Los Angeles Lawyer - Los Angeles County Bar Association

Transcription

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In lumGE 70
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2005 Guide to Investigative Services
July/August 2005 / $4
E A R N MCLE CR E D I T
The Catalyst Theory
in California
page 28
A New Leader
Edith R. Matthai is the Association’s 2005-06 president page 14
PLUS
Collateral Estoppel and Arbitration page 20
Police Administrative Discipline page 24
Reality TV and Copyright Law page 34
Insurer Reservation of Rights page 40
July/August 2005
Vol. 28, No. 5
FEATURES
28 Catalyst for Change
BY DONNA M. DEAN
The California Supreme Court has clarified the definition of “successful party” entitled
to private attorney general fees under the catalyst theory
Plus: Earn MCLE credit. MCLE Test No. 139 appears on page 31.
34 Reality Check
BY DANIEL A. FIORE AND SAMUEL E. ROGOWAY
In determining whether an unscripted television show enjoys full copyright protection,
the analysis must center on the expression of its concept
40 With Reservations
BY ANDREW S. WILLIAMS AND VIVIAN I. ORLANDO
Can an insurer’s reservation of rights result in a bad faith cause of action?
LosAngelesLawyer
70 Los Angeles Lawyer’s Annual Index to Articles
A complete guide to authors and articles published in Volume 27,
March 2004-February 2005
The magazine of
The Los Angeles County
Bar Association
46 Special Section
2005 Guide to Investigative Services
DEPARTMENTS
14 President’s Page
Defending and improving our judicial
system
68 Computer Counselor
Encryption technology for keeping
computer data safe
BY EDITH R. MATTHAI
BY GORDON ENG
18 Barristers Tips
The Barristers Section continues its years
of service
76 Closing Argument
A new paradigm for mentoring
BY MATTHEW C. FRAGNER
BY KIM TUNG
10 Letters to the Editor
20 Practice Tips
Using collateral estoppel after arbitration
74 Classifieds
BY MICHAELBRENT COLLINGS
Cover photograph by Tom Keller
75 Index to Advertisers
24 Practice Tips
The harm to public service standard in
police misconduct cases
BY RAY JURADO
Judgments Enforced
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EDITORIAL BOARD
Chair
R. J. COMER
Articles Coordinator
JACQUELINE M. REAL-SALAS
JERROLD ABELES
ELAINE R. ABBOTT
DANIEL L. ALEXANDER
HONEY KESSLER AMADO
ETHEL W. BENNETT
CHAD C. COOMBS
KEITH E. COOPER
ANGELA J. DAVIS
KERRY A. DOLAN
GORDON ENG
DANIEL A. FIORE
JOSEPH S. FOGEL
STUART R. FRAENKEL
MICHAEL A. GEIBELSON
AIMEE H. GOLD
TED HANDEL
JEFFREY A. HARTWICK
STEVEN HECHT
KATHERINE M. HIKIDA
ROXANNE HUDDLESTON
LAWRENCE J. IMEL
SCOTT KLOPERT
JOEL T. KORNFELD
JOHN P. LECRONE
HYACINTH E. LEUS
JOHN C. MCBRIDE
PAUL MARKS
SEAN MORRIS
ELIZABETH MUNISOGLU
RICHARD H. NAKAMURA JR.
DENNIS PEREZ
GARY RASKIN
DAMON RUBIN
KURT L. SCHMALZ
DAVID SCHNIDER
SVITLANA E. SANGARY
GRETCHEN D. STOCKDALE
KENNETH W. SWENSON
CARMELA TAN
BRUCE TEPPER
PATRIC VERRONE
MICHAEL WISE
STAFF
Publisher and Editor
SAMUEL LIPSMAN
Senior Editor
LAUREN MILICOV
Senior Editor
ERIC HOWARD
Art Director
LES SECHLER
Director of Design and Production
PATRICE HUGHES
Advertising Director
LINDA LONERO
Account Executive
MARK NOCKELS
Marketing and Sales Coordinator
TAL EDELSTEIN
Advertising Coordinator
WILMA TRACY NADEAU
Administrative Coordinator
MATTY JALLOW BABY
LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar Association, 261 S.
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Copyright ©2005 by the Los Angeles County Bar Association. All rights
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The opinions and positions stated in signed material are those of the
authors and not by the fact of publication necessarily those of the Association
or its members. All manuscripts are carefully considered by the Editorial Board.
Letters to the editor are subject to editing.
4 Los Angeles Lawyer July-August 2005
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LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE
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Telephone 213.627.2727 / www.lacba.org
ASSOCIATION OFFICERS:
President
EDITH R. MATTHAI
President-Elect
CHARLES E. MICHAELS
Senior Vice President
GRETCHEN M. NELSON
Vice President
DANETTE E. MEYERS
Treasurer
DON MIKE ANTHONY
Assistant Vice President
MICHAEL E. MEYER
ALAN K. STEINBRECHER
LINDA D. BARKER
Immediate Past President
JOHN J. COLLINS
Executive Director
STUART A. FORSYTH
Associate Executive Director/Chief Financial Officer
BRUCE BERRA
Associate Executive Director/General Counsel
W. CLARK BROWN
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GEORGE F. BIRD JR.
DANIEL S. BISHOP
JOHN M. BYRNE
THOMAS P. CACCIATORE
PATRICIA EGAN DAEHNKE
ANTHONY PAUL DIAZ
STACY L. DOUGLAS
JEFFREY W. ERDMAN
ANTONIO J. GONZALEZ
TOMAS A. GUTERRES
MITCHELL A. KAMIN
ROBERT N. KWAN
ELISHA FARA LANDMAN
DAVID A. LASH
CINDY J. MACHO
ELAINE W. MANDEL
PATRICK MCNICHOLAS
ELLEN A. PANSKY
MICHAEL JAMES PEARCE
CHRISTOPHER Q. PHAM
SUSAN KOHN ROSS
MARC L. SALLUS
ALICE A. SALVO
DEBORAH C. SAXE
KIM TUNG
JOHN D. VANDEVELDE
ROBERT G. VAN SCHOONENBERG
GAVIN HACHIYA WASSERMAN
ERIC A. WEBBER
JULIE K. XANDERS
AFFILIATED BAR ASSOCIATIONS
BEVERLY HILLS BAR ASSOCIATION
BLACK WOMEN LAWYERS ASSOCIATION OF LOS ANGELES, INC.
CENTURY CITY BAR ASSOCIATION
CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES
CULVER/MARINA BAR ASSOCIATION
EASTERN BAR ASSOCIATION
GLENDALE BAR ASSOCIATION
IRANIAN AMERICAN LAWYERS ASSOCIATION
ITALIAN AMERICAN LAWYERS ASSOCIATION
JAPANESE AMERICAN BAR ASSOCIATION OF GREATER LOS ANGELES
JOHN M. LANGSTON BAR ASSOCIATION
JUVENILE COURTS BAR ASSOCIATION
KOREAN AMERICAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA
LAWYERS' CLUB OF LOS ANGELES COUNTY
LESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELES
LONG BEACH BAR ASSOCIATION
MEXICAN AMERICAN BAR ASSOCIATION
PASADENA BAR ASSOCIATION
SAN FERNANDO VALLEY BAR ASSOCIATION
SAN GABRIEL VALLEY BAR ASSOCIATION
SANTA MONICA BAR ASSOCIATION
SOUTH ASIAN BAR ASSOCIATION OF SOUTHERN CALIFORNIA
SOUTH BAY BAR ASSOCIATION OF LOS ANGELES COUNTY, INC.
SOUTHEAST DISTRICT BAR ASSOCIATION
SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION
WHITTIER BAR ASSOCIATION
WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
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From the Chair
BY R. J. COMER
he managing partner of a law firm stands before hundreds of attorneys at a law firm retreat and remembers when the entire firm was
defined by a few names on a wall. A newly appointed deputy city
attorney looks over a list of assistant city attorneys and realizes that
the Los Angeles City Attorney’s Office is one of the largest “law
firms” in Los Angeles. The lead plaintiff’s counsel in a public interest lawsuit meets
with the lead plaintiff, the experts, and the witnesses and wonders how to meld all
the moving human parts into a cohesive and persuasive presentation of the case.
Each of these lawyers is confronting the mysterious and elusive challenge of effective leadership.
More law school graduates will be called upon to assume the mantle of leadership than will be called upon to argue issues of civil procedure or advocate for real
property rights or get comfortable with the blood-streaked labyrinth of criminal procedure. And yet leadership training is not required by the American Bar Association
for ABA accreditation of a law school curriculum.
What is leadership, anyway? Is it merely the responsibility for the conduct and
achievements of personnel under an identified command structure? Is it taking
responsibility for desired outcomes? Conversely stated, is leadership simply the
process of ascribing blame when things go badly and garnering acclaim when things
go well? These are tragically limited views of leadership.
According to Michael W. Morrison, a Toyota executive and expert on leadership
training, “The most important role of the leader is to be a shaper of meaning.” Imagine
taking on that responsibility. You are responsible for shaping the meaning of being
a lawyer at your law firm, the meaning of being a city attorney, the meaning of being
involved in a particular case. You must differentiate the concept of meaning from
your goals, tactics, and self-interest.
The goal of legal counsel is to realize outcomes in the client’s best interest, but
legal practice is not meaningless when a client loses. Tactics, which require skill and
training, comprise the plans and research necessary to achieve the goal. Self-interest is winning, getting paid, and building one’s reputation, whether in private practice or, perhaps more nobly, in the public interest and civil service arenas. Meaning
provides the purpose that transforms human action into a creative force. Leaders
manage personnel—and themselves—to ensure that each action taken is in alignment
with the meaning of the organization.
Too abstract? Take this example. The manager of a practice group in a California
law firm of approximately 250 attorneys described what it means to be a lawyer in
his practice group. The meaning of his practice is to add value to every client’s matter by first understanding how the client makes money and then implementing
legal strategies and services with the intention of improving the client’s bottom line—
even if that involves challenging the client’s assumptions. This concept of the meaning of the practice group is explained to each of its attorneys and is included in all
training materials and performance evaluations. All practice group attorneys are
expected to justify their hours, their conclusions, and their work products on the basis
of the group’s meaning.
So ask yourself: What is the meaning of my legal practice? How can I convey this
meaning to my colleagues and subordinates and clients, and will they have any clue
that what we do together is guided by this meaning?
Or perhaps you think leadership is something different than shaping meaning.
Fine. Identify for yourself your own leadership challenge. We lawyers are leaders, however leadership is defined, and the task of leadership demands our full attention. ■
T
R. J. Comer is a partner at Allen Matkins Leck Gamble & Mallory LLP, where he specializes in land
use law and municipal advocacy. He is the chair of the 2005-06 Los Angeles Lawyer Editorial Board.
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AL7993
Professional
Arbitrator
and Mediator
Steven Richard Sauer, Esq.
“He is truly a master
in his art.”
Settled over 5,000 Federal
and State Litigated Cases
323.933.6833
Fax
Letters
Praise
Please pass my thanks to David S. Kupetz for
his article (“Filing Bankruptcy by Solvent
Tenants to Cap Landlords’ Claims,” April
2005). I found it interesting and importantly
educational on the subject and some underlying issues with leases I was aware of but not
clear on. Well written, it was some of the
footnotes that “switched the light on.”
I will be a little better lawyer as a result.
May we all have that effect on our brothers
from time to time.
D. J. Hartsough
323.933.3184
E-mail
arbitr@aol.com
4929 Wilshire Blvd., Suite 740 Los Angeles, CA 90010
Opposing Shari’a
I was more than disappointed when I looked
at the February 2005 issue of Los Angeles
Lawyer. The United States is a civil country.
To suggest that any credence should be given
to shari’a in the U.S. legal system is appalling.
Blind adherence to shari’a has caused the
deaths of thousands of innocent people, the
maiming of even more and brought misery to
millions. What an insult to all of these poor
people (including those killed on 9/11) that
you have the nerve to publish “Keeping the
Faith.” I know what my answer would be if
ever asked to draft a contract that is “shari’a compliant”—NO. If you like I would be
pleased to write a feature article for your
next issue about the proper role of beheading, stoning to death for adultery, and cutting
off of hands for thievery. You owe your readers an apology.
Robert Goldsmith
Remembering Johnnie Cochran
In the dark days of law school, a light came
on for me during the O. J. Simpson trial. A
sharp dressed, articulate African American
lawyer stepped forth at a moment when the
world was watching, hanging on his every
word. As a second year law student in the
midst of the grind that is law school, I tuned
in along with my classmates at the Southern
University Law Center to watch the O. J.
Simpson trial.
We watched with great anticipation every
moment of the trial. We hung on every phrase
of the prosecution and defense. We were captivated. Like minor league baseball players
observing their first World Series, we scrutinized every decision, every sidebar, every ruling each and every day.
As the trial wore on, it was clear that
ever so slightly, bit by bit Johnnie Cochran
was imposing his will on the proceedings.
For me as an African American male, to see
another strong African American male command respect in the practice of his craft was
truly inspiring. For me as a lifelong resident
of Shreveport, Louisiana, watching another
Shreveport native rise to prominence was
impressive on a level so personal as to be
impossible to quantify. It was an understatement that Johnnie Cochran’s mastery of the
proceedings caused my chest to swell with
pride.
When Johnnie Cochran prevailed in the
courtroom, I prevailed in the courtroom
along with an entire generation of young
African American lawyers. For me, Johnnie
Cochran is my Thurgood Marshall. He is
that model of an attorney and consummate
legal professional that I strive to emulate.
Johnnie Cochran said that his greatest
pleasure as a lawyer came not from the
Simpson case or other multimillion-dollar
cases in which he prevailed. He made it clear
that securing the freedom of Geronimo Pratt
after over 25 years of imprisonment provided him his greatest reward. This reminds
us as lawyers that success is not measured in
dollars won, it is measured in the lives
restored and the clients helped. In the case of
Johnnie Cochran, his success can also be
measured in the lives that he touched and the
lawyers he inspires even today.
Johnnie Cochran touched many lives,
including mine. I am fortunate that I had the
opportunity to meet him, even if ever so
briefly, to tell him that I appreciated him for
providing a positive example for me as a
young lawyer. As always he was gracious,
even though I had interrupted his lunch with
some friends and family during his visit back
to Shreveport.
Now as I walk the steps to the courthouse, pass the bar into the courtroom, I
have Thurgood Marshall at one side and
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Johnnie Cochran at the other. My words are
sharper, my mind is more focused, and my
commitment that much deeper. For me and
many others, our path is made that much
clearer because Johnnie Cochran passed this
way. His dedication to the practice of law and
to the proposition that we as African
American attorneys have a particular duty to
fight to secure justice for those who have no
voice is a legacy that will last forever.
Calvin Ben Lester Jr.
(Editor’s note: Mr. Lester is a member of the
Shreveport city council.)
Clarification from Michael Warren
This letter attempts to dispel any misconceptions about the actor L. Michael Warren
and other defendants, including the producer
Stephen Bochco, sued for copyright infringement by Jerome and Laurie Metcalf that
might have arisen, particularly for nonlitigators, who read the article titled “Access
Hollywood” by Andrew J. Thomas published
by Los Angeles Lawyer in its May 2005
issue. In 2000, the Metcalfs sued Warren and
others alleging that about nine years earlier,
the Metcalfs had written a treatment and
two screenplays for a motion picture involving a hospital. The Metcalfs claimed that the
short-lived television drama City of Angels
infringed their treatment. Norminton &
Wiita, the law firm where I practice, represented Warren, who had a role on City of
Angels, in the Metcalf litigation.
The article, which confined itself to a discussion of the 2002 Ninth Circuit decision in
the Metcalf litigation, quoted the allegations
of the Metcalfs regarding purported wrongdoing by the defendants. However, the article did not reflect that 1) Warren denied at all
times having provided the Metcalfs’ treatment to Bochco, 2) the other defendants also
denied that they had access to any of the
Metcalfs’ alleged works but merely conceded
access solely for the purpose of one summary judgment motion granted by the district
court and later reversed by the Ninth Circuit,
3) the contributory copyright infringement
claim by the Metcalfs against Warren was
proven to be completely baseless, 4) Warren
in fact obtained summary judgment in his
favor in the action subsequent to the 2002
Ninth Circuit decision, 5) Warren was
awarded attorney’s fees and costs against the
Metcalfs, and 6) a jury found in favor of the
remaining defendants after trial, concluding
that the defendants had not copied the
Metcalfs’ works.
In sum, the Metcalfs’ allegations about
Warren and the other defendants were disproved, and Warren and the other defen-
dants were completely exonerated of any
wrongdoing in the matter.
Kathleen Dority Fuster
(Editor’s clarification: The article in question discusses the legal issues raised by the
2002 Ninth Circuit decision Metcalf v.
Bochco, 294 F. 3d 1069 (9th Cir. 2002). The
facts of the case as recited in the article were
drawn from that decision. However, the article should have indicated that the court noted,
“Because we review a summary judgment
against plaintiffs, we recite the facts as alleged
by them.” Id. at n.1. The editors regret any
misconception this omission may have
caused.)
Articles Solicited
To Our Readers:
Los Angeles Lawyer encourages the submission of well-written, well-researched legal
articles.
Manuscripts and query letters should be
sent to: Los Angeles Lawyer, P. O. Box
55020, Los Angeles, CA 90055. Requests for
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The Los Angeles Lawyer Editorial Board
carefully considers all submissions.
Samuel Lipsman,
Publisher and Editor
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President’s Page
BY EDITH R. MATTHAI
Defending and Improving Our Judicial System
“THE CONSTITUTION PROTECTS judicial independence not to bene- resulted not only in Marbury v. Madison but also in the attempt to
fit judges but to promote the rule of law: Judges are expected to admin- impeach Justice Samuel Chase. While Chase was not a model of
ister the law fairly, without regard to public reaction.” That statement judicial temperament or conduct, the impeachment effort failed,
by Chief Justice William Rehnquist may have been inspired by the largely because of the admissions by those seeking his ouster that their
recent spate of unfortunate and personalized political attacks on motivation was his “dangerous opinions” and that the effort was
judges who have made highly publicized decisions. Criticism of the intended to open the office for a Democratic-Republican loyalist.
When Democratic president Franklin Roosevelt, with the support
courts inspired by political opposition to particular rulings is neither
new nor unexpected. Unfortunately, the current rhetoric not only is of an overwhelmingly Democratic Congress, found the Supreme
shrill but is directed at individual judges, with the suggestion that they Court a roadblock to the progressive reforms he supported, he
launched his infamous court-packing plan as a way to provide “a conshould be “held accountable” for their decisions.
It is inevitable that courts will decide issues
that touch deeply held beliefs. In the climate of
the current “culture wars,” inflamed by special
Those who speak scornfully of “activist judges” should recall that
interest groups and the media, decisions on
abortion, same-sex marriage, and the role of
religion in public life are guaranteed to generthe courts do not solicit their business. It is the litigants that
ate highly emotional responses. As lawyers,
we are obliged, no matter how strong our own
beliefs on the issues, to refrain from dispardetermine what issues will be brought to the court.
agement of the system and to respond to threats
of retribution directed toward judges who
have made unpopular decisions. Reasoned and
even sharp criticism of the legal basis for a decision is appropriate. stant and systematic addition of younger blood” to “vitalize the
Suggestions that the bench officer who made the decision should be courts” to meet the “the actual present needs of the largest progres“held accountable” are wholly inappropriate. As Ted Olson elo- sive democracy in the modern world.” The New York Times reported
quently stated in a recent Wall Street Journal editorial: “We expect upon announcement of the plan that the “stunned” Republicans
dignity, wisdom, decency, civility, integrity and restraint from our proclaimed that the administration, “having already destroyed the ecojudges. It is time to exercise those same characteristics in our deal- nomic stability of the country, apparently will not be content until it
destroys the judicial stability.” Although initial reports were that the
ings with and commentary on those same judges.”
Although the executive and legislative branches are required to plan would be approved, the Roosevelt attack on the courts proved
respond to current events and controversies, each has far greater free- to be an embarrassment to the administration after the organized bar,
dom to select which issues to address, and, unrestrained by stare deci- the press, and eventually public opinion rallied against the proposal.
Strong public rhetoric has also been generated by particular decisis, each has far greater freedom to choose a position on those issues
they do address. Those who speak scornfully of “activist judges” sions. In the nineteenth century the Supreme Court was attacked for
should recall that the courts do not solicit their business. It is the lit- its infamous Dred Scott decision. At the end of the last century, progressives criticized a more conservative Court for decisions invalidating
igants that determine which issues will be brought to the court.
The current round of judicial criticism should be viewed with some many labor reforms and protections. The conservative response was
historical perspective. The constitutional system of checks and bal- to point out that the function of the Court was to uphold the
ances all but guarantees that there will be tension among the branches Constitution even against the popular will. As the philosophy of the
of government—it is intended to do so. Politically inspired dispar- court changed, so too did the positions of those who would defend
agement of the judiciary has periodically erupted throughout our his- and those who would attack the courts. The decision in Brown v.
tory. Criticism has emanated from all sides of the political spectrum Board of Education was met with outright defiance that required the
depending on who holds the greater sway in each branch of gov- executive branch to send federal troops to enforce desegregation. Other
ernment. From the brief research for this column, it was interesting court decisions invalidating a host of repugnant racial restrictions were
to note that the most heated rhetoric has flared when the executive met with cries for impeachment of the judiciary. Such rhetoric was
and legislative branches were controlled by the same party, and the not limited to the South. When the federal court in Los Angeles
court was viewed as the “check” that maintained unwanted “balance.”
After the Democratic-Republican party swept both houses of Edith R. Matthai, a partner at Robie & Matthai in Los Angeles, is 2005-06
Congress in 1800, with Democratic-Republican Thomas Jefferson in president of the Association. She can be reached via e-mail at ematthai
the White House, the power struggle with the “Federalist judiciary” @romalaw.com.
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ordered desegregation for local schools, far
too many called for defiance and direct action
against the judge and the courts.
The California Supreme Court held in
1948 that “[i]f the right to marry is a fundamental right then it must be conceded that
an infringement of that right by means of a
racial restriction is an unlawful infringement
of one’s liberty.” Justice Traynor wrote, “The
caprice of the politicians cannot be substituted
for the mind of the individual in what is
man’s most personal and intimate decision.”
In 1967 the U.S. Supreme Court agreed,
invalidating antimiscegenation laws throughout the country. Decisions on the right to
marry were met with assertions that the court
was interfering with “God’s plan.” Some
called for impeachment, some called for stripping the courts of jurisdiction over such matters, and some called for violent action against
both the justices and those who would take
advantage of the decisions.
The judiciary cannot easily rise to its own
defense. Attempts to do so risk dragging the
courts into heated political discourse inappropriate for judicial officers. The Canons of
Ethics require judges to “avoid political activity that may create the appearance of political bias or impropriety.” Instead the bar has
a responsibility to ensure that “an independent, fair, and competent judiciary will apply
the laws that govern us.” When personal
threat is directed to a bench officer, we have
the obligation, individually and collectively,
to step forward to educate those who fail to
recognize that the role of the judiciary is central to the American concept of justice. We
must also remember to temper our own
rhetoric when we disagree with a decision.
Assertion that the legal reasoning is in error
is legitimate; a diatribe directed toward the
bench officer is not.
When a political attack is directed toward
the system as a whole, we must also step forward. The recent attacks on the jury system,
many of which are based on wildly inaccurate
information, seek to eliminate the critical
protections provided by that system. Many
bar organizations have programs that convey
the importance of the jury system to the public. Even small efforts contribute; think twice
before responding to the inevitable groans
from your friends who have received a jury
summons with a recommendation on how to
avoid service. Try instead a brief endorsement of the one-day-one-trial system that
has eliminated the endless days of jury room
ennui. Be sure you have all the facts before disparaging a jury’s decision in a high-profile
case, especially since media reports may not
accurately reflect what was actually presented
to the jury.
Support for the courts and the judiciary
does not mean that legitimate criticism can-
not be made or that legitimate channels cannot be used to seek improvements in the system and in the judiciary. As long as the efforts
are not inspired by personal animus or politically driven motive, the bar has the responsibility to work to make the system the best
it can be. A court with the highest quality judicial officers making the most well-grounded
and reasoned decisions will be the least subject to criticism and the easiest to defend
from unfair attacks.
The Los Angeles Superior Court, with
over 500 bench officers, is the largest court
in the nation. The Association has joined
with the court to establish a multitude of
programs to assist in ensuring that it is also
the finest. Association officers, committee
members, and other representatives serve on
multiple bench/bar committees designed to
address problems encountered by both bench
and the bar. Our members are asked by the
court to assist in judicial training. The officers meet regularly with the court leadership
to review responses to the Association’s Judge
Your Judge program. The court is committed
to addressing legitimate concerns raised in
these responses. Subsequent discussions,
between court leadership and judges who
were unaware of the problems created by
their courtroom practices, have solved some
problems. Over time we have had success,
working with other bar organizations, in
securing the court’s commitment to elimination of local-local rules, in securing random
reassignment following 170.6 challenges, and
in addressing unreasonable time standards
imposed in some venues. We have participated as amicus in cases directly affecting
the ability of our members to practice, including Oliveros, which confirmed that decisions
on continuances “must be made in an atmosphere of substantial justice.”
In 2000, the Association released the
report of its Blue Ribbon Commission, which
examined issues of concern raised by superior
court constituents, including parties, lawyers,
jurors, staff, security personnel, and attorney
services. With the cooperation of the court,
the commission’s recommendations helped
to solve many problems. Yet, the thorniest
issue remained. To address that problem, our
immediate past president, John Collins, who
chaired the original Blue Ribbon Commission,
appointed the “New Blues” to seek answers
to the extraordinarily difficult challenge of
preserving judicial independence while providing appropriate means of addressing those
few but consequential situations in which a
bench officer is abusive, incompetent, or perpetually unprepared. I look forward to working with John, the distinguished members of
the bar who comprise the New Blues, and the
leadership of the superior court to make this
project a success.
■
Los Angeles Lawyer July-August 2005 17
Barristers Tips
BY KIM TUNG
The Barristers Section Continues Its Years of Service
THE BARRISTERS SECTION of the Los Angeles County Bar Association
has been active for more than 75 years and is excited to continue its
service to new and young lawyers and the community. You are automatically a member of the Barristers, without any additional fee, if
you are a member of the Association and are either 36 years of age
or younger or have been admitted to practice for 10 years or less.
The mission of the Barristers is to provide opportunities for new
and young lawyers to develop their legal skills, professional reputation, and network beyond their firm or agency and to promote public service projects. The Barristers activities also provide a forum for
new and young lawyers to develop leadership skills and to interact
with judges, more experienced attorneys, and peers.
To enhance trial practice, our Bench and Bar Committee will
organize, as it has in the past, judicial round table programs to introduce new and young lawyers and law students to federal and state
judges and the judicial system. We have and will continue to cosponsor the Los Angeles Superior Court Walk-Through program, which
provides new and young lawyers with vital knowledge of the inner
workings of the Los Angeles Superior Court.
Our Continuing Legal Education Committee will continue to
provide programs that will improve the legal skills of our membership. These programs include our well-attended Nuts and Bolts Basic
Litigation Skills Program, which is a three-day course designed to help
a lawyer to be an effective litigator. The programs features some of
the top lawyers and judges in our community. We will also strive to
provide continuing legal education to satisfy the requirements for
ethics, elimination of bias, and prevention of substance abuse.
Public Service
The Barristers also will continue to provide public service projects.
Last year, the Barristers made a difference in the lives of foster children by promoting the Court Appointed Special Advocates (CASA)
program. Each month in Los Angeles County, several hundred hurt,
frightened, and confused children enter the dependency court system.
These foster children have been removed from the custody of their
parents because of abuse, neglect, or abandonment. Judges in the
dependency court rely on CASAs to make key decisions that affect
the lives of these children and their families. In collaboration with the
Alliance for Children’s Rights, the Barristers trained attorneys to
represent foster children pro bono for National Adoption Day. The
Barristers will continue to provide support for foster children.
In partnership with the Screen Actors Guild Foundation, the
Lawyers for Literacy Committee went to schools in Los Angeles to
promote the importance of literacy to children and to teach them to
read. This past year, the committee had great success in inviting
celebrity and attorney volunteers to read to children in Los Angeles,
and the Barristers hope to continue such success in the coming year.
The Barristers also will participate in National Law Day by assisting the community and LACBA affiliates in providing support and
volunteers at Law Day free legal advice locations. In conjunction with
Public Counsel, the Barristers has promoted the Community
Development Project to provide legal assistance to nonprofit community organizations and the Debtor Assistance Project to assist
lower-income debtors confronting bankruptcy. The Barristers will also
continue its relationship with Public Counsel.
The Barristers is a proud sponsor of the National Moot Court
Competition Western Regional Finals, and this year, the Barristers will
sponsor the fifty-sixth moot court competition. As it has in years past,
the Barristers will invite members of the judiciary and the legal community to act as volunteer judges and to grade appellate briefs.
The Barristers Section is not all work and no play. Through our
Networking Committee, the Barristers host networking mixers across
Los Angeles. The networking mixers have been held at varieties of
destinations, including wine tasting stores, bars on top of hotels, and
local restaurants. The Networking Committee will continue to provide fun and interesting venues for its mixers.
New Programs
The legal community is dynamic, and in furtherance of its mission,
the Barristers is constantly creating new programs to fit the needs of
the legal community. Although we will continue many of the Barristers
programs and public service projects, we are currently engaged in
researching programs that will help the growing segment of sole
and small firm practitioners and will promote bar association involvement and leadership. We are proud that the Barristers Section leaders and members reflect the changing demographics and practice
areas of the Los Angeles legal community; we applaud Luci-Ellen Chun
as the first Asian American LACBA Barristers president.
We invite you to get involved and take advantage of your membership in the Barristers. Of course, non-Barristers are also welcomed. When you come to a Barristers event, we encourage you to
meet and talk with the Barristers Officers and Executive Committee.
For the 2005-06 year, these are Luci-Ellen Chun (immediate past president), Gavin Hachiya Wasserman (president-elect), Cheryl JohnsonHartwell (vice president), Cindy Macho (trustee), Chris Pham (assistant vice president), Richard Lee (treasurer), Vivian Lee (secretary),
Kenneth Chiu, Stephanie S. Choi, Alexander Gareeb, Amos Hartston,
Christine Hayashi, Rose Hickman, Valerie Ho, Princeton Kim,
Domini Pham, Thomas F. Quilling, Rita Soto, Sharon Wagner Wells,
and Samuel J. Woo.
More information about our committees and activities may be
found on the Barristers Web page at www.lacba.org/barristers. Also,
keep an eye out for the Barristers monthly e-newsletters about upcoming events. You may also contact me at ktung@DGDK.com. Feel free
to tell me or any member of the Barristers leadership how the
Barristers can be more responsive to new and young lawyers. We hope
to see you at the next event.
■
Kim Tung, an associate at Danning, Gill, Diamond, & Kollitz, LLP, is president
of the Barristers for 2005-06.
Practice Tips
BY MICHAELBRENT COLLINGS
RICHARD EWING
Using Collateral Estoppel after Arbitration
COLLATERAL ESTOPPEL OCCURS WHEN a judgment in one court
action serves as a bar in a later action to the relitigation of issues that
were actually litigated and conclusively adjudicated in the first action.1
Collateral estoppel can be a useful weapon in a litigator’s armory, potentially saving huge amounts of money in trial time and preparation.
However, when a party seeks to assert collateral estoppel based
on the outcome not of a court action but of an arbitration, some questions emerge. May a third party who was not a part of the arbitration assert collateral estoppel against an arbitrating party in a subsequent lawsuit against the arbitrating party? Conversely, can a party
to the arbitration assert collateral estoppel against a party in a subsequent litigation who was not a party to the arbitration? With arbitration increasingly viewed as the favored method of dispute resolution, these questions are important and will become even more so as
the number of arbitrations continues to climb.
Generally, the answer to both questions is no. But lawyers who
wish to assert—or avoid—collateral estoppel should be aware that
there are exceptions to this general rule. These exceptions hinge on
the relationship between the party to a lawsuit who was not a party
to the previous arbitration and the party in the lawsuit who was a
party to the previous arbitration.
In Vandenberg v. Superior Court,2 Eugene and Kathryn Boyd
operated an auto dealership on property that they owned. The land
was leased to Vandenberg for 30 years, at which time possession
reverted to the Boyds. The Boyds discovered the land had been contaminated and sued Vandenberg, who had numerous insurers. Some
of the insurers’ policies excluded coverage for contamination unless
it was the result of a “sudden and accidental” discharge. Vandenberg
tendered the defense of the action to the insurers, and the majority
of the claims were settled.
However, the Boyds and Vandenberg (and only those parties)
agreed to submit the remaining breach-of-lease issues to binding
arbitration. USF&G, one of Vandenberg’s insurers, agreed to defend
the Boyds, but the ultimate issues regarding USF&G’s obligations were
reserved for future resolution.
The arbitration took place, and the arbitrator made an award to
the Boyds. The arbitrator also found that the contamination was not
caused by sudden and accidental discharge. Vandenberg requested
indemnity from the insurers, but the request was rejected.
During litigation, the insurers filed a motion for summary judgment on the grounds that the issue of whether the discharge was sudden and accidental could not be relitigated. They argued that the arbitrator had reached a decision on that issue, so collateral estoppel
precluded a subsequent trial in which the issue would be litigated again.
The trial court agreed and granted summary judgment.
But the appellate court disagreed, and the California Supreme Court
ultimately affirmed, holding that:
[A]bsent a contractual agreement by the arbitral parties, a
party to private arbitration is not barred from relitigating
issues decided by the arbitrator when those issues arise in a dif20 Los Angeles Lawyer July-August 2005
ferent case involving a different adversary and different causes
of action. It would not be fair to give a private arbitration decision nonmutual collateral estoppel effect without the arbitral
parties’ consent, the Court of Appeal reasoned, because private
arbitration lacks significant safeguards of court litigation, particularly the right to full judicial review.3
The California Supreme Court’s review included a consideration
of “the circumstances, if any, in which private contractual arbitration
decisions may have collateral estoppel effect in favor of nonparties.”4 After a discussion of the binding nature of arbitration and the
limited judicial review available to parties to arbitration, the court ruled
that collateral estoppel could not be used by a third party against a
party to an arbitration unless the parties specifically agreed in the arbitration agreement that collateral estoppel could be invoked by nonparties to the arbitration in a subsequent litigation.
The court first observed that:
[V]ery different considerations affect the issue whether private
arbitration awards should have nonmutual collateral estoppel
effect. California’s statutory scheme nowhere specifies that,
despite the arbitral parties’ failure so to agree, a private arbitration award may be binding in favor of nonparties in litigaMichaelbrent Collings is a litigation associate at Kamine Ungerer LLP, where
he focuses on construction contract disputes.
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tion involving different causes of
action. Moreover, in our view, such a
consequence is not an inherent or
expected feature of private arbitration
that is implicitly accepted by the arbitral parties.5
Because of arbitration’s informal nature
and for a number of public policy reasons, the
supreme court stated that it was “compelled
to conclude that a private arbitration award,
even if judicially confirmed, can have no collateral estoppel effect in favor of third persons
unless the arbitral parties agreed, in the particular case, that such a consequence should
apply.”6 The court noted that “fairness and
public policy thus counsel against application
of nonmutual collateral estoppel in this setting, unless the parties specifically agree
thereto.”7
Analyzing the Exceptions
While the court’s ruling does not seem to
provide for exceptions, they exist nonetheless.
There are times when a third party in a subsequent lawsuit will be able to assert collateral estoppel against one of the arbitral parties. These occur only when the third party
seeking to assert estoppel is the same party in
whose favor the arbitration issue was decided
or is sufficiently close to a party to the arbitration as measured by interests and relationship.
For instance, in Sartor v. Superior Court,8
the plaintiff homeowners filed a lawsuit alleging fraud and other causes of action against
the company they engaged as their architects. During contractually mandated arbitration, the arbitrator found that the company
was not guilty of the fraud claim. Subsequently, the homeowners brought an action
for fraud against several individual defendants who were employees and/or agents of
the architectural company. The court noted
that a company can only act through its
agents and employees, so if the company is
not guilty of a cause of action, then the individuals who acted as the company cannot be
guilty either. Therefore, collateral estoppel
would act to bar any lawsuit against the
company’s individual employees and agents
by the party to the earlier arbitration for the
same cause of action that was determined
by the arbitrator to have no merit.
These cases demonstrate the viability of a
third party in a subsequent lawsuit asserting
collateral estoppel against a party to the previous arbitration, but they do not address
whether a party to the arbitration can raise collateral estoppel to bar claims by a third party
in a subsequent lawsuit. A resolution of this
issue will depend on several facts, most particularly the relationship between the third
party and a party in the previous arbitration.
In Kelly v. Vons Companies, Inc.,9 a union,
Local 381, brought an action against Vons
under a collective bargaining agreement. The
union claimed that the closure of a Vons
facility was in violation of the agreement.
The dispute was submitted to binding arbitration, and the arbitrator found that Vons
had acted for economic reasons and not in
response to the outcome of a previous arbitration involving a different union, Local 63.
Later, several individuals sued Vons, claiming they had left their secure employment
and turned down other job opportunities,
only to lose their Vons jobs (or have them
detrimentally altered) after Vons closed its
facility. They claimed that Vons had failed to
notify them of the earlier arbitration involving Local 63 and thus was liable for fraud and
negligent representation. Vons moved for
summary judgment, claiming that the Local
381 arbitration had led to a finding that the
facility closure was for economic reasons,
and this result had nothing to do with the
Local 63 arbitration. Therefore, Vons argued,
collateral estoppel barred the employees’
claims.
The court of appeal agreed with Vons. It
first noted that the Local 381 arbitration
proceedings “had the elements of an adjudicatory procedure.”10 For collateral estoppel to be applicable, the first requirement is
that the arbitration must be found to have
been “formal,” with discovery, motions,
briefings, and similar procedures. Indeed,
the court stated that other indicia of formality included:
[T]he opportunity for a hearing before
an impartial and qualified officer, at
which [the parties] may give formal
recorded testimony under oath, crossexamine and compel the testimony of
witnesses, and obtain a written statement of decision. When an arbitration has these attributes, it is not unjust
to bind the parties to determinations
made during the proceeding.11
This conclusion is in line with numerous
statements in Vandenberg, in which the court
noted that lax arbitrations created circumstances for which estoppel should not apply.
The more informal the arbitration proceedings, the less likely a court will be willing to
allow the assertion of collateral estoppel
based on decisions from the arbitration.
Turning to the nature of the parties’ relationships, the Kelly court held that:
[F]indings made during a labor arbitration will only be binding in a subsequent employee lawsuit if the
employee was a party to the arbitration
or in privity with the union during
that proceeding. Privity requires identity of interests, or a relationship which
is sufficiently close to justify application of the doctrine.12
Thus, the court allowed the previously
arbitrating party (Vons) to assert collateral
estoppel against a third party in a later lawsuit (the employees), specifically because the
third parties were sufficiently close in interests and relationship to a party to the arbitration to justify the court’s application of the
doctrine.
The court proceeded to summarize the basic elements necessary for collateral estoppel:
A prior determination by a tribunal
[including an arbitrator when the arbitration has the “elements of an adjudicatory procedure”] will be given collateral estoppel effect when (1) the
issue is identical to that decided in a
former proceeding; (2) the issue was
actually litigated and (3) necessarily
decided; (4) the doctrine is asserted
against a party to the former action or
one who was in privity with such a
party; and (5) the former decision is
final and was made on the merits.13
Another case illustrates these points in a
circumstance in which a bond surety principal is found liable in an arbitration. In T&R
Painting Construction, Inc. v. St. Paul Fire and
Marine Insurance Company,14 a property
owner entered into a contract with a general
contractor, Capitol. Capitol subcontracted
with T&R, and that subcontract had a clause
entitling the prevailing party in a lawsuit
between them to receive attorney’s fees. T&R
completed part of its work, and Capitol terminated T&R for defective work. The dispute
went to arbitration. The arbitrator ruled that
the termination was unsupported and
awarded T&R the value of its work, plus
attorney’s fees and costs.
Capitol filed for bankruptcy, but T&R
petitioned for confirmation of the arbitration award against Capitol, and judgment
was entered. T&R proceeded to file suit
against St. Paul, Capitol’s payment bond
surety, for a limited determination of
“whether St. Paul was liable for the attorney
fees T&R incurred in prosecuting its claims,
including arbitration, against Capitol.”15
There was no attorney’s fees clause in the
payment bond.
St. Paul prevailed at trial, contending that
T&R’s action against it was barred by the
doctrine of res judicata or the “one final
judgment” rule. The appellate court disagreed, stating that the one final judgment rule
did not operate to bar T&R’s action. Though
Capitol and St. Paul had a “unity of interest,”
they were not the same party. Res judicata
operates to bar the same claim against the
same parties. However, the arbitrator had
not reached the question of St. Paul’s liability, so T&R was entitled to pursue that claim
in its lawsuit. Relying on Civil Code Section
2808, the court ruled that, since the liability
of the surety was commensurate with that of
its principal, and Capitol’s liability included
payment of fees under the subcontract, St.
Paul should be liable in that same amount.
The court seemed to implicitly recognize
the collateral effect of the arbitration ruling
against the surety’s principal in binding the
surety for the same sum. However, the question of whether T&R was entitled to assert
collateral estoppel against St. Paul was never
explicitly reached. Further, the court relied on
a statute that defines liability for bond sureties
in making its determination. Therefore, practitioners should exercise care in relying on
T&R Painting for determining the applicability of collateral estoppel in situations that
fall outside that case’s limited fact pattern.
Strong Argument
Nonetheless, based on the T&R Painting
decision together with the holding in Kelly,
a strong argument can be made for any arbitral party to assert collateral estoppel against
a third party in a later lawsuit if the following conditions exist:
1) The arbitration “had the elements of an
adjudicatory procedure,” including a hearing
before an impartial and qualified officer, at
which the parties gave formal recorded testimony under oath, cross-examined and compelled the testimony of witnesses, and
obtained a written statement of decision.
2) The issue to be decided in the subsequent
lawsuit is identical to the issue decided in
the arbitration.
3) The issue was actually litigated and “necessarily” decided in the arbitration.16
4) Collateral estoppel is asserted against a
party to the former arbitration or one who
was in privity or had a “unity of interests”
with a party to the former arbitration.
5) The arbitral decision is final and was made
on the merits. The cases demonstrate that
finality in an arbitration occurs when the arbitration award is confirmed by the court. ■
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1
Todhunter v. Smith, 219 Cal. 690, 695 (1934).
Vandenberg v. Superior Court, 21 Cal. 4th 815
(1999).
3 Id. at 827.
4 Id. at 828.
5 Id. at 831 (emphasis in original).
6 Id. at 834.
7 Id. at 835.
8 Sartor v. Superior Court, 136 Cal. App. 3d 322 (1st
Dist. 1982).
9 Kelly v. Vons Cos., Inc., 67 Cal. App. 4th 1329 (2d
Dist. 1998).
10 Id. at 1336.
11 Id. at 1336-37.
12 Id. at 1338.
13 Id. at 1339; explanatory phrase regarding what
constitutes a tribunal, id. at 1336.
14 T&R Painting Constr., Inc. v. St. Paul Fire & Marine
Ins. Co., 23 Cal. App. 4th 738 (2d Dist. 1994).
15 Id. at 742.
16 Kelly, 67 Cal. App. 4th at 1339.
2
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Practice Tips
BY RAY JURADO
The Harm to Public Service Standard in Police Misconduct Cases
IN THE WEEKS FOLLOWING A CONTROVERSIAL police incident, the
media may play a videotape over and over, but they rarely focus on
issues related to the administrative investigation of the officers
involved. Typically, there is no examination of the applicable law or
administrative standard for disciplining officers if a subsequent investigation confirms that misconduct occurred. In California, police
and sheriff’s departments may terminate an officer’s employment
for misconduct determined to cause harm to the public service.
Although the doctrine of harm to the public service has existed in
California law for decades, police departments do not consistently
apply the doctrine when imposing discipline for serious misconduct.
Harm to the public service is defined as misconduct committed by
a public servant that is likely “to have a deleterious effect upon public service,” or that is likely to cause “impairment or disruption of
public service.”1 In 1975, in one of the first cases to address this issue,
the California Supreme Court declared that when disciplining a public employee’s on- or off-duty misconduct, the employing agency’s
“overriding consideration…is the extent to which the employee’s
conduct resulted in, or if repeated is likely to result in, ‘[h]arm to the
public service.’”2 Other factors considered are the circumstances
surrounding the misconduct and the likelihood of its reoccurrence.3
It remains unclear why police departments do not consistently apply
the doctrine when imposing discipline in serious misconduct cases.
Perhaps those who determine discipline—police captains and other
high-ranking personnel—do not have the relevant legal background
conducive to the application of a legal doctrine that, while established,
lacks a bright-line test. Analysis of the cases that have applied the doctrine, however, reveal remarkably consistent holdings. Where the
misconduct is serious—involving dishonesty, false statements, violence,
threats, or sexual misconduct—courts have consistently found that
the officer no longer deserves the public and department’s trust and
that termination is the appropriate discipline.
When firing of a police officer has been challenged, California
courts have repeatedly upheld the firing in cases of harm to the public service. The near-uniform affirmation of severe discipline suggests
that police departments should at least consider termination in such
serious cases. However, some departments’ disciplinary guidelines—
internal guidelines that set forth low to high ranges of discipline—
do not allow for termination as a possibility even when the conduct
involves dishonesty, false statements, violence or threats of violence,
or sexual misconduct.
Dishonesty and False Statements
When police officers are found to have lied to their superiors during
investigations, courts have held that such misconduct harms the
public service and discharge is the appropriate discipline. For example, Talmo v. Civil Service Commission of Los Angeles County concerned a Los Angeles County Sheriff’s deputy who was discharged for
several different acts of serious on-duty misconduct.4 Specifically, the
deputy battered an inmate by tipping over the bed the inmate was
sleeping in, causing the inmate to fall onto the floor, which resulted
in a bloody nose. The deputy then wrote a false report claiming that
the inmate tipped over the bed himself. In another incident, the
deputy placed a dead gopher in an inmate’s pocket and lied about it
when he was questioned by his supervisor. The deputy also made a
threatening telephone call to a coworker, calling him a “fucking
snitch” and the n-word, and then denied doing it.5
The court rejected the deputy’s claims that a lesser discipline
should have been imposed and that discharge was out of proportion
to the misconduct. The court reasoned “we know of no rule of law
holding every deputy sheriff is entitled to commit one battery on a
prisoner before he or she can be discharged.” The court also rejected
the deputy’s assertion that the department had not fired other deputies
alleged to have committed similar misconduct. Noting that even if the
deputy had proved this, which the court found he did not, the court
held “there is no requirement that charges similar in nature must result
in identical penalties.” In upholding the deputy’s discharge, the court
opined that “when an officer of the law violates the very law he was
hired to enforce and lies about it to his superiors he forfeits the trust
of his department and the public.” Further, the court emphasized that
a “deputy sheriff’s job is a position of trust and the public has a right
to the highest standard of behavior from those invested with the power
and authority of a law enforcement officer. Honesty, credibility and
temperament are crucial to the proper performance of an officer’s
duties.” By mistreating inmates and subsequently lying about it to his
supervisors, the deputy caused harm to the public service.6
When a police officer engages in relatively minor misconduct,
including falsely calling in sick, but lies about the misconduct in a subsequent investigation, courts have held officers to a higher standard
and upheld their firing. In one case, Paulino v. Civil Service Commission of San Diego County, a deputy sheriff was dismissed for various causes.7 The deputy had called in sick on eight days in one month.
On at least two of those days the deputy was involved in recreational activities with friends, although he told his supervisor that he
was ill. In addition, in order to avoid a shift change, the deputy lied
to his supervisor regarding a doctor’s orders. After being asked to file
a report detailing his sick leave, the deputy convinced a fellow deputy
to lie about his engagement in recreational activities during his sick
leave. In upholding the deputy’s termination, the court distinguished
two cases involving public officials who were not peace officers.8 In
one case, the court of appeal reversed dismissal of a labor commissioner who pointed a gun at a fellow employee while off duty.9 In
another, the California Supreme Court reversed dismissal of a state
Department of Healthcare doctor who took lunch breaks a few minutes longer than permitted and left the office without permission for
several hours.10
In Paulino, the court noted that, unlike the civilians in the other
Ray Jurado is a former federal prosecutor who currently oversees police misconduct internal investigations in the Los Angeles County Sheriff’s Department.
two cases, the deputy was a peace officer
who was intentionally dishonest.11 The court
reasoned that “dishonesty is not an isolated
act; it is more a continuing trait of character.”
The court also concluded that a “deputy
sheriff is held to the highest standards of
behavior,” honesty and credibility were “crucial to proper performance of his duties,”
and “[d]ishonesty in matters of public trust
is intolerable.” Finally, the court held that
“[u]nder the county’s progressive discipline
guidelines, dismissal was within the range of
punishment for the first offense of dishonesty.”12
The decision is not the only one to hold
that officers are held to a higher standard.
When an officer steals or misappropriates
public property and is dishonest during the
investigation of the theft, courts have found
harm to the public service. In Ackerman v.
State Personnel Board, a state motorcycle
officer was discharged for misappropriating
state-owned motorcycle parts and installing
them on his privately owned motorcycle.13
When questioned about where he obtained
the parts, the officer lied to the investigator
handling the case. Had the officer been a
civilian, the court noted, punishment less
than dismissal would probably have been
sufficient. The court ruled, however, that the
officer’s discharge was proper because police
officers “must be held to higher standard
than other employees.” “The credibility and
honesty of an officer are the essence of the
function.” Consequently, the court reasoned
that “[a]ny breach of trust must therefore
be looked upon with deep concern.” Although
the officer admitted that his lie constituted
“bad judgment,” the court held that his theft
of the parts and his initial failure to be forthcoming during the investigation affected the
public’s respect and trust of the California
Highway Patrol, caused harm to the public
service, and justified his discharge.14
In a similar case, a correctional officer
was discharged for insubordination, dishonesty, and misuse of state property.15 After
going off duty, the officer attempted to remove
a box of recording equipment clearly marked
as state property from his work place. When
questioned about his activity by a security officer, the officer claimed to own the property.
Several months later, the officer was suspected of being under the influence of drugs
or alcohol while on duty and refused to submit to any urine or sobriety tests. During his
hearing before the State Personnel Board,
the officer claimed that an unknown person
had told him that a box would be delivered
for him and that he should pick it up. He did
not know the identity of the person or why
the recording equipment was delivered to
him. He also denied he was under the influence of narcotics or alcohol and denied he
refused to take a urine or sobriety test. The
court rejected the officer’s claim of insufficiency of evidence and found the evidence sufficient to sustain findings of insubordination,
dishonesty, and misuse of state property. It
held that “an officer’s actions must be above
reproach,” and found that the officer’s course
of conduct was “anything but commendable.” In assessing whether or not the officer’s
conduct amounted to harm to the public service, including the circumstances of the misconduct and the likelihood of its reoccurrence, the court held that the discharge was
not excessive, despite his otherwise good
work record.16
When an officer fails to perform his duties,
including inadequately investigating crimes,
and lies during the subsequent investigation,
his dismissal will most likely be upheld on
appeal. A Los Angeles police officer failed to
conduct an adequate felony investigation,
failed to prepare reports of the crime, lied to
an investigator about this conduct, failed to
write another report involving a different
felony, and knowingly submitted a false daily
field activities report.17 The officer also had
a history of similar misconduct. On two prior
occasions he had neglected his duties and
failed to take proper law enforcement action
when victims reported serious crimes to him.
His supervisors had concluded that as a result
of these two prior incidents, he showed “a
lack of concern for providing professional
or acceptable level of service to the public.”18
Under these circumstances, the court found
that dismissal was not an abuse of discretion.19
An officer’s dereliction of duty may also
amount to harm to the public service, especially where the misconduct is worsened by
falsification of records or dishonesty. In Haney
v. City of Los Angeles, a Los Angeles police
officer was discharged from his position for
dereliction of duty.20 On Memorial Day, the
officer planned a barbecue for himself and
three other officers. The barbecue occurred
while the officers were on duty and should
have been performing foot patrol assignments in the San Pedro area. The officer then
knowingly falsified his patrol log to indicate
that he was on foot patrol while he was in fact
attending the barbecue. In a subsequent separate allegation, it was determined that he
failed to adhere to the LAPD’s reporting
requirements during a 14-month period of
sick leave, by failing to maintain contact with
his supervisors, and that on several occasions he lied about calling the station’s desk
when he had been told to call his supervisors.
He also failed to submit a doctor’s letter supporting his sickness claim until the end of the
14-month period. At his Board of Rights
hearing, which he did not attend, his supervisors testified. They considered him disloyal
to the LAPD, none wanted him under their
command in the future, and if forced to retain
him would assign him only to in-station duty
or place him on patrol under very strict supervision. In upholding termination, the court
ruled that the officer’s actions caused harm to
the public service in that he “deprived the
public of police protection by his absence.”
Even though the officer admitted he did not
have permission to stage the barbecue and
admitted he falsified his patrol log to cover for
this time, the court found he “demonstrated
both disloyalty to the LAPD and a serious lack
of integrity.” Further, the court went on to say
that “[p]olice officer integrity is vital to effective law enforcement. Public trust and confidence in the [LAPD] as an institution and in
individual officers do not exist otherwise.”21
Violence and Threats
Off-duty police misconduct involving violence or threats may constitute harm to the
public service because the potential that such
conduct may also occur on-duty places the
public and the government at risk. In one
case an off-duty Long Beach police officer
swerved out of the way of another car and
became involved in an argument with the
other motorist. Believing the motorist might
be arming himself, the officer pointed his
gun at him, and held his finger on the trigger.22
Even though the motorist began to drive
away from the officer, and the incident
appeared to be over, the officer still kept his
gun pointed at the motorist. The officer
claimed that his gun accidentally discharged
when his car lurched forward. The motorist
was shot in the chest and the bullet lodged
within an inch of his heart. The police department’s shooting review board found that the
officer had violated procedures and training
by cocking the hammer, which increased the
likelihood of accidental discharge, and pointing the gun at the motorist. The officer was
terminated but was eventually reinstated by
the Civil Service Commission. In a rare reversal of a decision of the commission, the court
of appeal ruled that the decision manifested
“an indifference to public safety and welfare.” The court reversed the commission’s
reinstatement and ordered the officer fired.
The court found that the officer acted unreasonably when he pointed a loaded, cocked
gun with a light trigger at the motorist. In support of its decision to fire the officer, the
court reasoned that “[t]he public is entitled
to protection from unprofessional employees
whose conduct places people at risk of injury
and the government at risk of incurring liability.” The court further stated that because
police officers are in a position of significant
public trust, mandating that a police department retain “an officer who is unable to handle competently either his emotions or his gun
poses too great a threat of harm to the public service to be countenanced.”23
In another case, Gray v. State Personnel
Board, a state correctional officer saw a male
stranger leaving his former girlfriend’s
house.24 Becoming jealous, the correctional
officer pushed the stranger and threatened to
shoot him. The correctional officer’s gun was
in his car, but he simulated a weapon by
placing his hand in his pocket. Once the
stranger left, the correctional officer retrieved
his gun from his car and broke through the
door of the house. The police soon arrived,
and the correctional officer was arrested for
assault. He later pleaded guilty to battery
and was placed on probation. Because of the
incident, the Department of Corrections discharged the correctional officer. In upholding
the discharge, the court of appeal found a sufficient nexus between the incident and the job
of correctional officer. The court upheld the
State Personnel Board’s finding that the officer’s “misuse of his weapon and loss of selfcontrol raised doubts about his ability to
remain calm under stressful circumstances
at work.” This constituted harm to the public service because “the ability to make calm
and reasoned judgments under pressure was
required of correctional officers and that [his]
demonstration of lack of self-control and
misuse of a weapon indicated that he could
lose control in the life or death atmosphere
of the prison.”25
In cases of off-duty threats or violence
courts have also upheld discharge by reasoning that officers should be held to a higher
standard than other employees. In Thompson
v. State Personnel Board, a state correctional
officer was discharged for discourteous treatment of the public and poor off-duty behavior discrediting his agency.26 Specifically, bar
patrons reported the officer as being rude
and obnoxious throughout an evening he
spent at a bar. At one point, the officer became
involved in an argument with two men whom
he knew. Because the argument was getting
heated, one of the men took his girlfriend
home and returned to the bar. He put his
arm on the officer’s shoulder and said, “Let’s
go home.”
The officer pulled his gun, which was
loaded and the safety off, pointed it two
inches from the man’s head, and said, “Don’t
do that again.” Upset, the man struggled
with the officer, who was subsequently
arrested for assault with a deadly weapon. In
weighing whether his conduct amounted to
harm to the public service, the court distinguished cases involving non-law enforcement
personnel. The court held that the nature of
the officer’s employment was a controlling
factor. Peace officers are held to a higher
standard. In upholding the dismissal, the
court found that “a correctional officer must
be able to maintain self-control, particularly
when armed with a deadly weapon.”27
Off-Duty Sexual Misconduct
Courts have found that an officer’s sexual misconduct causes discredit to the officer’s police
department, harms the public service, and
may justify discharge. A California Highway
Patrol officer was terminated for repeated
off-duty public nudity.28 The officer had
appeared nude numerous times in front of
neighborhood adults and children, even after
being warned by the department that the
conduct was unacceptable and that more discretion was required of him. The court stated
“unquestionably, the actions of a law enforcement officer must be above reproach, lest
they bring discredit on the officer’s employer.”
The court sided with the officer’s supervisor,
who testified that the officer had undermined
his credibility with other agencies and attenuated his effectiveness with his peers and
subordinates. The court noted that law
enforcement imposes on officers “certain
responsibilities and limitations on freedom of
action which do not exist in other callings.”
In upholding the officer’s termination, the
court held that the evidence clearly showed
his public nudity actually offended neighborhood women and children. In addition, the
court found that the officer’s behavior discredited and embarrassed the department.29
When an officer commits sexual misconduct that may be criminal, courts have also
found harm to the public service. A highway patrol officer was dismissed based on
immoral conduct and failure of good behavior while off-duty causing discredit to the
agency.30 The officer had inappropriate and
unwanted sexual contact with two teenage
girls on two separate occasions and later
refused to answer his supervising officer’s
questions regarding that behavior. In upholding the officer’s termination, the court held
that the officer’s conduct constituted child
molestation. In addition, the court found
that the misconduct was not the type that
might be corrected with a lesser form of discipline, such as suspension or demotion.
There was a likelihood of reoccurrence
because it had already happened on more
than one occasion with more than one girl,
and the officer would probably come into
contact with teenage girls while on duty. The
court reasoned that “a law enforcement
agency cannot permit its officers to engage in
off-duty conduct which entangles the officer
with lawbreakers and gives tacit approval to
their activities. Such off-duty activity casts discredit upon the officer, the agency and law
enforcement in general.”31
Even if off-duty sexual misconduct is consensual, the misconduct may support discharge, especially if the officer is associated
with lawbreakers and the conduct is likely to
reoccur. A highway patrol officer was terminated for failure of good behavior causing discredit to the agency and dishonesty.32 During
a San Jose City Police Department raid, the
patrolman was engaged in oral sex at a commercially sponsored transvestite party at
which prostitution was practiced. 33
Subsequently, the officer made false statements to the arresting officers and his supervisor concerning his misconduct. The court
upheld the patrolman’s termination because
the “harm to the public service is evident.” It
concluded that the inappropriate behavior
would negatively affect the patrolman’s ability to work effectively within his own department and with other law enforcement agencies. In addition, the officer’s conduct reflected
adversely on him and his department and
hindered the investigatory process regarding
the incident. Further, since the officer had a
long relationship with the party organizers,
the conduct was likely to reoccur.34
Recently, the U.S. Supreme Court reviewed
the issue of sexually related misconduct. A San
Diego police officer was found to have sold
sexually explicit videos on eBay, including one
of him acting out a scene where he issues a
traffic citation but revokes it after undoing his
uniform and masturbating. The Court rejected
the officer’s claim that the sexually explicit
videos constituted protected First Amendment
speech. In language similar to California’s
harm to the public service doctrine, the Court
upheld the officer’s discharge and found that
the misconduct was “detrimental to the mission and functions of the employer.”35
A Useful Standard
“Harm to the public service” distinguishes
between officers and civilians and establishes
a higher standard for police officers. It affirms
that because integrity is indispensable to the
position of police officer, one whose misconduct undermines that integrity no longer
deserves the public’s trust. Further, when an
officer’s misconduct places the public at risk
of future malfeasance, public safety and risk
of liability weigh in favor of termination.
Because of this higher standard, the doctrine
supports dismissal of officers who commit
serious misconduct, such as false statements,
violence or threats, or sexual misconduct,
and it provides a useful discipline barometer
to police departments.
The ranges of discipline considered in
police misconduct cases in some police departments are set forth in disciplinary guidelines.
These guidelines operate somewhat like sentencing guidelines in criminal law. For different types of misconduct, the guidelines set
forth a range of discipline, from low to high.
For example, for relatively minor policy violations, such as preventable low-impact traf-
fic accidents, the prescribed discipline may
range from a written reprimand to a few
days of suspension without pay. More egregious violations, such as insubordination,
may range from a few to 15 days of suspension. Disciplinary guidelines also allow for
consideration of mitigating and aggravating
factors, as well as an officer’s past disciplinary
history. Usually the indicated ranges of discipline are not mandatory but operate as a discretionary guide and can vary depending on
the circumstances in aggravation or mitigation and the officer’s disciplinary past.
When officers are alleged to have committed conduct that may amount to harm to
the public service, disciplinary guidelines
should allow for consideration of termination
at the high end of the disciplinary range.
California courts usually have upheld termination in such cases. Departments should at
least be able to consider whether the evidence of the misconduct is strong enough to
sustain the allegations, and if so, whether
termination is the most appropriate discipline. If disciplinary guidelines do not list
termination as the ceiling of potential discipline in these cases, they may be unnecessarily
limiting their discipline to less than what the
law allows. Given the serious nature of these
cases, police departments should not unnecessarily limit the range of discipline they are
allowed to consider under the law. Accordingly, departments should modify their disciplinary guidelines so that termination is
within the range of discipline permitted in
cases involving harm to the public service.
Police and sheriff’s departments should
use the doctrine of harm to the public service
as a guide in drafting their disciplinary guidelines. By allowing termination to be within the
permissible range of discipline in serious misconduct cases found to constitute harm to the
public—dishonesty, false statements, violence
or threats of violence, or sexual misconduct—
departments would bring their disciplinary
guidelines in line with this established legal
standard.
■
1 Blake v. State Pers. Bd., 25 Cal. App. 3d 541, 55051 (4th Dist. 1972).
2 Skelly v. State Pers. Bd., 15 Cal. 3d 194, 218 (1975)
(citing Shepard v. State Pers. Bd., 48 Cal. 2d 41, 51
(1957); Blake, 25 Cal. App. 3d at 550-51, 554).
3 Id.; Warren v. State Pers. Bd., 94 Cal. App. 3d 95,
107-08 (3d Dist. 1979).
4 Talmo v. Civil Serv. Comm’n of Los Angeles County,
231 Cal. App. 3d 210 (2d Dist. 1991).
5 Id. at 214-15.
6 Id. at 229-31.
7 Paulino v. Civil Serv. Comm’n of San Diego County,
175 Cal. App. 3d 962 (4th Dist. 1985).
8 Id. at 965-72.
9 Blake v. State Pers. Bd., 25 Cal. App. 3d 541, 55354 (4th Dist. 1972).
10 Skelly v. State Pers. Bd., 15 Cal. 3d 194, 219-20
(1975).
11 Paulino, 175 Cal. App. 3d at 971-72.
12 Id.
13 Ackerman v. State Pers. Bd., 145 Cal. App. 3d 395
(1st Dist. 1983).
14 Id. at 398-401.
15 Flowers v. State Pers. Bd., 174 Cal. App. 3d 753, 756
(2d Dist. 1985).
16 Id. at 756-61.
17 Marino v. City of Los Angeles, 34 Cal. App. 3d 461,
463 (2d Dist. 1973).
18 Id. at 465.
19 Id.
20 Haney v. City of Los Angeles, 109 Cal. App. 4th 1
(2d Dist. 2003).
21 Id. at 3-12.
22 Hankla v. Long Beach Civil Serv. Comm’n, 34 Cal.
App. 4th 1216, 1218-20 (2d Dist. 1995).
23 Id. at 1221-26.
24 Gray v. State Pers. Bd., 166 Cal. App. 3d 1229 (1st
Dist. 1985).
25 Id. at 1231-33.
26 Thompson v. State Pers. Bd., 201 Cal. App. 3d 423
(3d Dist. 1988).
27 Id. at 426-30.
28 Anderson v. State Pers. Bd., 194 Cal. App. 3d 761
(2d Dist. 1987).
29 Id. at 763-72.
30 Fout v. State Pers. Bd., 136 Cal. App. 3d 817 (2d
Dist. 1982).
31 Id. at 819-22.
32 Warren v. State Pers. Bd., 94 Cal. App. 3d 95 (3d
Dist. 1979).
33 Id. at 100.
34 Id. at 105-08
35 City of San Diego v. John Roe, (No. 03-1669 2004)
543 U.S. ____ (per curiam 2004).
MCLE ARTICLE AND SELF-ASSESSMENT TEST
By reading this article and answering the accompanying test questions,
you can earn one MCLE credit. To apply for credit, please follow the instructions
on the test answer sheet on page 31.
by Donna M. Dean
Catalyst for
Change
The California Supreme Court has
parted ways with the U.S. Supreme Court
in preserving the catalyst theory under
the private attorney general fee statute
SINCE 1977, the private attorney general doctrine has allowed public interest lawyers as
well as lawyers in private practice to obtain
attorney’s fees awards for performing legal
services to successfully enforce important
rights and public policies that benefit a large
class of people.1 Courts have applied the
doctrine to a wide variety of cases, including
those involving the environment and zoning
ordinances, the criminal justice system, abortion rights, First Amendment rights, the civil
rights of employees and students, equal protection rights, the electoral process, and challenges to business practices.2
In order to obtain an attorney’s fees award
under Code of Civil Procedure Section
1021.5, the private attorney general fee
statute, parties must meet several requirements: 1) they were the “successful party,” 2)
the action resulted in the enforcement of “an
important right affecting the public interest,” 3) the action conferred a “significant
benefit” on the general public or “a large
class of persons,” 4) the necessity and financial burden of private enforcement made an
award appropriate, and 5) the fees, in the
interest of justice, will not be paid out of
the recovery.3
Last year, in its decision in Graham v.
DaimlerChrysler Corporation,4 the California
Supreme Court clarified the definition of a
“successful party” entitled to recover private attorney general fees pursuant to Section
1021.5. To appreciate the supreme court’s
clarification of “successful party,” a review
of the term’s application in prior California
case law is necessary.
In general, decisions of the California
Court of Appeal have given the same treatment to the terms “successful party” under
Section 1021.5 and “prevailing party” under
other fee-shifting statutes. However, one significant departure from this general rule can
be found in the “catalyst” theory, which was
first recognized by the California Supreme
Court in 1983 in Westside Community for
Independent Living, Inc. v. Obledo. 5 In
Westside, the supreme court, citing federal
precedent, announced the rule that “an award
of attorney fees may be appropriate where
‘plaintiffs’ lawsuit was a catalyst motivating defendants to provide the primary relief
sought….’”6 The court explained that “an
attorney fee award may be justified even
where a plaintiff’s legal action does not lead
to a favorable final judgment.”7
In Westside, the plaintiffs sought a writ of
mandate compelling the secretary of the
Health and Welfare Agency to issue final
regulations pursuant to Government Code
Donna M. Dean is a senior associate practicing
business litigation at Lurie, Zepeda, Schmalz &
Hogan.
Section 11135, which prohibits unlawful discrimination in any program or activity funded
by the state.8 But the Westside court held
that there was no causal connection between
the plaintiff’s action and the relief obtained
because the draft regulations had been submitted before the lawsuit was filed and, during the pendency of the lawsuit, were subject
to public comment—a course of action that
resulted in the adoption of the final regulations.9 Accordingly, the court reversed the
award of attorney’s fees to the plaintiffs on
the grounds that they were not the successful parties.10
An earlier California Supreme Court case
had enunciated a similar rule without explicitly adopting the catalyst theory from the
federal cases. In Folsom v. Butte County
Association of Governments,11 the court
affirmed an award of attorney’s fees pursuant to Section 1021.5 following a settlement
agreement between the parties. The Folsom
court stated:
While California authority on the subject is sparse, common sense dictates
that the determination of success under
section 1021.5 must depend on more
than mere appearance. As we said in
Woodland Hills, the trial court must
“realistically assess the litigation and
determine, from a practical perspective,
whether or not the action served to
vindicate an important right….”12
The Folsom court also determined that
“[t]he critical fact is the impact of the action,
not the manner of its resolution.”13 The court
cited with approval the reasoning by Congress
in enacting the Civil Rights Attorney’s Fees
Awards Act14 and the rule set forth in a federal case that calls for a comparison of “the
situation immediately prior to the commencement of the suit” and “the situation
today,” and “the role, if any, played by the litigation in effecting any changes between the
two.”15
The rules set forth in Folsom and Westside
laid the foundation for litigation regarding the
meaning of “successful party” under Section
1021.5 as well as whether a particular party
met the definition of a “catalyst” under the
catalyst theory. Two subsequent California
Supreme Court cases ruled that attorney’s
fees could be awarded under circumstances in
which there is no final judgment in the plaintiff’s favor but the plaintiff obtained the relief
sought.16 In Press v. Lucky Stores, Inc., the
plaintiffs’ action became moot, but the state
supreme court affirmed that they were entitled to private attorney general fees after they
had achieved their litigation goals through a
preliminary injunction.17 Similarly, in Maria
P. v. Riles, the plaintiffs ultimately were
awarded attorney’s fees under Section 1021.5
after they obtained an injunction declaring
that a section of the Education Code was
unconstitutional18—even though the lawsuit
was later dismissed as moot because of a legislative amendment deleting the unconstitutional portions of the section.19 Following
the rules set forth in Westside and Folsom, the
supreme court held that the plaintiffs “clearly
obtained the relief they sought” with the
issuance of the trial court’s injunction.20
Rare Awards
These California Supreme Court decisions
set the stage for a number of opinions by
the California Court of Appeal interpreting
the catalyst theory. In most of those cases, the
court of appeal determined that the party
seeking fees was not a catalyst and therefore
was not a successful party entitled to Section
1021.5 attorney’s fees.21 In many instances,
the court determined that there was no causal
link between the lawsuit and the change in the
behavior of the defendant. For example, in
Boccato v. City of Hermosa Beach, the plaintiff successfully enjoined the defendant city
from enforcing a new resolution related to
permit parking pending Coastal Commission
approval and urged the Coastal Commission
to send a letter to the city stating that a permit was required for the new resolution. But
the court held that the defendant city’s conduct was not caused by the lawsuit but was
the result of the Coastal Commission’s letter.22
Likewise, in Crawford v. Board of Education,
the court held that the parties seeking attorney’s fees—interveners in a desegregation
lawsuit against the Los Angeles Unified School
District—were not the successful parties
because the results of the desegregation lawsuit were due to the passage of a ballot measure and not the participation of the interveners in the lawsuit.23 The fact that one of
the interveners was instrumental in the passage of the ballot measure did not qualify that
party as a successful party because, as the
court stated, “[T]he [private attorney general]
doctrine simply does not, nor should it,
encompass successful lobbying efforts by
those who seek to influence the Legislature or
the electorate on any particular issue.”24 The
court noted that:
At bottom, the inquiry is an intensely
factual, pragmatic one that frequently
requires courts to go outside the merits of the precise underlying dispute
and focus on the condition the fee
claimant sought to change. [Citation
omitted.] With that condition as a
benchmark the inquiry becomes
“whether as a practical matter the outcome, in whatever form realized, is
one to which the plaintiff fee claimant’s efforts contributed in a significant way, and which does involve an
actual conferral of benefit or relief
from burden when measured against
the benchmark condition.”25
Using the same reasoning, the court in
Leiserson v. City of San Diego held that if the
plaintiff could not present evidence of the
motivation for the city’s change in its behavior two years after he filed his lawsuit, the
mere inference that the change was motivated by the lawsuit was not sufficient to
make the plaintiff a successful party under the
private attorney general fee statute. 26
However, in Californians for Responsible
Toxics Management v. Kizer, the court followed federal precedent and stated the following rule: “When action is taken by the
defendant after plaintiff’s lawsuit is filed, the
chronology of events may permit the inference
that the two events are causally related….”27
This inference shifts the burden to the defendant to offer a rebuttal.28 No other cases
have applied this analysis to determine
whether a party meets the causation requirement under the catalyst theory.
There are only two cases in which the
court of appeal has confirmed trial court
awards of private attorney general fees under
the catalyst theory.29 In the first, Wallace v.
Consumers Cooperative of Berkeley, Inc.,
the trial court awarded private attorney general fees to the plaintiff organization that
successfully challenged the validity of mandatory minimum retail milk prices.30 After submitting several unsuccessful petitions to the
director of the Department of Food and
Agriculture requesting that he suspend the
retail milk price regulations, the plaintiff
decided to challenge the legality of the regulation through litigation. Although the DFA
director obtained a temporary restraining
order and preliminary injunction against the
plaintiff, the court stated that the plaintiff had
“made a colorable showing that it will prevail at a trial on the merits….”31 The parties
entered into settlement negotiations and ultimately settled the case by having the director
agree to hold public hearings on the issue of
the suspension of the minimum milk retail
prices in exchange for the plaintiff dropping
its challenge to the statutory and administrative procedures as moot. After this settlement was reached, the director issued orders
suspending the minimum retail milk prices.
The trial court awarded private attorney general fees to the plaintiff, and the court of appeal upheld the award, on the grounds that
“the litigation set in motion the process which
eventually resulted in the suspension.”32
In the second case, California Common
Cause v. Duffy, the plaintiffs sought to stop
the sheriff of San Diego County from distributing postcards calling for the removal of
Chief Justice Rose Bird because the sheriff’s
action involved the illegal expenditure of
public monies and public personnel in politLos Angeles Lawyer July-August 2005 29
ical campaigning. At a hearing on an ex parte
application for a temporary restraining order,
the trial judge encouraged the parties to negotiate and, as a result, the sheriff agreed to cease
distributing the postcards. In turn, the plaintiffs proceeded to drop their application for
a temporary restraining order. The trial court
later granted summary judgment to the plaintiffs on their declaratory relief claim, finding
that the sheriff’s activities were indeed an
illegal expenditure of public monies and personnel on political campaigning. Nevertheless,
the trial court denied injunctive relief because
of the sheriff’s agreement to cease distributing the postcards. The trial court awarded private attorney general fees to the plaintiffs, and
the court of appeal upheld the award, on the
grounds that the plaintiffs had obtained the
De Novo Standard of Review
An important issue currently under review by the California Supreme Court is under what circumstances an appellate court may apply
a de novo standard of review in determining whether an action was sufficient to justify an award of attorney’s fees under Code of Civil
Procedure Section 1021.5, the private attorney general fee statute.1
In Serrano v. Priest, the California Supreme Court noted that the “experienced trial judge is the best judge of the value of the professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.”2 After the enactment of Section 1021.5, the California Court of Appeal took this language
from Serrano—which clearly applied only to the adequacy of fees to be awarded under Section 1021.5—and, without any discussion,
simply asserted that abuse of discretion was the standard of review with respect to all the statutory prerequisites for the award of fees
under Section 1021.5.3
The supreme court has followed suit, repeating the conclusion of the court of appeal, without much commentary, that the standard
of review governing Section 1021.5 attorney fee entitlement is abuse of discretion.4 Yet, in each of the cases in which the supreme court
has done so, it has essentially conducted a de novo review of the trial court’s decision by affording no deference to the trial court. In
addition, further confusion has ensued over court of appeal decisions stating that “[d]etermining the statutory basis for an attorney fee
award is a legal question subject to de novo review.”5
The Ninth Circuit applies a de novo standard of review on issues of law and a party’s entitlement to fees under 42 USC Section 1988
and employs an abuse of discretion standard of review regarding the adequacy of fees.6 Both Code of Civil Procedure Section 1021.5
and 42 USC Section 1988 are codifications of the common law private attorney general doctrine. Furthermore, because “[t]he Legislature
relied heavily on federal precedent when enacting [Section 1021.5]…California courts often look to federal decisions when interpreting
it.”7
The threshold issue of whether a case has resulted in the enforcement of an important right affecting the public interest should be
subject to de novo review. Many reviewing courts, including the California Supreme Court, have explicitly applied a de novo standard—
and they have used the language of abuse of discretion while actually conducting a de facto de novo analysis based upon the trial court’s
legal errors.8 In addition, a de novo standard of review would be consistent with the de novo review of the legal basis for other statutory fee awards.9
A de novo standard of review better serves a host of public policies:
• The encouragement of the private enforcement of important rights affecting the public interest.
• Uniformity and predictability in judicial decision making.
• Judicial efficiency and quality.
• Judicial integrity.
Whether an important right has been vindicated and whether a significant benefit has been conferred require determinations
regarding public policy. Given the benefit of appellate collegiality and plurality as well as the time and opportunity for more thoughtful debate on appeal, appellate judges are better suited to make these determinations than are trial judges.
Private litigants and lawyers will be discouraged from enforcing important rights affecting the public interest if they cannot discern
some reasonable level of certainty that Section 1021.5 fees will be awarded. That certainty is best promoted by de novo review. Allowing
appellate judges to make judgments regarding Section 1021.5 fees will promote statewide consistency in the interpretation and application of law and avoid inconsistent trial judge determinations as to which rights can be deemed important.—D.M.D.
1
Department of Conservation v. El Dorado County, California Supreme Court Case No. S116870, review granted, Aug. 13, 2003, request for briefing on issue of standard of
review ordered, Sept. 15, 2004.
2 Serrano v. Priest, 20 Cal. 3d 25, 49 (1977).
3 See, e.g., Brentwood Ass’n for No Drilling, Inc. v. City of Los Angeles, 134 Cal. App. 3d 491, 507 (1982).
4 Baggett v. Gates, 32 Cal. 3d 128, 142-43 (1982); Westside Cmty. for Indep. Living, Inc. v. Obledo, 33 Cal. 3d 348, 369 (1983); Press v. Lucky Stores, Inc., 34 Cal. 3d 311 (1983);
Maria P. v. Riles, 43 Cal. 3d 1281 (1987).
5 Downen’s, Inc. v. City of Hawaiian Gardens Redev. Agency, 86 Cal. App. 4th 856, 860 (2001). See also Akins v. Enterprise Rent-A-Car Co., 79 Cal. App. 4th 1127, 1132-33 (2000);
Honey Baked Hams, Inc. v. Dickens, 37 Cal. App. 4th 421, 424 (1995).
6 See, e.g., Watson v. County of Riverside, 300 F. 3d 1092, 1095 (9th Cir. 2002), cert. denied, 538 U.S. 923 (2003); Cabrales v. County of Los Angeles, 935 F. 2d 1050, 1052
(9th Cir. 1991).
7 Westside, 33 Cal. 3d at 352 n.5.
8 See, e.g., Pacific Legal Found. v. California Coastal Comm’n, 33 Cal. 3d 158, 167 (1982); Baggett, 32 Cal. 3d at 143; Hull v. Rossi, 13 Cal. App. 4th 1763, 1768 (1993); City of
Sacramento v. Drew, 207 Cal. App. 3d 1287, 1298 (1989).
9 See, e.g., Sessions Payroll Mgmt., Inc. v. Nobel Constr. Co., 84 Cal. App. 4th 671, 677 (2000) (CIV. CODE §1717); see also Carver v. Chevron U.S.A., Inc., 97 Cal. App. 4th 132,
142 (2002); Bussey v. Affleck, 225 Cal. App. 3d 1162, 1165 (CODE CIV. PROC. §1033.5(a)(10)).
MCLE Test No. 139
MCLE Answer Sheet #139
CATALYST FOR CHANGE
Name
The Los Angeles County Bar Association certifies that this activity has been approved for Minimum
Continuing Legal Education credit by the State Bar of California in the amount of 1 hour.
Law Firm/Organization
Address
1. The private attorney general fee doctrine was first
recognized in California more than 100 years ago.
True.
False.
2. The private attorney general fee doctrine has been
applied in:
A. Zoning challenges.
B. Contract disputes.
C. Malpractice actions.
3. The term “successful party” under the private
attorney general fee doctrine has the same meaning
as the term “prevailing party” under other attorney’s
fees statutes.
True.
False.
4. The California Supreme Court followed federal
precedent when it adopted the catalyst theory in
1983.
True.
False.
5. The catalyst theory allows a court to award private
attorney general fees to a plaintiff whose lawsuit
motivated the defendant to provide the primary relief
sought by the plaintiff even if the plaintiff does not
obtain a final judgment in the plaintiff’s favor.
True.
False.
6. Despite the fact that the plaintiffs did not obtain
a final judgment, private attorney general fees were
upheld on appeal in:
A. Boccato v. City of Hermosa Beach.
B. Wallace v. Consumers Cooperative of Berkeley,
Inc.
C. City of Sacramento v. Drew.
7. Private attorney general fees may be denied if a
causal factor other than the plaintiff’s lawsuit influenced the change in the defendant’s behavior.
True.
False.
8. Other causal factors leading to a change in the
defendant’s behavior that could influence the award
of private attorney general fees include:
A. Administrative proceedings initiated by a state
agency against the defendant.
B. A previously filed lawsuit by a different plaintiff.
C. A and B.
9. According to the court, the plaintiff could not establish a causal link between the plaintiff’s lawsuit and
the defendant’s change of conduct in:
A. Press v. Lucky Stores, Inc.
B. Folsom v. Butte County Association of
Governments.
C. Crawford v. Board of Education.
10. In 2001, the U.S. Supreme Court abolished the
California private attorney general fee doctrine.
True.
False.
11. Under federal law, a plaintiff cannot obtain an
award of private attorney general fees if a lawsuit is
settled before a final judgment or other significant
court order such as a consent decree.
True.
False.
12. The purpose of the private attorney general fee
doctrine is to:
A. Encourage private enforcement of strong public policies.
B. Reward successful lobbying efforts.
C. None of the above.
13. In Graham v. DaimlerChrysler, the California
Supreme Court affirmed the catalyst theory under
California law.
True.
False.
14. Under the rule in Graham, a successful party
under the catalyst theory must:
A. Establish a causal connection between the
lawsuit and the relief obtained.
B. Demonstrate that the lawsuit was not frivolous.
C. A and B.
15. The Graham court balanced the policy of encouraging lawsuits in the public interest against the policy of:
A. Discouraging extortionate lawsuits.
B. Encouraging quick settlements.
C. Discouraging court congestion.
16. A trial court can evaluate whether a lawsuit is not
frivolous based upon declarations or an evidentiary
hearing.
True.
False.
17. In order to obtain private attorney general fees
under the catalyst theory, the plaintiff should avoid
contacting the defendant before filing a lawsuit.
True.
False.
18. Under the rule in Graham, a plaintiff can establish a rebuttable presumption, shifting the burden of
proof, that the plaintiff’s lawsuit was the catalyst
under the private attorney general fee doctrine by
showing only that the defendant changed its conduct after the plaintiff’s lawsuit was filed.
True.
False.
19. California decisions have consistently applied
an abuse of discretion standard of review to the
determination of whether a plaintiff is a successful
party entitled to private attorney general fees.
True.
False.
20. Under federal law, a de novo standard of review
is applied to the issue of a party’s entitlement to private attorney general fees.
True.
False.
City
State/Zip
E-mail
Phone
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ANSWERS
Mark your answers to the test by checking the
appropriate boxes below. Each question has only
one answer.
1.
■ True
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2.
■A
3.
■ True
■ False
4.
■ True
■ False
5.
■ True
■ False
6.
■A
7.
■ True
8.
■A
■B
■C
9.
■A
■B
■C
10.
■ True
11.
■ True
12.
■A
13.
■ True
14.
■A
■B
■C
15.
■A
■B
■C
16.
■ True
■ False
17.
■ True
■ False
18.
■ True
■ False
19.
■ True
■ False
20.
■ True
■ False
■B
■B
■C
■C
■ False
■ False
■ False
■B
■C
■ False
full relief they sought because they obtained
a declaration that the sheriff’s activities were
illegal and they caused the sheriff to cease
those activities. Thus, injunctive relief was not
necessary, and “the lawsuit was a material factor in halting the ongoing distribution of
anti-Bird postcards through the Sheriff’s
Department.”33
In a case involving the catalyst theory
that was decided after Wallace and California
Common Cause, the court of appeal held
that the prevailing defendant had established
a right to private attorney general fees and
remanded for a determination of the
amount.34 In City of Sacramento v. Drew, the
defendant, Charles Drew, prevailed on a summary judgment motion in an action brought
by the city of Sacramento to declare the validity of a special tax assessment district. Before
the lawsuit, Drew had sent a letter of protest
to the city claiming that the special tax assessment district was unconstitutional. The city
brought a validation proceeding to determine whether the assessment was proper.
Drew filed an answer as an interested person
and then prevailed on summary judgment.
But the trial court denied Drew’s request for
private attorney general fees on the grounds
that the special tax assessment “presumably”
would have been declared invalid regardless
of Drew’s participation, and Drew “belatedly” raised the prevailing legal theory. The
court of appeal reversed, holding that Drew
met the requirements for an award of private
attorney general fees, and remanded for the
purpose of determining the amount of those
fees.
These court of appeal decisions, coupled
with the prior California Supreme Court
cases, failed to enunciate a general, predictable rule for awarding private attorney
general fees under the catalyst theory.
Subsequently, in 2001, the U.S. Supreme
Court virtually abolished the catalyst theory
under federal private attorney general statutes.
In Buckhannon Board and Care Home,
Inc. v. West Virginia Department of Health
and Human Resources,35 the U.S. Supreme
Court held that absent a judgment on the
merits or other “material alteration of the
legal relationship of the parties” (such as a
consent decree), a party cannot be deemed a
prevailing party entitled to attorney’s fees.36
The Supreme Court stated that while a defendant’s voluntary change in conduct may serve
to accomplish a plaintiff’s litigation objectives,
the defendant’s action “lacks the necessary
judicial imprimatur” to support an award
of attorney’s fees.37 Given the fact that many
of the California Supreme Court and Court
of Appeal cases regarding the catalyst theory
were based upon federal precedent, the U.S.
Supreme Court’s decision in Buckhannon
called into question the continued validity
of the catalyst theory under the California private attorney general fee statute.
Balancing Competing Policies
Hence the importance of Graham v.
DaimlerChrysler Corporation,38 in which a
split California Supreme Court affirmed the
existence of the catalyst theory under
California law and further clarified the rule.
In Graham, DaimlerChrysler incorrectly marketed and overstated the towing capacity of
one of its 1998 and 1999 truck models. The
reduced towing capacity posed a potential risk
to the drivers of the truck. By February 1999,
DaimlerChrysler established a response team
to handle the problem and, by June 1999,
advised its customers of the misinformation
and began to formulate a plan of remedial
measures. In July 1999, the Santa Cruz
County district attorney threatened legal
action against DaimlerChrysler and requested
information from the corporation. In early
August 1999, the California attorney general joined the Santa Cruz County district
attorney in threatening legal action. The
plaintiffs, who were purchasers of the truck
at issue, filed suit on August 23, 1999. In
September 1999, DaimlerChrysler issued an
offer to repurchase or replace all of the
affected trucks. Thereafter, the trial court
sustained DaimlerChrysler’s demurrer without leave to amend and dismissed the plaintiffs’ complaint as moot. The parties continued to litigate the plaintiffs’ entitlement to
fees, however, for more than a year after the
case was dismissed. The trial court held a
lengthy evidentiary hearing and then awarded
attorney’s fees, finding that the plaintiffs were
the successful parties under the private attorney general fee statute and determining that
the plaintiffs’ lawsuit, rather than the threatened legal action by the California attorney
general and the Santa Cruz County district
attorney, caused DaimlerChrysler to issue its
offer to repurchase or replace the trucks. The
court of appeal affirmed, noting the decision
in Buckhannon but declining to follow it.
Instead, the court of appeal stated that the catalyst theory has long been recognized in
California.
The California Supreme Court affirmed
the court of appeal’s decision and in so doing
upheld the catalyst theory despite the decision
in Buckhannon. The supreme court held that
the term “prevailing party” under federal
statutes is different from the term “successful party” under the California private attorney general fee statute. Moreover, the court
rejected DaimlerChrysler’s policy argument
that the catalyst theory engenders time-consuming fee litigation. The court adopted a
two-pronged test for determining whether a
party can be deemed a successful party under
the catalyst theory. The trial court must deter-
mine that 1) a causal connection exists
between the lawsuit and the relief obtained,
and 2) the lawsuit is not “‘frivolous, unreasonable or groundless’ [citation omitted], in
other words that its result was achieved ‘by
threat of victory, not by dint of nuisance and
threat of expense.’” 39 According to the
supreme court, a trial court can make a decision whether the second prong is met in a
manner akin to a trial court’s determination
whether or not to issue a preliminary injunction. Further, the court may reach its decision
regarding the second prong by relying on
declarations or after an abbreviated evidentiary hearing.
In response to an amicus brief submitted
by the California attorney general, the
Graham court also adopted another limitation on the catalyst theory. The court held that
a plaintiff seeking attorney’s fees under the
catalyst theory must have made a reasonable attempt to settle the matter before litigation, explaining that what constitutes a
reasonable attempt to settle will depend on the
context and thus involves a fact-intensive
inquiry.40 The court of appeal found that the
trial court had concluded that there was a
causal connection between the lawsuit and
DaimlerChrysler’s change in policy. But the
appellate court remanded the matter for a
determination regarding the merits of the
suit and whether the plaintiffs had made a reasonable attempt to settle the matter before filing a lawsuit.
The court appears to have reached its
decision regarding these rules by balancing
two competing policies: 1) the policy of
encouraging lawsuits in the public interest,
and 2) the policy of discouraging extortionate
lawsuits. Under the rules set forth in Graham,
as well as the existing rules for the application
of the catalyst theory, attorneys considering taking on a public interest lawsuit with the anticipation of recovering attorney’s fees will need
to consider several issues in addition to the elements set forth in Section 1021.5.
The first is prelitigation settlement discussions. Since the Graham decision will
require a case-by-case determination of the
reasonableness of prelitigation settlement discussions, attorneys will need to determine
how much time to allow for settlement discussions before filing a lawsuit. Prior to
Graham, in the cases in which private attorney general fees were allowed, the settlement
discussions ranged from nonexistent (or not
discussed)41 to a letter of protest or request
to cease unlawful activity42 to more lengthy
negotiations.43 If there is an urgent need for
litigation to prevent impending illegal action,
one letter or telephone call may suffice. But
if no urgency exists, counsel should engage in
serious settlement negotiations before filing
a lawsuit in order to preserve the right to pri-
vate attorney general fees under the catalyst
theory.
Counsel taking on a case hoping to recover
private attorney general fees must also consider the ability to demonstrate the merits of
the action. The proof could include declarations and documentary evidence but may
also require testamentary evidence at an evidentiary hearing. If a case is resolved quickly,
before any discovery is taken, counsel may
find it difficult to present sufficient evidence.
Although Graham does not specifically authorize limited discovery to elicit the necessary
evidence, a court may allow it. The policy reasons that the Graham court enunciated in
encouraging public interest litigation as well
as early settlement of disputes support allowing limited discovery. The more prudent
course, however, would be to obtain the necessary documentary evidence during settlement discussions.
Although the decision in Graham affirmed
the existence of the catalyst theory in
California and added some requirements, it
did little to clarify the rule regarding the
often litigated issue of the causal connection
between the plaintiff’s lawsuit and the relief
obtained. Courts repeatedly have denied
recovery of private attorney general fees under
the catalyst theory when a causal factor other
than the lawsuit—such as the legislative
process,44 administrative proceedings initiated by state agencies,45 or another pending
case46—influenced the change in the defendant’s conduct, or when the lawsuit was filed
after some action had been initiated by the
defendant—such as after an agency began
the process of promulgating regulations or
after a city commenced its consideration of
whether to amend an ordinance. With these
precedents in mind, counsel considering a
lawsuit that could result in private attorney
general fees should investigate whether state
agencies have already taken some action or
whether the proposed defendant has already
begun to take corrective actions through
internal processes. Even if the proposed lawsuit would contribute to or hasten such
actions or processes, a court will likely not
award private attorney general fees.47 Thus,
during the investigation of the potential lawsuit and the prelitigation settlement negotiations, counsel should not only look for evidence of the merits of the proposed lawsuit
but also evidence to prove the causal connection between the lawsuit and the defendant’s action, with a specific focus on the
absence of other factors that could be determined to be the catalyst.
Although Graham preserved the catalyst
theory under California law, the weight of the
California Supreme Court and Court of
Appeal decisions demonstrates that private
attorney general fees are not easily obtained.
As the dissent in Graham observes, in those
cases in which fees have been allowed under
the catalyst theory, there has been some
“material alteration of the legal relationship
of the parties” or a “judicial imprimatur” as
required under Buckhannon.48 In addition,
the numerous cases determining that there
was no causal connection between the lawsuit and the defendant’s change of conduct—
even in circumstances in which the defendant’s change of conduct occurred after the
lawsuit was filed—demonstrate a judicial
proclivity to avoid awarding private attorney
general fees except in the most compelling
cases. Even though the decision in Graham
has preserved the catalyst theory, the decision
likely will not result in a flood of extortionate lawsuits (as the dissent in Graham fears),
because before attorneys seeking fees under
the catalyst theory file suit, they must not
only conduct a careful evaluation of the merits of their cases but also engage in serious settlement discussions. Thus, although the decision in Graham upholds the policy of
encouraging private enforcement of important
public rights, the new requirements under
the catalyst theory, along with the established
case law regarding the necessary causal connection between the lawsuit and the defendant’s action, restrict the broad language
contained in the earlier California Supreme
Court cases and substantially reduce the number of situations in which private attorney
general fees are recoverable.
■
1
The California Supreme Court first enunciated the private attorney general fee doctrine in 1977. Serrano v.
Priest, 20 Cal. 3d 25 (1977). That same year, after
Serrano, the California Legislature enacted Code of Civil
Procedure §1021.5 to codify the doctrine and its underlying policy. The purpose of the private attorney general doctrine is to encourage suits enforcing strong
public policies that benefit a large class of people by
awarding attorney’s fees to the successful party.
Woodland Hills Residents Ass’n v. City Council, 23 Cal.
3d 917, 933 (1979).
2 7 WITKIN, CALIFORNIA PROCEDURE, Judgment §§230240A (4th ed. 1997 & Supp.).
3 CODE CIV. PROC. §1021.5.
4 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553
(2004).
5 Westside Cmty. for Indep. Living, Inc. v. Obledo, 33
Cal. 3d 348, 353 (1983).
6 Id. (quoting Robinson v. Kimbrough, 652 F. 2d 458,
465 (5th Cir. 1981)).
7 Id. at 352.
8 Id. at 350.
9 Id. at 354-56.
10 Id.
11 Folsom v. Butte County Ass’n of Gov’ts, 32 Cal. 3d
668 (1982).
12 Id. at 685 (quoting Woodland Hills Residents Ass’n
v. City Council, 23 Cal. 3d 917, 938 (1979)).
13 Id.
14 Id. at 685-86.
15 Id. at 685 n.31 (citing F&M Schaefer Corp. v. C.
Schmidt & Sons, Inc., 476 F. Supp. 203, 206-07 (S.D.
N.Y. 1979)).
16 Press v. Lucky Stores, Inc., 34 Cal. 3d 311 (1983);
Maria P. v. Riles, 43 Cal. 3d 1281 (1987).
Press, 34 Cal. 3d at 315-16, 321.
18 Maria P., 43 Cal. 3d at 1287.
19 Id. at 1288.
20 Id. at 1292-93.
21 See, e.g., Boccato v. City of Hermosa Beach, 158 Cal.
App. 3d 804 (1984); Miller v. California Comm’n on
the Status of Women, 176 Cal. App. 3d 454 (1985);
Crawford v. Board of Educ., 200 Cal. App. 3d 1397
(1988); Leiserson v. City of San Diego, 202 Cal. App.
3d 725 (1988); Californians for Responsible Toxics
Mgmt. v. Kizer, 211 Cal. App. 3d 961 (1989); Urbaniak
v. Newton, 19 Cal. App. 4th 1837 (1993); Olsen v.
Breeze, Inc., 48 Cal. App. 4th 608 (1996); Suter v. City
of Lafayette, 57 Cal. App. 4th 1109 (1997); Meister v.
The Regents of the Univ. of Cal., 67 Cal. App. 4th 437
(1998); Schmier v. Supreme Court, 96 Cal. App. 4th
873 (2002); Baxter v. Salutary Sportsclubs, Inc., 122
Cal. App. 4th 941 (2004).
22 Boccato, 158 Cal. App. 3d at 811-12.
23 Crawford, 200 Cal. App. 3d at 1407-08.
24 Id. at 1408.
25 Id. at 1407 (quoting Folsom v. Butte County Ass’n
of Gov’ts, 32 Cal. 3d 668, 685 (1982)).
26 Leiserson, 202 Cal. App. 3d at 736-37.
27 Californians for Responsible Toxics Mgmt. v. Kizer,
211 Cal. App. 3d 961, 968 (1989).
28 Id.
29 Wallace v. Consumers Coop. of Berkeley, Inc., 170
Cal. App. 3d 836 (1985); California Common Cause
v. Duffy, 200 Cal. App. 3d 730 (1987).
30 Wallace, 170 Cal. App. 3d at 841-42.
31 Id. at 844.
32 Id. at 846.
33 California Common Cause, 200 Cal. App. 3d at 744.
34 City of Sacramento v. Drew, 207 Cal. App. 3d 1287
(1989).
35 Buckhannon Board & Care Home, Inc. v. West
Virginia Dep’t of Health & Human Res., 532 U.S.
598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).
36 Id., 532 U.S. at 604-05.
37 Id.
38 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553
(2004). In response to a request from the Ninth Circuit
Court of Appeals for a clarification of California law
regarding the catalyst theory, the California Supreme
Court also issued an opinion on the same day it issued
Graham in a companion case. Tipton-Whittingham v.
City of Los Angeles, 34 Cal. 4th 604 (2004).
39 Graham, 34 Cal. 4th at 575 (quoting Buckhannon,
532 U.S. at 628 (dissent by Ginsburg, J.)).
40 Id. at 577.
41 Woodland Hills Residents Ass’n v. City Council, 23
Cal. 3d 917 (1979); Press v. Lucky Stores, Inc., 34 Cal.
3d 311 (1983); Maria P. v. Riles, 43 Cal. 3d 1281
(1987); Folsom v. Butte County Ass’n of Gov’ts, 32 Cal.
3d 668 (1982).
42 City of Sacramento v. Drew, 207 Cal. App. 3d
1287, 1292 (1989) (letter of protest sent to city, then
city filed validation action); California Common Cause
v. Duffy, 200 Cal. App. 3d 730, 739 (1987) (request
to cease unlawful activity made four days before suit
was filed).
43 Wallace v. Consumers Coop. of Berkeley, Inc., 170
Cal. App. 3d 836, 840 (1985) (several petitions submitted to director of the Department of Food and
Agriculture).
44 Crawford v. Board of Educ., 200 Cal. App. 3d 1397
(1988).
45 Boccato v. City of Hermosa Beach, 158 Cal. App.
3d 804 (1984).
46 Olsen v. Breeze, Inc., 48 Cal. App. 4th 608 (1996).
47 Meister v. The Regents of the Univ. of Cal., 67 Cal.
App. 4th 437 (1998).
48 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553,
592-93 (2004)
17
Reality
Check
A recent court decision indicates that traditional
by Daniel A. Fiore
and Samuel E. Rogoway
copyright analysis may be used to protect reality TV
shows from infringement
for reality television programs.3 In fact, that
case confirmed that “reality” may constitute
protectable expression, the infringement of
which is actionable under the Copyright Act.
In CBS v. ABC, CBS and the producers of
Survivor filed suit to enjoin ABC from airing
I’m a Celebrity—Get Me out of Here on the
grounds that Celebrity was substantially similar to CBS’s highly successful Survivor and
thus infringed the plaintiffs’ copyright in that
program. Although the New York federal
court, in a fact-specific opinion, denied the
plaintiffs’ motion for a preliminary injunction,
the court did not intimate that reality television, simply because of its unscripted nature,
is devoid of protectable expression. Indeed,
the significance of CBS v. ABC is that the
court applied to the plaintiffs’ reality program
the same copyright analysis applicable to
Daniel A. Fiore is a senior associate and Samuel E.
Rogoway is an associate in the Entertainment and
Media Department at Alschuler Grossman Stein &
Kahan LLP. They currently represent the producer
of Wife Swap in its copyright infringement action
against the producers of Trading Spouses.
RON OVERMYER
W
hen, almost 200 years
ago, Charles Colton
called imitation the
“sincerest of flattery,”1
he could hardly have
envisioned the recent glut of copycat reality
television programming. From Wife Swap
to Trading Spouses, The Amazing Race to
Race around the World, Survivor to Boot
Camp, as the popularity of so-called reality
television has risen meteorically over the past
several years, more and more producers have
opted to “flatter” their competitors by airing
nearly identical knockoffs of the latest hit, in
lieu of conceiving their own original programs. Although flattery is supposed to get
you nowhere, in this instance it has landed the
producers of conspicuously similar reality
fare in federal court to answer claims of
copyright infringement.
In only one case, CBS Broadcasting Inc.
v. ABC, Inc.,2 has a court had occasion to discuss in any detail the applicability of the
Copyright Act to reality television. Many
commentators misinterpret CBS v. ABC as
precluding meaningful copyright protection
shows in all other genres of scripted or quasiscripted television programming, including
concepts like “plot” and “characters” not
intuitively associated with reality television.
A plaintiff attempting to establish copyright infringement of a reality television program must tread familiar ground. The plaintiff must prove ownership of a copyrightable
work and copying of the work’s protected elements amounting to improper appropriation.4 Because direct evidence of actual copying is frequently unavailable, the plaintiff
may demonstrate copying by showing that the
defendant had access to the plaintiff’s work
and that the defendant’s work bears substantial similarities to protected expression in
the plaintiff’s work.5 “Not all copying, however, is copyright infringement” since copyright protection extends only to the components of a work that are “original.”6 Nor
are the facts and ideas within a work protected by copyright.7 Because ideas are “as
free as the air,” only an original expression of
an idea is entitled to copyright protection.8
Courts in the Ninth Circuit apply a twopart test in determining whether two dramatic works are substantially similar. For
the first test, the court examines the “extrinsic” similarities between “the plot, theme,
dialogue, mood, setting, pace, characters,
and sequence of events” of the two works.9
In applying the extrinsic test, the court must
distinguish between the protectable and
unprotectable material in a work because a
party claiming copyright infringement may
place “‘no reliance upon any similarity in
expression resulting from’ unprotectable elements.”10 The Ninth Circuit has held that
“[t]he test for ‘substantial similarity of ideas’
compares, not the basic plot ideas for stories,
but the actual concrete elements that make up
the total sequence of events and the relationships between the major characters.”11
That comparison “should not include unoriginal elements of the plaintiff’s work; rather,
the comparison should take place after filtering out of the analysis elements of plaintiff’s work that are not protectable.”12
“Filtration” involves three steps. The court
begins by “analytically dissecting” the work
to separate unprotectable facts and ideas
from protectable expression. The court then
applies “the relevant limiting doctrines in
the context of the particular medium
involved,” including the scenes a faire and
merger doctrines.13 Scenes, situations, incidents, characters, or events that flow naturally
from an unprotectable theme, setting, or
basic plot premise are scenes a faire.14 The
merger doctrine is implicated when there are
so few ways of expressing an idea that the
expression and the corresponding idea have
merged to become one and the same.15 In the
third step, “having dissected the alleged sim36 Los Angeles Lawyer July-August 2005
ilarities and considered the range of possible
expression, the court must define the scope of
the plaintiff’s copyright.”16 That scope will fall
somewhere along the “‘continuum’ between
highly original works entitled to the most
‘broad’ protection offered under copyright, at
one end, and works of a primarily factual or
functional nature, to which only ‘thin’ protection is afforded, at the other.”17
For the second test, once the court has
concluded that the works are extrinsically
similar, the trier of fact must determine
whether the two works are also “intrinsically” similar, in other words, whether “the
ordinary, reasonable person would find the
total concept and feel of the works” to be substantially similar to support a finding of
improper appropriation.18 Whether any similarity is sufficiently “substantial” is dictated
by the scope of protection—broad or thin—
that was defined as part of the extrinsic test.19
The “thinner” the protection, the greater the
similarities must be before the works will be
deemed “substantially” similar.20
Reality TV Sets In
The application of copyright law to reality
television, like the genre itself, is a phenomenon of relatively recent vintage. Before the
reality television craze, scripted programming dominated network television for over
50 years. Sitcoms and dramas were the heart
and soul of the primetime lineup. From I
Love Lucy and Gunsmoke to Friends and
E.R., networks historically relied upon
scripted shows to draw audiences. Consequently, existing case law applying copyright
principles to television programming is crafted
almost exclusively in the context of scripted
or, occasionally, quasi-scripted series such as
game shows.
The television landscape has changed
dramatically during the past five years.
Unscripted programming is now at the forefront of television, with networks competing
to create—or, failing that, copy—and air
provocative reality-based shows. Not surprisingly, the ratings success of groundbreaking reality programming has engendered the development of patently similar
programs by producers attempting to cash in
on the popularity of those pioneering reality
television shows. In addition, copying in the
reality genre may run more rampant than in
scripted programming because the relatively
low production costs and unscripted formats
of reality television facilitate the quick and
inexpensive development of knockoff shows.
Whatever the motive for this seemingly
unchecked cloning, a handful of producers
and their networks have turned to the federal
courts to call a halt to the practice through
copyright infringement lawsuits. Unfortunately for anyone seeking broad guidance
as to the courts’ receptiveness to such claims,
all but one of those cases have been resolved,
by settlement or otherwise, without a reported
court decision.
In 2000, for instance, Fox Family, the
producer of Race around the World, sued
CBS for copyright infringement and sought to
enjoin the production of CBS’s The Amazing
Race.21 Both series featured teams traveling
to multiple countries in a competition to be
the first to return to New York City. The
court acknowledged the “serious questions”
raised by Fox Family’s copyright claims, but
denied Fox Family’s request for a preliminary injunction as unwarranted by the balance
of hardships.22 Ultimately, the case was voluntarily dismissed.23
CBS turned around and sued Fox in 2001,
claiming that Fox’s Boot Camp infringed
CBS’s copyright in Survivor. CBS alleged that
Boot Camp copied the premise and format of
Survivor, including the concepts of placing
nonactor contestants in severe conditions,
requiring them to work together as a team to
accomplish difficult physical tasks or face
possible elimination, ending each show with
an elimination ceremony, and offering one
contestant per episode a reprieve.24 Fox
responded that CBS sought “a monopoly
over reality television game shows/contests of
elimination.”25 The parties settled before the
court considered the merits of the case.26
In a third such case, a court finally had
occasion to consider the merits of protecting
reality television programs under the Copyright Act. In CBS v. ABC, CBS attempted to
enjoin ABC from broadcasting the reality
series I’m a Celebrity—Get Me out of Here.
CBS claimed that ABC’s series infringed CBS’s
copyright in Survivor.
In Celebrity, eight B-list celebrities are
dropped by helicopter into a remote part of
Australia, where they are forced to fend for
themselves with few amenities. The celebrities are provided basic rations, but better
food is available if a celebrity accomplishes
a physical challenge involving a humorous or
repulsive task. Through call-in voting, the
at-home audience determines which celebrities are voted out of the jungle. The celebrities receive prize money for designated charities based upon the number of votes they
receive and the length of time they remain in
the jungle. The last surviving celebrity is
crowned king or queen of the jungle, and
his or her charity receives the largest sum of
prize money.
CBS sued, alleging that Celebrity “imitates
the distinctive style and the look and feel” of
Survivor, including the use of overhead shots
of fireside chats and elimination ceremonies,
panoramic shots of jungle landscapes, and
scenes of participants discussing upcoming
votes.27 According to CBS, Celebrity infringed
CBS’s copyright in Survivor by copying
Survivor’s format of stranding a group of
strangers in a remote and uncivilized location,
requiring the contestants to provide for themselves, subjecting the contestants to challenges to win immunity or luxuries, and eliminating them one by one in a ritualized
ceremony at the end of each episode. CBS
argued that Celebrity should be enjoined
from airing because Survivor was the first
show to combine the elements of its unique
format.28
In an opinion delivered from the bench on
January 13, 2003, District Judge Loretta
Preska of the Southern District of New York
denied CBS’s motion to preliminarily enjoin
the broadcast of ABC’s Celebrity.29 The court
held that CBS had failed to demonstrate a
likelihood of success on the merits of its
copyright infringement claim because the
protectable expression of the two series was
not substantially similar. In assessing the merits of CBS’s application for a preliminary
injunction, the court emphasized that it was
“crucial to consider each program series as a
whole.”30 After doing so, the court concluded
that the two programs shared a nonprotectable idea (the “Survivor concept”), but
found that they presented that idea via “different expressions.”31 After the court denied
CBS’s motion for a preliminary injunction,
CBS dismissed its complaint with prejudice.
What is often overlooked in CBS v. ABC
is the court’s analysis in reaching its conclusion. Faced with a dearth of precedent in the
context of reality television, the New York
federal court turned to cases applying copyright law to scripted and quasi-scripted programs and other literary works. From these
cases, the court extracted a list of show elements to be compared, some of which, at
first blush, might seem inapplicable to an
unscripted, reality program. Specifically, the
court identified the “total concept and feel,
theme, characters, plot, sequence, pace and
setting” of each program and, without discussing possible differences between scripted
and unscripted television, assumed the existence of corollary elements in reality television
programs.32
The court distilled the “total concept and
feel” of the two programs into two components equally applicable to scripted and
unscripted television, namely, the overall
“tone” and “production values” of each
series. The court contrasted the “unalterable
seriousness” of Survivor against the
“comedic” tone of Celebrity, citing the differences in the elimination sequence in each
show as especially illustrative of the contrasting tones. The court observed that the
elimination ceremony in Survivor was a
“highly ritualized sequence” occurring in the
dark, with torches, and accompanied by dra-
matic tribal-sounding music. Celebrity, on
the other hand, had no comparable ritual. The
departing contestant was announced in the
morning while the contestants were standing
around drinking coffee and escorted onto a
“completely silly-looking party barge with
fireworks, waiters, and glasses of champagne.”33
With respect to the production values,
the court compared the “lush, artful photography and painstaking etiquette” of
identified as the hosts and the contestants. The
court made no mention of the fact that the
dialogue was unscripted or that the interactions of the “characters,” unlike those in a
scripted program, were not concocted by a
staff of writers. First, the court held that the
two shows expressed the “generic element”
of a host in a different fashion. The host of
Survivor, according to the court, appears relatively infrequently in the program, is “nothing but serious,” and plays the dual role of
Survivor and the “home video look” of
Celebrity. Of “less importance,” but also
contributing to the total concept and feel,
were Celebrity’s live action and audience participation elements. The Celebrity audience is
“constantly reminded by the hosts” that they
are watching live action (or footage less than
24 hours old) from around the world and that
they have the opportunity to vote to influence
what happens next, whereas the Survivor
audience is watching “an adventure in the
past” with “more drama and more of what
passes for character development…because of
the [producer’s] opportunity to edit while in
some measure already knowing the outcome.”
The court concluded that the two series were
“substantially different in concept and feel.”34
The court next considered the “setting” of
each show and concluded that the mere concept of a remote, inhospitable locale was too
“generic” to be protectable on its own.
Focusing on the “visual expression” of that
generic concept, the court contrasted the “dry
Outback bush area” featured in Survivor
with the “dense vegetation” that provided the
backdrop in Celebrity and found that the
inhospitable settings were expressed differently.35
The “characters” of each series were the
next element to be examined, which the court
“judge” and “group therapist.” By contrast,
the hosts of Celebrity appear frequently and
perform as comic entertainers. Second, the
court observed that the contestants in Survivor
are “regular folks about whom the audience
knows nothing” who are competing to win
a million dollars, while the participants in
Celebrity are celebrities competing for the
honorific of being king or queen of the jungle and prize money for a favorite charity. The
“cut-throat competition” evident on Survivor
is thus entirely absent from Celebrity. The
court concluded that the characters and their
interactions are expressed differently.36
The court also found that the “plot” of
each series was expressed differently. The
court defined the “plot” by reference to the
“game show” rules of each program, rather
than the sequence of events as they unfold on
the screen. The court noted that, in Survivor,
the contestants are required to participate in
challenges, the challenges are physically difficult, and the “immunity challenges” are
particularly serious and result in a “life or
death decision.” In Celebrity, on the other
hand, the challenges are voluntary, they are
“silly or gross” rather than physically difficult, and only the loss of “upscale rations” is
at stake. In addition, while the contestants
vote each other off at the end of each episode
of Survivor, the contestants on Celebrity are
ousted based upon the results of voting by the
at-home audience.37
Finally, in passing, the court held that the
music in each series was very different (“deep,
chanting, tribal” versus “upbeat and kicky”),
the interstitial shots of wildlife were expressed
differently (emphasizing the “serious, dangerous nature of the animal” versus the
“pretty or comic features of the wildlife”), and
the panoramic landscape photography was
expressed differently (“fabulously beautiful
shots” versus “one step up from home
video”).38
In sum, based upon all of these differences, the court concluded that CBS was “not
likely to prove that a lay observer would
consider the works as substantially similar to
one another.”39
The court conducted its analysis without
acknowledging the novelty of reality television
or suggesting that the unscripted nature of the
genre might complicate the application of
traditional copyright principles. It is clear
from the court’s opinion, however, that some
adaptation of conventional concepts of
scripted expression, like “plot” and “characters,” was necessary before those concepts
could be applied to Survivor and Celebrity.
What is less clear is whether, as the reality
genre continues to expand, any of the elements that the court in CBS v. ABC deemed
“expressive”—or additional elements not yet
identified—ultimately will come to be viewed
as unprotectable scenes a faire or as merged
with a noncopyrightable idea. (The court in
CBS v. ABC identified only “worm-eating” as
part of the scenes a faire of expressing a
remote, hostile environment.40) In a burgeoning genre that has been the subject of
only a single court opinion, it is likely premature to determine what “flows naturally”
from any “basic plot premise” of any reality
program.
In any event, a finding that a particular element (or even every element) of a reality television series is scenes a faire does not preclude
a finding of copyright infringement. As the
court noted in CBS v. ABC, it is not dispositive that “both shows combine well-known
and frequently used generic elements of earlier works.”41 “Although certain similarities
may not be protectable when considered individually because they are too generic or constitute scenes a faire,…‘the presence of so
many generic similarities, and the common
patterns in which they arise,’ may help a
party ‘satisfy the extrinsic test’ for substantial similarity.” Notably, under CBS v. ABC,
if a copyright infringement claim is based
upon the alleged replication of a compilation
of expressive but unprotectable elements (i.e.,
scenes a faire), those individual elements still
must be expressed in each program in a sub38 Los Angeles Lawyer July-August 2005
stantially similar fashion. The court rejected
CBS’s compilation argument on the grounds
that the elements identified by CBS were
“nonprotectable generic ideas,” rather than
expressive content.42
Switching Channels
The court in CBS v. ABC cited Barris/
Fraser Enterprises v. Goodson-Todman Enterprises, Ltd.,43 litigation in which the producers of the pilot of a new game show,
Bamboozle, filed a declaratory judgment
action for a decree that their program did not
infringe the copyright in the game show To
Tell the Truth. The producers of To Tell the
Truth counterclaimed, alleging that Bamboozle did in fact infringe their copyright.
Both shows featured a panel of three contestants, two of whom were liars, who
claimed to be telling the truth about an incident, talent, or identity, and a panel of celebrities who had to determine which contestant
was telling the truth. The court held that the
idea of a game show in which contestants lie
and a panel guesses who is telling the truth
is not protected by copyright. Moreover,
many of the similarities between the two
shows “flow[ed] from the logic and necessities of television game shows and as such
[were] not protectible.”44
Nevertheless, the court denied both parties’ summary judgment motions on the
ground that there remained an issue of fact
as to whether the overall composition of
Bamboozle infringed To Tell the Truth. The
court held that “even though a television
game show is made up entirely of stock
devices, an original selection, organization,
and presentation of such devices can…be
protected, just as it is the original combination of words or notes that leads to a protectible book or song.”45
The Ninth Circuit likewise has recognized
that a copyright infringement claim may be
based on an “original selection and arrangement of unprotected elements.”46 In Metcalf
v. Bochco,47 the Ninth Circuit held that the
“particular sequence in which an author
strings a significant number of unprotectable
elements can itself be a protectable element.”48 Thus, even if one reality television
program infringes only the expression of individually unprotectable “stock devices” of
another reality television program (whatever
those stock devices may be), a copyright
infringement claim should remain viable.
Producers of reality television programs
should also be aware that, given the right
set of factual circumstances, the actual format
(as distinct from the expressive content) of a
program may be protectable under other
legal doctrines. The “implied-in-fact contract” theory, for example, may protect a
format idea if a plaintiff submits the idea to
a defendant and the defendant produces a
program based upon the idea without compensating the plaintiff.49 Other theories of idea
protection include quasi-contract, express
contract, and a confidential relationship theory.50 The applicability of each theory obviously depends upon the circumstances of the
alleged idea appropriation and the viability of
a copyright preemption defense.
Despite speculation that CBS v. ABC raises
the bar for demonstrating infringement of a
reality television show to insurmountable
heights, it is clear from the court’s opinion that
the expressive content of reality programs is
entitled to and receives the same degree of
protection as any other expressive content.
Although the identification of the scenes a
faire of reality television remains unresolved,
the application of scenes a faire will at most
thin, but not eliminate, protection in a case
involving a compilation of exclusively stock
devices.
Reality television is here to stay, certainly
for the foreseeable future. So long as there is
vigorous competition among rival networks,
copyright infringement cases involving the
reality genre undoubtedly will continue to
be filed. Indeed, at least two such actions
have recently been commenced involving disputes between the reality programs Wife
Swap and Trading Spouses51 and between
New Zealand-based Dream Home and Fox’s
The Block.52 And with so many other suspiciously similar reality shows on network
schedules, more infringement actions cannot
be far behind. As the Survivor case suggests,
producers of knockoff reality programs have
no immunity from copyright infringement
liability.
■
1
CHARLES CALEB COLTON, LACON: OR, MANY THINGS
FEW WORDS, ADDRESSED TO THOSE WHO THINK 127
(1822).
2 CBS Broadcasting Inc v. ABC, Inc., 2003 U.S. Dist.
LEXIS 20258 (S.D. N.Y. Jan. 14, 2003).
3 See, e.g., Andrew M. White & Lee S. Brenner, Reality
TV Shows Difficult Concepts To Protect, ENTM’T L. &
FIN., Nov. 2004, at 3.
4 See Three Boys Music Corp. v. Bolton, 212 F. 3d 477,
481 (9th Cir. 2000).
5 See Walker v. Time Life Films, Inc., 784 F. 2d 44, 48
(2d Cir. 1986); see also Castle Rock Entm’t, Inc. v.
Carol Publ’g Group, Inc., 150 F. 3d 132, 137 (2d Cir.
1998).
6 Feist Publ’ns, Inc v. Rural Tel. Serv. Co., Inc., 499 U.S.
340, 361 (1991).
7 Shaw v. Lindheim, 919 F. 2d 1353, 1356 (9th Cir.
1990).
8 Desny v. Wilder, 46 Cal. 2d 715, 731 (1956); see also
Metcalf v. Bochco, 294 F. 3d 1069, 1074 (9th Cir.
2002) (“[C]opyright law protects a writer’s expression
of ideas, but not the ideas themselves.”). For a further
discussion of the issues raised by Metcalf, see Andrew
J. Thomas, Access Hollywood, LOS ANGELES LAWYER,
May 2005, at 29.
9 Narell v. Freeman, 872 F. 2d 907, 912 (9th Cir.
1989).
10 Apple Computer, Inc v. Microsoft Corp., 35 F. 3d
IN
1435, 1446 (9th Cir. 1994) (quoting Aliotti v. R.
Dakin & Co., 831 F. 2d 898, 901 (9th Cir. 1987)).
11 Berkic v. Crichton, 761 F. 2d 1289, 1293 (9th Cir.
1985).
12 4 NIMMER ON COPYRIGHT §1303E[1][b], at 13-88.
13 See Apple Computer, 35 F. 3d at 1443 (“Because only
those elements of a work that are protectable and used
without the author’s permission can be compared
when it comes to the ultimate question of illicit copying, [the Court uses] analytic dissection to determine
the scope of copyright protection before works are
considered ‘as a whole.’”).
14 Berkic, 761 F. 2d at 1293.
15 Shaw v. Lindheim, 919 F. 2d 1353, 1360 (9th Cir.
1990).
16 Apple Computer, 35 F. 3d at 1443.
17 Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129,
1178 (C.D. Cal. 2001).
18 Three Boys Music Corp. v. Bolton, 212 F. 3d 477,
485 (9th Cir. 2000).
19 Sony Pictures Entm’t, Inc. v. Fireworks Entm’t
Group, Inc., 156 F. Supp. 2d 1148, 1158 (C.D. Cal.
2001).
20 Idema, 162 F. Supp. 2d at 1178.
21 Fox Family Prop. Inc. v. CBS Inc., No. 00-CV11482 (C.D. Cal. Oct. 27, 2000); see also Brett Sporich,
Fox Can’t Stop CBS ‘Race,’ T HE H OLLYWOOD
REPORTER, Nov. 27, 2000.
22 Janet Shprintz, Federal Judge Denies Fox Motion on
‘Race,’ VARIETY, Nov. 27, 2000, at 38.
23 Fox Family Prop. Inc. v. CBS Inc., No. 00-CV11482 (Civil Docket).
24 Survivor Prods. LLC v. Fox Broad. Co., No. 01-CV03234 (C.D. Cal. April 9, 2001); Fox Suffers First
Blow in Reality TV War, ANDREWS ENTM’T INDUS.
LITIGATION REP., July 2001.
25 Survivor Prods. LLC v Fox Broad. Co., 2001 U.S.
Dist. LEXIS 25511, *16 n.5 (C.D. Cal. June 14, 2001).
26 Cynthia Littleton, CBS Drops Suit vs ‘Boot Camp,’
THE HOLLYWOOD REPORTER, Sept. 10, 2001.
27 ABC Show Survives CBS Challenge, LOS ANGELES
TIMES, Jan. 14, 2003, at 3-8.
28 CBS v. ABC, 2003 U.S. Dist. LEXIS 20258, at *21
(CBS offered expert testimony identifying the following elements as essential to Survivor and opining that
such elements had never been found in such combination in any other show: “voyeur verite,” hostile
environment, building of social alliances, challenges, and
serial elimination).
29 As a transcription of the court’s decision delivered
from the bench, the opinion in CBS v. ABC is not a
model of clarity. By way of example, the court concluded relatively early in the opinion that CBS sought
protection for a “combination of nonprotectable generic
ideas” (id. at *11), but then proceeded to identify and
compare expressive content in the two programs (id.
at *25-42).
30 Id. at *19.
31 Id. at *43.
32 Id. at *14.
33 Id. at *26-28.
34 Id. at *28-30.
35 Id. at *30-31. Because the court focused on the
Survivor edition filmed in the Australian Outback,
rather than one of the other editions filmed in a jungle environment, the contours of the court’s copyright
infringement analysis of the “setting” element are
unclear. It is unknown, for example, whether the court
would find substantial similarity if two series both
expressed a “remote, inhospitable setting” by filming
in a jungle, but two different jungles in different parts
of the world.
36 Id. at *32-34.
37 Id. at *34-37.
38 Id. at *38-39.
39 Id. at *42.
40
Id. at *40.
Id. at *19.
42 Id. at *8-11, 22-25 (quoting Metcalf v. Bochco,
294 F. 3d 1069, 1074 (9th Cir. 2002)).
43 Barris/Fraser Enters. v. Goodson-Todman Enters.,
Ltd., 1988 U.S. Dist. LEXIS 146 (S.D. N.Y. Jan. 4,
1988).
44 Id. at *15-16.
45 Id. at *17; see also Sheehan v. MTV Networks,
1992 U.S. Dist. LEXIS 3028, at *8-10 (S.D. N.Y. Mar.
13, 1992) (holding that game show proposal was entitled to copyright protection because it was an original
work of authorship that included a distinctive selection
and arrangement of stock game show devices).
46 Apple Computer, Inc v. Microsoft Corp., 35 F. 3d
1435, 1446 (9th Cir. 1994).
47 Metcalf v Bochco, 294 F. 3d 1069 (9th Cir. 2002).
48 Id. at 1074; see also Apple Computer, 35 F. 3d at
1445-46; Satava v. Lowry, 323 F. 3d 805, 811 (9th Cir.
41
2003).
See Desny v. Wilder, 46 Cal. 2d 715, 739 (1956). In
order to state a claim to enforce an implied-in-fact
contract, the following elements must be satisfied: 1)
the idea purveyor must have “clearly conditioned his
offer to convey the idea upon an obligation to pay for
it if it is used” by the person to whom the idea was communicated, 2) the idea recipient must have known the
condition before he or she knew the idea, and 3) the
idea recipient must have voluntarily accepted the disclosure of the idea on that condition. Id.
50 For a discussion of the theories of idea protection see
David M. McGovern, What Is Your Pitch?: Idea
Protection Is Nothing But Curveballs, 15 LOY. L.A.
ENT. L. REV. 475 (1995).
51 RDF Media Ltd. v. Fox Broad. Co., 04-CV-10227
(C.D. Cal. Dec. 15, 2004).
52 Ninox Television Ltd. v. Fox Entm’t Group, Inc., 04
Civ. 7891 (S.D. N.Y. Oct. 5, 2004).
49
BAD FAITH EXPERT
Expert Testimony/Consultation
Bad Faith/Coverage
KIM H. COLLINS, ESQ.
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The hurdle for bad faith claims after an insurer’s
reservation of rights is to prove financial harm
WITH
RESERVATIONS
✜
✜
by Andrew S. Williams and Vivian I. Orlando
A
reservation of rights has long been a legally permissible and proper way for an insurer to protect its
rights to challenge coverage under an insurance policy while fulfilling its contractual obligations to its
insured.1 When a claim raises coverage questions or an insurer has not completed its claim investiga-
tion, it is common for the insurer to pay benefits under a reservation of rights as a means to protect itself from liability and comply with its contract. Increasingly, however, insureds have filed lawsuits—most often for breach of contract and bad faith—against insurers that pay benefits under a reservation of rights. This is particularly true for disability
insurance matters, which typically involve claims that are considered and paid monthly, often over a period of years.
covenant of good faith and fair dealing—they typically argue two
points. First, they assert that the insurer is paying benefits with a string
attached, and therefore, because there is a possibility that the insurer
Andrew S. Williams is a partner and Vivian I. Orlando is an associate in the
Los Angeles office of Barger & Wolen LLP. They specialize in commercial litigation, including the defense of insurance companies and healthcare service
plans. Their firm represented Provident Life and Accident Insurance Company
in Provident Life and Accident Insurance Company v. Van Gemert and The Paul
Revere Life Insurance Company in Morris v. The Paul Revere Life Insurance
Company and Sherman v. The Paul Revere Life Insurance Company.
KEN CORRAL
Intuitively, most attorneys likely would agree that when an insured
has been timely paid all benefits due under an insurance policy, the
insurer should not be liable for breach of contract or bad faith. After
all, actual damage is an essential element of any breach of contract
action.2 Moreover, it is black letter law that a bad faith action will
not lie unless: 1) the benefits due under the policy are withheld, and
2) the reason for withholding benefits is unreasonable or without
proper cause.3
Nevertheless, in practice, when insureds who receive benefits
under a reservation of rights bring actions containing claims for
breach of contract and for bad faith—the tortious breach of the
will seek repayment of the money, the full benefits of the insurance
contract are not realized. Second, they claim that bad faith liability
should attach if there is no reasonable basis for paying under a
reservation of rights. Insurers respond to these allegations by arguing that there can be no breach of contract or bad faith liability
because, with insurers paying benefits fully and in a timely manner,
there is no damage.
In California, whether an insured can properly sue based on an
allegedly improper reservation of rights is unclear. Some courts hold
that an insurer must have a good faith or reasonably based belief in
the existence of some right to a defense regarding payment before
reserving its rights. Other courts have granted summary judgment
against insureds because they have found that the insured has not suffered financial harm.
The courts that grant summary judgment apply general contract
principles and established bad faith law. They conclude that even when
an insurer has no legitimate reason for reserving its rights, there is no
liability because there are no damages until benefits are actually
withheld.
Reservation of Rights
When presented with a third party claim, an insurer generally has three
options.4 First, the insurer may choose to defend without objection,
thereby waiving any right to contest coverage at a later date.5 Second,
the insurer may refuse to furnish a defense and potentially risk a bad
faith lawsuit from its insured.6 Third, insurers may choose to defend
but under a reservation of rights. An insurer that avails itself of this
last option can then, at the end of the underlying case, file an action
for declaratory relief and attempt to obtain a declaration that no duty
to defend or indemnify exists. Such a declaration “would allow it to
withdraw from the defense without subjecting the carrier to a claim
of breach of contract or bad faith.”7
In the context of first party insurance,8 such as disability insurance,
a reservation of rights provides the insurer the opportunity to investigate fully the insured’s disability claim and to later seek reimbursement for benefits paid if the insurer determines the insured was
not entitled to benefits.
In 2003, a federal district court in California addressed whether
a disability insurer could be liable in bad faith for paying benefits under
a reservation of rights and simultaneously seeking a declaration that
it had no obligation to pay the benefits.9 In Provident Life and
Accident Insurance Company v. Van Gemert, the insurer paid disability
benefits under a reservation of rights and then sued for declaratory
relief. The insurer claimed that the insured’s disabling condition
could be cured with appropriate care.10 The insured counterclaimed
for breach of contract and bad faith.
In analyzing the counterclaim, the Van Gemert court noted that
“when an insurer pays benefits under a reservation of rights and files
a declaratory relief action regarding insurance coverage, the insurer
may be liable for breach of the implied covenant.”11 It held, however,
that for liability to attach, the insurer’s position must be both erroneous and unreasonable.12 That is, the insured must show that the
acts of the insurer not only are a breach of the policy but also were
prompted not by “an honest mistake, bad judgment or negligence,
but rather by a conscious and deliberate act.”13 If there is a genuine
issue as to the insurer’s liability, no bad faith liability arises from an
insurer advancing its side of the dispute.14 The court ultimately concluded that there was a genuine dispute as to whether, under California
law, an insured could be required to undergo the treatment that the
insurer demanded. Thus, summary judgment was granted against the
insured on its counterclaim.15
Van Gemert potentially presents an obstacle for insurers because
it embraces the insured’s argument that a bad faith action may lie when
an insurer pays benefits but improperly reserves its rights. The deci42 Los Angeles Lawyer July-August 2005
sion, however, provides only limited guidance. The court does not
address what damages, if any, the insured might be entitled to if the
insured had been able to proceed with the case. Moreover, the court’s
conclusion that bad faith liability may be appropriate even though
benefits are paid under a reservation of rights is based on Dalrymple
v. United Services Automobile Association,16 a case in which the
insured alleged that policy benefits were paid in such an untimely manner that the benefits were effectively withheld.17 Finally, a consideration of whether the insured could pursue a bad faith claim even
though he was being paid benefits was not germane to a resolution
of the case and thus may properly be classified as dicta.18
Another case commonly cited to support the claim that a bad faith
action may be sustainable for an improper reservation of rights is
Sprague v. Equifax, Inc.19 In Sprague, one of the defendants, an
insurer, terminated the plaintiff’s benefits but later restored them, with
interest, under a reservation of rights.20 The insurer settled before trial,
and the case proceeded against Equifax, which was found liable for
conspiring with the insurer to fraudulently deny coverage.
The jury awarded damages for emotional distress covering the time
period before and after benefits were restored. On appeal, Equifax
conceded that emotional distress benefits were appropriate for the
period in which benefits remained unpaid but argued that the plaintiff could not show any damage after benefits were restored. The court
of appeal disagreed. It reasoned that the insured bought disability insurance for peace of mind, and the conditional payment of benefits did
not restore that mental state for the insured. The court concluded that
“an assertion of an insurer’s rights is privileged only if there is a good
faith existence of the right asserted.”21 That is, if there is no good faith
belief that the plaintiff is not entitled to benefits under the policy, no
privilege will exist for payment under a reservation of rights.
Significantly, the Sprague court found that the insurer’s termination of benefits satisfied the threshold requirement of economic loss
and the plaintiff was entitled to recover damages for emotional distress caused by the termination of benefits—even after the benefits were
conditionally restored. The court pointed to authority that supports
the “continuation of damages for mental distress where…compensation for economic loss is not finally settled.”22 Sprague, however,
is not an insurance bad faith case. Rather, it involves tort claims for
fraud and conspiracy based on the alleged fraudulent termination of
the plaintiff’s benefits.23 Thus, Sprague, like Van Gemert, does not
resolve whether an insured can pursue a breach of contract or bad
faith claim when there has never been a denial of insurance benefits.
In Morris v. The Paul Revere Life Insurance Company, the insurer
faced a claim that it acted in bad faith by discontinuing benefits
rather than paying under a reservation of rights and seeking declaratory relief.24 Addressing this contention, the court of appeal discussed the effect of a reservation of rights on potential liability. It noted
that an insurer’s decision to cut off benefits rather than pay under a
reservation of rights relates to the issue of damages, not liability. Thus,
it concluded, an insurer may choose to pay disputed benefits under
a reservation of rights in order to mitigate damages, including possible punitive damages, should the insurer ultimately lose a coverage
dispute. The court observed, “Such a strategy, while perhaps beneficial to an insured in the short run, is primarily a self-protective measure, not an obligation.”25
Last year, the U.S. District Court for the Southern District of
California cited Morris approvingly in Crenshaw v. Mony Life Insurance Company,26 in which the insurer—after several years of
making disability benefit payments and while continuing to pay—
issued a reservation of rights letter in which it disputed the severity
of the insured’s disability. However, the district court also noted that
a “proper reservation of the right to sue its insured to recover benefits paid requires the insurer have a good faith belief in the existence
of some right or defense to payment.”27 Thus, Crenshaw suggests that
a reservation of rights can subject an insurer to liability when the
insurer has no good faith basis for the reservation.
A Different View
Despite the cases discussing the potential for bad faith liability, one
question lingered unaddressed until recently: How is an insured
damaged when an insurer fully and timely pays benefits under a
reservation of rights? In Sherman v. The Paul Revere Life Insurance
Company, the U.S. District Court for the Central District of California
tackled the issue head-on last year.28 While Sherman is an unpublished
decision and therefore not
controlling law, it contains
reasoning that may be persuasive for future courts. The
plaintiff insured in Sherman
sued the defendant disability
insurer for breach of contract
and bad faith even though
benefits were being paid under
a reservation of rights. The
insurer took the position that
the insured, a dentist, could
and should pursue surgical
care to alleviate his disabling
carpal tunnel syndrome. In its
unpublished ruling, the district court dismissed the complaint, with prejudice, finding
that there was no breach of
contract or bad faith liability
when benefits were paid under
a reservation of rights.29
In deciding the issue, the
Sherman court found Travelers Indemnity Company v.
Walker & Zanger, Inc. persuasive and held that “a reservation of rights where the
insurance carrier has contested the duty to pay benefits to the insured does not amount to a
breach of contract.”30 The Travelers court held that an insurer, in the
context of third party insurance, may choose to defend under a
reservation of rights and simultaneously file a declaratory relief
action seeking a declaration that no duty to defend or indemnify exists.
According to Travelers, a judicial determination in the insurer’s favor
allows it to withdraw its defense without subjecting itself to liability
for breach of contract or bad faith.31 From this, the Sherman court
concluded that payment under a reservation of rights cannot amount
to breach of contract.
The Sherman court noted that the maximum recovery on a contract is limited to the equivalent of performance. Thus, when payment
of benefits is made under a reservation of rights, there is no actual damage to sustain a breach of contract claim. Although the insured
argued that he could not make full use of disability benefits because
he might have to give them back if he did not win his lawsuit, the court
found this argument frivolous: “[I]f the judgment in such a lawsuit
is against the Plaintiff and he is required to pay back all the benefits,
he was never entitled to enjoy the benefits in the first place.” On the
other hand, “if Plaintiff was to prevail, he would be entitled to full
use of all the benefits paid both before and after the lawsuit.” The mere
fact that pending litigation results in the plaintiff being “more thrifty
in his management of the money paid in benefits does not mean that
he has been deprived of any benefit under the Policy.”32
The Sherman court was unsympathetic to the insured’s argument
that the reservation of rights imposed litigation costs upon him. It noted
that the plaintiff, not the insurer, chose to file suit when a denial of
benefits and litigation were merely speculative.33
Finally, in discussing the plaintiff’s bad faith claim, the court reiterated the long-established rule that a plaintiff must establish that 1)
benefits due under the insurance policy were withheld, and 2) “the
reason for withholding benefits must have been unreasonable or
without proper cause.”34 The court concluded that the complaint failed
to plead that benefits had been withheld.35
Several published California cases lend support to the argument
that no bad faith liability
may attach for reserving
rights. For example, in
Massachusetts Casualty Insurance Company v. Rossen,36 the court noted that
“a reservation of rights is
made by an insurer to protect that insurer’s right to later
seek reimbursement for payments made under the reservation of rights if it is shown
that the insured was not entitled to such payments.” The
court explained that payment
under a reservation of rights
protects an insurer from
potential bad faith if it were
to withhold benefits and provides the insured with funds
to use while a determination
of coverage is made.37
Likewise, in Blue Ridge
Insurance Company v. Jacobson,38 the insured argued
that an insurer should not be
permitted to terminate its
defense obligations by settling a claim under a reservation of rights. The court held, however, that an insurer has a
right to settle a case within policy limits when the settlement is reasonable and to reserve its right to reimbursement for the settlement.39 A reservation of rights has also been deemed appropriate in
“mixed actions” when an insurer contends that a portion of the
defense costs are not covered and seeks reimbursement of those
costs.40
Other jurisdictions generally have held that an insurer cannot be
liable for bad faith for reserving its rights. For example, in Hartford
Fire Insurance Company v. B. Barks & Sons, Inc.,41 the insurer
defended under a reservation of rights regarding its duty to indemnify the insured. The court held that the insurer’s decision did not constitute bad faith.42 Similarly, in Pasco v. State Automobile Mutual
Insurance Company, the court rejected the notion that a bad faith
claim could be maintained against an insurer that defended its insured
under a reservation of rights.43 For third party insurance matters, some
courts even encourage insurers to defend under a reservation of
rights.44
Reconciling the Conflict
Exceptional circumstances may warrant a finding of bad faith even
though a claim is paid. As the Dalrymple court stated: “[T]here may
be cases in which the insurer’s delay in paying the claim or other misconduct causes special harm to the insured even if the claim is ultimately paid or settled.” In these cases, tort liability may be imposed
even though the insurer has satisfied its contractual obligations.45 Thus, for example, an
unreasonable delay in the processing or payment of a claim may be evidence of bad
faith.46 Likewise, in a worker’s compensation
action, an insurer may be liable for bad faith
if it pays too much for the worker’s compensation claims and thus causes the premium of the insured employer to increase
correspondingly.47
Although some California cases support
the notion that an insurer may be liable for
bad faith when it pays benefits under a reservation of rights, none of those cases confronts the issue directly. More significantly, the
cases are at odds with long-established tenets
of contract and insurance law.
A fundamental requirement for recovery
under a contract is actual damage. 48
Moreover, “[e]xcept as provided by statute,
no person can recover a greater amount in
damages for the breach of an obligation,
than he could have gained by the full performance thereof on both sides.” 49 This
means that, with life and disability insurance, the permissible recovery is limited to
“the sum or sums payable in the manner and
at the times provided in the policy.”50 Based
on these contractual principles, it follows
that an insurer cannot be liable if full insurance policy benefits are paid or are being
paid.
Similarly, “[b]reach of the implied covenant
is actionable in the insurance context because
such conduct causes financial loss to the
insured, and it is that loss which defines the
cause of action.”51 Stated otherwise, “the
award of damages in bad faith cases for personal injury, including emotional distress, is
incidental to the award of economic damages.”52 Thus, for example, there can be no
emotional distress damages arising from
alleged bad faith conduct on behalf of an
insurer if the insured suffered no economic
harm.53 Moreover, even when an insurer
delays the payment of insurance benefits, a bad
faith action will not lie in the absence of financial harm to the insured during the delay.54
In most cases an insurer should not face
liability if benefits are fully and promptly
paid under a reservation of rights—even if
there is no reasonable support for the reservation. The seemingly conflicting cases can be
reconciled by concluding that, while an erroneous reservation of rights might be evidence
of unreasonable conduct, bad faith liability
cannot arise solely from an insurer’s decision to pay benefits under a reservation of
rights. This conclusion is consistent with the
law of contracts and bad faith in California,
which requires financial harm to maintain
breach of contract and bad faith actions. It is
also consistent with the public policy of promoting the payment of policy benefits when
coverage is unclear or further investigation
remains to be done.
■
1
See, e.g., Frank v. Allstate Ins. Co., 45 Cal. App. 4th
461, 474 (1996); Johansen v. California State Auto
Ass’n Inter-Ins. Bureau, 15 Cal. 3d 9, 19 (1975).
2 Roberts v. Los Angeles County Bar Ass’n, 105 Cal.
App. 4th 604, 617 (2003) (citing Cochran v. Cochran,
56 Cal. App. 4th 1115, 1123 n. 6 (1997)).
3 See Love v. Fire Ins. Exch., 221 Cal. App. 3d 1136,
1151-52 & n.10 (1990).
4 Third party insurance policies provide coverage for
liability of the insured to another. Examples include
comprehensive general liability, directors and officers
liability, and errors and omissions insurance. Garvey
v. State Farm Fire & Cas. Co., 48 Cal. 3d 395, 399 n.2
(1989).
5 Truck Ins. Exch. v. Superior Court, 51 Cal. App. 4th
985, 994 (1996) (citing Miller v. Elite Ins. Co., 100 Cal.
App. 3d 739, 755 (1980)).
6 Id. at 993-94 (citing Campbell v. Superior Court, 44
Cal. App. 4th 1308, 1319 (1996)).
7 Id. at 994 (citing Hartford Accident & Indem. Co.
v. Superior Court, 23 Cal. App. 4th 1774, 1778
(1994)); see generally 2 ERIC M. HOLMES & MARK S.
RHODES, APPLEMAN ON INSURANCE 2d §8.4, at 355-56
(1996).
8 First party insurance policies provide coverage for loss
or damage sustained by the insured. Examples include
life, disability, health, fire, theft, and casualty insurance.
Garvey, 48 Cal. 3d at 399 n.2.
9 Provident Life & Accident Ins. Co. v. Van Gemert,
262 F. Supp. 2d 1047 (C.D. Cal. 2003).
10 Id. at 1050.
11 Id. at 1052 (citing Dalrymple v. United Servs. Auto.
Ass’n, 40 Cal. App. 4th 497, 515 (1995)). In Dalrymple,
the insurer paid under a reservation of rights, then
brought a declaratory relief action. The insured filed a
counterclaim arguing that the insurer acted in bad
faith in filing the declaratory relief action and delaying
the payment of benefits, among other things. Dalrymple,
40 Cal. App. 4th at 515. The court noted, “It is at least
arguable that pursuing a declaratory relief action
regarding coverage could be done for reasons indicating bad faith may be present: e.g., if there were no
proper cause to dispute coverage, and if more than an
erroneous interpretation of a policy (e.g., a willfully misguided one) were concerned.” Id.
12 Provident Life & Accident Ins. Co., 262 F. Supp. 2d
at 1052 (citing Brand[t] v. Superior Court, 37 Cal. 3d
813, 819 (1985)).
13 Id. (citing Chateau Chamberay Homeowners Ass’n
v. Associated Int’l. Ins. Co., 90 Cal. App. 4th 335, 346
(2001)).
14 Id.
15 Id.
16 Dalrymple, 40 Cal. App. 4th 497.
17 Id. at 514.
18 See Export Group v. Reef Indus., Inc., 54 F. 3d
1466, 1472 (9th Cir. 1995) (holding that statements
“not necessary to the decision” of the case “have no
binding or precedential impact”).
19 Sprague v. Equifax, Inc., 166 Cal. App. 3d 1012,
1032 (1985).
20 Id. at 1029-30.
21 Id.
22 Id. at 1031.
23 Id. at 1026.
24 Morris v. The Paul Revere Life Ins. Co., 109 Cal.
App. 4th 966, 977 (2003).
25 Id.
26 Crenshaw v. Mony Life Ins. Co., 2004 U.S. Dist.
LEXIS 9983 (S.D. Cal. 2004).
27 Id. at *22 (citing Sprague v. Equifax, 166 Cal. App.
3d 1012, 1032 (1985)).
28 Order on Motion to Dismiss, Sherman v. The Paul
Revere Life Ins. Co., Case No. CV-03-5730 DT(PJWx)
(C.D. Cal., Feb. 19, 2004) (unpublished).
29 Id. at 2.
30 Id. at 7. (citing Travelers Indemn. Co. v. Walker &
Zanger, Inc., 221 F. Supp. 2d 1224 (S.D. Cal. 2002)).
31 Travelers Indemn. Co., 221 F. Supp. 2d at 1231 (citing Truck Ins. Exch. v. Superior Court, 51 Cal App. 4th
985, 994 (1996)).
32 Order on Motion to Dismiss, Sherman, Case No. CV03-5730 DT(PJWx), at 8-9.
33 Id. at 9.
34 Id. at 10 (citing Love v. Fire Ins. Exch., 221 Cal. App.
3d 1136, 1151 (1990)).
35 Id. at 10-11.
36 Massachusetts Cas. Ins. Co. v. Rossen, 953 F. Supp.
311, 315 (C.D. Cal. 1996).
37 Id.
38 Blue Ridge Ins. Co. v. Jacobson, 25 Cal. 4th 489,
503-04 (2001).
39 Id.
40 Prichard v. Liberty Mut. Ins. Co., 84 Cal. App. 4th
890, 895 (2000).
41 Hartford Fire Ins. Co. v. B. Barks & Sons, Inc.,
1999 U.S. Dist. LEXIS 7733, at *24-25 (E.D. Pa.
1999).
42 Id. (citing Cay Divers, Inc. v. Raven, 812 F. 2d 866,
871 (3d Cir. 1987)).
43 Pasco v. State Auto. Mut. Ins. Co., 1999 Ohio App.
LEXIS 6492, at *17-18 (Ct. App. Ohio 1999) (“Research by this court has failed to reveal any case in which
a bad-faith claim was maintained when the insurer
defended its insured under a reservation of right to
deny coverage as to a particular claim and the insurer’s
coverage decision was determined to be correct.”).
44 See, e.g., Massachusetts Mut. Life Ins. Co. v.
Woodall, 304 F. Supp. 2d 1364, 1381 (S.D. Ga. 2003);
Legion Ins. Co. v. Moore, 846 So. 2d 1183, 1186
(Fla. Ct. App. 2003).
45 Dalrymple v. United Servs. Auto. Ass’n, 40 Cal.
App. 4th 497, 514 (1995).
46 Fleming v. Safeco Ins. Co., 160 Cal. App. 3d 31, 37
(1984). But even if there is an unreasonable delay,
this does not necessarily establish economic loss to
the plaintiff that would justify damages. See Maxwell
v. Fire Ins. Exch., 60 Cal. App. 4th 1446, 1450 (1998).
Under certain circumstances, an unreasonable delay in
payment may be tantamount to a denial of claims.
McCormick v. Sentinel Life Ins. Co., 153 Cal. App. 3d
1030, 1048, 1050 (1984) (finding a delay to be unreasonable when the insurer knew of the claim but delayed
payment and investigation for 10 months, resulting in
the repossession of the plaintiff’s car—which was the
tangible loss that the plaintiff’s insurance policy at
issue was supposed to protect against).
47 Security Officers Serv., Inc. v. SCIF, 17 Cal. App. 4th
887 (1993).
48 Roberts v. Los Angeles County Bar Ass’n, 105 Cal.
App. 4th 604, 617 (2003).
49 CIV. CODE §3358.
50 INS. CODE §10111.
51 Gourley v. State Farm Mut. Auto. Ins. Co., 53 Cal.
3d 121, 129 (1991).
52 Maxwell v. Fire Ins. Exch., 60 Cal. App. 4th 1446,
1451 (1998) (citing Waters v. United Servs. Auto.
Ass’n, 41 Cal. App. 4th 1063, 1070-74 (1996)).
53 Waters, 41 Cal. App. 4th at 1081 (reversing a
$1,375,000 emotional distress damage award arising
from a bad faith claim in which policy benefits were
paid and no evidence of other financial harm to the
insureds was found).
54 Maxwell, 60 Cal. App. 4th at 1447, 1450-51 (holding loss of use of insurance money insufficient to establish financial harm and distinguishing Sprague v.
Equifax, 166 Cal. App. 3d 1012 (1985), on the grounds
that it was not an insurance bad faith action).
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years. See display ad on page 55.
RIMKUS CONSULTING GROUP, INC.
333 City Boulevard West, Suite 1805, Orange, CA 92868,
(877) 978-2044, fax (714) 978-2088, e-mail: cjyaworski
@rimkus.com. Web site: www.rimkus.com. Contact Curt
Yaworski. Rimkus Consulting Group is a full-service forensic
consulting firm. Since 1983, we have provided reliable investigations, reports, and expert witness testimony around the
world. Our engineers and consultants analyze the facts from
origin and cause through extent of loss. Services: construction defect and dispute analysis, vehicle accident reconstruction, fire cause and origin, property evaluation, mold evaluations, indoor air quality assessments, biomechanical analysis,
product failure analysis, foundation investigations, industrial
accidents and explosions, water intrusion analysis, geotechnical evaluations, construction accidents, construction disputes,
financial analysis and assessments, forensic accounting,
HVAC analysis, electrical failure analysis, and video/graphics
computer animation. See display ad on page 63.
ACCOUNTING INVESTIGATIONS
ARNOLD L. STENGEL & COMPANY
2320 Cotner Avenue, Los Angeles, CA 90064, (310) 4797777, fax (310) 479-0983. Contact Arnold L. Stengel.
Expert witness services, litigation support services, represen46 Los Angeles Lawyer July-August 2005
tation before taxing agencies, fiduciary accounting, structure
for purchase/sale professional practices, accounting services
for law and healthcare, business reorganizations, dairy/farming operations, financial advisory and personal financial planning, estate and gift tax planning and tax return preparation,
preparation of tax returns for individuals, partnership, LLCs,
fiduciaries, and corporations.
BALLENGER CLEVELAND & ISSA, LLC
10990 Wilshire Boulevard, 16th Floor, Los Angeles, CA
90024, (310) 873-1717, fax (310) 873-6600. Contact Bruce
W. Ballenger, CPA. Comprehensive search, examination,
and analysis of records to determine true revenues, profits,
net worth, shareholders’ equity, depreciation, amortization,
etc. Expert witness for complicated accounting, financial, and
business valuation matters, feasibility of reorganization plans,
fraudulent conveyances, bankruptcies, fairness of interest
rates, stock options, management misfeasance/malfeasance,
purchasing, and mergers and acquisitions. More than 100
open-court testimonies: federal, state, civil, criminal. See display ad on page 47.
FULCRUM FINANCIAL INQUIRY
1000 Wilshire Boulevard, Suite 1650, Los Angeles, CA
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
@fulcruminquiry.com. Web site: www.fulcruminquiry.com.
Contact David Nolte. Services include computer forensics
and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes accounting inspections and audits, damages analysis for litigation,
business and intangible asset valuations, economic and market studies, and related expert testimony. Fulcrum’s analysis
and research, combined with persuasive presentation techniques, have resulted in an unequalled record of successful
court cases and client recoveries. See display ad on page 2.
HAYNIE & COMPANY, CPAs
4910 Campus Drive, Newport Beach, CA 92660, (949) 7241880, fax (949) 724-1889, e-mail: sgabrielson@hayniecpa
.com. Web site: www.hayniecpa.com. Contact Steven C.
Gabrielson. Alter ego, consulting and expert witness testimony in a variety of practice areas: commercial damages,
ownership disputes, economic analysis, business valuation,
lost profits analysis, fraud/forensic investigations, taxation,
personal injury, wrongful termination, professional liability, and
expert cross examination. Extensive public speaking background assists in courtroom presentations.
@us.rgl.com. Contact Bob Jones. 625 City Drive South,
Suite 290, Orange, CA 92868, (714) 740-2100, fax (714) 7402020, e-mail: hkahrs@us.rgl.com. Contact Hank Kahrs.
Web site: www.rgl.com. With 25 offices worldwide, and over
30 years of experience, RGL–Forensic Accountants &
Consultants is one of the only accounting firms exclusively
devoted to forensic accounting. The firm’s professionals provide a wide range of services, including litigation support,
business valuation, insurance support, fidelity services, healthcare consulting, and underwriter support. RGL is unique in its
ability to combine the three areas of investigative accounting,
economic damages analysis, and business valuation expertise
to determine the most accurate financial figures. For more
information, please visit www.rgl.com.
SANLI PASTORE & HILL, INC.
Headquarters: 1990 South Bundy Drive, Suite 800, Los
Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420.
Sacramento Office: (916) 614-0530. Web site: www.sphvalue
.com. Contact Nevin Sanli, ASA; Thomas Pastore, ASA,
CPA, CFA; Forrest Vickery, ASA. SP&H offers a broad
spectrum of business valuation services in the United States
and worldwide, specializing in highly scrutinized situations.
Services include litigation support and expert witness testimony and valuations for estate and gift tax planning (family
limited partnerships), lost-profit analysis, mergers and acquisitions, goodwill loss, fairness opinions, corporate partnership
and marital dissolutions, ESOPs/ISOPs, and corporate
restructurings. Comprehensive economic, industry, and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiation consultations. See display ad on page 48.
STONEFIELD JOSEPHSON, INC.
1620 26th Street, Suite 400 South, Santa Monica, CA 90404,
(310) 453-9400, fax (310) 453-1187, e-mail: jsumpter
@sjaccounting.com. Web site: www.sjaccounting.com.
Contact Jeffrey Sumpter, director of financial recovery.
Stonefield Josephson, Inc., is a California-based certified public accounting and business advisory firm founded in 1975.
Our services include assurance/accounting, business consulting (profit enhancement, finance sourcing, mergers and
acquisitions, family-owned business, succession planning,
executive incentive compensation, business plans and budgeting); business valuation, financial recovery, forensic services, litigation support, public companies services, and tax
consulting and compliance. Service area: throughout the
United States and internationally. See display ad on page 49.
PRICEWATERHOUSECOOPERS LLP
350 South Grand Avenue, Los Angeles, CA 90071, (213)
356-6000, fax (813) 637-4444. Web site: www.pwc
.com/us. Contact Martha Corbett, partner.
PricewaterhouseCoopers’ Dispute Analysis & Investigations
(DA&I) practice provides accounting, financial, economic, and
statistical expertise to lawyers and other parties involved in litigation, arbitration, mediation, alternative dispute resolution,
investigations, and contract compliance issues, as well as indepth hospitality and leisure industry advisory services. DA&I
professionals serve as expert witnesses, conduct fraud and
forensic (including electronic) investigations, monitor contract
compliance, and advise on claims processing. Service area is
nationwide. See display ad on page 62.
RGL–FORENSIC ACCOUNTANTS &
CONSULTANTS
660 South Figueroa Street, Suite 1940, Los Angeles, CA
90017, (213) 996-0900, fax (213) 996-0919, e-mail: bjones
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
91423, 363 San Miguel Drive, Suite 130, Newport Beach, CA
92660, (818) 981-4226, (310) 276-7831, (949) 219-9816, fax
(818) 981-4278, (949) 219-9095, e-mail: expert@wzwlw.com.
Contact Barbara Luna, Fred Warsavsky, Paul White,
Jack Zuckerman, Drew Hunt, Bill Wolf, David Semus,
Pamela Wax, Venita McMorris, Dean Atkinson, Cindy
Holdorff, David Turner, Greg Mogab, Emily Reich, Lea
Lyons, and Mike LeRoy. Expert witness testimony for business, real estate, personal injury, and marital dissolution.
Investigative analysis of liability, damage analysis of lost profits
and earnings, business valuations, fraud investigation, tax
planning and preparation, and mergers and acquisitions.
Hundreds of times as expert witnesses. Prior “big four”
accounting firm experience. Client service oriented and excellent communications skills. Specialties include accounting,
antitrust, breach of contract, business interruption, business
dissolution, construction delays, cost overruns and defects,
fraud, intellectual property (patent, copyright, and trademark
infringement and trade secrets), malpractice (medical, legal,
accounting, and appraiser), marital dissolution (cash flows,
tracing, support issues, separate/community property, and
valuations), personal injury, product liability, real estate, taxation, valuation of business, unfair advertising, unfair competition, and wrongful termination. See display ad on page 53.
ZIVETZ, SCHWARTZ & SALTSMAN, CPAs
11900 West Olympic Boulevard, Suite 650, Los Angeles, CA
90064-1151, (310) 826-1040, fax (310) 826-1065. Web site:
www.zsscpa.com. Contact Lester J. Schwartz, CPA,
DABFE, DABFA, Michael D. Saltsman, CPA, MBA, David
Dichner, CPA, ABV, CVA, or Sandy Green, CPA.
Accounting experts in forensic accounting, tax issues, business valuations, and appraisals, marital dissolutions, eminent
domain, insurance losses, business interruption, goodwill,
economic analysis, investigative auditing, loss of earning,
commercial damages, and lost profits. Expert witness testimony preparation, and settlement negotiations and consultations. See display ad on page 51.
ARCHITECTURAL FORENSICS
PHILIP KROEZE, AIA, CONSULTING
ARCHITECTURAL SERVICES
19 Summerside, Coto De Caza, CA 92679, (949) 589-0554,
fax (949) 589-4351, e-mail: kroeze@cox.net. Contact Philip
Kroeze, AIA. Expert witness: architectural and engineering
standard of care, construction defects, moisture intrusion,
and construction documents. Thirty-five years of experience
in design and construction, residential, commercial, and office
buildings. Exhibits (photos, models, charts, renderings).
Service area: California and Nevada.
searches, background investigation, DMV searches, domestic/marital cases, due diligence, process service, surveillance/photograph, witness location, and statements. LA
branch plus correspondents nationwide. Multilingual agents.
Fully insured.
DCW & ASSOCIATES
7400 Center Avenue, Suite 209, Huntington Beach, CA
92647, (714) 892-0442, (800) 899-0442, fax (714) 892-3543,
e-mail: dwilliams@dcwpi.com. Web site: www.dcwpi.com.
Contact David Williams. Former federal agents. A fullservice investigative agency with national and international
contacts. Services include asset checks, surveillances, family
law, marital infidelity decoys, trial preparation, criminal/civil
court research, elder abuse, child custody/retrieval, employment checks, due diligence, computer forensics, fraud investigations, competitor intelligence, trademark/patent infringement, mystery shops/bar checks, and witness locates.
Service area: California, Asia, and Europe. See display ads
on pages 64 and 65.
TRANSWEST INVESTIGATIONS, INC.
90057, (213) 381-1500, fax (213) 383-5890. Web site:
www.transwestonline.com. Contact Ed Beyer, CEO. Since
1982, TranWest has exclusively serviced the legal community
with fast, reliable and confidential information for over 6,000
clients nationwide. Our full staff of seasoned investigators
accomplish the most daunting tasks with success. We understand the needs of the legal community. Difficult service of
process, locates, asset investigation, and product counterfeiting/infringement are just a few of our specialties. Ordering is
easy. Call, fax, or visit our Web site today. See display ad on
inside back cover.
AUTOMOTIVE DEFECTS
(877) 978-2044, fax (714) 978-2088, e-mail: cjyaworsk
SCHWARTZ / ROBERT & ASSOCIATES, INC.
42 Faculty Street, Thousand Oaks, CA 91360, (805) 7771115, cell (805) 796-9092, fax (805) 777-1172, e-mail:
risoakpark@aol.com. Web site: www.schwartzrobert
.com. Contact Robert I. Schwartz, AIA. Real Property
Development procedures & practices, all building types, sizes
& phases. Professional evaluation of building design errors &
omissions, building code compliance & professional standards of practice. Forensic investigation of construction
defects. Repair cost estimates. Construction contract/subcontract performance—project management administration &
cost accounting, CPM scheduling, cost estimating, change
order administration, quality assurance & building performance. Evaluation of delay claims. Documentation of major
property/casualty insurance losses. Excellent litigation support
& trial exhibit preparation. Expert witness testimony.
Experienced AAA arbitrator & mediator. Large & complex
cases. Member, Dispute Resolution Boards.
ASSET SEARCH
BENCHMARK INVESTIGATIONS
32158 Camino Capistrano, # A-415, San Juan Capistrano,
CA 92675, (800) 248-7721, fax (949) 248-0208,
e-mail: zimmerpi@pacbell.net. Web site: www
.BenchmarkInvestigations.com. Contact Jim Zimmer, CPI.
National agency. Professional investigations with emphasis
upon accuracy, detail, and expedience. Asset/financial
BANKRUPTCY/TAX
W. Ballenger, CPA, managing director, bankruptcy
examiner, designated bankruptcy trustee. Comprehensive search, examination, and analysis of records to
determine true revenues, profits, net worth, shareholders’
equity, depreciation, amortization, etc. Expert witness for
complicated accounting, financial, and business valuation
matters, feasibility of reorganization plans, fraudulent conveyances, bankruptcies, fairness of interest rates, stock
options, management misfeasance/malfeasance, purchasing,
and mergers and acquisitions. More than 100 open-court testimonies: federal, state, civil, criminal. See display ad on this
page.
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
(310) 453-9400, fax (310) 453-1187, e-mail: jsumpter@sjaccounting.com. Web site: www.sjaccounting.com. Contact
Jeffrey Sumpter, director of financial recovery.
consulting and compliance. Service area: throughout the United
States and internationally. See display ad on page 49.
SUGARMAN & COMPANY, LLP
44 Montgomery Street, Suite 1310, San Francisco, CA
94104, (415) 395-7512, fax (415) 658-2858, e-mail: dlabelle
@sugarman-company.com. Web site: www.sugarman
-company.com. Contact Diane LaBelle. Expert witness
testimony in federal, state, and local courts, forensic accounting. Case involvement includes: damage calculations, lost
profits, business interruption, cash flow analysis, forensic
accounting, business and real estate valuations, construction
damages, insurance claims, fraud investigations, lender liability, partnership dissolution, professional malpractice, white
collar crime, liquidation and going concern analysis, as well as
bankruptcy and reorganization management and consulting.
BUSINESS APPRAISAL/BUSINESS
VALUATIONS
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
HIGGINS, MARCUS & LOVETT, INC.
Over 25 years of Experience in the Construction Industry
KENNETH J. FISCHBECK
CONSTRUCTION EXPERT WITNESS
511 Oak Street, Laguna Beach, California 92651
714.609.7481 • Fax 949.715.6714
KFischbeck@cox.net
CA Lic #475327
90017, (213) 617-7775, fax (213) 617-8372, e-mail: mhiggins
@hmlinc.com. Web site: www.hmlinc.com. Contact Mark C.
Higgins, ASA, president. The firm has over 20 years of litigation support and expert testimony experience in matters
involving business valuation, economic damages, intellectual
property, loss of business goodwill, and lost profits. Areas of
practice include business disputes, eminent domain, bankruptcy, and corporate and marital dissolution. See display ad
on page 58.
91403, (818) 995-1040, fax (818) 995-4124. Web site: www
.info@ketw.com. Contact Michael J. Krycler. Litigation support, including forensic accounting, business appraisals, family law accounting, business and professional valuations,
damages, fraud investigations, and lost earnings. Krycler,
Ervin, Taubman and Walheim is a full-service accounting firm
serving the legal community for more than 20 years. See
display ad on page 55.
LEWIS, JOFFE & CO, LLP
We find
missing heirs–
at no cost to
the estate
Search International, Inc.
Finding missing heirs since 1981
(800) 572-5522 ■ www.searchint.com
90024, (310) 475-5676, fax (310) 475-5268. Contact Brian
Lewis, CPA, CVA. Forensic accounting, business valuations,
cash spendable reports, estate, and trust and income tax
services.
CONSULTANTS
90017, (213) 996-0900, fax (213) 996-0919, e-mail:
bjones@us.rgl.com. Contact Bob Jones. 625 City Drive
South, Suite 290, Orange, CA 92868, (714) 740-2100, fax
(714) 740-2020, e-mail: hkahrs@us.rgl.com. Contact Hank
Kahrs. Web site: www.rgl.com. With 25 offices worldwide,
and over 30 years of experience, RGL–Forensic Accountants
& Consultants is one of the only accounting firms exclusively
SANLI PASTORE & HILL, INC.
Headquarters: 1990 South Bundy Drive, Suite 800, Los
Angeles, CA 90025, (310) 571-3400, fax (310) 571-3420.
Sacramento Office: (916) 614-0530. Web site: www.sphvalue
.com. Contact Nevin Sanli, ASA; Thomas Pastore, ASA,
CPA, CFA; Forrest Vickery, ASA. SP&H offers a broad
spectrum of business valuation services in the United States
and worldwide, specializing in highly scrutinized situations.
Services include litigation support and expert witness testimony and valuations for estate and gift tax planning (family
limited partnerships), lost-profit analysis, mergers and acquisitions, goodwill loss, fairness opinions, corporate partnership
and marital dissolutions, ESOPs/ISOPs, and corporate
restructurings. Comprehensive economic, industry and market research. Extensive experience in expert witness testimony, pretrial preparation, and settlement negotiation consultations. See display ad on page 48.
consulting and compliance. Service area: throughout the United
States and internationally. See display ad on page 49.
WOLF & HUNT
92660, (818) 981-4226, (310) 276-7831, (949) 219-9816, fax
CIVIL INVESTIGATION
DCW & ASSOCIATES
92647, (714) 892-0442, (800) 899-0442, fax (714) 892-3543,
on pages 64 and 65.
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
court cases and client recoveries. See display ad on
page 2.
@investigation.com. Web site: www.investigation.com.
Contact Michael G. Kessler, president & CEO. Kessler
International, the recognized global leader in corporate investigative strategies, specializes in a comprehensive array of
services, including forensic accounting, anti-counterfeiting,
anti-diversion, trademark investigations, computer forensics,
Internet monitoring, competitive intelligence, litigation support,
and a variety of special investigative services. Kessler
International combines decades of knowledge, unmatched
investigative skills and technical expertise to provide clients
with strategies and solutions that are precise, accurate, and
complete. Service area: worldwide.
NATIONAL BUSINESS INVESTIGATIONS,
INC.
ONLINESECURITY
21535 Palomar Street, Suite F, Wildomar, CA 92595, (951)
678-4408, fax (951) 678-7179, e-mail: mail@investigations-nbi
.com. Web site: www.investigations-nbi.net. Contact
Michael Julian, CPI, PPS. Since 1967, National Business
Investigations has specialized in civil litigation, insurance
related and corporate investigations. Now under the direction
of founder Ron Julian’s son, Michael Julian, NBI, has
expanded its operations to include international investigations.
With two generations and over three decades of experience,
NBI provides an exceptional product in the areas of locates,
general liability insurance defense, worker’s compensation
claims and fraud, domestic investigations, background and
asset investigations. Michael Julian is the Vice President of the
California Association of Licensed Investigators and is a member of the National Council of Investigative and Security
Specialists and the World Association of Detectives.
STEIN INVESTIGATION AGENCY
2705 Media Center Drive, Los Angeles, CA 90065, (323) 9081470, e-mail: gfradis@steininvestigations.com. Web site:
www.steininvestigations.com. Contact Mitchell Hermann.
Southern California’s oldest full-service agency, established in
1946. We work relentlessly to get the information you need.
We set the standard for insurance defense investigations,
then expanded to include corporate and domestic matters.
As part of the DM&A family of companies, we have investigators throughout North America. We have experience conducting jury polls, assets research, and surveillance. We regularly
conduct investigations in other countries and on other continents. See display ad on page 63.
COMPUTER FORENSICS
FORENSICS CONSULTING SOLUTIONS, LLC
411 North Central Avenue, Suite 170, Phoenix, AZ 85004,
(602) 992-3600, fax (602) 992-5292, e-mail:
info@forensicsconsulting.com. Web site: www
.forensicsconsulting.com. Contact Peter Francis. Forensic
Consulting Solutions (FCS) offers business solutions for your
electronic data discovery issues and second requests.
Providing eight critical services, FCS helps you develop an
EDD strategy, identity pitfalls and issues, avoid potential problems, reduce costs and preserve admissibility in EDD
processes. A comprehensive approach to strategic discovery
planning, data acquisition, process implementation, data
analysis, data review, data production, reporting and process
management delivers a customized solution with significant
cost savings. Service area: national. See display ad on
page 57.
90017, (213) 787-4100, fax (213) 787-4141, e-mail:
dnolte@fulcruminquiry.com. Web site: www.fulcruminquiry
.com. Contact David Nolte. Services include computer
forensics and electronic discovery involving litigation, employment matters, and fraud investigations. Our expertise includes
accounting inspections and audits, damages analysis for litigation, business and intangible asset valuations, economic
and market studies, and related expert testimony. Fulcrum’s
analysis and research, combined with persuasive presentation
techniques, have resulted in an unequalled record of successful court cases and client recoveries. See display ad on
page 2.
KESSLER INTERNATIONAL
1875 Century Park East, 6th Floor, Century City, CA 90067,
(310) 284-3111, fax (310) 407-5499, e-mail: mail
5870 West Jefferson Boulevard, Suite A, Los Angeles, CA
90016, (310) 815-8855, fax (310) 815-8808, e-mail:
balot@onlinesecurity.com or michael@onlinesecurity.com.
Contact Charlie Balot or Michael Tashman. At
OnlineSecurity our mission is protecting digital assets worldwide through three interlocking service lines: IT forensics, consulting and investigations, and information security. Our IT
forensics practice includes computer and network forensics,
and forensic evidence harvesting. Our consulting and investigations practice includes discovery strategy and expert witness testimony. Information security provides computer security and compliance consulting services to our clients. See
investigations, and contract compliance issues as well as indepth hospitality and leisure industry advisory services. DA&I
compliance, and advise on claims processing. Service area is
RENEWDATA
9500 Arboretum Blvd., Suite L2-L120, Austin, TX 78759,
(512) 276-5500, fax (512) 276-5555, e-mail: info@renewdata
.com, web site: www.renewdata.com. Contact Alan
Brooks. RenewData® provides tailored and cost-effective
electronic evidence, forensic, and investigative services for
law firms and corporations enabled by patent-pending technology and extensive legal and technical expertise.
RenewData’s skilled forensic engineers acquire evidence
from virtually any environment, e-mail or file type, including
deleted, encrypted, and protected material, then provide
comprehensive analysis and reports based on targeted discovery plan objectives, as well as expert testimony attesting
to the findings and methodologies used.
SAFIRROSETTI
The premiere investigation consulting firm. 10990 Wilshire
Boulevard, Suite 1025, Los Angeles, CA 90024, (310) 8821111, ext. 15, e-mail: tcowley@safirrosetti.com. Web site:
www.safirrosetti.com. Contact Thomas Cowley.
SafirRosetti’s team of skilled professionals provides a broad
range of security, intelligence, and investigative consulting services throughout North America and worldwide. Our investigative unit specializes in corporate fraud, theft of trade
secrets, litigation support, and due diligence investigations.
Our technology group conducts computer forensic and
Internet investigations, and our financial group directs asset
tracing and forensic accounting inquiries. Our professional
investigative staff consists of former law enforcement personnel, attorneys, accountants, journalists, computer technicians,
and experienced research specialists.
SETEC INVESTIGATIONS
8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90048,
(800) 748-5440, fax (323) 939-5481, e-mail: info
@setecinvestigations.com. Web site: www.setecinvestigations
.com. Contact Todd Stefan. Setec Investigations offers
unparalleled expertise in computer forensics and electronic
discovery, providing personalized, case-specific forensic
analysis and litigation support services to assist in the investi-
gation, handling, and prosecution of computer-related crimes
or misuse. Setec Investigations possesses the necessary
combination of technical expertise, understanding of the legal
system, and specialized tools and processes enabling the discovery, collection, investigation, and production of electronic
information for investigating and handling computer-related
crimes or misuse. Service area: nationwide. See display ad
on page 1.
CONSTRUCTION INVESTIGATIONS
KENNETH J. FISCHBECK
511 Oak Street, Laguna Beach, CA 92651, (714) 609-7481,
fax (949) 715-6714, e-mail: kfischbeck@cox.net. Contact
Kenneth J. Fischbeck. A construction consultant/expert
witness for construction litigation specializing in critical path
scheduling analysis, construction standards, estimating, manpower, loading, construction techniques, construction industry customs and practices, disputes involving payment, quality
and scope of contract work between owners, contractors,
subcontractors and suppliers, job site safety, and multiemployer and dual-employer worksites. EDD and labor compliance. Service area: Los Angeles, Orange, Riverside, and
San Bernardino counties. See display ad on page 48.
FORENSISGROUP
3452 East Foothill Boulevard, Suite 1160, Pasadena, CA
91107, (800) 555-5422, (626) 795-5000, fax (626) 795-1950,
e-mail: experts@forensisgroup.com. Web site: www
.forensisgroup.com. Contact Mercy Steenwyk. Thousands
of our clients have gained the technical advantage and the
competitive edge in their cases from our resource group of
high-quality experts in construction, engineering, product liability, safety, environmental, mold, water intrusion, accident
reconstruction, automotive, failure analysis, fires, explosions,
slip and fall, real estate, economics, appraisal, employment,
computers, and other technical and scientific disciplines. We
provide you with a select group of high-quality experts as
expeditiously as possible. Unsurpassed recruitment standards. Excellent client service. See display ad on page 51.
Are you risking malpractice?
Protect your verdict!
You have an affirmative duty to make every legal effort to overturn an
adverse verdict as well as protect the favorable verdict.
Let me show you how—FREE!
MCLE approved presentation for your firm—call (949) 495-0089
today to schedule your free presentation
R. H. TOWNSEND & ASSOCIATES
Robert H. Townsend, Certified Legal Investigator
(949) 495-0089 • www.rhtownsend.com
(310) 284-3111, fax (310) 407-5499, e-mail: mail@investigation.com. Web site: www.investigation.com. Contact
Michael G. Kessler, president & CEO. Kessler
With more than thirty years of experience as expert witnesses
in testimony, pre-trial preparation, settlement negotiations,
consultations and court appointed special master.
PACIFIC CONSTRUCTION CONSULTANTS,
INC.
• Forensic Accounting • Marital Dissolutions
3083 Gold Canal Drive, Suite 100, Rancho Cordova, CA
95670, (800) 655-7224, (916) 638-4848, fax (916) 638-5124.
Contact Marketing Director. Since 1983, PCCI’s professionals have been helping attorneys and their clients resolve
construction disputes with such services as complex claims
analysis, contract/design review, convincing courtroom
graphics, document discovery, CPM scheduling evaluation,
database management, litigation support, arbitration services,
negotiation assistance, impact/delay analysis, change-order
evaluation, damage assessment, and expert testimony.
Please see ad on page 56.
• Business Valuation and Appraisal • Lost Profits
(877) 978-2044, fax (714) 978-2088, e-mail:
cjyaworski@rimkus.com. Web site: www.rimkus.com.
Contact Curt Yaworski. Rimkus Consulting Group is a fullservice forensic consulting firm. Since 1983, we have provided reliable investigations, reports, and expert witness testimony around the world. Our engineers and consultants analyze the facts from origin and cause through extent of loss.
Services: construction defect and dispute analysis, vehicle
accident reconstruction, fire cause and origin, property evaluation, mold evaluations, indoor air quality assessments, biomechanical analysis, product failure analysis, foundation
Zivetz, Schwartz & Saltsman CPA’s
Some of our specialties consist of:
• Economic Damages • Accounting Malpractice
• Employee Benefit Plans • Entertainment Entities
• Financial and Economic Analysis • Shareholder Disputes
• Wrongful Termination
Tel: (310) 826-1040
Lester J. Schwartz, CPA, DABFA, DABFE
Fax: (310) 826-1065
Michael D. Saltsman, CPA, MBA
E-mail: less@zss.com
David L. BASS, CPA
www.zsscpa.com
Dave Dichner, CPA, ABV, CVA
11900 W. Olympic Blvd.
Sandy Green, CPA
Suite 650
Los Angeles, CA 90064-1199
investigations, industrial accidents and explosions, water
intrusion analysis, geotechnical evaluations, construction accidents, construction disputes, financial analysis and assessments, forensic accounting, HVAC analysis, electrical failure
analysis, and video/graphics computer animation. See display ad on page 63.
SCHWARTZ/ROBERT & ASSOCIATES, INC.
risoakpark@aol.com. Web site: www.schwartzrobert.com.
Contact Robert I. Schwartz, AIA. Real property development procedures & practices, all building types, sizes &
phases. Professional evaluation of building design errors &
omissions, building code compliance & professional standards of practice. Forensic investigation of construction
order administration, quality assurance, and building performance. Evaluation of delay claims. Documentation of major
ULTIMO ORGANIZATION INC.
1411 East Borchard Avenue, Santa Ana, CA 92705, e-mail:
yolanda@geotecnical.com. Web site: www.geotechnical.com.
Contact Frank Ultimo. Home and site inspections, evaluations, and engineering cost analysis for repair. Forensic
reports and insurance claims. Soil stabilization slope repair,
compaction grouting, and underpinning. Service area is
worldwide. We are a full-service geotechnical construction
and engineering company. See display ad on page 66.
on pages 64 and 65.
forensic accounting, and qualification of damages. See display ad on page 61.
DIVERSIFIED RISK MANAGEMENT INC.
THREAT MANAGEMENT AND
PROTECTION, INC.
8132 Firestone Boulevard, Suite 862, Downey, CA 90241,
(800) 810-9508, e-mail: gramos@drminc.us. Web site: www
.diversifiedriskmanagement.com. Contact George Ramos.
Diversified Risk Management, Inc. is a nationwide investigation firm that assists employers and law firms in preventing,
identifying, and responding to risks through a comprehensive
suite of investigative and security services. DRM, Inc. specializes in solving complex business problems, increasing profits,
reducing risk and improving morale by investigating substance abuse, theft, fraud, sexual harassment, and various
other forms of misconduct and criminal activity. Learn more
about our firm by visiting; www.DRMinc.us, www
.EmployersChoiceOnline.com, www.ComplianceTrainingGroup
.com. Services area: nationwide, Canada and Mexico.
DOUGLAS BALDWIN & ASSOCIATES, INC.
P.O. Box 1249, La Canada-Flintridge, CA 91012, (800) 3923950, (818) 952-4433, fax (818) 790-4622, e-mail: dba
@pacbell.net. Web site: www.baldwinpi.com. Contact
Douglas Baldwin. Twenty-five years’ experience with product liability defense work, especially medical products of all
types and large scale construction or management defects.
Additional emphasis on business background and intellectual
property research, and generally defense law firm litigation
support. Full-field work operations including jury surveys, subrosa, and process serving. Solid clientele in areas of estate
law, genealogy, and white-collar fraud. The background of
employees emphasizes journalism and business research
professions with classic advanced education credentials.
Conservative and discreet. See display ad on page 58.
915 Wilshire Boulevard, Suite 1800, Los Angeles, CA 90017,
(213) 996-2549, fax (213) 996-2521, e-mail: matthew
-lankenau@urscorp.com. Expert witness for entitlement,
causation damages on design, construction, and geotechnical environmental disputes. Experienced in all types of construction projects. See display ad on page 54.
WWCOT ARCHITECTS
3130 Wilshire Boulevard, Floor 6, Santa Monica, CA 904032349, (310) 828-0040, fax (310) 828-7490, e-mail: deanv
@wwcot.com. Web site: www.wwcot.com. Contact Dean J.
Vlahos, AIA. Construction defect investigation and analysis/water intrusion analysis/mold-related building envelope
assessment/professional practice and standard of care/building code compliance/repair and reconstruction design/expert
testimony. Service area: California, Arizona, Washington,
Oregon, Utah, Hawaii, Nevada, and Alaska.
CORPORATE INVESTIGATIONS
AMERICAN INVESTIGATIVE BUREAU
161 Fashion Lane, Suite 200, Tustin, CA 92780-3304, (714)
832-9850 and (888) 855-4522, fax (714) 832-9967, e-mail
aibtustin@sbcglobal.net. Web site: www.aibtustin.com.
Contact Thomas R. Maslin, president. AIB is staffed with
experienced professionals who possess the accumulated
knowledge gained from years of work in both the public and
private sector. With proven resources around the globe and
unparalleled investigators here at home, AIB is your advantage whether your issue is domestic or multinational. Trust us
to provide you with comprehensive information when it is
needed most. Business intelligence—due diligence—background investigations. See display ad on page 59.
DCW & ASSOCIATES
92647, (714) 892-0442, (800) 899-0442, fax (714) 892-3543,
90057, (213) 381-1500, fax (213) 383-5890. Web site: www
.transwestonline.com. Contact Ed Beyer, CEO. Since 1982,
TranWest has exclusively serviced the legal community with
fast, reliable and confidential information for over 6,000 clients
nationwide. Our full staff of seasoned investigators accomplish the most daunting tasks with success. We understand
the needs of the legal community. Difficult service of process,
locates, asset investigation, and product counterfeiting
/infringement are just a few of our specialties. Ordering is
easy. Call, fax, or visit our Web site today. See display ad on
inside back cover.
WESTSIDE DETECTIVES INC.
URS
P.O. Box 5640, Huntington Beach, CA 92615, (888) 9268110, fax (888) 677-4407, e-mail: threat.management
@earthlink.net. Web site: www.threatprotect.com. Contact
R. J. Kirschner. Threat Management and Protection, Inc.
(TMAP) is the professional law firm’s partner for security and
investigative related challenges. From general and specialized
investigation and workplace violence prevention and response
to background investigation, executive protection and special
events to due diligence and matters of a discreet nature,
TMAP is your key to corporate security and investigative
needs. TMAP is licensed in CA-P121748, PPO14052, AZ0402006, NM-1960, UT-P101282, OR-2004133 and FLA2300252, B2300151, and practices in Colorado with strategic partners worldwide.
(602) 992-3600, fax (602) 992-5292, e-mail:
cost savings. Service area: National. See display ad on
page 57.
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
court cases and client recoveries. See display ad on
page 2.
KROLL, INC.
The world leader in investigations, business intelligence, forensic accounting, corporate advisory and restructuring, security,
and risk consulting. (213) 443-6090, fax (213) 443-6054.
Contact Henry Kupperman, Esq., e-mail: hkupperman
@krollworldwide.com. or Troy Dahlberg, CPA, e-mail:
tdhalberg@krollworldwide.com. With over 60 offices worldwide, Kroll is the leading provider of investigative and business
intelligence services to attorneys, corporations, and corporate
legal departments. Our staff of attorneys, accountants, financial analysts, former senior law enforcement officials, former
journalists, and skilled research analysts provides assistance
to law firms and corporations in a broad range of areas,
including due diligence, litigation intelligence, computer forensics, electronic discovery, intellectual property enforcement
and protection, valuation services, bankruptcy, restructuring,
(323) 936-2660, fax (323) 937-7714. Web site: www
.westsidedetectives.com. Contact Renee. Difficult process
service, corporate undercover investigations, intellectual property investigations, trademark infringement, fraud investigations, and handwriting analysis. Employee background
checks, employee interviews, polygraph, and workers’ compensation fraud investigations. AOE/COE, activity checks,
workplace violence, mystery shoppers. Service area: nationwide and international.
WOLF & HUNT
92660, (818) 981-4226, (310) 276-7831, (949) 219-9816, fax
CORPORATE SECURITY
THREAT MANAGEMENT AND PROTECTION,
INC.
P.O. Box 5640, Huntington Beach, CA 92615, (888) 9268110, fax (888) 677-4407, e-mail: threat.management
@earthlink.net. Web site: www.threatprotect.com. Contact
R. J. Kirschner. Threat Management and Protection, Inc.
(TMAP) is the professional law firm’s partner for security and
investigative related challenges. From general and specialized
White
Zuckerman
Warsavsky
Luna
Wolf
Hunt LLP
• Expert Witness Testimony
• Forensic Accounting & Economic Analysis
• Damage Analysis of Lost Profits and Earnings
in Commercial and Personal Litigation
• Business Valuation
• Fraud Investigation
• Marital Dissolution
• Accounting and Tax Planning/Preparation
• Client Service Oriented
• Excellent Communication Skills
Certified Public
Accountants
Call Barbara Luna, Drew Hunt, Bill Wolf, Paul White,
Jack Zuckerman or Fred Warsavsky
14455 Ventura Boulevard, Suite 300, Sherman Oaks, California 91423
Phone (818) 981-4226, Fax: (818) 981-4278
363 San Miguel Drive, Suite 130, Newport Beach, California, 92660
Phone (949) 219-9316, Fax (949) 219-9095
www.wzwlw.com • E-mail: expert@wzwlw.com
Free In-House MCLE Presentations & Initial Consultations
Matthew Lankenau
213-996-2549
matthew_lankenau@urscorp.com
URS is the nation’s largest engineering, consulting and construction
services firm. URS specializes in the resolution of construction disputes.
Dispute Resolution & Forensic Analysis
Design/Construction Claims
Environmental Claims
Bid/Cost/Damage Analysis
Construction Defect Analysis
Delay/Acceleration/Disruption Analysis
Expert Witness Testimony
Insurance/Bond Claims
Technical Expertise
Architecture
Engineering
Scheduling
Construction Management
Cost Estimating & Auditing
Environmental
Geotechnical
EXPERT WITNESS — Claims Consultant
EXPERIENCE
INTEGRITY
HONESTY
OVER 40 YEARS EXPERIENCE as a claims adjuster, licensed in three states and
qualified in state and federal courts. Expert in good faith/bad faith, standards
and practices and standard in the industry. Specialties in property/casualty
construction defect, fire/water, uninsured/underinsured motorist, warehouse
and cargo claims. Failure to defend and/or indemnify. Litigation support, case
review and evaluation claim consultation, coverage review and valuations.
Appraisal, Arbitration and Claims Rep. at MSC & MMC.
Contact Gene Evans at E. L. Evans Associates
Phone (310) 559-4005 / Fax (310) 390-9669 / E-mail elevans66@yahoo.com
3 3 1 0 A I R P O R T AVENUE, S U I T E 2 , S A N T A M O N I C A , C A L I F O R N I A 9 0 4 0 5
investigation and workplace violence prevention and response
to background investigation, executive protection and special
events to due diligence and matters of a discreet nature,
TMAP is your key to corporate security and investigative
needs. TMAP is licensed in CA-P121748, PPO14052, AZ0402006, NM-1960, UT-P101282, OR-2004133 and FLA2300252, B2300151, and practices in Colorado with strategic partners worldwide.
CORROSION
KARS ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland Drive,
Anaheim, CA 92801-2636, (714) 527-7100, fax (714) 5277169, e-mail: kars@karslab.com. Web site: www.karslab
.com. Contact Drs. Ramesh J. Kar or Naresh J. Kar.
Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional
engineers with 20-plus years in metallurgical/forensic/structural failure analysis. Experienced with automotive, bicycles,
tires, fire, paint, plumbing, corrosion, and structural failures.
We work on both plaintiff and defendant cases. Complete inhouse capabilities for tests. Extensive deposition and courtroom experience (civil and criminal investigations). Principals
are fellows of American Society for Metals and board-certified
diplomates, American Board of Forensic Examiners. See display ad on page 55.
DOMESTIC INVESTIGATIONS
WESTSIDE DETECTIVES INC.
(323) 936-2660, fax (323) 937-7714. Web site: www
.westsidedetectives.com. Contact Renee. Surveillance, child
custody, asset searches, polygraph, locate searches, locate
missing siblings, missing relatives, difficult process service,
activity checks, and spousal fidelity. High quality, prompt, and
professional. Service area: nationwide and international.
ECONOMIC DAMAGES
examiner, designated bankruptcy trustee.
Comprehensive search, examination, and analysis of records
to determine true revenues, profits, net worth, shareholders’
and mergers and acquisitions. More than 100 open-court testimonies: federal, state, civil, criminal. See display ad on
page 47.
ELECTRONIC EVIDENCE/DATA RECOVERY
(602) 992-3600, fax (602) 992-5292, e-mail:
cost savings. Service area: national. See display ad on
page 57.
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
business and intangible asset valuations, economic and mar54 Los Angeles Lawyer July-August 2005
ket studies, and related expert testimony. Fulcrum’s analysis
One Source.
Expert Witness Directory
investigations, and contract compliance issues, as well as indepth hospitality and leisure industry advisory services. DA&I
compliance, and advise on claims processing. See display
ad on page 62.
8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90048,
(800) 748-5440, fax (323) 939-5481, e-mail: info
analysis and litigation support services to assist in the investigation, handling, and prosecution of computer-related crimes
on page 1.
EMPLOYMENT INVESTIGATIONS
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272, (310)
454-2988, fax (310) 454-4516, e-mail: Haightcnsi@yahoo
.com. Contact Marcia Haight. Third-party independent fact
finder affiliated with licensed private investigator. Investigates
employee complaints of sexual harassment and other forms
of harassment and discrimination, retaliation, reasonable
accommodation, and family/disability leaves. Trains employer’s internal complaint investigators. Knowledgeable about
federal and California employment law; EEOC enforement
guidance; DFFH regulations; human resources policies, procedures, and practices; and effective investigation procedures. Author of the “The Sexual Harassment Investigator’s
kit.” Twenty-eight years of corporate human resource experience plus 12 years as a human resources compliance consultants. Services area: California.
PUBLIC INTEREST INVESTIGATIONS, INC.
90017, (213) 482-1780, fax (213) 482-1650, e-mail: pii@piila
.com. Web site: www.piila.com. Contact Keith Rohman,
president. Expert investigations of discrimination, sexual
harassment, employment law issues, workplace violence, jury
misconduct, criminal defense, and death penalty appeals.
Services include EEO investigation, witness interviews
(Spanish available), litigation support, service of process, and
investigative training. Serving law firms, corporations, and
governmental entities, including law enforcement. Several
lawyers, J.D.s, and licensed investigators on staff. Service
area is Southern California base, but will travel.
✒ Litigation support
✒ Expert witness
✒ Forensic accountants
✒ Family law matters
✒ Business valuations
✒ Loss of earnings
✒ Damages
When you need more than just
numbers... you can count on us...
Contact Michael Krycler
PHONE (818) 995-1040
FAX (818) 995-4124
E-MAIL INFO@KETW.COM
VISIT US @ www.KETW.COM
Over 200 qualified expert witnesses,
in one reliable source. Contact
Forensic Expert Witness Association
today for your FREE desktop copy:
949.640.9903
info@forensic.org
www.forensic.org
15303 VENTURA BOULEVARD, SUITE 1040
SHERMAN OAKS, CALIFORNIA 91403
Los Angeles • Orange County • Sacramento/Sierra • San Diego • San Francisco
THE BEST LEGAL MINDS
IN THE COUNTRY
TALK TO US
• Metallurgical Failures
• Corrosion & Welding Failures
• Glass & Ceramic Failures
• Chairs / Ladders / Tires
• Automobile/Aerospace/
Accidents
Contact:
• Bio-Medical/Orthopedic Implants
• Plumbing/Piping/ABS Failures
• Complete In-House Laboratory
Testing & Analysis Facilities
• Expert Witnesses/Jury Verdicts
• Licensed Professional Engineers
Dr. Naresh Kar, Fellow ASM, Fellow ACFE
Dr. Ramesh Kar, Fellow ASM, Fellow ACFE
ENGINEERING
FORENSISGROUP
3452 East Foothill Boulevard, Suite 1160, Pasadena, CA
91107, (800) 555-5422, (626) 795-5000, fax (626) 7951950, e-mail: experts@forensisgroup.com. Web site: www
.forensisgroup.com. Contact Mercy Steenwyk. Thousands
of our clients have gained the technical advantage and the
competitive edge in their cases from our resource group of
high-quality experts in construction, engineering, product liability, safety, environmental, mold, water intrusion, accident
reconstruction, automotive, failure analysis, fires, explosions,
slip and fall, real estate, economics, appraisal, employment,
computers, and other technical and scientific disciplines. We
ADVANCED MATERIALS, INC.
Testing & Research Labs
2528 W. Woodland Drive
Anaheim, CA 92801
■ TEL: (714)527-7100
■ FAX: (714)527-7169
■ www.karslab.com
■ email: kars@karslab.com
Construction Claims
When you’re handling a
construction dispute, you’ll be
glad to know who we are.
Pacific Construction
Consultants, Inc. will assist in
uncovering and analyzing facts
important to your case.
Our highly experienced staff
will provide support from the
first analysis to the last day in
court–investigating, making the
complex understandable, and
presenting evidence through
expert testimony and trial
support graphics.
Pacific Construction
Consultants, Inc. is responsive,
factual, and results-oriented.
For more information, call
1-800-655-PCCI.
PACIFIC CONSTRUCTION
CONSULTANTS, INC.
provide you with a select group of high-quality experts as
expeditiously as possible. Unsurpassed recruitment standards. Excellent client service. See display ad on page 51.
IMPACT GENERAL, INC.
1405 East Chapman Avenue, Orange, CA 92866, (714) 5321621, fax (714) 532-5734. Web site: www.impactgeneral
.com. Contact Bill King. Impact General, Inc. is a forensic
expert firm with over 500 experts working in all engineering
fields, science disciplines, and unique specialties. Our 29
years of experience ensure in-depth analysis with objective
evaluations. A comprehensive approach guarantees that
clients will receive consistency within our firm’s business precepts of timeliness, effective communications, and cost effectiveness.
ENGINEERING/GEOTECHNICAL
COTTON, SHIRES AND ASSOCIATES, INC.
330 Village Lane, Los Gatos, CA 95030-7218, (408) 3545542, (408) 354-1852, e-mail: pshires@cottonshires.com.
Web site: www.cottonshires.com. Contact Patrick O.
Shires. Full-service geotechnical engineering consulting firm
specializing in investigation, design, arbitration, and expert
witness testimony with offices in Los Gatos and San Andreas,
California. Earth movement (settlement, soil creep, landslides,
tunneling and expansive soil), foundation distress (movement
and cracking of structures) drainage and grading (seeping
slabs and ponding water in crawlspace), pavement and slabs
(cracking and separating), retaining walls (movement, cracking
and failures), pipelines, flooding and hydrology, design and
construction deficiencies, expert testimony at over 70 trials
(municipal, superior and federal); 100+ depositions; 200+ settlement conferences in southern and northern California and
Hawaii.
EXPERT REFERRAL SERVICE
FORENSIC EXPERT WITNESS
ASSOCIATION
AMFS
2402 Vista Nobleza, Newport Beach, CA 92660, (949) 6409903, fax (949) 640-9911, e-mail: info@forensic.org. Web
site: www.forensic.org. Contact Norma S. Fox, executive
director. Nonprofit professional association. Education
through monthly meetings, workshops, and annual conference. Referral service. Five chapters throughout California.
See display ad on page 55.
provides the most
experienced
EXPERT WITNESS
MEDICAL
EXPERTS
AMFS, INC. (AMERICAN MEDICAL FORENSIC
SPECIALIST)
Serving Attorneys Since 1990
for your case.
Tried and True Approach…
IDENTIFY: AMFS staff physicians provide free phone
consultations and collaborate to screen your case for
a reasonable flat fee.
SELECT:
AMFS staff physicians & attorneys provide Experts
matched specifically to your case from our pre-screened
panel of Board-Certified specialists, nationwide.
ANALYZE: AMFS Experts "call it as they see it" assuring "beyond
a doubt" objectivity... and cases are reviewed quickly!
TESTIFY:
AMFS Experts will testify in support of their unbiased
opinions.
"AMFS bridges law and medicine…
more than 7,500 specialists in more
than 80,000 cases since 1990 in
medical negligence, hospital and
managed care liability, personal
injur y, product liability, and toxic
tor ts for plaintiff and defendant"
NCE
EXPERIE ENCE
FER
IF
D
E
TH
Speak to one of our staff physicians with
just one phone call — at no charge to you.
1-800-275-8903
medicalexperts@amfs.com
www.amfs.com
www.medicalexperts.com
A Consulting Group Managed by Attorneys and Physicians
2640 Telegraph Avenue, Berkeley, CA 94704, (800) 2758903, (510) 549-1693, fax (510) 486-1255, e-mail:
medicalexperts@amfs.com, Web page: www.amfs.com.
Contact Barry Gustin, MD, MPH, FACEP. AMFS an attorney and physician-managed company that provides initial inhouse case screenings by 72 multidisciplinary physician partners. Medical experts are matched to meet case requirements by MFS Physician Partners from our panel of over
4,000 carefully prescreened board-certified practicing specialists in California. All recognized medical specialties. Plaintiff
and defense. Fast, thorough, objective, and cost-effective.
Medical negligence, personal injury, product liability, and toxic
torts. “A 92 percent win record” —California Lawyer magazine. See display ad on this page.
FAILURE ANALYSIS
FAMILY LAW
DCW & ASSOCIATES
92647, (714) 892-0442, (800) 899-0442, fax (714) 892-3543,
on pages 64 and 65.
91403, (818) 995-1040, fax (818) 995-4124. Web site: www
.info@ketw.com. Contact Michael J. Krycler. Litigation support, including forensic accounting, business appraisals, family law accounting, business and professional valuations,
damages, fraud investigations, and lost earnings. Krycler,
Ervin, Taubman and Walheim is a full-service accounting firm
serving the legal community for more than 20 years. See display ad on page 55.
WOLF & HUNT
92660, (818) 981-4226, (310) 276-7831, (949) 219-9816, fax
FINANCE
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
FINANCIAL
FIRE INVESTIGATIONS
DISTINGUISHED SERVICE NATIONWIDE SINCE 1987
Private Investigation ■ Advanced Research
Legal Discovery
Comprehensive resources and
information expertise covering the wide range of
your information needs
800.392.3950
www.baldwinpi.com
dba@pacbell.net
License PI 21217
FIRE CAUSE ANALYSIS
935 Pardee Street, Berkeley, CA 94710, (800) 726-5939, fax
(510) 649-3099, e-mail: ryanmccann@fcafire.com. Web site:
www.fcafire.com. Contact Ryan McCann. Fire and forensic
investigation; vehicle failure or fire investigation; forensic
research, engineering services onsite; courtroom graphics,
and expert witness services. Service area: United States, all
50 states. See display ad on page 60.
FIRE/EXPLOSION INVESTIGATIONS
FORENSIC ACCOUNTING
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
(310) 284-3111, fax (310) 407-5499, e-mail: mail
ConfidenceAtThe Courthouse.
Business litigation is increasingly complex. That is why we believe valuation
issues must be addressed with the same meticulous care
as legal issues. Analysis must be clear. Opinions must be
defensible. Expert testimony must be thorough and
articulate. HML has extensive trial experience and can
provide legal counsel with a powerful resource for expert
testimony and litigation support.
For More Information Call 213-617-7775
Or visit us on the web at www.hmlinc.com
BUSINESS VALUATION • LOSS OF GOODWILL • ECONOMIC DAMAGES • LOST PROFITS
KROLL, INC.
CONSULTANTS
90017, (213) 996-0900, fax (213) 996-0919, e-mail: bjones
@us.rgl.com. Contact Bob Jones. 625 City Drive South,
Suite 290, Orange, CA 92868, (714) 740-2100, fax (714) 7402020, e-mail: hkahrs@us.rgl.com. Contact Hank Kahrs.
Web site: www.rgl.com. With 25 offices worldwide, and over
30 years of experience, RGL–Forensic Accountants &
Consultants is one of the only accounting firms exclusively
AT AMERICAN INVESTIGATIVE BUREAU,
We provide the following
we are dedicated to timely, on budget,
services for our clients
accurate and thoroughly researched
including Fortune 500
information. Over the past 28 years, we
companies, the insurance
have developed a worldwide network of
and banking industries and
reliable contacts and resources that enable
legal professionals.
FRAUD INVESTIGATIONS
832-9850 and (888) 855-4522, (714) 832-9967, e-mail:
aibtustin@sbcglobal.net. Web site: www.aibtustin.com.
Contact Thomas R. Maslin, president. Today, more than
ever, our shrinking world has significantly increased the risk of
fraud to companies whose activities cross national borders.
Time, distance, and a lack of understanding of foreign laws
and restrictions can complicate examination of fraudulent
deeds. Our staff has the experience and established contacts
to undertake and resolve allegations of fraud-related irregularities. AIB’s professionals will document evidence, conduct
interviews, and cooperate with local officials to resolve your
problem quickly and discreetly. Insurance defense—general
fraud. See display ad on page 59.
us to step beyond routine reporting and
provide key facts to enhance your decision
making process.
■ Business Intelligence
■ Due Diligence
■ Background Investigations
Foreign and Domestic • Since 1977
■ Intellectual Property Rights
Violations
US HEADQUARTERS
■ Foreign Corrupt Practices Act
Violations
161 Fashion Lane, Suite 200, Tustin, CA 92780-3304
TEL
FAX
714-832-9850 and 888-855-4522
714-832-9967 E-MAIL aibtustin@sbcglobal.net
www.aibtustin.com
Thomas R. Maslin, President
CA State Investigators License No. 10900
VA Department of Criminal Justice No. 11-1223
■ Litigation Support
■ Financial Profiles
■ Missing Persons
■ Security Assessment
OFFICES /AFFILIATES Astana, Athens, Budapest, Buenos Aires, Dubai, Edinburgh, Geneva, Hong Kong,
WORLDWIDE Islamabad, Johannesburg, London, Ljubljana, Moscow, Paris, Tel Aviv, Warsaw and
DCW & ASSOCIATES
92647, (714) 892-0442, (800) 899-0442, fax (714) 892-3543,
on pages 64 and 65.
(602) 992-3600, fax (602) 992-5292, e-mail:
electronic data discovery issues and second requests. Providing eight critical services, FCS helps you develop an EDD
strategy, identity pitfalls and issues, avoid potential problems,
reduce costs and preserve admissibility in EDD processes. A
comprehensive approach to strategic discovery planning,
data acquisition, process implementation, data analysis, data
review, data production, reporting and process management
delivers a customized solution with significant cost savings.
Service area: National. See display ad on page 57.
90017, (213) 787-4100, fax (213) 787-4141, e-mail: dnolte
For more than 26 years, Smith & Carson has provided
support to America’s top companies and law firms with
investigative services, litigation support and corporate
intelligence. With solid experience across industries and
the savvy to examine information from every perspective,
Smith & Carson has produced a strong track record of
helping clients mitigate risk, win cases and protect
valuable assets.
investigations, and contract compliance issues as well as indepth hospitality and leisure industry advisory services. DA&I
compliance, and advise on claims processing. Service area:
Investigative
Research
Consulting
Consulting
Trial Services
Services
Case Mana
Management
Litigation
Litigation
Technology
Technology
For more info:
www.smithcarson.com
CONSULTANTS
or call Lori Olson at (818) 551-5900
90017, (213) 996-0900, fax (213) 996-0919, e-mail:
Atlanta, Dallas, Houston, Jackson, Kansas City, Los Angeles
New York, Orlando, Raleigh and Washington, DC
JACK TRIMARCO & ASSOCIATES
POLYGRAPH/INVESTIGATIONS, INC.
9454 Wilshire Blvd.
Sixth Floor
Beverly Hills, CA 90212
(310) 247-2637 TEL
(760) 777-7836 FAX
Jack Trimarco - President
Former Polygraph Unit Chief
Los Angeles F.B.I. (1990-1998)
CA. P.I. # 20970
Member Society of Former Special Agents
Federal Bureau of Investigation
email: jtrimarco@aol.com
www.jacktrimarco.com
Former Polygraph Inspection Team Leader
Office of Counter Intelligence
U.S. Department of Energy
8391 Beverly Boulevard, Suite 167, Los Angeles, CA
90048, (800) 748-5440, fax (323) 939-5481, e-mail: info
analysis and litigation support services to assist in the investigation, handling, and prosecution of computer-related crimes
on page 1.
consulting and compliance. Service area: throughout the
United States and internationally. See display ad on page 49.
WOLF & HUNT
92660, (818) 981-4226, (310) 276-7831, (949) 219-9816, fax
GENEALOGIST
SEARCH INTERNATIONAL, INC.
(800) 572-5522, fax (816) 960-1881, e-mail: sleuth@pobox
.com. Web site: www.searchint.com. Contact Michael
Heath, CEO. Search International has been finding missing
and unknown heirs and beneficiaries for trusts and estates for
over 22 years. Missing or unknown heirs are found at no cost
to the estate or trust! We have provided expert testimony in
hundreds of estate proceedings, and we provide all documents needed to confirm our findings. We have developed a
reputation as a company that solves the impossible case and
many times are called in after other search firms have been
unsuccessful. Service area is national and international. See
vide you with an accurate non-percentage based quote
based on the needs of you and your client. Our researchers
are not only top in their field when locating missing heirs/beneficiaries around the world but are also fully capable of providing all official reporting and documentation that may be
required for case completion, court, or testimonies, thus
allowing the law firms and banks to meet the legal and ethical
obligations to their end client with minimum interruption to
daily business matters. IGS is so confident in our team that
we offer a “results or no charge” for any standard fees
quoted. For information or a no-obligation quote, please contact us at (800) ONE-CALL (663-2255). Service area: local,
national and international.
SEARCH INTERNATIONAL, INC.
(800) 572-5522, fax (816) 960-1881, e-mail:
sleuth@pobox.com. Web site: www.searchint.com. Contact
Michael Heath, CEO. Search International has been finding
missing and unknown heirs and beneficiaries for trusts and
estates for over 22 years. Missing or unknown heirs are found
at no cost to the estate or trust! We have provided expert testimony in hundreds of estate proceedings, and we provide all
documents needed to confirm our findings. We have developed a reputation as a company that solves the impossible
case and many times are called in after other search firms
have been unsuccessful. Service area is national and international. See display ad on page 48.
HUMAN FACTORS
How do you describe the integrity,
expertise and knowledge of an
independent advisory firm
such as ours?
We don't. We demonstrate it.
Forensic Accounting &
Litigation Consulting
> Forensic & Investigative Accounting
> Damages Quantification &
Expert Testimony
> Litigation Consulting
> Restatement Investigations
> SEC & Corporate Governance Services
> Investigative & Security
Technology Consulting
HEIR SEARCH SERVICE
INTERNATIONAL GENEALOGICAL SEARCH
INC.
P.O. Box 34000, Seattle, WA 98124-1000, (800) 663-2255,
fax (800) 663-3299, e-mail: igs@heirsearch.com. Web site:
www.heirsearch.com. At International Genealogical Search
Inc. (IGS), we work with the legal and financial communities in
locating missing heirs/beneficiaries for trust and estate, probate, property, class actions, pensions, and other beneficiary
related matters nationally and internationally. We have been
finding missing heirs and beneficiaries since 1967 with an
extremely high success rate of 97%. With our seasoned
researchers and professional sales team we are able to pro-
www.krollworldwide.com
For more information, contact:
Troy Dahlberg • Phone: 213.443.1072
Chris Tregillis • Phone: 213.443.1091
INSURANCE INVESTIGATORS
E.L. EVANS ASSOCIATES
3310 Airport Avenue, Box # 2, Santa Monica, CA 90405,
(310) 559-4005, fax (310) 390-9669, e-mail: elevans66
@yahoo.com. Contact Gene Evans. Good faith/bad faith.
Over 45 years’ experienceclaims adjuster. Standards and
practices in the industry, litigation support, claims consultation, case review and evaluation, property/casualty claims,
construction claims, uninsured/underinsured motorist claims,
general liability, fire/water/mold claims, damage assessment,
professional liability claims, appraisal under policy, arbitration,
duty to defend, advertising claims, coverage applications, and
suspected fraud claims. CV available on request. See display
ad on page 54.
SHARP & ASSOCIATES
21730 Mackenzie Avenue, Yorba Linda, CA 92887, (714)
970-8370, e-mail: rsharp1959@aol.com. Web site: www
.sharpandassociates.org. Contact Robert J. Sharp. After
serving 32 years in the insurance industry, in multiple management positions, including vice president and CEO, I have
decided to offer my services as an expert witness for both
defendant and plaintiff. Give your client the advantage. I can
educate you on all aspects of an insurance company. Can
your current experts? Mr. Sharp has testified in numerous
cases in both state and federal court.
INTELLECTUAL PROPERTY
INVESTIGATIONS
(602) 992-3600, fax (602) 992-5292, e-mail:
page 57.
MARKSMEN
INTELLECTUAL PROPERTY/ACQUISITIONS
INVESTIGATIONS
P.O. Box 10038, Glendale, CA 91209, (800) 558-8838, fax
(888) 558-4558, e-mail: service@marksmen.com. Web site:
www.marksmen.com. Contact Jeremy Johnson.
Marksmen offers a full range of IP protection services. We
specialize in intellectual property investigations and help brand
owners, from start-ups to Fortune 500 companies and their
counsel, clear or protect their brands by identifying conflicts,
infringements, or priority. We are discreet, confidential, and
relentless in our pursuit of information vital to your business
decisions.
WOLF & HUNT
92660, (818) 981-4226, (310) 276-7831, (949) 219-9816, fax
832-9850 and (888) 855-4522, fax: (714) 832-9967, e-mail:
aibtustin@sbcglobal.net. Web site: www.aibtustin.com,
Contact Thomas R. Maslin, president. AIB provides a full
range of investigative services for circumstances involving allegations of theft of copyrighted, patented, or specialized technical or business information. Any type of acquisition raises
questions for management regarding the solvency, business
relationships, and character of the target organization. Our
seasoned investigators will provide the comprehensive
screening and due diligence information necessary to a welldesigned capture plan. See display ad on page 59.
1875 Century Park East, 6th Floor, Century City, CA
90067, (310) 284-3111, fax (310) 407-5499, e-mail: mail
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INTERNET CONTENT MONITORING
MARKSMEN
(888) 558-4558, e-mail: service@marksmen.com Web site:
Marksmen offers a full range of IP protection services. Our
eBeagle® service extends our investigative expertise by policing enterprise brands on the Internet, digging through text,
metatags, designs, and domain name registrations to help
root out possible tarnishment, blurring, or disparagement of
your online brand assets.
INVESTIGATIVE SERVICES
M.C.M. INVESTIGATIONS
24106 Lyons Avenue, Santa Clarita, CA 91321, (661) 2595434, e-mail: mcminv@earthlink.net. Web site: www
.mcminvestigation.com. Contact Mike McCormick. We are
a full-service investigative firm. We service all of Southern
California. We specialize in surveillance, domestic and fraud,
civil and criminal investigations, child custody, divorce matters, and asset searches. All investigators are retired police
officers.
SKIP-TRACKER.COM
P.O. Box 822, Dana Point, CA 92629, (888) 260-3624, fax
(949) 218-0952, e-mail: assign@skip-tracker.com. Web site:
www.skip-tracker.com. Contact Mike or John. Professional,
discreet, private investigative services offered to the legal
community for witness/defendant location, vehicle and judgment recovery. All cases treated with complete confidentiality
and in compliance with all state/federal consumer debt, bankruptcy, and privacy laws. Over 16 years of proven experience
and results. Please contact the professional law firm of Winn
and Sims in Fullerton for references. Will work on the flat-fee
or consignment to fit your needs. Service area: nationwide.
IP ACQUISITIONS & DOMAIN RECOVERY
MARKSMEN
(888) 558-4558, e-mail: service@marksmen.com. Web site:
Marksmen offers a full range of IP protection services. Our
expert acquisitions team negotiates the purchase of corporate
names, trademarks, patent licensing rights, Internet domain
names, and vanity toll-free numbers, keeping our client’s
identity a secret and costs down.
LITIGATION
examiner, designated bankruptcy trustee.
Comprehensive search, examination, and analysis of records
to determine true revenues, profits, net worth, shareholders’
and mergers and acquisitions. More than 100 open-court testimonies: federal, state, civil, criminal. See display ad on
page 47.
HIGGINS, MARCUS & LOVETT, INC.
90017, (213) 617-7775, fax (213) 617-8372, e-mail:
mhiggins@hmlinc.com. Web site: www.hmlinc.com. Contact
Mark C. Higgins, ASA, president. The firm has over 20
years of litigation support and expert testimony experience in
matters involving business valuation, economic damages,
intellectual property, loss of business goodwill, and lost profits. Areas of practice include business disputes, eminent
domain, bankruptcy, and corporate and marital dissolution.
See display ad on page 58.
CONSULTANTS
90017, (213) 996-0900, fax (213) 996-0919, e-mail:
SMITH & CARSON
LITIGATION/LEGAL INVESTIGATION
P.O. Box 1249, La Canada-Flintridge, CA 91012, (800) 3923950, (818) 952-4433, fax (818) 790-4622, e-mail: dba
@pacbell.net. Web site: www.baldwinpi.com. Contact
Douglas Baldwin. Twenty-five years’ experience with product liability defense work, especially medical products of all
types and large scale construction or management defects.
Additional emphasis on business background and intellectual
property research, and generally defense law firm litigation
support. Full-field work operations including jury surveys, subrosa, and process serving. Solid clientele in areas of estate
law, genealogy, and white-collar fraud. The background of
employees emphasizes journalism and business research
professions with classic advanced education credentials.
Conservative and discreet. See display ad on page 58.
KROLL, INC.
PUBLIC INTEREST INVESTIGATIONS, INC.
90017, (213) 482-1780, fax (213) 482-1650, e-mail:
pii@piila.com. Web site: www.piila.com. Contact Keith
Rohman, president. Expert investigations of discrimination,
sexual harassment, employment law issues, workplace violence, jury misconduct, criminal defense, and death penalty
appeals. Services include EEO investigation, witness interviews (Spanish available), litigation support, service of
process, and investigative training. Serving law firms, corporations, and governmental entities, including law enforcement.
Several lawyers, J.D.s, and licensed investigators on staff.
Service area is Southern California base, but will travel.
SAFIRROSETTI
500 North Brand Boulevard, Suite 200, Glendale, CA 912031923, (818) 551-5900, fax (818) 551-5919, e-mail: lolson
@smithcarson.com. Web site: www.smithcarson.com.
Contact Lori Olson. Founded more than 25 years ago,
Smith & Carson is of one of America’s largest, most experienced and most respected investigative services firms. A key
benefit the firm offers its clients is thorough knowledge of the
litigation process, which ensures efficient investigations and
accurate intelligence organized for use in discovery and at
trial. Smith & Carson taps the real-life experiences of former
attorneys, prosecutors, law enforcement and military personnel, engineers, chemists, insurance professionals and business experts to discover, analyze and prepare valuable intelligence. These seasoned professionals, along with a vigorous
quality control process, assure accuracy, timeliness and consistency of services and products. Smith & Carson also utilizes the latest in technology to enhance cost control, project
management and client communications. National and customized databases, online search tools and a proprietary
Web-based tracking system deliver up-to-the-minute information, real-time status reports and detailed case histories.
Offices also in Atlanta, Dallas, Houston, Jackson, MS, Kansas
City, New York, Orlando, Raleigh, NC, and Washington, DC.
Service area: nationwide and international. See display ad
on page 60.
90057, (213) 381-1500, fax (213) 383-5890. Web site:
process, locates, asset investigation, product counterfeiting/
infringement are just a few of our specialties. Ordering is easy.
Call, fax, or visit our Web site today. See display ad on
inside back cover.
MEDICAL
AMFS, INC. (AMERICAN MEDICAL FORENSIC
SPECIALIST)
2640 Telegraph Avenue, Berkeley, CA 94704, (800) 2758903, (510) 549-1693, fax (510) 486-1255, e-mail:
medicalexperts@amfs.com, Web page: www.amfs.com.
Contact Barry Gustin, MD, MPH, FACEP. AMFS an attorney and physician-managed company that provides initial inhouse case screenings by 72 multidisciplinary physician partners. Medical experts are matched to meet case requirements by MFS Physician Partners from our panel of over
4,000 carefully prescreened board-certified practicing specialists in California. All recognized medical specialties. Plaintiff
and defense. Fast, thorough, objective, and cost-effective.
Medical negligence, personal injury, product liability, and toxic
torts. “A 92 percent win record” —California Lawyer magazine. See display ad on page 56.
MERGERS & ACQUISITIONS
411 North Central Avenue, Suite 170, Phoenix, AZ
85004, (602) 992-3600, fax (602) 992-5292, e-mail:
page 57.
METALLURGY
MOLD/WATER DAMAGE INVESTIGATIONS
SPIEGEL PROPERTY DAMAGE CONSULTING
& FORENSICS
(800) 266-8988, fax (909) 591-7274, e-mail: brispi711@aol
.com. Web site: www.propertydamageinspections.com.
Contact Brian Spiegel/David Spiegel. Consultants and
expert witnesses (plaintiff and defense), mold contamination
structure and contents, mold remediation standards of care,
water damage/water intrusion detection/concrete moisture
testing, sewage backflows, and fire and smoke damage.
Troubleshooting/cause and origin. Infrared building inspections. Invasive and noninvasive testing. Industry standards for
construction and restoration. Insurance claims experts, determine if damage is related to claim, flooring forensics, construction defect, and detailed construction cost estimates.
Inspections, formal reports and litigation support. Lic. Gen.
Constractors B C15 C33 C61/D-52. Lic. Gen Contractor
#299472. Degrees/licenses: CRs, CIEs, CMRs, IICRC
Masters. See display ad on page 66.
PLASTIC AND COSMETIC
RECONSTRUCTIVE SURGERY
JEFFREY L. ROSENBERG MD
(213) 977-0257, fax (213) 977-0501. Contact Martha.
Plastic and reconstructive surgery, burn specialist. Diplomate,
American Board of Plastic Surgery. Member, American Burn
Association, and American Society of Plastic Surgeons.
POLYGRAPH/LIE DETECTION
/INVESTIGATION
JACK TRIMARCO & ASSOCIATES
POLYGRAPH
9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA 90212,
(310) 247-2637, fax (760) 777-1836, e-mail: jtrimarco
@aol.com. Contact Jack Trimarco. I have reviewed polygraph from many perspectives…as an inspector examiner, as
a trainer, and as program manager of the FBI’s Polygraph
Program in Los Angeles. I am the former Inspector General
for the Department of Energy Polygraph Program. This unique
background allows me to bring the highest levels of integrity,
service, and expertise to any polygraph situation. Service
area: national. See display ad on page 60.
PRIVATE INVESTIGATION
CA 92675, (800) 248-7721, fax (949) 248-0208,
searches, background investigation, DMV searches, domestic/marital cases, due diligence, process service, surveillance/photograph, witness location, and statements. Los
Angeles branch plus correspondents nationwide. Multilingual
agents. Fully insured.
PERSONAL INJURY
DCW & ASSOCIATES
92647, (714) 892-0442, (800) 899-0442, fax (714) 892-3543,
on pages 64 and 65.
WOLF & HUNT
92660, (818) 981-4226, (310) 276-7831, (949) 219-9816, fax
BOB TOMLIN INVESTIGATIONS
P.O. Box 3507, Lakewood, CA 90711, (714) 457-1332, (562)
420-2668, fax (562) 496-4471, e-mail: bobtomlin@verizon
.net. Contact Bob Tomlin. Workers’ compensation, personal injury and major fraud investigations. Domestic cases
and surveillance. Service area: Greater Los Angeles County,
Long Beach, and South Bay.
(310) 284-3111, fax (310) 407-5499, e-mail: mail
SPIEGEL
PROPERTY DAMAGE
CONSULTING & FORENSICS
✔ MOLD REMEDIATION
✔ WATER DAMAGE
✔ SEWAGE BACKFLOW
✔ FIRE & SMOKE DAMAGE
✔ FLOORING FORENSICS
✔ INDUSTRY STANDARDS OF CARE
INSURANCE CLAIMS EXPERTS
CONSTRUCTION
DAMAGE • DEFECTS
CONSTRUCTION COST ESTIMATES
INFRARED BLDG INSPECTIONS
BRIAN SPIEGEL, CR, CIE, CMR
DAVID SPIEGEL, CR, CIE, CMR
CERTIFIED RESTORERS
CERTIFIED INDOOR
ENVIRONMENTALISTS
CERTIFIED MOLD REMEDIATORS
IICRC CERTIFIED MASTERS
LIC. GEN. CONTRACTOR #299472
800-266-8988
FAX 909-591-7274
brispi711@aol.com
www.propertydamageinspections.com
CONSULTANTS/EXPERT WITNESS
IS YOUR
IS YOUR
HOMES
?
I NK I NG
SLOPE
CONSTRUCTION
DEFECT?
FA
I LIN G?
Our mission is to provide the most cost-effective
solutions to identify, document and develop the
best repair remedies for your foundation and slope
problems. At Ultimo Geotechnical Construction and
Engineering, we specialize in foundation soils stabilization, proprietary underpinning, and raising of sunken
structures. We have streamlined the process to quickly provide the bottom line, and back it up with our own
forces. We are authorized installers of Atlas and
Chance foundation underpinning.
INDUSTRY EXPERT REVIEW AND REPORTS:
Attorneys and homeowners will appreciate our inhouse capabilities to meet their needs. Our team can
provide the resources, expertise, and techniques to
identify causes and effects of a problem, and
implement remedies. We can provide site, structure,
and geotechnical investigations, industry expert
services, foundation floor level surveys, repair plans,
accurate documentation, estimates, emergency
stabilization, and environmental remediation.
Since 1937 • Three generations • The oldest
company doing this type of work in California!
ULTIMO ORGANIZATION INC.
Geotechnical Construction & Engineering
1411 East Borchard Ave., Santa Ana, CA 92705
Tel 714-560-8999 Fax 714-560-8998
www.geotechnical.com
The Foundation Specialist
CA State Lic. #338922
SAFIRROSETTI
PROCESS SERVICE
CA 92675, (800) 248-7721, fax (949) 248-0208,
PUBLIC DOCUMENT RETRIEVAL
DCW & ASSOCIATES
14530 Delano Street, Van Nuys, CA 91411, (818) 909-9607,
fax (818) 782-3012, e-mail: si@specialpi.com. Web site:
www.specialpi.com. Contact Richard Harer. Trial preparation, locates, statements, insurance, workers’ compensation,
surveillance, employment/labor, civil, criminal, asset searches,
background checks, and information services. In business
since 1982. Spanish and Korean-speaking investigators.
Service area: statewide California.
92647, (714) 892-0442, (800) 899-0442, fax (714) 892-3543,
Contact David Williams. Former federal agents. A full-service investigative agency with national and international contacts. Services include asset checks, surveillances, family law,
marital infidelity decoys, trial preparation, criminal/civil court
research, elder abuse, child custody/retrieval, employment
checks, due diligence, computer forensics, fraud investigations, competitor intelligence, trademark/patent infringement,
mystery shops/bar checks, and witness locates. Service area:
California, Asia, and Europe. See display ad on page 64
and 65.
T. T. WILLIAMS, JR. INVESTIGATIONS, INC.
RECEIVER, FEDERAL AND STATE COURT
SPECIALIZED INVESTIGATIONS
90071, (213) 489-6831, fax (213) 426-2151, e-mail: ttwjrpi
@aol.com. Web site: www.ttwilliamspi.com. Contact
Timothy T. Williams, Jr. Expert witness in criminal investigations and procedures. We specialize in conducting criminal,
civil, workers compensation, sub rosa/surveillance, background and discrimination investigations. T.T. Williams, Jr.
Investigations, Inc. has over 200 years of investigative experience from an array of fields. Retired L.A.P.D. as a senior
detective supervisor, from the elite Robbery-Homicide
Division. Over twenty-nine years of active law enforcement
experience, of which twenty-six years as a detective conducting and supervising a variety of investigations including but
not limited to homicide, robbery, domestic violence, child
abuse, assault, sexual assault, rape, burglary, auto theft, juvenile and narcotics investigation. Degrees/Licenses: Graduate
P.O.S.T. Supervisory Leadership Institute; Graduate West
Point Leadership Program; Basic, Intermediate, Advanced
and Supervisor P.O.S.T. Certificates; PI 23399; PPO 14771.
Service area: Los Angeles, San Bernardino, Ventura, Orange,
and Riverside counties.
90057, (213) 381-1500, fax (213) 383-5890. Web site:
process, locates, asset investigation, product counterfeiting/
infringement are just a few of our specialties. Ordering is easy,
call, fax or visit our online web site today. See display ad on
the inside back cover.
USARECORDSSEARCH.COM
P.O. Box 570109, Tarzana, CA 91357, (818) 745-1212, fax
(818) 745-1260, e-mail: info@usarecordssearch.com. Web
site: www.usarecordssearch.com. Contact David Le
Montre. USARecordsSearch.com provides services to locate
and or investigate anyone. We find people, run background
checks, search for criminal records, and locate assets
through our public record searches. Find a former employee,
business associate, witness, defendant, or debtor. Our comprehensive reports often include: subject’s name, alias
names, most current address, links to possible relatives, real
property ownership, corporate and limited partnership affiliations, bankruptcies, tax liens, judgments, UCC filings, and
other important details.
SALTZBURG, RAY & BERGMAN, LLP
90025, (310) 481-6700, fax (310) 481-6720. Contact David
L. Ray, Esq. Specializes in handling complex receivership
matters, such as partnership and corporate dissolutions,
including law firm dissolutions, and government enforcement
receivership actions, such as actions brought by the California
Department of Corporations, Department of Real Estate,
Commodities Future Trading Commission, and Federal Trade
Commission. Nationally recognized in both the lender and litigation communities as qualified to assist in complicated and
commercially sophisticated liquidations, reorganizations, and
ongoing business operations.
ROOFING AND WATERPROOFING
INVESTIGATION
SCHWARTZ/ROBERT & ASSOCIATES, INC.
risoakpark@aol.com. Web site: www.schwartzrobert.com.
Contact Robert I. Schwartz, AIA. Real Property
Development procedures & practices, all building types, sizes
& phases. Professional evaluation of building design errors &
omissions, Building Code compliance & professional
Standards of Practice. Forensic investigation of construction
order administration, quality assurance & building performance. Evaluation of delay claims. Documentation of major
SURVEILLANCE
CA 92675, (800) 248-7721, fax (949) 248-0208,
e-mail: zimmerpi@pacbell.net. Web site:
www.BenchmarkInvestigations.com. Contact Jim Zimmer,
CPI. National agency. Professional investigations with emphasis upon accuracy, detail, and expedience. Asset/financial
DCW & ASSOCIATES
92647, (714) 892-0442, (800) 899-0442, fax (714) 892-3543,
Contact David Williams. Former federal agents. A full-service investigative agency with national and international contacts. Services include asset checks, surveillances, family law,
marital infidelity decoys, trial preparation, criminal/civil court
research, elder abuse, child custody/retrieval, employment
checks, due diligence, computer forensics, fraud investigations, competitor intelligence, trademark/patent infringement,
mystery shops/bar checks, and witness locates. Service area:
California, Asia, and Europe. See display ads on pages 64
and 65.
TRAFFIC ENGINEER
WILLIAM KUNZMAN, PE
1111 Town and Country #34, Orange, CA 92868, (714) 9738383, toll free (877) 972-1220, fax (714) 973-8821, e-mail:
mail@traffic-engineer.com. Web site: www.traffic-engineer
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Knowledge of governmental agency procedures, design, geometrics, signs, traffic controls, maintenance, and pedestrian
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Computer Counselor
BY GORDON ENG
Encryption Technology for Keeping Computer Data Safe
LAW FIRMS HAVE GOOD REASONS to keep information secret, physical security of the computer is adequate, however, an examination
including the ethical duties imposed on lawyers to maintain client con- of encryption returns to the selection of software.
Encryption can be applied to the entire hard drive or to particufidences and a growing number of statutory duties. For example, the
Graham-Leach-Bliley Act of 1999 requires lawyers who are provid- lar files, folders, or partitions. Encryption of the entire hard drive adds
ing financial services to maintain customer security and privacy poli- a valuable layer of security. This is because whenever a user opens a
cies, and the Healthcare Portability and Accountability Act of 1996 file, copies of the file or information relating to it are often stored in
requires implementation of privacy and data security procedures.1 One miscellaneous temporary directories. If the entire hard drive is
way for individual attorneys to safeguard the information they main- encrypted, there will be no easy viewing of these temporary files. If
the computer is stolen, the data would remain secure. A weakness of
tain on their computers is with encryption technology.
Encryption involves taking information that is in readable form the whole disk method is that the disk must be decrypted for use, and
and converting it into a format that is not
readily understood. This conversion is
called encryption, and the conversion back
An encryption program may be a wise investment for many
to a readable format is called decryption.
Algorithms are used to scramble and
unscramble the data. Typically, a key of
attorneys who are concerned with the preservation of client
random characters of a predefined length—
for example 128 characters—is mixed several times (according to the algorithm)
confidentiality yet need ready access to data.
with the data in the original. The resulting
gibberish can be decrypted with a password
or key that instructs the algorithm to
reverse the process. The longer this key is, the more secure the once the disk is decrypted, all its data is too. Some vendors have impleencryption will be, and the longer it will take for a computer to encrypt mented a timer feature that causes encryption after a period of
and decrypt the data. When encryption works, encrypted informa- nonuse, and others have a type of on-the-fly encryption that only
tion that falls into the wrong hands is safe as long as the wrongdoer decrypts the data and programs that are in use. Another disadvantage of whole disk encryption is that it is time-consuming to encrypt
is not able to find the key or crack the encryption algorithm.
Today it is considered highly unlikely that encryption that uses a and decrypt an entire hard drive.
File or directory based encryption systems are an alternative. A
128-bit key could be decrypted within a period of time in which the
information would be of use. It is possible, however, to get very file can be encrypted for transportation on a portable medium and,
lucky and discover the proper key on the first few tries, just as it is assuming the user has the appropriate encryption software on whatpossible to win the lottery on the first try. Therefore, direct decryp- ever computer receives the data, the file can be reopened. Some
tion is possible, but encryption programs make it extremely unlikely applications mask the identity of the file itself, so a casual user will
not see the encrypted file on the computer. Some file-based encrypto be useful.
When the code is well protected, it may be easier to focus on the tion systems create a virtual drive on the computer that contains the
user. The weakest part of an encryption procedure may be the user’s encrypted files, making access and encryption and decryption easier.
security scheme. Users typically employ no more than three factors, With a file-based solution the user is exposed when files are opened
which may be remembered as: something you know, something you and decrypted, but the balance of the encrypted files remain secure
have, and something you are. The something you know can be a (although various temporary files may be available to those who know
phrase, word, or series of characters. The longer and more random how to look for them). A growing number of vendors provide encrypthe series of characters, the stronger the password. A weakness in this tion systems that can encrypt a whole disk and/or files. With a filemethod is that it is tempting to write down a complicated password based encryption system, different users of the same PC or server can
near the computer. Another problem is simply that a complicated pass- keep their files protected from one another. On a related note, one
word may be forgotten. The something you have may be a card or factor to consider in the implementation of an encryption system is
small device with an embedded pass code. A weakness of this method whether it will need administrative capabilities and passwords.
With these considerations in mind, here are a few examples of the
is that the user may lose the security card, or it may be damaged. The
something you are generally is equal to biometrics: fingerprints or retinas that can be read by a device attached to the computer. Weaknesses Gordon Eng is a sole practitioner in Torrance who occasionally writes on
in this method are the cost of scanners and the lack of accuracy of technology, real estate, and business law. He can be reached at gordoneng
many scanning devices that are currently available. Assuming that the @lawyer.com.
encryption software that is available.
• EFS. Built into Windows 2000 and XP is a
file-based encryption system called Electronic
File Security. This system cannot encrypt root
directory files and is limited to disks formatted as NTSF (as opposed to FAT 32 or other
formats). Another weakness is that the password is the same as the one used to access the
computer. On the other hand, this software
comes free with Windows 2000 and XP.
• PGP. This encryption software (www
.pgp.com), the letters of which stand for
“pretty good privacy,” is possibly the bestknown encryption program. PGP offers filebased solutions and is testing a whole disk
solution.
• BestCrypt. This product (www.jetico.com)
creates a virtual drive, called a container,
that contains all files to be encrypted. This
encryption is not limited to NTSF-formatted
hard drives. When creating the container
the user can select from a number of encryption algorithms and key lengths. In the
alternative, Cryptoexpert (found at www
.secureaction.com) and Truecrypt (http:
//truecrypt.sourceforge .net) are freeware programs that offer container-based solutions
with fewer features.
• PC Guardian. At another level are PC
Guardian (www.pcguardiantechnologies
.com), Securstar (www.securstar.com), and
Utimaco (www.utimaco.com). PC Guardian
is a company based in California, and
Securstar and Utimaco are based in Germany.
Each of these companies offers products that
include file, container, and whole disk encryption. Their whole disk solutions purport to
address one of the weaknesses of whole disk
encryption by encrypting on the fly, so that
only the portion of the file in use is exposed
and not the balance of the data on the hard
drive.
An encryption program may be a wise
investment for many attorneys who are concerned with the preservation of client confidentiality yet need to have ready access to
data. Recently, Choice Point, a data collection
and resale company, appeared in the news
after it notified more than 100,000 consumers
that their personal information may have
been compromised by a group posing as business purchasers of Choice Point’s data. This
disclosure was motivated in part by Choice
Point’s need to comply with Civil Code
Section 12345, which provides that companies must notify their customers if personal
data held by the company is subject to an
unauthorized release. A law firm could be the
subject of the next news item about the
perils of keeping information accessible but
private.
■
1
See also BUS. & PROF. CODE §6068(e); Orange County
Bar Association Op. 97-002.
Ted Burkow
Loan Consultant
Metrocities Mortgage
15301 Ventura Boulevard
Suite D300
Sherman Oaks, CA 91403
cell
office
fax
310-990-4821
818-817-4784
818-661-1607
tburkow@metrocitiesmtg.com
1st Homes / 2nd Homes / Condos / Investment Property / 1 to 4 Units
Pre-Approvals / Purchases / Refinances / Out of State Loans
Metrocities Mortgage, LLC, is a Delaware limited liability company licensed by the California Department of Corporations under CRMLA. Information is
subject to change without notice. This is not an offer for extension of credit or a commitment to lend.
Quo Jure Corporation
1-800-843-0660
www.quojure.com
jschenkel@quojure.com
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Index to Articles
SUBJECT INDEX
Arbitration: “Accountability
and Fraud in Arbitration
Proceedings,” by Michael R.
Brown, Closing Argument,
Dec ’04:52; “Compelling
Arbitrations and Confirming an Arbitration Award,”
by Wendy L. Wilcox and
Thomas H. Schelly, Barristers Tips, Nov ’04:10.
Bankruptcy Law: “Avoiding the
Bankruptcy Code’s Ratable
Distribution Scheme,” by
Daniel J. McCarthy, Practice
Tips, June ’04:17; “Debtors
in Pretension,” by
Magdalena Reyes Bordeaux,
Sept ’04:24; “Filing a Proof
of Claim in Bankruptcy,” by
Kim Tung, Barristers Tips,
Jul/Aug ’04:14; “The
Impact of Substantive
Consolidation in Bankruptcy,” by Joy E. Mason,
Practice Tips, Sept ’04:18.
Book Reviews: Clearance and
Copyright, reviewed by
Keith E. Cooper, By the
Book, May ’04:56; Matthew
Bender Practice Guide:
California Landlord-Tenant
Litigation, reviewed by
Gordon Eng, By the Book,
Jan ’05:46.
Business Law: “Making It
Personal,” by Allen B.
Grodsky and B. Alexander
Moghaddam, Dec ’04:24;
“Keeping the Faith,” by
Angelo L. Rosa, Feb ’05:22.
Civil Rights Law: “The Continuing Mission of Black Bar
Associations,” by Christopher E. Prince, Closing
Argument, Feb ’05:52;
“Speed Has Been Deliberate,” by Judge Terry J.
Hatter Jr., Closing Argument, Apr ’04:92.
Computers and the Practice of
Law: “Addressing Web
Browser Security,” by
Carole Levitt and Mark
Rosch, Computer Counselor, Jan ’05:47; “Considering the Utility of Digital
LOS ANGELES LAWYER
Pens,” by Gordon K. Eng,
Computer Counselor, Nov
’04:80; “Finding Facts on
the Internet on Nonlegal
Topics,” by Carole Levitt
and Mark Rosch, Computer
Counselor, Mar ’04:40;
“Free Online Legislative
Research,” by Carole Levitt,
Computer Counselor,
Jul/Aug ’04:71; “Is There a
Bluetooth in Your Future?”
by Gordon Eng, Computer
Counselor, Apr ’04:87;
“Keeping Up-to-Date with
Blogs,” by Carole Levitt,
Mark Rosch, and Jason
Brander, Computer Counselor, Dec ’04:47; “Law
Firm War Rooms,” by
Benjamin Sotelo and Greg
Brenner, Computer Counselor, Oct ’04:55; “New
Devices That Combine the
Cell Phone and PDA,” by
Gordon Eng, Computer
Counselor, June ’04:39;
“The Promise of Extranets
for Law Firms,” by
Benjamin Sotelo and Greg
Brenner, Computer Counselor, Feb ’05:48; “Remote
Computing Rules for Attorneys,” by Benjamin Sotelo
and James A. Flanagan,
Computer Counselor, May
’04:54; “Researching State
and Federal Regulations on
the Internet,” by Carole
Levitt, Computer Counselor,
Sept ’04:39.
Construction Law: “Delay of
Game,” by John D. Darling
(MCLE Test No. 133), Jan
’05:31; “Helping Public
Works Contractors Avoid
FCA Lawsuits,” by Thomas
F. Quilling, Barristers Tips,
Jan ’05:10; “Licensed to
Bill,” by Howard B. Brown
(MCLE Test No. 128),
Jul/Aug ’04:37.
Contract Law: “Keeping the
Faith,” by Angelo L. Rosa,
Feb ’05:22.
Copyright Law: “Fan Web Sites
and Copyright Enforce-
■
VOL. 27, NOS. 1-11
ment,” by Dennis L. Wilson
and Konrad Gatien, Practice
Tips, May ’04:15; “Proving
Willfulness in Copyright
Infringement Actions,” by
Frederick F. Mumm, Practice Tips, Nov ’04:18.
Criminal Law: “Blakely’s
Promise for Federal Sentencing Reform,” by Paul J.
Watford, Closing Argument,
Oct ’04:60; “The DoubleEdged Sword of Judicial
Sentencing Discretion,” by
Alex Ricciardulli, Closing
Argument, Sept ’04:44;
“Hanging Together,” by
Mark Mermelstein, Oct
’04:38; “New California
Identity Theft Legislation,”
by Chad C. Coombs and
Keenen Milner, Practice
Tips, Jul/Aug ’04:21;
“Second Acts,” by Phillip R.
Maltin and Michael D.
Schwartz (MCLE Test No.
127), June ’04:31.
Employment Law: “An Alternative to California’s Prohibition on Noncompete
Clauses,” by Marcus A.
McDaniel, Practice Tips,
Oct ’04:25; “Proof and
Pretext,” by Marcellus A.
McRae and Joanie L.
Roeschlein, Mar ’04:22;
“The Risks of Recruiting
At-Will Employees,” by
Jeffrey W. Kramer, Practice
Tips, Feb ’05:19.
Entertainment Law: Clearance
and Copyright, reviewed by
Keith E. Cooper, By the
Book, May ’04:56; “Code
Breaking,” by James D.
Nguyen (MCLE Test No.
126), May ’04:33; “Fan
Web Sites and Copyright
Enforcement,” by Dennis L.
Wilson and Konrad Gatien,
Practice Tips, May ’04:15;
“Independent Wealth,” by
Jeffrey S. Konvitz, May
’04:44; “Runaway Home,”
by Mark Litwak, May
’04:24; “A Tax Anomaly
That Penalizes Actors
■
MARCH 2004-FEBRUARY 2005
Working Abroad,” by
Barbara Rosenfeld, Tax
Tips, May ’04:20; “Where
Credit Is Due,” by Steven T.
Lowe and Abhay Khosla,
Dec ’04:40.
Errors and Omissions Prevention: “Practical Implications
of HIPAA,” by Alexander S.
Gareeb, Barristers Tips, Apr
’04:12; “Private Eyes,” by
John S. Caragozian (MCLE
Test No. 132), Dec ’04:31;
“Unauthorized Entry,” by
Fernando Gaytan and
Deborah A. Kelly, Nov
’04:22.
Ethics: “Behavior Modification,” by Judge Michael D.
Marcus (MCLE Test No.
129), Sept ’04:30; “Burning
Issues,” by David L. Brandon, Apr ’04:30; “Ethics
Opinion No. 510: Fee Sharing between Financial Planning Company and Lawyer
Employee Rendering Legal
Services to Customers,”
Ethics Opinion, Apr ’04:84;
“Ethics Opinion No. 511:
Sharing in Fees as Partner or
Employee of Two Law
Firms,” Ethics Opinion,
May ’04:51; “Ethics Opinion No. 512: Confidentiality
of Fact and Amount of
Settlement in Settlement
Agreement,” Ethics Opinion, Jul/Aug ’04:26; “First
Contact,” by Richard S.
Conn and Erin M. Donovan, Oct ’04:30; “The Of
Counsel Role and Its Implications for Law Firms,” by
Greg Suess and Richardson
R. Lynn, Practice Tips,
Jul/Aug ’04:15; “Private
Eyes,” by John S. Caragozian (MCLE Test No. 132),
Dec ’04:31; “Screened
Out,” by Ronald R. St. John
(MCLE Test No. 134), Feb
’05:29; “2003 Ethics
Roundup,” by John W.
Amberg and Jon L. Rewinski (MCLE Test No. 124),
Mar ’04:30.
Family Law: “Estate Planning
for California Domestic
Partners,” by Alexandra
Laboutin Bannon, Tax Tips,
Feb ’05:14; “Million-Dollar
Babies,” by Dennis M.
Wasser and Bruce E. Cooperman, Feb ’05:36.
Government Law: “Fair Hearing,” by Thomas J.
Casamassima (MCLE Test
No. 130), Oct ’04:47.
Healthcare Law: “Challenging
DHS Temporary Actions
against Suspected Fraud,”
by Lucien Schmit, Practice
Tips, Oct ’04:18; “Practical
Implications of HIPAA,” by
Alexander S. Gareeb, Barristers Tips, Apr ’04:12.
Insurance Law: “Burning
Issues,” by David L. Brandon, Apr ’04:30.
Intellectual Property Law:
“Code Breaking,” by James
D. Nguyen (MCLE Test No.
126), May ’04:33; “Protecting Trademarks under the
Madrid Protocol,” by Paul
D. Supnik, Practice Tips,
Apr ’04:26; “Secret
Weapon,” by Brent Caslin,
Apr ’04:44.
International Law: “Creditors’
Rights in Secured Transactions Enhanced in Mexico,”
by Frederick W. Hill, Practice Tips, Mar ’04:19;
“Enforcing U.S. Judgments
in Japan,” by Yasuhiro
Fujita, Practice Tips, Dec
’04:19; “Keeping the Faith,”
by Angelo L. Rosa, Feb
’05:22; “Reconstructing
Justice,” by Michael M.
Farhang, Jul/Aug ’04:44.
Legal Profession: “Behavior
Modification,” by Judge
Michael D. Marcus (MCLE
Test No. 129), Sept ’04:30;
“Civility? Yes, Civility,” by
Bruce M. Ramer, Closing
Argument, May ’04:60; “A
Firsthand View of the
Middle East,” by Jeffrey I.
Abrams, Closing Argument,
June ’04:44; “First
Contact,” by Richard S.
Conn and Erin M. Donovan, Oct ’04:30; “A Full
Year of Barristers Opportunities,” by Luci-Ellen Chun,
Barristers Tips, Sept ’04:10;
“How to Calculate an
Opening Offer,” by Steven
G. Mehta, Closing Argument, Mar ’04:44; “Judging
at the Games,” by Robert L.
Bastian Jr., Closing Argument, Nov ’04:84; “Making
Law Practice Improvements
Job Number One,” by John
J. Collins, President’s Page,
Jul/Aug ’04:10; “The Of
Counsel Role and Its Implications for Law Firms,” by
Greg Suess and Richardson
R. Lynn, Practice Tips,
Jul/Aug ’04:15; “Private
Eyes,” by John S. Caragozian (MCLE Test No. 132),
Dec ’04:31; “Unauthorized
Entry,” by Fernando Gaytan
and Deborah A. Kelly, Nov
’04:22; “What Lawyers Can
Contribute through Jury
Participation,” by Jack R.
Goetz, Closing Argument,
Jan ’05:52.
Litigation: “Appointing a
Discovery Referee in California State Court,” by
Richard Lee, Barristers Tips,
Dec ’04:10; “Bad Compromises,” by Judith Ilene
Bloom (MCLE Test No.
131), Nov ’04:29; “Drafting
Protective Orders for Confidentiality of Documents,”
by Michael H. Strub Jr.,
Practice Tips, Apr ’04:21;
“The Ebb and Flow of Class
Action Lawsuits,” by
Donald W. Ricketts, Practice Tips, June ’04:12; “The
English Rule in California
Courts,” by Noah B. Salamon, Practice Tips, Sept
’04:12; “The Extraordinary
Nature of Writ Relief,” by
Randee Barak, Barristers
Tips, May ’04:12; “Fixing
the Damage,” by Don
Willenburg, June ’04:22;
“How to Calculate an
Opening Offer,” by Steven
G. Mehta, Closing Argument, Mar ’04:44; “Making
It Personal,” by Allen B.
Grodsky and B. Alexander
Moghaddam, Dec ’04:24;
“Multiple Choice,” by Brian
Panish and Kevin Boyle
(MCLE Test No. 125), Apr
’04:37; “Navigating Choice
of Law Issues,” by Margaret
P. Stevens, Barristers Tips,
Mar ’04:10; “Second Acts,”
by Phillip R. Maltin and
Michael D. Schwartz
(MCLE Test No. 127), June
’04:31; “Secret Weapon,”
by Brent Caslin, Apr ’04:44;
“Using a Letter of Credit as
a Substitute for an Undertaking,” by Brian L.
Holman, Practice Tips, Oct
’04:12; “The Value of
Simplifying Case Presentation,” by Jennifer F. Novak,
Barristers Tips, Feb ’05:12.
Los Angeles County Bar Association: “A Full Year of
Barristers Opportunities,”
by Luci-Ellen Chun, Barristers Tips, Sept ’04:10;
“Making Law Practice
Improvements Job Number
One,” by John J. Collins,
President’s Page, Jul/Aug
’04:10.
Mediation: “Clarifying the
Confidentiality of Mediation Evidence,” by Joel M.
Grossman, Practice Tips,
Apr ’04:14; “Preparing for
Court-Ordered Mediation,”
by Edward M. Phelps,
Barristers Tips, Oct ’04:10;
“Resolving Disputes with
Tag Team Mediation,” by
Steven Cohen, Closing
Argument, Jul/Aug ’04:76.
Personal Finance: “Faith and
Credit,” by Robert F. Brennan, Nov ’04:36.
Pro Bono: “Going beyond
Traditional Pro Bono,” by
Rebecca A. Delfino, Barristers Tips, June ’04:10.
Real Estate Law: “The Challenges of Infill Housing,” by
Jonathan C. Curtis and
Mary C. Klima, Practice
Tips, Jan ’05:12; “Delay of
Game,” by John D. Darling
(MCLE Test No. 133), Jan
’05:31; “Federal Court
Limitations on Redevelopment Agencies,” by Bruce
Tepper, Practice Tips, Mar
’04:12; “A Line in the
Sand,” by Philip J. Hess, Jan
’05:24; Matthew Bender
Practice Guide: California
Landlord-Tenant Litigation,
reviewed by Gordon Eng,
By the Book, Jan ’05:46;
“New Water Requirements
for Large-Scale Developments,” by Bruce Tepper,
Practice Tips, Jan ’05:18;
“Setting Boundaries,” by
Mark L. Share, Jan ’05:40.
Tax Law: “A Tax Anomaly That
Penalizes Actors Working
Abroad,” by Barbara
Rosenfeld, Tax Tips, May
’04:20; “The 2005 California Tax Amnesty,” by
Dennis L. Perez and Chad
D. Nardiello, Tax Tips, Dec
’04:14; “The Use of Private
Annuities in Estate and Tax
Planning,” by F. Bentley
Mooney Jr., Tax Tips, Nov
’04:12.
Trade Secrets: “Secret
Weapon,” by Brent Caslin,
Apr ’04:44; “Taking an Old
Route,” by Michael A.
Geibelson, Jul/Aug ’04:30.
AUTHOR INDEX
Abrams, Jeffrey I., “A Firsthand
View of the Middle East,”
Closing Argument, June
’04:44.
Amberg, John W. (with Jon L.
Rewinski), “2003 Ethics
Roundup” (MCLE Test No.
124), Mar ’04:30.
Bannon, Alexandra Laboutin,
“Estate Planning for California Domestic Partners,”
Tax Tips, Feb ’05:14.
Barak, Randee, “The Extraordinary Nature of Writ Relief,”
Barristers Tips, May ’04:12.
Bastian, Robert L. Jr., “Judging
at the Games,” Closing
Argument, Nov ’04:84.
Bloom, Judith Ilene, “Bad
Compromises” (MCLE Test
No. 131), Nov ’04:29.
Bordeaux, Magdalena Reyes,
“Debtors in Pretension,”
Sept ’04:24.
Boyle, Kevin (with Brian
Panish), “Multiple Choice”
’04:37.
Brander, Jason (with Carole
Levitt and Mark Rosch),
Blogs,” Computer Counselor, Dec ’04:47.
Brandon, David L., “Burning
Issues,” Apr ’04:30.
Brennan, Robert F., “Faith and
Credit,” Nov ’04:36.
Brenner, Greg (with Benjamin
Sotelo), “Law Firm War
Rooms,” Computer Counselor, Oct ’04:55; (with
Benjamin Sotelo), “The
Promise of Extranets for
Law Firms,” Computer
Counselor, Feb ’05:48.
Brown, Howard B., “Licensed to
Bill” (MCLE Test No. 128),
Jul/Aug ’04:37.
Brown, Michael R., “Accountability and Fraud in Arbitration Proceedings,” Closing
Argument, Dec ’04:52.
Caragozian, John S., “Private
Eyes” (MCLE Test No.
132), Dec ’04:31.
Casamassima, Thomas J., “Fair
Hearing” (MCLE Test No.
130), Oct ’04:47.
Caslin, Brent, “Secret Weapon,”
Apr ’04:44.
Chun, Luci-Ellen, “A Full Year
of Barristers Opportunities,” Barristers Tips, Sept
’04:10.
Cohen, Steven, “Resolving
Disputes with Tag Team
Mediation,” Closing Argument, Jul/Aug ’04:76.
Collins, John J., “Making Law
Practice Improvements Job
Number One,” President’s
Page, Jul/Aug ’04:10.
Conn, Richard S. (with Erin M.
Donovan), “First Contact,”
Oct ’04:30.
Coombs, Chad C. (with Keenen
Milner), “New California
Practice Tips, Jul/Aug
’04:21.
Cooper, Keith E., Clearance and
Copyright, By the Book,
May ’04:56.
Cooperman, Bruce E. (with
Dennis M. Wasser),
“Million-Dollar Babies,”
Feb ’05:36.
Curtis, Jonathan C. (with Mary
C. Klima), “The Challenges
of Infill Housing,” Practice
Tips, Jan ’05:12.
Darling, John D., “Delay of
Game” (MCLE Test No.
133), Jan ’05:31.
Delfino, Rebecca A., “Going
beyond Traditional Pro
Bono,” Barristers Tips, June
’04:10.
Donovan, Erin M. (with Richard
S. Conn), “First Contact,”
Oct ’04:30.
Eng, Gordon K., “Considering
the Utility of Digital Pens,”
Computer Counselor, Nov
’04:80; “Is There a Bluetooth in Your Future?”
Computer Counselor, Apr
’04:87; Matthew Bender
Practice Guide: California
Landlord-Tenant Litigation,
By the Book, Jan ’05:46;
“New Devices That
Combine the Cell Phone
and PDA,” Computer
Counselor, June ’04:39.
Farhang, Michael M., “Reconstructing Justice,” Jul/Aug
’04:44.
Flanagan, James A. (with
Benjamin Sotelo), “Remote
Computing Rules for Attorneys,” Computer Counselor,
May ’04:54.
Fujita, Yasuhiro, “Enforcing
U.S. Judgments in Japan,”
Practice Tips, Dec ’04:19.
Gareeb, Alexander S., “Practical
Implications of HIPAA,”
Barristers Tips, Apr ’04:12.
Gatien, Konrad (with Dennis L.
Wilson), “Fan Web Sites
and Copyright Enforcement,” Practice Tips, May
’04:15.
Gaytan, Fernando (with Deborah A. Kelly), “Unauthorized Entry,” Nov ’04:22.
Geibelson, Michael A., “Taking
an Old Route,” Jul/Aug
’04:30.
Goetz, Jack R., “What Lawyers
Can Contribute through
Jury Participation,” Closing
Argument, Jan ’05:52.
Grodsky, Allen B. (with B.
Alexander Moghaddam),
“Making It Personal,” Dec
’04:24.
Grossman, Joel M., “Clarifying
the Confidentiality of Mediation Evidence,” Practice
Tips, Apr ’04:14.
Hatter, Judge Terry J. Jr., “Speed
Has Been Deliberate,” Closing Argument, Apr ’04:92.
Hess, Philip J., “A Line in the
Sand,” Jan ’05:24.
Hill, Frederick W., “Creditors’
Rights in Secured Transactions Enhanced in Mexico,”
Practice Tips, Mar ’04:19.
Holman, Brian L., “Using a
Letter of Credit as a Substitute for an Undertaking,”
Practice Tips, Oct ’04:12.
Kelly, Deborah A. (with
Fernando Gaytan), “Unauthorized Entry,” Nov
’04:22.
Khosla, Abhay (with Steven T.
Lowe), “Where Credit Is
Due,” Dec ’04:40.
Klima, Mary C. (with Jonathan
C. Curtis), “The Challenges
of Infill Housing,” Practice
Tips, Jan ’05:12.
Konvitz, Jeffrey S., “Independent Wealth,” May ’04:44.
Kramer, Jeffrey W., “The Risks
of Recruiting At-Will
Employees,” Practice Tips,
Feb ’05:19.
Lee, Richard, “Appointing a
Discovery Referee in California State Court,” Barristers Tips, Dec ’04:10.
Levitt, Carole (with Mark
Rosch), “Addressing Web
Browser Security,”
Computer Counselor, Jan
’05:47; (with Mark Rosch),
“Finding Facts on the Internet on Nonlegal Topics,”
Computer Counselor, Mar
’04:40; “Free Online
Legislative Research,”
Computer Counselor,
Jul/Aug ’04:71; (with Mark
Rosch and Jason Brander),
Blogs,” Computer Counselor, Dec ’04:47;
“Researching State and
Federal Regulations on the
Internet,” Computer Counselor, Sept ’04:39.
Litwak, Mark, “Runaway
Home,” May ’04:24.
Lowe, Steven T. (with Abhay
Khosla), “Where Credit Is
Due,” Dec ’04:40.
Lynn, Richardson R. (with Greg
Suess), “The Of Counsel
Role and Its Implications
for Law Firms,” Practice
Tips, Jul/Aug ’04:15.
McRae, Marcellus A. (with
Joanie L. Roeschlein),
“Proof and Pretext,” Mar
’04:22.
McCarthy, Daniel J., “Avoiding
the Bankruptcy Code’s
Ratable Distribution
Scheme,” Practice Tips, June
’04:17.
McDaniel, Marcus A., “An
Alternative to California’s
Prohibition on Noncompete
Clauses,” Practice Tips, Oct
’04:25.
Maltin, Phillip R. (with Michael
D. Schwartz), “Second
Acts” (MCLE Test No.
127), June ’04:31.
Marcus, Judge Michael D.,
“Behavior Modification”
(MCLE Test No. 129), Sept
’04:30.
Mason, Joy E., “The Impact of
Substantive Consolidation
in Bankruptcy,” Practice
Tips, Sept ’04:18.
Mehta, Steven G., “How to
Calculate an Opening
Offer,” Closing Argument,
Mar ’04:44.
Mermelstein, Mark, “Hanging
Together,” Oct ’04:38.
Milner, Keenen (with Chad C.
Coombs), “New California
Practice Tips, Jul/Aug
’04:21.
Moghaddam, B. Alexander
(with Allen B. Grodsky),
“Making It Personal,” Dec
’04:24.
Mooney, F. Bentley Jr., “The Use
of Private Annuities in
Estate and Tax Planning,”
Tax Tips, Nov ’04:12.
Mumm, Frederick F., “Proving
Willfulness in Copyright
Infringement Actions,”
Practice Tips, Nov ’04:18.
Nardiello, Chad D. (with Dennis
L. Perez), “The 2005 California Tax Amnesty,” Tax
Tips, Dec ’04:14.
Nguyen, James D., “Code
Breaking” (MCLE Test No.
126), May ’04:33.
Novak, Jennifer F., “The Value
of Simplifying Case Presentation,” Barristers Tips, Feb
’05:12.
Panish, Brian (with Kevin
Boyle), “Multiple Choice”
’04:37.
Perez, Dennis L. (with Chad D.
Nardiello), “The 2005 California Tax Amnesty,” Tax
Tips, Dec ’04:14.
Phelps, Edward M., “Preparing
for Court-Ordered Mediation,” Barristers Tips, Oct
’04:10.
Prince, Christopher E., “The
Continuing Mission of
Black Bar Associations,”
Closing Argument, Feb
’05:52.
Quilling, Thomas F., “Helping
Public Works Contractors
Avoid FCA Lawsuits,”
Barristers Tips, Jan ’05:10.
Ramer, Bruce M., “Civility? Yes,
Civility,” Closing Argument,
May ’04:60.
Rewinski, Jon L. (with John W.
Amberg), “2003 Ethics
Roundup” (MCLE Test No.
124), Mar ’04:30.
Ricciardulli, Alex, “The DoubleEdged Sword of Judicial
Sentencing Discretion,”
Closing Argument, Sept
’04:44.
Ricketts, Donald W., “The Ebb
and Flow of Class Action
Lawsuits,” Practice Tips,
June ’04:12.
Roeschlein, Joanie L. (with
Marcellus A. McRae),
“Proof and Pretext,” Mar
’04:22.
Rosa, Angelo L., “Keeping the
Faith,” Feb ’05:22.
Rosch, Mark (with Carole
Levitt), “Addressing Web
Browser Security,”
Computer Counselor, Jan
’05:47; (with Carole Levitt),
“Finding Facts on the Internet on Nonlegal Topics,”
Computer Counselor, Mar
’04:40; (with Carole Levitt
and Jason Brander), “Keep-
ing Up-to-Date with Blogs,”
Computer Counselor, Dec
’04:47.
Rosenfeld, Barbara, “A Tax
Anomaly That Penalizes
Actors Working Abroad,”
Tax Tips, May ’04:20.
Salamon, Noah B., “The English
Rule in California Courts,”
Practice Tips, Sept ’04:12.
Schelly, Thomas H. (with
Wendy L. Wilcox ),
“Compelling Arbitrations
and Confirming an Arbitration Award,” Barristers
Tips, Nov ’04:10.
Schmit, Lucien, “Challenging
DHS Temporary Actions
against Suspected Fraud,”
Practice Tips, Oct ’04:18.
Schwartz, Michael D. (with
Phillip R. Maltin), “Second
Acts” (MCLE Test No.
127), June ’04:31.
Share, Mark L., “Setting Boundaries,” Jan ’05:40.
Sotelo, Benjamin (with Greg
Brenner), “Law Firm War
Rooms,” Computer Counselor, Oct ’04:55; (with
James A. Flanagan),
“Remote Computing Rules
for Attorneys,” Computer
Counselor, May ’04:54;
(with Greg Brenner), “The
Promise of Extranets for
Law Firms,” Computer
Counselor, Feb ’05:48.
St. John, Ronald R., “Screened
Out” (MCLE Test No.
134), Feb ’05:29.
Stevens, Margaret P., “Navigating Choice of Law Issues,”
Barristers Tips, Mar ’04:10.
Strub, Michael H. Jr., “Drafting
Protective Orders for Confidentiality of Documents,”
Practice Tips, Apr ’04:21.
Suess, Greg (with Richardson
R. Lynn), “The Of Counsel
Role and Its Implications
for Law Firms,” Practice
Tips, Jul/Aug ’04:15.
Supnik, Paul D., “Protecting
Trademarks under the
Madrid Protocol,” Practice
Tips, Apr ’04:26.
Tepper, Bruce, “Federal Court
Limitations on Redevelopment Agencies,” Practice
Tips, Mar ’04:12; “New
Water Requirements for
Large-Scale Developments,”
Practice Tips, Jan ’05:18.
Tung, Kim, “Filing a Proof of
Claim in Bankruptcy,”
Barristers Tips, Jul/Aug
’04:14.
Wasser, Dennis M. (with Bruce
E. Cooperman), “MillionDollar Babies,” Feb ’05:36.
Watford, Paul J., “Blakely’s
Promise for Federal Sentencing Reform,” Closing Argument, Oct ’04:60.
Wilcox, Wendy L. (with Thomas
H. Schelly), “Compelling
Arbitrations and Confirming an Arbitration Award,”
Barristers Tips, Nov ’04:10.
Willenburg, Don, “Fixing the
Damage,” June ’04:22.
Wilson, Dennis L. (with Konrad
Gatien), “Fan Web Sites and
Copyright Enforcement,”
Practice Tips, May ’04:15.
C L I N I C A PA R A L O S L AT I N O S • S E R V I N G T H E L AT I N C O M M U N I T Y
NORIEGA CHIROPRACTIC CLINICS, INC.
Congratulations from Dr. J. Noriega to today’s new admittees.
We at NORIEGA CHIROPRACTIC CLINICS, INC., would like to commend you
for having passed the most difficult bar exam in the United States.
Personal Injury and Worker’s Comp cases accepted on lien basis.
*MONTEBELLO HEALTH
SERVICES
901 W. Whittier Blvd.
Montebello, CA 90640
(323) 728-8268
CRENSHAW HEALTH
CENTER
4243 S. Crenshaw Blvd.
(323) 291-5733
EL MONTE HEALTH
CENTER
2163 Durfee Rd.
El Monte, CA 91733
(626) 401-1515
FONTANA HEALTH SERVICES
9880 Sierra Ave., Suite E
Fontana, CA 92335
(Sierra Plaza, Entrance
on Marygold)
(909) 829-6300
HIGHLAND PARK
HEALTH CENTER
5421 N. Figueroa St.
(Highland Park Plaza)
Highland Park, CA 90042
(323) 478-9771
SAN FERNANDO HEALTH
CENTER
500 S. Brand Blvd.
San Fernando, CA 91340
(818) 838-1158
ONTARIO HEALTH
SERVICES
602 N. Euclid. Ave., Suite B
Ontario, CA 91764
(909) 395-5598
HUNTINGTON PARK
HEALTH CENTER
3033 E. Florence Ave.
Huntington Park, CA 90255
(323) 582-8401
POMONA HEALTH
CENTER
1180 N. White Ave.
Pomona, CA 91768
(909) 623-0649
SO. CENTRAL
HEALTH CENTER
4721 S. Broadway
(323) 234-3100
VICTORY HEALTH
CENTER
6420 Van Nuys Blvd.
Van Nuys, CA 91401
(818) 988-8480
WHITTIER
HEALTH SERVICES
13019 Bailey Ave. Suite F
Whittier CA 90601
(562) 698-2411
1-800-624-2866
TRUST DEED FORECLOSURES
“Industry Specialists For Over 18 Years”
Classifieds
t Witkin & Eisinger we specialize in the Non-Judicial
Foreclosure of obligations secured by real property
or real and personal property (mixed collateral).
When your client needs a foreclosure done professionally and at the lowest possible cost, please call us at:
A
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Attorney Wanted
We have always offered free advice to all attorneys.
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RICHARD G. WITKIN, ESQ. ◆ CAROLE EISINGER
EXPERIENCED PSYCHOTHERAPIST
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•
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310.550.7818
ELAINE VERCHICK, MA, MFT
CALL
(Lic.# MFC 33928)
ASSOCIATE ATTORNEY to handle family, juvenile,
deportation/criminal defense. Salary based on
experience. Send resume to Hoffman & Herrera,
LLP, 3350 Wilshire Blvd, #855, Los Angeles, CA
90010. E-mail: hh855@aol.com.
ASSOCIATE ATTORNEY FOR PALM SPRINGS LAW
FIRM. Busy business/civil/real estate and probate
litigation practitioners seeking self starter to
assist in growth of practice. At least three (3) years
of experience with law and motion, discovery,
drafting of pleadings, good writing skills. Terms
negotiable. Send CV to Jaymes & Ward by fax
(760) 836-0303.
FALSE CLAIMS ACT/WHITE COLLAR CRIME LITIGATION ASSOCIATE. The Cincinnati, Ohio, office of
Vorys, Sater, Seymour and Pease LLP, a 365-attorney law firm, is seeking a mid- or senior-level litigation associate with significant experience in
False Claims Act/qui tam litigation, as well as
other complex civil and criminal proceedings.
Deposition and trial experience is preferred. Candidates should posses excellent academic credentials and strong research, writing, and communication skills. This position is partnership track and
provides an excellent compensation package.
Respond in confidence to: Bobbi J. Shoemaker,
Recruiting Coordinator. Vorys, Sater, Seymour and
Pease LLP, 52 E. Gay Street, Columbus, OH 43215,
(614) 464-6285, (614) 464-6350. E-mail: bjshoemaker
@vssp.com.
Consultants and Experts
DIRECTORY OF EXPERTS & CONSULTANTS COMING
SOON! Watch your mail for the 2005 edition of the
Los Angeles County Bar Association’s Southern
California Directory of Experts & Consultants—FREE
to LACBA members. This comprehensive directory
contains more than 2,000 expert witness and consultants listings in nearly 500 categories of expertise—plus litigation service providers, trial support
services, dispute resolution professionals, the
Lawyer-to-Lawyer Consultants Network, and more.
Not a member of the Los Angeles County Bar Association? Log on to www.lacba.org and join today.
NEED AN EXPERT WITNESS, legal consultant, arbitrator, mediator, private judge, attorney who outsources, investigator, or evidence specialist? Make
your job easier by visiting www.expert4law.org.
Sponsored by the Los Angeles County Bar Associa-
tion, expert4law—the Legal Marketplace is a comprehensive online service for you to find exactly
the experts you need.
Court Records
CIVIL/CRIMINAL COURT RECORDS. We retrieve
and review court records. We also retrieve and
review grantee/grantor, liens and judgments,
birth/death and marriage records from the
recorders’ offices. We cover any court or recorders
office anyplace in California. We are former federal
agents. DCW & Associates (800) 899-0442. Web
site: www.dcwpi.com.
Investigations
CIVIL/CRIMINAL INVESTIGATIONS. We conduct all
types of investigations. We conduct background
checks, surveillances, marital infidelity decoys,
family law, child custody/retrieval, due diligence,
elder abuse, locates, mystery shops/bar checks,
civil and criminal investigations. We are former federal agents. DCW & Associates (800) 899-0442.
Web site: www.dcwpi.com.
Office Space
OFFICE SPACE AVAILABLE for lease in an existing
law office in Tarzana Financial Plaza. Office, desk,
and use of our conference room, or just mailing
address and use of our conference room for you
to meet clients and receive your mail. Larry P.
Adamsky, Esq. (818) 567-0122, fax (818) 974-5232.
E-mail: law@larryadamskyesq.com.
SOUTHERN CALIFORNIA. FREE. Executive Suite
Offices Guide. Eighty-page booklet lists over 150
buildings in Los Angeles, Orange, San Diego Counties and the Inland Empire that offer executive
suites. Guide includes office prices, amenities
offered, photos, maps, and contacts. Mailed the
same day ordered. Call 24 hours: (800) 722-5622.
Paralegal Wanted
INTERNATIONANL LEGAL ADVISOR. Research international and U.S. laws, treaties, conventions and
regulations. Liaison with French, German, European, and Asian companies. Master of laws or
equivalent required. Send ad with resume to:
Emling Forensis PC, 100 E. Oceangate #1200, Long
Beach, CA 90802.
Index to Advertisers
American Investigative Bureau, p. 59
Tel. 714-832-9850 e-mail: aibtustin@sbcglobal.net
Steven L. Gleitman, Esq., p. 4
Tel. 310-553-5080
Rimkus Consulting Group, Inc., p. 63
Tel. 877-978-2044 www.rimkus.com
AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 56
Tel. 800-275-8903 www.amfs.com
Higgins, Marcus & Lovett, Inc., p. 58
Tel. 213-617-7775 www.hmlinc.com
Robert H. Townsend & Associates, p. 51
Tel. 949-495-0089 www.rhtownsend.com
Aon Direct Administrators/LACBA Professional Liability, p. 5
Tel. 800-634-9177 www.attorneys-advantage.com
Jack Trimarco & Associates Polygraph, Inc., p. 60
Tel. 310-247-2637 www.jacktrimarco.com
Ronsin Legal, p. 6
Tel. 323-526-7300 www.ronsinlegal.com
Ballenger, Cleveland & Issa LLC, p. 47
Tel. 310-873-1717
KARS Advanced Materials, Inc., p. 55
Tel. 714- 892-8987 www.karslab.com
St. Thomas More Society, p. 44
Tel. 310-316-0817 e-mail: laredmass05@yahoo.com
Gunther R. Bauer, MD, Attorney at Law, p. 23
Tel. 562-437-0403 www.bauermdmedmallaw.com
Joan Kessler, p. 17
Tel. 310-552-9800 e-mail: jkessler@kesslerfrandkessler.com
Sanli Pastore & Hill, Inc., p. 48
Tel. 310-571-3400 www.sphvalue.com
Beverly Hills BMW, p. 6
Tel. 310-358-7827 www.bmwofbeverlyhills.com
Jeffrey Kichaven, p. 4
Tel. 310-996-8465 www.jeffkichaven.com
Search International, LLC, p. 48
Tel. 800-572-5522 www.searchint.com
Law Office of Donald P. Brigham, p. 4
Tel. 949-206-1661 e-mail: dbrigham@earthlink.net
Kroll, p. 61
Tel. 213-443-6090 www.krollworldwide.com
Setec Investigations, p. 1
Tel. 800-748-5440 www.setecinvestigations.com
California Western School of Law, p. 12
Tel. 619-239-0391 www.californiawestern.edu
Krycler, Ervin, Taubman & Walheim, p. 55
Tel. 818-995-1040 www.ketw.com
Steven R. Sauer APC, p. 10
Tel. 323-933-6833 e-mail: arbitr@aol.com
Cohen Miskei & Mowrey, p. 54
Tel. 818-986-5070 e-mail: cmmcpas@aol.com
Lawyers’ Mutual Insurance Co., p. 7
Tel. 800-252-2045 www.lawyersmutual.com
Anita Rae Shapiro, p. 16
Tel. 714-529-0415 www.adr-shapiro.com
Commerce Escrow Company, p. 17
Tel. 213-484-0855 www.comescrow.com
Lexis Publishing, p. 9, 15
www.lexis.com
Smith & Carson, p. 60
Tel. 818-551-5900 www.smithcarson.com
Court Reporters International, p. 19
Tel. 800-300-1935 www.courtreportersinternational.com
Arthur Mazirow, p. 16
Tel. 310-255-6114 e-mail: am@ffslaw.com
Spiegel Property Damage Consulting and Forensics, p. 66
Tel. 800-266-8988 www.propertydamageinspections.com
DCW & Associates Investigations, p. 64, 65
Tel. 800-899-0442 www.dcwpi.com
Metrocities Mortgage Inc., p. 69
Tel. 800-464-2484 www.metrociti.com
Stein Investigation Agency, p. 63
Tel. 323-908-1470 www.steininvestigations.com
Deadlines On Demand, p.11
Tel. 888-363-5522 www.deadlines.com
Moon Valley Software, p. 69
Tel. 800-473-5509 http://law.iconlockit.com
Stonefield Josephson, Inc., p. 49
Tel. 866-225-4511 www.sjaccounting.com
Diversified Risk Management, Inc., p. 58
Tel. 800-810-9508 www.diversifiedriskmanagement.com
MP Group, p. 10
Tel. 323-874-8973 www.mpgroup.com
Tavakoul, p. 16
Tel. 714-928-3742
Douglas Baldwin & Assoc., Inc., p. 58
Tel. 952-4433 e-mail: dba@pacbell.net
MyCorporation.com, Inside Front Cover
Tel. 888-692-6771 www.mycorporation.com
TransWest Investigations, Inc., Inside Back Cover
Tel. 213-381-1500 www.transwestinvestigations.com
E. L. Evans & Associates, p. 54
Tel. 310-559-4005
Noriega Clinics, p. 73
Tel. 323-728-8268
ULTIMO Organization, Inc., p. 66
Tel. 714-560-8999 www.geotechnical.com
Farmer, Murphy, Smith & Alliston, p. 39
Tel. 916-484-3500 www.farmermurphy.com
One Legal, Inc., p. 39
Tel. 415-491-0606 www.onelegal.com
Elaine Verchick, p. 74
Tel. 310-550-7818
Fire Cause Analysis, p. 60
Tel. 800-726-5939 www.fcafire.com
Online Security, p. 59
Tel. 310-815-8855 www.onlinesecurity.com
Verizon Wireless, p. 13
Tel. 866-899-2862 www.verizonwireless.com
Kenneth J. Fischbeck, p. 48
Tel. 714-609-7481 e-mail: kfischbeck@cox.net
Ostrove, Krantz & Ostrove, p. 23
Tel. 323-939-3400 e-mail: dostrove@comcast.net
Vision Sciences Research Corporation, p. 67
Tel. 925-837-2083 www.contrastsensitivity.net
Forensics Consulting Solutions, LLC, p. 57
Tel. 602-354-2772 www.forensicsconsulting.com
Pacific Construction Consultants, Inc. (PCCI), p. 56
Tel. 916-638-4848 www.pcci.biz
URS, p. 54
Tel. 213-996-2555 www.urscorp.com
Forensic Expert Witness Association, p. 55
Tel. 949-640-9903 www.forensic.org
Pacific Health & Safety Consulting, Inc., p. 74
Tel. 949-253-4065 www.phsc-web.com
Weiland, Golden, Smiley, Wang Ekvall & Strok, LLP, p. 21
Tel. 714-966-1000 www.wgllp.com
ForensisGroup Inc., p. 51
Tel. 626-795-5000 www.forensisgroup.com
Power Volvo South Bay, p. 23
Tel. 310-325-3255 www.powerdirect.com
West Group, Back Cover
Tel. 800-762-5272 www.westgroup.com
Fragomen, Del Rey, Bernsen & Loewy, LLP, p. 27
Tel. 310-820-3322 www.fragomen.com
PricewaterhouseCoopers, LLP, p. 62
Tel. 213-356-6000 www.pwc.com
White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 53
Tel. 818-981-4226 www.wzwlw.com
FULCRUM Financial Inquiry LLP, p. 2
Tel. 213-787-4100 www.fulcruminquiry.com
Quo Jure Corporation, p. 69
Tel. 800-843-0660 www.quojure.com
Witkin & Eisinger, LLC, p. 74
Tel. 310-670-1500
G. L. Howard CPA, p.16
Tel. 562-431-9844 e-mail: gary@glhowardcpa.com
Jan Raymond, p. 67
Tel. 888-676-1947 e-mail: jan@naj.net
Zivetz, Schwartz & Saltsman, p. 51
Tel. 310-826-1040 www.zsscpa.com
Closing Argument
BY MATTHEW C. FRAGNER
A New Paradigm for Mentoring
THE FIRST DEATH KNELL of traditional lawyer mentoring sounded in of mentoring. One radical change would be to institute a medical-style
the 1980s when large New York City law firms began to open branch residency requirement after completion of law school and the bar
offices in other cities and thereby transformed the practice of law. While exam, but this probably could not be implemented. The only corolsome firms sent lawyers directly from their New York offices to lary to the hospital in the legal sector is the court system, which is not
other cities, many others recruited lateral partners from local firms. at all equipped to provide space for, much less train, the number of
These new partners frequently brought clients from their old firms, new lawyers graduating each year. Standing at the other end of the
a move that emphasized loyalty to the partner over loyalty to the firm. spectrum would be a program encouraging a purely voluntary effort
Eventually, firms outside New York followed the same pattern, by firms and institutions of all sizes that hire new lawyers. Many qualadding multiple offices by taking on lateral partners from local firms ity firms have already done so, but exhorting others to initiate volin new cities. Partners soon began to move freely to and from firms untary programs is like yelling into the Grand Canyon—the echoing
within a single city.
This increased movement of partners
and clients had its unintended conseAs lawyers became less convinced that younger lawyers would remain
quences. The first law of client dynamics
states that a client at rest tends to stay at
rest, but a client that moves tends to move
long-term colleagues, their incentive to provide mentoring diminished.
again. After a client was convinced to move
once, it did not take long before it moved
all or part of its legal needs to another
firm. Similarly, firms that brought lateral partners in from other sound quickly diminishes into an indecipherable susurration.
A much more promising reform would be to adjust the existing
firms often found themselves hoisted on their own petard, losing partcontinuing legal education requirements to reflect the following plan:
ners to other firms.
As partners and clients became more portable, many types of legal • Require an additional 12 hours of specialized training during the
work morphed into fungible commodities, whereby a demurrer first three years of practice.
drafted by one law firm was easily replaced by one drafted by another. • Establish an optional but recommended curriculum and course mateSome clients began developing a schedule of fees for litigation work rials for lawyer training.
product, providing, for example, $2,000 for demurrers or $5,000 for • For a significant portion of the newly required hours, allow credit
summary judgment motions. Law firms themselves encouraged sim- for time spent in a mentoring relationship with a lawyer who has pracilar pricing strategies.
ticed for at least 7 or 10 years.
The development of the Internet also increased the fungible nature • Provide mentors with CLE credit for up to 6 hours of mentoring
of legal services, since virtually anyone can find, download, and use each year.
a wide variety of legal forms of great length—and sometimes great • Establish an e-mail list service for mentoring, through which quessophistication. Essentially the same language can be found in the agree- tions from young lawyers can be answered by prequalified, experiments drafted by different law firms, so many clients sought discounted enced lawyers.
fees because they discounted the value of the talents that lawyers bring
A mentor need not work in the same firm as the young lawyer.
to the table.
While a mentor in a different firm may not be able to offer advice on
Ultimately, these trends trickled down and eroded the time-hon- firm policies or politics, it is almost always a benefit for a young lawyer
ored tradition of lawyer mentoring. As older lawyers became less con- to develop a relationship with a more senior lawyer at a different firm.
vinced that younger lawyers would remain long-term colleagues, Who knows? As the number of these cross-firm relationships grows,
their incentive to provide time-consuming mentoring diminished. there might even be an increase in intrafirm collegiality.
As client loyalty withered, clients sometimes accompanied younger
No doubt the practice of law will continue to evolve as online data
lawyers to a different firm, creating a disincentive for older lawyers sources multiply and lawyers approach 24-hour connectivity. Perhaps
to share knowledge and relationships. While competent assistance from mentoring will wither away over time, or perhaps mentoring will take
a junior lawyer helps keep a client happy, a junior lawyer who is too place in a structured and normative instant messaging system. But
competent can become too much of a competitor. Over the last two before we lose what many lawyers believe was the most meaningful
decades, these factors have created a legal environment increasingly part of their professional development, the State Bar should consider
less conducive to mentoring relationships.
ways of preserving the best parts of the mentoring tradition.
■
The changes in the practice of law—at least in firms, companies,
and institutions in which long-term association with a single entity Matthew C. Fragner is a partner in the law firm of FSPW Law, LLP, specializhas become the exception and not the rule—demand new paradigms ing in real estate matters.
© 2005 West, a Thomson business L-312733/6-05
Going places with West.
west.thomson.com

Los Angeles Lawyer - Los Angeles County Bar Association

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