs / Ladders / Tires
• Automobile/Aerospace/
Accidents
Contact:
• Bio-Medical/Orthopedic Implants
• Plumbing/Piping/ABS Failures
• Complete In-House Laboratory
Testing & Analysis Facilities
• Expert Witnesses/Jury Verdicts
• Licensed Professional Engineers
Dr. Naresh Kar, Fellow ASM, Fellow ACFE
Dr. Ramesh Kar, Fellow ASM, Fellow ACFE
ADVANCED MATERIALS, INC.
Testing & Research Labs
2528 W. Woodland Drive
Anaheim, CA 92801
■ TEL: (714)527-7100
■ FAX: (714)527-7169
■ www.karslab.com
■ email: [email protected]
Behrooz (Bruce)
Broukhim, M.D.
Board Certified Orthopedic Surgeon
■
Shoulder, knee & hip surgery
■
Arthroscopic surgery
■
Neck & back injury eval. & treatment
■
Personal injury
■
Workers’ Compensation
■
QME, IME, AME
–
–
–
–
Am. Academy of Orthopedic Surgeons
American Board, of Ortho Surgeons
Arthroscopic Assn. of North America
International Society of Arthroscopy,
Knee Surgery & Ortho Sports Medicine
MEMBER:
LACMA – CMA
818-755-6500 TEL
310-552-1488 (L.A.)
818-980-7144 FAX
10640 Riverside Dr., North Hollywood, CA
9763 W. Pico Blvd., Los Angeles, CA
20 YEARS EXPERIENCE
IN ORTHO. MED. LEGAL WORK
AND EXPERT TESTIMONY
Valuation of environmental liabilities and other legal claims
using a decision tree approach that produces an accurate
representation of liability cost versus the probability of
those costs being incurred. 2. Provision of crucial information to help ensure that products or services meet the environmental, health, and safety requirements of the jurisdictions in which they do business. 3. Staff of Washingtonbased regulatory analysts monitor federal and state regulatory developments and interact with government officials to
explain the interests of their clients. Degrees/license: hydrogeology, geology, environmental scientists.
EQUINE
CRA INTERNATIONAL
consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/
brokers. Specialties: lending customs, practices, policies,
in all types of lending (real estate, business/commercial,
construction, consumer/credit card), banking operations/
administration, trusts and investments, economic analysis
and valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage, appraisal,
escrow, and construction defects/disputes, and title insurance.
HARGIS + ASSOCIATES, INC.
2365 Northside Drive, Suite C-100, San Diego, CA 92108,
(800) 554-2744, (619) 521-0165, fax (619) 521-8580,
e-mail: [email protected]. Web site: www.hargis.com.
Contact David R. Hargis, PhD, RG. Expert witness testimony, technical consultation, and litigation support concerning hydrogeologic assessments to evaluate groundwater supply, basin studies, nature/extent of soil/groundwater
contamination, source identification, identification of potentially responsible parties, cost allocation studies, and negotiations with USEPA and state regulatory agencies involving cleanup levels and approval of RI/FS/RD/RA documents for various state and federal Superfund sites. See
consulting, PSA’s, water and wastewater, storm water
PACIFIC HEALTH & SAFETY CONSULTING, INC.
2192 Martin, Suite 230, Irvine, CA 92612, (949) 253-4065,
e-mail: [email protected]. Web site: www.phsc-web
.com. Contact Tim Morrison. Providing quality consultation and expert witness for mold, bacteria, lead, and asbestos. Certified training for all health and safety OSHA,
AQMD and FPT regulations. See display ad on this
page.
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, a multi-disciplined, environmental engineering, contracting, and consulting firm founded in 1989. Experienced in matters related to environmental distress or contamination, assessment and remediation, construction, and related financial
matters. Degrees from the University of Southern California, B.S., Civil Eng., 1981; University of Houston, MS, Civil
Eng., 1984; and Harvard University, MBA, 1986. Adjunct
faculty member at the USC School of Engineering, and
member of its Board of Councilors.
CAROL MESCHTER, DVM, PHD, DACVP
786 Lucerne Drive, Sunnyvale, CA 94085, (408) 738-9261,
fax (408) 738-9278, e-mail: [email protected].
Contact Carol Meschter, DVM. PhD, DACVP. PhD,
Board Certified Veterinary Pathologist. Twenty-plus years’
expertise in biotechnology, pharmaceuticals, toxicology;
additional life of long experience with horses and dogs, as
a veterinarian and as a competitor.
ESCROW
EXPERT REFERRAL SERVICE
FORENSIC EXPERT WITNESS ASSOCIATION
2402 Vista Nobleza, Newport Beach, CA 92660, (949)
Web site: www.forensic.org. Contact Norma S. Fox, executive director. Nonprofit professional association. Education through monthly meetings, workshops, and annual
conference. Referral service. Five chapters throughout California. See display ad on page 46.
TASA
(800) 523-2319, fax (800) 329-8272. FIND YOUR EXPERT,
EXPERT WITNESS, or CONSULTANT in minutes. TASA
provides time-saving, customized referrals by our experienced staff to outstanding, local, national, and global specialists, including hard-to-find authorities in virtually all professions. We offer more than 10,000 categories of expertise, including 900 medical specialties through the
TASAmed division. Your request receives our prompt personal attention. Our services include unlimited searches,
referrals, resumes, and initial screening telephone interviews
which we help you arrange with candidates—all at NO
CHARGE until you designate or engage an expert. Plaintiff/defense, civil/criminal cases, and ADR. Experts can assist you at any stage of your case from early case merit assessment to deposition and testimony. Sample expertise
categories: accident reconstruction, banking, computers,
construction, economics, electronics, engineering, forensic
accounting, healthcare, intellectual property, machine design, medical devices, mold, OSHA, personal injury, product liability, safety, security, and toxicology. Over 44 years
of successful referrals to California’s finest law and insurance firms. Please see insert in this issue and display
ad on page 74.
EXPERT WITNESS
AMFS, INC. (AMERICAN MEDICAL FORENSIC
SPECIALIST)
2640 Telegraph Avenue, Berkeley, CA 94704, (800) 2758903, (510) 549-1693, fax (510) 486-1255, e-mail:
[email protected], Web page: www.amfs.com.
Contact Barry Gustin, MD, MPH, FACEP. AMFS is a
physician and attorney managed company that provides
initial in-house case screenings by 72 multidisciplinary
physician partners. Medical experts are matched to meet
case requirements by AMFS Physician Partners from our
panel of over 3,500 carefully prescreened board-certified
CRA INTERNATIONAL
OFS™ • The Business Doctors™
www.ofs3.com
practicing specialists in California. All recognized medical
specialties. Plaintiff and defense. Fast, thorough, objective,
and cost-effective. Medical negligence, hospital and managed care, personal injury, product liability, and toxic torts.
“A 92 percent win record” –California Lawyer magazine.
● Sarbanes-Oxley (SOX) Corporate Governance and /COBIT IT Compliance
● Dispute Analysis, Best Practices and Expert Consultation & Testimony in Business
Litigation and Disputes
● Business Judgment; Vendor Disputes; Partner and Director Disputes: Partnership
Dissolution
● Purchasing & Contracting Issues; Supply Chain & eCommerce Implementation and
Practices; Corporate Supplier Diversity, SBE, DBE, MWBE Guidelines & Best Practices
Contact BJ Hawkins PhD Certified Expert Witness
310.821.1893
FAX 310.821.1083 E-MAIL [email protected]
POST OFFICE BOX 4182, INGLEWOOD, CALIFORNIA 90309
FAILURE ANALYSIS
KARS ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland Drive,
Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 5277169, e-mail: [email protected]. Web site: www.karslab
.com. Contact Drs. Ramesh J. Kar or Naresh J. Kar.
Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineers with 20-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive,
bicycles, tires, fire, paint, plumbing, corrosion, and structural failures. We work on both plaintiff and defendant
cases. Complete in-house capabilities for tests. Extensive
deposition and courtroom experience (civil and criminal investigations). Principals are fellows of American Society for
Metals and board-certified diplomates, American Board of
Forensic Examiners. See display ad on page 65.
SEAL LABORATORIES
250 North Nash Street, El Segundo, CA 90245, (310) 3222011, fax (310) 322-2243. E-mail: [email protected].
Web site: www.seallabs.com. Contact Arun Kumar,
PhD, president. Materials failure analysis, product liability,
and patent infringement support. Case evaluation and
strategy, analytical support, and expert witness testimony.
Metals, composites, plastics, and glass. Airplanes, autos,
helicopters, motorcycles, consumer products, medical devices, prostheses and implants, and electrical components. Analysis of failure due to fatigue, overload, corrosion, wear, or manufacturing/material defect.
FAMILY LAW
91403, (818) 986-5070, fax (818) 986-5034, e-mail:
ad on page 60.
CERTIFIED PUBLIC ACCOUNTANTS AND
BUSINESS CONSULTANTS
How do you describe the integrity,
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Forensic Accounting &
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> Forensic & Investigative Accounting
> Damages Quantification &
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> Litigation Consulting
> Restatement Investigations
> SEC & Corporate Governance Services
> Investigative & Security
Technology Consulting
www.krollworldwide.com
For more information, contact:
Troy Dahlberg • Phone: 213.443.1072
Chris Tregillis • Phone: 213.443.1091
10351 Santa Monica Boulevard, Suite 300, Los
Angeles, CA 90025, (310) 552-0960, fax (310) 557-3468.
20355 Hawthorne Boulevard, First Floor, Torrance, CA
90503. Web site: www.gursey.com. Contact David
Swan, Stephan Wasserman, or Robert Watts. Forensic accounting and litigation support services in the areas
of marital dissolution, business valuation and appraisal,
goodwill, business disputes, malpractice, tax matters,
bankruptcy, damage and cost-profit assessments, insurance claims, court accounting, tracing, and entertainment
industry litigation. See display ad on page 53.
HARGRAVE & HARGRAVE
576-1090, fax (310) 576-1080, e-mail: terry@taxwizard
.com. Web site: www.taxwizard.com. Contact Terry M.
law and civil cases. Past chair of California Society of CPAs’
Family Law Section, business valuation instructor for California CPA Foundation and AICPA. 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. See display ad on page 60.
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
more than 20 years. See display ad on page 46.
DIANA G. LESGART, CPA, CFE, AN
ACCOUNTANCY CORP.
22024 Lassen Street, Suite 106, Chatsworth, CA 91311,
(818) 886-7140, fax (818) 886-7146, e-mail:Lesgart3@msn
.com. Contact Diana G. Lesgart, CPA, CFE, FCPA.
Specialized accounting and litigation support services in
the areas of family law litigation, tracing of assets, pension
plan tracing, forensic accounting, business valuation,
goodwill, expert testimony, commercial litigation, fraud investigations, economic damages, and real estate litigation.
Over 21 years’ accounting experience with 17 years’ litigation support specialization. Assigned as §730 accounting
expert. Ms. Lesgart’s profile can be found at www.jurispro
.com. using “Lesgart” under Search by Name. Expert is
fully English/Spanish bilingual.
LEWIS, JOFFE & CO, LLP
90024, (310) 475-5676, fax (310) 475-5268. Contact
Brian Lewis, CPA, CVA. Forensic accounting, business
valuations, cash spendable reports, estate, and trust and
income tax services.
92260, (760) 779-0990, fax (760) 779-0960, 1055 East
(626) 441-1090, fax (626) 441-1096, e-mail: dmiod
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
FEE DISPUTE
EDWARD LEAR (CENTURY LAW GROUP)
5200 West Century Boulevard, Suite 940, Los Angeles, CA
90045, (310) 642-6900, fax (310) 642-6910, e-mail: lear
@centurylawgroup.com. Contact Edward Lear. Former
State Bar prosecutor; expert testimony and declarations
regarding breach of standard care, breach of fiduciary duties, especially in context of California Rules of Professional
Conduct. Expert testimony and declarations regarding
legal fees and billing practices. Qualified in federal and
state courts.
FINANCIAL
B & F EXPERTS
CRA INTERNATIONAL
90071, (213) 553-2501, fax (213) 553-2699, e-mail: jmoon
@cornerstone.com. Web site: www.cornerstone.com.
Contact Jeanene Moon. 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.
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
4910 Campus Drive, Newport Beach, CA 92660,
(949) 724-1880, fax (949) 724-1889, e-mail:sgabrielson
KROLL
90017, (213) 443-6090, fax (213) 443-6055. Contact
or Christian Tregillis, CPA/ABV [email protected]. Investigations, economic damages, and valuation firm with offices across the country and around the
globe. Specialties include accounting, financial, economic
and statistical analysis, as well as computer forensics, in
the context of commercial litigation and forensic investigations: accounting/fraud, securities, intellectual property (including damages analyses, licensing and valuation), breach
of contract, lost profits, royalty audits, corporate governance, business valuation, real estate, construction, bankruptcy. Practitioners include former partners at Big Four
accounting firms, law enforcement/FBI, computer forensics, and appraisers. See display ad on page 67.
92260, (760) 779-0990, fax (760) 779-0960, 1055 East
(626) 441-1090, fax (626) 441-1096, e-mail: dmiod
EXPERT WITNESS — Claims Consultant
EXPERIENCE
INTEGRITY
HONESTY
OVER 40 YEARS EXPERIENCE as a claims adjuster, licensed in three states and
qualified in state and federal courts. Expert in good faith/bad faith, standards
and practices and standard in the industry. Specialties in property/casualty
construction defect, fire/water, uninsured/underinsured motorist, warehouse
and cargo claims. Failure to defend and/or indemnify. Litigation support, case
review and evaluation claim consultation, coverage review and valuations.
Appraisal, Arbitration and Claims Rep. at MSC & MMC.
Contact Gene Evans at E. L. Evans Associates
Phone (310) 559-4005 / Fax (310) 390-9669 / E-mail [email protected]
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FINANCE
FIRE/EXPLOSIONS
Yaworski. Rimkus Consulting Group is a full-service forensic consulting firm. Since 1983, we have provided reliable
investigations, reports, and expert witness testimony
around the world. Our engineers and consultants analyze
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los t profits
property value
fair c ompens ation
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Waronzof A s s oc iates , Inc orporated
12200 W. O lympic B lvd., S uite 480
L os Angeles , C A 90064
310.954.8060 T
310.954.8059 F
www.waronzof.com
LEGAL MALPRACTICE, ETHICS AND
FEE DISPUTE EXPERT WITNESS
BOYD S. LEMON, ESQ.
40 YEARS TRIAL EXPERIENCE; RETAINED EXPERT
IN MORE THAN 700 CASES; FORMER MAJOR LAW
FIRM LITIGATION DEPARTMENT CHAIR; STATE BAR
DISCIPLINARY COMMITTEE; ATTORNEY FEE DISPUTE
ARBITRATOR; COURT APPOINTED MEDIATOR.
805-667-2137 • 310-860-4767 • www.legalmalexpert.com
the facts from origin and cause through extent of loss. Services: construction defect and dispute analysis, vehicle accident reconstruction, fire cause and origin, property evaluation, mold evaluations, indoor air quality assessments,
biomechanical analysis, product failure analysis, foundation
investigations, industrial accidents and explosions, water
intrusion analysis, geotechnical evaluations, construction
accidents, construction disputes, financial analysis and assessments, forensic accounting, HVAC analysis, electrical
failure analysis, and video/graphics computer animation.
FOOD SAFETY/HACCP
FOOD SAFETY & HACCP COMPLIANCE
20938 De Mina Street, Woodland Hills, CA 91364, (818)
703-7147, e-mail: [email protected]. Web site: www
.foodsafetycoach.com. Contact Jeff Nelken, MA, RD.
Food safety expert knowledgeable in both food safety and
hazard analysis critical control point program development.
Specializes in expert witness testimony and litigation consultant in matters regarding food safety, HACCP, crisis
management, food-borne illness, health department representation, food spoilage, 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. Food safety expert for CBS,
NBC, and Inside Edition.
FOOD TOXICOLOGY
COOK & ASSOCIATES
629 Camino de Los Mares, San Clemente, CA 92673,
(949) 361-2288, fax (949) 361-2598, e-mail: charlie
@countryfareconsulting.com. Contact Dr. Charles F.
Cook. Forensic food scientist. Food safety and qualityprocess control. Retail. Food service. Food processing.
Trail preparation. Expert witness.
FORENSIC ACCOUNTING
90024, (310) 873-1717, fax (310) 873-6600. Contact
Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400,
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on
page 2.
NANCY A. KEARSON, CPA, ABV, CVA, DABFA
1801 Century Park East, Suite 2400, Los Angeles, CA
90067, (310) 785-9614, fax (310) 277-1278, e-mail:
[email protected]. Contact Nancy Kearson. Costeffective, timely expert witness/consultation services, investigative forensic accounting, asset tracing, shareholder
and partner disputes, business valuation, and professional
practice appraisal. Frequent lecturer on forensic accounting and business valuation. Certified Public Accountant;
Accredited in Business Valuation, Certified Valuation Analyst, Diplomate of the American Board of Forensic Accountants.
LEWIS, JOFFE & CO, LLP
90024, (310) 475-5676, fax (310) 475-5268. Contact
Brian Lewis, CPA, CVA. Forensic accounting, business
valuations, cash spendable reports, estate, and trust and
income tax services.
fied business appraisers, certified fraud examiners, certified
FORENSIC CONSULTING
IMPACT GENERAL, INC.
1405 East Chapman Avenue, Orange, CA 92866, (714)
532-1621, fax (714) 532-5734, e-mail: assignments
@impactgeneral.com. Contact Bill King. Impact General,
Inc., is a forensic expert firm with over 500 experts working
in all engineering fields, science disciplines, and unique
specialties. Our 28 years of experience ensure in-depth
analysis with objective evaluations. A comprehensive approach guarantees that clients will receive consistency
within our firm’s business precepts of timeliness, effective
communications, and cost effectiveness.
FORENSIC PSYCHOLOGIST—TESTING
AND MEASUREMENTS FOR COURT
and psychological testing and measurement; personal injury evaluations, intelligence, cognitive and personality testing. Expert witness for adults abused as children; PTSD.
94104, (415) 395-7512, fax (415) 658-2858, e-mail:
HEALTHCARE
SINAIKO HEALTHCARE CONSULTING, INC.
1100 Glendon Avenue, Suite 1800, Los Angeles, CA
90024, (310) 826-4935, fax (310) 826-4212, e-mail: jeff
@sinaikohc.com. Web site: www.sinaikohc.com. Contact
Jeff Sinaiko. Sinaiko is a nationally recognized healthcare
consulting firm. Our professionals are handpicked for their
broad understanding of the industry, detailed expertise and
superior communication skills. Clients have found this expertise invaluable in litigation support where there is no
substitute for experience. Sinaiko’s litigation support practice includes, among others, industry standard practices
evaluations: Medicare/Medicaid fraud; provider/payor payment disputes; business valuation; transaction disputes;
and facility and professional fee billing.
HOTEL & RESORTS
FRANCHISING
94104, (415) 395-7512, fax (415) 658-2858, e-mail: dlabelle
@sugarman-company.com. Web site: www.sugarman
-company.com. Contact Diane LaBelle. Expert witness
testimony in federal, state, and local courts, forensic accounting. Case involvement includes: damage calculations,
lost profits, business interruption, cash flow analysis, forensic accounting, business and real estate valuations, construction damages, insurance claims, fraud investigations,
lender liability, partnership dissolution, professional malpractice, white collar crime, liquidation and going concern
analysis, as well as bankruptcy and reorganization management and consulting.
LEON GOTTLIEB
US-INT’L RESTAURANT, HOTEL & FRANCHISE
CONSULTANT
4601 Sendero Place, Tarzana, CA 91356-4821, (818) 7571131, fax (818) 757-1816, e-mail: [email protected]. Web
site: http://members.aol.com/lgottlieb/myhomepage/business.html. Specialties: USA/Int’l restaurant/hotel/franchise
experience since 1960. Hands-on consultant and expert
witness, all types of restaurants, franchises, fast food,
training, manuals, safety, security, injury, operating standards, and P&L damages. Former VP/Partner IHOP, director to USA chains, author, arbitrator, and expert witness.
FRAUD INVESTIGATIONS
Our designations include certified public accountant, certi-
Los Angeles, CA 90045, (888) 240-5184, (310) 216-1400,
STRAIGHTLINE ADVISORS
1576 El Dorado Drive, Thousand Oaks, CA 91362,
(805) 373-6840, fax (805) 379-1050, e-mail: kfree
@straightline-advisors.com. Web site: www
.straightline-advisors.com. Contact Kenneth Free.
Expert services for hotels, resorts, timesharing, and recreational real estate. Specialty is real estate and development: calculation of economic damages, lost profit, business interruption, controls, and branding/affiliation/franchising.
HUMAN FACTORS
D. WYLIE ASSOCIATES
P.O. Box 60836, Santa Barbara, CA 93160, (805) 6819289, fax (805) 681-9299. Web site: www.drivingfatigue
.com. Contact Dennis Wylie. Internationally recognized
human factors expert on driver error, inattention, fatigue,
car, truck, and bus driver skill and knowledge requirements, driver and motor carrier standards of care, hours of
service violations, circadian rhythms, sleep debt, impaired
vigilance, alertness, decision making, reaction time, and
control responses. See display ad on page 63.
INFERTILITY
GIL N. MILEIKOWSKY, MD, FACOG
Offices in Encino and Beverly Hills, 29341⁄2 Beverly Glen
Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or
(818) 981-1888, fax (310) 858-1303 or (818) 981-1994.
Web site: www.baby4you.net. Contact Gil N.
Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparoscopy, and reproductive endocrinology. Diplomate,
board certified by the American Board of OB/GYN. Board
eligible, American Board of Reproductive Endocrinology
Division. Fellow, American College of OB/GYN FACOG.
Member of the American Society for Reproductive Medicine, Society of Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge
Hospital, former Chairman Laser and Safety Committee at
Northridge Hospital and member of the Los Angeles
County Medical Association. Author, numerous scientific
papers and articles published in peer review journals. Former clinical instructor at USC. Former clinical assistant professor, OB/GYN at UCLA. See display ad on page 63.
INSURANCE
underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, business/
commercial, construction, consumer/credit card), banking
operations/administration, trusts and investments, economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance.
ANDREW BARILE CONSULTING
CORPORATION, INC.
P.O. Box 9580, Rancho Santa Fe, CA 92067, (858) 7595039, fax (858) 759-8436, e-mail: abarile@abarileconsult
.com. Web site: www.abarileconsult.com. Contact
Andrew J. Barile, CPCU. Mr. Barile’s insurance expertise spans the entire insurance distribution system. He has
either owned or has been employed by the following types
of insurance firms: wholesale insurance broker/excess and
surplus lines, managing general agency on behalf of both
admitted and non-admitted insurance companies, admitted and non-admitted insurers, reinsurance intermediary,
direct-writing reinsurer, broker market reinsurer, Bermuda
reinsurer, and captive insurer. Captive Insurance Company
and Reinsurance books authored by Andrew J. Barile,
CPCU. Reinsurance…A Practical Guide, 1978. The Captive Insurance Company…An Emerging Profit Center,
1978. A Practical Guide to Financial Reinsurance, 1991.
A Practical Guide to Finite Risk Insurance and Reinsurance, 1995. Reinsurance…A Practical Guide, 2001. The
Agent Owned Captive Insurance Company, 2001.
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
E.L. EVANS ASSOCIATES
3310 Airport Avenue, Box # 2, Santa Monica, CA 90405,
(310) 559-4005, fax (310) 390-9669, e-mail: elevans66
@yahoo.com. Contact Gene Evans. Good faith/bad faith.
Over 45 years’ experienceclaims adjuster. Standards
and practices in the industry, litigation support, claims consultation, case review and evaluation, property/casualty
claims, construction claims, uninsured/underinsured motorist claims, general liability, fire/water/mold claims, damage assessment, professional liability claims, appraisal
under policy, arbitration, duty to defend, advertising claims,
coverage applications, and suspected fraud claims. CV
available on request. See display ad on page 69.
LAUNIE ASSOCIATES, INC.
1165K Tunnel Road, Santa Barbara, CA 93105, (805) 5699175, fax (805) 687-8597, e-mail: [email protected].
Contact Joseph J. Launie, PhD, CPCU, insurance
professor, author, and consultant. Over 25 years’ experience as expert witness in state and federal courts.
Coauthor of books and articles on underwriting, insurance
company operations, and punitive damages. Consulting,
expert witness on underwriting, company and agency operations, and bad faith.
CLINTON E. MILLER, JD, BCFE
502 Park Avenue, San Jose, CA 95110, (408) 279-1034,
fax (408) 279-3562, e-mail: [email protected]. Contact
Clint Miller. Insurance expert regarding claims, underwriting, agent and brokers errors and omissions, coverage disputes, customs and practices, and bad faith. See display
ad on page 60.
JANICE A. RAMSAY, ESQ.
2 Park Plaza, Irvine, CA 92614, (949) 474-1880, (949)
400-5040 (cell), fax (949) 474-7265, e-mail: jramsay
@cox.net. Contact Janice A. Ramsay, Esq. Experience
in testifying in depositions and at trial. Can provide consultation to litigation counsel on property insurance coverage
issues and proper claim handling. Have acted as appraiser, arbitrator, and mediator in coverage disputes.
SHARP & ASSOCIATES; INSURANCE
CONSULTANTS & EXPERTS.
21730 Mackenzie Avenue, Yorba Linda, CA. 92887, (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. Mr.
Sharp has 33 years of experience, and retired 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 on request. For immediate background information please see my Web site,
as listed above.
BARRY ZALMA, INC.; ZALMA INSURANCE
CONSULTANTS
4441 Sepulveda Boulevard, Culver City, CA 90230, (310)
Web site: www.zalma.com or www.zic.bz. . Contact
Barry Zalma. Insurance coverage, insurance fraud, insurance claims, insurance bad faith consultant, and expert
witness. Author of Construction Defects: Litigation and
Claims, Insurance Claims—A Comprehensive Guide and
Mold: A Comprehensive Claims.
INSURANCE BAD FAITH
M & Z CLAIMS SERVICE INC.
18032-C Lemon Drive, PMB 164, Yorba Linda, CA 92886,
(714) 777-4462, fax (714) 777-4507, e-mail: mandz
@pacbell.net. Web site: www.insuranceclaimsexpert.com.
Contact Frank T. Zeigon. Specializing in claim handling
custom and practice, claim adjusting, coverage interpretation, SIU practices, and auditing procedures. This includes
complex claim handling issues, and claim community standards. Mr. Zeigon has served as an expert witness, appraiser/umpire, and mediator. Mr. Zeigon is experienced in
auto, general liability, and property claims.
DAVID F. PETERSON
10681 Encino Drive, Oak View, CA 93022, (805) 6498557, fax (805) 649-5957, e-mail [email protected]
Contact David F. Peterson. Fourteen years of claim experience. Twenty-five years as a bad faith and coverage
attorney. Qualified and testified in over 64 trials on bad
faith (first and third party), underwriting, legal malpractice,
coverage, and advice of counsel. Testimony for insureds
and insurers in federal and state courts in California, Arizona, Nebraska, Nevada, Saint Lucia, West Indies, and
U.S. Virgin Islands.
INTELLECTUAL PROPERTY
Pastore. Sanli Pastore & Hill, Inc., is a premier provider of
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
Jack Zuckerman, Fred Warsavsky, and Bill Wolf. Expert witness testimony for business, real estate, personal
injury, and marital dissolution. Investigative analysis of liability, damage analysis of lost profits, lost earnings, and unjust enrichment, fraud investigation, business valuation, tax
INVESTIGATIONS
BENCHMARK INVESTIGATIONS
32158 Camino Capistrano, # A-415, San Juan
Capistrano, CA 92675, (800) 248-7721, fax (949) 2480208, e-mail: [email protected]. Web site: www
.BenchmarkInvestigations.com. Contact Jim Zimmer,
CPI. National agency. Professional investigations with emphasis upon accuracy, detail, and expedience. Asset/financial searches, background investigation, DMV searches,
domestic/marital cases, due diligence, process service, surveillance/photograph, witness location, and statements. LA
branch plus correspondents nationwide. Multilingual agents.
Fully insured.
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
[email protected]. Web site: www.fulcruminquiry
.com. Contact David Nolte. Our professionals are experienced CPAs, MBAs, ASAs, CFAs, affiliated professors,
and industry specialists. Our analysis and research combined with unique presentation techniques have resulted in
an unequaled record of successful court cases and client
recoveries. Our expertise encompasses damages analysis,
LAW ENFORCEMENT/SECURITY
DANIEL R. SULLIVAN, DEPUTY CHIEF,
LAPD, RET.
76766 Daffodil Drive, Palm Desert, CA 92211, (818) 5902486, e-mail: [email protected]. Web site:
www.investigativeservices.com. Contact Dan Sullivan.
Expert witness—use of force/police practices, event/facility
security—consultant to cities of Los Angeles, Beverly Hills,
U.S. Department of Justice. Qualified as expert over 150
times in superior/federal courts.
LEGAL MALPRACTICE
PHILLIP FELDMAN, BS, MBA, JD, AV
91403-3287, (310) LEG MALP (534-6257), fax (818) 9861757, e-mail: [email protected]. Web site: www
.legalmalpracticeexperts.com. Contact Phillip Feldman,
BS, MBA, JD, AV. Board certified in legal and medical
malpractice by CA, ABA, ABPLA. Former Judge Pro Tem,
State Bar Prosecutor. Fee Dispute Arbitrator. Thirty-eight
years as litigator/transactional attorney, supervising partner. Never failed to qualify or disqualified, and 23 years as
expert. Any standard of care, conduct, causation, fiduciary
duty or fee dispute issues. Any transaction. Any litigation.
Any underlying matter, transaction or litigation. (Also defends lawyers before the State Bar.
[email protected]).
BOYD S. LEMON
Ventura office (805) 667-2137, Beverly Hills office (310)
860-4767. Contact Boyd S. Lemon. Experienced expert
witness in legal malpractice and attorney fee dispute
cases, 40 years of business trial experience, extensive
malpractice litigation experience, retained expert witness in
over 700 cases, former litigation department chairman
major law firm, State Bar disciplinary committee, and court
appointed mediator and arbitrator. See display ad on
page 70.
LISE A. PEARLMAN, ESQ.
484 Lake Park Avenue, P.M.B # 105, Oakland, CA 94610,
(510) 268-8159, fax (510) 832-0847, e-mail: lpearlma
@msn.com. Web site: www.forensic.org. Contact Lise
Pearlman. Former presiding Judge of the California State
Bar Court (1989-95). Consultant to law firms, individual
lawyers on required standard of professional conduct and
standard of care under California law in wide variety of
practice situations and in connection with State Bar proceedings; expert witness for plaintiff or defense in attorney
malpractice actions, motions to disqualify, and other civil
proceedings.
LIFE CARE PLANNING/CRITIQUE
ROUGHAN & ASSOCIATES AT LINC.
41 East Foothill Boulevard, Suite 102, Arcadia, CA 91006,
(626) 462-9675, fax (626) 462-9676, e-mail: janr@linc.
biz Contact Jan Roughan. Specialties: Roughan & Associates at LINC is a case management and medical/legal
consulting firm. Services/products offered include 1) Life
care planning/future medical costs, 2) Expert testimony, 3)
Independent medical evaluation (IME) specialists identification, merit analysis. Medical chronologies, attendance at
IMEs/mediation/arbitrations, and settlement conferences.
LITIGATION
90071, (213) 892-2568, fax (213) 892-2300, e-mail:
CRA INTERNATIONAL
1055 East Colorado Boulevard, Suite 420, Pasadena,
California 91106-2327, (626) 564-2000, fax (626) 5642099. Web site: www.crai.com. Contact John Hirshleifer, vice president. CRA International provides economic, financial, and business analysis in such areas as
antitrust, contracts, damages, energy, environment, entertainment, healthcare, intellectual property, international
trade, mergers & acquisitions, professional sports, regulation, securities fraud, taxation and transfer pricing,
telecommunications, and valuation. In concert with leading
academic and industry experts, CRA multidisciplinary staff
offers wide-ranging consulting assistance (from modeling
projects to trial preparation and testimony) to attorneys,
executives, and government officials the world over. See
(213) 624-9600, fax (213) 624-6994, e-mail: lskylar
consulting, PSAs, water and wastewater, storm water
YES, you can win
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For more information, visit
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94104, (415) 395-7512, fax (415) 658-2858, e-mail:
.sugarman-company.com. Contact Diane LaBelle. Expert witness testimony in federal, state, and local courts,
MEDICAL
800-659-8464
www.tasanet.com
213-625-0828 • [email protected]
EXPERT – PATHOLOGIST
LESTHER WINKLER, MD
Specialties:
Surgical and Autopsy Pathology
Clinical Pathology
40 YEARS EXPERIENCE
Medical record reviewing (hospital records,
office records) with emphasis on pathology
aspects, gross and microscopic, and relationship to general medical and hospital care.
Experience with hospital bylaws, rules, and
regulations, consent issues, and medical staff
privileges; as well as, hospital healthcare law,
medical, hospital, and “outside” ethical
medical issues.
Helped establish concepts and chaired
hospital ethics committees for more than 10
years. Represented physicians before California Medical Board when requested by
attorneys.
TEL
818/349-8568 FAX 818/993-9701
10155 Topeka Drive, Northridge, CA 91324
AMFS, INC. (AMERICAN MEDICAL FORENSIC
SPECIALIST)
2640 Telegraph Avenue, Berkeley, CA 94704, (800) 2758903, (510) 549-1693, fax (510) 486-1255,e-mail:
[email protected], Web page: www.amfs.com.
Contact Barry Gustin, MD, MPH, FACEP. AMFS is a
physician and attorney managed company that provides
initial in-house case screenings by 72 multidisciplinary
physician partners. Medical experts are matched to meet
case requirements by AMFS Physician Partners from our
panel of over 3,500 carefully prescreened board-certified
practicing specialists in California. All recognized medical
specialties. Plaintiff and defense. Fast, thorough, objective,
and cost-effective. Medical negligence, hospital and managed care, personal injury, product liability, and toxic torts.
“A 92 percent win record” –California Lawyer magazine.
GUNTHER RENE BAUER, MD, JD
19 Hilltop Circle, Rancho Palos Verdes, CA 90275, fax
(310) 541-9415, cell (310) 251-0106, e-mail: grbauermd
@aol.com. Web site: www.bauermdmedmallaw.com.
Contact Gunther R. Bauer, MD, JD. Diplomate, American Board of OB-Gyn, quality assurance/utilization review
and forensic examiners/medicine. Member, California Bar,
Health Lawyers Association, and American College of
Legal Medicine, 25 plus years in Clinical OB-Gyn, clinical
teaching background, consultant-medical legal issues,
hospital care, evaluation of cases for merit (CCP128.7), indepth discussion of cases after review of medical records
and discovery material, complete medical research of
cases, litigation support/deposition, and trial preparation.
Experienced. References available. See display ad on
page 73.
BEHROOZ (BRUCE) BROUKHIM, MD
10640 Riverside Drive, North Hollywood, CA, 9763 West
Pico Boulevard, Los Angeles, CA, (818) 755-6500, (310)
552-1488 (LA), fax (818) 980-7144. Contact Angelina
Urquhart, MD. Board-certified orthopedic surgeon.
Shoulder, knee, and hip surgery, arthroscopic surgery,
neck and back injury evaluation and treatment, personal injury, workers’ compensation, QME, IME, and AME. Member: American Academy of Orthopedic Surgeons, American Board of Ortho Surgeons, Arthroscopic Association of
North America, International Society of Arthroscopy, Knee
Surgery and Ortho Sports Medicine. Twenty-five years of
experience in orthopedic medical legal work and expert
testimony. See display ad on page 66.
ROUGHAN & ASSOCIATES AT LINC.
41 East Foothill Boulevard, Suite 102, Arcadia, CA 91006,
(626) 462-9675, fax (626) 462-9676, e-mail: [email protected]
Contact Jan Roughan. Specialties: Roughan & Associates at LINC is a case management and medical/legal
consulting firm. Services/products offered include 1) Life
care planning/future medical costs, 2) Expert testimony, 3)
Independent medical evaluation (IME) specialists identification, merit analysis. Medical chronologies, attendance at
IMEs/mediation/arbitrations, and settlement conferences.
TASAMED
Customized expert referrals in all medical practice areas.
(800) 659-8464, fax (800) 850-8272. Contact Jim
Roberts. FIND THE MEDICAL EXPERT or EXPERT
WITNESS YOU NEED quickly with one call or click to
TASAmed. We refer top caliber, experienced practitioners—including hard-to-find-specialists—for case merits review, IME’s, litigation support, testimony, etc. in over 900
medical fields. You’ll save valuable search time. Every request receives personal service from our helpful Referral
Advisors, including unlimited searches, referrals, resumes,
and initial screening telephone interviews with candidates.
There is NO CHARGE until you designate or engage an expert. Sample categories: Anesthesiology, Cardiology, Dentistry, DNA, Elder Care, Emergency Care, Forensic Pathology, General Surgery, Malpractice, Neurosurgery, Nursing,
Orthopedics, Oncology, Pediatrics, Sports Medicine, and
more. Plaintiff and defense. Local, regional, and national
referrals. Exceptional personal service for over 44 years.
Please see our insert in this issue and display ad on
this page.
MEDICAL/DERMATOLOGY
STANLEY M. BIERMAN, MD, FACP
2080 Century Park East, #1008, Los Angeles, CA 90067,
(310) 553-3567, fax (310) 553-4538, e-mail: sbiermanmd
@aol.com. Contact Stanley Bierman, MD. Dr. Bierman
is an expert witness in matters relating to diagnosis and
treatment of skin cancers as well as matters relating to
sexually transmitted diseases. Dr. Bierman is Honorary Associate professor of medicine and past president of Los
Angeles Dermatologic Society.
MEDICAL/EMERGENCY MEDICINE
BERNARD T. MCNAMARA, MD
409 North Pacific Coast Highway, Suite 923, Redondo
Beach, CA 90277, (310) 480-4770, fax (310) 943-3274,
e-mail: [email protected]. Contact Bernard
T. McNamara, MD. Current practice, full time emergency
medicine, and assistant clinical Professor of Medicine.
Over 20 years of experience in the practice of emergency
medicine, infectious diseases, and HIV/AIDS. Experience in
medical malpractice for both plaintiff and defense. Board
certified, emergency medicine since 1987; board certified,
infectious disease since 1984; board certified, international
medicine since 1980. Degrees/licenses: MD; Fellow, American College of Physicians; Fellow, American College of
Emergency Medicine; Member, American Academy of
Emergency Medicine; and member, Infectious Disease Society of America; OCMA (Orange County Medical Association); Lic: (CA, WA); CA Lic-G36838 since 1978, WA LicMD00041205 since 2002.
BRUCE WAPEN, MD
EMERGENCY MEDICINE EXPERT
969-G Edgewater Boulevard, Suite 807, Foster City, CA
94404-3760, (650) 577-8635, fax (650) 577-0191, e-mail:
[email protected]. Web site: www.DrWapen
.com. Contact Bruce Wapen, MD. Board-certified emergency physician and experienced public speaker offers
consultation, chart review, and testimony as an expert witness for defense or plaintiff involving litigation arising from
the emergency department.
MEDICAL/ENDOCRINOLOGY
RICHARD D. HORNICHTER MD
450 North Bedford Drive, Suite 209, Beverly Hills, CA
90210, (310) 274-7336, fax (310) 858-6972, e-mail:
.diabetesdoc.com. Contact Richard D. Hornichter, MD.
Diabetes and endocrinology. Diabetes and associated
complications: amputation, retinopathy, vascular etc. Experienced in medical record review, opinion, and expert
witness testimony. CV and prior medical/legal experience
data available. Clinical Assoc. Prof. UCLA. Degrees/licenses: MD (CA & TX).
MEDICAL/INFECTIOUS DISEASE
BERNARD T. MCNAMARA, MD
409 North Pacific Coast Highway, Suite 923, Redondo
Beach, CA 90277, (310) 480-4770, fax (310) 943-3274,
e-mail: [email protected]. Contact Bernard
T. McNamara, MD. Current practice, full time emergency
medicine, and assistant clinical Professor of Medicine.
Over 20 years experience in the practice of emergency
medicine, infectious diseases, and HIV/AIDS. Experience in
medical malpractice for both plaintiff and defense. Board
certified, emergency medicine since 1987; board certified,
infectious disease since 1984; board certified, international
medicine since 1980. Degrees/licenses: MD; Fellow, American College of Physicians; Fellow, American College of
Emergency Medicine; Member, American Academy of
Emergency Medicine; and member, Infectious Disease Society of America; OCMA (Orange County Medical Association); Lic: (CA, WA); CA Lic-G36838 since 1978, WA LicMD00041205 since 2002.
Stefanie Stolinsky, Ph.D.
CLINICAL AND FORENSIC PSYCHOLOGY
PSY 16053
(310) 788-3436
Neuropsychological and
Psychological Evaluations
Brain/Head Injuries
Work Related Injuries
Sexual Assault/Sexual Harassment
ADHD • Academic • IQ Assessment
Forensic Case Consultation • Psychotherapy
Beverly Hills location
www.act-it-out.com
MEDICAL/NEUROLOGY
ROGER V. BERTOLDI, MD
8610 South Sepulveda Boulevard, Suite 200, Los Angeles,
CA 90045-4810, (310) 670-5555, fax (310) 670-9222.
Web site: www.bol.ucla.edu/~rbertold. Contact Leslie.
Traumatic brain injury (TBI): Neuro behavior-anatomicalfunctional (PET, brain-mapping, neuropsychological)
workup and treatment. Diplomate (ABPN) qualification in
clinical neurophysiology: electrodiagnostics of electromyography (EMG), electroencephalography (EEG), and evoked
potentials for carpal tunnel syndrome (CTS), complex regional pain syndrome (CRPS), back pain radiculopathy,
peripheral nerve injuries, neurotoxic injuries, and chronic
pain, somatoform disorders, epilepsy, dementia,
headache, assistant clinical professor of neurology, UCLA,
AME, QME, IME.
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,
e-mail: [email protected]. Contact Gail. Board-certified
neurology, clinical assistant professor UCLA, personal injury, pain, carpal tunnel, spine, memory, seizure, sleep,
and clinical protocols. Multiple sclerosis, migraine, and
stroke. Education: AB Cornell University, MD and PhD
Brown University; residency + EMG/EEG fellowship UCLA;
Advisory Boards: L.A. Neurologic Society, St. John’s Sleep
Lab; honors: Who’s Who in Medicine (2001) and
science/engineering (1993), international electrophysiology
Young Investigator (1997), UCLA Neurology Teaching
Awards (1994, 1996), American Academy Neurology Research (1991), Brown University Sigma XI (1989), and research/publications (14), lectures (200).
MEDICAL/NEUROPSYCHOLOGY
PHILIP K. STENQUIST, PHD
Stenquist Neurocognitive Laboratories, 6230 Wilshire
Boulevard, Suite 37, Los Angeles, CA 90048, (323) 9574700, fax (661) 291-1741, e-mail: [email protected].
Contact Philip K Stenquis, PhD. Specialties: Neurocog-
nitive examination and diagnosis of all types of traumatic,
toxic, and infectious neurological disorders. Consultation
on all matters of personal injury, disability, and patient veracity. We use no technicians or para-professionals. Birthdate: July 21, 1956. Birthplace: New York, NY. Education:
BA, Cognitive Science, 1980; PhD, Clinical psychology,
South Illinois University, 1987. Certifications/licenses:
Diplomate, American Board of Clinical Neuropsychology;
American Board of Professional Psychology. Positions/appointments: Assistant Clinical Professor, Department of
Neurospychology, UCLA School of Medicine; Examiner,
American Board of Clinical Neuropsychology Amer Psych
Assn. Number of publications: Seven. Membership in professional societies: American Academy of Clinical Neuropsychology; International Neuropsychological Society;
Division 40 APA; National Academy of Neuropsycology.
Consulting/expert witness experience, criminal: 15 years of
expert witness experience in PI, disability, and testamentary capacity. Degree/licenses: PhD; CA Lic. PSY 11042;
ABPP; ABCN.
MEDICAL/PATHOLOGY
LESTHER WINKLER, MD
Encino-Tarzana Regional Medicine Center Pathologist.
(consulting emeritus status) 10155 Topeka Drive, Northridge, CA 91324, (818) 349-8568, fax (818) 993-9701.
Contact Lesther Winkler, MD. Specialties: surgical and
autopsy pathology, clinical pathology. Forty years of experience in reviewing medical records (hospital records, office
records) with emphasis on pathology aspects, gross and
microscopic, and relationships to general medical and hospital care. Experience with hospital bylaws, rules, and regulations, consent issues, and medical staff privileges. Also
experienced in hospital healthcare law, medical, hospital,
and “outside” ethical medical issues. Helped establish concepts and chaired hospital ethics committees for more
than 10 years. Represented physicians before California
Medical Board when requested by attorneys. Degrees/licenses: MD. See display ad on page 74.
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/TOXICOLOGY
JONATHAN S. RUTCHIK, MD, MPH, QME
20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941,
(415) 381-3133, fax (415) 381-3131, e-mail: 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 in-
stitutions on topics such as metals and solvents, mold illness, Baychol issues, Persian Gulf War syndrome, musicians’ injuries, and others. See display ad on page 77.
METEOROLOGY
MEDICAL/UROLOGY
DUDLEY SETH DANOFF, MD, FACS
Cedars-Sinai Medical Center, 8635 West 3rd Street, Suite
One West, Los Angeles, CA 90048, (310) 854-9898, fax
(310) 854-0267, e-mail: [email protected]. Web site:
www.towerurology.com. Contact Dudley Seth Danoff,
MD, FACS. Experience in urologic case review and testimony for plaintiff and defense, court experience, and
strategies. Extensive expertise in prostate, bladder, and
kidney cancers; kidney transplantation; pelvic trauma; sexual dysfunction; penile implants; incontinence; infections;
and stone disease. Publishing experience in scientific journals, books, lectures, training seminars, and course directorships. Princeton University, Summa Cum Laude; Yale
Medical School; Columbia University urologic training;
Major, U.S. Air Force; Who’s Who in America; Academic
appointment. Detailed CV available.
MEDICAL MALPRACTICE
LESTHER WINKLER, MD
Encino-Tarzana Regional Medicine Center Pathologist.
(consulting emeritus status) 10155 Topeka Drive, Northridge, CA 91324, (818) 349-8568, fax (818) 993-9701.
Contact Lesther Winkler, MD. Specialties: surgical and
autopsy pathology, clinical pathology. Forty years of experience in reviewing medical records (hospital records, office
records) with emphasis on pathology aspects, gross and
microscopic, and relationships to general medical and hospital care. Experience with hospital bylaws, rules, and regulations, consent issues, medical staff privileges. Also experienced in hospital healthcare law, medical, hospital and
“outside” ethical medical issues. Helped establish concepts and chaired hospital ethics committees for more
than 10 years. Represented physicians before California
Medical Board when requested by attorneys. Degrees/licenses: MD. See display ad on page 74.
METALLURGICAL AND CORROSION
ENGINEER
METALLURGY
GOLDEN GATE WEATHER
781 McDuff Avenue, Fremont, CA 94539, (510) 657-2246,
fax (510) 315-3015, e-mail: [email protected]. Web
site: http://ggweather.com. Contact Jan Null. Certified
consulting meteorologist experienced at trial and depositions. Weather event reconstruction and expert analysis for
rain, storms, wind, snow, flooding, ice, fog, and other
weather events. Twenty-three years’ experience with National Weather Service. Degrees: BS, MA, CCM.
NEUROPSYCHOLOGY & PSYCHOLOGICAL TESTING & MEASUREMENT FOR
COURT
NURSING/SURGERY
MED-LINK
3362 Budleigh Drive, Hacienda Heights, CA 91745, (626)
333-5110, fax (626) 968-0064, e-mail: dorothypollock
@adelphia.net. Contact Dorothy Pollock, LNCC. Registered nurse with 37 years’ clinical experience. Non-testifying services include case analysis/for merit, chronology,
translation, written reports, medical record organization.
DME/IME accompaniment including tape recording and
written report. Expert witness and testifying services, including affidavit, arbitration, declaration, deposition, and
trial. Courtroom experienced both plaintiff and defense.
OBSTETRICS AND 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.
Offices in Encino and Beverly Hills, 29341⁄2 Beverly Glen Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or (818)
981-1888, fax (310) 858-1303 or (818) 981-1994. Web
site: www.baby4you.net. Contact Gil N. Mileikowsky,
MD, OB/GYN. IVF, laser surgery, laparoscopy, and reproductive endocrinology. Diplomate, board certified by the
American Board of OB/GYN. Board eligible, American
Board of Reproductive Endocrinology Division. Fellow,
American College of OB/GYN (FACOG). Member of the
American Society for Reproductive Medicine, Society of
Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge Hospital, former Chairman Laser and Safety Committee at Northridge
Hospital and member of the Los Angeles County Medical
Association. Author, numerous scientific papers and articles published in peer review journals. Former clinical instructor at USC. Former clinical assistant professor,
OB/GYN at UCLA. See display ad on page 63.
EVALUATION
■ TESTING
■ TREATMENT
■
ORTHOPEDIC SURGEON
MARC J. FRIEDMAN, MD
6815 Noble Avenue, Van Nuys, CA 91405, (818) 9016600, fax (818) 901-6688, e-mail: [email protected]. Web
site: www.scoi.com. Contact Lonna Jaigiles. Orthopedic
shoulder and knee, consulting, and expert witness testimony. IME, AME, QME and workers’ compensation evaluations. See display ad on page 79.
Neurology and Electromyography
Neurotoxicology
Occupational/Environmental
Medicine
GRAHAM A. PURCELL, MD, INC.
ASSISTANT CLINICAL PROFESSOR
ORTHOPAEDIC SURGERY, UCLA
3600 Wrightwood Drive, Studio City, CA 91604, (818) 9853051, fax (818) 985-3049, e-mail: expert@gpurcellmd
.com. Web site: gpurcellmd.com. Contact Graham A.
Purcell, MD. Dr. Purcell is a board certified orthopedic
surgeon, sub-specialty in spinal disorders affecting
adults and children. Examples of spinal disorders treated
by Dr. Purcell include disc diseases, stenosis, infections,
tumors, injuries, and deformities including scoliosis. He
possesses 24 years of orthopedic and 15 years of medlegal experience, including defense, plaintiff, insurance carriers, CA Attorney General’s office and Public Defender’s
office. Expert testimony pertains to med-mal, personal injury, and workers’ compensation cases. As qualified medical evaluator, Dr. Purcell has extensive experience in performing QMEs, AMEs, IMEs, WC evals. See display ad
on this page.
415.381.3133 / FAX 415.381.3131
[email protected]
www.neoma.com
TEL
E-MAIL
San Francisco
Sacramento
Petaluma
Richmond
Eureka
RICHARD C. ROSENBERG, MD
18370 Burbank Boulevard, Suite 614, Tarzana, CA 91356,
(818) 996-6800, fax (818) 996-2929, e-mail: rcrnsx@aol
.com. Web site: www.drrosenberg.com. Contact Sheri
Roberts. Orthopedic surgery, sports medicine, and physical therapy. Experienced in IME, QME, agreed medical
exams, med/legal reports, and expert witness testimony.
Personal injury and workers’ compensation. Additional office in Oxnard, California.
JONATHAN S. RUTCHIK, MD, MPH
20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941
JERROLD M. SHERMAN, MD
1260 15th Street, Suite 614, Santa Monica, CA 90404,
(310) 393-9829, fax (310) 476-8438. Contact Jan
Lindsey. Orthopedic surgeon who is board certified as an
independent medical examiner and chief executive officer
of Outpatient Surgery Center. Licensed in California and
Nevada.
’
PEER REVIEW
Offices in Encino and Beverly Hills, 29341⁄2 Beverly Glen
Circle, Suite 373, Bel Air, CA 90077, (310) 858-1300 or
(818) 981-1888, fax (310) 858-1303 or fax (818) 9811994. Web site: www.baby4you.net. Contact Gil N.
Mileikowsky, MD, OB/GYN. IVF, laser surgery, laparoscopy, and reproductive endocrinology. Diplomate,
board certified by the American Board of OB/GYN. Board
eligible, American Board of Reproductive Endocrinology
Division. Fellow, American College of OB/GYN (FACOG).
Member of the American Society for Reproductive Medicine, Society of Assisted Reproductive Technologies, former Medical Director IVF (In Vitro Fertilization) at Northridge
Hospital, former Chairman Laser and Safety Committee at
Northridge Hospital and member of the Los Angeles
County Medical Association. Author, numerous scientific
papers and articles published in peer review journals. Former clinical instructor at USC. Former clinical assistant professor, OB/GYN at UCLA. See display ad on page 63.
’
’
PERSONAL INJURY
and psychological testing and measurement; personal injury evaluations, intelligence, cognitive and personality testLos Angeles Lawyer November 2005 77
ing. Expert witness for adults abused as children; PTSD.
uct liability, adverse drug reactions, drug interactions, and
failure to warn, etc.
Attorney references and/or redacted past reports available
on request. See display ad on page 80.
WOLF & HUNT
91423, (818) 981-4226, fax (818) 981-4278, and 363 San
PROBATE LAW
POLICE/SECURITY
DANIEL R. SULLIVAN, DEPUTY CHIEF,
LAPD, RET.
76766 Daffodil Drive, Palm Desert, CA 92211, (818) 5902486, e-mail: [email protected]. Web site:
www.investigativeservices.com. Contact Dan Sullivan.
Expert witness—use of force/police practices, event/facility
security—consultant to cities of Los Angeles, Beverly Hills,
U.S. Department of Justice. Qualified as expert over 150
times in superior/federal courts.
POLYGRAPH
JACK TRIMARCO & ASSOCIATES
POLYGRAPH INC.
9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA
90212, (310) 247-2637, fax (310) 306-2720, e-mail:
[email protected]. Web site: www.jacktrimarco.com.
Contact Jack Trimarco. Former manager of the Federal
Bureau of Investigation’s polygraph program in Los Angeles. Former Inspector General Polygraph Program—Department of Energy. Nationally known and respected Polygraph Expert. I have the credentials you would want when
you have a client polygraphed, a case reviewed, a motion
made regarding polygraph, or an in-depth professional investigation. My unique background allows me to bring the
highest levels of service and expertise to any polygraph situation. Degrees/licenses: BS Psychology; Certified APA,
AAPP, CAPE, AAFE. See display ad on page 42.
PHARMACEUTICAL
ETTIE ROSENBERG, JD, PHARM.D.
Allan N. Lowy & Associates, APLC, 424 South Beverly
Drive, Beverly Hills, CA 90212, (310) 553-8533, ext. 122,
fax 310) 557-1505, e-mail: [email protected].
Web site: www.lowylawcorp.com. Contact Ettie
Rosenberg. Consultation and/or forensic expert witness
services, medical chart review, charting errors, case review, research, deposition or trial testimony in areas of
pharmacy, pharmacology, pharmacy malpractice, pharmacist standard of care, drug related malpractice, drug prod78 Los Angeles Lawyer November 2005
DARLING, HALL & RAE, LLP
520 South Grand Avenue, 7th Floor, Los Angeles, CA
90071-2645, (213) 627-8104, fax (213) 627-7795, e-mail:
[email protected]. Contact Matthew S. Rae Jr.
Attorney specialists in estate planning, trust, and probate
law. Consultant and expert witness, special and associate
counsel, guardian ad litem, referee, special administrator,
and independent trustee.
PROCESS SERVER
BENCHMARK INVESTIGATIONS
32158 Camino Capistrano, # A-415, San Juan
Capistrano, CA 92675, (800) 248-7721, fax (949) 2480208, e-mail: [email protected]. Web site: www
.BenchmarkInvestigations.com. Contact Jim Zimmer,
CPI. National agency. Professional investigations with emphasis upon accuracy, detail, and expedience. Asset/financial searches, background investigation, DMV searches,
domestic/marital cases, due diligence, process service,
surveillance/photograph, witness location, and statements.
LA branch plus correspondents nationwide. Multilingual
agents. Fully insured.
PUBLISHING
BAY SHERMAN CRAIG & GOLDSTEIN, LLP
CA 90064, (310) 477-1400, fax (310) 479-0720, e-mail:
[email protected]. Web site: www.baysherman.com.
Contact Peter Craig or Hal Jaffe. Many legal disputes
involve operational, financial, accounting, and income tax
considerations. Bay Sherman Craig & Goldstein, LLP, work
together with counsel to resolve these conflicts. We specialize in intellectual property publishing. In addition to expert witness testimony, we provide the following: services
prior to trial, financial, accounting and income tax issues
defined, record analysis, economic fact-finding and analysis, deposition preparation assistance, and settlement negotiations.
PRODUCTS LIABILITY
PSYCHIATRY/PSYCHOLOGY
ARNOLD L. GILBERG, MD, PHD
Associate Clinical Professor of Psychiatry, UCLA School of
Medicine, a professional corporation, 9730 Wilshire Boulevard, Suite 101, Beverly Hills, CA 90212, (310) 274-2304,
fax (310) 274-2476. Contact Arnold L. Gilberg. Board
certified and appointed by three governors to Medical
Board of California 11th District MQRC 1982-1991. Certified in psychiatry and psychoanalysis. All civil matters, and
experienced as expert witness. Degrees/licenses: M.D.,
PhD. Licensed in California and Hawaii. See display ad
on page 57.
JEFF SUGAR, MD
312 East Sycamore Avenue, El Segundo, CA 90245, (310)
322-6933, e-mail: [email protected]. Jeff Sugar, MD,
child, adolescent, and adult psychiatrist. Associate clinical
professor, UCLA. A practicing psychiatrist for 15 years, he
is board certified in child and general psychiatry. He is past
president of the Southern California Society of Child and
Adolescent Psychiatry. As founding director of research at
Hathaway Children and Family Services, he led a study of
the long-term effects of trauma. Currently, co-ward chief:
University of Southern California, adolescent inpatient unit
and in private practice-general and child psychiatry. Dr.
Sugar’s reports and/or testimony have had an impact in
cases (both child and adult) involving: trauma: sexual and
physical abuse (with or without PTSD), personal injury and
workers’ compensation, psychiatric medication issue, diagnosis and appropriate treatment, ethical issues and
stress in legal practice, battered woman’s syndrome, child
custody. Free initial telephone consultation with attorney.
REAL ESTATE
B & F EXPERTS
STEPHEN B. FAINSBERT, ESQ., FAINSBERT
MASE & 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.
LAWRENCE H. JACOBSON, ESQ.
90212, (310) 271-0747, fax (310) 271-0757, e-mail:
[email protected]. Web site: www.lawrencejacobson
.com. Practicing real estate law in California since 1968;
Real estate broker since 1978; Former VP-Legal Affairs,
California Association of Realtors; broker. Witness/consultant expertise in standard of care; real estate brokerage;
lawyer malpractice, transactional, custom, and usage.
MAURICE ROBINSON & ASSOCIATES LLC
880 Apollo Street, Suite 125, El Segundo, CA 90245, (310)
640-9656, fax (310) 640-9276, e-mail: maurice
@mauricerobinson.com. Web site: www.mauricerobinson
.com. Contact R. Maurice Robinson, president. Hotel
and real estate industry business issues, including market,
economic and financial feasibility, valuation, and disputes
between owner-operator, borrower-lender, and franchisorfranchisee. Fluent in management contracts, license agreements, ground and building leases, partnership and JV
agreement, concession contracts, development agreements, and loan docs. Can estimate damages and appraise property values under multiple scenarios. Expert
witness testimony, litigation strategy, consultation and support, damage calculations, lost profits analysis, real estate
appraisals, deal structuring, workouts, new development,
strategic planning, market demand assessment, acquisition due diligence, and economic, financial, and investment
analysis.
JACK KARP/NATIONAL PROPERTIES GROUP
31115 Ganado Drive, Rancho Palos Verdes, CA 90275,
(310) 377-6349, fax (310) 868-2880, e-mail:jlkarp@cox
.net. Industrial and commercial broker’s care and duties,
professional obligations to clients. Mediation and arbitration between brokers and clients regarding disputes, ethical questions, and fee division. Deal structuring and site location analysis. Real estate leases and purchase contracts
and their interpretations. Author AIR Net and Gross Leases
and AIR Standard Offer and Agreement and Escrow Instruction for Purchase of Real Estate. See display ad on
page 86.
OVERLAND, PACIFIC & CUTLER, INC.
100 W. Broadway, Suite 500, Long Beach, CA 90802,
(800) 400-7356, fax (562) 304-2020, e-mail: rarmstrong
@opcservices.com. Web site: www.opcservices.com.
Contact Ray Armstrong, vice president. Overland, Pacific & Cutler, Inc. provides relocation assistance services
and real estate consulting for public agencies and private
sector clients. We specialize in business relocation and
forensic site searching for public agencies and law firms.
For the past 25 years, we have offered support for eminent
domain litigation with expert witness testimony. We are
completely familiar with the relocation laws and guidelines
for state and federal programs and programs involving
multiple funding sources.
PRITCHETT/RAPF & ASSOCIATES
3858 Cross Creek Road, Malibu, CA 90265, (310) 4570537, fax (310) 589-1145, e-mail: [email protected].
Web site: www.kathrynyarnell.com. Contact Kathryn
It’s not too late to list your expertise
in the 2006 Southern California
Directory of Experts & Consultants,
published by the Los Angeles County
Bar Association.
Call 213-896-6470—deadline is November 15
“Mr. Truck”
ACCIDENT
INVESTIGATION and RECONSTRUCTION
✔ Court Qualified Expert Witness Regarding
Car vs Car, Car vs Bicycle, Truck vs Car Cases
✔ Low Speed Accident Analysis
✔ Trucking Industry Safety and Driver Training Issues
✔ Power Point Court Presentations
William M. Jones
800 337 4994
P. O. Box 398
925 625 4994
Brentwood CA 94513-0398
Pager 510 840 4627
[email protected]
www.mrtruckar.com
Fax 925 625 4995
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
EXPERT – PSYCHIATRY
JEFF SUGAR, MD
Child, Adolescent &
Adult Psychiatrist
Associate Clinical
Professor, UCLA
A practicing psychiatrist
for 15 years, he is board
certified in child and
general psychiatry. He is
Past President of the
Southern California Society
of Child and Adolescent Psychiatry and Associate
Clinical Professor at UCLA. As founding director of
research at Hathaway Children and Family Services
he led a study of the long-term effects of trauma.
Currently co-ward chief: University of Southern
California, adolescent inpatient unit and in private
practice-general and child psychiatry.
Dr. Sugar’s reports and/or testimony have had
an impact in cases (both child and adult)
involving:
• Trauma: Sexual and Physical Abuse (with
or without PTSD)
• Personal Injury and Workers’ Compensation
• Psychiatric Medication Issues
• Diagnosis and Appropriate Treatment
• Ethical issues and Stress in Legal Practice
• Battered Woman’s Syndrome
• Child Custody
–FREE Initial Telephone Consultation with Attorney–
ATTORNEY REFERENCES AND/OR REDACTED PAST
REPORTS AVAILABLE ON REQUEST.
TEL: (310) 322-6933 | E-MAIL: [email protected]
312 E SYCAMORE AVE, EL SEGUNDO, CA 90245
IS YOUR
HOMES
IS YOUR
SLOPE
CONSTRUCTION
DEFECT?
?
I NK I NG
FA
I LIN G?
Our mission is to provide the most cost-effective
solutions to identify, document and develop the
best repair remedies for your foundation and slope
problems. At Ultimo Geotechnical Construction and
Engineering, we specialize in foundation soils stabilization, proprietary underpinning, and raising of sunken
structures. We have streamlined the process to quickly provide the bottom line, and back it up with our own
forces. We are authorized installers of Atlas and
Chance foundation underpinning.
INDUSTRY EXPERT REVIEW AND REPORTS:
Attorneys and homeowners will appreciate our inhouse capabilities to meet their needs. Our team can
provide the resources, expertise, and techniques to
identify causes and effects of a problem, and
implement remedies. We can provide site, structure,
and geotechnical investigations, industry expert
services, foundation floor level surveys, repair plans,
accurate documentation, estimates, emergency
stabilization, and environmental remediation.
Since 1937 • Three generations • The oldest
company doing this type of work in California!
ULTIMO ORGANIZATION INC.
Geotechnical Construction & Engineering
1411 East Borchard Ave., Santa Ana, CA 92705
Tel 714-560-8999 Fax 714-560-8998
www.geotechnical.com
The Foundation Specialist
CA State Lic. #338922
Yarnell. Expert witness consulting custom and practice,
standard of care, disclosure, ethics, and agency. Past
president, Malibu Association of Realtors-2002, Director to
CAR-1998-2006, CLAW Director for MLS 2000-2002,
MAR Director 1998-2006, 16 years of experience as a broker/realtor, and twice Malibu Realtor of the Year.
R.A. SNYDER PROPERTIES, INC.
2399 Camino Del Rio south, Suite 102, San Diego, CA
92108, (619) 793-4002, fax (619) 297-0779, e-mail: rick
@rasnyder.com. Web site: www.rasnyder.com. Contact
Richard A. Snyder. Specialties: real estate professional
for over 30 years. Experienced in a broad range of agency
representations, sale and exchange of residential and
commercial properties, management of over 6,000 apartment units and 400,000 sq. ft. comml/indust. Serves as a
court-appointed receiver and as litigation consultants in
real estate custom and practice, ethics, and agency. Past
president, California Association of Realtors-1996; S.D.
Chapter IREM-1991; Resident Relations Foundations1991; County Council of R.E. Boards-1988; San Diego
Assoc. of Realtors-1985. Vice president, National Assoc.
of Realtors-1999-2000.
90017, (213) 627-8280, fax (213) 627-8301, e-mail:
[email protected]. Web site: www.
schulzehaynes.com. Contact Karl J. Schulze or Dana
Haynes, principals. Specialties: forensic business analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business and real estate valuations, construction claims, corporate recovery,
real estate transactions, financial analysis and modeling,
major professional organizations, and have experience
across a broad spectrum of industries and business issues. Degrees/licenses: CPA; CVA; CFE; ABV; PhD-economics.
TEMMY WALKER, INC.
5026 Veloz Avenue, Tarzana, CA 91356, (818) 760-3355,
Temmy Walker. Specializes in expert witness testimony
and litigation consultant in matters regarding residential
real estate, with emphasis on the customs and practice,
standards of care, disclosure requirements, agency relationships, and broker supervision. Complete assistance.
Extensive transaction and court experience. Director California Association of Realtors, master faculty instructor for
continuing education C.A.R. Excellent credentials and references. See display ad on page 81.
WARONZOF ASSOCIATES, INC.
C 90064, (310) 954-8060, fax (310) 954-8059. Web site:
www.waronzof.com. Contact Timothy R. Lowe, MAI,
CRE. Waronzof Associates provides real estate and land
use litigation support services including economic damages, lost profits, financial feasibility, highest and best use,
property value, enterprise value, partnership interest and
closely-held share value, fair compensation, lender liability
and reorganization plan feasibility. Professional staff of six
with advanced degrees and training in real estate, finance,
urban planning and accounting. See display ad on
page 70.
REAL ESTATE APPRAISAL
ADELMAN APPRAISALS, INC.
91423, (818) 995-0648, fax (818) 990-0326, e-mail:
.adelmanappraisals.com. Contact Chris Adelman. Specialties: 10+ years’ experience in residential real estate appraisals, high-end residential appraisals, divorces, separation, trust, and retroactive appraisals, expert witness, depositions for residential evaluations and litigation, vacant
land evaluations, extensive experience in dealing with law
offices, business managers, and accounting firms for various appraisal related business. Quoted 11/05 in the L.A.
Daily Journal, expert witness cover story.
CURTIS-ROSENTHAL, LLC
5959 West Century Boulevard, Suite 1010, Los Angeles,
CA 90045, (310) 215-0482, fax (310) 215-3089, e-mail:
.curtisrosenthal.com. Contact David Rosenthal, MAI.
Appraisal of commercial and residential real estate for eminent domain, bankruptcy, estate planning, divorce, and
general litigation. Accepted in local, state, and federal
courts.
STEVEN J DECKER & ASSOCIATES
5800-A Hannum Avenue, Suite 235, Culver City, CA
90230, (310) 645-9691, fax (310) 645-9692, e-mail:
[email protected]. Contact Steven Decker, MAI.
Specialties: expert witness in real estate and fractional interest (FLP & LLC) valuation, approved IRS appraiser panel
(LA district). Experience in construction defects, easements, title defects litigation, toxic contamination, estate
taxes, and all property types.
RECEIVER
SALTZBURG, RAY & BERGMAN, LLP
90025, (310) 481-6700, fax (310) 481-6720. Contact
David L. Ray, Esq. Specializes in handling complex receivership matters, such as partnership and corporate dissolutions, including law firm dissolutions, and government
enforcement receivership actions, including actions
brought by the California Department of Corporations, Department of Real Estate, Commodities Future Trading
Commission, and Federal Trade Commission. Nationally
recognized in both the lender and litigation communities as
qualified to assist in complicated and commercially sophisticated liquidations, reorganizations, and ongoing business
operations. See display ad on page 12.
RECEIVER, FEDERAL AND STATE COURT
94104, (415) 395-7512, fax (415) 658-2858, e-mail: dlabelle
@sugarman-company.com. Web site: www.sugarman
-company.com. Contact Diane LaBelle. Expert witness
testimony in federal, state, and local courts, forensic accounting. Case involvement includes: damage calculations,
lost profits, business interruption, cash flow analysis, forensic accounting, business and real estate valuations, construction damages, insurance claims, fraud investigations,
lender liability, partnership dissolution, professional malpractice, white collar crime, liquidation and going concern
analysis, as well as bankruptcy and reorganization management and consulting.
RESTAURANT/HOTEL
MAURICE ROBINSON & ASSOCIATES LLC
880 Apollo Street, Suite 125, El Segundo, CA 90245,
(310) 640-9656, fax (310) 640-9276, e-mail: maurice
@mauricerobinson.com. Web site: www.mauricerobinson
.com. Contact R. Maurice Robinson, president. Hotel
and real estate industry business issues, including market,
economic and financial feasibility, valuation, and disputes
between owner-operator, borrower-lender, and franchisorfranchisee. Fluent in management contracts, license agreements, ground and building leases, partnership and JV
agreement, concession contracts, development agreements, and loan docs. Can estimate damages and appraise property values under multiple scenarios. Expert
witness testimony, litigation strategy, consultation and support, damage calculations, lost profits analysis, real estate
appraisals, deal structuring, workouts, new development,
strategic planning, market demand assessment, acquisition due diligence, and economic, financial, and investment
analysis.
RESTAURANTS
LEON GOTTLIEB
US-INT’L RESTAURANT, HOTEL & FRANCHISE
CONSULTANT
4601 Sendero Place, Tarzana, CA 91356-4821, (818)
Web site: http://members.aol.com/lgottlieb/myhomepage
/business.html. Specialties: USA/Int’lrestaurant/hotel/franchise experience since 1960. Hands-on consultant and expert witness, all types of restaurants, franchises, fast food,
training, manuals, safety, security, injury, operating standards, and P&L damages. Former VP/Partner IHOP, director to USA chains, author, arbitrator, and expert witness.
RETALIATION
HAIGHT CONSULTING
SAFETY
AMERICAN SAFETY CONSULTING
P.O. Box 71017, Los Angeles, CA 90071, (661) 284-6097,
Gary L. Buffington, CSP, CRSP, CSHM. Construction
(all phases, general industry, CAL/OSHA, OSHA, and
MSHA regulations. Inspections, safety training, and accident investigations. Workers’ compensation, injury and illness prevention plans, cranes/hoists/rigging, confined
space, fall protection, ladders/scaffolds, forklifts’ scissor
lifts, risk assessment/risk management, personal injury and
wrongful death, and hazard communication.
SECURITIES
ROBERT C. ROSEN
90071, (213) 362-1000, fax (213) 362-1001, e-mail: rrosen
@rosen-law.com. Web site: www.rosen-law.com. Specializing in securities law, federal securities law enforcement,
securities arbitration, and international securities, insider
trading, NYSE, AMEX, NASD disciplinary proceedings,
broker-dealer, investment company and investment adviser matters, liability under federal and state securities
laws, public and private offerings, internet securities, and
law firm liability. Former chair, LACBA Business and Corporations Law Section; LLM, Harvard Law School. More
than 32 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 65.
SECURITY
BURKE EXECUTIVE SECURITY &
INVESTIGATIONS
9003 Reseda Boulevard, Suite 202, Northridge, CA 91324,
(818) 998-7553, fax (818) 998-7510, e-mail: cliffdow
@burkesecurity.com. Web site: www.burkesecurity.com.
Contact Clifford E. Dow, President. Our company specializes in numerous fields such as security management,
premise liability from negligent and/or inadequate security.
We are experts in hotels, resorts, dram shops, restaurants,
commercial high-rise, warehouse operations, freight, special events, corporate security, security guard operations,
investigations, security management and executive
protection.
CONFIDENTIAL BUSINESS CONSULTANTS, LLC
2275 Huntington Drive, Suite 309, San Marino, CA 91108,
(626) 419-0082, fax (626) 799-7960, e-mail: jfbroder
@earthlink.net. Contact James F. Broder, CFE, CPP,
FACFE. Author of “Risk Analysis and Security Surveys,”
premisis liability, adequate vs. inadequate security procedures and practices, expert case analysis and testimony,
corporate procedures, training and operations, kidnap,
ransom, extortion, and workplace violence issues. Thirtyfive 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
R E A L E S TAT E / R E A L P R O P E R T Y M AT T E R S
Specializations:
Customs & Standards of Practice, Agency Relationships
Material Disclosure in Residential Real Estate Sales
ROOFING AND WATERPROOFING
SHEPHERD CONSULTING SERVICES
P.O. Box 10010, Torrance, CA 90505, (310) 378-0791,
Contact John Shepherd, RRC, RRO. Roofing, waterproofing, sheet metal and building envelope consulting services for construction defect litigation, personal injury and
water damage loss (standard of care and building code issues), and property loss claims (wind, fire, earthquake and
hail). Support services includes: visual inspections, invasive
testing, leak investigation, water testing, report development, documentation, document review, research, mediation and trial expert witness testimony, and cost estimating.
VAN DIJK & ASSOCIATES, INC.
28 Hammond, Suite G, Irvine, CA 92618, (949) 586-3828,
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.
TEMMY WALKER, REALTOR®
Real Estate Consulting Expert Witnessing
SERVICES RENDERED:
Litigation Consulting, Expert Testimony, Broker Practice,
Liability Audit, Educational Services, Industry Mediator
Certified Residential Broker Graduate Realtors Institute, Certified Residential Specialist,
California Association of Realtors® Director Since 1981, National Association of
Realtors® Director, State Faculty Master Instructor, Member, Real Estate Education
Association, Past President, San Fernando Valley Board of Realtors
5026 Veloz Avenue, Tarzana, California 91356
Telephone (818) 760-3355 • Cell (818) 438-0286
e-mail: [email protected]
CALIFORNIA BROKER LICENSE NO. 00469980
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The following MCLE self-test articles are available from Los Angeles Lawyer. Simply check the ones you want, fill out the coupon below, and mail your order to Los
Angeles Lawyer, ATTN: MCLE Reprints, P.O. Box 55020, Los Angeles, CA 90055; or FAX to 213/613-1972. There is no charge for reprints, but please limit your order
to 12 tests. All MCLE articles published after January 1996 are also available online at www.lacba.org/mcle_tests.
❏ No. 6: Turing Over Client Files (Legal
Ethics credit) What you don’t know can hurt
you-2/93
ing on the enforceability of expanded judicial
review provisions in arbitration agreements.10/02
provided federal courts with potential jurisdiction over virtually any local land use decision.-1/04
❏ No. 93: Time Bandits (Legal Ethics
credit) Attempts by lawyers to pad hours can
often be uncovered by a careful examination of
billing statements-03/01
❏ No. 110: High Accountability The Sarbanes-Oxley Act increases executive liability
for SEC filings by eliminating the need to establish actual knowledge of wrongdoing.11/02
❏ No. 123: Undesignated Hitters When
employees are used as witnesses, practitioners need to carefully consider whether the employees will be offering expert testimony or
undesignated lay opinions.-2/04
❏ No. 95: Magnificent Exceptions Practitioners can sometimes overcome a Statute of
Frauds defense by asserting equitable estoppel-05/01
❏ No. 111: For Your Eyes Only (Legal
Ethics credit) California can clarify the confusion surrounding the law of confidentiality
with a new rule of professional conduct.-12/02
❏ No. 96: 2000 Ethics Roundup (Legal
Ethics credit) Last year’s court decisions affecting legal ethics clarified the duties of
lawyers to clients and nonclients alike-06/01
❏ No. 112: Defective Solutions Legislation intended to encourage the resolution of
condominium defect disputes may inhibit effective association management.-1/03
Ethics credit) The new rules promulgated in
response to recent financial scandals threaten
the traditional relationship between attorneys
and clients.-3/04
❏ No. 97: Partnerships In Law (Elimination of Bias credit) California’s new Domestic
Partnership Registration Act may aid same-sex
partners in providing a legal basis for their life
relationships-07-08/01
❏ No. 113: Waiting for the Dust to Settle Creditors that agree to a settlement of a
debt may find that the payment constitutes a
preference in a subsequent bankruptcy proceeding.-2/03
❏ No. 98: By Any Other Name No matter
what workers are called, their status and treatment as employees are subject to a variety of
fact-based tests-09/01
Ethics credit) Recent corporate scandals are
playing a major role in shaping the future of
legal ethics.-4/03
❏ No. 127: Second Acts Section 1101(b)
permits allegations of criminal and civil
wrongdoing to be supported by prior or subsequent acts otherwise excluded by the Evidence Code.- 6/04
❏ No. 63: Ruling on the Rules (Legal
Ethics credit) While 1997 was a busy year for
the development of legal ethics, no dramatic
departures from precedent emerged-6/98
❏ No. 102: In the Land of Aas The California Supreme Court has ruled that damages
from construction defects must be manifest in
order to bring a tort cause of action-1/02
❏ No. 75: Firing at Will Has the Green decision opened the floodgates for the use of
wrongful termination litigation to achieve public policy goals?-7-8/99
❏ No. 103: Tied to the Stake Trends in
federal securities fraud legislation and case
law may not fully protect attorneys from the
reach of common law negligence claims-2/02
❏ No. 115: Preemptive Strike Does the
Central District’s interpretation of federal
copyright preemption standards endanger
state claims for misappropriation of ideas?5/03
❏ No. 128: Licensed to Bill The courts
have carved out exceptions to the rule that
contractors who are not licensed at all times
during a project can be denied compensation.7-8/04
❏ No. 76: On to a Higher Court The outcome of an appeal will often depend on important strategic decisions that must be made
soon after filing the notice of appeal-9/99
❏ No. 104: Rickety Shelters Taxpayers
have a unique opportunity to limit their exposure to the consequences of controversial taxsheltered transactions-4/02
❏ No. 116: Unwelcome Opinions (Legal
Ethics credit) Are opinions on the application
of law being improperly admitted in attorney
breach of fiduciary duty cases?-6/03
❏ No. 129: Behavior Modification (Legal Ethics credit) Existing rules and laws proscribe offensive conduct directed toward opposing counsel as well as the court-9/04
❏ No. 78: Put Up or Shut Up An understanding of the shifting burdens of production
is central to arguing summary judgment motions-11/99
❏ No. 105: Five Cases that Shook Hollywood What court cases make Hollywood’s
A-list?-5/02
❏ No. 117: Death of a Litigant Civil
claims surviving a litigant’s death may send
counsel into the unfamiliar territory of probate
court.-7-8/03
❏ No. 130: Fair Hearing Agencies have
discretion and flexibility in determining what
procedural safeguards are necessary for an
administrative adjudication.-10/04
❏ No. 118: Back SLAPP Recent court decisions have expanded the reach of the antiSLAPP statute in unexpected directions.-9/03
❏ No. 131: Bad Compromises Ambiguity over the right to correct drafting
errors and what constitutes a reasonable
offer has undermined the effectiveness of
Section 998.-11/04
❏ No. 24: A Firm Grip (Law Practice
Management credit) Unwinding a law firm
partnership requires strict adherence to legal
and ethical principles-12/94
❏ No. 42: Golden Rules (Legal Ethics
credit) A series of decisions and opinions issued in 1995 provides lawyers with clear
guidance through ethical minefields-7-8/96
❏ No. 46: For What It’s Worth Recent
California rules that allow the buying and selling of law practices have opened up opportunities for small firms and solo practitioners12/96
❏ No. 57: Wise Deductions (Law Practice
Management credit) The deductibility of a
lawyer’s educational expenses may be more
questionable than you think-12/97
❏ No. 60: An Indiscriminate Measure
(Elimination of Bias credit) Now that Proposition 209 has survived judicial scrutiny, considerable litigation to determine its scope and
reach can be expected-3/98
❏ No. 83: Children of Fortune High-earning entertainers may be able to avoid the use
of the statutory guidelines when calculating
child support payments-4/00
Ethics credit) Court decisions in 1999 make it
clear that a risk management strategy is a
lawyer’s best method of preventing ethical liabilities-5/00
❏ No. 85: Who’s the Client? (Legal Ethics
credit) Last year’s court decisions on lawyer
conflicts of interest have handed attorneys an
array of sometimes conflicting rules-6/00
❏ No. 87: Bonus Points (Legal Ethics
credit) Bonus provisions agreed to by attorneys and their clients will likely be enforceable
if the agreement clearly delineates an “extraordinarily favorable result”-9/00
❏ No. 106: Ethics Roundup 2002 Old
issues and new forms of practice defined
developments in legal ethics in 2001.6/02
❏ No. 107: Harassment Measures
Recent court decisions have more sharply
defined the contours of sexual harassment and
provided a means of minimizing employer
liability.-7-8/02
❏ No. 119: Uncivil Forfeitures Does the
recent reform of federal civil forfeiture laws adequately address the potential for injustice?10/03
❏ No. 120: Searching Far and Wide
Counsel can challenge a questionable extraterritorial search, although they face an uphill battle.- 11/03
❏ No. 108: No Assurances Insurance coverage for the events of September 11 will
hinge upon the interpretation of often ambiguous policy language.-9/02
❏ No. 121: Unsuitable An antisuit injunction is a viable alternative to the unpredictability of motions to dismiss for forum non conveniens.-12/03
❏ No. 109: Uncertain Appeal Neither federal nor state courts have rendered a final rul-
❏ No. 122: In a Class of Their Own Recent interpretations of civil rights laws have
❏ No. 125: Multiple Choice Successfully
navigating California’s choice of law tests requires as much art as science.-4/04
❏ No. 126: Code Breaking The anticircumvention provisions of the DMCA have
withstood all constitutional challenges to the
sanctions against code breakers.-5/04
❏ No. 135: Expert Declarations Recent
decisions have blurred the line between
providing too much and too little
information in expert witness
declarations.-03/05
❏ No. 136: Tales of Two Courts Legal
changes in marital status can have a
dramatic impact on existing estate plans.04/05
❏ No. 137: Access Hollywood In
subsequent decisions, the Ninth Circuit
seems to have retreated from its
interpretation of the extrinsic test in
Metcalf v. Bochco.-05/05
Ethics credit) In 2004 California courts
continued to address the thorny ethical
issues that confront the legal profession.06/05
❏ No. 139: Catalyst for Change The
California Supreme Court has parted
ways with the U.S. Supreme Court in
preserving the catalyst theory under the
private attorney general fee statute.-0708/05
❏ No. 140: Advice and Counsel (Legal
Ethics credit) The question of whether a
lawyer has given legal or nonlegal advice
is highly fact-specific.-09/05
❏ No. 141: Restoration Drama The
complexity of electronic discovery
requires practitioners to master new
litigation skills.-10/05
❏ No. 142: Challenging Barriers
California’s more expansive definition of
disability provides protection for more
people than federal law. -11/05
❏ No. 132: Private Eyes (Legal Ethics
credit) California courts have broadly
applied the strict provisions of the Private
Investigator Act.-12/04
❏ No. 133: Delay of Game One of the
thorniest issues in delay and disruption
litigation is the quantification of actual
damages.-01/05
❏ No. 134: Screened Out (Legal Ethics
credit) When an ethical screen can be
used to avoid vicarious disqualification of
a law firm remains unsettled.-02/05
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PERSONNEL SYSTEMS ASSOCIATES, INC.
7551 East Moonridge Lane, Anaheim, CA 92808,
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CCP. Expert witness in employment, business dispute,
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consultant, speaker, author of book and articles, university
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EXPERT WITNESS
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GOLDFARB AND ASSOCIATES
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Goldfarb. Vocational rehabilitation consultant providing
expert witness testimony on employability and wage loss in
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for Social Security, Office of Hearings and appeals. Administers and interprets vocational aptitude, interest and
achievement testing. Certified Rehabilitation Counselor.
Certified Department of Labor Rehabilitation Counselor.
Trained and certified on evaluation diminished earnings capacity. Part-time Lecturer, rehabilitation counseling program, Cal State, Los Angeles. Graduate and Undergraduate program.
TOXICOLOGY
PRINCETON-SOMERSET GROUP, INC.
4 Carroll Drive, Hillsborough, NJ 08844, (800) 597-8836,
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TRAVEL AND TOURISM
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Tourism security and restraint issues and crisis management implementation and manuals. Author and professor
with actual consulting experience with more tour entities
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VOCATIONAL ECONOMIC ANALYST
STEPHEN M. BERRY, MS, CRC
4132 Katella Avenue, Suite 101, Los Alamitos, CA 90720,
(562) 594-4621, fax (562) 594-4622, e-mail: smberry2
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Forensic vocational economic analyses, assessments of
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Computer Counselor
BY NANCY A. KAISER
Useful Legal Web Sites for California Lawyers
AS A BUSY LAWYER, you need the answers to your research questions has downloadable California Judicial Council forms at http://www
quickly, preferably at little or no cost. The Web can meet that need .courtinfo.ca.gov/forms and sample jury instructions at
if you know where to look. Legal sites on the Web are plentiful; many http://www.courtinfo.ca.gov/reference/4_34juryinst.htm.
The superior court of every California county has a site with
are worth exploring. But watch your time! The Web’s vast and varied amounts of information and inviting visual and audio stimuli can courthouse locations, local rules, forms, and summaries of pending
lure you away from your billable work and destroy your efforts cases. The site for the Los Angeles Superior Court is at www
.lasuperiorcourt.org. The Orange County Superior Court is at http:/
toward time management.
If you do not know where else to look, the first step to find what /www.occourts.org; the San Bernardino Superior Court is at www
you are looking for may be to do a search on an all-purpose search .co.san-bernardino.ca.us/courts; the Riverside Superior Court is at
engine such as Google or Yahoo. Remember that the information pro- www.courts.co.riverside.ca.us; and the Ventura County Superior
vided online is only as good as its source. Check
where the information is coming from and
determine whether or not you can trust the
To research California codes, start with a bookmark for the state
source.
Next, there are several general legal sites that
are free and worth exploring. These include
government’s site at www.leginfo.ca.gov/calaw.html.
Lexis One, Lawyer Express, Findlaw, and
LLRX. You will have to spend some time figuring out how best to use these sites. Lexis One
is a portal for free resources and links to paid services to suit the solo Court is at www.ventura.courts.ca.gov. A site for current filing fees
or small firm. Free information includes cases, forms, news, e-alerts, and court costs can be found at http://www.rushtimeontime.com
and links to legal Web pages and state resources. Lexis One is also /feemainmenu.htm.
The Los Angeles Superior Court site has recently added a feature
a starting place for obtaining MCLE credit. Lawyer Express, a portal for legal research and news links, is organized into approximately that, for a small fee, allows users to search and pay traffic tickets online;
40 categories, including Legal Search Engines, Federal Law, State Law, e-file small claims cases; search the civil party and criminal defendant
Office Tools (with forms), and Speech and Writing. Findlaw has indexes; and retrieve divorce record copies and civil case documents
legal news, case law, codes, and practice area articles. LLRX has arti- from the court’s files. The sites of other superior courts have similar
cles and Internet research and technology-related information, tools, capabilities.
The official site for California case law (www.lexisnexis.com
and resources.
To research California codes, start with a bookmark for the state /clients/CACourts) is powered by Lexis. Another source for California
government’s site at www.leginfo.ca.gov/calaw.html. The site uses key case law is on the Findlaw site at www.findlaw.com/cacases/index.html.
words and code section numbers, but it does not have a table of con- You can find basic legal citation guidance at the URL http://www.law
tents for each title. If you do not know the exact code section num- .cornell.edu/citation. The only efficient Shepardizing tools are availber, you may have to open several links and read the text of various able with the paid online legal research services, Lexis and Westlaw.
If you are looking for official state codes, you may access the
sections before you find the appropriate one. Findlaw’s California codes
(http://caselaw.lp.findlaw.com/cacodes) provides a table of contents California Code of Regulations (formerly the California Administrative
for each title and chapter with links to the code section’s text, but the Code) at www.calregs.com. The codes for Los Angeles County can
code may not be current. To be safe, you may want to search Findlaw’s be found at http://ordlink.com/codes/lacounty/index.htm, and the
California codes for the code section number and then read the text City Charter and codes at http://www.cityofla.org/lacity102.htm.
For federal code information, the U.S. code can be accessed at www
on the official site.
The full text of the California legislature’s resolutions, bills, and .law.cornell.edu/uscode via the site’s title list or its table of popular
constitutional amendments—as well as their status and history—are names. Users can also search for specific code sections or simply go
available at www.leginfo.ca.gov/bilinfo.html. This site asks for the bill to the site’s search engine. The U.S. Government Printing Office has
number, session, and origin. If you do not have this information, do a site (www.gpoaccess.gov) that is a good source for the Code of
a key word search in Google or Yahoo to find the identifying infor- Federal Regulations and the Federal Register. This site also provides
mation of the legislation and then return to the official site for the text. a link to the U.S. Supreme Court site at www.supremecourtus.gov,
Every California litigator needs regular access to the California the federal courts home page at www.uscourts.gov (which has links
Rules of Court, local rules, and online information for pending cases.
The official site for California rules is www.courtinfo.ca.gov/rules, Nancy A. Kaiser practices family law with Gould-Saltman Law Offices, LLP, in
which uses a table of contents and has the rules in PDF. This site also Los Angeles and is a member of the Barristers Executive Committee.
EXPERT WITNESS
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WITKIN
EISINGER, LLC
RICHARD G. WITKIN, ESQ. ◆ CAROLE EISINGER
For more than 26 years, Smith & Carson has provided
support to America’s top companies and law firms with
investigative services, litigation support and corporate
intelligence. With solid experience across industries and
the savvy to examine information from every perspective,
Smith & Carson has produced a strong track record of
helping clients mitigate risk, win cases and protect
valuable assets.
Investigative
Research
Consulting
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Litigation
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For more info:
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Atlanta, Dallas, Houston, Jackson, Kansas City, Los Angeles
New York, Orlando, Raleigh and Washington, DC
to the U.S. Constitution, a circuit map, and
circuit courts), and a guide titled Understanding the Federal Courts (http://www
.uscourts.gov/understand02/index.html). The
best source for federal legislation is through
the Library of Congress at http://thomas
.loc.gov.
Federal case law can be found on Findlaw.
PACER, which is an acronym for Public
Access to Court Electronic Records, allows
users to download documents from the files
of the federal district courts and bankruptcy
courts. PACER has a registration requirement and charges a small fee for the documents. It can be found at http://pacer.psc
.uscourts.gov/cgi-bin/links.pl. A wealth of
California and federal discovery rules, case
outlines, and practice tips are available on
Findlaw (http://californiadiscovery.findlaw
.com/index.htm). However, be sure to check
official sites for current codes.
numbers, assets, relatives, and more. To verify an individual or business license, a site to
check is http://www2.dca.ca.gov/pls/wllpub
/wllquery$. The Department of Consumer
Affairs licenses accountants, automobile
mechanics, doctors, psychologists, and contractors, to name a few. You can check the status of a contractor’s license at http:/
/www.cslb.ca.gov and look up a physician’s
disciplinary history at www.medbd.ca.gov
/Lookup.htm.
If you need estimates of the value of real
property or tangible personal property, you
can find vehicle pricing and information for
automobiles at www.edmunds.com, www.kbb
.com, and www.nadaguides.com. Nadaguides
also gives pricing for boats, motorcycles, and
recreational vehicles. To obtain a sales comparison on residential real property, check
out www.homevaluehunt.com.
Fact Finding
After you find the relevant law, you must
apply the law to the facts of your case in an
acceptable format. There are samples of just
about every imaginable type of legal document on the Web. For example, the Web sites
of national title companies have many downloadable blank real estate forms. For example, at www.stewarttitlela.com/index.cfm
?page=docsondisk, users can find deeds,
secured promissory notes, and a cover page
for nonconforming documents. You can find
various legal practice samples and forms at
www.findlaw.com/16forms/collections.html
and www.ilrg.com/forms. Nevertheless, before
you blindly start searching for forms on the
Internet, check your firm’s database for samples. Sample documents do not take the place
of doing the research necessary to ensure
that you are drafting the document correctly
and have included everything that is needed.
Even with documents from your firm, there
is no way to determine if a document has been
updated to comply with current law. Also, the
drafter may have deleted standard provisions
that apply to your situation. Finally, we all
make mistakes, even partners.
The best writers often turn to a dictionary
or thesaurus. Free online dictionaries include
www.dictionary.com and www.m-w.com, www
.yourdictionary.com, www.hyperdictionary
.com, and http://dictionary.law.com. For those
of you who need a Ukrainian-English dictionary with a virtual Ukrainian typewriter,
check out www.cybermova.com/online.
Even though the Internet is in its infancy,
just about everything you need to satisfy your
legal information requirements is available
on it somewhere. To use the Internet and the
Web effectively and efficiently, you have to
know where to look, which source to trust,
and how to verify the accuracy of what you
find.
■
Along with legal research, the Web is the
logical first choice for finding facts. In certain
instances, investigating an individual or a
business can be as important as investigating
the law. Transactional attorneys and litigators
may find the California Secretary of State’s
business portal very useful. It can be accessed
at www.ss.ca.gov/business/business.htm. This
site contains information regarding entity
formation, dissolution, reporting, general
business information, and forms. You can
also search online for records of corporations, limited liability companies, and limited
partnerships, which include the agent for service of process, the status of the entity
(whether active, suspended, or dissolved), as
well as the correct spelling and address of the
entity. You can file UCC statements and
search for UCC filings for $5 per search. The
business portal site will not give you information about current officers and directors of
a corporation. Some secretary of state sites,
however, provide the name of the current
officers. An example is the Nevada Secretary
of State’s corporation search portal, which is
found at https://esos.state.nv.us/SOSServices
/AnonymousAccess/CorpSearch/CorpSearch.aspx.
A search site is available for fictitious
business names in Los Angeles (www.lavote
.net/fbn/FBN.cfm). Keep in mind, however,
that Los Angeles businesses do not always register or renew their fictitious business names.
It is helpful to have telephone, zip code, and
area code directories available at the click of
a mouse. Contact information for all
California attorneys and law firms is at http
://members.calbar.ca.gov/search/member.aspx.
Accurint.com is a cost-effective investigative site that charges a small fee per search.
You can instantly find addresses, telephone
Forms and Documents
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NEED AN EXPERT WITNESS, legal consultant, arbitrator, mediator, private judge, attorney who outsources, investigator, or evidence specialist? Make
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Sponsored by the Los Angeles County Bar Association, expert4law—the Legal Marketplace is a comprehensive online service for you to find exactly
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CIVIL/CRIMINAL COURT RECORDS. We retrieve
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MONTEBELLO HEALTH SERVICES
901 W. Whittier Blvd., Montebello, CA 90640
(323) 728-8268
THE LOS ANGELES COUNTY BAR FOUNDATION’S 20042005 FUND DRIVE raised approximately $305,000 from corporations, foundations, individuals, law firms, and others. Direct
contributions from law firms totaled $100,250; individuals
contributed $84,934; and corporations, foundations, and others
contributed $24,000. In addition to these direct contributions,
approximately $96,000 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 2004-2005 campaign. As part of the proce-
INDIVIDUAL
CONTRIBUTIONS
$10,000 or more
Ruth J. Lavine
$2,000-$9,999
Joseph W. Aidlin
Gerald L. Chaleff
Robin Meadow
$1,000-$1,999
Don Mike Anthony
Joseph R. Austin
Charles G. Bakaly, Jr.
John S. Chang
Richard Chernick
Mr. and Mrs. Morgan Chu
Walter Cochran-Bond
Jordan S. Cohen
John J. Collins
Glen B. Collyer
Knox M. Cologne III
Stephen R. English & Molly
Munger
Richard E. Hodge
Leonard Horwin
Robert K. Johnson
James C. Martin
Francis X. McCormack
John J. Quinn
Mitchell C. Regenstreif
Wayne Simon
Hon. Charles S. Vogel
Eric A. Webber & Gerard
Kraaijeveld
Daniel J. Woods
Donna J. Zenor
$500-$999
Linda Auerbach Allderdice
Paula Ambrosini
Donald P. Baker
Teresa A. Beaudet
Mollie F. Benedict
Michael I. Blaylock
Theodore J. Boutrous, Jr.
Jamie Broder
Thomas M. Brown
Carolyn C. Burger
Thomas P. Cacciatore
Robert E. Carlson
Tyrone R. Childress
Shawn C. Chou
Brian K. Condon
Hon. Lawrence W. Crispo
Andrew J. Demetriou
Gregory Evans
Gregg A. Farley
Stuart A. Forsyth
Richard E. Garcia
Mark Garscia
Richard B. Goetz
Jo-Ann W. Grace
Noah Graff
Amos E. Hartston
Brian L. Holman & Mary E.
Tarduno
Linda M. Lawson
Larry & Bobbie Liebenbaum
Hon. Nora M. Manella
Charles E. Michaels
Audra M. Mori
Richard H. Nakamura, Jr.
Thomas D. Phelps
Patricia D. Phillips
Dennis D. Resh
Nicholas P. Saggese
Marc L. Sallus
Laura A. Seigle
Marc M. Seltzer
Susan Koehler Sullivan
Jill Switzer
Rhonda R. Trotter
Richard J. Ward, Jr.
Martin H. Webster
Hon. Paul Wyler
$200-$499
William J. Bogaard
Michael K. Brown
Prof. Christopher D. Cameron
Joanne E. Caruso
Patricia Egan Daehnke
Carl E. Douglas
Gary A. Farwell
Mark T. Gillett
Feris M. Greenberger
Sarah Heck Griffin
Alan N. Halkett
Denise Howell
Shirley M. Hufstedler
Howard M. Knee
James D. Layden
Bernard E. & Joan M. LeSage
Richard B. Levin
Tomas R. Lopez
LeAnne E. Maillian
Danette E. Meyers
Ralph B. Perry III
James G. Phillipp
Victor W. Santochi
Judge & Mrs. Harvey A. Schneider
Eugene L. Trope
Robert S. Warren
LAW FIRM CONTRIBUTIONS
$9,000 and above
Latham & Watkins LLP
$6,000-$8,999
Morrison & Foerster Foundation
$5,000-$5,999
Akin, Gump, Strauss, Hauer &
Feld LLP
O’Melveny & Myers LLP
Paul, Hastings, Janofsky &
Walker LLP
Sheppard, Mullin, Richter &
Hampton LLP
$3,000-$4,999
Alschuler Grossman Stein &
Kahan LLP
Irell & Manella LLP
Kirkland & Ellis LLP
McKenna, Long & Aldridge LLP
Morgan, Lewis & Bockius LLP
2004-2005
Fund Drive
Results
Munger, Tolles & Olson LLP
Skadden, Arps, Slate,
Meagher & Flom LLP
$2,000-$2,999
Arnold & Porter LLP
Greenberg Glusker
Howrey Simon Arnold &
White LLP
Jaffe & Clemens
Reed Smith LLP
Sidley Austin Brown &
Wood LLP
$1,000-$1,999
Allen, Matkins, Leck, Gamble
& Mallory LLP
Baker & Hostetler LLP
Bonne Bridges, Mueller, O’Keefe
& Nichols APC
Cotkin, Collins & Ginsburg APC
Cox Castle & Nicholson LLP
DLA Piper Rudnick Gray Cary LLP
Epstein, Becker & Green
Fulbright & Jaworski LLP
Girardi & Keese
Greines, Martin, Stein &
Richland LLP
Hahn & Hahn LLP
Haight, Brown & Bonesteel LLP
Heller, Ehrman, White &
McAuliffe LLP
Hochman, Salkin, Rettig,
Toscher & Perez P.C.
Horvitz & Levy LLP
Hughes, Hubbard & Reed LLP
Jones Day
Kaufman, Young, Spiegel,
Robinson & Kenerson LLP
Liner, Yankelevitz, Sunshine &
Regenstreif LLP
Manatt, Phelps & Phillips LLP
Meserve, Mumper & Hughes LLP
Orrick, Herrington & Sutcliffe
Perkins Coie
Pillsbury Winthrop Shaw
Pittman LLP
Reish Luftman Reicher &
Cohen APC
Robie & Matthai
Rutter, Hobbs & Davidoff Inc.
Sedgwick, Detert, Moran &
Arnold LLP
Stroock & Stroock & Lavan LLP
White & Case
Wilson, Elser, Moskowitz,
Edelman & Dicker LLP
dures required in connection with its annual audit, the Foundation
hereby lists all individuals who made contributions of $200 or
more, and all law firms, corporations, foundations ,and other organizations that contributed $1,000 or more during the period beginning July 1, 2004, and ending June 30, 2005. 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 Gayle Whittemore directly at (310) 873-1605.
The Foundation regrets that space limitations prevent the listing of the names of all contributors.
IN MEMORY OF...
JOSEPH A. BALL, by
Thomas J. Leanse
Douglas Wilson Otto
CHARLES R. ENGLISH, by
William J. Bogaard
Hon. David A. Horowitz
LeAnne E. Maillian
Judge & Mrs. Harvey A. Schneider
John D. Taylor
Hon. Paul Wyler
Rosalyn S. Zakheim
BURCHELL JACOBS, by
Linda M. Stude
DAVID L. MANELLA, by
GRETCHEN LOUISE MERRITT, by
ANTHONY J. PIGNATELLO, by
JANET RAE, by
CARL W. STUDE, Jr., by
JOSEPH TABACK, by
Laurence R. Goldman
VINCENT M. TOWNSEND, JR., by
David S. Ettinger
Ralph B. Perry III
DAVIDA R. TROPE, by
Eugene L. Trope
IN HONOR OF...
ROY H. AARON, by
Hon. Kenji Machida
ANNIE & HARLEY KINGSBURY, by
Melanie Hanson Sartoris
NEAL S. MILLARD, by
Bernard & Katherine Millard
RICHARD WALCH, by
The Foundation would also like
to give special recognition to the
following individuals whose
participation in various pledge
programs (as of 6/30/05)
reflects a firm commitment to
the Foundation’s goals:
OTHER CONTRIBUTIONS
$20,000 and above
American Corporate Counsel
Association—Southern
California Chapter
$1,000-$1,999
Bank of The West
Hanmi Bank
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
6/30/05.)
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)
Joseph R. Austin
William J. Bogaard
Robert E. Carlson
Richard Chernick
Knox M. Cologne III
Stephen R. English & Molly
Munger
Stanley F. Farrar
Robert K. Johnson
Robin Meadow
Gavin Miller
In Honor of David Pascale
John J. Quinn
In Honor of Richard Walch
Sponsor ($10,000 - $14,999)
Joseph W. Aidlin
Don Mike Anthony
John Carson
Gerald L. Chaleff
John J. Collins
Charles R. English
Richard E. Garcia
Harry L. Hathaway
Richard E. Hodge
Patrick M. Kelly
Joel W. H. Kleinberg
Margaret Levy
Neal S. Millard
Covert E. Parnell III
Joseph Taback
David H. Vena
Robert S. Warren
Daniel J. Woods
Friend ($5,000 - $9,999)
Steven W. Bacon
Charles G. Bakaly, Jr.
Donald P. Baker
Patricia H. Benson
John S. Chang
Walter Cochran-Bond
Paul F. & Isabel R. Cohen
Glen B. Collyer
Joe D. Crider
Donald A. Daucher
Lee Edmon & Dick Burdge
Larry R. Feldman
Mark Garscia
Albert S. Golbert
David E. Gordon & Mary D. Lane
Hon. William P. Gray
Sarah Heck Griffin
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
Bernard E. & Joan M. LeSage
James C. Martin
Malissa Hathaway McKeith
Theodore N. Miller
Hon. Anthony J. Mohr
Hon. Margaret M. Morrow
Hon. Margaret A. Nagle
John F. O’Hara
Ronald L. Olson
Andrea Sheridan Ordin
David J. & Cynthia F. Pasternak
Aulana L. Peters
Thomas D. Phelps
Patricia Phillips
Douglas Ring
Reade H. Ryan, Jr.
Harvey L. Silbert
Wayne Simon
Sheldon H. Sloan
Linda J. Smith
John D. Taylor
William W. Vaughn
Martin H. Webster
Hon. Robert Weil
John S. Welch
Francis M. Wheat
In Memory of Arnold V. Winthrop
Donna J. Zenor
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 6/30/05.)
Roy H. Aaron
Don Mike Anthony
Joseph R. Austin
Donald P. Baker
Robert E. Carlson
John Carson
Gerald Chaleff
Richard Chernick
John J. Collins
Knox M. Cologne III
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
Robin Meadow
Neal S. Millard
Gavin Miller
Hon. Margaret M. Morrow
John F. O’Hara
Andrea Sheridan Ordin
David J. 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
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
6/30/05.)
James N. Adler
Linda Auerbach Allderdice
Dean V. Ambrose
Paula Ambrosini
Hon. Orville A. Armstrong
Richards D. Barger
Jane H. Barrett
Teresa A. Beaudet
Lori R. Behar
Mollie F. Benedict
Jennifer A. Bensch
Blanche C. Bersch
William M. Bitting
Michael I. Blaylock
Stephen M. Blitz
Merrick J. Bobb
Robert C. Boffa
Phillip L. Bosl
Theodore J. Boutrous, Jr.
Joel E. Boxer
Jamie Broder
Thomas M. Brown
Geoffrey L. Bryan
Carolyn C. Burger
Lauren Burton
Claudia Carver
Paul A. Catalano
Edward C. Cazier, Jr.
Tyrone R. Childress
Arlene Colman-Schwimmer
Brian K. Condon
Douglas C. Conroy
Hon. Lawrence W. Crispo
Hon. H. Walter Croskey
Patricia Egan Daehnke
Grace M. Danziger
Albert F. Davis
Katessa Charles Davis
Andrew J. Demetriou
Pamela Dunn & Maria Louise
Cousineau
Gregory Evans
Jonathan W. Evans
Laura V. Farber
Gregg A. Farley
Hon. Lisa Hill Fenning
Hon. Macklin Fleming
Stuart A. Forsyth
Georgia Franklin-Shutan
Jeffrey C. Freedman
Alan H. Friedenthal
James J. Gallagher
Patricia A. Gartner
Robert T. Gelber
Russell T. Ginise
Richard B. Goetz
Hon. Arnold H. Gold
Prof. Max A. Goodman
Jo-Ann W. Grace
Noah Graff
Jan Charles Gray
Hon. Paul Gutman
Alan N. Halkett
Amos E. Hartston
Rex Heeseman
Robert Henigson
Grover R. Heyler
Edward W. Hieronymus
Bernard S. Kamine
Kelly W. Kay
Russel I. Kully
Frederick W. Lambert
John A. Lapinski
Linda M. Lawson
James D. Layden
Bruce H. Leiserowitz
Roderick W. Leonard
Fred L. Leydorf
Michael S. Lurey
LeAnne E. Maillian
Vicki E. Marmorstein & Seth A.
Ribner
Michael E. Meyer
Charles E. Michaels
Audra Mori
Richard T. Morrow
Richard H. Nakamura, Jr.
Mark A. Neubauer
Robert H. Nida
Andrew J. Nocas
Stacey Olliff & Tracy Rich
Gregg Oppenheimer
Lee R. Petillon
Karen Randall
Barbara A. Reeves
Dennis D. Resh
Kenneth O. Rhodes
Hon. Andria K. Richey
David K. Robinson
Irving Rosenfeld
Alan I. Rothenberg
Deborah J. Ruosch
Harvey I. Saferstein
Nicholas P. Saggese
Marc L. Sallus
Laura A. Seigle
Marc M. Seltzer
Patricia L. Shanks
Fran & Leonard Smith
John R. Stahr
Sheryl E. Stein
David W. Steuber
Clinton R. Stevenson
Richard J. Stone
Linda M. Stude
Susan Koehler Sullivan
Jill Switzer
Hon. Robert M. Talcott
Stuart P. Tobisman
Franklin Tom
Clyde E. Tritt
Eugene L. Trope
Rhonda R. Trotter
Susan J. Troy
David C. Tseng
Robert C. Vanderet
Patric M. Verrone
Caroline C. Vincent
Richard S. Volpert
Richard Walch
John F. Walker, Jr.
Stuart B. Walzer
Michael R. Whalen
Karen B. Wong & Scott W. Lee
Kenneth B. Wright
Hon. Paul Wyler
Rosalyn S. Zakheim
Fellow** or Honor Roll*** level
and have chosen to continue
supporting the Foundation with
an annual gift. (List includes
participants as of 6/30/05.)
2004-05 FELLOWS
Individuals who contributed a
minimum of $500 between
7/1/04-6/30/05 and are not
Barristers Fellows, Life Fellows
or Honor Roll participants.
Thomas P. Cacciatore
Mr. & Mrs. Morgan Chu
Jordan S. Cohen
Brian L. Holman & Mary E.
Tarduno
Leonard Horwin
Eric A. Webber & Gerard
Kraaijeveld
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 6/30/05.)
Barbara J. Bacon
Randee Barak
Sandeep Baweja
James W. Bilderback II
Gabrielle Harner Brumbach
Shawn C. Chou
Luci-Ellen M. Chun
Susan Skelding Couig
Rebecca A. Delfino
Joseph T. Hahn
Jacqueline J. Harding
Andres C. Hurwitz
Nancy A. Kaiser
Seth D. Levy
Cindy J. Macho
Ritu Manjunath
Cori McGraw
Jennifer F. Novak
Angela J. Reddock
Andrea Schoor
Lorin D. Snyder
Margaret P. Stevens
Courtney L. Stuart-Alban
Paul D. Tripodi II
Kim Tung
Gavin H. Wasserman
Kathleen MacFarlane Waters
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
John W. Alden, Jr.
Don Mike Anthony***
Hon. Helen I. Bendix
Michael H. Bierman
Maxwell M. Blecher
Brad D. Brian
Lester O. Brown
William Clark Brown
Elizabeth M. Calciano*
Prof. Christopher D. Cameron
John L. Carlton
Hon. H. Walter Croskey**
Melissa A. Dalziel
Brian L. Davidoff
Katessa Charles Davis**
David S. Eisen
Jack I. Esensten
Michele E. Flurer*
Thomas A. Freiberg, Jr.
Robert S. Gerstein
Mark T. Gillett*
Philip G. Grant
Ethan P. Greene
Jean A. Hobart
Denise Howell
Brian D. Huben
Shirley M. Hufstedler
Joan R. Isaacs***
Lois M. Jacobs
Ronald L. Johnston
Henry J. Josefsberg
Ruth D. Kahn*
Terri D. Keville
Judy A. Kim*
Marcia L. Kraft
Miriam A. Krinsky
Robert N. Kwan
Edward A. Landry
Thomas J. Leanse
Andrea B. Liebenbaum
Larry & Bobbie Liebenbaum***
Tomas R. Lopez
LeAnne E. Maillian**
Elaine Mandel
Linda Wight Mazur
Frederick L. McKnight
Danette E. Meyers
Pansky & Markle
Ralph B. Perry
John J. Quinn***
Jerrold B. Reilly
Pauline Y. Robins
Toby J. Rothschild
Melanie Hanson Sartoris
Peter Schnaitman
Michael & Lara Schwartz*
Barry E. Shanley
Arthur F. Silbergeld
Ross E. Stromberg
Linda M. Stude**
Paul D. Supnik
Patricia A. Van Dyke
Caroline C. Vincent**
Richard Walch**
Earl P. Willens
Roxanne M. Wilson
Michael C. Zellers
Fundraising for the current fiscal year (7/1/2005-6/30/2006) is now underway. The Foundation makes grants to law-related projects serving Los Angeles County. Visit the LACBF
Web page at www.lacba.org/foundation to learn more about the Foundation and to see a list of its 2005 grant recipients. You may also contact the Foundation’s administrator,
Linda Stude, at (213)896-6409 or e-mail her at [email protected]. To lend your support, send a tax-deductible contribution to: Los Angeles County Bar Foundation, P.O. Box
55020, Los Angeles, CA 90055.
Index to Advertisers
Advisory Services Group, p. 83
Tel. 310-937-7700
John R. Grindon & Associates, p. 73
Tel. 314-895-4747 www.jrgrindon.com
David L. Ray, p. 12
Tel. 481-6700 e-mail: [email protected]
AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 73
Tel. 800-275-8903 www.amfs.com
Gursey, Schneider & Company, p. 53
Tel. 310-552-0960 www.gursey.com
Jan Raymond, p. 35
Tel. 888-676-1947 e-mail: [email protected]
The Andela Consulting Group, Inc., p. 84
Tel. 818-380-3102
Hargis & Associates, Inc., p. 70
Tel. 800-554-2744 www.hargis.com
Rick Engineering Company, p. 64
Tel. 951-782-0707 www.rickengineering.com
Aon Direct Administrators/LACBA Professional Liability, p. 5
Tel. 800-634-9177 www.attorneys-advantage.com
Hargrave & Hargrave, p. 60
Tel. 310-576-1090 www.taxwizard.com
Rimkus Consulting Group, Inc., p. 75
Tel. 877-978-2044 www.rimkus.com
A R Tech Forensic Experts, Inc., p. 50
Higgins, Marcus & Lovett, Inc., p. 63
Tel. 213-617-7775 www.hmlinc.com
Rosen & Associates, PC, p. 65
Tel. 213-362-1000 www.rosen-law.com
Ballenger, Cleveland & Issa LLC, p. 50
Tel. 310-873-1717
The Holmes Law Firm, p. 43
Tel. 626-432-7222 www.theholmeslawfirm.com
R. S. Ruggles & Co., Inc., p. 61
Tel. 800-526-0863 www.rsruggles.com
Gunther R. Bauer, MD, Attorney at Law, p. 73
Tel. 562-437-0403 www.bauermdmedmallaw.com
Jack Trimarco & Associates Polygraph, Inc., p. 42
Tel. 310-247-2637 www.jacktrimarco.com
Jonathan S. Rutchik, MD, p. 77
Tel. 415-381-3133 www.neoma.com
Law Office of Donald P. Brigham, p. 6
Jeffrey Kichaven, p. 22
Tel. 213-996-8465 www.jeffkichaven.com
Rutter Hobbs & Davidoff, Incorporated, p. 12
Tel. 310-286-1700 www.rutterhobbs.com
Bruce Broukhim, MD, p. 66
Tel. 818-755-6500
Joan Kessler, p. 29
Tel. 310-552-9800 www.kesslerandkessler.com
Sanli Pastore & Hill, Inc., p. 69
Tel. 310-571-3400 www.sphvalue.com
California Eminent Domain Law Group, APC, p. 28
Tel. 818-957-0477 www.caledlaw.com
JVH Communications & Consultants, p. 43
Tel. 818-709-6420 www.jvhcommunications.net
Steven R. Sauer APC, p. 8
The California Wellness Foundation, p. 21
Tel. 818-593-6600 www.tcwf.org
KARS Advanced Materials, Inc., p. 65
Tel. 714- 892-8987 www.karslab.com
Anita Rae Shapiro, p. 36
Tel. 714-529-0415 www.adr-shapiro.com
California Western School of Law, p. 18
Tel. 619-239-0391 www.californiawestern.edu
Kroll, p. 67
Tel. 213-443-6090 www.krollworldwide.com
Skyy Consulting, Inside Front Cover
Tel. 310-622-7076 www.skyyconsulting.com
Carol Nygard & Associates, p. 42
Tel. 916-928-8999 www.sacramentocourtreporter.com
Krycler, Ervin, Taubman & Walheim, p. 46
Tel. 818-995-1040 www.ketw.com
Smith & Carson, p. 86
Tel. 818-551-5900 www.smithcarson.com
Clock Construction, p. 55
Tel. 949-640-7890
Lawyers’ Mutual Insurance Co., p. 7
Tel. 800-252-2045 www.lawyersmutual.com
Stefanie Stolinsky, PhD., p. 75
Tel. 310-788-3436 www.act-it-out.com
CRA International, p. 59
Tel. 202-662-3800 www.crai.com
Law Offices of Boyd S. Lemon, p. 70
Tel. 310-827-0840 www.legalmalexpert.com
Stonefield Josephson, Inc., p. 17
Tel. 866-225-4511 www.sjaccounting.com
CreditMax, p. 29
Tel. 310-476-0200 www.creditmaxteam.com
Lexis Publishing, p. 9, 15
www.lexis.com
Jeff Sugar, M.D., p. 80
Cohen Miskei & Mowrey, p. 60
Arthur Mazirow, p. 37
Sylvester Consulting Group, p. 77
Tel. 310 391-2080 e-mail: [email protected]
Commerce Escrow Company, p. 36
Tel. 213-484-0855 www.comescrow.com
MCLE4LAWYERS.COM, p. 6
Tel. 310-552-5382 www.MCLEforlawyers.com
TASA, Technical Advisory Service for Attorneys, p. 23, 74
Tel. 800-523-2319 www.tasanet.com
Council of Better Business Bureaus, Inc., p. 22
Tel. 800-334-2406 www.bbb.org
Gil Mileikowsky, MD p. 63
Tel. 310-858-1300 www.baby4you.net
Tasoff & Tasoff, p. 35
Tel. 818-788-8900 www.tasoff.com
D. Wylie Associates, p. 63
Tel. 805-681-9289 www.drivingfatigue.com
Clinton E. Miller, JD, p. 60
Tel. 408-279-1034 www.millerjd.qpg.com
Tavakoul, p. 37
Tel. 714-928-3742
DataChasers.com, p. 52
Tel. 951-780-7892 www.datachasers.com
Miod and Company, LLP, p. 64
Tel. 818-898-9911 www.miod-cpa.com
Thomas Neches & Company, LLP, p. 51
Tel. 213-624-8150 www.thomasneches.com
Deadlines On Demand, p. 13
Tel. 888-363-5522 www.deadlines.com
MP Group, p. 8
Tel. 323-874-8973 www.mpgroup.com
Toshiba/Copyfax Communications, p. 4
Tel. 714-892-2444 www.copyfax.net
Law Offices of Delsack & Associates, P.C., p. 22
Tel. 888-395-3666 www.lemonlawspecialists.com
Mr. Truck, p. 79
Tel. 925-625-4994 or 800-337-4994 e-mail: [email protected]
ULTIMO Organization, Inc., p. 80
Tel. 714-560-8999 www.geotechnical.com
Desmond, Marcello & Amster, p. 47
Tel. 310-216-1400 www.dmavalue.com
MyCorporation.com, p. 1
Tel. 888-692-6771 www.mycorporation.com
URS, p. 83
Tel. 213-996-2555 www.urscorp.com
E. L. Evans & Associates, p. 69
Tel. 310-559-4005
National Institute for Trial Advocacy, p. 28
Tel. 800-225-6482 www.nita.org
Elaine Verchick, p. 28
Tel. 310-550-7818
Field & Test Engineering, Inc., p. 69
National Properties Group, p. 86
Tel. 310-516-0022
Verizon Wireless, p. 11
Tel. 866-899-2862 www.verizonwireless.com
Georg Finder, p. 57
Tel. 714-441-0900 www.creditdamageexpert.com
Noriega Clinics, p. 87
Tel. 323-728-8268
Vision Sciences Research Corporation, p. 84
Tel. 925-837-2083 www.contrastsensitivity.net
Kenneth J. Fischbeck, p. 49
Tel. 714-609-7481 e-mail: kfi[email protected]
OFS, “The Business Doctors”, p. 67
Tel. 310-821-1893 www.ofs3.com
Temmy Walker, Inc., p. 81
Tel. 818-760-3355
Forensic Expert Witness Association, p. 46
Tel. 949-640-9903 www.forensic.org
One Legal, Inc., p. 37
Tel. 415-491-0606 www.onelegal.com
Waronzof Associates, P. 70
Tel. 310-954-8060 www.waronzof.com
ForensisGroup Inc., p. 53
Tel. 626-795-5000 www.forensisgroup.com
Ostrove, Krantz & Associates, p. 49
West Group, Back Cover
Tel. 800-762-5272 www.westgroup.com
Fragomen, Del Rey, Bernsen & Loewy, LLP, p. 30
Tel. 310-820-3322 www.fragomen.com
Pacific Construction Consultants, Inc. (PCCI) p. 52
Tel. 916-638-4848 www.pcci.biz
White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 48
Tel. 818-981-4226 www.wzwlw.com
Marc J. Friedman, M.D., p. 79
Pacific Construction Management, Inc., p. 49
Tel. 800-576-7264 www.pcmi.biz
Whittier Law School, Inside Back Cover
Tel. 714-444-4141 www.law.whittier.edu
FULCRUM Financial Inquiry LLP, p. 2
Tel. 213-787-4100 www.fulcruminquiry.com
Pacific Health & Safety Consulting, Inc., p. 66
Tel. 949-253-4065 www.phsc-web.com
Lesther Winkler, M.D., p. 74
Tel. 818-349-8568
Arnold L. Gilberg, MD, PhD., A Professional Corporation, p. 57
Tel. 310-274-2304
Power Volvo South Bay, p. 28
Tel. 310-325-3255 www.powerdirect.com
Witkin & Eisinger, LLC, p. 86
Tel. 310-670-1500
Steven L. Gleitman, Esq., p. 6
Tel. 310-553-5080
Graham A. Purcell, MD, p. 77
Tel. 818-985-3051 www.gpurcellmd.com
Lewis Yablonsky, PhD., p. 83
G. Govine Consulting, p. 57
Tel. 626-564-0502 www.govineconsults.com
Quo Jure Corporation, p. 42
Tel. 800-843-0660 www.quojure.com
Zivetz, Schwartz & Saltsman, p. 47
Tel. 310-826-1040 www.zsscpa.com
CLE Preview
Eliminating Bias by Increasing Cultural Diversity
GAMBLING ON PREEMPTION
On Wednesday, November 16, the
ON THURSDAY, NOVEMBER 10, the Barristers Section and the Diversity in the Profession
Committee will proudly present a panel of academics and practitioners who will discuss what
the legal profession can do to increase awareness of cultural and racial diversity in the
workplace and how diversification can help to eliminate bias in the profession. Speakers
Jody D. Armour, Cristina Felix-Carrasco, J. Craig Fong, Michael A. Lawson, and Judge Fumiko H.
Wasserman will discuss the challenges in today’s competitive legal market concerning the
recruitment, retention, and promotion of attorneys of color, women, and gay and lesbian
attorneys. The program will take place at the LACBA/LexisNexis Conference Center, 281 South
Figueroa Street, Downtown. Parking is available at the Figueroa Courtyard parking garage for
$9 with LACBA validation. On-site registration will be available starting at 11:30 A.M. and
Intellectual Property and Entertainment
lunch at 11:45, with the program continuing from noon to 1:30 P.M. The registration code
number is 009160. CLE+PLUS members may attend for free ($15 meal not included). The
ruled that certain idea submission claims
prices below include the meal.
$25—Barristers members
$35—all others
1.5 CLE hours in elimination of bias
Aspiring screenwriter Jeff Grosso brought
Law Section will present a discussion of the
implications of Grosso v. Miramax. The
decision could alter the landscape of the
submission of ideas in the entertainment
industry and the idea submission claims
that often follow. The panelists will include
Jonathan H. Anschell, Glen L. Kulik, and
Gail M. Title. In Grosso, the Ninth Circuit
are not preempted by federal copyright law.
an implied contract claim based on his
submission of a script titled The Shell
Game, which he claims was used to create
Miramax’s motion picture Rounders.
Power Point for Litigators
ON TUESDAY, NOVEMBER 15, the Los Angeles County Bar Association and its Litigation Section will
present a course taught by Russell Jackman on how demonstration programs (in particular,
Microsoft’s Power Point) can be an integral part of trial and business presentations. Course
topics will include setting up slides, creating slides, text effects, bullets and numbering, pictures,
borders, line drawing and edit points, animation, and exporting files. Participants are
encouraged to bring their laptops for a more interactive experience. Please note, however, that
limited access to power outlets will be available on a first-come, first-served basis, and that those
who bring a computer should have Power Point already installed. This course does not provide
the Power Point software. The program will take place at the LACBA/LexisNexis Conference Center,
281 South Figueroa Street, Downtown. A reduced parking rate is available with validation. On-site
registration and dinner will begin at 5:30 P.M., with the program continuing from 6 to 9:15. The
registration code number is 009148.
$150—CLE+PLUS members
$200—Litigation Section members
$300—other LACBA members
$450—all others
3.25 CLE hours
Miramax argued that the Copyright Act
preempted the claim. In a truncated
decision, the Ninth Circuit ruled that Grosso
could pursue his state law claim. Studios,
writers, agents, and entertainment lawyers
are now grappling with the effects of
Grosso. This program will take place at the
Wyndham Bel Age—West Hollywood, 1020
North San Vicente Boulevard. Parking with
validation costs $6. On-site registration will
begin at 11:45 A.M. and the meal at 11:45,
with the program continuing from 12:30 to
1:30 P.M. The registration code number is
009186. CLE+PLUS members may attend for
free ($31 meal not included). The prices
below include the meal.
$60—Intellectual Property and
Entertainment Law Section members
$75—LACBA members
PLEASE NOTE: FIGUEROA COURTYARD NOW USES AN AUTOMATED
PARKING PAYMENT SYSTEM. PLEASE BRING YOUR PARKING TICKET
WITH YOU TO THE PROGRAM.
$85—all others
$90—all at-the-door registrants
1 CLE hour
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listed
on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at http://calendar.lacba.org/.
For a full listing of this month’s Association programs, please consult the County Bar Update.
Closing Argument
BY DAVID HAZELKORN
The Unmasking of a Legal Urban Legend
OVER THE PAST COUPLE OF YEARS an increasing number of lawyers imbuing attorneys with the power to stay all proceedings.
Tenderloin stands for only two principles: 1) the availability of sanchave been filing “notices of unavailability” that state, for one reason
or another, that the lawyers are unavailable to do anything regard- tions, and 2) the imposition of sanctions for bad faith tactics.
ing a particular case during specified periods of time. These notices Tenderloin has been cited repeatedly for the principle that trial courts
are then waved before opposing counsel like a cross in front of a vam- have broad discretion in ruling on sanctions.2 A monetary sanction
pire, with the argument that all service, discovery, motions, hearings, may be based not only on attorney’s fees and costs but also on any
and everything else concerning the case must cease during the peri- other reasonable expenses incurred, including compensation for airods of unavailability.
fare and reimbursement for lost vacation. An appellate court will not
Tenderloin Housing Clinic, Inc. v. Sparks1 invariably is presented reweigh the evidence or substitute its discretion for the trial court’s.
Tenderloin also has been cited for the imposition of sanctions under
as authority for this proposition. However, Tenderloin does not so
hold. That belief is a legal urban legend.
Tenderloin is about an attorney who
persistently engaged in discovery in a frivAttorneys who say Tenderloin is about notices of unavailability
olous and oppressive fashion with the obvious intent to harass and inconvenience
opposing counsel and her client. The rulare misreading the case by taking the facts out of context.
ing concerned sanctions for persistent bad
faith and frivolous and harassing tactics.
In Tenderloin the defendants’ lawyer
advised the plaintiff’s trial counsel by telephone that the defendants’ Code of Civil Procedure Section 128.5 for bad faith actions and taclawyer would be away for two and one-half weeks, first at an arbi- tics.3 For example, in Wells Properties v. Popkin, the court cited
tration proceeding in New York and then on a long-planned vaca- Tenderloin to show that Wells’s course of conduct evinced bad faith.
tion in England. Shortly after the telephone conversation, the plain“[E]ven if a legal step taken or legal procedure pursued may
tiff’s trial counsel set three discovery motions for hearing on a date
have justification in law, the timing of these may be oppressive
he knew defense counsel would be away, forcing defense counsel to
and may constitute harassment if it unjustifiably neglects or
file a motion and obtain a continuance. While defense counsel was
ignores the legitimate interest of a fellow attorney.”4
away, the plaintiff’s trial counsel served two of defense counsel’s
In Abandonato v. Coldren, the court cited Tenderloin to support
clients with trial subpoenas that required them to appear as witnesses its holding that the trial court did not abuse its discretion in awardin an unrelated third-party action. Defense counsel had to obtain a ing sanctions based on persistent bad faith tactics.5
telephone hearing from London to quash the subpoenas and protect
Sanctions in Tenderloin were based on the trial court’s finding that
her clients’ interests.
the appellant acted in bad faith, frivolously, and solely to harass the
The plaintiff’s trial counsel never explained why he waited until respondent. No case or article citing Tenderloin mentions unavailopposing counsel was in London to serve subpoenas in a case that ability, notices of unavailability, or any similar concept.
was later dismissed by the plaintiff. Several days after defense counThere is nothing in Tenderloin creating or discussing a legal consel’s departure, the plaintiff’s lawyer set three depositions for days he cept of unavailability. It does not discuss a notice of unavailability as
knew to be the last two weekdays of defense counsel’s vacation. The a recognized legal document. Nor does Tenderloin or any other case
plaintiff’s lawyer refused to continue the depositions. The defen- say a lawyer’s unavailability creates or abrogates legal rights, tolls deaddants’ lawyer had to cut her vacation short and purchase a one-way lines, or has any other effect except when there is bad faith by a party
ticket from London to San Francisco to safeguard her clients’ inter- (including, probably, the unavailable party).
■
ests. Upon arrival in San Francisco, she was informed by the plaintiff’s trial counsel that at least one of the depositions was canceled. 1 Tenderloin Housing Clinic, Inc. v. Sparks, 8 Cal. App. 4th 299 (1992).
She also learned that, contrary to a written stipulation, the plaintiff’s 2 See, e.g., Gemini Aluminum Corp. v. California Custom Shapes, Inc., 95 Cal. App.
1249, 1262 (2002).
counsel, in an attempt to cause a default by the defendant, had 4th
3 Abandonato v. Coldren, 41 Cal. App. 4th 264, 267-68 (1995); Wells Props. v.
secretly moved forward a hearing to a date that required the defenPopkin, 9 Cal. App. 4th 1053, 1058 (1992) (Sonenshine, J., dissenting).
dants to file their opposition papers while their lawyer was sup- 4 Wells, 9 Cal. App. 4th at 1058 (Sonenshine, J., dissenting) (citing Tenderloin, 8
posed to still be in England.
Cal. App. 4th at 306).
Attorneys who say Tenderloin is about notices of unavailability 5 Abandonato, 41 Cal. App. 4th at 267 (citing Tenderloin, 8 Cal. App. 4th at 304).
are misreading the case by taking the facts out of context. Tenderloin
is not about unavailability, notices of unavailability, or any similar David Hazelkorn is not currently practicing law. He consults on litigation
concept. And it certainly does not hold that such notices are talismans and trial strategy in Santa Ana.
WHITTIER LAW SCHOOL
Dean Neil H. Cogan and the Faculty Are Pleased to Announce
the Following Appointments:
Assistant Professor of Law
Seval Yildirim
B.A., Randolph-Macon Woman’s College, cum laude
M.A., George Washington University
LL.M., J.D., New York University School of Law
Visiting Scholar, Hagop Kevorkian Center for Near Eastern Studies, New York University
Associate, Sills Cummis Epstein & Gross
Aftermath of a Revolution: A Case Study of Turkish Family Law, PACE INTERNATIONAL LAW REVIEW
(Fall 2005) (forthcoming)
Assistant Professor of Law
Martin H. Pritikin
B.A., University of Southern California, Los Angeles, summa cum laude
J.D., Harvard Law School, magna cum laude
Editor, HARVARD LAW REVIEW
Adjunct Coach, Bryne Trial Advocacy Program, Loyola Law School
Litigation Associate, Quinn Emanuel Urquhart Oliver & Hedges, LLP
Toward Coherence in Civil Conspiracy Law: A Proposal to Abolish the Agent’s Immunity Rule,
NEBRASKA LAW REVIEW (FALL 2005) (forthcoming)
Acting Director, Center for International and Comparative Law
Visiting Assistant Professor of Law
David A. Kaye
B.A., University of California at Berkeley
J.D., Boalt Hall School of Law, University of California at Berkeley
Deputy Legal Counselor, Embassy of the United States, The Hague, The Netherlands
Adjunct Professor of Law, Georgetown University Law Center
Adjudicating Self-Defense: Discretion, Perception and the Resort to Force in International Law, COLUMBIA
JOURNAL OF TRANSNATIONAL LAW (FALL 2005) (forthcoming)
Visiting Assistant Professor of Law
Michael Evans
B.A., Duke University, magna cum laude
J.D., Stanford Law School, Order of the Coif
Member, STANFORD LAW REVIEW
Law Clerk, Honorable Raymond C. Fisher, United States Court of Appeals, 9th Circuit
Litigation Associate, Brancart & Brancart
The Case for All-Female Health Clubs, 11 YALE J.L. & FEMINISM 307 (1999)
MCLE PROGRAMS • JOB POSTING SERVICE • BOOKSTORE • LIBRARY OPEN TO THE PUBLIC • FACILITY RENTALS
WHITTIER LAW SCHOOL
In service of justice and enterprise
SM
3333 Harbor Boulevard • Costa Mesa, California 92626
(714) 444-4141 • www.law.whittier.edu
Whittier College — 1887 • Whittier Law School — 1966
This forms book guides you through
every turn of California real estate law.
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of form and substance.
You get more than up-to-date forms with Miller &
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©2005 West, a Thomson business L-311674/4-05
Extensive cross-references to
the entire Miller & Starr
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west.thomson.com

November 2005 - Los Angeles County Bar Association

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