Los Angeles Lawyer November 2014

NOVEMBER 2014 / $4

EARN MCLE CREDIT

THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION

Los Angeles lawyers Mitchell Wexler (right)

and Andrés Ortiz offer guidance on the

duty to advise clients on the immigration

implications of a criminal proceeding

page 18

PLUS

Priority-of-CoverageLitigationpage 23

Domestic Violenceduring Divorcepage 11

Law FirmDissolutionspage 14

Access toJusticepage 68

SEMIANNUAL

GUIDE TO

EXPERT WITNESSES

Pleas andConsequences

WorkplaceInvestigations

page 32

1 Nov 2014 Master Final.qxp 10/17/14 12:10 PM Page c1

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18 Pleas and ConsequencesBY MITCHELL WEXLER AND ANDRÉS ORTIZ

Criminal defense counsel in California must advise noncitizen defendants aboutthe specific immigration consequences of a plea deal

23 Cover MeBY DANIEL A. CRIBBS AND RAVI R. MEHTA

Priority-of-coverage litigation can implicate such complex issues as the vertical orhorizontal exhaustion doctrine and circuity of litigation Plus: Earn MCLE credit. MCLE Test No. 240 appears on page 25.

32 Investigating AdequacyBY BETH K. WHITTENBURY

Under certain circumstances, employers may conduct an adequate workplaceinvestigation without offering notice and an opportunity to respond to anemployee accused of wrongdoing

40 Special SectionSemiannual Guide to Expert Witnesses

F EATU RE S

Los Angeles Lawyer

the magazine of

the Los Angeles County

Bar Association

November 2014

Volume 37, No. 8

COVER PHOTOGRAPH:TOM KELLER

11.14

8 On Direct

Ron BrownINTERVIEW BY DEBORAH KELLY

9 Barristers Tips

Guidelines for a successful lateral job searchBY JOHN D. FOWLER

11 Practice Tips

Dealing with domestic violence during adivorceBY DONALD P. SCHWEITZER

14 Practice Tips

The application of Jewell v. Boxer to lawfirm dissolutionsBY MATTHEW C. HEYN

66 By the Book

Law of the JungleREVIEWED BY BEN M. DAVIDSON

68 Closing Argument

Looking for big solutions for access tojustice in CaliforniaBY HERNÁN D. VERA

67 CLE Preview

DE PARTM E NTS

LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly,except for a combined issue in July/August, by the Los AngelesCounty Bar Association, 1055 West 7th Street, Suite 2700,Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paidat Los Angeles, CA and additional mailing offices. Annual sub-scription price of $14 included in the Association membershipdues. Nonmember subscriptions: $28 annually; single copyprice: $4 plus handling. Address changes must be submittedsix weeks in advance of next issue date. POSTMASTER: AddressService Requested. Send address changes to Los AngelesLawyer, P. O. Box 55020, Los Angeles CA 90055.


4 Los Angeles Lawyer November 2014

VISIT US ON THE INTERNET AT WWW.LACBA.ORG/LALAWYERE-MAIL CAN BE SENT TO [email protected]

EDITORIAL BOARD

ChairMARY E. KELLY

Articles CoordinatorDONNA FORD

Assistant Articles CoordinatorTED M. HANDEL

SecretaryJOHN C. KEITH

Immediate Past ChairPAUL MARKS

JERROLD ABELES (PAST CHAIR)K. LUCY ATWOODETHEL W. BENNETTSCOTT BOYERCAROLINE BARBEEPATRICIA H. COMBSCHAD C. COOMBS (PAST CHAIR)HON. MICHELLE WILLIAMS COURTGORDON K. ENG STUART R. FRAENKELCHRISTY GARGALISMICHAEL A. GEIBELSON (PAST CHAIR)CHRISTINE D. GILLESHARON GLANCZJEFFREY A. HARTWICKSTEVEN HECHT (PAST CHAIR)JOSHUA S. HODASERIC KINGSLEYKATHERINE KINSEYDANIELLE LACKEYJENNIFER W. LELANDSANDRA MENDELLMICHELLE MICHAELSCOMM. ELIZABETH MUNISOGLUPAUL OBICOCARMELA PAGAYAMANDA PAWLYKDENNIS L. PEREZ (PAST CHAIR)GREGG A. RAPOPORTGARY RASKIN (PAST CHAIR)JACQUELINE M. REAL-SALAS (PAST CHAIR)A. JOEL RICHLINDAVID SCHNIDER (PAST CHAIR)NANCY L. SCHROEDERSTEVEN SCHWARTZHEATHER STERNMATTHEW D. TAGGARTDAMON THAYERTHOMAS H. VIDAL

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Copyright © 2014 by the Los Angeles County Bar Association. All rightsreserved. Reproduction in whole or in part without permission isprohibited. Printed by R. R. Donnelley, Liberty, MO. Member BusinessPublications Audit of Circulation (BPA).

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Los Angeles Lawyer November 2014 5

LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATIONOF THE LOS ANGELES COUNTY BAR ASSOCIATION1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553Telephone 213.627.2727 / www.lacba.org

LACBA OFFICERS

PresidentLINDA L. CURTIS

President-ElectPAUL R. KIESEL

Senior Vice PresidentMARGARET P. STEVENS

Vice President and TreasuerMICHAEL K. LINDSEY

Assistant Vice PresidentHON. BRIAN S. CURREY

Assistant Vice PresidentCHRISTINE C. GOODMAN

Assistant Vice PresidentDAVID K. REINERT

Barristers PresidentDEVON MYERS

Barristers President-ElectROBERT S. GLASSMAN

Immediate Past PresidentPATRICIA EGAN DAEHNKE

Chief Executive Officer/SecretarySALLY SUCHIL

Chief Financial & Administrative OfficerBRUCE BERRA

General Counsel & Chief Administrative OfficerW. CLARK BROWN

BOARD OF TRUSTEESHARRY W.R. CHAMBERLAINBRIAN K. CONDONDUNCAN W. CRABTREE-IRELANDDANIEL M. CROWLEYREBECCA A. DELFINOHARUMI HATASTACY R. HORTH-NEUBERTRICHARD D. KAPLANSAJAN KASHYAPSARAH E. LUPPENMARCELLUS A. MCRAEANNALUISA PADILLAJUAN A. RAMOSDIANA K. RODGERSSARAH V.J. SPYKSMASUSAN KOEHLER SULLIVANJEFF S. WESTERMAN

AFFILIATED BAR ASSOCIATIONS

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CENTURY CITY BAR ASSOCIATION

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GLENDALE BAR ASSOCIATION

IRANIAN AMERICAN LAWYERS ASSOCIATION

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JAPANESE AMERICAN BAR ASSOCIATION

JOHN M. LANGSTON BAR ASSOCIATION

KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA

LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES

MEXICAN AMERICAN BAR ASSOCIATION

PASADENA BAR ASSOCIATION

SAN FERNANDO VALLEY BAR ASSOCIATION

SANTA CLARITA VALLEY BAR ASSOCIATION

SANTA MONICA BAR ASSOCIATION

SOUTH BAY BAR ASSOCIATION

SOUTHEAST DISTRICT BAR ASSOCIATION

SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION

WOMEN LAWYERS ASSOCIATION OF LOS ANGELES


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story, “New U.S. Effort to Aid Unaccompanied Child Migrants,” the White House direc-tor of domestic policy stated that border agents have seen a recent spike in the numberof girls under the age of 13, “including some barely old enough to walk.” Yet, on September28, the Los Angeles Times reported that in a recent poll Californians remain equally dividedabout whether these children should be deported immediately or be allowed to remainwhile they await legal proceedings.

Some argue that providing access to immigration court through publicly funded le-gal services violates federal law and makes the problem worse by encouraging more ille-gal immigration. But many unaccompanied and undocumented children have legitimateclaims that would grant them legal status if they could navigate the labyrinthine web ofimmigration laws. An analysis of immigration cases through June, as reported by theTransactional Records Access Clearinghouse at Syracuse University, establishes that legalrepresentation makes a difference. In almost half of the cases in which a child had rep-resentation, the immigration court allowed the child to remain in the United States, but“nine out of ten children were ordered deported” when they were not represented. Legalassistance makes a huge difference in overcoming obstacles to access to justice for thesechildren, who also face a language barrier.

According to the Los Angeles Times, California took the humanitarian lead in pro-viding publicly funded representation for the approximately 4,000 unaccompaniedundocumented minors detained here. On September 28, Governor Jerry Brown signedSB 873, which authorizes a budget appropriation of $3 million to fund legal represen-tation of unaccompanied minors. The new law codifies the jurisdiction of the state supe-rior court, including the juvenile, probate, or family divisions, to make an order containingthe necessary findings regarding special immigrant juvenile status, if there is evidence tosupport those findings, that may enable a child to petition the U.S. Citizenship andImmigration Service for classification as a special immigrant juvenile.

A similar effort has been made at the federal level. On September 30, the New YorkTimes reported that the U.S. Department of Health and Human Services announced thefederal government’s authorization of $9 million over two years for the legal represen-tation of unaccompanied minors facing deportation in immigration courts. Federalofficials reported to the New York Times that about 58,100 children caught at the bor-der remain in custody.

LACBA’s Immigration Legal Assistance Project has also responded to this humani-tarian crisis, providing a two-day pro bono training in June for attorneys representingunaccompanied minors. The Los Angeles legal community enthusiastically joined the probono call for legal assistance. According to Directing Attorney Mary Mucha, the pro-gram sold out. Another program was offered in October.

I urge attorneys to attend a program and to volunteer. As Bishop Eusebio Elizondoof Seattle told the New York Times, “This is a humanitarian crisis....These children arerefugees who deserve the protection of our nation. They should not be viewed as law-breakers.” They deserve access to justice. ■

This year saw a 92 percent upsurge of unaccompaniedimmigrant children from Central America enteringthe United States to escape deepening poverty and a

sustained increase in violence. The children’s plight is heart-breaking. As reported by Julia Preston in a New York Times

Mary E. Kelly is a nurse attorney and an administrative law judge II with the CaliforniaUnemployment Insurance Appeals Board. She is cochair of the California Access to JusticeCommission’s Administrative Agency Committee.


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What is the perfect day? The day that does-not have a fire—by fire I mean no one is introuble with the State Bar, no one is beingheld in contempt, and I don’t have to disci-pline anyone. I can work on policy.

What is overrated in the legal profession?Jury trial experience. There is more to it thanthe number of trials. But, if you don’t try acase, DAs will force upon you a bad deal.

What is underrated in the legal profession?Salary. Some of the smaller counties actuallyeclipsed us in salary. I can’t stand to lose agood lawyer because I can’t promote themto a rank they deserve.

Why did you choose this profession? I want-ed to be a lawyer because you can reallyhelp people. I interviewed for the district at-torney’s office, and it didn’t work out well. Iinterviewed with the public defender’s office,fell in love with the interviewers, fell in lovewith the office.

What is the biggest misconception aboutbeing a public defender? If the sources arefree, we can’t be worth anything. The best

criminal defense lawyers out there are publicdefenders. Private lawyers come to us foradvice.

What has been your best job? Public defender.

What was your worst job? Custodian’s assis-tant while I was in high school; it was nofun cleaning toilets.

What characteristic did you most admire inyour mother? Her respect for the law. Herthirst for education. She was great at mak-ing me go to a library and making me study.

What would your mother say if she knew youwere the public defender? She’d be very,very proud of me, but would say don’t get abig head about it, you didn’t get there onyour own.

If you were handed $1,000,000 tomorrow,what would you do with it? I would save$900,000 and go out and buy a Tesla withthe rest of it.

Who is on your music playlist? Classical mu-sicians.

What book is on your nightstand? Under-world Detection Agency.

Which fictional hero or heroine would youlike to be? Superman.

Which magazine do you pick up at the doc-tor’s office? The magazines are usually out-dated and I am forced to pick them up.

What scared you the most about your firstcase as a lawyer? Losing. As a public defend-er, you’re going to lose cases. I hate losing. Iwant my lawyers to have that fire in the belly.

What scared you the most when you becamethe public defender? Being compared to mypredecessor, Mike Judge, who is a wonderfulman. I am my own man, but I’m not Mike.

How has realignment affected defendants?Realignment would be great for our clientsif the courts understand that people needprograms. Realignment is an opportunity toactually help people to reenter society.

What is your favorite vacation spot? Maui.

What do you do on a three-day weekend? Iwill mow the lawn, do the hedges, and domy little chores around the house. I lovebeing the gardener and working in the yard.

What are your retirement plans? I want to dosomething I’ve never been able to do. Sleeplate. I am a morning person by requirement.What would it be like to sleep until you feltlike getting up?

What is your favorite sport as a participant?Bicycling.

What is your favorite spectator sport? Col-lege football.

Which television shows do you DVR? Mar-vel’s Agents of S.H.I.E.L.D., DowntonAbbey.

Do you have a Facebook page? Not any-more. I didn’t have the heart to not accept afriend request from anyone, and they simplygot out of hand.

Are you on Twitter? I didn’t get into the fol-lowing-and-being-followed thing.

What is your favorite radio station? KPCCand NPR.

Which person in history would you like totake out for a beer? If I drank beer, I wouldprobably want to spend some time and talkto Abraham Lincoln and say, “What tookyou so long?”

If you had to choose only one dessert for therest of your life, what would it be? Straw-berry ice cream.

What are the three most deplorable condi-tions in the world? Hunger, poverty, impris-onment.

Who are your two favorite U.S. presidents?Jimmy Carter and Abraham Lincoln.

What is the one adjective you would like onyour tombstone? Fair.

on direct INTERVIEW BY DEBORAH KELLY

RON BROWN heads the Los Angeles CountyPublic Defender’s Office, which opened in1914 as the nation’s first publicly fundedindigent criminal defense agency.

Ron Brown Los Angeles Public Defender



GONE ARE THE DAYS WHEN staying at one firm for an entire careerwas the norm. With an array of options available to a generation ofrecent graduates known for seeking changes of scenery, it is almostinevitable that a new or young lawyer will at some time be lookingfor a new opportunity. However, substantial decisions accompany mak-ing a transition. In the compressed and highly competitive legal mar-ket a lateral move can mean more than a simple change of job. It mayentail a change in lifestyle, a less agreeable job, a uncomfortable shake-up, and a resetting of reputation—not necessarily always a badthing. While making a move is no minor decision, there are many prac-tical ways to look for a lateral position that canincrease the likelihood of landing something inline with desired goals and aspirations.

The most fundamental misunderstandingabout the job search is that new and youngerattorneys often believe that sending out resumesexpansively, without making a personal contact,is an effective way to obtain a job. This archaicmethod has a much smaller role in today’slegal landscape. While casting a wide net is cer-tainly advisable, the majority of attorneys whodid not graduate in the top 10 percent of theirclass will find much more success in poundingthe pavement. The search is a job in itself,requiring diligence in advertising one’s skills andexperience.

Employers are more apt to hire individuals with whom they havehad a prior affiliation or a social connection, and the odds of apotential employer’s granting an interview are greatly enhanced if therehas been previous personal acquaintance. It is very difficult to impresssomeone on paper since resumes are often vetted by individuals withno ultimate input on the selection process.

There are relatively easy ways to forge these types of relationships.Los Angeles may have one of the most accessible legal communitieson the planet. First, decide what area of law to transition into, thenexplore all of the organizations in town that have sections or groupsdevoted to that practice. Nearly every conceivable area of the law isrepresented. Join the target group and become available to con-tribute. Participants in these kinds of endeavors are generally themovers and shakers with whom it is extraordinarily helpful to beacquainted.

It is also important to adamantly—and respectfully—have coffeewith everyone who practices in the areas of interest. Job opportuni-ties are often presented first to hungry, motivated newer attorneys whohave put their names out through individual, targeted networking.Passing out business cards at events is fine, but it is not an effectivenetworking tool unless a one-on-one impression is made through fol-low-up. Most alums are happy to grab a quick coffee with a fellowgraduate, and are even more apt to do so if the purpose is to networkand learn rather than to immediately be asked for a job. This activ-

ity provides an opportunity to inquire about jobs that may not evenexist yet but that almost certainly will in the future. It is much bet-ter to be one of the first or only applicants than to be the 500th.

A key to landing a satisfying lateral position also depends on hav-ing a positive attitude. Unfortunately, there is still a doomsday men-tality when it comes to job searching, so transcending the lamenta-tions of other attorneys can be a formidable challenge. Learning tobecome one’s own cheerleader while dealing with what will likely bea substantial amount of rejection is a great skill to have. Although itmay be a buyer’s market for employers, looking for a lateral position

has the advantage of time. Be willing to investigate all potentialavenues but unwilling to sell yourself short. It may take an inordi-nate amount of time to find the right spot, but attorneys will morethan likely be practicing law for life so it is worth putting time andenergy into the search for the next job. Employers are not only look-ing for hard workers but also individuals with whom they would bewilling to share a beer after work. A conversation illustrating uniquepassions outside the law is better than a resume that lists Westlaw asan interest.

The newer generation’s reputation for rapid, constant changemeans having to answer the interview question “Why are you look-ing to move?” strategically and carefully. Aside from the basic ques-tions that are variants of “Why should I hire you?” and “Do I wantto have a beer with you?” an inquiry into the rationale for change isa manifestation of employer fears of only being a stopover. These fearscan be allayed by the applicant’s presenting himself or herself as a long-term option.

Meeting a myriad of practicing attorneys can be personally andprofessionally rewarding even if the interaction does not lead to adream job. Although it may sound like a cliché, the most importantparts of a lateral search are to have fun, keep perspective, and pushforward. ■

barristers tips BY JOHN D. FOWLER

Guidelines for a Successful Lateral Job Search

Be willing to investigate all potential avenues but unwilling to

sell yourself short.…Employers are not only looking for hard

workers but also individuals with whom they would be willing

to share a beer after work.

John D. Fowler is a litigation associate specializing in entertainment and busi-ness at the Los Angeles office of Carlsmith Ball LLP.


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BEFORE THE INK DRIES on a retainer agreement, a family law prac-titioner should advise clients on what to do if they become embroiledin domestic violence with the opposing party. The attorney should alsohave a strategic plan for advising clients on what to do shoulddomestic violence occur.

First, the attorney may advise a new client that if violence erupts,he or she should remove himself or herself from the location and callthe police immediately, as the failure to make a timely report can leadto complications in prosecuting a claim. Clients should also be coun-seled against engaging in activities that may be deemed aggressive,such as keeping the children in violation of anagreement or forcibly taking them from theother parent, even if the other parent is in vio-lation of a court’s orders. Clients should alsobe advised against placing themselves in vul-nerable situations. In a contentious case, it isusually sound advice to instruct the client torefrain from meeting with the other party wherethere are no witnesses.

It is also important to educate clients on thepotential consequences of domestic violencethat go beyond the emotional and physicalinjuries to the victim and children. For the perpetrator, a convictionentails the possibility of incarceration, fines, court-ordered counsel-ing or classes; loss of employment and future employment opportu-nities; loss of liberty associated with a restraining order; loss ofimmigration status; and loss of child custody rights.1 The conse-quences do not end there. Courts also consider domestic violence whendeciding a support award and division of joint property. A victim ofdomestic violence may choose to sue the perpetrator in civil court andmay receive damages greater than half of the community estate.2

If violence occurs, family law attorneys should clear their calen-dars and meet with the client as soon as practicable afterward to helpmake critical decisions, such as whether or to retain a criminaldefense attorney or obtain a domestic violence restraining order(DVRO). The first step in getting a DVRO is to make a request fora temporary restraining order (TRO), which requires the filing of anex parte motion with or without notice.3 The moving papers for aDVRO include the following Judicial Council forms: Request forDomestic Violence Restraining Order (DV-100), Notice of CourtHearing (DV-109), and Temporary Restraining Order (DV-110). InLos Angeles County, an additional form, Civil Case Cover SheetAddendum and Statement of Location (LACIV-109) needs to becompleted unless the parties already have an open unrelated matterin family court, such as a pending dissolution of marriage.

The forms are largely self-explanatory, but attention should be givento the client’s needs. For example, if the case involves child custody,an additional form (DV-108) will have to be completed. Likewise, aseparate form (DV-150) is required if the client requests the oppos-ing party have only monitored visitation with the children. In all cases

in which the client is seeking financial relief, such as child support,spousal support, and attorney’s fees, an Income and Expense Declar-ation (FL-150) needs to be filed with the moving papers. It is best toconsult with the client while completing the forms.

Attorneys should take care in writing the client victim’s declara-tion. The judicial officer who reads the request for a TRO makes hisor her decision based on the evidence in the declaration. To supportthe declaration, the attorney should attach exhibits as corroboratingevidence, such as photographs of the victim’s injuries and text ande-mail messages. The client’s declaration should highlight the most

recent incidents first and then chronicle any past domestic violence.The filing procedure is straightforward. Rather than filing the

request with the filing window, the moving papers are handed directlyto the clerk in the department in which the case will be heard. Thejudge will usually review the documents in chambers and eithergrant or deny the request without hearing argument. If the requestis granted, the court will direct the clerk to schedule an evidentiaryhearing for a permanent restraining order within approximatelythree weeks. After the TRO is issued, the sheriff enters it into theCalifornia Law Enforcement Telecommunications System (CLETS).Once this happens, law enforcement will have 24-hour access to theterms of the order. Nevertheless, the client should file a copy of theTRO with the local police (along with the proof of service) and thechildren’s school. Clients should also keep a copy on their person atall times, as it is possible there will be a mistake made in entering theTRO into CLETS.

On occasion a client will obtain a TRO on his or her own and thenask for help with the evidentiary hearing. In these cases, the client’smoving papers should be scrutinized, as they are likely to containerrors. Discovering the client’s mistakes in advance of the hearing givescounsel time to correct them. If the client failed to request attorney’sfees, for example, counsel will need to file a separate motion.Furthermore, in the weeks before the hearing, it is imperative togather witnesses and prepare the client’s testimony. Evidence that cor-roborates the client’s version of the event is most valuable, as in mostcases the court will not issue the restraining order after hearing only

practice tips BY DONALD P. SCHWEITZER

Dealing with Domestic Violence during a Divorce

The court does not need a DVRO in order to allow the victim

to record phone calls with the restrained party and to make

the restrained party participate in domestic violence classes.

Donald P. Schweitzer is a certified family law specialist in Pasadena.


the uncorroborated testimony of the client.Counsel should therefore scrutinize the

client’s moving papers and determine if thereis enough evidence. Although the definitionof domestic violence within Family CodeSection 6320 may seem clear, not all judgesview evidence of alleged domestic violence thesame. Some are likely to dismiss cases that arereferred to in the trade as domestic light—i.e.,the evidence barely meets the minimum re-quirements of domestic violence under thecode. An example of domestic light would bea single incident in which the accused sentharassing text messages to the victim. It isgood practice to raise the issue with theclient before proceeding with the request fora temporary restraining order, especiallysince the court has discretion to award attor-ney’s fees to the prevailing party.4 Counselshould also explore other avenues with clientsto leverage the domestic violence incident,including the possibility of filing a separatecivil lawsuit for domestic violence against theopposing party in civil court pursuant toCivil Code Section 1708.6.

Penal Code

The attorney should be familiar not only withthe Civil and Family Code sections relevant todomestic violence but also the Penal Code. Itsdefinition of domestic violence is differentfrom that of the Family Code, of which Section6320 requires the moving party to prove onlyby preponderance of the evidence that theoffending party engaged in harassment orconduct likely to disturb the peace of a rea-sonable person.5 A criminal conviction, on theother hand, requires specific elements of acrime to be proven beyond a reasonable doubt.

For example, battery against a spouse isnot easily proven without corroborating evi-dence.6 A more serious crime occurs if a per-son willfully inflicts upon his or her spouse orformer spouse a corporal injury that resultsin a traumatic condition. This crime can becharged as a felony, and a conviction may bepunished by imprisonment in state prisonfor two, three, or four years, or in a countyjail for not more than one year, or by a fineof up to $6,000 and imprisonment.7 In Cal-ifornia, evidence of a traumatic conditionexists if the injury is visible, however slight.8

The element of this crime that prosecutorsmost frequently struggle to prove is that thedefendant caused the injury. Also, the injuryitself may come into question if, for example,the photograph is poor.

Frequently in family law cases, a partyremoves, damages, destroys, or obstructs theuse of a wireless communication device withthe intent to prevent the use of the device tosummon assistance or notify law enforce-ment or any public safety agency. Partieswho commit this crime are guilty of a mis-

demeanor.9 Supporting evidence of this crimecan be found in a recording of the victim’s 911call and photographs of a destroyed phone.Another crime—less likely to be observed indivorce cases—is violation of the stalkingstatute.10 In this crime, a party willfully, mali-ciously, and repeatedly follows or harassesanother person and makes a credible threatwith the intent to place that person in rea-sonable fear for his or her safety or the safetyof his or her immediate family. This is pun-ishable by imprisonment for not more thanone year or by a fine of not more than $1,000,or both. The most challenging element of thiscrime to prove is that the defendant had spe-cific intent to place the other party in fear. Onthe other hand, one of the most prevalentcrimes in family law cases is usually easy toprove. If a party, with intent to annoy, tele-phones or makes contact by means of an elec-tronic communication device with anotherand addresses to the other person any obscenelanguage or any threat to inflict injury on theperson, that party commits a misdemeanor.11

The result of a criminal court proceedingis likely to be very influential in family court,which is mandated to consider a criminalconviction in deciding custody issues,12 spou-sal support,13 and a permanent restrainingorder. One frequent challenge to the patienceof clients, however, is that criminal matterscan take months to resolve. As family lawproceedings progress, however, they can influ-ence the criminal case. The declarations andtestimony of both parties may be used asevidence.

If the client is the one accused of domes-tic violence and criminal charges have beenfiled or appear likely to be filed, counselshould advise him or her regarding the FifthAmendment right against self-incrimination.If a client is facing criminal charges for domes-tic violence, the family law attorney shouldadvise the client against speaking to the policewithout an attorney. Anything that a clienttells the police will likely be used against theclient at trial. It is therefore usually a bad ideato file a client’s declaration concerning theincident in family court during the pendencyof the criminal case.

Unless the family law attorney has sig-nificant experience representing clients whoare facing criminal charges for domestic vio-lence, he or she should maintain a relation-ship with a local criminal defense attorney. Ifthe case is referred to a defense attorney, it isimportant to coordinate the criminal andfamily cases. The last thing a family lawyerwants is to jeopardize the client’s criminal caseby taking action in the family law case beforethe criminal matter is resolved. The clientwill need to make critical decisions as towhether to proceed in family court with theDVRO hearing or to wait until the criminal

matter is resolved.If the party alleging domestic violence

intends to cooperate with the prosecution incriminal court, the wisest course for the attor-ney of the accused is to request a continuancein family court for the hearing on a permanentrestraining order. The loss of some or all childvisitation privileges for several months may bethe sacrifice the client must make in order toallow the criminal matter to resolve. In def-erence to the accused party’s due processrights, the family court generally will allowcontinuance of the DVRO pending resolu-tion of the criminal matter. Many courts willalso grant the client’s request for visitation withthe children during the pendency of the crim-inal matter, although the visitations may bemonitored.

One effective way that family law practi-tioners can assist clients in reaching a favorableresolution in the criminal matter is to deposethe party who made the allegations and anyother people who purport to have witnessedthe incident (excluding children). A thoroughdeposition of the opposing party can be avaluable tool for the criminal defense attorney,as it is likely to uncover weaknesses in thecase, such as prior inconsistent statements.

Client Expectations

It is important to manage the expectationsof a client accused of domestic violence. Afamily lawyer must be realistic in evaluatingthe opposing party’s evidence. Often, theevidence is so strong against the accusedclient that an attempt to fight the DVROwould be futile and potentially insulting tothe court. The better tactic is to ask the courtfor leniency with respect to the type of restric-tions imposed. Despite the exhaustive list of mandatory requirements imposed by theFamily Code, the trial court still has broaddiscretion to issue orders with respect to theDVRO, such as duration, child custody, andvisitation.14

Criminal defense attorneys and criminalcourt judges are generally unfamiliar withfamily law or how the criminal case affectsclient’s pending family court matter. There-fore, it is helpful for the family law practi-tioner to provide the district attorney and thecourt not only with a status of the family lawproceedings but also a copy of the currentchild custody orders. Otherwise, it is entirelypossible that the protective order issued inthe criminal case will preclude the clientfrom visiting his or her children. Further-more, without knowing the relevant issuesin the family court case, the district attorneyand the court often have only one side of thestory.

The potentially severe consequences of arestraining order make it important to havea clear understanding of the client’s goals. A



victim of domestic violence may have astrong need for child or spousal support ora desire for reconciliation, and a restrainingorder can be at odds with this objective. If,for example, the alleged perpetrator ofdomestic violence is likely to lose a job as aresult of the restraining order, a client maywant to forego obtaining one. In these sit-uations, however, it is advisable for familylaw practitioners to warn their clients ofthe advantages of having a DVRO, whichinclude favorable outcomes regarding cus-tody and support.

Attorneys need to be aware, however, ofthe alternatives to a DVRO, which is requir-ed to be registered on CLETS.15 Parties canchoose instead to enter into a stipulationand order that contains similar types ofrestraining provisions as a DVRO and holdthe same enforcement capability—i.e., con-tempt. Parties may wish to enter into theseagreements to avoid the mandatory provisionsof a DVRO. For example, the code man-dates that in almost all circumstances therestrained person turn in his or her firearms.This provision can cause a financial hard-ship on the entire family if the possession ofa firearm is required for the restrained party’semployment.16 The court does not need aDVRO in order to allow the victim to recordphone calls with the restrained party and tomake the restrained party participate indomestic violence classes and parenting classesas a condition to exercising visitation with thechildren.17 In addition, termination or mod-ification of a DVRO requires the court’sassent, while a stipulation can be modifiedwith a subsequent stipulation between theparties.

Given the possibility of domestic violencearising in a family case and the severe con-sequences it can entail, all family lawyersshould have plans to protect clients—whethervictims or accused. Attorneys who are readyto provide clients with proactive and effectivelegal representation can make a positive dif-ference on the outcome of their cases. ■

1 FAM. CODE §§3011, 3044.2 CIV. CODE §1708.6.3 FAM. CODE §6300.4 FAM. CODE §6344.5 FAM. CODE §6320; Marriage of Nadkarni, 173 Cal.App. 4th 1483 (2009).6 See PENAL CODE §243(e); People v. Watson, 46 Cal.2d 830 (1956).7 PENAL CODE §273.5(a).8 People v. Beasley, 105 Cal. App. 4th 1078 (2003).9 PENAL CODE §591.5.10 PENAL CODE §646.91(a).11 PENAL CODE §653m.12 FAM. CODE §§3011, 3044.13 FAM. CODE §§4320, 4325.14 FAM. CODE §6320.15 FAM. CODE §6380.16 FAM. CODE §6389.17 FAM. CODE §§3044, 3022.


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THE DISSOLUTION OF A LAW FIRM can be a financial catastrophe forits partners. In a typical law firm dissolution, the partners lose anybonuses that they were promised and their end-of-year draws. Thethousands or hundreds of thousands of dollars in capital that eachpartner contributed for the firm’s operating expenses are usuallysacrificed to pay the firm’s major creditors—typically landlords andbanks. Most of the firm’s partners must start over, building a new prac-tice with a new set of colleagues and making a new capital contributionto their new firm.

If the firm’s creditors force it into bankruptcy, which often hap-pens following law firm dissolutions, the partners can expect to bethe targets of litigation. In each of the bankruptcies of Brobeck,Phleger & Harrison LLP; Heller Ehrman LLP; Dewey & LeBoeuf LLP;Coudert Brothers LLP; Thelen LLP; and Howrey LLP, the represen-tative of the firm’s bankruptcy estate demanded that the former part-ners pay the estate staggering sums or else be sued.

• In the Heller bankruptcy, the estate representative demanded thatthe shareholders—the Heller equivalent of a partner—return all dis-tributions and other compensation received in the eight months priorto Heller’s dissolution. To settle the claims against them, the seniorshareholders—attorneys that had been elevated to shareholder for fiveor more years—paid $100,000 on average, with high-earning share-holders paying $350,000 each.1

• The partners at Dewey repaid funds under a complex partner con-tribution plan in order to obtain a release of claims against them. Underthis plan some 444 partners paid a total of $71.5 million, with sev-eral of the partners paying more than $1 million apiece.2

• In the Howrey dissolution, the estate representative demandedthat the partners return all distributions and other compensationreceived in the 12 months before the firm filed for bankruptcy.Although not all claims against the partners have been settled, alarge group of partners recently paid between $21,000 and $192,000each to settle the claims against them.3

The partners’ new firms have also paid dearly. For example,Covington & Burling LLP settled claims with the Heller estate for $4million,4 Morgan, Lewis & Bockius LLP agreed to pay $10.2 millionto the Brobeck estate,5 and more than $8.6 million has been collectedin the Heller bankruptcy from the 46 firms facing claims by theHeller trustee.6

In the major law firm bankruptcies, there are two types of claimsusually alleged. The first are clawback lawsuits, which assert that theformer partners must return all or a substantial portion of theirdraws and other compensation. These lawsuits are based on theallegation that the bankrupt law firm was insolvent or inadequatelycapitalized when it paid the distributions to the partners and that thelaw firm, at the time of insolvency or inadequate capitalization,should have kept its revenues to ensure that present and future cred-itors would be paid rather than distributing any draws or othercompensation to the partners. Hindsight plays a key role in these typesof allegations, as seemingly profitable firms lose tremendous value once

the law partners lose faith that their partnership will continue to beprofitable. Partners rarely know or suspect that their firm may be insol-vent. However, under constructive fraudulent transfer law, a trans-fer is avoidable whether or not the recipient knows that the transfereeis insolvent. Under the Bankruptcy Code, the trustee can avoid a trans-fer of a debtor as constructively fraudulent if the transfer was for lessthan reasonably equivalent value and if the debtor was insolvent, inad-equately capitalized, or believed that it was about to be unable to payits debts as they came due.7

The second type of claim is the so-called Jewel lawsuit, which isbrought against the former partners’ new law firms seeking to col-lect any profits that the new firms earned from the dissolved firm’sformer engagements. Jewel lawsuits are based on the duty, under theUniform Partnership Act (UPA) and the Revised Uniform Partnership

practice tips BY MATTHEW C. HEYN

The Application of Jewel v. Boxer to Law Firm Dissolutions

Matthew C. Heyn is a deputy attorney general with the office of the CaliforniaAttorney General. Previously, he was a partner of Klee, Tuchin, Bogdanoff &Stern LLP, which represented large groups of former partners of Brobeck,Phleger & Harrison; Heller Ehrman; Dewey & LeBoeuf; and Howry in connectionwith those firms’ bankruptcies.


Act (RUPA), of partners of a dissolved part-nership to account to the partnership in dis-solution for any profits they received from fin-ishing firm business. In particular, Section21(1) of the UPA provides that “[e]very part-ner must account to the partnership for anybenefit, and hold as trustee for it any profitsderived by him without the consent of theother partners from any transaction con-nected with the formation, conduct, or liq-uidation of the partnership or from any useby him of its property.”8 Bankruptcy estaterepresentatives usually assert that this duty toaccount for profits from unfinished businessof the dissolved partnership (a Jewel duty)exists for hourly fee cases and for contin-gency matters.

Jewel v. Boxer Lawsuits

Jewel lawsuits are named after a CaliforniaCourt of Appeal decision, Jewel v. Boxer, inwhich a four-partner firm dissolved and thepartners formed two new two-partner firmswithout agreeing on how to allocate profitsfor engagements that had not been com-pleted.9 Instead, “each former partner sent aletter to each client whose case he had han-dled for the old firm, announcing the disso-lution.” The letter included “a substitution ofattorney form, which was executed andreturned by each client retaining the attorneywho had handled the case for the old firm.”10

After two of the partners performed ser-vices for several cases of the old firm—andwere paid for those services—the two otherpartners sued for an accounting. The court ofappeal held that the attorneys’ fees for all mat-ters that had begun in the old firm but thathad been completed at a new firm should beallocated consistent with the partners’ own-ership percentages in the old firm.11 Thedefendant partners that had completed thematters were required to distribute any prof-its from the matters they had worked on totheir former partners without receiving anycredit for their work in bringing the mattersto conclusion.

The defendant partners argued that theywere not completing the old firm’s businessbut had entered into a new relationship withthe clients since, as evidenced by the substi-tution of attorney, the clients were no longerold firm clients. The court of appeal rejectedthis argument, holding that this type of newcontract cannot cut off the rights of the oldfirm because the partners had a “fiduciaryduty not to take any action with respect tounfinished partnership business for personalgain.”12 While Jewel was limited to inter-preting California’s adoption of the UPA,courts in other states have adopted its rea-soning and applied the same rule to dissolvedlaw firms in those jurisdictions.13

In Jewel, the court of appeal was explicit

that it was only applying a default rule underthe UPA and that the default rule could bealtered or waived by agreement of the part-ners.14 Firms in dissolution (or near it) haverepeatedly attempted to waive Jewel duties,but bankruptcy courts and district courtshave found that the waivers may be set asideas fraudulent transfers if such waivers areentered into at a time that the law firm isinsolvent or inadequately capitalized.15 As aresult, many law firms have paid bankruptcytrustees millions to avoid litigating the valueof unfinished business transferred to them.

Decisions Rejecting Jewel

Two recent decisions, one from the NewYork Court of Appeal (which is the highestcourt of the State of New York, the situs ofthe Dewey, Coudert, and Thelen bankrupt-cies) and one from the District Court for theNorthern District of California (which reviewsthe decisions of the bankruptcy court handlingthe Brobeck, Heller, and Howrey bankrupt-cies) have changed the landscape for law firmbankruptcies by rejecting the applicability ofJewel to major law firm bankruptcies.

This year, in Heller Ehrman LLP v. Davis,Wright, Tremaine LLP, Judge Charles R.Breyer of the U.S. District Court for theNorthern District of California issued a rulingin several consolidated lawsuits—against DavisWright & Tremain LLP; Jones Day; Foley &Lardner LLP; and Orrick, Herrington &Sutcliffe LLP—arising out of the Heller bank-ruptcy.16 Prior to Heller’s bankruptcy and aspart of its dissolution, Heller notified its clientsthat it would no longer be able to providelegal services and agreed on a plan of disso-lution that contained a Jewel waiver purport-ing to waive any Jewel duty. After Heller filedfor bankruptcy, Heller (controlled by a trustee)sued law firms that hired its former partners,alleging that the Jewel waiver was avoidableas a fraudulent transfer and that the Hellerestate had property rights in the unfinishedhourly matters pending at the time the formerHeller lawyers joined the other law firms.

Judge Breyer rejected application of Jewel,holding:

A law firm—and its attorneys—do notown the matters on which they per-form their legal services. Their clientsdo. A client, for whatever reason, maysummarily discharge counsel and hiresomeone else. At that point, the clientowes fees only for services performedto the date of discharge, and his formerlawyer must, even if fees are in dispute,cease working on the matter andimmediately cooperate in the transferof files to new counsel.17

Judge Breyer distinguished Jewel from thefacts in Heller, highlighting “five key, relatedreasons” that the firms hiring Heller’s part-

ners were not subject to a duty to account.First were the distinguishing circumstances

of the firms’ dissolutions. The firm in Jewelwas voluntarily dissolved, whereas Hellerwas forced into bankruptcy. According tothe District Court, “This is significant becausethe partners in Jewel could have, but chosenot to, finish representing their clients as oron behalf of the old firm. Here, Heller lackedthe financial ability to continue providinglegal services to its clients, leaving clientswith ongoing matters no choice but to seeknew counsel and Heller Shareholders nochoice but to seek new employment.”18

Second, in Jewel, “[t]he new firms repre-sented the clients under fee agreements enteredinto between the client and the old firm.”19

The former Heller clients signed new retaineragreements with the new firms. This was sig-nificant in showing that the new firms werenot completing Heller’s business.

Third, in Jewel, the new firms consistedentirely of partners from the old firms: Onefirm with four partners became two firmswith two partners each. In Heller, the defen-dants were each large preexisting law firms“that provided substantively new represen-tation, requiring significant resources, per-sonnel, capital, and services….”20 Unlike thedefendants in Jewel, the firms hiring Heller’sformer partners never owed any duty to thedissolved firm and its creditors.

Fourth, Jewel treated hourly fee matters andcontingency fee matters as indistinguishable.In Heller, there were no contingency fee casesat issue.21 This seems to be relevant because itis not clear from the Jewel decision to whatextent the postdissolution fees at issue were forhourly or contingency fee matters.

Finally, Jewel case was decided in 1984and thus applied the UPA, which was super-seded in California and most other jurisdic-tions—but not New York—by the RUPA.California’s adoption of the RUPA was sig-nificant for two reasons. First, under theRUPA, partners of a dissolved law firm areentitled to compensation for completing unfin-ished business. This change undermined theprimary basis for the California Court ofAppeal’s decision in Jewel since under theUPA partners had not been entitled to com-pensation for completing unfinished businessunless the partners agreed otherwise. Second,under the RUPA—but not the UPA—the dutynot to compete with the partnership ends ondissolution. Thus, former Heller partners andtheir new firms were free to enter into agree-ments with their former clients. Those newagreements did not give—and did not need togive—any rights to the Heller estate.22

To these legal arguments, Judge Breyeradded a public policy argument that forcingfirms that hired former partners of dissolvedlaw firms to give up their profits would dis-



courage the new firms from hiring the formerpartners and discourage them from acceptingclients formerly represented by dissolvedfirms. As Judge Breyer wrote: “It is not in thepublic interest to make it more difficult forpartners leaving a struggling firm to find newemployment, or to limit the representationchoices a client has available, by establishinga rule that prevents third-party firms fromearning a profit off of labor and capital invest-ment they make in a matter previously han-dled by a dissolved firm.”23

Judge Breyer’s decision in Heller was soonfollowed by a decision from the New YorkCourt of Appeals. On July 1, 2014, in responseto questions arising out of the Thelen andCoudert bankruptcies, the New York courtunanimously held in In re Thelen LLP that,as a matter of New York partnership law,there was no Jewel duty because “pendinghourly fee matters are not [a dissolved law firm’s] ‘property’ or ‘unfinished business’”under New York’s partnership law.24 In thatconsolidated appeal, the bankruptcy trusteesof Thelen and Coudert argued that underStem v. Warren25—a 1920 case involving anarchitecture partnership—and several morerecent New York contingency fee cases,26

New York followed the rule in Jewel. How-ever, the court rejected the application of Jewelto dissolved law firms. In a portion of the

opinion that echoed Judge Breyer’s decision, thecourt held that “[a] law firm does not own aclient or an engagement, and is only entitledto be paid for services actually rendered.”27

The Thelen court’s rejection of Jewel waspremised on two principles. First, under NewYork law—California law is similar—clientshave an “unqualified right to terminate theattorney-client relationship and can termi-nate an attorney at any time.”28 Second,because the client can terminate a law firm atany time, the “expectation of any continuedor future business is too contingent in natureand speculative to create a present or futureproperty interest.”29 Thus, although NewYork’s partnership act imposed an obliga-tion to liquidate the firm’s property and toaccount for any property and unfinished bus-iness, the client matters that Thelen andCoudert were working on before they dis-solved could not constitute property or unfin-ished business. The firms in dissolution hadno ability to complete the work, and theclients had no obligation to stay.

The Thelen court also distinguished Stemand the contingency fee cases cited by thebankruptcy trustees. It noted that although thecourts in those cases refer to contingency feematters as assets of the dissolved firm, the onlyasset they are actually referring to is the rea-sonable value of the dissolving firm’s work on

the matters.30 According to the court, noneof the contingency fee cases cited by thetrustee awarded the client matter itself, or anyfee not earned by the firm in dissolution and,thus, they did not support the supposed dutyto account for working on those cases.31

As did Judge Breyer, the Thelen court notedsignificant policy reasons for rejecting Jewel.This court argued that the trustees’ position“would have numerous perverse effects” andwould conflict “with basic principles that gov-ern the attorney-client relationship under NewYork law and the Rules of ProfessionalConduct.”32 Among other public policy con-siderations, the court noted that New York hasa “strong public policy encouraging clientchoice and, concomitantly, attorney mobil-ity,” which would be undermined by holdingthat firms that hire a dissolved firm’s partnerswould have to pay any profits from transi-tioned matters.33 Among other things, thedeparting lawyers “might advise their clientsthat they can no longer afford to representthem, a major inconvenience for the clients anda practical restriction on a client’s right tochoose counsel.”34 In addition, “clients mightworry that their hourly fee matters are not get-ting as much attention as they deserve if the[new] law firm is prevented from profitingfrom its work on them.”35

It is likely that the decisions by the NewYork Court of Appeals and the NorthernDistrict of California will have a significantimpact on law firm bankruptcies. Becausethe New York Court of Appeal is authorita-tive on New York law, it is binding for thebankruptcy of any New York law partnership.It is most likely that the Thelen and Couderttrustees will dismiss their actions against thelaw firms. Future bankruptcies of New Yorkfirms are unlikely to see demands or law-suits against firms that hire the attorneysfrom the partnership in bankruptcy. It remainsto be seen whether the New York Court ofAppeal’s decision will have any application tononlegal partnerships formed in New York.

Judge Breyer’s decision in Heller is notcontrolling authority. Moreover, the Howreytrustee has said he intends to appeal the deci-sion and may not stop until the CaliforniaSupreme Court decides the matter. However,the decision will carry significant persuasiveauthority, particularly in combination with theNew York Court of Appeals decision.Although the Howrey trustee seems com-mitted to continue pursuing Jewel claimsthrough the courts of appeal, it is safe to saythat most bankruptcy trustees will be muchmore reluctant to incur the expense of doingso given the apparently changing landscapeof Jewel lawsuits. ■

1 Drew Combs, Settling with Banks, Heller EstateMoves Toward Closure, THE AMLAW DAILY,


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http://amlawdaily.typepad.com/amlawdaily/2011/04/hellersettlement.html (last visited Aug. 5, 2014).2 Casey Sullivan, US judge OKs $71.5 mln Dewey& LeBoeuf bankruptcy deal, REUTERS, http://www.reuters.com/article/2012/10/09/us-bankruptcy-dewey-idUSL1E8L9NCV20121009 (last visitedAug. 5, 2014).3 Sara Randazzo, Ex-Howrey Partners Embittered by $4.2 Million Settlement, WALL STREET JOURNAL

BANKRUPTCY BEAT, available at http://blogs.wsj. com/ l aw/2014 /05 /07 / ex -howrey -pa r tne r s-embittered-by-4-2-million-settlement/ (last visitedAug. 5, 2014).4 Kevin S. Rosen, et al., More Than Your FirmBargained for: The “Unfinished Business” Doctrineof Jewel v. Boxer, 26 BEAZLEY BRIEF 1 (Feb. 2012),available at http://www.gibsondunn.com/publications/Documents/RosenChorbaKahn-MoreThanYourFirmBargainedFor.pdf (last visited Aug. 5, 2014).5 Id.6 See Julie Triedman, Ground Shifts UnderHowrey’s Unfinished Business Claims, THE AMLAW

DAILY, http://www.americanlawyer.com/Ground-Shifts-Under-Howreys-Unfinished-Business-Claims(last visited Aug. 5, 2014).7 11 U.S.C. §548(a)(1)(B).8 Accord CORP. CODE §16404(b)(1).9 Jewel v. Boxer, 156 Cal. App. 3d 171, 175(1984).10 Id.11 Id. at 177.12 Id. at 178-79.13 See, e.g., In re Labrum & Doak, 227 B.R. 391(Bankr. E.D. Pa. 1998); LaFond v. Sweeney, No.10CA2005, 2012 WL 503655 (Colo. App. Feb. 16,2012); Hurwitz v. Padden, 581 N.W. 2d 359, 362(Minn. Ct. App. 1998); Gull v. Van Epps, 185 Wis.2d 609, 624-25 (Wis. Ct. App. 1994); Hammes v.Frank, 579 N.E. 2d 1348, 1353 (Ind. Ct. App.1991); Flynn v. Cohn, 581 N.E. 2d 30, 32 (Ill. Ct.App. 1991); Kirsch v. Leventhal, 586 N.Y.S. 2d330, 332 (N.Y. App. Div. 1992).14 Jewel, 156 Cal. App. 3d at 179-80.15 See, e.g., Dev. Specialists, Inc. v. Akin GumpStrauss Hauer & Feld LLP (In re Coudert BrothersLLP), 480 B.R. 145, 160-61 (S.D. N.Y. 2012);Greenspan v. Orrick, Herrington & Sutcliffe LLP(In re Brobeck, Phleger & Harrison LLP), 408 B.R.318, 346 (Bankr. N.D. Cal. 2009).16 Heller Ehrman LLP v. Davis, Wright, Tremaine,LLP, C 14-01236 CRB, __ B.R.__, 2014 WL2609743 (N.D. Cal. June 11, 2014).17 Id. at *2.18 Id. at *4.19 Id. (quoting Jewel, 156 Cal. App. 3d at 175.).20 Id.21 Id.22 Id.23 Id. at *13.24 In re Thelen LLP, __ N.E. 3d __, 2014 WL2931526, at *2 (N.Y. July 1, 2014).25 Stem v. Warren, 227 N.Y. 538 (1920).26 Grant v. Heit, 263 A.D. 2d 388, 389 (N.Y. App.Div. 1999); Shandell v Katz, 217 A.D. 2d 472, 473(N.Y. App. Div. 1995); DelCasino v. Koeppel, 207A.D. 2d 374, 374 (N.Y. App. Div. 1994); Dwyer vNicholson, 193 A.D. 2d 70, 73 (N.Y. App. Div.1993); Kirsch v Leventhal, 181 A.D. 2d 222, 223(N.Y. App. Div. 1992).27 In re Thelen, 2014 WL 2931526, at *1.28 Id. at *5 (quoting In re Cooperman, 83 N.Y. 2d465, 473 (1994)).29 Id. (quoting Verizon New England, Inc. v.Transcom Enhanced Servs., Inc., 21 N.Y. 3d 66, 72(2013)).30 Id. at *5.31 Id. at *5-6.32Id. at *15.33 Id. at *16-17.34 Id. at *8.35 Id.


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The most significant contribution of Padillav. Kentucky to California law is an acknowl-edgement from the U.S. Supreme Court thata failure to advise a noncitizen defendant ofthe immigration consequences of a plea canconstitute ineffective assistance of counsel.1

In doing so, the Court largely adopted theobligations that California criminal attor-neys have borne for over 25 years to advisea noncitizen of possible immigration conse-quences stemming from a plea. In Padilla, theSupreme Court recognized that over the yearsCongress has placed increasingly stringentrestrictions on the foreign nationals who canbe admitted into the United States and whichnoncitizens may remain in the country.2 Atone time, there was only a narrow class ofcrimes that resulted in expulsion from thecountry, and until recently, immigration judgeswere granted wide discretion to “ameliorate

unjust results [of a deportation] on a case-by-case basis.”3 Under current law, there is awide class of crimes that makes a noncitizen’sremoval nearly inevitable.4 In turn, thechanges in immigration law have “dramati-cally raised the stakes” for noncitizens fac-ing criminal charges.5 In many cases, a nonci-tizen’s immigration case is litigated during thecriminal proceeding.6 These changes causedthe Supreme Court to reflect upon a criminaldefense attorney’s responsibility to inform anoncitizen client of adverse immigration con-sequences as a component of competent assis-tance of counsel.

Jose Padilla’s story illustrates how a nonci-tizen can be harmed when a criminal attorneyfails to provide an adequate immigrationadvisal. Padilla, a native and citizen ofHonduras, crossed the border into the UnitedStates in the 1960s.7 Subsequently, he hon-

orably served in the U.S. military and even-tually became a lawful permanent resident(LPR).8 He was a commercial truck driver atthe time he was arrested for transporting mar-ijuana. The state of Kentucky subsequentlycharged Padilla inter alia with a felony formarijuana trafficking. Before agreeing toplead, Mr. Padilla asked his defense counselwhether pleading guilty to the charges wouldaffect his immigration status.9 The attorneysaid that because he was a long-time perma-nent resident, pleading guilty to the felonywould not have any immigration conse-quences. However, in reality, pleading guiltyto the controlled substance trafficking offense

Mitchell Wexler is a partner with Fragomen, DelRey, Bernson & Loewy, LLP, and manages the fir-m’s Irvine and Los Angeles offices. Andrés Ortiz isan associate in Fragomen’s Los Angeles office.

PLEAS andCONSEQUENCESAttorneys must adequately advise noncitizen clients ofhow a criminal plea can affect immigration status

by MITCHELL WEXLER and ANDRÉS ORTIZ

KEN

CO

RRA

L


made his deportation “virtually mandatory.”10

Padilla filed for habeas relief, arguing thathis previous attorney provided ineffectiveassistance of counsel. The Kentucky SupremeCourt rejected his claim, but the U.S. SupremeCourt granted the writ of certiorari and re-versed the lower court’s ruling.11 Specifically,the Court held that defense counsel mustinform a noncitizen client whether a pleacarries a risk of deportation and that failingto advise of the consequences will not absolvethe attorney’s duty to address the ramificationsof a plea.12

In reaching this conclusion, the Courtrecognized that the unique penalty resultingfrom a deportation is often worse than anypenalty imposed by the conviction itself.13

Because of the devastating consequences asso-ciated with deportations, the Court addressedthe question of whether a criminal defenseattorney could provide ineffective assistanceof counsel under the Sixth Amendment byfailing to advise a noncitizen of the immi-gration consequences of a plea.14 To deter-mine whether counsel provided constitu-tionally insufficient representation, courtsapply the test established under Strickland v.Washington.15 Under Strickland, the courtmust first determine whether counsel’s rep-resentation “fell below an objective standardof reasonableness.”16 Determining constitu-tional deficiency is necessarily linked to thepractice and expectations of the legal com-munity. The Supreme Court observed that“the weight of prevailing professional normssupports the view that counsel must advise her client regarding the risk of deportation.”17

However, the Court expressly declined toreach the second prong of the Strickland test,which requires the defendant to demonstrateprejudice due to the defense counsel’s deficientperformance.18

The Court explicitly stated that when im-migration consequences are certain accordingto the Immigration and Nationality Act(INA), the defense attorney must advise theclient that the plea will result in deporta-tion.19 However, when the consequences areuncertain, the defense attorney must do nomore than advise the client that he or she maybe deported.20 Under California jurispru-dence there are a number of appellate deci-sions predating Padilla that impose a greaterburden on criminal defense attorneys to advisea noncitizen of the immigration implicationsof a plea. In Chaidez v. United States, theSupreme Court held that Padilla is notretroactive in federal criminal cases and instate courts that did not have preexistingduties to advise noncitizens because Padilla“altered the law of most jurisdictions.”21

The holding, however, did not affect caselaw in jurisdictions where a preexistingPadilla-type duty already existed. State courts

are charged with enforcing federal constitu-tional rights, so states are free to adopt pro-tections for federal constitutional rightsgreater than those provided by the U.S.Constitution. Moreover, Padilla-type deci-sions that are based on the interpretation ofstate constitutional law remain unchanged byChaidez.22

California Precedential Cases

For over 25 years, in state court criminalproceedings, California criminal defense attor-neys have been required to meet a higherburden than those required by Padilla. In1987, the California Court of Appeal held inPeople v. Soriano that criminal defense attor-neys are obligated to advise noncitizen crim-inal defendants about the actual and specificimmigration consequences of conviction andto defend against those consequences.23 More-over, Soriano’s holding is expressly groundedin the defendant’s right to effective assistanceof counsel under the Sixth Amendment andSection 15 in Article I of the California StateConstitution.24

In addition to the obligation to investigatethe specific immigration consequences of astate criminal conviction, a criminal attorneymay fall below the requisite standard of com-petency by failing to request or pursue a rem-edy that will help a noncitizen avoid immi-gration consequences. In People v. Barocio,the California Court of Appeal held that thedefense counsel provided ineffective assis-tance of counsel when he failed to pursuejudicial recommendation against deportation(JRAD) as part of the sentence.25 “Under theprevailing professional norms, counsel’s fail-ure to advise respondent of the availability ofa [J]RAD hearing from the sentencing courtwhere respondent was subject to deporta-tion as a result of his conviction renders hisassistance constitutionally inadequate.”26

Similarly, in People v. Bautista, the Cali-fornia Court of Appeal held that a criminaldefense attorney correctly advised his clientof certain immigration consequences stem-ming from a conviction for the possession forsale of marijuana.27 Nonetheless, defensecounsel may have provided ineffective assis-tance of counsel by failing to pursue a dif-ferent plea that would have preserved thedefendant’s ability to apply for discretionaryrelief from deportation.28

Clearly, Soriano, Barocio, and Bautista fitwithin Padilla’s aspirational framework thatdefense counsel will inform the noncitizendefendant of the immigration consequences ofa plea. However, these California precedentialdecisions firmly impose a greater burden ondefense counsel to take affirmative steps tohelp the noncitizen avoid the harsh conse-quence of deportation. Compliance with theserequirements is not easy. As the Ninth Circuit

recognizes, “Since 1931 the law on deporta-tion has not become simpler. With only asmall degree of hyperbole, immigration lawshave been termed ‘second only to the InternalRevenue Code in complexity.’”29 Thus, the“proliferation of immigration laws and regu-lations has aptly been called a labyrinth thatonly a lawyer could navigate.”30

Immigration Law

Concerns about the competence of criminalattorneys to navigate the labyrinth of immi-gration law are well expressed in JusticeSamuel Alito’s Padilla concurrence, in whichhe made two observations that should givegreat pause to criminal attorneys tasked withadvising noncitizens about the immigrationconsequences of a plea.

First, Justice Alito points out that a defensecounsel will rarely be able to read an isolatedsection of the INA and definitively determinethe immigration consequences of a plea.31

For example, an “aggravated felony” or a“crime involving moral turpitude” (CIMT)often cannot be defined by merely readingthe INA.32 As Justice Alito notes, conductunder state law that fits within an aggravatedfelony definition may penalize acts that are nei-ther aggravated nor constitute a felony.33

Determining the crimes that constitute a CIMTis no easier, particularly because the INA doesnot provide a definition for a CIMT.34 There-fore, these consequences often can only beunderstood after reviewing case law, which isoften in conflict.35 Justice Alito’s underlyingmessage is that identifying crimes with immi-gration consequences is neither obvious norintuitive and requires diligent investigation.

Indeed, California criminal statutes providea number of nonobvious, nonintuitive illus-trations of crimes that have surprising immi-gration consequences. For example, a nonci-tizen convicted under California Penal CodeSection 191.5(a)—DUI manslaughter—mayneither be an aggravated felon nor have com-mitted a CIMT.36 However, a noncitizen who,regardless of the circumstances, commits ashoplifting offense under Penal Code Section484(a) on two separate occasions may not onlybe deportable but also could be barred fromseeking immigration relief.37

Second, Justice Alito observes that a crim-inal counsel’s advice on deportability maybe misleading and that the advice could resultin unintended consequences, jeopardizing thenoncitizen’s ability to remain in the country.Justice Alito provides an example demon-strating that a seemingly well-crafted pleacould shield the noncitizen from deportabil-ity but make the client excludable.38 As aresult, a permanent resident who leaves theUnited States to visit a sick parent could beplaced into immigration proceedings uponreturn.39 This example is not merely acade-



mic, since two years after Padilla the SupremeCourt addressed a similar factual scenarioin Vartelas v. Holder.40

The petitioner, Panagis Vartelas, was along-time permanent resident who had afelony conviction but had never been placedin deportation proceedings.41 He left theUnited States to visit his parents. Upon hisreturn, immigration officials placed Vartelasin deportation proceedings not because he wasdeportable for his felony conviction butbecause the government believed he was

excludable.42 While Padilla was not specifi-cally at issue in the case, it provides validityof Justice Alito’s concern.

For criminal attorneys in California, thepotential traps do not end with the justice’sconcern. Bautista adds another layer of com-plexity to defense counsel’s representationof noncitizens. Dave Bautista was a long-time LPR who pleaded to violating Healthand Safety Code Section 11359.43 Despiteknowing the defendant was an LPR and thatthe conviction would lead to deportation,Bautista’s attorney believed the plea was goodbecause it exposed his client to a shorter jailsentence.44 In remanding the case to a referee,the appeals court held that a criminal defenseattorney must not only research the possibleimmigration consequences of a plea but alsopursue a remedy that will enable the nonci-tizen to pursue discretionary relief.45

For an LPR, a conviction under Section11359 will undoubtedly lead to a deportationas an aggravated felony. The defense attorneymay therefore have provided ineffective assis-tance of counsel for failing to negotiate aconviction under another statute that wouldhave increased the prison sentence but that

would have left intact the possibility of pur-suing discretionary immigration relief.46

Consequently, at least under California law,a defense counsel’s constitutional duty doesnot end at an advisal but extends to investi-gating whether a different plea could providesome immigration benefit.47

Finally, in immigration court the case willfrequently turn on whether sufficient docu-mentation exists to prove the state conviction“constitutes a predicate offense for immi-gration purposes.”48 For example, posses-

sion of a controlled substance under Healthand Safety Code Section 11377(a) criminal-izes possession of many of the controlledsubstances on the federal schedules and afew substances that appear only on the stateschedules.49 A noncitizen is subject to immi-gration consequences only when a controlledsubstance appears on both the federal andstate schedules.50 Thus, a person who pleadsguilty to Section 11377(a) without identify-ing the specific substance may or may not bedeportable, and it is impossible to ascertainthe immigration consequences merely byreading the statute.

As a result, the immigration court mustundertake the task of determining whether thenoncitizen was convicted of a state crimethat is appropriately designated within thedefinition of a predicate offense for immi-gration purposes by consulting a set of doc-uments to determine if the noncitizen pleadedto elements that necessarily constitute thefederal definition for the predicate offense.51

Depending on the facts of the immigrationcase, there are strategic advantages and dis-advantages to a complete record of convic-tion. An incomplete record of conviction

could greatly benefit an LPR but lead to thedeportation of an undocumented client.52

In applying the Section 11377(a) exam-ple, undocumented noncitizens who pos-sessed a controlled substance on the Cali-fornia schedule but not the federal one maybe barred from immigration relief if theycannot prove that they possessed a substancethat is only banned by the state of California,even if all parties know that the offensesolely involved a substance not banned underfederal law. Conversely, an LPR who pos-sessed methamphetamine may benefit froma vague record that does not specify the sub-stance because the immigration officials willbe unable to sustain the burden of proofthat the noncitizen is deportable.53 Whilethere is no California case directly requiringthe criminal attorney to construct a vague or specific record depending on the nonciti-zen’s immigration circumstance, Sorianoclearly places a state and federal constitu-tional burden on counsel to investigate theimmigration consequences of the convictionand to defend against those consequences.54

A critical aspect of defending against immi-gration consequences is developing a recordthat allows the noncitizen to seek reliefshould he or she be placed in immigrationproceedings. Thus, a well-crafted plea thatcomplies with Padilla and possibly providesan avenue to pursue discretionary immigra-tion relief could nonetheless be constitu-tionally below the requisite standard of careif the plea is not properly documented.

Undoubtedly, these cases demonstrate thatit does not suffice for California defenseattorneys simply to identify whether a nonci-tizen will be removable but that counsel mustalso strive to acquire a solution that will pre-serve the noncitizen’s right to remain in theUnited States. If a criminal attorney fails toadequately advise and advocate for the nonci-tizen, it could lead to serious consequences.“‘Tremendous personal stakes are involved indeportation or exclusion involving as it maythe equivalent of banishment or exile…. Tobanish [noncitizens] from home, family, andadopted country is punishment of the mostdrastic kind.’”55 Undoubtedly, this punish-ment will have negative ramifications notonly for the noncitizen but also for the nonci-tizen’s family. As Bautista articulated, depor-tation will not only cause a client to be sep-arated from home and job but also children,who will be forced to “‘choose between their[father] and their native country.’”56

Grave consequences of an inadequateadvisal however, are not just confined to thenoncitizen. The criminal attorney’s obliga-tion to protect the noncitizen’s ability toremain in the United States has been requiredfor competent representation for over 25years in California. Given the length of time



the obligation has existed, there is little doubtthat a criminal defense attorney who fails tocomply with these professional obligations hasrendered ineffective assistance of counsel andmay be exposed to a complaint with the StateBar.57 Additionally, the attorney could beexposed to civil liability for committing legalmalpractice.58 It is critical then for criminaldefense attorneys to understand the immi-gration implications of any criminal pro-ceeding in order to ensure that foreignnational clients are provided the best oppor-tunity to avoid permanent banishment fromfamily, home, and “all that makes life worthliving.”59 ■

1 Padilla v. Kentucky, 130 S. Ct. 1473 (2010).2 Id. at 1479-80.3 Id. at 1479.4 Id. at 1480.5 Id.6 Id. at 1481.7 Id. at 1477.8 Id.9 Id. at 1478.10 Id.11 Id.12 Id. at 1482, 1483 n.10. (“Lack of clarity in thelaw…does not obviate the need to say something aboutthe possibility of deportation, even though it will affectthe scope and nature of counsel’s advice.”)13 Id. at 1480.14 Id. at 1482.15 Strickland v. Washington, 466 U.S. 668 (1984).

16 Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010).17 Id.18 Id. at 1478.19 Id. at 1483.20 Id.21 Chaidez v. United States, 133 S. Ct. 1103, 1110(2013) (emphasis in original).22 See generally Texas v. Brown, 460 U.S. 730, 733 n.1(1983) (The Supreme Court may not have jurisdic-tion to review a state court decision that rested on astate rule that operated independently of federal caselaw.).23 People v. Soriano, 194 Cal. App. 3d 1470, 1478-79(1987).24 Id.25 People v. Barocio 216 Cal. App.3d 99 (1989).26 Id. at 109.27 People v. Bautista, 115 Cal. App. 4th 229, 238(2004).28 Id. at 242.29 Castro-O’Ryan v. INS, 821 F. 2d 1415, 1419 (1987).30 Biwot v. Gonzales, 403 F. 3d 1094, 1098 (2005).31 Padilla v. Kentucky, 130 S. Ct. 1473, 1491 (2010)(Alito, J., concurring).32 Id. at 1488-89.33 Id. at 1489.34 Id.; Castrijon-Garcia v. Holder, 704 F. 3d 1205, 1212(2013).35 Padilla, 130 S. Ct. at 1489, 1490.36 See Lara-Cazares v. Gonzales, 408 F. 3d 1217, 1221(2005) and see generally Fernandez-Ruiz v. Gonzales,468 F. 3d 1159 (2006).37 8 U.S.C. §1229b(b)(1)(C).38 Padilla, 130 S. Ct. at 1491.39 Id.40 See Vartelas v. Holder, 132 S. Ct. 1479 (2012).41 Id. at 1483.

42 Id. at 1485.43 People v. Bautista, 115 Cal. App. 4th 229 (2004).44 Id. at 238.45 Id. at 242.46 Id. at 239-41.47 Padilla also recognized that preserving a noncitizen’sright to remain in the country is often more importantthan any jail sentence. Padilla v. Kentucky, 130 S. Ct.1473, 1483 (2010) (citing INS v. St. Cyr, 533 U.S. 289(2001)).48 See, e.g., Cuevas-Gaspar v. Gonzales, 430 F. 3d1013, 1017-20 (2005).49 Coronado v. Holder, No. 11-72121,__ F. 3d __, 2014WL 3537027, at *3 (9th Cir. Jul. 18, 2014).50 Id. at *4; see also Rendon v. Holder, No. 10-72239,__ F. 3d __, 2014 WL 4115930, at *8 n.11 (9th Cir.Aug. 22, 2014) (acknowledging the holding inCoronado that Health & Safety Code §11377(a) is adivisible statute). 51 Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).52 Young v. Holder, 697 F. 3d 976, 989-90 (2012) (enbanc).53 See, e.g., Ragasa v. Holder, 752 F. 3d 1173, 1176(2014).54 People v. Soriano, 194 Cal. App. 3d 1470, 1478-79(1987).55 People v. Bautista, 115 Cal. App. 4th 229, 242(2004) (quoting In re Resendiz 25 Cal. 4th 230, 245,251 (2001)).56 Bautista, 115 Cal. App. 4th 229 at 242 (quotingGalvan v. Press, 347 U.S. 522, 533 (1954) (Black, J.,dissenting)). 57 CAL. RULES OF PROF’L CONDUCT R. 3-110(A) (fail-ing to perform legal services with competence.).58 See, e.g., Filbin v. Fitzgerald, 211 Cal. App. 4th154, 165 (2012).59 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).


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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 25.

MEADDITIONAL INSURED ENDORSEMENTS and express indemnity provisions are common risk trans-fer mechanisms, but they have generated uncommonly complex and difficult-to-reconcile judicial holdings.Litigation concerning priority-of-coverage disputes that include consideration of the vertical and horizon-tal exhaustion doctrines is necessarily complex, but it is part of an evaluation of the risks, rights, and oblig-ations of clients engaging in commercial contracts. Courts must consider the insurance policies of the par-ties as well as the agreements between the insureds to determine the order in which each party’s policies mustrespond to a given loss. As one court has observed, “[E]stablishing a pecking order among multiple insur-ers covering the same risk…has been characterized as ‘a court’s nightmare.…’”1

In many jurisdictions, including California, courts resolving a priority-of-coverage dispute face a spec-trum of options. On one end, courts may look only to insurance policy language. On the other, they maylook only to the contract between the insureds. Insurance policies and contracts—especially those with expressindemnity provisions—are often at odds, so, more likely than not, courts will give attention to one at theexpense of the other. The difficulty of resolution does not end there. Complex insurance matters typicallyinvolve multiple parties, risk transfer provisions in contracts between those parties, additional insured sta-tus, multiple layers of coverage, losses exceeding the limits of a single primary policy, and losses that spanseveral policy periods within primary and excess layers.2

To address these complex issues, courts follow one of two doctrines: horizontal exhaustion or vertical

Daniel A. Cribbs is a partner and Ravi R. Mehta associate counsel at Chapman, Glucksman, Dean, Roeb & Barger. Theirpractice includes complex construction litigation.

The transfer of risk through express

indemnity does not always lessen uncertainty

when a claim arises

by DANIEL A. CRIBBS and RAVI R. MEHTA

COVER


exhaustion. Under the former, all applicableprimary policies must exhaust before anyexcess policy may trigger. Under the latter, allprimary and excess policies for a given periodor party must exhaust before the primary orexcess policies of another period or partymay trigger. In California, the horizontalexhaustion doctrine is the majority rule.3

An example is illustrative. A construc-tion contract between a general contractorand subcontractor contains an express indem-nity provision in favor of the general con-tractor. Both parties have primary and excesslayers of liability insurance, and the subcon-tractor’s primary and excess policies name thegeneral contractor as an additional insured.The value of a loss is greater than the limitsof either party’s primary policy. The issuepresented to a court is the order in which thepolicies must respond.

Under the horizontal exhaustion doctrine,the insurers in this example must respond tothe loss in this order: 1) the subcontractor’sprimary policy, 2) the general contractor’sprimary policy, 3) the subcontractor’s excesspolicy, and 4) the general contractor’s excesspolicy. In contrast, under the vertical exhaus-tion doctrine the insurers must respond to theloss in this order: 1) the subcontractor’s pri-mary policy, 2) the subcontractor’s excesspolicy, 3) the general contractor’s primarypolicy, and 4) the general contractor’s excesspolicy.

When express indemnity is at issue, courtsin vertical exhaustion doctrine jurisdictionshave criticized the application of the com-peting horizontal exhaustion doctrine on thebasis of circuity of action. The leading casesin this respect are Wal-Mart Stores, Inc. v. RLIInsurance Company and American IndemnityLloyds v. Travelers Property Casualty Insur-ance Company.4 In Wal-Mart, Cheyenne, adistributor of halogen lamps, entered into asales agreement with Wal-Mart that includedan express indemnity provision in favor ofWal-Mart for liability resulting from sale ofthe lamps.5 St. Paul provided Cheyenne witha $1 million primary policy, and RLI providedCheyenne with a $10 million excess policy.6

Pursuant to the sales agreement, Wal-Martwas an additional insured on both policies.Additionally, National Union issued a $10million primary policy to Wal-Mart. After St.Paul and RLI paid $1 million and $10 million,respectively, to settle a claim, the EighthCircuit was presented with the question ofwhether Wal-Mart and National Union wereobliged to pay $10 million to reimburse RLI.7

The court answered no.8

The court based this outcome on the ex-press indemnity provision in favor of Wal-Mart and not on the competing “other insur-ance” clauses in the RLI and National Unionpolicies.9 These clauses commonly define pri-

ority of coverage for an insured when otherinsurance is available. The court explained itsconcern regarding circuity of litigation:

[T]o make Wal-Mart or NationalUnion liable to RLI would simply bethe first step in a circular chain of lit-igation that ultimately would end withRLI still having to pay the $10 million.To avoid these results, we hold thatWal-Mart and National Union have noobligation to RLI for any part of the$10 million settlement.10

The court reasoned that if it were to makeWal-Mart liable to RLI for the $10 millionpayment, Wal-Mart would successfully pur-sue Cheyenne for express indemnity, obtain-ing a judgment in its favor. According to thecourt, Cheyenne would then tender the judg-ment to its insurer, RLI, which in turn wouldhave to pay $10 million to Wal-Mart, result-ing in the same circumstances as those athand in which RLI has paid $10 million tosettle the claim. Similarly, the court reasonedthat if it were to make National Union liableto RLI for the $10 million, National Unionwould step into the shoes of its insured, Wal-Mart, via subrogation against Cheyenne basedon the express indemnity provision, againresulting in RLI’s payment of $10 million.11

To avoid this circuity, the court in Wal-Martapplied the vertical exhaustion doctrine andrelied on an express indemnity provision toshift the entire loss to the indemnitor by wayof its insurers.

A California Case

In California, the seminal case discussing thetreatment of express indemnity in a priority-of-coverage dispute is Rossmoor Sanitation,Inc. v. Pylon, Inc.12 Rossmoor engaged Pylonto construct a sewage pump station andrelated sewage lines, pursuant to a contractthat required Pylon to “indemnify Rossmooragainst all claims for damages arising out ofthe work.…”13 U.S. Fire Insurance Companyinsured Pylon as a named insured and Ross-moor as an additional insured. The InsuranceCompany of North America (INA) also in-sured Rossmoor as a named insured. Duringconstruction, a trench cave-in killed one Pylonemployee and injured another. The total lossto Rossmoor was $267,000. INA paid thedamages on behalf of its named insured,Rossmoor. The INA and U.S. Fire policiescontained nearly identical “other insurance”clauses stating that if the insured had otherinsurance available to respond to a coveredloss, a pro rata apportionment should bemade.

Rossmoor sought declaratory relief againstPylon and U.S. Fire for indemnity.14 The trialcourt found that INA was subrogated to theexpress indemnity rights of its insured,Rossmoor, that these rights could be exercised

against Pylon, and that therefore Pylon’sinsurer, U.S. Fire, was responsible for theloss.15 The California Supreme Court affirmedthe judgment in favor of Rossmoor andINA.16 As a preliminary matter, the Rossmoorcourt found the loss was sufficient to triggerexpress indemnity pursuant to the contract.17

Finding the agreement to contain a generalindemnity provision, the court reasoned thatindemnity may only operate if the indemni-tee or Rossmoor is not actively negligent.18

The trial court’s ruling that Rossmoor was “atmost passively negligent” was unquestioned.19

Next, the court explained why it disagreedwith the contention that “other insurance”clauses work to apportion the loss betweenINA and U.S. Fire. First, “to apportion theloss in this case pursuant to the other insur-ance clauses would effectively negate theindemnity agreement and impose liability onINA when Rossmoor bargained with Pylonto avoid that very result as a part of the con-sideration for the construction agreement.”20

Second, the court reasoned that INA andU.S. Fire calculated policy premiums know-ing that they each may be called upon torespond to a loss such as the one at issueand that neither insurer knew of the other’spotential for responding to the loss at thetime policy premiums were calculated. Infact, the court found the availability of cov-erage from INA to be a “mere fortuitous cir-cumstance” for U.S. Fire. Third, the court dis-tinguished its decision by concluding thatexpress indemnity trumps “other insurance”language because the former is the result ofbargained-for rights and obligations betweenthe parties, whereas there is no evidence thateither INA or U.S. Fire knew there would beother insurance available when they issuedtheir respective policies.21

The Rossmoor court applied basic con-tract interpretation principles to the insurancepolicies and the contract. The court’s inquiryinto the information known to the insurers atthe time of calculating policy premiums fore-shadows a long line of case law that usesthis inquiry as a guidepost in resolving pri-ority-of-coverage disputes. However, subse-quent cases have distinguished Rossmoor.

Reliance National Indemnity

In Reliance National Indemnity Company v.General Star Indemnity Company,22 theCalifornia Court of Appeal explored theboundaries of Rossmoor regarding layers ofcoverage. Don Law Company and Lolla-palooza Joint Venture were organizers andsponsors, respectively, of a rock music festi-val.23 The sponsorship agreement between theparties contained an express indemnity pro-vision in favor of Lollapalooza. In a $1 mil-lion primary policy, Gulf Insurance Companyinsured Don Law as a named insured and




MCLE Test No. 240The Los Angeles County Bar Association certifies that this activity has been approved for MinimumContinuing Legal Education credit by the State Bar of California in the amount of 1 hour.

MCLE Answer Sheet #240COVER ME

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ANSWERS

Mark your answers to the test by checking theappropriate boxes below. Each question has onlyone answer.

1. ■■ True ■■ False











12. ■■ A ■■ B




16. ■■ A ■■ B ■■ C ■■ D





1. Under the horizontal exhaustion doctrine, all primaryand excess policies for a given period or party mustexhaust before the primary or excess policies of anotherperiod or party may trigger.

True.False.

2. Rossmoor Sanitation, Inc. v. Pylon, Inc., is often citedfor the concept that express indemnity trumps “otherinsurance” clauses because express indemnity is theresult of bargained-for rights and obligations betweenparties.

True.False.

3. Reliance National Indemnity Company v. GeneralStair Indemnity Company explores a complex priority-of-coverage dispute arising from a crowd surfing injury ata rock concert.

True.False.

4. Subrogation is the right of an insurer to recover froma party primarily responsible for a liability by steppinginto the shoes of an insured.

True.False.

5. Subrogation is a form of relief only available betweeninsurers who share the same layer of coverage as to thesame insured.

True.False.

6. According to Hartford Casualty Insurance Company v.Mt. Hawley Insurance Company, even if the factual pred-icates necessary to operate express indemnity are notestablished by a trial court, a reviewing court may userecord evidence to establish those predicates.

True.False.

7. In Travelers v. American Equity Insurance Company, thecourt resolved the coverage dispute by looking only to theinsurance policies and by refusing to enforce the expressindemnity provisions at issue.

True.False.

8. Hartford Casualty Insurance Company v. Mt. HawleyInsurance Company is the first California case to subsumethe reasoning of Wal-Mart Stores, Inc. v. RLI InsuranceCompany.

True.False.

9. Compared to an excess insurer, a primary insurercharges a higher premium for assuming a greater risk.

True.False.

10. In Continental Casualty Company v. St. Paul SurplusLines Insurance Company, the court expanded the appli-cation of express indemnity provisions, citing the priorityof established rules governing the application of pri-mary, as opposed to excess, coverage.

True.False.

11. In Wal-Mart Stores, Inc. v. RLI Insurance Company,the claim underlying the priority of coverage disputearose from the sale of deli meats.

True.False.

12. In California, the majority rule is:A. the horizontal exhaustion doctrine.B. the vertical exhaustion doctrine.

13. In Continental Casualty Company v. St. Paul SurplusLines Insurance Company, the insurance profiles of theparties were atypical because Continental had anumbrella policy rather than an excess policy.

True.False.

14. Insurers covering different risks, including differ-ent layers of coverage, must rely on subrogation.

True.False.

15. Factual determinations of the active or sole negligenceof a party are important in priority of coverage disputesbecause the operation of express indemnity may turn onthose determinations.

True.False.

16. In Travelers v. American Equity Insurance Company,the court labels the following as “bad public policy andclearly inconsistent with equitable considerations”:

A. Insurance with aggregate limits under $1million.B. Unenforceable express indemnity provisions.C. Requiring an insurer to present the operation ofan express indemnity provision by proving thatliability resulted from the sole negligence orwillful misconduct of its additional insured.D. Not accounting for the different risks assumedby primary, excess, and umbrella carriers whendeciding priority of coverage disputes.

17. The ability of a reviewing court to determine indem-nity rights of insured entities when a trial court has notmade the requisite findings of fact is significant in con-struction defect litigation because a vast majority ofdisputes are resolved well before a trial court may makeany findings of fact.

True.False.

18. In Hartford Casualty Insurance Company v. Mt.Hawley Insurance Company, the court cites with approvalthe proposition of Travelers v. American Equity InsuranceCompany that express indemnity between two insuredscannot be adjudged unless those insureds are partiesto the priority of coverage action.

True.False.

19. In Wal-Mart Stores, Inc. v. RLI Insurance Company,the court applied the vertical exhaustion doctrine toavoid circuity of litigation.

True.False.

20. The reasoning of Rossmoor Sanitation, Inc. v. Pylon,Inc., applies to priority-of-coverage disputes between twoprimary insurers but not between primary and excessinsurers.

True.False.


Lollapalooza as an additional insured pur-suant to the sponsorship agreement.24 GeneralStar Indemnity Company also insured bothDon Law as a named insured and Lolla-palooza as an additional insured with a $10million excess policy. Reliance NationalIndemnity Company insured Don Law as anamed insured with a $1 million primarypolicy and a $1 million excess policy.25

A crowd surfing personal injury gener-ated a loss of $2,142,858.26 Reliance and

Gulf paid $1 million each under their respec-tive primary policies. Reliance and GeneralStar each paid $71,429 under their respectiveexcess policies. Reliance sought declaratoryrelief against Gulf and General Star that it wassubrogated to the express indemnity rights ofits insured, Lollapalooza, and therefore didnot have a duty to indemnify its insured untilboth Gulf and General Star paid their com-bined policy limits of $11 million. In turn,General Star sought declaratory relief againstReliance that General Star’s duty to indem-nify did not arise until the Gulf and Relianceprimary policies had exhausted.27 The trialcourt found in favor of General Star anddenied the relief sought by Reliance.28 Thecourt of appeal affirmed the trial court’s judg-ment, refusing to enforce the express indem-nity provision and relying on the horizontalexhaustion doctrine. The Reliance court’sholding turns on the difference between pri-mary and excess coverage. The formerattaches immediately upon the occurrencegiving rise to liability, while the latter attachesonly after a predetermined amount of primarycoverage has exhausted.29

The Reliance court also distinguished con-tribution and subrogation. Contribution is theright to recover from a coobligor, or onewho shares liability for a loss.30 Subrogationis the right to recover from a party primar-ily responsible for a liability by stepping intothe shoes of an insured.31 Therefore, “theduty to contribute applies to insurers thatshare the same level of obligation on the riskas to the same insured.”32 In other words,contribution is a form of relief only availablebetween insurers who share the same layer of

coverage as to the same insured. By contrast,insurers covering different risks, includingdifferent layers of coverage, must rely onsubrogation.33 Thus, while acknowledgingthat Reliance properly instituted its right ofsubrogation, the court refused to enforce thatright, citing “well-established principles ofinsurance coverage.”34 The Reliance courtdistinguished Rossmoor as a priority-of-cov-erage dispute between two primary insurersrather than a priority-of-coverage dispute

between primary and excess insurers.35

According to the Reliance court, expressindemnity cannot trump the well-establishedprinciple that a primary policy respondsbefore an excess policy, regardless of whichside of an indemnity provision an insuredfinds itself. Reliance thus highlights the dif-ferences between primary and excess insur-ers.36 A primary insurer charges a higher pre-mium for accepting a greater risk, while anexcess insurer charges a lower premium foraccepting a lesser risk.37 For this reason, theprimary policies of Reliance and Gulf wererequired to respond to the loss before GeneralStar’s excess policy did so. In Reliance, thecourt placed a limit on the operation ofexpress indemnity in a priority-of-coveragedispute as fashioned by Rossmoor.

Hartford Develops Rossmoor

Several years after Reliance, the SecondDistrict returned to the treatment of expressindemnity in a priority-of-coverage dispute.Hartford Casualty Insurance Company v.Mt. Hawley Insurance Company38 developsRossmoor and confronts Wal-Mart. InHartford, a general contractor, PCS, and asubcontractor, Valley Metal, entered into acontract with an express indemnity provi-sion in favor of PCS. A personal injury acci-dent on the construction site generated a lia-bility of $255,000, which Valley Metal’sinsurer, Hartford, paid. Hartford filed a con-tribution action against PCS’s insurer, Mt.Hawley, seeking 50 percent recovery.39 Thetrial court granted Hartford’s requested relief.The court of appeal reversed the judgment,however, enforcing the express indemnity

provision in the contract to shift the entire lossto the insurer of the indemnitor.40 Hartfordunsuccessfully relied on a decision by theFirst District, Travelers v. American EquityInsurance Company.41 In that case, the courtresolved the coverage dispute by consideringonly the insurance policies. The explanationof why the court did not apply Travelersestablishes Hartford as an important progenyof Rossmoor.

The Travelers court refused to apply the

express indemnity provision for three rea-sons. First, it was without sufficient evidenceto determine whether the provision may oper-ate.42 Second, only the insurers and not theinsureds were parties to the action. Third,reliance on the express indemnity provisionwould result in an insurer’s having to provethat its additional insured (the would-beindemnitee) was negligent.43

The Hartford court first turned to theissue of the factual predicates necessary tooperate the express indemnity provision. Thecontract between PCS and Valley Metal con-tained an exception to indemnity for liabilityresulting from the sole negligence or willfulmisconduct of the would-be indemnitee,PCS.44 The court found the express indemnityprovision applied because 1) neither the com-plaint nor Hartford alleged on appeal thatPCS engaged in willful misconduct, and 2)Mt. Hawley had established as an undis-puted fact in its summary judgment motionthat PCS was not solely negligent.45 Similarly,in Rossmoor, the court relied on the factualfinding of the trial court that the would-beindemnitee was “at most passively negli-gent,” thereby triggering the general indem-nity provision.46

However, even if the factual predicatesnecessary for the operation of an expressindemnity are not established by a trial court,a reviewing court may use the record to estab-lish those predicates, thereby eliminating theneed for a separate action between insuredsto determine indemnity rights.47 For example,the record evidence may be sufficient to adju-dicate the preliminary question of the negli-gence of a would-be indemnitee when liabil-


Hartford rejects the position of Travelers that express

indemnity between two insureds cannot be adjudged unless

those insureds are parties to the priority-of-coverage action.

This is because insurers may step into the shoes of their

insureds via subrogation.


ity results from the settlement of a claim.48

The ability of a reviewing court to determineindemnity rights of insureds when a trialcourt has not made the requisite findings offact is particularly significant in constructiondefect litigation, as a vast majority of disputesare resolved well before a trial court maymake any findings of fact. Hartford espousesthis position as a way to avoid a separateindemnity action between insureds. In dis-cussing judicial economy and circuity of litigation, Hartford makes a direct compar-ison to Wal-Mart. The Hartford court ob-served that in the pending indemnity actionbetween PCS and Valley Metal

PCS would almost certainly establishthat it was not the sole cause of theaccident, thereby requiring ValleyMetal to indemnify PCS. Mt. Hawleywould then be subrogated to PCS’sright to recover from Valley Metal theamount awarded to Hartford here. Inessence, Hartford’s recovery in thiscase would be returned to Mt. Hawleyin the next one.49

Hartford demonstrates that reliance onexpress indemnity cannot be a matter ofcourse in priority-of-coverage disputes. Theexpress indemnity issue must be addressed inlight of contractual and statutory exceptionsto its application.

Hartford rejects the position of Travelersthat express indemnity between two insuredscannot be adjudged unless those insureds areparties to the priority-of-coverage action.50

This is because insurers may step into theshoes of their insureds via subrogation.51

Even if insureds are not parties to a priorityof coverage action, insurers may use discov-ery to obtain the information necessary toadjudicate express indemnity rights.52

Hartford also addresses a peculiar cir-cumstance that results when a priority-of-coverage dispute arises involving insuredswho are parties to an express indemnityagreement and one party is an additionalinsured of the potential indemnitor.53 Forexample, PCS was an additional insured ofHartford and a purported indemnitee ofHartford’s named insured, Valley Metal.54

This arrangement placed Hartford in theawkward position of having to prevent oper-ation of the express indemnity provision byproving that liability resulted from the solenegligence or willful misconduct of PCS.Travelers labels this “bad public policy andclearly inconsistent with equitable consider-ations.”55

While expounding on the key tenets ofRossmoor, Hartford was the first Californiacase to subsume the reasoning of Wal-Mart.Hartford respects Reliance in that it recog-nizes that Rossmoor does not stand for theproposition that express indemnity always

trumps the horizontal exhaustion doctrine. Inother words, Hartford preserved the propo-sition in Reliance that express indemnity can-not upset principles of insurance prioritywhen a dispute involves insurers of differinglayers of coverage. Three years later a Cali-fornia court had an opportunity to respondto these issues.

The Limits of Rossmoor

In JPI Westcoast Construction, LP v. RJS &Associates, Inc.,56 the First District consid-ered Rossmoor and its progeny. JPI and RJSentered into a construction subcontract thatcontained an express indemnity provision infavor of the general contractor, JPI.57 Trans-continental Insurance Company insured JPIas a named insured via a $1 million pri-mary policy.58 Underwriters at Lloyds in-sured RJS as a named insured and JPI as anadditional insured, pursuant to the subcon-tract agreement, via a $1 million primarypolicy.59 Agricultural Excess and Surplusalso insured RJS as a named insured and JPIas an additional insured with a $9 millionumbrella policy.

A fatal construction accident generated aliability of $4.9 million.60 Lloyds paid $1million and Great American $3.9 million.Approximately 22.2 percent of these pay-ments were on behalf of each insurer’s addi-tional insured, JPI. Transcontinental did notmake any payment. JPI and Transcontinentalsought a declaration that by virtue of expressindemnity in the subcontract agreement,Great American must respond to the lossbefore Transcontinental.61 In turn, Great Am-erican sought recovery of the portion of set-tlement it had paid on behalf of JPI on theground that express indemnity “does nottrump the rule that as an excess carrier GreatAmerican’s obligation is not triggered until thelimits of the Transcontinental policy are ex-hausted.”62 After review of opposing motionsfor summary judgment, the trial court ruledin favor of Great American.63 The court ofappeal upheld the lower court’s ruling, extend-ing Reliance and rejecting the applicability ofRossmoor.

First, the court rejected Rossmoor’s ap-proach of shifting the entire loss to the indem-nitor and its insurers, instead concluding thatGreat American’s policy was excess underCalifornia law because it provided coverageonly after a predetermined amount of primarycoverage was exhausted.64 Great American’spolicy contained a schedule of insurance thathad to be exhausted before coverage couldtrigger.65 Unlike the contribution action inRossmoor, the facts of JPI were akin to thoseof Reliance, in which an excess insureradvanced a subrogation claim against a pri-mary carrier.66 Accordingly, as in Reliance, theexpress indemnity provision could not con-

travene the principle that a secondary policysuch as that of Great American may only becalled upon to respond to a loss after allapplicable primary insurance has been ex-hausted.67

Second, the court enforced the terms of theGreat American policy rendering it excess tothe Transcontinental policy. The schedule ofunderlying insurance in the Great Americanpolicy explicitly included not only the Lloydspolicy but also the applicable limits of anyother insurance providing coverage.68 As JPIwas an additional insured under the GreatAmerican policy, and as JPI’s Transcontinentalpolicy did provide coverage to JPI, that lat-ter policy qualified under the schedule. Thus,pursuant to the terms of the Great Americanpolicy, the Transcontinental policy neededto be exhausted prior to coverage under theGreat American policy.

Third, the court determined that “theequities favor the primary carrier, Transcon-tinental.”69 The court minimized Rossmoor’swarning that to not give breath to the expressindemnity provision would negate it. JPI didreceive the benefit of express indemnitybecause RJS’s insurer, Lloyds, absorbed aportion of the loss under its $1 million limit.Had the total loss been within the Lloydspolicy limit, Transcontinental would havebeen able to subrogate to its insured’s rightto express indemnity against RJS, and effec-tively Lloyds. Because the loss exceeded the$1 million limit of the Lloyds policy, Trans-continental’s subrogated right to expressindemnity became unavailable.

Interestingly, the court pointed out thathad JPI required RJS to procure insurancewith limits exceeding $1 million, the Trans-continental policy would not be called uponto respond to the loss.70 In holding that a fail-ure to enforce an express indemnity provisionin a priority-of-coverage dispute does notnegate the intent of the parties to that pro-vision, the JPI court turned Rossmoor on itshead. According to the JPI court, in light ofthe holdings in Rossmoor and Reliance,would-be indemnitees such as JPI could havecontracted to require greater limits of primaryinsurance from would-be indemnitors. Thesegreater limits would minimize the potential fora would-be indemnitee, or its insurers, toface liability. The JPI court thereby removesany suggestion that its decision fails to honorthe intent of the parties to the contract.

Contintental Returns to Reliance

In Continental Casulty Company v. St. PaulSurplus Lines Insurance Company,71 the U.S.District Court for the Eastern District ofCalifornia affirmed JPI in a complex prior-ity-of-coverage dispute. Tasq Technology,Inc., entered into a lease agreement for aforklift with the manufacturer, Crown Equip-



ment Corporation, which contained an express indemnity provision in favor ofCrown.72 St. Paul insured Crown as a namedinsured and Tasq as an additional insured, pur-suant to the lease agreement, with a $5 mil-lion primary policy.73 Continental insuredTasq as a named insured and Crown as anadditional insured, pursuant to the lease agree-ment, via a $1 million primary policy.Continental also insured Tasq as a namedinsured via a $25 million umbrella policy.74

Each party was therefore an additionalinsured on the other’s insurance policy, mak-ing the facts of this case especially compli-cated. Particularly curious is that the St. Paulpolicy that insured Crown also named Tasqas an additional insured, because the expressindemnity provision in the agreement betweenthe two insureds rendered Tasq an indemni-tor and Crown an indemnitee. Thus, theindemnitee’s primary policy named the indem-nitor as an additional insured.

After a forklift accident on Tasq’s property,Continental settled a wrongful death actionagainst both Crown and Tasq for $3.5 mil-lion, with $1 million from Crown’s primarypolicy and the remaining $2.5 million fromCrown’s umbrella policy.75 Continentalsought a declaration that with respect toCrown’s liability, its primary St. Paul policyhad to be exhausted prior to any obligationunder its umbrella policy. St. Paul sought adeclaration to the contrary, holding that theexpress indemnity provision shifted the entireloss to Tasq and its insurers.76 Siding withContinental, the court held “indemnificationunder the terms of the lease is a concept dis-tinct from the priority of coverage in thiscase, and the lease terms are not controllingin that regard.”77

First, the court established that, pursuantto the horizontal exhaustion doctrine, theSt. Paul policy was primary to the Continentalumbrella policy.78 The court refused to en-force St. Paul policy language that it may beapplied as excess insurance, characterizing itas an impermissible escape clause.79 Thecourt also cited to the “other insurance”clause in the St. Paul policy, which desig-nated it as “primary insurance.”80 Second, thecourt discussed why the express indemnityprovision did not affect the finding that theSt. Paul policy was primary to the Continentalumbrella policy. As in Reliance and JPI, theContinental court rejected the application ofRossmoor, distinguishing it as a priority-of-coverage dispute between two primary insur-ers and not between insurers affording dif-fering layers of coverage.81 In short, the courtrelied on Reliance: “[T] he terms of an indem-nity agreement cannot trump general rulesgoverning the application of primary, asopposed to excess, coverage.”82

The court did not address the operation

of the express indemnity provision because itwas immaterial to the priority-of-coveragedetermination. The court specifically acknowl-edged that St. Paul’s request for summaryadjudication of the legal effect of the provi-sion “goes beyond the scope of the presentaction.”83 Had the court’s finding that the St.Paul policy was primary to the Continentalumbrella policy been coupled with a deter-mination that the underlying wrongful deathaction was a liability properly triggering theexpress indemnity provision in favor ofCrown and against Tasq, then St. Paul wouldhave been able to initiate a cause of action forequitable subrogation against Tasq and, ineffect, its umbrella insurer, Continental, torecover the $1 million it had become oblig-ated to pay. Simply put, had the court deter-mined that the express indemnity provisionwas operable, St. Paul would have been ableto subrogate to the express indemnity rightsof its insured, Crown, and seek recovery ofany amounts it had become liable to pay toContinental. Instead, the court avoided thisquestion altogether.

Despite reasoning to the contrary, theContinental court could have decided theoperability of the express indemnity provision,particularly pursuant to Hartford. The Con-tinental court refused to decide the oper-ability question because “no determination ofthe relative fault for [the decedent’s death] asbetween Tasq and Crown has occurred,” and“[t]he parties to the lease agreement at issue[containing the subject provision]…are noteven parties to this litigation.”84 First, thecourt could have used record evidence toobtain the requisite findings of fact.85 Chieflyrelevant is the lower court’s order that “in allfuture motions and proceedings in this liti-gation, an adverse inference will be drawn inContinental’s favor on any factual dispute,claim, or defense that depends on proving ordisproving…Crown’s insistence that the set-tlement agreement exclude apportionmentof liability between Crown and Tasq.”86

Second, the court could have remandedthe matter to the trial court for determinationof the factual predicates necessary to operatethe express indemnity provision. In theremanded proceeding, St. Paul and Conti-nental could both have availed themselvesof discovery instruments.87 Thus, Crown andTasq do not need to be parties to an actionto determine one another’s express indemnityrights and obligations. Yet, in the remandedaction Continental may be obliged to estab-lish that its additional insured, Crown, wasnegligent so that the express indemnity pro-vision cannot operate. Conversely, in theremanded action, St. Paul may have to estab-lish that its named insured, Crown, was notnegligent in such a way as to prevent opera-tion of the express indemnity provision. How-

ever awkward, Hartford would term theestablishment of these evidentiary positionsto be of “practical necessity.”88 St. Paul didnot initiate a separate action for a determi-nation on the legal effect of the express indem-nity provision. Thus, the court’s failure tomake this determination, coupled with St.Paul’s failure to pursue one, made circuity oflitigation a nonissue.

Recommendations

The treatment of express indemnity in pri-ority of coverage disputes offers valuableinsight into practical ways to minimize lia-bility, particularly as an indemnitee such asa general contractor or developer riskingconstruction litigation. The potential solu-tions below are specific to general contrac-tors and developers but may be similarlyapplied to any relationship between partiesto an express indemnity agreement and insur-ers of those parties.

First, a general contractor must ensurethat its subcontractors obtain an endorse-ment on their excess policies calling forthose policies to provide primary and non-contributory coverage for their additionalinsureds as required by contract. As an addi-tional insured, a general contractor can thusrely on the express indemnity agreementand the subcontractors’ primary and excesspolicies to absorb a loss before the generalcontractor and its insurers are required to do so. The excess policy endorsement cou-pled with the express indemnity agreementprovides a strong illustration of the intention to contravene the horizontal exhaustiondoctrine.

Second, a general contractor must requireits subcontractors to obtain primary coveragewith per-occurrence limits higher than thestandard $1 million. This increases the poten-tial for a subcontractor’s primary policy torespond to an entire loss without implicatingexcess coverage. While this may be a suitablealternative to the excess policy recommen-dation above, in practicality, the higher pre-mium for this type of insurance may proveunfeasible. Subcontractors may either refuseto absorb the higher premium cost or insiston passing through at least a portion of it tothe general contractor.

Third, a general contractor must ensurethat both its insurers and those of its sub-contractors are on notice of any expressindemnity agreement before the policies areissued. This must be done at the underwrit-ing stage as a deliberate effort to have theinsurers acknowledge the existence of theexpress indemnity agreement, so that pre-miums may be calculated accordingly. Inaddressing priority-of-coverage disputes,every decision discussed above considerswhat the insurers knew when they calcu-




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lated premiums as relevant. For a generalcontractor, this option may have the effect oflowering its insurance premiums, while theopposite may hold true for subcontractors.Nevertheless, it is important to provide asmuch information as possible to the insurers,including the existence of an express indem-nity agreement, so that the subcontractor’sinsurers can be said to knowingly assume therisk transfer occasioned by the express indem-nity provision.

The circuity of litigation concern devel-oped in Wal-Mart is fact-specific and relianton the operation of the express indemnity pro-vision. As alluded in Hartford, such a provi-sion cannot operate automatically. Rather,available record evidence and statutory excep-tions need to be considered. Yet Wal-Mart,Rossmoor, and its progeny all bring to lightone common problem that does not respectjurisdictional boundaries: Risk transfer mayprove to be more difficult in application thanparties originally contemplate. Disparities inthe transfer of risk via additional insuredendorsement and via express indemnity agree-ment have the potential to create uncertaintywhen a claim arises. Consistency and uni-formity of intention in these risk transfermechanisms, as well as the coordinated effortsof an insured, insurer, counsel, risk manager,and broker at all stages, are necessary tominimize this uncertainty. ■

1 State Farm v. LiMauro, 65 N.Y. 2d 369, 372 (1985)(quoting Carriers Ins. Co. v. American Home AssuranceCo., 512 F. 2d 360, 362 (1975)).2 See, e.g., JPI Westcoast Constr., L.P. v. RJS & Assocs.,Inc., 156 Cal. App. 4th 1448, 1460 (2007). Primarycoverage may be triggered upon the occurrence thatgives rise to liability. By contrast, excess coverage lia-bility attaches only after a predetermined amount of pri-mary coverage has been exhausted.3 Community Redevelopment Agency v. Aetna Cas. &Sur. Co., 50 Cal. App. 4th 329, 339-40 (1996).4 Wal-Mart Stores, Inc. v. RLI Ins. Co., 292 F. 3d583 (8th Cir. 2002); American Indemnity Lloyds v.Travelers Prop. Cas. Ins. Co., 335 F. 3d 429 (5th Cir.2003).5 Wal-Mart, 292 F. 3d at 585.6 Id.7 Id. at 585-86.8 Id. at 594-95.9 Id at 587.10 Id.11 Id. at 593-94.12 Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal. 3d622 (1975). 13 Id. at 625-26.14 Id. at 626-7.15 Id. at 633-35.16 Id. at 635.17 Id. at 633.18 Id. at 629.19 Id. at 629-33.20 Id. at 634.21 Id.22 Reliance Nat’l Indem. Co. v. General Star Indem. Co.,72 Cal. App. 4th 1063 (1999).23 Id. at 1068.24 Id. at 1069.



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25 Id.26 Id. at 1071.27 Id.28 Id. at 1073.29 Id. at 1076 (internal citations omitted).30 Id. at 1079.31 Id.32 Id. at 1080.33 Id. at 1079.34 Id. at 1076.35 Id. at 1082-83.36 Id. at 1082.37 Id.38 Hartford Cas. Ins. Co. v. Mt. Hawley Ins. Co., 123Cal. App. 4th 278 (2004).39 Id. at 282-86.40 Id. at 282.41 Travelers v. American Equity Ins. Co., 93 Cal. App.4th 1142 (2001).42 Id. at 1157.43 Id.44 Hartford, 123 Cal. App. 4th at 282.45 Id. at 291-92.46 Rossmoor Sanitation, Inc. v. Pylon, Inc., 13 Cal. 3d622, 629 (1975). 47 Hartford, 123 Cal. App. 4th at 301-04.48 Id. at 303 (citing St. Paul Fire & Marine Ins. Co. v.American Int’l Spec. Lines Ins. Co., 365 F. 3d 263, 273-74 (2004)).49 Hartford, 123 Cal. App. 4th at 302.50 Id. at 303-04.51 Id.52 Id. at 303.53 Id. at 303-05.54 Id. at 282.55 Travelers v. American Equity Ins. Co., 93 Cal. App.4th 1142, 1157 (2001).56 JPI Westcoast Constr., LP v. RJS & Assocs., Inc., 156Cal. App. 4th 1448 (2007).57 Id. at 1451-52.58 Id. at 1452.59 Id. at 1452-53.60 Id. at 1454.61 Id. at 1455.62 Id. at 1456.63 Id. at 1456-57.64 Id. at 1460.65 Id. at 1453.66 Id. at 1460-63.67 Id. at 1462.68 Id. at 1463-64.69 Id. at 1464.70 Id.71 Continental Cas. Co. v. St. Paul Surplus Lines Ins.Co., 803 F. Supp. 2d 1113 (2011).72 Id. at 1117.73 Id. at 1116.74 Id.75 Id. at 1116.76 Id.77 Id. at 1118.78 Id. at 1120-21.79 Id. at 1120.80 Id.81 Id. at 1121; JPI Westcoast Constr., L.P. v. RJS &Assocs., Inc., 156 Cal. App. 4th 1448, 1460-63 (2007);Reliance Nat’l Indem. Co. v. General Star Indem. Co.,72 Cal. App. 4th 1063, 1082-83 (1999).82 Continental, 803 F. Supp. 2d at 1122.83 Id. at 1126.84 Id. at 1118, 1126.85 Hartford, 123 Cal. App. 4th at 301-04.86 Continental, 803 F. Supp. 2d at 1124.87 Hartford, 123 Cal. App. 4th at 30388 Id. at 304.


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SINCE Cotran v. Rollins Hudig Hall International, Inc.,1 was decidedin 1998, courts have continued to address the issue of the adequacyof workplace investigations and provided additional guidance on theproper way to conduct them, whether they concern wrongful termi-nation (as in Cotran) or discrimination and harassment claims. As aresult, attorneys offering employers advice or training on workplaceinvestigations should not only take heed of Cotran’s holding concerningnotice of the allegations and opportunity to respond but also whatother factors increase the likelihood that a court will find an inves-tigation adequate as a matter of law.

When a plaintiff alleges wrongful termination in breach of animplied contract to fire only for good cause and the employer raisesthe findings of a workplace investigation as the basis for that goodcause, the adequacy of the investigation becomes an issue at trial. Insuch cases, Cotran asks, “Was the factual basis on which the employerconcluded a dischargeable act had been committed reached hon-estly, after an appropriate investigation and for reasons that are notarbitrary or pretextual?”2 The Cotran court defined the term “goodcause” in the context of implied employment contracts as “fair andhonest reasons, regulated by good faith on the part of the employer,that are not trivial, arbitrary or capricious, unrelated to business needsor goals, or pretextual. A reasoned conclusion, in short, supported

by substantial evidence gathered through an adequate investigationthat includes notice of the claimed misconduct and a chance for theemployee to respond.”3 However, the Cotran court emphasized that“it would be imprudent to specify in detail the essentials of an ade-quate investigation. It is better, we believe, to adhere to the commonlaw’s incremental, case-by-case jurisprudence, adjusting the stan-dard as its sufficiency is tested in practice.”4

Soon after Cotran, Silva v. Lucky Stores, Inc.,5 provided guidanceconcerning the essentials of an adequate investigation. The courtcommended Lucky Stores on using an uninvolved human resourcesrepresentative who had been trained by in-house counsel to investi-gate the case.6 The court also commended: 1) promptly investigatingthe complaints,7 2) interviewing the complainant on the same eveningthe offensive actions allegedly occurred,8 3) memorializing inves-tigative findings on Lucky’s witness interview forms,9 4) askingimportant witnesses to provide their own written statements regard-ing relevant events, 5) asking open-ended, nonleading questions, 6)attempting to elicit facts instead of opinions or suppositions, 7)

The principal at Beth K. Whittenbury & Associates, a firm specializing inworkplace investigations and trainings, Beth K. Whittenbury is the author ofInvestigating the Workplace Harassment Claim.

InvestigatingAdequacy

Cotran, Silva, and subsequent cases offer considerable guidance for conducting

investigations that are likely to be upheld in a wrongful termination suit

by Beth K. Whittenbury

AM

AN

E KA

NEK

O


y



http://www.californianeutrals.org

maintaining confidentiality by conducting a number of interviews awayfrom the workplace or by telephone, 8) encouraging those inter-viewed to call the investigator or page him if they wanted to add any-thing further, 9) promptly notifying the accused of the charges againsthim and affording him an opportunity to present his side of thestory, 10) encouraging the accused to call the investigator with anyfurther thoughts and calling the accused the next day to provide moreinformation, 11) allowing the critical witnesses an opportunity to clar-ify, correct, or challenge information provided by other witnesses thatcontradicted their statements or that cast doubt on their credibility,10

12) giving the complainant an opportunity to comment on and rebutevidence contradictory to her allegations,11 and 13) addressing thecredibility of the parties and witnesses.12

Other courts have also lauded these practices, giving a good setof guidelines for investigators.13 Although the investigator in Silva didnot interview all possible witnesses, the court found that investiga-tors do not have to interview all relevant witnesses but rather thatinvestigations must be conducted “under the exigencies of the worka-day world and without benefit of the slow-moving machinery of a con-tested trial.”14

Courts have also articulated what they think constitutes an ade-quate investigation as a matter of law. In King v. United ParcelService,15 the court stated that because neutral personnel investigatedthe claims, eyewitnesses provided statements, and the plaintiff was givenan opportunity to explain what happened, the investigation was ade-quate as a matter of law.16 In Ghani v. Lockheed Martin Space SystemCompany17 the record showed that Lockheed investigated the incident,Ghani had a full and fair opportunity to explain his version of theevents, and he admitted the alleged wrongdoing. The court ruled thatthe investigation was adequate as a matter of law.18

Notice and Opportunity to Respond

Although investigations may be found adequate if investigators gavethe accused notice of the allegations and a chance to respond,19

which is the only specific criteria articulated in Cotran, severalunpublished cases have allowed exceptions to this general rule if cir-cumstances warrant.20 In Smith v. California Institute of Technology,for example, the court reasoned that because the Cotran court pur-posefully adopted a flexible approach, it left open the possibilitythat employers may not need to give the accused notice and anopportunity to respond in every case. The Smith court postulated sev-eral circumstances under which it may not be advisable to give theaccused notice and opportunity to respond, including cases involv-ing harassment of coemployees or situations in which the misconductis so clear that the investigator can reach accurate conclusions with-out speaking with the accused.21

This occurred in Urquhart v. Life Care Centers of America, Inc.The employee was accused of breach of confidentiality with respectto a patient’s medical condition and treatment. The circumstancesclearly showed that outside parties could not have learned the con-fidential information other than through the accused employee’slapse. The court allowed the jury to find good cause for the termi-nation even though the accused had not been given a chance to tellhis side of the story during the investigation that led to his termi-nation. The appellate court did not find error in this and let the ver-dict stand.22 Also, in Cerda v. McDonnell Douglas Corporation, theNinth Circuit found an employer justified in failing to inform theaccused employee of the identities of coemployees who madecharges of sexual harassment against him because the complainantsfeared retaliation by the accused.23

In a published opinion, a terminated employee of Costco arguedthat the investigation that led to his termination was inadequatebecause it failed to give him sufficient time to prepare his response.24

However, the court found that the plaintiff did have adequate time

to respond to the charges. In fact, he prepared and submitted two writ-ten responses to the charges before Costco made its terminationdecision. The plaintiff was also able to produce the piece of evidencethat he claimed he needed more time to obtain. Therefore, the courtfound that the plaintiff failed to raise a genuine issue of fact regard-ing the time allowed him to prepare his defense.25 Although Costcodid not interview all the employees whom the plaintiff requested tobe interviewed, the court found that, under the conditions of theworkaday world, Costco conducted an adequate investigation as amatter of law.26

Similarly, the plaintiff in Granillo v. Exide Technologies, Inc.,27

argued that he was terminated before all relevant witnesses were inter-viewed and before he could explain his side of the story. However,the court found that the plaintiff had received a 45-minute interviewduring the investigation and found that time sufficient for the plain-tiff to have a fair opportunity to present his position.28 The court alsofound that the investigators interviewed numerous witnesses, includ-ing the complainant, the accused, and other employees. Therefore, thecourt found no triable issues of fact with respect to the employer’s ter-mination of the plaintiff.29

Inadequate Investigations and the Cat’s Paw

While most cases involving adequacy of workplace investigationsuphold the investigations as adequate, a few have found investigationsinadequate.30 In Swenson v. Potter, for example, the Ninth Circuit heldthat “an investigation that is rigged to reach a predetermined con-clusion or otherwise conducted in bad faith will not satisfy theemployer’s remedial obligation.”31 This was illustrated in Collier v.Windsor Fire Protection District Board of Directors,32 in which aninvestigation was found to be inadequate because the fire chief dic-tated the outcome of the investigation, stating that he wanted bothparties to the inappropriate incident fired.33 Although the chiefrecused himself from the investigation, and the district’s generalcounsel hired a professional investigator to conduct the investigation,those who made the final termination decision did not fully utilize theinvestigator’s data. Instead, they selected facts from the investigationupon which to base their termination decision. The court found tri-able issues of fact as to whether the investigation was fair and con-ducted in good faith.34

A fairly recent U.S. Supreme Court decision also found an inves-tigation inadequate under the cat’s paw theory.35 In Staub v. ProctorHospital, which concerned wrongful termination and discrimina-tion, the court held that the plaintiff’s supervisor, in an attempt tofire him due to his military reserve obligations, placed a disciplinarynotice in his personnel file that referred to the plaintiff’s breakinga fabricated work rule.36 Later, during an investigation of a claimfiled by a coworker, the investigator relied on the prior disciplinarynotice in the personnel file without investigating whether that dis-cipline itself was legitimate. The lower court found that the inves-tigation could have been more robust since it failed to look intoStaub’s allegation that the disciplinary notice was fabricated. Thecourt nevertheless upheld the investigation as adequate. The SupremeCourt disagreed.37 In view of this decision, if an issue of prior ille-gal discipline is raised during an investigation, investigators shouldinvestigate that allegation or risk that their investigation will notbe upheld as adequate.

In another case that involved a wrongful termination and alle-gations of discrimination—Miller v. United Parcel Service, Inc.—thecourt upheld the investigation as adequate because the accused wasgiven notice of the charges and an opportunity to respond.38 Theplaintiff admitted that he was given a full and fair opportunity toexplain himself prior to his termination.39 Specifically, he testified inhis deposition that he was able to tell his side of the story before hewas terminated. The investigation, however, was questionable. The



court noted that the investigation was not done by experts and wasassigned in stages to different employees.40 Not all the investigatorswere disassociated with the accused, and they did not investigate theaccused’s training on company procedures, which was an issue.Furthermore, the investigation lacked thoroughness.41 The investi-gation did meet the articulated criteria of Cotran, however: noticeof the charges and an opportunity to respond. If not for that element,it seems likely that the investigation would have been ruled inade-quate. Additionally, the Ninth Circuit, in Fuller v. City of Oakland,a discriminatory harassment case that was decided before Cotran,stated that a jury could find an investigation inadequate.42 Theinvestigation file revealed delays in the investigation, a failure to meetwith or credit the testimony of wit-nesses supporting the plaintiff, anattempt to close the investigationwithout speaking to a crucial wit-ness, and a one-sided resolutionof disputes of fact.43

Recently, an investigation wasfound inadequate in a discrim-ination and harassment case. InTurley v. ISB Lacawanna LLC, anAfrican American worker in a steelplant in New York endured years of racist harassment.44 Coworkerscalled him a monkey, an ape, agorilla; they repeatedly called him a n*****, and “that f***ingn*****.”45 One coworker’s con-duct was particularly egregious. He confronted Turley, screaming at him, “you f***ing black b****,you f***ing black piece of sh**.”46

Using similar language, the co-worker also threatened Turley’s life. Turley was denied bathroombreaks; his time sheets were tam-pered with, and his car was often vandalized. One day, Turleyreturned to his car to find a monkey doll hung in effigy from his rearview mirror. The company’s supervisors investigated some of thefirst incidents but claimed they could get no adequate answers fromthe other employees about Turley’s problems.47 A private investiga-tor was also unable to reach conclusions.48 After the coworkerthreatened Turley’s life, however, the police were called.

The police asked for evidence, but employer representativesdeclined to provide the requested items, claiming a need for autho-rization from the company’s legal department, even though the com-pany had no separate legal department.49 The employee who threat-ened Turley’s life was suspended but allowed to make up the missedhours with overtime in the same week.50 The company may haveallowed this so that it could meet its orders.51 The jury awarded Turley$25,000,000,52 and the corporation and individual defendants (super-visors, the labor relations and security manager, the human resourcesmanager, and others) were held liable.53 The appellate court foundthe investigation to be feeble and perfunctory, stating that the jurycould reasonably have found the investigation to be inadequate, andupheld the jury’s assessment of liability.54

Good Investigations

In Cotran, the California Supreme Court appeared unwilling to com-pel a precise type of investigation as long as it is fair. Cotran’s gen-eral guidance, however, is that employees accused of wrongdoing forwhich they may be fired should be provided with notice of the allegedwrongdoing and an opportunity to respond. On the other hand,

Smith, Urquart, and Cerda offer circumstances under which employ-ers that skip these steps may nevertheless be found to have con-ducted an adequate investigation. For example, the misconduct mayclearly be attributed to the employee, or the complaining parties (asin cases involving charges of harassment) may fear retaliation fromthe accused.

Case law also provides guidance on the adequacy of the investi-gation. Neutral, trained investigators should conduct it; and it shouldnot be assigned at unfinished stages to different investigators. As shownin Turley, a code of silence among employees is no excuse for an inad-equate investigation. Following Swenson and Collier, the outcome ofthe investigation should not be predetermined. If the highest in com-

mand issues an edict to fire someone before the investigation is per-formed, the highest possible investigatory standards should apply inorder to overcome an impression of bias.

The accused may make allegations of bias—for example, the cat’spaw trick in Staub. These should be investigated. If the investigationrelies on facts provided by a biased supervisor, courts may deem thatthe employer delegated fact-finding to the supervisor. For this reason,investigations that involve prior records of discipline should be thor-ough enough to determine whether the prior relevant discipline waslegitimate.

Other items on the investigative checklist include interviewing per-cipient witnesses, those identified by the accused (within reason), wit-nesses identified by other witnesses, and those whose knowledgemay be expected to contribute to factual conclusions. Investigatorsdo not have to 1) interview every identified witness as long as enoughhave been interviewed to gain a clear and competent picture of whathappened,55 2) tell the accused who has spoken against him or heror what any particular person actually said,56 or 3) give the accusedas much time as he or she wants to respond but rather a reasonableamount of time. A court found as a matter of law that 45 minuteswas sufficient time for the accused to have a “fair opportunity to pre-sent his position.”57

Case law, however, is not the only guide for an investigator, whowill also need to consider the psychological effects of a workplaceinvestigation. The investigator should ask nonleading questionsthat attempt to elicit facts instead of opinions or suppositions.Depending on the circumstances, the investigator may maintain



confidentiality by conducting interviews awayfrom the workplace or by telephone. In-vestigators may ask important witnesses forwritten statements and memorialize findingson interview forms. Written statements areworth seeking if the request does not quell aparty’s willingness to talk directly with theinvestigator. Parties and witnesses may bereinterviewed to clarify facts as needed, andcritical witnesses may need an opportunity toclarify, correct, or challenge information.Before beginning the written report, theinvestigator should review pertinent files andforensic evidence. The report may properlyevaluate the credibility of the accused, com-plainant, and relevant witnesses.58

Cases since Cotran offer considerableguidance about what the courts accept as anadequate workplace investigation into em-ployee misconduct. The good investigativepractices described in court opinions such asSilva allow for more thorough and fair work-place investigations, and cases such as Turleyand Collier describe inadequate investiga-tions. Attorneys advising and training employ-ers and investigators can find considerableguidance in cases after Cotran and Silva forconducting investigations that are likely to beupheld in wrongful termination and dis-crimination cases. ■

1 Cotran v. Rollins Hudig Hall Int’l, Inc., 17 Cal. 4th93 (1998).2 Id. at 107.3 Id. at 108.4 Id.5 Silva v. Lucky Stores, Inc., 65 Cal. App. 4th 256(1998).6 Id. at 272.7 Id. at 265.8 Id.9 Id. at 272.10 Id.11 Id. at 270.12 Id. at 275.13 See, e.g., Urquart v. Life Care Ctrs. of Am., Inc., 2001Cal. App. Unpub. LEXIS 2413, at *4-6 (Cal. Ct. App.Oct. 23, 2001); Smith v. Cal. Inst. of Tech., 2003 Cal.App. Unpub. LEXIS 4842, at *5-6 (Cal. Ct. App. May16, 2003); Cerda v. McDonnell Douglas Corp., 205 F.3d 1350 (9th Cir. 1999); Jones v. Costco WholesaleCorp., 34 F. App’x 320, 322-23 (9th Cir. 2002); Millerv. United Parcel Serv., Inc., 2004 WL 1771571, at*13 (N.D. Cal. Aug. 6, 2004); King v. United ParcelServ., Inc., 152 Cal. App. 4th 426, 440 (2007); Ghaniv. Lockheed Martin Space Sys. Co., 2009 U.S. Dist.LEXIS 79343, at *24-29 (N.D. Cal. Sept. 2, 2009);Collier v. Windsor Fire Prot. Dist. Bd. of Dirs., 2011U.S. Dist. LEXIS 115649 (Oct. 6, 2011); Swenson v.Potter, 271 F. 3d 1184, 1193 (9th Cir. 2001); Granillov. Exide Techs., Inc., 24 Am. Disabilities Cas. (BNA)1371, 66-71 (C.D. Cal. May 20, 2011); Oberto v.California Inst. of Tech., 2012 Cal. App. Unpub.LEXIS 3708, at *3-4 (Cal. Ct. App. May 17, 2012);Turley v. ISB Lacawanna, LLC, 117 Fair Empl. Prac.Cas. (BNA) 309 (W.D. N.Y. 2013).14 Id. See also Jones, 34 F. App’x at 322 (Costco didnot contact everyone Jones listed, but the investigationwas adequate as a matter of law “under the exigenciesof the workaday world.”).



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15 King, 152 Cal. App. 4th at 440.16 Id.17 Ghani, 2009 U.S. Dist. LEXIS 79343, at *24-29.18 Id. at *26; See also Jones, 34 F. App’x at 322 (Joneshad notice of the charges and an opportunity torespond. Enough witnesses were interviewed to drawconclusions; the investigation was adequate as a mat-ter of law.).19 See Miller v. United Parcel Serv., Inc., No. C 03-2405,2004 WL 1771571, at *13 (N.D. Cal. Aug. 6, 2004);King, 152 Cal. App. 4th at 440; Ghani, 2009 U.S.Dist. LEXIS 79343, at *24-29.20 Urquart v. Life Care Ctrs. of Am. Inc., 2001 Cal.App. Unpub. LEXIS 2413, at *4-6 (Cal. Ct. App. Oct.23, 2001); Smith v. California Inst. of Tech., 2003 Cal.App. Unpub. LEXIS 4842, at *5-6 (Cal. Ct. App. May16, 2003); Cerda v. McDonnell Douglas Corp., 205 F.3d 1350 (9th Cir. 1999).21 Smith, 2003 Cal. App. Unpub. LEXIS 4842, at *5-6.22 Urquart, 2001 Cal. App. Unpub. LEXIS 2413, at *4-6.23 Cerda, 205 F. 3d 1350.24 Jones v. Costco Wholesale Corp., 34 F. App’x 320,322-23 (9th Cir. 2002).25 Id. at 322-23.26 Id. at 322.27 Granillo v. Exide Techs., Inc., 24 Am. DisabilitiesCas. (BNA) 1371, 66-71 (C.D. Cal. May 20, 2011)28 Id. at 70-71.29 Id. at 71.30 See, e.g., Collier v. Windsor Fire Prot. Dist. Bd. ofDirs., 2001 U.S. Dist. LEXIS 115649 (Oct 6, 2011);Turley v. ISB Lacawanna, LLC, 117 Fair Empl. Prac.Cas. (BNA) 309 (2013).31 Swenson v. Potter, 271 F. 3d 1184, 1193 (2001).32 Collier, 2001 U.S. Dist. LEXIS 115649.33 Id. at *5.34 Id. at *33.35 See, e.g., definition of the cat’s paw theory athttp://www.lexology.com.36 Staub v. Proctor Hosp., 131 S. Ct. 179 (2011).37 Id. at 1193-94.38 Miller v. United Parcel Serv., Inc., No. C 03-2405,2004 U.S. Dist. LEXIS 15809, at *26, 39 (N.D. Cal.Aug. 6, 2004).39 Id. at *26.40 Id. at *7-9.41 Id.42 Cotran v. Rollins Hudig Hall Int’l, Inc., 17 Cal. 4th93 (1998); Fuller v. City of Oakland, 46 F. 3d 1522(1995).43 Fuller, 46 F. 3d at 1535.44 Turley v. ISB Lacawanna LLC, 960 F. Supp. 2d425 (2013).45 Id. at 433-34.46 Id.47 Id. at 435.48 Id.49 Id. at 438.50 Id. at 441-42.51 Id. at 443.52 Id. at 435.53 Id.54 Id. at 441-43.55 See, e.g., Silva v. Lucky Stores, Inc., 65 Cal. App. 4th275 (1998); Jones v. Costco Wholesale Corp., 34 F.App’x 320, 322 (9th Cir. 2002).56 Jones, 34 F. App’x at 322.57 Granillo v. Exide Techs., Inc, 24 Am. Disabilities Cas.(BNA) 1371, 70-71 (C.D. Cal. May 20, 2011).58 See generally, e.g., Patricia C. Perez, WorkplaceInvestigations, in 16A ADVISING CALIFORNIA EMPLOYERS

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15490 Ventura Boulevard, Suite 300, Sherman Oaks,CA 91403, (818) 981-4226, fax (818) 981-4278, 4 ParkPlaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax(949) 219-9095, e-mail: [email protected]. Web site:www.wzwlh.com. Contact Barbara Luna. Expert wit-ness testimony for complex litigation involving damageanalyses of lost profits, unjust enrichment, reasonableroyalties, lost earnings, lost value of business, forensicaccounting, fraud investigation, investigative analysis ofliability, and marital dissolution, and tax planning andpreparation. Excellent communicators with extensivetestimony experience. Prior Big Four accountants. Spe-cialties include accounting, breach of contract, breach offiduciary duty, business interruption, business dissolu-tion, construction defects, delays, and cost overruns,fraud, insurance bad faith, intellectual property (includingtrademark, patent, and copyright infringement, and tradesecrets), malpractice, marital dissolution, personal injury,product liability, real estate, securities, tax planning andpreparation, IRS audit defense, tracing, unfair advertis-ing, unfair competition, valuation of businesses, andwrongful termination. See display ad on page 47.

ZIVETZ, SCHWARTZ & SALTSMAN, CPAS

11900 West Olympic Boulevard, Suite 650, Los Ange-les, CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web site: www.zsscpa.com. Contact Lester J.Schwartz, CPA/CFF, DABFE, DABFA, Michael D.Saltsman, CPA, MBA, JB Rizzo, CPA, ABV, CFF,David L. Bass, CPA, David Dichner, CPA, ABV,Sandy Green, CPA, Silva Hakobyan, CPA. Account-ing experts in forensic accounting, tax issues, businessvaluations, and appraisals, marital dissolutions, eminentdomain, insurance losses, business interruption, good-will, economic analysis, investigative auditing, loss ofearning, commercial damages, and lost profits. Expertwitness testimony preparation, settlement negotiations,and consultations. See display ad on page 49.

ADA/DISABILITY DISCRIMINATION

HAIGHT CONSULTING

1726 Palisades Drive, Pacific Palisades, CA 90272,(310) 454-2988, fax (310) 454-4516. Contact MarciaHaight, SPHR—CA. Human resources expert knowl-edgeable in both federal and California law. Twenty-fiveyears’ corporate human resources management experi-ence plus over 20 years as a Human Resources Compli-ance Consultant in California. Specializations includesexual harassment, ADA/disability discrimination, otherTitle VII and FEHA discrimination and harassment, retali-ation, 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 dis-crimination, harassment, and retaliation issues. Assesshuman resources policies and practices for soundness,for comparison to prevailing practices, and for compli-ance. Evaluate employer responsiveness to complaintsand effectiveness of employer investigations. Assistcounsel via preliminary case analysis, discovery strategy,examination of documents, and expert testimony.

HRM CONSULTING, INC.

2050 Gateway Place, Suite 100-177, San Jose, CA95110, (209)728-8905, fax (209) 728-8970, e-mail: [email protected]. Web site: www.hrmconsulting.com. Contact Beth B. De Lima,SPHR-CA. Expert witness Beth De Lima, has testifiedfor both plaintiff and defense in the following areas:human resources standards of care, employment ADAaccommodation, FEHA, FMLA, CFRA, ADA & EEOCviolations. Wrongful termination, performance manage-ment, discrimination, sexual harassment, exempt analy-sis, labor market assessment, and vocational evalua-tions. She holds national and California specific certifica–tion—Senior Professional in Human Resource (SPHR-

CA), certified mediator, and consulting since 1992.

APPRAISAL & VALUATION

BTI APPRAISAL

605 West Olympic Boulevard, Suite 820, Los Angeles,CA 90015, (213) 532-3800, fax (213) 532-3807, e-mail:[email protected]. Web site: www.btiappraisal.com.Contact Ben F. Tunnell III, Chairman. BTI Appraisalhas been providing litigation and appraisal services since1974 in the areas of real estate, machinery and equip-ment, personal property, and business valuation. Well-written and documented reports reduce litigation costsand speed dispute resolution. Our work has passed themost rigorous scrutiny of the IRS, the SEC, governmentcondemning agencies, state and federal courts. The col-lective experience of our nationally regarded profession-als can address projects of all sizes and locations.

FULCRUM INQUIRY

888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail:[email protected]. Web site: www.fulcrum.com.Contact David Nolte. Our professionals are experi-enced CPAs, MBAs, ASAs, CFAs, affiliated professors,and industry specialists. Our analysis and research com-bined with unique presentation techniques have resultedin an unequaled record of successful court cases andclient recoveries. Our expertise encompasses damagesanalysis, loss profit studies, business and intangibleasset valuations, fraud investigations, statistics, forensiceconomic analysis, royalty audits, strategic and marketassessments, competitive surveys, analysis of comput-erized data, injury and employment damages, and awide range of other financial advisory services.Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAsin accounting, finance, economics, and related subjects.See display ad on back cover.


1888 Century Park East, Suite 900, Los Angeles, CA90067, (310) 552-0960, fax (310) 557-3468, e-mail:[email protected]. Web site: www.gursey.com.Contact Stephan Wasserman. Gursey|Schneider isan accounting firm specializing in forensic accounting, lit-igation support services, business valuation, andappraisal services for a variety of purposes, includingmarital dissolution, gift and estate planning, eminentdomain, goodwill loss, business disputes, malpractice,tax matters, bankruptcy, damage and cost-profitassessments, insurance claims, and entertainmentindustry litigation. Gursey|Schneider has over 35 years ofexperience as expert witnesses in litigation support. Seedisplay ad on page 45.


12121 Wilshire Boulevard, Suite 700, Los Angeles, CA90025, (310) 576-1090, fax (310) 576-1080, e-mail:[email protected]. Web site: www.hargraveandhargrave.com. Contact Terry M. Har-grave, CPA/ABV/CFF, CFE. Forensic accounting andbusiness valuation services for family law and civil cases.Past chair of California Society of CPAs’ Family LawSection and business valuation instructor for CaliforniaCPA Education Foundation. Services include businessvaluations, income available for support, tracing sepa-rate property, litigation consulting, real estate litigation,mediation, fraud investigations, damage calculation, andother forensic accounting work.

HIGGINS, MARCUS & LOVETT, INC.

800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, (213) 617-7775, fax (213) 617-8372, e-mail:[email protected]. Contact Mark C. Higgins, ASA. The firm has over 30 years of litigation support andexpert testimony experience in matters involving busi-ness valuation, economic damages, intellectual property,loss of business goodwill, and lost profits. Areas of prac-tice include business disputes, eminent domain, bank-ruptcy, and corporate and marital dissolution. See display ad on page 55.


15303 Ventura Boulevard, Suite 1040, Sherman Oaks,CA 91403, (818) 995-1040, fax (818) 995-4124. Website: www.ketkcpa.com. Contact Michael J. Krycler.Litigation support, including forensic accounting, busi-



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L O C A L O F F I C EPro/Consul Inc.1945 Palo Verde Avenue, Suite 200Long Beach, CA 90815-3443(562) 799-0116 • Fax (562) 799-8821Hours of Operation: 6 a.m. - 6 [email protected] • ExpertInfo.com


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ness appraisals, family law accounting, business andprofessional valuations, damages, fraud investigations,and lost earnings. Krycler, Ervin, Taubman and Kamin-sky is a full-service accounting firm serving the legalcommunity for more than 20 years. See display ad onpage 40.

WARONZOF ASSOCIATES, INC.

400 Continental Boulevard, Sixth Floor, El Segundo, CA90245, (310) 322-7744, fax (424) 285-5380. Web site:www.waronzof.com. Contact Timothy R. Lowe, MAI,CRE. Waronzof provides real estate and land use litiga-tion support services including economic damages, lostprofits, financial feasibility, lease dispute, property value,enterprise value, partnership interest and closely-heldshare value, fair compensation, lender liability, and reor-ganization plan feasibility. Professional staff of five withadvanced degrees and training in real estate, finance,urban planning, and accounting. See display ad onpage 59.

ARCHITECTURE

A & E FORENSICS

2121 Montiel Road, San Marcos, CA 92069, (877) 839-7302, fax (760) 480-7477, e-mail: [email protected]. Web site: www.aeforensics.com. Contact SteveNorris, AIA, PE, GE, HG, CEG, CASp, LEED. Archi-tect, engineer, contractor—standard of care expert.Retained over 200 times, deposed over 100 times, andtestified in trial over 20 times. Waterproofing, water intru-sion, building envelope, zoning setbacks, concrete perfor-mance, path of travel, structural analysis, earthquake-firedamage, and plan analysis. Landslides, retaining wall fail-ure, settlement, flooding, grading, septic, expansive soils,mud flows, pavement distress, ground water evaluation,and slope analysis. Cost estimates, construction manage-ment, delay analysis, and contracts. Serving all California,Hawaii, and Oklahoma. See display ad on page 46.

KPA ASSOCIATES, INC.

3033 Fifth Avenue, Suite 100, San Diego, CA 92103,(619) 725-0980, fax (619) 725-0988, e-mail: [email protected]. Web site: www.kpaa.com. Contact RonTov, principal architect, senior vice president. KPAAssociates, Inc. provides architectural expert witnessand forensic consulting services for construction defectlitigation and construction related disputes, includingaccessibility (ADA), personal injury and green building.Since 1985, our firm’s principal architects have beencrafting innovative and cost-effective solutions on behalfof our clients including developers, owners, general con-tractors, subcontractors, architects, and their attorneysand insurance carriers. We are licensed in California, Ari-zona, Colorado, Nevada, Hawaii, New Mexico, and NewYork. See display ad on page 42.

AVIATION

AEROPACIFIC CONSULTING

195 N. Argyle Court, Reno, NV 89511, (310) 503-4350,fax (815) 550-8766, e-mail: [email protected]. Web site: www.aeropacific.net. Contact DougMoss. Aircraft accident investigation, causal analysis,determination of pilot error, failure analysis, designdefect, etc. Qualifications BS and MS in engineering,engineering test pilot, airline pilot, aircraft owner, instruc-tor pilot, CF-II, and ME-I.

BANKING


18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: [email protected]. Web site: www.mcsassociates.com. Contact Norman Katz, managing partner.Nationally recognized banking, finance, insurance, andreal estate consulting group (established 1973). Experi-enced litigation consultants/experts include seniorbankers, lenders, consultants, economists, accountants,insurance underwriters/brokers. Specialties include:lending customs, practices, policies, in all types of lend-ing (real estate, subprime, business/commercial, con-struction, consumer/credit card), banking operations/administration, trusts and investments, economic analy-sis and valuations/damages assessment, insuranceclaims, coverages and bad faith, real estate brokerage,appraisal, escrow, and title insurance.

BANKRUPTCY

FULCRUM INQUIRY

888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail:[email protected]. Web site: www.fulcrum.com.Contact David Nolte. Our professionals are experi-enced CPAs, MBAs, ASAs, CFAs, affiliated professors,and industry specialists. Our analysis and research com-bined with unique presentation techniques have resultedin an unequaled record of successful court cases andclient recoveries. Our expertise encompasses damagesanalysis, loss profit studies, business and intangibleasset valuations, fraud investigations, statistics, forensiceconomic analysis, royalty audits, strategic and marketassessments, competitive surveys, analysis of comput-erized data, injury and employment damages, and awide range of other financial advisory services. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAs inaccounting, finance, economics, and related subjects.See display ad on back cover.

BANKRUPTCY/TAX



BIOMECHANICS/RECONSTRUCTION/HUMAN FACTORS

INSTITUTE OF RISK & SAFETY ANALYSESKENNETH A. SOLOMON, PHD, PE, POST PHCHIEF SCIENTIST

5324 Canoga Avenue, Woodland Hills, CA 91364, (818)348-1133, fax (818) 348-4484, e-mail: [email protected]. Web site: www.irsa.us. Specialized staff,broad range of consulting and expert testimony, 42years of courtroom experience. Accident reconstruction,biomechanics, human factors, safety, accident preven-tion, adequacy of warnings, computer animation andsimulations, construction defect, criminal defense, crimi-nal prosecution, premises, product integrity, product lia-bility, product testing, warnings, and lost income calcula-tions. Auto, bicycle, bus, chair, elevator, escalator,forklift, gate, ladder, machinery, motorcycle, press,recreational equipment, rollercoaster, slip/trip and fall,stairs, swimming pool, and truck. Litigation and claims,defense/plaintiff, educational seminars, and mediationand arbitration services.

BUSINESS

FORENSISGROUPEXPERT WITNESS SERVICES SINCE 1991

301 North Lake Avenue, Suite 420, Pasadena, CA91101, (800) 555-5422, (626) 795-5000, fax: (626) 795-1950, email: [email protected]. Web site:www.forensisgroup.com. Contact Mercy Steenwyk.10,000 cases ForensisGroup has provided experts.8,000 clients have retained experts from us. We respondin one hour or less. ForensisGroup is an expert witnessservices and consulting company providing experts,expert witnesses, and consultants to law firms, insur-ance companies, and other public and private firms inthousands of disciplines: construction, engineering, busi-ness, accounting, intellectual property, computers, IT,medical, real estate, insurance, product liability,premises liability, safety, and others, including experts incomplex and hard-to-find disciplines. Let us give you thetechnical advantage and competitive edge in your cases.Referrals, customized searches, and initial phone con-sultations are free. See display ad on page 41.

ROBERT C. ROSEN

Citigroup Center, 444 South Flower Street, 30th Floor,Los Angeles, CA 90071, (213) 362-1000, fax (213) 362-1001, e-mail: [email protected]. Web site:www.rosen-law.com. Specializing in securities law, fed-eral securities law enforcement, securities arbitration,and international securities, insider trading, NYSE,AMEX, FINRA, DOC disciplinary proceedings, broker-dealer, investment company and investment advisermatters, liability under federal and state securities laws,public and private offerings, Internet securities, and lawfirm liability. AV rated. Former chair, LACBA Businessand Corporations Law Section. LLM, Harvard LawSchool. Forty years practicing securities law, 12 yearswith the U.S. Securities and Exchange Commission,Washington, DC. Published author/editor of securitiesregulations, including multivolume treatises. See displayad on page 61.

BUSINESS APPRAISAL/VALUATION



BRIAN LEWIS & COMPANY

10900 Wilshire Boulevard, Suite 610, Los Angeles, CA90024, (310) 475-5676, fax (310) 475-5268, e-mail:[email protected]. Contact Brian Lewis,CPA, CVA. Forensic accounting, business valuations,cash spendable reports, estate, trust, and income taxservices.

CBIZ & MAYER HOFFMAN MCCANN PC

10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected]. Contact CoralHansen. Web site: www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer Hoffman McCann PC specializes infraud investigations, forensic accounting, business litiga-tion, commercial damage and lost profits computations,business valuation and appraisal, transactional due dili-gence, family limited partnerships, business interruption,and family law. We provide experienced expert testi-mony and tax controversy representation.

CMM, LLP

5700 Canoga Avenue, Suite 300, Woodland Hills, CA91367, (818) 986-5070, fax (818) 986-5034, e-mail:[email protected]. Web site: www.cmmcpas.com. Contact Scott Mowrey. Specialties: consul-tants who provide extensive experience, litigation sup-port, and expert testimony regarding forensic accoun-tants, fraud investigations, economic damages,business valuations, family law, bankruptcy, and reorga-nization. Degrees/licenses: CPAs, CFEs, MBAs. Seedisplay ad on page 46.


633 West Fifth Street, 31st Floor, Los Angeles, CA90071-2005, (213) 553-2500, fax (213) 553-2699. Web site: www.cornerstone.com. Contact George G.Strong, Jr., Richard W. Dalbeck, Katie J. Galley,Elaine Harwood, Carlyn Irwin, Erin McGlogan, orAshish Pradhan. For more than 25 years, CornerstoneResearch staff have provided economic and financialanalysis in all phases of commercial litigation and regula-tory proceedings. We work with a broad network of tes-tifying experts, including prominent faculty and industrypractitioners, in a distinctive collaboration. The expertswith whom we work bring the specialized expertiserequired to meet the demands of each assignment. Ourareas of specialization include intellectual property,



antitrust, securities, entertainment, real estate, financialinstitutions, and general business litigation.

FULCRUM INQUIRY



1888 Century Park East, Suite 900, Los Angeles, CA90067, (310) 552-0960, fax (310) 557-3468, e-mail:Web site: www.gursey.com. Contact StephanWasserman. Gursey|Schneider is an accounting firmspecializing in forensic accounting, litigation support ser-vices, business valuation, and appraisal services for avariety of purposes, including marital dissolution, gift andestate planning, eminent domain, goodwill loss, businessdisputes, malpractice, tax matters, bankruptcy, damageand cost-profit assessments, insurance claims, andentertainment industry litigation. Gursey|Schneider hasover 35 years of experience as expert witnesses in litiga-tion support. See display ad on this page.

HAYNIE & COMPANY, CPAS

4910 Campus Drive, Newport Beach, CA 92660-2119,(949) 724-1880, fax (949) 724-1889, e-mail: [email protected]. Web site: www.hayniecpa.com. Con-tact Steven C. Gabrielson. Consulting and expert wit-

ness testimony in a variety of practice areas: commercialdamages, ownership disputes, economic analysis, busi-ness valuation, lost profits analysis, fraud/forensic inves-tigations, taxation, personal injury, wrongful termination,and professional liability.


800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, (213) 617-7775, fax (213) 617-8372, e-mail:[email protected]. Contact Mark C. Higgins, ASA. Thefirm has over 30 years of litigation support and experttestimony experience in matters involving business valu-ation, economic damages, intellectual property, loss ofbusiness goodwill, and lost profits. Areas of practiceinclude business disputes, eminent domain, bankruptcy,and corporate and marital dissolution. See display adon page 55.


660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: [email protected]. Web site:www.schulzehaynes.com. Contact Karl J. Schulze,president. Specialties: forensic business analysis andaccounting, lost profits, economic damages, expert tes-timony, discovery assistance, business valuations, cor-porate recovery, financial analysis, and modeling. Mem-ber of major professional organizations, experienceacross a broad spectrum of industries and businessissues. Degrees/licenses: CPA, CVA, CFE, ABV, PhD-Economics. See display ad on page 61.


633 West 5th Street, Suite 2800, Los Angeles, CA90071-2039, (213) 624-8150, fax (213) 223-2304, e-mail: [email protected]. Web site: www.thomasneches.com. Contact Thomas M. Neches,CPA, ABV, CVA, CFE, CFF. Accounting, financial,business valuation, and statistical analyses to assistattorneys in litigation. Expert testimony in state and fed-eral courts. Cases: antitrust, breach of contract, fraud,intellectual property, lost business value, lost profits,wrongful death, and wrongful termination. Industries:

banking, construction, entertainment, insurance, manu-facturing, retail, securities, and wholesale. Credentials:certified public accountant/accredited in business valua-tion, certified valuation analyst, certified fraud examinerand certified in financial forensics. Education: BA (Math-ematics) UC San Diego, MS (Operations Research)UCLA. Teaching: adjunct professor, Loyola Law School.See display ad on page 53.




11900 West Olympic Boulevard, Suite 650, Los Ange-les, CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web site: www.zsscpa.com. Contact Lester J.Schwartz, CPA/CFF, DABFE, DABFA, Michael D.Saltsman, CPA, MBA, JB Rizzo, CPA, ABV, CFF,David L. Bass, CPA, David Dichner, CPA, ABV,Sandy Green, CPA, Silva Hakobyan, CPA. Account-ing experts in forensic accounting, tax issues, business



http://www.gursey.com

valuations, and appraisals, marital dissolutions, eminentdomain, insurance losses, business interruption, good-will, economic analysis, investigative auditing, loss ofearning, commercial damages, and lost profits. Expertwitness testimony preparation, settlement negotiations,and consultations. See display ad on page 49.

CHEMISTRY

CHEMICAL ACCIDENT RECONSTRUCTIONSERVICES, INC.

9121 East Tanque Verde Road, Suite 105, Tucson, AZ85749, (800) 645-3369, e-mail: [email protected] site: www.chemaxx.com. Contact Dr. MichaelFox. Comprehensive chemical accident investigation—specializing in complex industrial chemical accidents andchemical related consumer product injuries, chemicalfires and explosions, chemical labeling, chemical pack-aging, handling and shipping, burns, warnings, labels,MSDSs, disposal, safety, EPA, OSHA, DOT, propane,natural gas, hydrogen, flammable liquids, hazardouschemicals, aerosols (hairspray, spray paint, refrigerants).DOT certified (hazardous materials shipment). Certifiedfire and explosion investigator, OSHA process hazardanalysis team leader. PhD physical chemistry. Extensiveexperience in metallurgy, corrosion, and failure analysis.

CIVIL LITIGATION


1888 Century Park East, Suite 900, Los Angeles, CA90067, (310) 552-0960, fax (310) 557-3468, e-mail:[email protected]. Web site: www.gursey.com. ContactGary Krausz. Gursey|Schneider specializes in forensicaccounting and litigation support services in the areas ofcivil litigation, business disputes, bankruptcy, damageand cost-profit insurance claims, court accountings,fraud investigations, accounting malpractice, intellectualproperty, construction, government accounting, andentertainment litigation. Gursey|Schneider has over 35years of experience as expert witnesses in accountingrelated matters. See display ad on page 45.

COMPOSITE & FIBERGLASS MATERIALS

KARS’ ADVANCED MATERIALS, INC.

Testing and Research Labs, 2528 West WoodlandDrive, Anaheim, CA 92801-2636, (714) 527-7100, fax(714) 527-7169, e-mail: [email protected]. Web site:www.karslab.com. Contact Dr. Ramesh Kar, Dr.Naresh Kar, Dr. Nikhil Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engineerswith 30+ years in metallurgical/forensic/structural/mechanical failure analysis. Experienced with automo-tive, bicycles, tires, fire, paint, plumbing, corrosion, andstructural failures. We work on both plaintiff and defen-dant cases. Complete in-house capabilities for tests.Extensive deposition and courtroom experience (civil andcriminal investigations). Principals are Fellows of Ameri-can Society for Metals and Fellows, American College ofForensic Examiners. See display ad on page 59.

COMPUTER FORENSICS

DATACHASERS, INC.

P.O. Box 2861, Riverside, CA 92516-2861, (877)DataExam, (877) 328-2392, (951) 780-7892, e-mail:[email protected]. Web site: www.DataChasers.com. E-Discovery: Full e-discovery services; you give usthe mountain, we give you the mole hill: Tiff production,de-duplication, redaction, Bates-stamped data, andelectronically stored information (ESI) production. Com-puter forensic: full forensic computer lab. Recoveringdeleted text files (documents), graphics (pictures), datecodes on all files, e-mail, and tracing Internet activity.Intellectual property cases, family law, employment law,probate resolution, asset verification, criminal law (prose-cution or defense), etc. Litigation support, trial prepara-tion, experienced expert witnesses, and professionalcourtroom displays. See display ad on page 49.

FULCRUM INQUIRY

888 South Figueroa Street, Suite 2000, Los Angeles, CA 90017, (213) 787-4100, fax (213) 891-1300, e-mail:[email protected]. Web site: www.fulcrum.com.Contact David Nolte. Our professionals are experi-


mcgladrey.com

Contact Patrick Chylinski at [email protected]

Extensive experience in the areas of damages, lost profits, and forensic analysis as theyrelate to contract, post-closing, real estate, and fee disputes. Our experts have experiencetestifying at deposition, arbitration, and at trial in state and federal courts.

Business and commercial litigation • Forensic analysis • Fraud investigations •Contract compliance • Royalty inspections

Litigation consulting and financial forensics practice focusing on:

515 South Flower Street41st FloorLos Angeles, California 90071

A & E FORENSICS Steven B. Norris, AIA, PE, GE, CEG, GBC, CASp 2121 Mon�el Road San Marcos, CA 92069 (877) 839-7302

■ ARCHITECTURE CONSTRUCTION ADA

GEOTECHNICAL ENGINEERING

CIVIL ENGINEERING

STRUCTURAL ENGINEERING

www.aeforensics.com

■ ■

■ ■

■


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enced CPAs, MBAs, ASAs, CFAs, affiliated professors,and industry specialists. Our analysis and research com-bined with unique presentation techniques have resultedin an unequaled record of successful court cases andclient recoveries. Our expertise encompasses damagesanalysis, loss profit studies, business and intangibleasset valuations, fraud investigations, statistics, forensiceconomic analysis, royalty audits, strategic and marketassessments, competitive surveys, analysis of comput-erized data, injury and employment damages, and awide range of other financial advisory services.Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAsin accounting, finance, economics, and related subjects.See display ad on back cover.

SETEC INVESTIGATIONS

8391 Beverly Boulevard, Suite 167, Los Angeles, CA90036, (800) 748-5440, fax (323) 939-5481, e-mail:[email protected]. Web site: www.setecinvestigations.com. Contact Todd Stefan. SetecInvestigations offers unparalleled expertise in computerforensics and enterprise investigations providing person-alized, case-specific forensic analysis and litigation sup-port services for law firms and corporations. SetecInvestigations possesses the necessary combination oftechnical expertise, understanding of the legal system,and specialized tools and processes enabling the dis-covery, collection, investigation, and production of elec-tronic information for investigating and handling com-puter-related crimes or misuse. Our expertise includescomputer forensics, electronic discovery, litigation sup-port, and expert witness testimony.

COMPUTERS/INFORMATION SCIENCES

COSGROVE COMPUTER SYSTEMS, INC.

7411 Earldom Avenue, Playa del Rey, CA 90293, (310) 823-9448, fax (310) 821-4021, e-mail: [email protected]. Web site: www.cosgrovecomputer.com. Contact John Cosgrove. John Cosgrove, PE,has over 50 years of experience in computer systemsand has been a self-employed, consulting software engi-neer since 1970. He was a part-time lecturer in theUCLA School of Engineering and LMU graduateschools. He provided an invited article, “Software Engi-neering and Litigation,” for the Encyclopedia of SoftwareEngineering. He is a Certified Forensic Consultant (CFC),holds the CDP, is a member of ACM, ACFEI, FEWA, alife senior member of IEEE Computer Society, NSPE, aFellow of the National Academy of Forensic Engineers(an affiliate of NSPE), and a professional engineer in Cali-fornia. Formal education includes a BSEE from LoyolaUniversity (now LMU) and a master of engineering fromUCLA. He currently serves as President of the UCLAEngineering Alumni Association.

CONSTRUCTION

FORENSISGROUP EXPERT WITNESS SERVICES SINCE 1991

301 North Lake Avenue, Suite 420, Pasadena, CA91101, (800) 555-5422, (626) 795-5000, fax: (626) 795-1950, email: [email protected]. Web site:www.forensisgroup.com. Contact Mercy Steenwyk.10,000 cases ForensisGroup has provided experts.8,000 clients have retained experts from us. We respondin one hour or less. ForensisGroup is an expert witnessservices and consulting company providing experts,expert witnesses, and consultants to law firms, insur-ance companies, and other public and private firms inthousands of disciplines: construction, engineering, busi-ness, accounting, intellectual property, computers, IT,medical, real estate, insurance, product liability,premises liability, safety, and others, including experts incomplex and hard-to-find disciplines. Let us give you thetechnical advantage and competitive edge in your cases.Referrals, customized searches, and initial phone con-sultations are free. See display ad on page 41.


1940 East 17th Street, Santa Ana, CA 92705, (714)667-2600, fax (714) 667-2636, e-mail: [email protected]. Web site: www.gmgcpa.com. Contact RichardM. Squar. Exclusive LA and Orange County representa-tive for CICPAC (Construction Industry CPA/Consultants

Association) This is a nationwide network of CPA firmsspecifically selected for their experience in and commit-ment to serving the construction industry. We are one ofonly six firms in all of California that are members of thisprestigious organization. We provide these litigation sup-port services: expert witness testimony, strategy devel-opment, document discovery, deposition assistance,computation of damages, arbitration consulting, forensicaccounting, investigative auditing, rebuttal testimony,fiduciary accountings, and trial exhibit preparation. Ourareas of expertise include: business interruption, loss ofearnings analysis, breach of contract, partnership disso-lution, profits distribution, tax consequences of settle-ments, reconstruction of accounting records, embezzle-ment and fraud, contract costs, lost profits, constructionclaims, and damage computations cases. Honored byConstruction Link as the “Best Accounting Firm for theconstruction industry.” Glenn M. Gelman has beenappointed and served as Special Master in litigation sup-port matters and has testified over 30 times. Our com-prehensive case list is available upon request. See display ad on page 41.

KGA, INC.

1409 Glenneyre Street, Suite A, Laguna Beach, CA92651, (949) 497-6000, fax (949) 494-4893, e-mail:[email protected]. Web site: www.kgainc.com.Contact Kurt Grosz. Construction and environmentalconsultants since 1991. Licensed engineers and con-tractors. ICC building, plumbing, mechanical, concreteand accessibility inspectors. Certified professional esti-mators. Trial experts, arbitrators, and insurance apprais-ers/umpires.

SECRETARIAT INTERNATIONAL

1600 Rosecrans Boulevard, Bldg. 7, Suite 400, CA90266, (310) 321-7840, e-mail: [email protected]. Web site: www.secretariat-intl.com. Contact Ted Scott. Secretariat International specializes in thepreparation and review of schedule and damage analy-ses relating to matters of delay, disruption, productivity,time impacts, acceleration, and other project manage-ment and construction issues. We have also advised onmatters related to insurance claims, construction opera-tions, risk management strategies, project controls, andcost estimating.

CORPORATE AND SECURITIES

PETILLON HIRAIDE LLP

21515 Hawthorne Boulevard, Suite 1260, Torrance, CA 90503, (310) 543-0500, fax (310) 543-0550, e-mail:[email protected]. Web site: www.phlcorplaw.com. Contact Mark Hiraide. Expert witness in the fol-lowing areas: formation of corporations, partnerships,and limited liability companies, governance, fiduciaryduties of officers and directors, and majority sharehold-ers, venture and acquisition issues; violation of securitieslaws, and legal malpractice of lawyers.

CORPORATE INVESTIGATIONS

FULCRUM INQUIRY



15490 Ventura Boulevard, Suite 300, Sherman Oaks,CA 91403, (818) 981-4226, fax (818) 981-4278, 4 ParkPlaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax(949) 219-9095, e-mail: [email protected]. Web site:



http://www.weatherman.org

http://www.amfs.com

www.wzwlh.com. Contact Barbara Luna. Expert wit-ness testimony for complex litigation involving damageanalyses of lost profits, unjust enrichment, reasonableroyalties, lost earnings, lost value of business, forensicaccounting, fraud investigation, investigative analysis ofliability, and marital dissolution, and tax planning andpreparation. Excellent communicators with extensivetestimony experience. Prior Big Four accountants. Spe-cialties include accounting, breach of contract, breach offiduciary duty, business interruption, business dissolu-tion, construction defects, delays, and cost overruns,fraud, insurance bad faith, intellectual property (includingtrademark, patent, and copyright infringement, and tradesecrets), malpractice, marital dissolution, personal injury,product liability, real estate, securities, tax planning andpreparation, IRS audit defense, tracing, unfair advertis-ing, unfair competition, valuation of businesses, andwrongful termination. See display ad on page 47.

DENTIST

JAY GROSSMAN DDS

11980 San Vicente Boulevard, Suite 507, Brentwood,CA 90049, (310) 820-0123, e-mail: [email protected]. Web site: www.drjaydds.com. ContactJay Grossman. Dental malpractice expert testimony.Have been deposed over 85 times; reviewed over 420cases for both defense and plaintiff including peerreview, accidents, and malpractice. 60% plaintiff, 40%defense. Have qualified in Superior Court over 30 timesand never been disqualified. At least 95% of my time isspent in patient care. I can be counted on to being ethi-cal, competent, prepared and analytical as well as artic-ulate and persuasive at depositions and court appear-ances. Published and have been written about in print,radio, and TV over 116 times. Expert on issues includ-ing: standard of care, cosmetics, lasers, extractions,nerve damage, valuation, informed consent, antibioticcoverage, TMJ, orthodontics including Invisalign, sleepapnea, treatment planning, occlusion and vertical dimen-sion, electrosurgery, abscess, resorption, implants,crowns, root canal, veneers, periodontics, and patentinfringement. Licensed in 42 states to opine on standardof care, with specific license in California, Nevada, andthe Northeast as well as a Florida Expert Certification.Graduated NYU 1988; Lieutenant, United States Navy1989-91; private practice Brentwood, CA since 1991;faculty: Clinical Professor at UCLA College of Dentistryas well as Western University College of dental medi-cine.

DOCUMENT EXAMINER

SANDRA L. HOMEWOOD, FORENSICDOCUMENT EXAMINER

1132 San Marino Drive, Suite 216, Lake San Marcos,CA 92078, (760) 931-2529, fax (760) 510-8412, e-mail:[email protected]. Contact Sandra L.Homewood. Highly skilled and experienced documentexaminer and expert witness in many complex and highprofile civil and criminal cases with fully equipped document laboratory. Specializing in handwriting andhandprinting identification, handwriting of the elderly infinancial elder abuse cases and will contests, and exam-ination of altered medical and corporate records. Trainedin government laboratory including specialized trainingby the FBI and Secret Service. Former governmentexperience includes document examiner for the SanDiego Police Department crime lab, Arizona State crimelab, San Diego County District Attorney’s office and SanLuis Obispo and Santa Barbara District Attorney offices.Currently in private, criminal, and civil practice.

ECONOMIC ANALYSIS




Zivetz, Schwartz & Saltsman CPA’sWith more than thirty years of experience as expert witnesses in testimony, pre-trial preparation, settlement negotiations, consultations and court appointed special master.

Tel: (310) 826-1040Fax: (310) 826-1065E-mail: [email protected] W. Olympic Blvd.

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Los Angeles, CA 90064-1046

Lester J. Schwartz, CPA, CFF, DABFA, DABFE

Michael D. Saltsman, CPA, MBA

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Some of our specialties consist of:

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ECONOMIC DAMAGES




10474 Santa Monica Boulevard, Suite 200, Los Angeles,CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected]. Contact Coral Hansen.Web site: www.MHM-PC.com, www.CBIZ.com. CBIZ &Mayer Hoffman McCann PC specializes in fraud investi-gations, forensic accounting, business litigation, com-mercial damage and lost profits computations, businessvaluation and appraisal, transactional due diligence, fam-ily limited partnerships, business interruption, and familylaw. We provide experienced expert testimony and taxcontroversy representation.


633 West Fifth Street, 31st Floor, Los Angeles, CA90071-2005, (213) 553-2500, fax (213) 553-2699. Website: www.cornerstone.com. Contact George G.Strong, Jr., Richard W. Dalbeck, Katie J. Galley,Elaine Harwood, Carlyn Irwin, Erin McGlogan, orAshish Pradhan. For more than 25 years, CornerstoneResearch staff have provided economic and financialanalysis in all phases of commercial litigation and regula-tory proceedings. We work with a broad network of tes-tifying experts, including prominent faculty and industrypractitioners, in a distinctive collaboration. The expertswith whom we work bring the specialized expertiserequired to meet the demands of each assignment. Ourareas of specialization include intellectual property,antitrust, securities, entertainment, real estate, financialinstitutions, and general business litigation.

CORPORATE SCIENCES, INC.

3215 East Foothill Boulevard, Pasadena, CA 91107,(626) 440-7200, fax: (626) 440-1800, e-mail: [email protected]. Web site: www.corporatesciences.com. Contact Dr. Joseph S. D’Antoni, ManagingPrincipal. Corporate Sciences, Inc., provides over 40years of financial analysis and expert testimony in alltypes of commercial litigation. Extensive experience in abroad range of industries for computing economic dam-ages, lost profits, valuation and appraisal, fraud, breachof contract, partnership disputes, and bankruptcy-related matters. Professionals also serve as mediators,arbitrators, special masters, and third-party administra-tors as well as consulting and testifying experts.

FULCRUM INQUIRY



1940 East 17th Street, Santa Ana, CA 92705, (714)667-2600, fax (714) 667-2636, e-mail: [email protected]. Web site: www.gmgcpa.com. Contact RichardM. Squar. Since 1983, our firm has specialized in deliv-ering forensic accounting and litigation support servicesthat give our clients an edge. We provide the quality anddepth traditionally associated with Big Four firms withthe personal attention and fee structure of a local firm.We are recognized throughout southern California for theeffectiveness of our work. Areas of expertise include:business interruption, loss of earnings analysis, breachof contract, partnership dissolution, profits distribution,tax consequences of settlements, reconstruction ofaccounting records, embezzlement and fraud, contractcosts, lost profits, construction claims, and damagecomputations cases. Our practice focuses on closelyheld entrepreneurial firms in the following industries: con-struction, real estate development, equipment leasing,auto parts (wholesale and retail), manufacturing, andprofessional services. Glenn M. Gelman has beenappointed and served as Special Master in litigation sup-port matters and has testified over 30 times. Our com-prehensive case list is available upon request. See dis-play ad on page 41.




800 South Figueroa Street, Suite 710, Los Angeles, CA 90017, (213) 617-7775, fax (213) 617-8372, e-mail:[email protected]. Contact Mark C. Higgins, ASA. Thefirm has over 30 years of litigation support and experttestimony experience in matters involving business valu-ation, economic damages, intellectual property, loss ofbusiness goodwill, and lost profits. Areas of practiceinclude business disputes, eminent domain, bankruptcy,and corporate and marital dissolution. See display adon page 55.

MCGLADREY LLP

515 South Flower Street, 41st Floor, Los Angeles, CA90071, (213) 330-4605, e-mail: [email protected]. Web site: www.mcgladrey.com.Contact Patrick Chylinski. McGladrey is the 5thlargest accounting and consulting firm in the UnitedStates. Our litigation consulting and financial forensicspractice focuses on assisting counsel and clients in theareas of business and commercial litigation, forensicanalysis, fraud investigations, contract compliance, androyalty inspection matters. We have extensive experi-ence in the areas of damages, lost profits, and forensicanalysis as they relate to contract, post-closing, realestate, and fee disputes. Our experts have experiencetestifying at deposition, arbitration, and at trial in stateand federal courts. Degrees/Licenses: CPAs, MBAs,JDs, CFEs, CVAs, ASAs, CFFs. See display ad onpage 46.

MICHAEL D. ROSEN, CPA, PHD, ABV

3780 Kilroy Airport Way, Suite 200, Long Beach, CA90806, (562) 256-7052, fax (562) 256-7001, e-mail:[email protected]. Web site: www.mrosencpa.com. Contact Michael D. Rosen. We are litigationconsultants, forensic accountants, expert witnesses. Ourmission is to tell the financial story that underlies everybusiness litigation matter and to convey that story in aclear and concise manner to the trier of fact. Our find-ings allow a realistic assessment of the case and sup-port settlement efforts. Our work is designed to renderconclusive opinions and to withstand cross-examination.We specialize in business damages (lost profits and lossin value), personal damages (lost earnings), and busi-ness valuation.


660 South Figueroa Street, Suite 1280, Los Angeles, CA 90017, (213) 627-8280, fax (213) 627-8301, e-mail: [email protected]. Web site: www.schulzehaynes.com. Contact Karl J. Schulze, presi-dent. Specialties: forensic business analysis andaccounting, lost profits, economic damages, expert tes-timony, discovery assistance, business valuations, cor-porate recovery, financial analysis, and modeling. Mem-ber of major professional organizations, experienceacross a broad spectrum of industries and businessissues. Degrees/licenses: CPA, CVA, CFE, ABV, PhD-Economics. See display ad on page 61.


633 West 5th Street, Suite 2800, Los Angeles, CA90071-2039, (213) 624-8150, fax (213) 223-2304,e-mail: [email protected]. Web site: www.thomasneches.com. Contact Thomas M. Neches,CPA, ABV, CVA, CFE, CFF. Accounting, financial,business valuation, and statistical analyses to assistattorneys in litigation. Expert testimony in state and fed-eral courts. Cases: antitrust, breach of contract, fraud,intellectual property, lost business value, lost profits,wrongful death, and wrongful termination. Industries:banking, construction, entertainment, insurance, manu-facturing, retail, securities, and wholesale. Credentials:certified public accountant/accredited in business valua-tion, certified valuation analyst, certified fraud examinerand certified in financial forensics. Education: BA (Math-ematics) UC San Diego, MS (Operations Research)UCLA. Teaching: adjunct professor, Loyola Law School.See display ad on page 53.


400 Continental Boulevard, Sixth Floor, El Segundo, CA90245, (310) 322-7744, fax (424) 285-5380. Web site:www.waronzof.com. Contact Timothy R. Lowe, MAI,CRE. Waronzof provides real estate and land use litiga-tion support services including economic damages, lostprofits, financial feasibility, lease dispute, property value,enterprise value, partnership interest and closely-heldshare value, fair compensation, lender liability, and reor-ganization plan feasibility. Professional staff of five withadvanced degrees and training in real estate, finance,urban planning, and accounting. See display ad onpage 59.







ECONOMICS



CMM, LLP

5700 Canoga Avenue, Suite 300, Woodland Hills, CA91367, (818) 986-5070, fax (818) 986-5034, e-mail:[email protected]. Web site: www.cmmcpas.com. Contact Scott Mowrey. Specialties: consultantswho provide extensive experience, litigation support, andexpert testimony regarding forensic accountants, fraudinvestigations, economic damages, business valuations,family law, bankruptcy, and reorganization. Degrees/licenses: CPAs, CFEs, MBAs. See display ad on page 46.

FULCRUM INQUIRY


ELDER ABUSE

HAMPTON HEALTH, LTDJOHN H. FULLERTON, MD, MRO, CMD, CFP,FACP, AGSF, FAAHPM

1700 California Street, Suite 470, San Francisco, CA94109, (415) 460-5532, fax (415) 459-2774, e-mail:[email protected]. Web site: hamptonhealthltd.com. Contact Kate McElroy, PA-C. Services avail-able: Board Certified in Internal Medicine, Geriatrics,Hospice, Palliative Medicine, Addiction Medicine, andHome Health; Licensed Medical Review Officer. Exper-tise: Medicare fraud cases for the government, toxicol-ogy/DUI, elder abuse including criminal defense of laycaregivers accused of homicide of demented relativesduring end-of-life phase. Hospital, ambulatory/outpa-tient, PI, medical malpractice, and LTC. Medical/hospicedirectorships. Testified over 200 times and reviewedmore than 1,500 cases, including Medicare audits forthe government. See display ad on page 41.

ELECTRONIC DISCOVERY

SETEC INVESTIGATIONS

8391 Beverly Boulevard, Suite 167, Los Angeles, CA90036, (800) 748-5440, fax (323) 939-5481, e-mail:[email protected]. Web site: www.setecinvestigations.com. Contact Todd Stefan. SetecInvestigations offers unparalleled expertise in computerforensics and enterprise investigations providing person-alized, case-specific forensic analysis and litigation sup-port services for law firms and corporations. SetecInvestigations possesses the necessary combination oftechnical expertise, understanding of the legal system,and specialized tools and processes enabling the dis-covery, collection, investigation, and production of elec-


EXPERT WITNESS � CLAIMS CONSULTANT

Contact Gene Evans at E. L. Evans AssociatesTel 310.559.4005 • Fax 310.559.4236 • E-mail [email protected]

9854 NATIONAL BOULEVARD, SUITE #225, LOS ANGELES CA 90034

EXPERT IN GOOD FAITH/BAD FAITH, STANDARDS AND PRACTICESand standard in the industry. Specialties in property/casualty construction defect,fire/water, uninsured/un der insured 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 ClaimsRep. at MSC & MMC.

— Over 45 Years Experience as a Claims Adjuster —LICENSED IN THREE STATES AND QUALIFIED IN STATE AND FEDERAL COURTS

EXPERIENCE—

INTEGRITY—

HONESTY

DIANA G. LESGART, CPA, CFE, CVA, CFFAn Accountancy Corporation

TEL 818.886.7140 • FAX 818.886.7146 • E-MAIL [email protected] LASSEN STREET, SUITE 106, CHATSWORTH, CA 91311

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tronic information for investigating and handling com-puter-related crimes or misuse. Our expertise includescomputer forensics, electronic discovery, litigation sup-port, and expert witness testimony.

EMBEZZLEMENT AND FRAUD


1940 East 17th Street, Santa Ana, CA 92705, (714) 667-2600, fax (714) 667-2636, e-mail: [email protected]. Web site: www.gmgcpa.com. ContactRichard M. Squar. Glenn M. Gelman and Associatesprovides a variety of high-quality services traditionallyassociated with the “Big Four” firms along with the per-sonal attention that is the hallmark of local firms. Our liti-gation support services include: embezzlement andfraud, expert witness testimony, strategy development,document discovery, deposition assistance, computa-tion of damages, arbitration consulting, forensicaccounting, investigative auditing, rebuttal testimony,fiduciary accountings, and trial exhibit preparation andreconstruction of accounting records. Our practicefocuses on closely held entrepreneurial firms in the fol-lowing industries: construction, real estate development,equipment leasing, auto parts (wholesale and retail),manufacturing, and professional services. Glenn M. Gel-man has been appointed and served as Special Masterin litigation support matters and has testified over 30times. Our comprehensive case list is available uponrequest. See display ad on page 41.

EMPLOYMENT/DISCRIMINATION/HARASSMENT/RETALIATION

HAIGHT CONSULTING

1726 Palisades Drive, Pacific Palisades, CA 90272,(310) 454-2988, fax (310) 454-4516. Contact MarciaHaight, SPHR—CA. Human resources expert knowl-edgeable in both federal and California law. Twenty-fiveyears’ corporate human resources management experi-ence plus over 20 years as a Human Resources Compli-ance Consultant in California. Specializations includesexual harassment, ADA/disability discrimination, otherTitle VII and FEHA discrimination and harassment, retali-ation, 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 dis-crimination, harassment, and retaliation issues. Assesshuman resources policies and practices for soundness,for comparison to prevailing practices, and for compli-ance. Evaluate employer responsiveness to complaintsand effectiveness of employer investigations. Assistcounsel via preliminary case analysis, discovery strategy,examination of documents, and expert testimony.


2050 Gateway Place, Suite 100-177, San Jose, CA 95110, (209)728-8905, fax (209) 728-8970, e-mail: [email protected]. Web site: www.hrmconsulting.com. Contact Beth B. De Lima,SPHR-CA. Expert witness Beth De Lima, has testifiedfor both plaintiff and defense in the following areas:human resources standards of care, employment ADAaccommodation, FEHA, FMLA, CFRA, ADA & EEOCviolations. Wrongful termination, performance manage-ment, discrimination, sexual harassment, exempt analy-sis, labor market assessment, and vocational evalua-tions. She holds national and California specific certifi-cation—Senior Professional in Human Resource (SPHR-CA), certified mediator, and consulting since 1992.

ENGINEER/TRAFFIC

WILLIAM KUNZMAN, PE

1111 Town and Country #34, Orange, CA 92868, (714) 973-8383, fax (714) 973-8821, e-mail: [email protected]. Web site: www.traffic-engineer.com. Contact William Kunzman, PE. Traffic expertwitness since 1979, both defense and plaintiff. Auto,pedestrian, bicycle, and motorcycle accidents. Largestplaintiff verdicts: 1) $12,200,000 in pedestrian accidentcase against Caltrans, 2) $10,300,000 in case againstLos Angeles Unified School District. Largest settlement:$2,000,000 solo vehicle accident case against Caltrans.Best defense verdict: $0 while defending Caltrans and

opposition sought $16,000,000. Before becomingexpert witness, employed by Los Angeles County RoadDepartment, Riverside County Road Department, city ofIrvine, and Federal Highway Administration. Knowledgeof governmental agency procedures, design, geomet-rics, signs, traffic controls, maintenance, and pedestrianprotection barriers. Hundreds of cases. Undergraduatework—UCLA, graduate work—Yale University.

ENGINEERING

4X FORENSIC ENGINEERING LABORATORIES, INC.


A & E FORENSICS

2121 Montiel Road, San Marcos, CA 92069, (877) 839-7302, fax (760) 480-7477, e-mail: [email protected]. Web site: www.aeforensics.com. Contact SteveNorris, AIA, PE, GE, HG, CEG, CASp, LEED. Archi-tect, engineer, contractor—standard of care expert.Retained over 200 times, deposed over 100 times, andtestified in trial over 20 times. Waterproofing, water intru-sion, building envelope, zoning setbacks, concrete per-formance, path of travel, structural analysis, earthquake-fire damage, and plan analysis. Landslides, retaining wallfailure, settlement, flooding, grading, septic, expansivesoils, mud flows, pavement distress, ground water eval-uation, and slope analysis. Cost estimates, constructionmanagement, delay analysis, and contracts. Serving allCalifornia, Hawaii, and Oklahoma. See display ad onpage 46.

EXPONENT

5401 McConnell Avenue, Los Angeles, CA 90066, (310) 754-2700, fax (310) 754-2799, e-mail: [email protected]. Web site: www.exponent.com.Contact Ali Reza. Specialties: fires and explosions,metallurgy and mechanical engineering, structural andgeotechnical, accident reconstruction and analysis,human factors, risk and reliability assessment, toxicologyand human health, biomechanics, electrical and semi-conductors, aviation, materials science, HVAC, energyconsulting, construction defect, and scheduling.

SCS ENGINEERS

3900 Kilroy Airport Way, Suite 100, Long Beach, CA90806, (562) 426-9544, fax (562) 427-0805, e-mail:[email protected]. Web site: www.scsengineers.com. Contact Julio Nuno, VP. SCS provides expertwitness services related to environmental studies andengineering, water resources, solid waste and air qualityand industrial hygiene and safety services. We are a 43-year old consulting firm with 71 offices across the USand over 800 employees. Our Long Beach office hasmore than 30 professional engineers, scientists, andsubject matter experts available on short notice to serveasbestos, lead-based paint, and other specialty areasrequiring expert witness services.

ENGINEERING/GEOTECHNICAL

COTTON, SHIRES AND ASSOCIATES, INC.

Southern California branch, serving greater So. Cal.area, (805) 497-7999, fax (805) 497-7933, e-mail:[email protected]. Web site: www.cottonshires.com. Contact Michael Phipps orPatrick O. Shires. Full service geotechnical engineeringconsulting firm specializing in investigation, design, arbi-tration, and expert witness testimony with offices in LosGatos, Thousand Oaks, and San Andreas, California.Earth movement (settlement, soil creep, landslides, tun-neling and expansive soil), foundation distress (move-ment and cracking of structures), drainage and gradingissues (seepage through slabs, moisture intrusion, nui-

sance water, and ponding water in crawlspace), pave-ment and slab distress (cracking and separating), retain-ing walls (movement, cracking, and failures), pipelines,flooding and hydrology, design and construction defi-ciencies, aerial photo analysis; expert testimony at 78+trials (municipal, superior, and federal), 207+ deposi-tions, 208+ settlement conferences in California,Nevada, Hawaii, and Michigan.

ENVIRONMENTAL

KGA, INC.

1409 Glenneyre Street, Suite A, Laguna Beach, CA92651, (949) 497-6000, fax (949) 494-4893, e-mail:[email protected]. Web site: www.kgainc.com. Contact Kurt Grosz. Construction and environmentalconsultants since 1991. Licensed engineers and con-tractors. ICC building, plumbing, mechanical, concreteand accessibility inspectors. Certified professional esti-mators. Trial experts, arbitrators, and insurance apprais-ers/umpires.

THE REYNOLDS GROUP

P.O. Box 1996, Tustin, CA 92781-1996, (714)730-5397, fax (714)730-6476, e-mail: [email protected]. Website: www.reynolds-group.com. Contact Ed Reynolds, principal. An environ-mental consulting, contracting firm. Expertise: environ-mental contamination, assessment, remediation, reason-able value of construction, standard of care, and relatedfinancial matters. Degrees in Civil Engineering: USC (BS),University of Houston (MS), (MBA) Harvard. CaliforniaRegistered Civil Engineer, Licensed A, B, HAZ CaliforniaContractor. Adjunct Faculty Member USC School ofEngineering (Construction Management) and MemberUSC’s Board of Councilors.

SCS ENGINEERS


ENVIRONMENTAL ENGINEER

WZI INC. (ENVIRONMENTAL ENGINEERS)

1717 28th Street, Bakersfield, CA 93301, (661) 326-1112, fax (661) 326-6480, e-mail: [email protected]. Web site: www.wziinc.com. Contact Mary JaneWilson. BS, petroleum engineering environmentalassessor REPA 450065. Specialties include regulatorycompliance, petroleum, and power generation.

ESCROW



EXPERT REFERRAL SERVICE

FORENSIC EXPERT WITNESS ASSOCIATION

575 Market Street, Suite 2125, San Francisco, CA94105, (415) 369-9614, email: [email protected] site: www.forensic.org. Trust the only expert wit-



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PRO/CONSUL TECHNICAL AND MEDICAL EXPERTS

1945 Palo Verde Avenue, Suite 200, Long Beach, CA90815, (800) 392-1119, fax (562) 799-8821, e-mail:[email protected]. Web site: www.expertinfo.com.Contact Jesse De La Torre. Right expert right away!We are listed and recommended by the A.M. Best Com-pany. We welcome your rush cases! 15,000 medicaland technical experts in over 3,000 fields, many in theSouthern California area, enables Pro/Consul to providethe best experts at a reasonable cost, including medicaldoctors for IME’s, biomechanical engineers, accidentreconstruction, electrical engineers, fire cause and origin,neuropsychology, accounting and economics, metal-lurgy, engineering, plastics, appraisal and valuation, con-struction, human factors, insurance, lighting, marine,mechanical, roof, safety, security, SOC, toxicology,MDs, RNs, etc. Free resume binder. See display ad onpage 43.

TASA (TECHNICAL ADVISORY SERVICE FORATTORNEYS) EXPERTS IN ALL CATEGORIES

Contact Heather Williamson. (800) 523-2319, fax(800) 329-8272, e-mail: [email protected]. Website: www.TASAnet.com. The TASA Group is your time-saving, cost-effective source for a variety of superiorquality, independent Testifying and Consulting Experts inall fields and locations. We offer over 11,000 diverse cat-egories of expertise and hard-to-find specialties in tech-nology, business, the arts, and sciences, including1000+ medical areas through TASAmed. Our experi-enced Referral Advisers target your specific criteria and

connect you with experts available to discuss your case.There is NO CHARGE for our search and referral ser-vices unless you designate or engage an expert werefer. Plaintiff/Defense; Civil/Criminal. Visit TASAnet.com,where you can search expert profiles by expertise key-word, order indispensable research reports on experts,request an expert on our online form, and discover E-discovery services & solutions. Explore TASAnet.com’sKnowledge Center to read expert-authored articles andview archived webinars for attorneys. To receive invita-tions to our free, expert-led webinars, register atwww.TASAnet.com. Since 1956, benefit from TheTASA Group’s Experience. Please see our insert inthis issue and display ad on page 55.

EXPERT WITNESS

AMFS MEDICAL EXPERTS NATIONWIDE

6425 Christie Avenue, Suite 260, Emeryville, CA 94608,(800) 275-8903. Web site: www.AMFS.com. Welcometo AMFS where our in-house staff of attorneys andphysicians are on-call to discuss your most importantmedical legal matters, advise you as to their merit, andlocate/engage the best and most suitable specialists toserve as expert witnesses and advisors. Based in Cali-fornia, AMFS has a 25-year history as the trusted med-ical expert partner to thousands of law firms across thecountry and over 15,000 physicians, surgeons, nurses,and related experts located in every U.S. jurisdiction.Please call Jason Olson, Esq., at (800) 275-8903 todiscuss your matter alongside one of our medical direc-tors for a candid assessment and lightning-fast expertplacement. AMFS: world class medical specialists inover 5,000 areas of expertise. See display ad onpage 48.

EXPERT WITNESS WEB SITES

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Legal Marketplace is the best online directory for findingexpert witnesses, legal consultants, litigation support,lawyer-to-lawyer networking, dispute resolution profes-sionals, and law office technology. This comprehensiveonline directory is the one-stop site for your legal supportneeds. Available 24/7/365! Brought to you by the LosAngeles County Bar Association.

FAILURE ANALYSIS




9121 East Tanque Verde Road, Suite 105, Tucson, AZ85749, (800) 645-3369, e-mail: [email protected] site: www.chemaxx.com. Contact Dr. MichaelFox. Comprehensive chemical accident investigation—specializing in complex industrial chemical accidents andchemical related consumer product injuries, chemicalfires and explosions, chemical labeling, chemical pack-aging, handling and shipping, burns, warnings, labels,MSDSs, disposal, safety, EPA, OSHA, DOT, propane,natural gas, hydrogen, flammable liquids, hazardouschemicals, aerosols (hairspray, spray paint, refrigerants).DOT certified (hazardous materials shipment). Certifiedfire and explosion investigator, OSHA process hazard


• Expert testimony• Damages calculation• Forensic accounting• Business valuation• Database analysis

Thomas Neches

Certified Public AccountantAccredited in Business Valuation

Certified Valuation Analyst

Certified Fraud Examiner

Thomas Neches & Company LLP633 West 5th Street, Suite 2800

Los Angeles, California 90071-2039

www.thomasneches.com

voice: (213) 624-8150e-mail: [email protected] in Financial Forensics


http://www.thomasneches.com

analysis team leader. PhD physical chemistry. Extensiveexperience in metallurgy, corrosion, and failure analysis.


Testing and Research Labs, 2528 West WoodlandDrive, Anaheim, CA 92801-2636, (714) 527-7100, fax(714) 527-7169, e-mail: [email protected]. Web site:www.karslab.com. Contact Dr. Ramesh Kar, Dr.Naresh Kar, Dr. Nikhil Kar. Southern California’s pre-mier aterials/mechanical/metallurgical/structural/foren-sics laboratory. Registered professional engineers with30+ years in metallurgical/forensic/structural/mechani-cal failure analysis. Experienced with automotive, bicy-cles, tires, fire, paint, plumbing, corrosion, and struc-tural failures. We work on both plaintiff and defendantcases. Complete in-house capabilities for tests. Exten-sive deposition and courtroom experience (civil andcriminal investigations). Principals are Fellows of Ameri-can Society for Metals and Fellows, American Collegeof Forensic Examiners. See display ad on page 59.

FAMILY LAW


10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268,e-mail: [email protected]. Contact BrianLewis, CPA, CVA. Forensic accounting, business valuations, cash spendable reports, estate, trust, andincome tax services.


10474 Santa Monica Boulevard, Suite 200, Los Ange-les, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected]. Contact Coral Hansen.Web site: www.MHM-PC.com, www.CBIZ.com. CBIZ& Mayer Hoffman McCann PC specializes in fraudinvestigations, forensic accounting, business litigation,commercial damage and lost profits computations,business valuation and appraisal, transactional due dili-gence, family limited partnerships, business interrup-tion, and family law. We provide experienced experttestimony and tax controversy representation.

CMM, LLP

5700 Canoga Avenue, Suite 300, Woodland Hills, CA91367, (818) 986-5070, fax (818) 986-5034, e-mail:[email protected]. Web site: www.cmmcpas.com. Contact Scott Mowrey. Specialties: consul-tants who provide extensive experience, litigation sup-port, and expert testimony regarding forensic accoun-tants, fraud investigations, economic damages,business valuations, family law, bankruptcy, and reor-ganization. Degrees/licenses: CPAs, CFEs, MBAs. Seedisplay ad on page 46.

GURSEY|SCHNEIDER LLP

1888 Century Park East, Suite 900, Los Angeles, CA90067, (310) 552-0960, fax (310) 557-3468, 20355Hawthorne Boulevard, First Floor, Torrance, CA 90503,(310) 370-6122, fax (310) 370-6188, 2211 MichelsonDrive, Suite 830, Irvine, CA 92612, (949) 265-9900, fax(949) 265-9901, e-mail: [email protected],[email protected] or [email protected]. Web site:www.gursey.com. Contact Stephan Wasserman,Robert Watts or Tracy Katz. Forensic accountingand litigation support services in all areas relating tomarital dissolution, including business valuation, tracingand apportionment of real property and assets, netspendable evaluations, determination of gross cashflow available for support and analysis of reimburse-ment claims and marital standards of living. See display ad on page 45.


12121 Wilshire Boulevard, Suite 700, Los Angeles, CA90025, (310) 576-1090, fax (310) 576-1080, e-mail:[email protected]. Web site: www.hargraveandhargrave.com. Contact Terry M. Har-grave, CPA/ABV/CFF, CFE. Forensic accounting andbusiness valuation services for family law and civilcases. Past chair of California Society of CPAs’ FamilyLaw Section and business valuation instructor for Cali-fornia CPA Education Foundation. Services includebusiness valuations, income available for support, trac-ing separate property, litigation consulting, real estatelitigation, mediation, fraud investigations, damage cal-

culation, and other forensic accounting work.


4910 Campus Drive, Newport Beach, CA 92660-2119,(949) 724-1880, fax (949) 724-1889, e-mail: [email protected]. Web site: www.hayniecpa.com. Con-tact Steven C. Gabrielson. Consulting and expert wit-ness testimony in a variety of practice areas: commercialdamages, ownership disputes, economic analysis, busi-ness valuation, lost profits analysis, fraud/forensic inves-tigations, taxation, personal injury, wrongful termination,and professional liability.


15303 Ventura Boulevard, Suite 1040, Sherman Oaks,CA 91403, (818) 995-1040, fax (818) 995-4124. Website: www.ketkcpa.com. Contact Michael J. Krycler.Litigation support, including forensic accounting, businessappraisals, family law accounting, business and profes-sional valuations, damages, fraud investigations, and lostearnings. Krycler, Ervin, Taubman and Kaminsky is a full-service accounting firm serving the legal community formore than 20 years. See display ad on page 40.

PAMELA WAX-SEMUS, CFE

107 North Reino Road, #402, Newbury Park, CA 91320,(805) 499-3035, fax (805) 498-0468, e-mail: [email protected]. Web site: www.tracingqueen.net.Contact Pamela Wax-Semus, CFE. I am experiencedin most areas of litigation support services with a particu-lar emphasis in tracing, property allocation, reimburse-ments, stock options and related allocations issues. Ihave vast experience not only in marital dissolution mat-ters. My expertise expands to trust and probateaccountings, fraud, and other litigation-related matters.




11900 West Olympic Boulevard, Suite 650, Los Ange-les, CA 90064-1046, (310) 826-1040, fax (310) 826-1065. Web site: www.zsscpa.com. Contact Lester J.Schwartz, CPA/CFF, DABFE, DABFA, Michael D.Saltsman, CPA, MBA, JB Rizzo, CPA, ABV, CFF,David L. Bass, CPA, David Dichner, CPA, ABV,Sandy Green, CPA, Silva Hakobyan, CPA. Accountingexperts in forensic accounting, tax issues, business valu-ations, and appraisals, marital dissolutions, eminentdomain, insurance losses, business interruption, good-will, economic analysis, investigative auditing, loss ofearning, commercial damages, and lost profits. Expertwitness testimony preparation, settlement negotiations,and consultations. See display ad on page 49.

FAMILY MEDICINE

ELLIOT D. FELMAN, MD

1821 Wilshire Boulevard, Suite 301, Santa Monica, CA90403, (310) 260-2525, fax (310) 260-7575, e-mail:[email protected]. Contact Mary Lou Purdy.Expert review and testimony, plaintiff or defense, teach-ing faculty UCLA School of Medicine and Western Uni-versity School of Health Sciences. Former expertreviewer for California Medical Board.

FEES & ETHICS

NORMAN DOWLER, LLP

840 County Square Drive, 3rd Floor, Ventura, CA93003-5406, (805) 654-0911, fax (805) 654-1902, e-mail: [email protected]. Web site: www.normandowler.com. Contact Joel Mark. Consulting/expert witness experience: SEVENTY ASSIGNMENTSIN attorney fee disputes; attorney ethics, attorney mal-practice (litigation). Specialties include business litiga-tion, intellectual property, commercial law, professionalliability, and banking. Previous position/appointments:California State Bar Committee on Mandatory FeeArbitration, California State Bar Committee on Profes-sional Responsibility and Conduct; appointed expertconsultant by the Los Angeles County Superior Court,State Bar MFA Presiding Arbitrator (2009-2012); StateBar of California Special Deputy Trial Counsel for Dis-ciplinary Matters (2010-present). Membership in pro-fessional societies: LACBA, Ventura County Bar Asso-ciation; State Bar of California. Degrees/license: UCBerkeley (AB, 1969), UC Berkeley: Hastings College ofLaw (JD, 1972); Admitted California 1972, Colorado,1994.

FINANCIAL


18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: [email protected]. Web site: www.mcsassociates.com. Contact Norman Katz, managing partner.Nationally recognized banking, finance, insurance, andreal estate consulting group (established 1973). Experi-enced litigation consultants/experts include seniorbankers, lenders, consultants, economists, accountants,insurance underwriters/brokers. Specialties include:lending customs, practices, policies, in all types of lend-ing (real estate, subprime, business/commercial, con-struction, consumer/credit card), bankingoperations/administration, trusts and investments, eco-nomic analysis and valuations/damages assessment,insurance claims, coverages and bad faith, real estatebrokerage, appraisal, escrow, and title insurance.


633 West Fifth Street, 31st Floor, Los Angeles, CA90071-2005, (213) 553-2500, fax (213) 553-2699. Web site: www.cornerstone.com. Contact George G.Strong, Jr., Richard W. Dalbeck, Katie J. Galley,Elaine Harwood, Carlyn Irwin, Erin McGlogan, orAshish Pradhan. For more than 25 years, CornerstoneResearch staff have provided economic and financialanalysis in all phases of commercial litigation and regula-tory proceedings. We work with a broad network of tes-tifying experts, including prominent faculty and industrypractitioners, in a distinctive collaboration. The expertswith whom we work bring the specialized expertiserequired to meet the demands of each assignment. Ourareas of specialization include intellectual property,antitrust, securities, entertainment, real estate, financialinstitutions, and general business litigation.

FULCRUM INQUIRY



4910 Campus Drive, Newport Beach, CA 92660-2119,(949) 724-1880, fax (949) 724-1889, e-mail: [email protected]. Web site: www.hayniecpa.com.



Contact Steven C. Gabrielson. Consulting and expertwitness testimony in a variety of practice areas: com-mercial damages, ownership disputes, economic analy-sis, business valuation, lost profits analysis, fraud/foren-sic investigations, taxation, personal injury, wrongfultermination, and professional liability.

FINANCIAL STATEMENTS ANALYSIS


10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected]. Contact CoralHansen. Web site: www.MHM-PC.com, ww.CBIZ.com. CBIZ & Mayer Hoffman McCann PC specializes in fraud investigations, forensic accounting, business litigation, commercial damage and lost profits computa-tions, business valuation and appraisal, transactionaldue diligence, family limited partnerships, business inter-ruption, and family law. We provide experienced experttestimony and tax controversy representation.

FIRE/EXPLOSIONS





THE MCMULLEN COMPANY, INC.

1260 Lake Boulevard, Suite 226, Davis, CA 95616, (888) 747-9857, fax (530) 757-1293, e-mail: [email protected]. Web site: www.themcmullencompany.com. Contact James F.Mc-Mullen, California State Fire Marshal (retired).Senior associates available throughout California.Fire/building code analysis and development, construc-tion defects, code compliance inspections, fireorigin/cause/spread investigation, fire services manage-ment/operations, fire safety-related productanalysis/evaluation, and forensic expert.

FOOD SAFETY/HACCP

FOOD SAFETY AND HACCP COMPLIANCE

20938 De Mina Street, Woodland Hills, CA 91364, (818) 703-7147, e-mail: [email protected]. Web site:www.foodsafetycoach.com. Contact Jeff Nelken, BS,MA. Forensic food safety expert knowledgeable in bothfood safety, accident prevention and hazard analysiscritical control point program development. Specializesin expert witness testimony and litigation consultant inmatters regarding food safety, Q.A., standards of perfor-mance, HACCP, crisis management, food-borne illness,burns, foreign object, accidents, health department rep-resentation, food spoilage, allergy, intentional contami-nation and customer complaints. Performs inspections,vendor audits, training and public speaking. Hands-on


SPECIALIST IN:• Broker duties; Standard of Care• Disclosure Issues – Buyer/Seller• Agency Obligations• Real Estate Malpractice• Mortgage Brokerage Law• Residential & Commercial Transactions

CREDENTIALS:Supervising Broker

Responsible for overseeing more than7,500 RE transactions in major

California-based real estate companies.General Counsel

Legal adviser for two of nation’s largest real estate companies.Adjunct ProfessorLoyola Law SchoolHotline Attorney

Supervising Senior Counsel at California Association of Realtors (CAR)

DRE Master InstructorAuthor, DRE Disclosure Course.

Alan D. Wallace, Esq.14011 Ventura Blvd., Suite 406

Sherman Oaks, CA 91423818/501-0133 n FAX 818/905-6091

www.expertwitnessre.come-mail: [email protected]

EXPERT WITNESS—Real Estate Matters—

For More Information Call 213-617-7775Or visit us on the web at www.hmlinc.com

Business litigation is increasingly complex. That is why we believe valuationissues must be addressed with the same meticulous careas legal issues. Analysis must be clear. Opinions must bedefensible. Expert testimony must be thorough andarticulate. HML has extensive trial experience and canprovide legal counsel with a powerful resource for experttestimony and litigation support.

ConfidenceAtThe Courthouse.

BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS


http://www.expertwitnessre.com

http://www.hmlinc.com

http://www.tasanet.com

food safety consultant for restaurants, manufacturers,distributors, country clubs, schools, nursing homes, andcasinos. NRA SERVSAFE certified instructor. Thirtyyears of food and hospitality experience. Registered as afood handler provider with the Los Angeles CountyHealth Department. Provider # 015. Forensic food safetyexpert. Food safety expert for CBS, NBC, Inside Edition,and CNN. Free consultation for law firms and insurancecompanies.

FORENSIC ACCOUNTING


10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 268-2001,e-mail: [email protected]. Contact CoralHansen. Web site: www.MHM-PC.com, ww.CBIZ.com.CBIZ & Mayer Hoffman McCann PC specializes in fraudinvestigations, forensic accounting, business litigation,commercial damage and lost profits computations, busi-ness valuation and appraisal, transactional due diligence,family limited partnerships, business interruption, andfamily law. We provide experienced expert testimonyand tax controversy representation.



FULCRUM INQUIRY



1940 East 17th Street, Santa Ana, CA 92705, (714)667-2600, fax (714) 667-2636, e-mail: [email protected]. Web site: www.gmgcpa.com. Contact RichardM. Squar. Since 1983, our firm has specialized in deliv-ering forensic accounting and litigation support servicesthat give our clients an edge. We provide the quality anddepth traditionally associated with Big Four firms withthe personal attention and fee structure of a local firm.Our litigation support services include forensic account-ing, investigative auditing, embezzlement and fraud,expert witness testimony, strategy development, docu-ment discovery, deposition assistance, computation ofdamages, arbitration consulting, rebuttal testimony, fidu-ciary accountings, and trial exhibit preparation andreconstruction of accounting records. Our practicefocuses on closely held entrepreneurial firms in the fol-lowing industries: construction, real estate development,equipment leasing, auto parts (wholesale and retail),manufacturing, and professional services Glenn M. Gel-man has been appointed and served as Special Masterin litigation support matters and has testified over 30times. Our comprehensive case list is available upon

request. See display ad on page 41.



PAMELA WAX-SEMUS, CFE

107 North Reino Road, #402, Newbury Park, CA 91320, (805) 499-3035, fax (805) 498-0468, e-mail:[email protected]. Web site: www.tracingqueen.net. Contact Pamela Wax-Semus, CFE. I am experi-enced in most areas of litigation support services with aparticular emphasis in tracing, property allocation, reim-bursements, stock options and related allocationsissues. I have vast experience not only in marital dissolu-tion matters. My expertise expands to trust and probateaccountings, fraud, and other litigation-related matters.



FORENSIC ANALYSIS


10900 Wilshire Boulevard, Suite 610, Los Angeles, CA 90024, (310) 475-5676, fax (310) 475-5268, e-mail:[email protected]. Contact Brian Lewis,CPA, CVA. Forensic accounting, business valuations,cash spendable reports, estate, trust, and income taxservices.

MCGLADREY LLP

515 South Flower Street, 41st Floor, Los Angeles, CA 90071, (213) 330-4605, e-mail: [email protected]. Web site: www.mcgladrey.com.Contact Patrick Chylinski. McGladrey is the 5thlargest accounting and consulting firm in the UnitedStates. Our litigation consulting and financial forensicspractice focuses on assisting counsel and clients in theareas of business and commercial litigation, forensicanalysis, fraud investigations, contract compliance, androyalty inspection matters. We have extensive experi-ence in the areas of damages, lost profits, and forensicanalysis as they relate to contract, post-closing, realestate, and fee disputes. Our experts have experiencetestifying at deposition, arbitration, and at trial in stateand federal courts. Degrees/Licenses: CPAs, MBAs,JDs, CFEs, CVAs, ASAs, CFFs. See display ad onpage 46.

FORENSIC ENGINEERING

ACORN CONSULTING SERVICES, LLC

P.O. Box 68395, Tucson, AZ 85737, (520) 322-6150,fax (520) 577-0851, e-mail: [email protected]. Web site: www.asc-eng.com. Contact Rebecca

Morin. William Acorn is founder and principal of AcornConsulting Services, LLC. As a consulting mechanicalengineer, Bill has more than 35 years of experience as aprofessional engineer and is a recognized expert inassessing, evaluating, remediation and providing testi-mony on complex project design, construction andoperational matters. His consulting expertise has beeninfluential in shaping approaches to code complianceand life safety in semiconductor and similar advancedtechnology facilities. He represents both plaintiff anddefendants. See display ad on page 59.

FORENSIC PATHOLOGY AND TOXICOLOGY

BURR HARTMAN, DO, PHD BURR HARTMAN CONSULTING

Microcorre Dx Lab, 890 Cherry St, Tulare, CA 93274,(559) 686 4000, fax (559) 686 9432, email: [email protected]. Contact Burr Hartman, DO,PhD. Forensic pathologist with PhD in chemistry. Boardcertified in anatomic, clinical and forensic pathology.Practice provides services for Tulare Regional Med Ctr,coroner’s pathology for three sheriff-coroner depart-ments and consultation for Mineral King Toxicology Lab-oratory. Broad-based scientific background and long-standing interest in toxicology. Testified/deposed 100times in last 4 yrs. Interested in technical and scientificissues encountered and not usually encountered in clini-cal practice. See display ad on page 41.

FRAUD INVESTIGATIONS



GEOTECHNICAL ENGINEERING

A & E FORENSICS

2121 Montiel Road, San Marcos, CA 92069, (877) 839-7302, fax (760) 480-7477, e-mail: [email protected]. Web site: www.aeforensics.com. Steve Norris,AIA, PE, GE, HG, CEG, CASp, LEED. Architect, engi-neer, contractor—standard of care expert. Retainedover 200 times, deposed over 100 times, and testified intrial over 20 times. Waterproofing, water intrusion, build-ing envelope, zoning setbacks, concrete performance,path of travel, structural analysis, earthquake-fire dam-age, and plan analysis. Landslides, retaining wall failure,settlement, flooding, grading, septic, expansive soils,mud flows, pavement distress, ground water evaluation,and slope analysis. Cost estimates, construction man-agement, delay analysis, and contracts. Serving all Cali-fornia, Hawaii, and Oklahoma. See display ad onpage 46.

SHEPARDSON ENGINEERING GROUP, INC.

10035 Prospect Avenue, Suite 101, Santee, CA 92071-4398, (619) 449-9830, fax (619) 449-5824, e-mail:[email protected]. Contact Don Shepardson.Over 50 years as a geotechnical engineer of record onresidential, commercial, and governmental projects. Pro-jects range from 6,000 AC subdivisions to multistorycommercial buildings. Over 40 years of experience as adesignated expert with extensive court experience,including electronic data presentations. Professionalengineer license in 10 states, prior contractor license inengineering, concrete, and grading (inactive).

GERIATRICS

HAMPTON HEALTH, LTD JOHN H. FULLERTON, MD, MRO, CMD, CFP,FACP, AGSF, FAAHPM

1700 California Street, Suite 470, San Francisco, CA94109, (415) 460-5532, fax (415) 459-2774, e-mail:[email protected]. Web site: hamptonhealthltd



.com. Contact Kate McElroy, PA-C. Services avail-able: Board Certified in Internal Medicine, Geriatrics,Hospice, Palliative Medicine, Addiction Medicine, andHome Health; Licensed Medical Review Officer. Exper-tise: Medicare fraud cases for the government, toxicol-ogy/DUI, elder abuse including criminal defense of laycaregivers accused of homicide of demented relativesduring end-of-life phase. Hospital, ambulatory/outpa-tient, PI, medical malpractice, and LTC. Medical/hospicedirectorships. Testified over 200 times and reviewedmore than 1,500 cases, including Medicare audits forthe government. See display ad on page 41.

GOLF

MICHAEL S. JOHNSTONE, AIA

15 Southern Fairway Court, Etowah Valley, NC 28729,(828) 891-7990, e-mail: [email protected]. Web site: www.johnstonearch.com. Contact Michael S.Johnstone, AIA. Golf course architect, expert witnessand forensic study for wrongful death, accident, injury,errant ball shot, drowning, golf cart rollover, slip and fall,premises liability, golf course design, safety, construc-tion, nets and barriers, property damage. 80+ golfcourse accident investigations across the United States,including testimony, reports, site surveys, graphics, con-struction analysis, and replacement estimates. 30 yearsarchitectural design and construction managementexperience for golf courses and clubhouses, drivingranges, learning centers, and parking lots.

HANDWRITING


1132 San Marino Drive, Suite 216, Lake San Marcos,CA 92078, (760) 931-2529, fax (760) 510-8412, e-mail:[email protected]. Contact Sandra L.Homewood. Highly skilled and experienced documentexaminer and expert witness in many complex and highprofile civil and criminal cases with fully equipped document laboratory. Specializing in handwriting andhandprinting identification, handwriting of the elderly infinancial elder abuse cases and will contests, and exami-nation of altered medical and corporate records. Trainedin government laboratory including specialized trainingby the FBI and Secret Service. Former governmentexperience includes document examiner for the SanDiego Police Department crime lab, Arizona State crimelab, San Diego County District Attorney’s office and SanLuis Obispo and Santa Barbara District Attorney offices.Currently in private, criminal, and civil practice.

HOSPICE/PALLIATIVE MEDICINE



HUMAN FACTORS

ANALYTICA SYSTEMS INTERNATIONAL, INC.

Gary M. Bakken, PhD, CPE, Adjunct Associate Profes-sor BSE-Mechanical Engineering, MS-Safety, PhD-Industrial Engineering (human factors, ergonomics, bio-mechanics). (520) 882-5494, e-mail: [email protected] site: www.asi-az.com. Analysis of personal injuryand product design matters from an engineering andhuman performance perspective. Exemplar applications:transportation operators (railroad, trucks, cars, motorcy-cles, bicycles, ATVs, carts, forklifts), occupant kinemat-ics & biomechanics, low-speed impacts, pedestrians,



http://www.4xforensic.com

http://www.scoi.com

http://www.quikpage.com/M/millerjd

slips-trips-missteps, falls, lighting, visibility, warnings-instructions, decision-making and risk, work and designprocedures, customer and employee injuries, play-grounds (public, schools, theme parks), hotels, casinos,construction, machine guards, trash transfer stations,falling objects, workplace and ADA issues.

INSURANCE



E.L. EVANS ASSOCIATES

3310 Airport Avenue, Suite # 7, Santa Monica, CA90405, (310) 559-4005, fax (310) 559-4236, e-mail: [email protected]. Contact Gene Evans. Goodfaith/bad faith. Over 45 years’ experienceæclaimsadjuster. Standards and practices in the industry, litiga-tion support, claims consultation, case review and evalu-ation, property/casualty claims, construction claims,uninsured/underinsured motorist claims, general liability,fire/water/mold claims, damage assessment, profes-sional liability claims, appraisal under policy, arbitration,duty to defend, advertising claims, coverage applica-tions, and suspected fraud claims. CV available onrequest. See display ad on page 51.

LAUNIE ASSOCIATES, INC.

2627 Tunnel Ridge Lane, Santa Barbara, CA 93105,(805) 569-9175, fax (805) 687-8597, e-mail: [email protected]. Contact Joseph J. Launie, PhD, CPCU,insurance professor, author, and consultant. Over30 years of experience as expert witness in state andfederal courts. Coauthor of books and articles on under-writing, insurance company operations, and punitivedamages. Consulting, expert witness on underwriting,company and agency operations, and bad faith.

CLINTON E. MILLER, JD, BCFE INSURANCE BAD FAITH EXPERT

502 Park Avenue, San Jose, CA 95110, (408) 279-1034, fax (408) 279-3562, e-mail: [email protected] Clint Miller. Insurance expert regardingclaims, underwriting, agent and brokers errors and omis-sions, coverage disputes, customs and practices, andbad faith. See display ad on page 57.

JANICE A. RAMSAY, ATTORNEY

5 Saros, Irvine, CA 92603, (949) 854-9375, (949) 400-5040 (cell), fax (949) 854-0073, e-mail:[email protected]. Contact Janice A. Ramsay. Experienced in testi-fying in depositions and atbad-faith trials as an expert inthe customs and practices of the property insuranceindustry in evaluating coverage and handling personallines and commercial prop insurance claims. Has testi-fied for insurers, insureds, and brokers. Practiced law inproperty insurance specialty since 1971. Also acts asInsurance Code Section 2071 appraiser, adviser, andconsultant. Chairperson of the OCBA Insurance LawSection for 2014.

BARRY ZALMA, ZALMA INSURANCE CONSULTANTS

4441 Sepulveda Boulevard, Culver City, CA 90230,(310) 390-4455, fax (310) 391-5614, e-mail: [email protected]. Web site: www.zalma.com. Blog:http://zalma.com/blog. Contact Barry Zalma. Insur-ance bad faith, insurance claims handling, insurancecoverage, insurance fraud and consulting, internationallyrecognized expert, consultants and insurance author,arbitrator and blogger.

INTELLECTUAL PROPERTY



FULCRUM INQUIRY

888 South Figueroa Street, Suite 2000, Los Angeles, CA90017, (213) 787-4100, fax (213) 891-1300, e-mail:[email protected]. Web site: www.fulcrum.com.Contact David Nolte. Our professionals are experi-enced CPAs, MBAs, ASAs, CFAs, affiliated professors,and industry specialists. Our analysis and research com-bined with unique presentation techniques have resultedin an unequaled record of successful court cases andclient recoveries. Our expertise encompasses damagesanalysis, loss profit studies, business and intangibleasset valuations, fraud investigations, statistics, forensiceconomic analysis, royalty audits, strategic and marketassessments, competitive surveys, analysis of comput-erized data, injury and employment damages, and awide range of other financial advisory services. Degrees/licenses: CPAs, CFAs, ASAs, PhDs and MBAs inaccounting, finance, economics, and related subjects.See display ad on back cover.



INTERNAL MEDICINE



JUDICIAL ETHICS

OSBORN MALEDON, P.A.

2929 North Central Avenue, Suite 2100, Phoenix, AZ85012, (602) 640-9324, fax (602) 640-9050, e-mail:[email protected]. Web site: www.omlaw.com.Contact Mark I. Harrison, Esq. Available for expertand consulting engagements involving the legal profes-sion and judiciary, including: legal ethics, judicial ethicsand judicial discipline. Retained as a testifying and/orconsulting expert witness in legal or judicial ethics mat-ters in more than 170 cases. Deposed or testified inmore than 20 matters over the past 12 years.

LEGAL ETHICS


2929 North Central Avenue, Suite 2100, Phoenix, AZ85012, (602) 640-9324, fax (602) 640-9050, e-mail:[email protected]. Web site: www.omlaw.com.Contact Mark I. Harrison, Esq. Available for expertand consulting engagements involving the legal profes-sion and the judiciary, including: legal ethics, judicialethics, professional liability (including standard of careand breach of fiduciary duty), professional licensure, riskmanagement issues and judicial ethics and judicial disci-pline. Retained as a testifying and/or consulting expertwitness in legal or judicial ethics matters in more than170 cases. Deposed or testified in more than 20 mattersover the past 12 years.

LEGAL MALPRACTICE

LAWRENCE H. JACOBSON, ESQ.

9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA90212, (310) 271-0747, fax (310) 271-0757, e-mail:[email protected]. Web site: www.lawrencejacobson.com. Past President, Beverly Hills Bar Association.Expert witness: lawyer malpractice in business and realestate transactions, standard of care for real estate bro-kers and mortgage brokers, and real estate documentcustom and usage. Practicing real estate and businesslaw in California since 1968. See display ad on page 61.


2929 North Central Avenue, Suite 2100, Phoenix, AZ85012, (602) 640-9324, fax (602) 640-9050, e-mail:[email protected]. Web site: www.omlaw.com.Contact Mark I. Harrison, Esq. Available for expertand consulting engagements involving the legal profes-sion and the judiciary, including: legal ethics, profes-sional liability (including standard of care and breach offiduciary duty), professional licensure, risk managementissues and judicial ethics and judicial discipline. Retainedas a testifying and/or consulting expert witness in legalor judicial ethics matters in more than 170 cases.Deposed or testified in more than 20 matters over thepast 12 years.

LAW OFFICES OF CHRISTOPHER ROLIN

5707 Corsa Avenue, Suite 106, Westlake Village, CA91362, (818) 707-7065, fax (818) 735-9992, e-mail:[email protected]. Web site: www.chrisrolin.com.Contact Christopher Rolin. Christopher Rolin is ahighly effective trial attorney with over 46 years in civil liti-gation. He is a certified specialist in legal malpractice. Hispractice focuses as an expert witness on the applicablecommunity standard of care for practicing attorneys inthe litigation and business areas. He has been retainedas an expert by both plaintiffs and defendants in legalmalpractice cases. Also testifies on issues of profes-sional ethics and fee disputes.

LITIGATION

ROBERT C. ROSEN

Citigroup Center, 444 South Flower Street, 30th Floor,Los Angeles, CA 90071, (213) 362-1000, fax (213) 362-1001, e-mail: [email protected]. Web site:www.rosen-law.com. Specializing in securities law, fed-eral securities law enforcement, securities arbitration,and international securities, insider trading, NYSE,AMEX, FINRA, DOC disciplinary proceedings, broker-dealer, investment company and investment advisermatters, liability under federal and state securities laws,



public and private offerings, Internet securities, and lawfirm liability. AV rated. Former chair, LACBA Businessand Corporations Law Section. LLM, Harvard LawSchool. Forty years practicing securities law, 12 yearswith the U.S. Securities and Exchange Commission,Washington, DC. Published author/editor of securitiesregulations, including multivolume treatises. See displayad on page 61.

LITIGATION SURVEY

MMR STRATEGY GROUP

16501 Ventura Boulevard. Suite, Suite 601, Encino, CA91436, (818) 464-2400, fax (818) 464-2399, e-mail:[email protected]. Web site: www.mmrstrategy.com. Contact Cheryl Jaffe. MMR Strategy Group(MMR) provides trial ready surveys, rebuttals, and expertwitness services in marketing for intellectual property liti-gation. Our studies measure consumer attitudes andbehaviors for matters involving topics such as confusion,secondary meaning, deceptive advertising, dilution, andclaim substantiation. We work on matters involvingtrademarks, copyrights, advertising, pricing, and otherintellectual property issues.

LOST PROFITS ANAYLSIS

MCGLADREY LLP

515 South Flower Street, 41st Floor, Los Angeles, CA 90071, (213) 330-4605, e-mail: [email protected]. Web site: www.mcgladrey.com. Contact Patrick Chylinski. McGladrey is the 5thlargest accounting and consulting firm in the UnitedStates. Our litigation consulting and financial forensicspractice focuses on assisting counsel and clients in theareas of business and commercial litigation, forensicanalysis, fraud investigations, contract compliance, androyalty inspection matters. We have extensive experi-ence in the areas of damages, lost profits, and forensicanalysis as they relate to contract, post-closing, realestate, and fee disputes. Our experts have experiencetestifying at deposition, arbitration, and at trial in stateand federal courts. Degrees/Licenses: CPAs, MBAs,JDs, CFEs, CVAs, ASAs, CFFs. See display ad onpage 46.

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TASAmed (A DIVISION OF THE TASA GROUP,INC.) FOR LOCAL AND NATIONAL MEDICALEXPERTS

Customized Expert Referrals in all Medical PracticeAreas. (800) 659-8464, fax (800) 850-8272, e-mail:[email protected]. Web site: www.TASAmed.com. Contact Linda Bartorillo. FIND THE TESTIFY-ING OR CONSULTING MEDICAL EXPERT YOU NEEDquickly with one call or click to TASAmed. We refer avariety of quality, independent and experienced med-ical experts—including hard-to-find-specialists—forcase merit reviews, testimony at deposition or trial,research, IME’s, and more in 1,000+ medical fields.Our skilled Referral Advisors • target your criteria • for-ward resumes for your review and • help arrange yourinitial telephone screening interviews with experts. • Nocharge unless you designate or engage an expert werefer • Plaintiff or defense • Local, regional, nationalreferrals. • Exceptional personal service. Sample cate-gories include anesthesiology, cardiology, dentistry,emergency medicine, forensic pathology, generalsurgery, hospital administration, neurology, nursinghomes, OB/GYN, oncology, orthopedics, pediatrics,pharmacology, plastic surgery, psychiatry, radiology,and more. Visit TASAmed.com, where you can searchexpert profiles by expertise key word, order indispens-able research reports on experts, request an expert onour online form, and discover E-discovery services andsolutions. Please see our insert in this issue anddisplay ad on page 55.

MEDICAL/CARDIOVASCULAR DISEASES

HAROLD L. KARPMAN, MD, FACC, FACP

Cardiovascular Medical Group of Southern California,Inc., Clinical Professor of Medicine, David GeffenSchool of Medicine, UCLA. 414 North Camden Drive#1100, Beverly Hills, CA 90210, (310) 278-3400, fax(310) 887-2979. Contact Harold L. Karpman, MD,FACC, FACP. Cardiovascular diseases (cardiologyand medical vascular problems), and internal medi-cine. Special expertise in coronary disease, valvularheart disease, arrhythmias, devices, hypertension, drugstudies, product liability, bacterial endocarditis, angio-plasty, CABG, etc. Expert and reviewer with 40+ yearsof experience.

MEDICAL/NEUROLOGY

JONATHAN S. RUTCHIK, MD, MPH, QME, AME

20 Sunnyside Avenue, Suite A-321, Mill Valley, CA94941, (415) 381-3133, fax (415) 381-3131, e-mail:[email protected]. Web site: www.neoma.com.Jonathan S. Rutchik, MD, MPH is a physician who isboard certified in both Neurology and Occupational andEnvironmental Medicine, and an Associate Professor atUCSF. He provides clinical evaluations and treatment,including electromyography, of individuals and popula-tions with suspected neurological illness secondary toworkplace injuries or chemical exposure. Servicesinclude medical record and utilization review and con-sulting to industrial, legal, government, pharmaceutical,and academic institutions on topics such as metals andsolvents, pesticides, mold exposures, product liability,musicians’ injuries, and others. Offices in SF, Richmond,Petaluma, Sacramento, and Eureka/Arcata. Licensed inCA, NY, MA, NM and ID. See display ad on page 63.

MEDICAL/NEUROLOGY/PERSONALINJURY

ANDREW WOO, MD, PHD

2021 Santa Monica Boulevard, Suite 525-E, Santa Monica, CA 90404, (310) 829-2126, fax (310) 998-8887. Contact Gail. Board-certified neurology, clinical assistant professor UCLA, personal injury, pain,carpal tunnel, spine, memory, seizure, sleep, and clinicalprotocols. Multiple sclerosis, migraine, and stroke. Edu-cation: AB Cornell University, MD and PhD Brown Uni-versity, residency + EMG/EEG fellowship UCLA, Advi-sory Boards: L.A. Neurologic Society, St. John’s SleepLab, honors: America’s Top Physicians (ConsumerResearch Consul of America) 2006-2013, Who’s Who inMedicine (2001) and science/engineering (1993), inter-national electrophysiology Young Investigator (1997),UCLA Neurology Teaching Awards (1994, 1996, 2006,2012), American Academy Neurology Research (1991),Brown University Sigma XI (1989), and research/publica-tions (22), lectures (>1000).

MEDICAL/PHYSICAL THERAPY

DR. JOYCE M. CAMPBELL, PHD, PT, EN

3336 Winlock Road, Torrance, CA 90505, (310) 539-3143, e-mail: [email protected]. Over 40 years inphysical therapy practice (acute, rehab and outpatient);certified electroneuromyographer, professor of PT inDPT curriculum, peer review/expert consultant and wit-ness since 1978 (both defense and plaintiff). Expertise/research: musculoskeletal, neuromuscular, peripheraland central nervous system disorders (CVA, TBI, SCI,CP, MS, peripheral neuropathy), and clinical applicationsof electrical stimulation.

MEDICAL/TOXICOLOGY

JONATHAN S. RUTCHIK, MD, MPH, QME, AME

20 Sunnyside Avenue, Suite A-321, Mill Valley, CA94941, (415) 381-3133, fax (415) 381-3131, e-mail:[email protected]. Web site: www.neoma.com.Jonathan S. Rutchik, MD, MPH is a physician who isboard certified in both Neurology and Occupational andEnvironmental Medicine, and an Associate Professor atUCSF. He provides clinical evaluations and treatment,including electromyography, of individuals and popula-tions with suspected neurological illness secondary toworkplace injuries or chemical exposure. Servicesinclude medical record and utilization review and con-sulting to industrial, legal, government, pharmaceutical,and academic institutions on topics such as metals andsolvents, pesticides, mold exposures, product liability,musicians’ injuries, and others. Offices in SF, Richmond,Petaluma, Sacramento, and Eureka/Arcata. Licensed inCA, NY, MA, NM and ID. See display ad on page 63.

MEDICAL LEGAL

ROUGHAN & ASSOCIATES AT LINC, INC.

114 West Colorado Boulevard, Monrovia, CA 91016,(626) 303-6333, fax (626) 303-8080, e-mail: [email protected]. Contact Jan Roughan at ext. 216. Specialties:Roughan and Associates at LINC is a case managementand medical/legal consulting firm. Services/productsoffered include: 1) Expert Testimony, 2) Life Care Plan(LCP) Construction/LCP Critique, 3) Medical RecordOrganization/Summarization/Analysis, 4) Medical BillAuditing, 5) Expert Witness Identification, 6) IME Atten-dance, 7) Video Services (e.g., Day In Life, SettlementBrief, IME Evaluation, NDT/PT Evaluation, etc.), 8) Ques-tions for: Deposition/Cross Examination , 9) Medical/Psychiatric Case Management. See display ad onpage 49.

MEDICAL MALPRACTICE


1700 California Street, Suite 470, San Francisco, CA94109, (415) 460-5532, fax (415) 459-2774, e-mail:[email protected]. Web site: hamptonhealthltd.com. Contact Kate McElroy, PA-C. Services avail-able: Board Certified in Internal Medicine, Geriatrics,Hospice, Palliative Medicine, Addiction Medicine, andHome Health; Licensed Medical Review Officer. Exper-tise: Medicare fraud cases for the government, toxicol-

ogy/DUI, elder abuse including criminal defense of laycaregivers accused of homicide of demented relativesduring end-of-life phase. Hospital, ambulatory/outpa-tient, PI, medical malpractice, and LTC. Medical/hospicedirectorships. Testified over 200 times and reviewedmore than 1,500 cases, including Medicare audits forthe government. See display ad on page 41.

METALLURGICAL AND CORROSIONENGINEER






Testing and Research Labs, 2528 West WoodlandDrive, Anaheim, CA 92801-2636, (714) 527-7100, fax(714) 527-7169, e-mail: [email protected]. Web site:www.karslab.com. Contact Dr. Ramesh Kar, Dr.Naresh Kar, Dr. Nikhil Kar. Southern California’s pre-miermaterials/mechanical/metallurgical/structural/foren-sics laboratory. Registered professional engineers with30+ years in metallurgical/forensic/structural/mechanicalfailure analysis. Experienced with automotive, bicycles,tires, fire, paint, plumbing, corrosion, and structural fail-ures. We work on both plaintiff and defendant cases.Complete in-house capabilities for tests. Extensivedeposition and courtroom experience (civil and criminalinvestigations). Principals are Fellows of American Soci-ety for Metals and Fellows, American College of ForensicExaminers. See display ad on page 59.

METALLURGY


Testing and Research Labs, 2528 West WoodlandDrive, Anaheim, CA 92801-2636, (714) 527-7100, fax(714) 527-7169, e-mail: [email protected]. Web site:www.karslab.com. Contact Dr. Ramesh Kar, Dr.Naresh Kar, Dr. Nikhil Kar. Southern California’s pre-mier materials/mechanical/metallurgical/structural/foren-sics laboratory. Registered professional engineers with30+ years in etallurgical/forensic/structural/mechanicalfailure analysis. Experienced with automotive, bicycles,tires, fire, paint, plumbing, corrosion, and structural fail-ures. We work on both plaintiff and defendant cases.Complete in-house capabilities for tests. Extensivedeposition and courtroom experience (civil and criminalinvestigations). Principals are Fellows of American Soci-ety for Metals and Fellows, American College of ForensicExaminers. See display ad on page 59.

METEOROLOGY

AIR, WEATHER, AND SEA CONDITIONS, INC.

P.O. Box 512, Pacific Palisades, CA 90272, (818)



645-8632, fax (310) 454-7569, e-mail: [email protected]. Web site: www.weatherman.org. Contact Jay Rosenthal, AMS Certified Consulting Meteorolo-gist (CCM). Experienced and authoritative expert testi-mony, reports and analyses of wind, rain, storms, light-ning, climatic conditions, flooding, waves, specialist inwildfires, ice, dust, auto/boat/ship/aircraft accidentreconstruction, property damage, slip and falls, con-struction, mold issues, homeland security applications,air pollution, transport, and risk identification. Movieindustry applications, cinematography, and visualeffects. Determining unusualness, normalcy, and fore-seeability. Official data, site visits, clear and convincingtestimony. See display ad on page 48.

NURSING/SURGERY/MEDSURG

MED-LINK CONSULTATION

3362 Budleigh Drive, Hacienda Heights, CA 91745,(626) 333-5110, fax (626) 968-0064, e-mail: [email protected]. Contact DorothyPollock, RN, LNCC. Registered nurse with over 40years of clinical experience. Nontestifying servicesinclude case analysis/for merit, chronology, translation,written reports, medical record organization. DME/IMEaccompaniment including CD recording and writtenreport. Expert witness and testifying services, includingaffidavit, arbitration, declaration, letters, and trial. Court-room experienced both plaintiff and defense.

ORTHOPEDIC SURGEON

MARC J. FRIEDMAN, MD

6815 Noble Avenue, Van Nuys, CA 91405, (818) 901-6600, fax (818) 901-6685, e-mail: [email protected] site: www.scoi.com. Contact Vanessa Espinal,ext 2810/2910. Orthopedic shoulder and knee, consult-ing, and expert witness testimony. IME, AME, QME, andworkers’ compensation evaluations. See display ad on page 57.

WILLIAM B. STETSON, MD

191 South Buena Vista Street, Suite 470, Burbank, CA 91505, (818) 848-3030, fax (818) 848-2228, e-mail: [email protected]. Web site: www.sportsmedicinedr.com. Contact W. Stetson, MD. Dr.Stetson is fellowship trained in arthroscopic surgery ofthe shoulder, knee, elbow, and ankle. He is an AssociateClinical Professor of orthopedic surgery at the USC KeckSchool of Medicine. He also has extensive experience insports medicine and orthopedic trauma.

PEDIATRIC EXPERT WITNESS

MICHAEL WEINRAUB, MD, FAAP

515 South Flower Street, Suite 3600, Los Angeles, CA 90071, (213) 236-3662, fax (213) 236-3663, e-mail: [email protected]. Web site: www.michaelweinraubmd.com. Experience in general pedi-atrics applied to your legal questions. Contact Dr.Michael Weinraub. Board Certified Pediatrician. Childabuse and neglect, Munchausen syndrome by proxy,shaken baby syndrome (SBS), lead poisoning, fetal alco-hol spectrum disorder (FASD), pediatric malpractice,childhood injury and product liability, developmental dis-abilities (autism), healthcare of foster children, and adop-tion/custody evaluation for health supervision concerns.

PERSONAL INJURY

KGA, INC.

1409 Glenneyre Street, Suite A, Laguna Beach, CA92651, (949) 497-6000, fax (949) 494-4893, e-mail:[email protected]. Web site: www.kgainc.com.Contact Kurt Grosz. Construction and environmentalconsultants since 1991. Licensed engineers and con-tractors. ICC building, plumbing, mechanical, concreteand accessibility inspectors. Certified professional estimators. Trial experts, arbitrators, and insuranceappraisers/umpires.


15490 Ventura Boulevard, Suite 300, Sherman Oaks,CA 91403, (818) 981-4226, fax (818) 981-4278, 4 ParkPlaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax(949) 219-9095, e-mail: [email protected]. Web site:www.wzwlh.com. Contact Barbara Luna. Expert wit-


Citigroup Center • 444 S. Flower Street, 30th Floor • Los Angeles, CA 90071

Securities & Business LawSEC Enforcement Defense

International Business & Securities Class & Derivative Actions

Insider Trading

Broker-Dealer, Investment Company & Investment Adviser MattersLiability Under Federal & State Securities Laws

Internet SecuritiesSecurities Arbitration

Law Firm Liability

AV Rated, Former Chair, LACBA Business & Corporations Law Section, LLM Harvard Law School40 years practicing Securities and Business Law, 12 years with the U.S. Securities and Exchange

Commission, Washington D.C. Published Author of Securities Regulations, including eight volume treatise.

NYSE, AMEX, FINRA, DOC Disciplinary Proceedings

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ness testimony for complex litigation involving damageanalyses of lost profits, unjust enrichment, reasonableroyalties, lost earnings, lost value of business, forensicaccounting, fraud investigation, investigative analysis ofliability, and marital dissolution, and tax planning andpreparation. Excellent communicators with extensivetestimony experience. Prior Big Four accountants. Spe-cialties include accounting, breach of contract, breach offiduciary duty, business interruption, business dissolu-tion, construction defects, delays, and cost overruns,fraud, insurance bad faith, intellectual property (includingtrademark, patent, and copyright infringement, and tradesecrets), malpractice, marital dissolution, personal injury,product liability, real estate, securities, tax planning andpreparation, IRS audit defense, tracing, unfair advertis-ing, unfair competition, valuation of businesses, andwrongful termination. See display ad on page 47.



PLASTIC AND COSMETIC RECONSTRUCTIVE SURGERY

BRENT MOELLEKEN, MD, FACS.

120 South Spalding Drive, Suite 110, Beverly Hills, CA90212, (310) 273-1001, fax: (310) 205-4881. Web site:www.drbrent.com. Contact Penny. IME, deposition,trial, medial record review, plastic and reconstructionsurgery, and laser scar services.

PLASTIC SURGERY/BURN SPECIALIST

JEFFREY L. ROSENBERG, MD

1245 Wilshire Boulevard, Suite 601, Los Angeles, CA90017, (213) 977-0257, fax (213) 977-0501, e-mail:[email protected]. Web site: www.jrosenbergmd.com. Contact Jackie or Judy. Plastic and recon-structive surgery, burn specialist. Diplomate, AmericanBoard of Plastic Surgery. Member, American BurnAssociation and American Society of Plastic Surgeons.

PLASTICS


Testing and Research Labs, 2528 West WoodlandDrive, Anaheim, CA 92801-2636, (714) 527-7100, fax(714) 527-7169, e-mail: [email protected]. Web site:www.karslab.com. Contact Dr. Ramesh Kar, Dr.Naresh Kar, Dr. Nikhil Kar. Southern California’s pre-mier materials/mechanical/metallurgical/structural/foren-sics laboratory. Registered professional engineers with30+ years in metallurgical/forensic/structural/mechani-cal failure analysis. Experienced with automotive, bicy-cles, tires, fire, paint, plumbing, corrosion, and structuralfailures. We work on both plaintiff and defendant cases.Complete in-house capabilities for tests. Extensivedeposition and courtroom experience (civil and criminalinvestigations). Principals are Fellows of American Soci-ety for Metals and Fellows, American College of Foren-sic Examiners. See display ad on page 59.

PLUMBING


5262 Oceanus Drive, Huntington Beach, CA 92649,(714) 450-8500, fax (714) 450-8599, e-mail: [email protected]. Web Site: www.4Xforensic.com.Contact Phil Van Herle. 4X Forensic Engineering Lab-oratories is a full-service forensic engineering laboratory.We provide expert witness and analytical and testingservices in the following areas: fires and explosions:

electrical and gas product defect investigations, thermaland fire modeling and laboratory testing water loss:materials, corrosion and failure analysis of plumbingproducts; failure analysis: metallurgy, product testing,and computerized stress analysis, accident reconstruc-tion: automotive, trucks, construction equipment, andpremises liability. See display ad on page 57.

PODIATRY—FOOT SPECIALIST

STEVEN L. ROSENBERG, DPM

2901 Wilshire Boulevard, Suite 110, Santa Monica, CA90403, (310) 828-3336, fax (310) 828-0096,e-mail:[email protected]. Web site: www.rosenbergstevendpm.com. Expert witness, plaintiff and defense, IME, podi-atric surgery, medicine, sports medicine, trauma injuriesand pain management. Second opinion reports, x-rayreview, and evaluations. Treating all ages, infants, chil-dren and adults. Over 30 years of experience.

PROBATE LAW

HONORABLE ANITA RAE SHAPIRO

Superior Court commissioner (Retired), P.O. Box 1508, Brea, CA 92822-1508, e-mail: [email protected]. Web site: http://adr-shapiro.com.Retired Los Angeles Superior Court commissioner (15years) available to serve as a probate expert witness incases involving wills and trust issues. Presided in LongBeach Probate Department five years. See display adon age 4.

PSYCHIATRY

MARIA T. LYMBERIS, MD, INC.1500 Montana Avenue, Suite 201, Santa Monica, CA90403, (310) 451-3152, fax (310) 310-2620, e-mail:[email protected]. Web site: www.lymberis.com.Contact Maria T. Lymberis, MD. Clinical Professor ofPsychiatry, UCLA School of Medicine. Board Certified inadult, child/adolescent psychiatry, expert consultantMedical Board of California, forensic expert for psychi-atric malpractice, sexual harassment, posttraumatic



stress cases, and divorce/child custody and psychiatricevaluations for: fitness for duty and competency tostand trial.

PSYCHIATRY/PSYCHOLOGY

BRIAN P. JACKS, MD, F.A.A.C.P.

9730 Wilshire Boulevard, Suite 108, Beverly Hills, CA 90212, (310) 274-0684, e-mail: [email protected] Serena Lee. Clinical Professor of PsychiatryUSC. Over 25 years of trial experience in child sexabuse, workers’ compensation, personal injury, mal-practice, PTSD, psychopharmacology, sex harassment,bullying, discrimination, child custody, neuropsychiatryand (head injury). Board Certified: adult, 1974, child-adolescent, 1976.

QUANTITATIVE ANALYSIS


10474 Santa Monica Boulevard, Suite 200, Los Ange-les, CA 90025, (310) 268-2000, fax (310) 268-2001,e-mail: [email protected]. Contact Coral Hansen.Web site: www.MHM-PC.com, www.CBIZ.com. CBIZ& Mayer Hoffman McCann PC specializes in fraudinvestigations, forensic accounting, business litigation,commercial damage and lost profits computations,business valuation and appraisal, transactional due diligence, family limited partnerships, business interrup-tion, and family law. We provide experienced expert testimony and tax controversy representation.

QUESTIONED DOCUMENTS


1132 San Marino Drive, Suite 216, Lake San Marcos,CA 92078, (760) 931-2529, fax (760) 510-8412,e-mail: [email protected]. Contact Sandra L. Homewood. Highly skilled and experienceddocument examiner and expert witness in many com-plex and high profile civil and criminal cases with fullyequipped document laboratory. Specializing in hand-writing and handprinting identification, handwriting ofthe elderly in financial elder abuse cases and will con-tests, and examination of altered medical and corporaterecords. Trained in government laboratory includingspecialized training by the FBI and Secret Service. For-mer government experience includes document exam-iner for the San Diego Police Department crime lab, Ari-zona State crime lab, San Diego County DistrictAttorney’s office and San Luis Obispo and Santa Bar-bara District Attorney offices. Currently in private, crimi-nal, and civil practice.

REAL ESTATE


18881 Von Karman, Suite 1175, Irvine, CA 92612, (949) 263-8700, fax (949) 263-0770, e-mail: [email protected]. Web site: www.mcsassociates.com. Contact Norman Katz, managing partner.Nationally recognized banking, finance, insurance, andreal estate consulting group (established 1973). Experi-enced litigation consultants/experts include seniorbankers, lenders, consultants, economists, accoun-tants, insurance underwriters/brokers. Specialtiesinclude: lending customs, practices, policies, in alltypes of lending (real estate, subprime, business/com-mercial, construction, consumer/credit card), bankingoperations/administration, trusts and investments, eco-nomic analysis and valuations/damages assessment,insurance claims, coverages and bad faith, real estatebrokerage, appraisal, escrow, and title insurance.

FORRY LAW GROUP; CARES REALTY INC.

15501 San Fernando Mission Boulevard, Suite 309,Mission Hills, CA 91345, (818) 361-1321, fax (818)365-6522, e-mail: [email protected]; [email protected]. Web site: www.forrylaw.com. Contact Craig B.Forry, JD, GRI, Realtor. Expert witness/consultant,broker/agent standard of care, escrow, real estatedamages, foreclosure, real estate disclosure, HOA,landlord-tenant, leases--, mortgages, transactions, res-idential and commercial, business agent/broker stan-dard of care, and legal malpractice. Available for con-sultations, depositions, and courtroom testimony.

Degrees/licenses: BA, JD; California attorney for 29years. California broker for 9 years, Realtor; GraduateRealtor Institute. Memberships: National and CaliforniaAssociation of Realtors; Southland Regional Associa-tion of Realtors; California State Bar; LACBA.

FORSTER REALITY ADVISORS

11400 West Olympic Boulevard, Suite 200, Los Ange-les, CA 90064, (888) 977-8989, fax: (424) 203-2038, e-mail: [email protected]. Web site:www.realtyforensics.com. Contact Eric Forster,MBA, MAFF. Real estate and mortgage fraud, industrystandards and practices. Commercial damages andloss of profits. Eric Forster has served as a specialmaster of the court in a massive mortgage fraud caseand is former chair of the ABA Expert Witness sub-committee.

LAWRENCE H. JACOBSON, ESQ.

9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA90212, (310) 271-0747, fax (310) 271-0757, e-mail:[email protected]. Web site: www.lawrencejacobson.com. Past President, Beverly Hills Bar Association.Expert witness: lawyer malpractice in business and realestate transactions, standard of care for real estate bro-kers and mortgage brokers, and real estate documentcustom and usage. Practicing real estate and businesslaw in California since 1968. See display ad on page 61.

MAURICE ROBINSON AND ASSOCIATES LLC

28 Dover Place, Manhattan Beach, CA 90266, (310) 640-9656, fax (310) 640-9276, e-mail: [email protected]. Web site: www.mauricerobinson.com. Contact R. Maurice Robinson, president.Hotel and real estate industry business issues, includingmarket, economic and financial feasibility, valuation, anddisputes between owner-operator, borrower-lender,and franchisor-franchisee. Fluent in management con-tracts, license agreements, ground and building leases,partnership and JV agreement, concession contracts,development agreements, and loan docs. Can estimatedamages and appraise property values under multiple

scenarios. Expert witness testimony, litigation strategy,consultation and support, damage calculations, lostprofits analysis, real estate appraisals, deal structuring,workouts, new development, strategic planning, marketdemand assessment, acquisition due diligence, andeconomic, financial, and investment analysis.

RODINO ASSOCIATES

11661 San Vicente Boulevard, Suite 306, Los Angeles,CA 90049, (310) 459-9474, e-mail: [email protected]. Web site: www.RodinoAssociates.com. ContactRobert J. Rodino, Ph.D. Research, report prepara-tion, deposition, court testimony in all major propertytypes, for multi-family residential, retail, office and lightindustrial, acquisition & disposition, development, man-agement, leasing, investment analysis, brokerage, andmarket research.

ALAN D. WALLACE, ESQ.

14011 Ventura Boulevard, Suite 406, Sherman Oaks,CA 91423, (818) 501-0133, fax (818) 905-6091, e-mail:[email protected]. Contact Alan D. Wallace,Esq. Expert witness and litigation consulting for generalreal estate matters, including law, custom and practice,agency, disclosure, broker malpractice, standards ofcare for brokers, buyers and sellers. Broker and attor-ney. Involved as broker in more than 7,500 real estatetransactions. Department of Real Estate master instruc-tor and author, Adjunct Professor Loyola Law School,former CAR Hotline attorney, University Law Professorin real estate. Successfully testified in dozens of cases.See display ad on page 55.


400 Continental Boulevard, Sixth Floor, El Segundo, CA90245, (310) 322-7744, fax (424) 285-5380. Web site:www.waronzof.com. Contact Timothy R. Lowe, MAI,CRE. Waronzof provides real estate and land use litiga-tion support services including economic damages, lostprofits, financial feasibility, lease dispute, property value,enterprise value, partnership interest and closely-heldshare value, fair compensation, lender liability, and reor-ganization plan feasibility. Professional staff of five with


EVALUATION TESTING TREATMENT

Neurology and Electromyography

Neurotoxicology

Occupational/Environmental Medicine

Associate Professor UCSF

CA Medical Practice Since 2000

TEL 415.381.3133 | FAX 415.381.3131 | E-MAIL [email protected]

20 Sunnyside Avenue, Suite A-321, Mill Valley, CA 94941

Offices in San Francisco, Richmond, Petaluma, Sacramento and Eureka/Arcata

JONATHAN S. RUTCHIK, MD, MPH


http://www.neoma.com

advanced degrees and training in real estate, finance,urban planning, and accounting. See display ad onpage 59.

REAL ESTATE TITLE CONSULTING

PETRU CORPORATION

250 Hallock Drive, Suite 100, Santa Paula, CA 93060, (805) 933-1389, fax (805) 933-1380, e-mail: [email protected]. Web site: www.PetruCorporation.com. Contact Tim Truwe. Incorpo-rated in 1986, Petru Corporation is a full service landconsulting company including: title searching/research,forensic title, title engineering, oil, gas, mineral and geot-hermal consulting, wind and solar land consulting, regu-latory/permit compliance, subdivisions, right-of-wayconsulting, water rights, autoCAD map drafting. PetruCorporation has provided its services on multimillion-dollar projects and matters involving court litigation.

RECONSTRUCTIVE SURGERY

JOHN M. SHAMOUN, MD, FACS, INC.

360 San Miguel, Suite 406, Newport Beach, CA 92660, (949) 759-3077, fax (949) 759-5458, e-mail:[email protected]. Web site: www.ideallook.com.Contact Yvonne. Specialties: only plastic surgeon inthe United States board certified by the 1) AmericanBoard of Surgery, 2) American Board of Plastic Surgery,3) American Board of Facial Plastic and ReconstructiveSurgery, 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 text-book chapters and journal articles related to above top-ics. Extensive experience in medical malpractice casereview, consultation, written evaluation and testimony indepositions and trial for plaintiff and defense. Articulatesubspecialty consultant with up-to-date knowledge andexpertise of plastic surgery literature and standards ofcare. Opinions supported by extensive subspecialtyeducation, training, and experience.

RETALIATION

HAIGHT CONSULTING

1726 Palisades Drive, Pacific Palisades, CA 90272,(310) 454-2988, fax (310) 454-4516. Contact MarciaHaight, SPHR—CA. Human resources expert knowl-edgeable in both federal and California law. Twenty-fiveyears’ corporate human resources management expe-rience plus over 20 years as a Human ResourcesCompliance Consultant in California. Specializationsinclude sexual harassment, ADA/disability discrimina-tion, other Title VII and FEHA discrimination andharassment, retaliation, FMLA/CFRA, safety, andwrongful termination. Courtroom testimony and depo-sition experience. Retained 60 percent by defense, 40percent by plaintiff. Audit employer’s actions in pre-venting and resolving discrimination, harassment, andretaliation issues. Assess human resources policiesand practices for soundness, for comparison to prevail-ing practices, and for compliance. Evaluate employerresponsiveness to complaints and effectiveness ofemployer investigations. Assist counsel via preliminarycase analysis, discovery strategy, examination of docu-ments, and expert testimony.

ROOFING AND WATERPROOFING

KGA, INC.

1409 Glenneyre Street, Suite A, Laguna Beach, CA92651, (949) 497-6000, fax (949) 494-4893, e-mail:[email protected]. Web site: www.kgainc.com. Contact Kurt Grosz. Construction and environmentalconsultants since 1991. Licensed engineers and con-tractors. ICC building, plumbing, mechanical, concreteand accessibility inspectors. Certified professional esti-mators. Trial experts, arbitrators, and insuranceappraisers/umpires.

SAFETY

KGA, INC.

1409 Glenneyre Street, Suite A, Laguna Beach, CA92651, (949) 497-6000, fax (949) 494-4893, e-mail:[email protected]. Web site: www.kgainc.com.

Contact Kurt Grosz. Construction and environmentalconsultants since 1991. Licensed engineers and con-tractors. ICC building, plumbing, mechanical, concreteand accessibility inspectors. Certified professional esti-mators. Trial experts, arbitrators, and insuranceappraisers/umpires.

SCS ENGINEERS


SECURITIES


633 West Fifth Street, 31st Floor, Los Angeles, CA90071-2005, (213) 553-2500, fax (213) 553-2699. Web site: www.cornerstone.com. Contact George G.Strong, Jr., Richard W. Dalbeck, Katie J. Galley,Elaine Harwood, Carlyn Irwin, Erin McGlogan, orAshish Pradhan. For more than 25 years, CornerstoneResearch staff have provided economic and financialanalysis in all phases of commercial litigation and regu-latory proceedings. We work with a broad network oftestifying experts, including prominent faculty andindustry practitioners, in a distinctive collaboration. Theexperts with whom we work bring the specializedexpertise required to meet the demands of each assign-ment. Our areas of specialization include intellectualproperty, antitrust, securities, entertainment, real estate,financial institutions, and general business litigation.

MARKET CONSULTING CORPORATION

(213) 627-0440, (888) 397-9867, e-mail: [email protected]. Web site: www.market-consulting.com. Contact Dr. Ronald W. Cornew. Twenty plusyears as consultants in investment and trading litigation.Asset management, pension investments, securitiesand futures tax matters including IRS examinations,appeals, U.S. Tax Court appearances. Broker/customerdisputes: stocks and bonds, options, commodityfutures, currency trading, derivatives including swaps,limited partnerships, hedge funds, managed futures.Consultants to NYSE, Options Clearing Corporation,CBOT, CME, COMEX, TIAA/CREF, banks, other majorclients. Arbitrator NASD (now FINRA), NYSE, AAA, NFA,mediator with NASD (now FIRNA) training. Member:Compliance and Legal Division, Securities IndustryAssociation.

PETILLON HIRAIDE LLP

21515 Hawthorne Boulevard, Suite 1260, Torrance, CA90503, (310) 543-0500, fax (310) 543-0550, e-mail:[email protected]. Web site: www.phlcorplaw.com. Contact Mark Hiraide. Expert witness in the fol-lowing areas: formation of corporations, partnerships,and limited liability companies, governance, fiduciaryduties of officers and directors, and majority sharehold-ers, venture and acquisition issues; violation of securi-ties laws, and legal malpractice of lawyers.

ROBERT C. ROSEN

Citigroup Center, 444 South Flower Street, 30th Floor,Los Angeles, CA 90071, (213) 362-1000, fax (213) 362-1001, e-mail: [email protected]. Web site:www.rosen-law.com. Specializing in securities law, fed-eral securities law enforcement, securities arbitration,and international securities, insider trading, NYSE,AMEX, FINRA, DOC disciplinary proceedings, broker-dealer, investment company and investment advisermatters, liability under federal and state securities laws,public and private offerings, Internet securities, and lawfirm liability. AV rated. Former chair, LACBA Businessand Corporations Law Section. LLM, Harvard LawSchool. Forty years practicing securities law, 12 yearswith the U.S. Securities and Exchange Commission,Washington, DC. Published author/editor of securities

regulations, including multivolume treatises. See displayad on page 61.

SEXUAL HARASSMENT/DISCRIMINATION

HAIGHT CONSULTING

1726 Palisades Drive, Pacific Palisades, CA 90272,(310) 454-2988, fax (310) 454-4516. Contact MarciaHaight, SPHR—CA. Human resources expert knowl-edgeable in both federal and California law. Twenty-fiveyears’ corporate human resources management expe-rience plus over 20 years as a Human ResourcesCompliance Consultant in California. Specializationsinclude sexual harassment, ADA/disability discrimina-tion, other Title VII and FEHA discrimination andharassment, retaliation, FMLA/CFRA, safety, andwrongful termination. Courtroom testimony and depo-sition experience. Retained 60 percent by defense, 40percent by plaintiff. Audit employer’s actions in pre-venting and resolving discrimination, harassment, andretaliation issues. Assess human resources policiesand practices for soundness, for comparison to prevail-ing practices, and for compliance. Evaluate employerresponsiveness to complaints and effectiveness ofemployer investigations. Assist counsel via preliminarycase analysis, discovery strategy, examination of docu-ments, and expert testimony.


2050 Gateway Place, Suite 100-177, San Jose, CA95110, (209)728-8905, fax (209) 728-8970, e-mail: [email protected]. Web site: www.hrmconsulting.com. Contact Beth B. De Lima,SPHR-CA. Expert witness Beth De Lima, has testifiedfor both plaintiff and defense in the following areas:human resources standards of care, employment ADAaccommodation, FEHA, FMLA, CFRA, ADA & EEOCviolations. Wrongful termination, performance manage-ment, discrimination, sexual harassment, exemptanalysis, labor market assessment, and vocationalevaluations. She holds national and California specificcertific-ation—Senior Professional in Human Resource(SPHR-CA), certified mediator, and consulting since1992.

SWIMMING POOLS/SPAS

AQUA CONCEPTS, INC5938 Wilbur Avenue, Tarzana, CA 91356, (818) 705-2233, fax: (818) 345-1923, e-mail: [email protected]. Web site: www.Aquaconcepts.com.Contact Richard Schwag. Swimming Pool and SpaExpert Witness and Consultant. 37 years in the poolconstruction field as owner of Aqua Concepts, Inc.involving the planning, design, construction andremodels of many thousands of residential and com-mercial swimming pools/spas. Applied decades ofswimming pool construction knowledge towards per-forming as an expert witness in legal actions. Expertisein litigation relating to site inspections, documenta-tion/deposition review, and testimony for depositions,mediation, arbitration, and trial. Swimming pool con-struction, although my expertise expands to otherareas as you can see in my active licenses: CAContractors 419698, B General Builders, C53Swimming Pools, C27 Landscaping, and C8 Concrete.

SURVEY RESEARCH EXPERT TESTIMONY

MMR STRATEGY GROUP

16501 Ventura Boulevard. Suite, Suite 601, Encino, CA 91436, (818) 464-2400, fax (818) 464-2399,e-mail: [email protected]. Web site: www.mmrstrategy.com. Contact Cheryl Jaffe. MMRStrategy Group (MMR) provides trial ready surveys,rebuttals, and expert witness services in marketing forintellectual property litigation. Our studies measureconsumer attitudes and behaviors for matters involvingtopics such as confusion, secondary meaning, decep-tive advertising, dilution, and claim substantiation. Wework on matters involving trademarks, copyrights,advertising, pricing, and other intellectual propertyissues.




TITLE SEARCHING/REPORTS

PETRU CORPORATION

250 Hallock Drive, Suite 100, Santa Paula, CA 93060, (805) 933-1389, fax (805) 933-1380, e-mail: [email protected]. Web site: www.PetruCorporation.com. Contact Tim Truwe. Incorpo-rated in 1986, Petru Corporation is a full service landconsulting company including: title searching/research,forensic title, title engineering, oil, gas, mineral and geothermal consulting, wind and solar land consulting,regulatory/permit compliance, subdivisions, right-of-wayconsulting, water rights, autoCAD map drafting. PetruCorporation has provided its services on multimillion-dollar projects and matters involving court litigation.

TOXICOLOGY

HAMPTON HEALTH, LTD JOHN H. FULLERTON, MD, MRO, CMD, CFP, FACP,AGSF, FAAHPM


TRAFFIC ENGINEERING

WILLIAM KUNZMAN, PE

1111 Town and Country #34, Orange, CA 92868, (714) 973-8383, fax (714) 973-8821, e-mail: bill@traffic

-engineer.com. Web site: www.traffic-engineer.com.Contact William Kunzman, PE. Traffic expert wit-ness since 1979, both defense and plaintiff. Auto,pedestrian, bicycle, and motorcycle accidents. Largestplaintiff verdicts: 1) $12,200,000 in pedestrian accidentcase against Caltrans, 2) $10,300,000 in case againstLos Angeles Unified School District. Largest settle-ment: $2,000,000 solo vehicle accident case againstCaltrans. Best defense verdict: $0 while defending Caltrans and opposition sought $16,000,000. Beforebecoming expert witness, employed by Los AngelesCounty Road Department, Riverside County RoadDepartment, city of Irvine, and Federal Highway Admin-istration. Knowledge of governmental agency proce-dures, design, geometrics, signs, traffic controls, main-tenance, and pedestrian protection barriers. Hundredsof cases. Undergraduate work—UCLA, graduatework—Yale University.

TRANSACTIONAL DUE DILIGENCE


10474 Santa Monica Boulevard, Suite 200, Los Ange-les, CA 90025, (310) 268-2000, fax (310) 268-2001, e-mail: [email protected]. Contact Coral Hansen.Web site: www.MHM-PC.com, www.CBIZ.com. CBIZ & Mayer Hoffman McCann PC specializes infraud investigations, forensic accounting, business litigation, commercial damage and lost profits compu-tations, business valuation and appraisal, transactionaldue diligence, family limited partnerships, businessinterruption, and family law. We provide experiencedexpert testimony and tax controversy representation.

WASTEWATER

JOHN SHAW CONSULTING, LLC

Tel: (530) 550-1576, e-mail: [email protected]. Website: www.shaweng.com. Contact John Shaw, PE.Water/wastewater/sewer industry—unique combina-tion of operations and engineering background. Sani-tary engineering including water (potable) and waste-

water (industrial and domestic) treatment, conveyance,hydraulics, storage, reuse, master planning, opera-tions, maintenance, and expert witness and forensic(mode of failure and standard of care analysis, engi-neering analysis, product suitability and constructiondefect issues). Wastewater treatment plants,disposal/reuse facilities, sewage lift station design,sewer collection systems, and sludge treatment. Water treatment plants, pipelines, and swimmingpools.

WRONGFUL TERMINATION

HAIGHT CONSULTING

1726 Palisades Drive, Pacific Palisades, CA 90272,(310) 454-2988, fax (310) 454-4516. Contact Marcia Haight, SPHR—CA. Human resources expert knowledgeable in both federal and Californialaw. Twenty-five years’ corporate human resourcesmanagement experience plus over 20 years as aHuman Resources Compliance Consultant in Califor-nia. Specializations include sexual harassment,ADA/disability discrimination, other Title VII and FEHAdiscrimination and harassment, retaliation, FMLA/CFRA, safety, and wrongful termination. Courtroomtestimony and deposition experience. Retained 60 percent by defense, 40 percent by plaintiff. Auditemployer’s actions in preventing and resolving discrimination, harassment, and retaliation issues.Assess human resources policies and practices forsoundness, for comparison to prevailing practices, and for compliance. Evaluate employer responsivenessto complaints and effectiveness of employer investiga-tions. Assist counsel via preliminary case analysis, discovery strategy, examination of documents, andexpert testimony.


http://www.cadebtcollectionattorney.com


This new book by Businessweek seniorwriter Paul M. Barrett is based on hisinvestigative reporting of a class actionenvironmental lawsuit in Ecuador.Barrett chronicles how an Americanplaintiff’s lawyer pursued, won, andthen lost a $19 billion verdict againstChevron.

In the late 1990s, Steven Donzigerwas a young, Harvard-educated lawyerand social activist. He joined a team ofplaintiffs’ lawyers suing Texaco on be-half of a class of native Ecuadorian In-dians who had suffered many ailmentsand deaths that they blamed on Texaco.Beginning in the 1970s, Texaco had dis-charged billions of gallons of petroleum-exposed water into the streams, rivers,

and lagoons of Ecuador’s jungles. This case of many twists and turnsstarted as a class action in New York and was transferred some nineyears later back to Ecuador at Exxon’s request. It was then triedthrough a tortured and comically corrupt Ecuadorian court systemthat delivered a record judgment against Texaco and its new owner,Chevron.

This David-versus-Goliath story, however, did not have a Holly-wood ending. As Barrett reports, Chevron decided from the start thatit would not settle the lawsuit, since it believed that it had acquiredTexaco free of any liability and that the responsibility for cleaning upthe pollution lay with the government of Ecuador. Texaco had passedoperational control of its oil fields to Ecuador in 1990, and the gov-ernment later released any ecological liability claims against Texaco.Chevron said it would fight the lawsuit “until Hell freezes over—andthen we’ll fight it out on the ice,” and it did just that, hiring an aggres-sive team led by Gibson, Dunn, & Crutcher attorney Randy Mastro.A former mob prosecutor, Mastro decided to fight the Ecuadorian judg-ment by going after Donziger and his team personally, arguing thatthe plaintiffs’ counsel had obtained the Ecuadorian judgment bymeans of racketeering and fraud.

What led Mastro’s team to that unusual strategy was a film calledCrude. This documentary remarkably followed the plaintiffs’ lawyers,at Donziger’s own invitation, through their most sensitive, closed-doorstrategy discussions. The film was supposed to produce public rela-tions and funding support for Donziger. It delivered on that promisein spades. Crude was featured at the Sundance film festival, won anumber of awards, and generated support among celebrities andenvironmental groups for Donziger’s fight against Chevron.Nevertheless, the film ultimately backfired on Donziger. The versionof Crude that first aired on Netflix had one scene in which a plain-tiff’s lawyer secretly met with the putatively neutral expert appointedby the Ecuadorian court to decide if Chevron was liable. After view-

ing this version, Chevron asked Judge Lewis Kaplan of the U.S.District Court in New York to force the producers of Crude to turnover all of the film’s outtakes, which proved to be astonishing.

Among other things, the outtakes showed that Donziger hadthreatened an Ecuadorian judge with blackmail if he did not allow himto handpick the court-appointed expert. Donziger’s team had evidencethat the judge had sexually harassed his assistant. Donziger then hadhis own paid experts ghost write the report of the ostensibly neutralexpert. Donziger had also exerted massive political and media pres-sure on Ecuadorian judges to decide the case in his favor. JudgeKaplan was disturbed by a number of things Donziger can be seentelling his team in their strategy meetings. For example, at one point,Donziger urges his team to approach the case with the attitude that“Facts do not exist. Facts are created.” At another point, Donziger tellsthem, “Science has to serve the law practice; the law practice doesn’tserve science.” Donziger sums up his view of the case in the outtakes,when he states that his lack of evidence on a key point “is all for thecourt just a bunch of smoke and mirrors and bullshit. It really is.”

In Judge Kaplan’s eyes, what damned Donziger even more was hisbelief that his actions in Ecuador would never be discoverable. In oneconversation in the outtakes, the head of Amazon Watch, AtossaSoltani, asks Donziger if anyone can subpoena the videos the film crewwas taking. Donziger replies, not in Ecuador. “What about the U.S.?”Soltani asks. Donziger unwisely ignores her. Judge Kaplan found thatthe plaintiffs’ lawyers, in complete disregard for the law, bribed a judgewho issued a judgment against Chevron, which was also ghost writ-ten by Donziger’s own team. Ironically, some of the corroborating evi-dence was discovered on their hard drives.

The result of all this evidence was a devastating RICO judgmentagainst Donziger and the Patton Boggs firm, which had signed on tohelp him enforce the Ecuadorian judgment. Judge Kaplan ruled thatthe plaintiffs and their attorneys could not profit from the fraud com-mitted in the Ecuadorian courts, and his findings make it unlikely thata judge in any country will ever enforce the judgment. The ruling alsodevastated the reputation of Patton Boggs, which had pursued astrategy of trying to enforce the judgment through multiple foreignproceedings to force a settlement.

Barrett, who began following the story for Businessweek, hadaccess to the lawyers and witnesses on both sides of the case. He alsohad access to extensive notes that were subpoenaed by Chevron, whichchronicled Donziger’s plunge into an ethical and moral abyss in pur-suit of victory. Although he exposes Donziger’s many failings, Barrettdoes not spare the lawyers for Texaco, who had been hoisted on theirown petard by insisting that the New York court transfer the case toEcuador in the belief that the case would die a quiet death there.Written in the style of a novel, the book is a fascinating factual taleof how a law-of-the-jungle mentality ruined a worthy cause, alongwith the careers of the lawyers who pursued it. ■

by the book REVIEWED BY BEN M. DAVIDSON

Ben M. Davidson is the founder of the Davidson Law Group in Los Angeles.

Law of the Jungle

By Paul M. BarrettCrown Publishers, 2014$26.00, 302 pages



ON TUESDAY, NOVEMBER 11, Trial Advocacy and the Litigation Section will host the

evidence skills workshop, which is based on the premise that the best way to learn the

rules of evidence is to argue them in an evidentiary hearing in which the admissibility

of evidence is determined. In this workshop, participants argue the admissibility of

evidence in 21 different evidentiary vignettes, using a breach-of-employment-contract

fact pattern. No preparation is necessary for this unique program. Within five minutes,

participants are on their feet arguing the admissibility of evidence. The evidentiary

vignettes include witness competency, foundations for exhibits, chain of custody,

authenticity, relevance, undue prejudice, the secondary evidence rule, the better

evidence rule, the reliability of scientific evidence, nonhearsay, hearsay, party

admissions, prior inconsistent deposition testimony, business records, judicial notice,

lay opinion, expert qualifications, expert opinion, and cross-examination of experts on

treatises. Written course materials will be distributed via e-mail prior to the first class.

Please provide a correct e-mail address at the time of registration. The program will take

place at the Los Angeles County Bar Association, 1055 West 7th Street, 27th Floor,

Downtown. Parking is available at 1005 West 7th and nearby lots. On-site registration will

begin at 1:00 P.M., with the program continuing from 1:30 to 5:30 P.M. The registration

code number is 012208.

$125—CLE+ plus member

$250—LACBA member

$350—all others

3.75 CLE hours

TAP: Evidence Skills Workshop

The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs listedon this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site athttp://calendar.lacba.org, where you will find a full listing of this month’s Association programs.

ON TUESDAY, NOVEMBER 11, Trial Advocacy and the Litigation Section will host the expert

witness workshop, which provides introductory and advanced instruction on how to use expert

witnesses in civil and criminal actions, with special emphasis on expert testimony. Topics

covered will include evidentiary rules regarding expert opinions, taking and defending expert

depositions, how experts can help and hurt a case, direct and cross-examination of expert

witnesses, establishing and challenging expert qualifications, and advanced expert testimony

techniques. In the workshop portion of the program participants conduct direct and cross-

examination of an expert witness. Written course materials will be distributed via e-mail prior

to the first class. Please provide a correct e-mail address at the time of registration. The

program will take place at the Los Angeles County Bar Association, 1055 West 7th Street, 27th

Floor, Downtown. Parking is available at 1005 West 7th and nearby lots. On-site registration

will begin at 1:00 P.M., with the program continuing from 1:30 to 5:30 P.M. The registration code

number is 012246.

$250—CLE+ plus member$350—LACBA member$500—all others3.75 CLE hours

ON WEDNESDAY, NOVEMBER 12, the

Litigation Section, the Labor &

Employment Law Section, the Los

Angeles Chapter of the Association of

Business Trial Lawyers, the

Association of Southern California

Defense Counsel, and the Consumer

Attorneys Association of Los Angeles

will host the 2014 Complex Court

Symposium. The symposium, which

includes most of the complex judges

from across California, including

those from the Los Angeles complex

courts, will provide the bench

perspective on complex case

management, class action issues

(both pre- and post-certification),

trials of complex and class cases, and

the latest issues that can affect

counsel and clients. The symposium

will take place at the Millennium

Biltmore Hotel, 506 South Grand

Avenue, Downtown. Valet parking is

available for $20. Registration is

available from 3 to 3:30 P.M., and the

meal will begin at 6:15, with the

program continuing from 3:30 to 7:30.

The registration code number is

012422.

Free—CLE+ member

$85—CLE+ member with meal

$190—Litigation Section member

$225—LACBA member

$260—all others

2.75 CLE hours

TAP: Expert Witness Workshop

2014 Complex Court

Symposium



LAWYERS FALL BELOW SOME other professions in measures of pub-lic popularity. Firefighters, teachers, and doctors all make the most-trusted list. Would that change if Californians truly understood whatan attorney’s help means for people who have to go to court alone?For people who cannot afford to have a good lawyer on their side,the court system can be an intimidating and inhospitable place, andits promises of equality can ring hollow.

The Sinclair family’s story shows the difference an attorney canmake. Ceith and Louise had lived for more than 15 years in a smallhome in Altadena, the same home where Louise grew up as a fosteryouth. They raised their children there, creat-ing the stable family life that Louise alwayswanted. When Ceith and Louise fell behind ontheir mortgage payments during the economiccrisis, they applied for and received a loanmodification. Or so they thought.

Although the Sinclairs paid their modifiedloan for many months, a new servicer tookover their loan and instituted foreclosure pro-ceedings. The Sinclairs were on the brink of eviction when PublicCounsel went to court to reverse the foreclosure, and an attorney atthe nonprofit Eviction Defense Network worked to stop the family’seviction. Just before Christmas, the Sinclairs got word that the evic-tion and foreclosure threats had ended, and they spent the holidayswhere most of us want to be: at home.

Without an attorney, the Sinclairs would have been another casu-alty in California’s mortgage crisis. Courts and attorneys have takenmajor steps to try to level the playing field for the unrepresented, andPublic Counsel is proud to be part of the solution through our court-based clinics and leveraging the pro bono efforts of Los Angeles’s topfirms and in-house corporate counsel. Public Counsel also worksalongside the Los Angeles County Bar Foundation and its projects,which serve Los Angeles’s underrepresented through pro bono and staff-provided services. The Foundation projects assist clients in the areasof domestic violence, veterans, immigration, HIV/AIDS, and communityand school mediation services. But the economic crisis that put so manyfamilies like the Sinclairs on the brink continues to hurt these effortsto close the justice gap.

For decades, California legal services have relied on the generos-ity of attorneys. Donations to the State Bar’s Justice Gap Fund, theinnovative funding approach of IOLTA, and philanthropic giving bylaw firms and in-house counsel have all help keep the courthouse doorsopen. Last year alone, attorneys contributed an additional $4.5 mil-lion through a voluntary donation on the State Bar dues bill.

But what will it take for more attorneys to give to Public Counsel,the Los Angeles County Bar Foundation, or another legal serviceprovider? As the leader of one of California’s largest nonprofit lawfirms, I know that the public interest sector can help to make our casethat access to justice is worth supporting. Here is a pledge I will make:We will push justice into every corner of California. With the support

of a grant from the California Bar Foundation, Public Counsel isexpanding veterans’ courts across California. In addition, we workwith groups throughout the state to keep young people in school andoff the jailhouse track by changing harsh school discipline laws. Weare in constant dialogue with state and local policymakers to makeour systems more responsive to foster youth, immigrants, andCalifornia consumers.

We will be smart and efficient. Providing free legal help is alwaysabout meeting clients where they are and doing whatever it takes tohelp them win. The public interest sector’s track record of efficiency

should be the private sector’s envy. We know how to work together.Examples include the new California Consumer Justice Coalition, agroup of attorneys and housing counselors funded through theAttorney General’s Office as part of the National Mortgage Settlement,and the Shriver Housing Project, an effort to level the playing fieldin high-stakes eviction cases that is funded through a seed grantfrom the Judicial Council.

We will look for big solutions. The State Bar is currently consid-ering initiatives that could put more attorneys to work for people inneed. A task force is developing a statewide 50-hour pro bonorequirement for law students and newly admitted attorneys thatwould expose many more future lawyers to the gaps in our justice sys-tem. Another task force is exploring innovative strategies, includinga “limited license legal technician” program for certain civil lawareas in which the market is not filling the need. These ideas will notall be realized tomorrow, but big solutions require big visions.

We will shout our successes from the rooftops. We are in the life-changing business. Legal help makes the difference for a family aboutto lose their home, a student about to be pushed out of his or herschool and into the justice system, or a person who struggles with men-tal illness. When an attorney wins a case for clients like these, weshould all know it. At www.CAforJustice.org, the Campaign forJustice is telling the stories of ordinary Californians who benefitfrom legal help. Our clients already trust us to do what is right forthem. Could we convince more California attorneys and nonattor-neys to trust us to do what is right for our justice system? Then, wemay start to close the justice gap once and for all. ■

closing argument BY HERNÁN D. VERA

Looking for Big Solutions for Access to Justice in California

Last year alone, attorneys contributed an additional $4.5 million

through a voluntary donation on the State Bar dues bill.

Hernán D. Vera is president and CEO of Public Counsel, a public interest lawfirm cofounded by the Los Angeles County Bar Association in 1970, and is amember of the State Bar of California Board of Trustees.



http://www.firstindemnity.net


http://www.fulcrum.com

Los Angeles Lawyer November 2014

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Transcript of Los Angeles Lawyer November 2014