Los Angeles Lawyer April 2009 - Los Angeles County Bar Association

Transcription

Semiannual Guide to Expert Witnesses
April 2009 /$4
EARN MCLE CREDIT
Price
Maintenance
Agreements
page 29
PLUS
Mental
Process
Patents
page 36
Attorney’s
Fee Awards
page 12
Enforcing
Foreign Money
Judgments
page 16
No Contest
Clauses in
Probate
page 20
A Fee
Change
Los Angeles lawyer
Kurt L. Schmalz
analyzes the
viability of the
MFAA after Schatz
page 24
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F E AT U R E S
24 A Fee Change
BY KURT L. SCHMALZ
Recent state and federal court decisions will make the enforceability of
arbitration clauses in attorney-client fee agreements more secure
29 The Price Is Right
BY STEPHEN G. MASON
While some experts have issued dire warnings, the U.S. Supreme Court’s
recent decision on resale price agreements may have little effect on retailing
Plus: Earn MCLE credit. MCLE Test No. 180 appears on page 31.
36 Mind over Matter
BY MICHAEL A. SHIMOKAJI AND PHILIP L. GAHAGAN
While the physical-transformation test once was a useful standard for patent
law, developments in technology have made appropriate the patentability of
mental steps processes
43 Special Section
Semiannual Guide to Expert Witnesses
Los Angeles Lawyer
D E PA RT M E N T S
the magazine of
the Los Angeles County
Bar Association
April 2009
Volume 32, No. 2
COVER PHOTO: TOM KELLER
10 Barristers Tips
Protecting intellectual property during
layoffs
76 By the Book
Norton Parker Chipman
REVIEWED BY R. J. COMER
BY JENNIFER BROCKETT
12 Practice Tips
Applying contractual attorney’s fees
clauses after Marina Glencoe
80 Closing Argument
The need to clarify creditors’ rights
in probate
BY RICHARD S. CONN
BY PERRY D. MOCCIARO
77 Classifieds
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16 Practice Tips
Enforceability of foreign country money
judgments in California
78 Index to Advertisers
BY STEVEN C. SHUMAN
79 CLE Preview
04.09
20 Practice Tips
The viability of no contest clauses in
estate planning
BY MARC L. SALLUS AND JUSTIN B. GOLD
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4 Los Angeles Lawyer April 2009
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I
n January of this year, the ABA Journal reported that the
nation’s law firms had laid off over 1,300 employees
that month. Little did we know, that statistic would seem
like “good” news only one month later, when the same publication reported new law firm layoffs of approximately
2,500 in February. Newspapers and legal periodicals leave the impression that among
lawyers willing to speak publicly about their practices, virtually all have adjusted their
plans in order to better meet the current economic climate. In short, the new economy has made it appear that having no Plan B is like having no plan at all.
For many, the very term “Plan B” is disheartening. The slang lexicon urban
dictionary.com defines it as “the person, thing, place, or idea that you go to when
your first one fails.” That definition notwithstanding, at least a few writers have come
to embrace Plan B not as a postfailure last resort but as a path truly “chosen” and
ultimately more “successful” than the original plan. Thus, writer Ann Lamott in Plan
B: Further Thoughts on Faith describes what, for her, was a spiritual antidote to
chaotic political times. Similarly, environmentalist Lester R. Brown’s prescription to
stop global warming is titled Plan B: Mobilizing to Save Civilization.
The concept of Plan B as a process toward betterment may be worth bearing in
mind as we devise our own backup strategies. Although bottom lines will be the foremost concern of law firms and individual attorneys, more than a few seem to be finding that strategic involvement in pro bono work may be a component of a successful Plan B. A New Jersey law firm that recently laid off several attorneys, for
example, arranged for a number of the unlucky lawyers to fill one-year posts at public interest firms. The individuals filling these positions will earn substantially less
than they had expected, but, on the other hand, they will not have the dreaded “blank
spots” on their resumes, they may very well gain courtroom experience in a shorter
period of time than ordinarily possible at a firm, and they will likely develop strong
relationships with their similarly situated peers. The firm itself, which will fund the
one-year stints, gained goodwill and good press from the move.
Recent experience also suggests that individual attorneys—even associates in big
firms—may be better equipped to weather the insecurities brought on by the current economy by similarly devising a Plan B that incorporates some pro bono work.
Toward the end of 2008, an associate at a major California firm approached her supervising partners and diplomatically suggested that, since she was light on work and
had completed the minimum billable hour requirements for the year, the firm might
allow her to volunteer at a local public agency. The firm said yes; the associate ended
up gaining trial experience; and, when, just a few months later, the firm was one of
the many to announce massive layoffs, the associate kept her job.
One can easily imagine that the foregoing examples represent only some of the
ways in which lawyers, acting to a large degree out of self-interest, may at the same
time serve the greater good. Legal aid organizations, who are themselves facing a
financial crisis, appear willing to work with attorneys and firms seeking to incorporate pro bono work into a broader professional strategy. The Legal Aid Foundation
of Los Angeles and Bet Tzedek, to take two examples, currently have a number of
programs tailored to involve private attorneys in finite projects. By exploring these
opportunities, attorneys may discover new avenues for professional development while
simultaneously serving the increasing needs of their communities.
■
Angela J. Davis is an assistant U.S. attorney and the 2008-09 chair of the Los Angeles Lawyer
Editorial Board. Her views do not necessarily reflect those of the U.S. Department of Justice.
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barristers tips
BY JENNIFER BROCKETT
Protecting Intellectual Property during Layoffs
ECONOMISTS PREDICT TWO MILLION lost jobs by the end of 2009.1 competition and nonsolicitation clauses are void under Business and
Lawyers who advise any business that is contemplating reductions in Professions Code Section 16600 unless they fall within a statutory
force must be particularly vigilant in protecting its intellectual prop- exception. Indeed, under Edwards an employer that requires employerty—lest the employees it lays off today improperly use its intellec- ees to sign an agreement containing such a clause may commit an
tual property to unfairly compete tomorrow. In the digital age, a com- unlawful business practice subject to tort damages.
As the Edwards court explained: “Section 16600 represents a
pany’s most valuable proprietary, trade secret information may be
downloaded with the click of a mouse and used to jump-start a strong public policy of the state which should not be diluted by judicompetitive company. A competitor can be staffed with that company’s cial fiat.” Indeed, “Section 16600 is unambiguous, and if the
Legislature intended the statute to apply only to restraints that were
former employees, without the development costs.
There are several steps that an attorney may advise an employer unreasonable or overbroad, it could have included language to that
to take to protect its intellectual property. The
first is to analyze existing employment agreements and handbooks to determine whether
With daily headlines lamenting job losses, layoffs, furloughs,
they include explicit protections for intellectual
property. Employment agreements should
explicitly provide for the confidentiality of all
and mandatory unpaid vacations, it would be easy for a business
proprietary material, provide that all work
created during employment is a work for hire,
and assign all inventions and work product
to neglect its long-term intellectual property protection strategy.
relating to the employer’s business to the
employer. Such a provision must, however,
comply with Section 2870 of the California
Labor Code.2 Any employer contemplating layoffs—and any employee effect.” Attorneys may advise an employer—and especially one conconcerned about layoffs—will want to understand first and foremost templating layoffs—to evaluate any nonsolicitation or noncompetiwhether the existing employment agreements include a proper and tion clauses that it included in existing employment agreements in
enforceable assignment of inventions and confidentiality provisions. reliance on Campbell and its progeny to determine whether the
clause may survive Edwards or merits revision.
Noncompetition Clauses
While California employers can no longer include “narrow
Second, the existing employment agreements must be analyzed to restraint” nonsolicitation clauses that are untethered to trade secrets
determine whether they contain a noncompetition clause. In the past, in employment agreements, the Edwards court expressly declined to
courts allowed nonsolicitation provisions that only narrowly restrained rule regarding the trade secrets exception to Section 16600. California
competition. California’s Business and Professions Code Section 16600 courts have previously found that nonsolicitation clauses may be
provides that “except as provided in this chapter, every contract by upheld if the agreement is necessary to protect trade secrets. Under
which anyone is restrained from engaging in a lawful profession, California’s enactment of the Uniform Trade Secret Act, information
trade, or business of any kind is to that extent void.” Despite Section may qualify for trade secret protection if it 1) derives independent eco16600, the Ninth Circuit Court of Appeals had found that narrow nomic value from being secret, and 2) is the subject of efforts that are
restrictions on competition did not violate Section 16600. In Campbell reasonable under the circumstances to maintain its secrecy. Because
v. Board of Trustees of Leland Stanford University,3 the Ninth Circuit the trade secret exception is supported by a California statute—the
held that Section 16600 banned only those restraints that preclude the UTSA—agreements that are reasonably necessary to protect a trade
pursuit of an entire business, trade, or profession.4 Although subse- secret may well survive a post-Edwards challenge, even if the agreequent California appellate court cases did not embrace the narrow ments, either expressly or implicitly, restrain parties from engaging
restraint doctrine, the doctrine enjoyed continued vitality in the Ninth in a lawful profession. To date, at least one district court has found
Circuit and its district courts.5 As a result, many employment agree- that, while Edwards does bar nonsolicitation clauses generally, the
trade secret exception continues to survive.7
ments contain language crafted to meet the Campbell test.
However, in September 2008, the California Supreme Court
From the perspective of an employer, ideally enforceable provisions
unequivocally rejected the narrow restraint doctrine, affirmed protecting a business’s intellectual property will be found in the
California’s longstanding ban on noncompete agreements, and con- employer’s existing written employment contracts and employee
firmed that it extends to provisions restricting a former employee’s
ability to solicit clients—so-called nonsolicitation provisions—as
Jennifer Brockett is a partner at the Los Angeles office of Davis Wright
well. The Edwards v. Arthur Andersen LLP6 court ruled that nonTremaine who practices trade secret and business torts litigation.
handbook. With daily headlines lamenting job
losses, layoffs, furloughs, and mandatory
unpaid vacations, it would be easy for a business to neglect its long-term intellectual property protection strategy in favor of shortterm cost cutting. But it would be wrong. In
light of the risk that a terminated or furloughed employee will take steps to compete
with the employer, employers would be well
advised to audit their intellectual property
protection policy, especially as it applies to termination.
The many issues that a company may
want to address upon terminating an
employee include incorporating intellectual
property concerns into its exit process. While
the exact procedures may vary depending
upon the circumstances, at a minimum a
company should ensure that any passwords
are changed and that any computers, cell
phones, or Blackberries are returned. It may
be appropriate to ask that the departing
employees confirm in writing that any and all
company information and other property
has been returned, and that they have kept no
copies of any company data. It also may be
worthwhile to notify the employee of the
information that the company believes is a
trade secret, including proprietary formulas,
customer lists, or other information.
If a business has reason to believe that its
employees—current or former—are using its
intellectual property to compete, it must act
promptly. First, it must sequester and preserve
any internal evidence—especially backup
tapes, computers, and other digital media
that can be overwritten. If a person is improperly using a company’s intellectual property
to contact customers or to replicate proprietary products or services, an employer may
be well served to take prompt legal action, as
a temporary restraining order and preliminary
injunction forbidding the infringement of the
employer’s intellectual property can halt the
unfair competition. At the same time, however, any person contemplating a lawsuit
based upon trade secrets, copyrights, or
patents must consider the possibility of fee
shifting: a losing plaintiff may well end up
footing the other side’s bills.
■
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1 Jeannine
Aversa, Job-killing recession racks up more
layoff victims (Jan. 26 2009), available at
http://news.yahoo.com/s/ap/20090126/ap_on_bi_ge
/economy.
2 See LAB. CODE §2870.
3 Campbell v. Board of Trs. of Leland Stanford Univ.,
817 F. 2d 499 (9th Cir. 1987).
4 Id. at 502.
5 See, e.g., International Bus. Machs. Corp. v. Bajorek,
191 F. 3d 1033 (9th Cir. 1999).
6 Edwards v. Arthur Andersen LLP, 44 Cal. 4th 937
(2008).
7 Bank of America v. Lee, 2008 WL 4351348, *5
(C.D. Cal. Sept. 22, 2008) (No. CV 08-5546 CAS
(JWJX)).
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Los Angeles Lawyer April 2009 11
practice tips
BY PERRY D. MOCCIARO
Applying Contractual Attorney’s Fees Clauses after Marina Glencoe
WHEN LITIGATING CASES INVOLVING contracts with attorney’s fee
clauses, the possibility of recovering attorney’s fees, or being held
responsible for the other side’s fees, can profoundly affect the decision of whether to proceed, dismiss, or seek a settlement with mutual
releases. Given this reality, it is critical to understand just when a voluntary dismissal can be effective as a means of avoiding exposure to
a claim for the attorney’s fees of the opposing party.
A recent Second District Court of Appeal opinion in the case
Marina Glencoe v. Neue Sentimental Film AG provides some lessons
on the litigation strategy of voluntary dismissals in the context of a
potential attorney’s fees claim. However, although it does not expressly
say so, Marina Glencoe may be significantly limited in its application
based upon the narrow nature of the particular claims that were being
litigated. Analyzing the impact of a voluntary dismissal upon the recovery of attorney’s fees requires an understanding of the procedural posture of the case at the time of dismissal, the wording of the attorney’s
fees clause, and whether the claims being litigated are contract claims,
noncontract claims, or some combination thereof.
In Marina Glencoe, a plaintiff commercial landlord sued its tenant and two of the tenant’s related entities alleged to be its alter egos.
The lease contained a fairly typical attorney’s fee clause:1
[I]f any action for breach of or to enforce the provisions of this
Lease is commenced, the court in such action shall award to
the party in whose favor judgment is entered, a reasonable sum
as attorneys’ fees and costs. The losing party in such action shall
pay such attorneys’ fees and costs.”2
Before trial, the tenant filed for bankruptcy, and trial proceeded
only against one of the alleged alter ego defendants. At the request
of the plaintiff, trial was bifurcated to adjudicate first the issue of liability based on alter ego, and then if necessary to determine damages
if such liability were found.
When the plaintiff landlord rested upon completing its evidence
in the alter ego liability phase of the trial, the defendant moved for
judgment in its favor under Code of Civil Procedure Section 631.8.
The trial court took the motion under submission overnight, but before
it could rule, the plaintiff landlord voluntarily dismissed its suit with
prejudice the next morning. Upon the defendant’s subsequent motion
for its attorney’s fees under the contractual attorney’s fee clause, the
trial court ruled that the defendant was not entitled to the fees under
Civil Code Section 1717.3
On appeal by the defendant, the court of appeal held that the trial
court’s refusal to award attorney’s fees was correct under the express
language of Civil Code Section 1717(b)(2), which provides: “When
an action has been voluntarily dismissed or dismissed pursuant to a
settlement of the case, there shall be no prevailing party for purposes
of this section.” The Marina Glencoe opinion notes that Section
1717(b)(2) contains no temporal limitation—for example, whether
trial has already commenced—and “bars recovery of Section 1717
attorney fees regardless of when the dismissal was filed.”4
The tenant asserted on appeal that a dismissal with prejudice
while a motion for judgment is already pending should not be deemed
a voluntary dismissal within the meaning of Section 1717(b)(2), and
so supposedly should not fall within its proscription denying any award
of attorney’s fees to the dismissed party. The court of appeal rejected
this contention, finding that it is not the stage of proceedings that distinguishes a voluntary dismissal from an involuntary one but rather
the plaintiff’s role in bringing the dismissal about.5
The Marina Glencoe court also was not persuaded that it should
allow an award of attorney’s fees by analogy to other situations in
which a voluntary dismissal short of a full trial—even a dismissal without prejudice—has been held not to relieve the dismissing party from
having to pay the prevailing party’s attorney’s fees. For example, attorney’s fees are recoverable by a prevailing party defendant notwithstanding the plaintiff’s voluntary dismissal without prejudice if the
dismissal occurs either after a general demurrer has been granted without leave to amend or a general demurrer has been granted with leave
to amend but no amendment is timely made, and thus all issues
have been deemed admitted in the defendant’s favor.6 Similarly, when
a defendant’s right to obtain summary judgment has ripened to the
point of inevitability because the plaintiff’s opposition papers, which
are inadequate to defeat the motion, have all been filed, the plaintiff
does not avoid having to pay the prevailing party defendant’s attorney’s fees by filing a voluntary dismissal without prejudice before the
trial court actually rules on the motion.7
The Marina Glencoe opinion distinguishes the dismissal in its case,
which was with prejudice, from these other situations. The dismissal
in Marina Glencoe was made with the intent to end the litigation rather
than to avoid its end. This would appear to be a distinction created
judicially on policy grounds, since neither Civil Code Section 1717
nor Code of Civil Procedure Sections 1032 and 1033.5 contain language that distinguishes prevailing party defendants according to
whether the judgment of dismissal is voluntary or involuntary, or
whether it is with or without prejudice.
It may be argued that as a result of this line of reasoning that Marina
Glencoe contains an unstated limitation that significantly limits its scope
and applicability. Unlike the language and court interpretations of Civil
Code Section 1717(b)(2), different rules apply when attorney’s fees are
sought under Code of Civil Procedure Sections 1032 and 1033.5 for
claims that are not purely contractual. Marina Glencoe specifically states
that the dismissed defendant’s motion for attorney’s fees was denied
because the trial court concluded that the dismissed defendant “was
not entitled to attorney fees under either Civil Code Section 1717 or
Code of Civil Procedure Section 998.” Although the opinion does not
expressly explain its reasoning for a distinction, it appears that the
motion for attorney’s fees in the trial court was made only under Civil
Code Section 1717 and Code of Civil Procedure Section 998 and not
under Code of Civil Procedure Sections 1032 and 1033.5.
Perry D. Mocciaro is a litigation partner with Cox, Castle & Nicholson LLP. His
practice focuses on real estate and business litigation.
Sections 1032 and 1033.5 allow attorney’s fees to be awarded as costs in favor of
a prevailing party defendant—i.e., “a defendant in whose favor a dismissal is entered, a
defendant where neither plaintiff nor defendant obtains any relief, and a defendant as
against those plaintiffs who do not recover any
relief against that defendant” in cases in which
attorney fees are “authorized by…[c]ontract.”
Marina Glencoe does not mention that it has
been held that Civil Code Section 1717(b)(2)
applies to bar recovery of attorney’s fees in a
voluntarily dismissed action only if the action
is for breach of contract. In noncontract cases,
Civil Code Section 1717(b)(2) does not apply
to bar the recovery of attorney’s fees as costs
under Code of Civil Procedure Sections
1032(a)(4) and 1033.5(a)(10)(A).
Section 1032(a)(4) deems a defendant
who has suffered no adverse results a prevailing party. This view is not based on
whether the case is dismissed voluntarily or
on the merits, or with or without prejudice.
Section 1033.5(a) simply enumerates costs
that—under Subsection (a)(10)(A)—include
attorney’s fees that are permitted by contract. A contract may include a clause for
attorney’s fees, which “are allowable as costs
under… Section 1032.”
This key distinction between Civil Code
Section 1717 and Code of Civil Procedure
Sections 1032 and 1033.5 has been observed
by the California Supreme Court in Santisas v.
Goodin: “We conclude that, in voluntary pretrial dismissal cases, Civil Code section 1717
bars recovery of attorneys’ fees incurred in
defending contract claims, but that neither
Civil Code section 1717 nor [International
Industries Inc. v. Olen, 21 Cal. 3d 218 (1978)]
bars recovery of attorneys’ fees incurred in defending tort or other noncontract claims.
Whether attorney fees incurred in defending
tort or other noncontract claims are recoverable
after a pretrial dismissal depends on the terms
of the contractual attorney fee provision.”8
Thus, the strict rule of nonrecoverability
in voluntarily dismissed cases under Section
1717 applies only when the only claims in the
case are contractual. Marina Glencoe describes
the case there solely as an “action…for breach
of a written lease….” This suggests that the
suit was based solely on a cause of action for
breach of contract, without tort or other noncontract claims. This may explain why the
decision turns only on Civil Code Section
1717 and Code of Civil Procedure Section
998, without mentioning Code of Civil
Procedure Sections 1032 and 1033.5.
Similarly, the court of appeal held in
Xuereb v. Marcus & Millichap, Inc. that the
trial court erred in denying the prevailing
defendants their attorney’s fees under the
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authority of Section 1717, since the case had
been tried on tort theories.9 The court of
appeal found that Civil Code Section 1717,
governing contract cases, did not govern the
interpretation of the attorney’s fee provision
at issue.10 Instead, the court determined that
the reach of Civil Code Section 1717 is, by its
terms, limited to breach of contract actions,
and its only effect is to make an otherwise unilateral right to attorney’s fees reciprocal.11
Therefore, since the language of the attorney’s fees clause in Xuereb permitted an award
of fees under the circumstances of that tortbased case, Code of Civil Procedure Section
1021 authorized the award of attorney’s fees.12
California courts have also ruled that attorney’s fees are recoverable under Sections 1032
and 1033.5 not only if all the claims are noncontract claims but also if breach of contract
and noncontract claims are so intertwined
that it would be impracticable or impossible
to separate the contract and noncontract components.13 As a result, attorney’s fees for time
spent on tort and other noncontract causes of
action that arise out of a contract are recoverable, being “on the contract” and recoverable by both sides under Civil Code Section
1717.14
Whether a party has prevailed for purposes of recovering attorney’s fees is a question
of fact that must be determined by identifying
which party achieved the greater relief in the
action or the litigation objective.15 As the
court opined in Silver v. Boatwright Home
Inspection, Inc.:
Regarding the noncontract claims, the
court must look to the parties’ contractual attorney’s fees provision to
determine if it defines who is a prevailing party or addresses voluntary pretrial
dismissals. If the contract does not provide such guidance, the court must utilize its discretion in determining whether
such defendant should be considered a
prevailing party for the purpose of
recovering attorney’s fees as costs under
sections 1032 and 1033.5.16
Nor does the recoverability of attorney’s
fees for noncontract and mixed claims appear,
under existing California law, to depend on
whether a voluntary dismissal causing the
defendant to be the prevailing party is a dismissal with prejudice or without. The definition of a “prevailing party” defendant in
Code of Civil Procedure Section 1032 is simply a “defendant in whose favor a dismissal
is entered, a defendant where neither plaintiff or defendant obtains any relief, and a
defendant as against those plaintiffs who do
not recover any relief against that defendant.” No distinction is made as to whether
a defendant has prevailed voluntarily or involuntarily, or whether the judgment in its favor
is with or without prejudice.
Applicable case law likewise does not
appear to support any such distinction. In
Santisas, the court did note in passing that the
dismissal there was with prejudice. However,
this fact was not cited as being determinative
that the defendants were the prevailing parties within the meaning of Code of Civil
Procedure Section 1032.17
The presence of a prevailing party attorney’s fee clause in a contract between parties
engaged in litigation can significantly affect
litigation strategy, including the decision of
whether to dismiss a case voluntarily, and if
so, at what stage of the proceedings. Marina
Glencoe and other cases show that a voluntary dismissal terminating an action leaves
open the possibility that the other side can
recover attorney’s fees, and this possibility is
crucial in advising clients.
■
Imagine
what your gift
can do!
1 Absent a contractual clause allowing the prevailing party
to recover attorney’s fees from the nonprevailing party,
under California law all parties bear their own attorney’s
fees whether they win or lose, unless the case is governed
by a statute allowing recovery of attorney’s fees.
2 Marina Glencoe v. Neue Sentimental Film AG, 168
Cal. App. 4th 874 (2008).
3 Civil Code §1717 is the statute generally providing
that an attorney’s fee clause drafted to give only one
side the right to recover if it prevails will be enforced
in favor of any prevailing party, whether or not it is the
party so specified. See also text and notes, infra, regarding Code of Civil Procedure §§998, 1032, and 1033.5
as they may apply to recovery of attorney’s fees in
cases unlike Marina Glencoe.
4 Marina Glencoe, 168 Cal. App. 4th at 877 (quoting
Topanga and Victory Partners v. Toghia, 103 Cal.
App. 4th 775, 782 n.3 (2002)).
5 The court based its holding on D & J Inc. v. Ferro
Corp., 176 Cal. App. 3d 1191, 1194 (1986).
6 See Mary Morgan Inc. v. Melzark, 49 Cal. App. 4th
755, 769 (1996).
7 See Tire Distribs. Inc. v. Cobrae, 132 Cal. App. 4th
538, 544 (2005); Mary Morgan Inc., 49 Cal. App. 4th
at 769-70.
8 Santisas v. Goodin, 17 Cal. 4th 599, 602 (1998).
9 Xuereb v. Marcus & Millichap, Inc., 3 Cal. App. 4th
1338 (1992).
10 Id. at 1341.
11 Id. at 1342.
12 Id.
13 See Reynolds Metals Co. v. Alperson, 25 Cal. 3d 124,
129-30 (1979); Abdallah v. United Savs. Bank, 43
Cal. App. 4th 1101, 1111 (1996) (Apportionment is not
necessary when “various claims were ‘inextricably
intertwined,’ making it ‘impracticable, if not impossible, to separate the multitude of conjoined activities into
compensable or noncompensable time units.’”).
14 See Santisas v. Goodin, 17 Cal. 4th 599, 608 (1998);
see also Mustachio v. Great W. Bank, 48 Cal. App. 4th
1145, 1151 (1996) (The attorney’s fees for time spent
on conversion cause of action based on a contract
between the parties were recoverable since they were
incurred for a claim “on the contract.”).
15 See, e.g., Silver v. Boatwright Home Inspection, Inc.,
97 Cal. App. 4th 443, 452 (2002); Hsu v. Abbara, 9
Cal. 4th 863, 876 (1995).
16 Silver, 97 Cal. App. 4th at 452.
17 See also MacLeod v. Tribune Co., 157 Cal. App. 2d
665 (1958) (affirming an order denying a motion to
vacate an order for attorney’s fees based upon a voluntary dismissal without prejudice).
WHILE A SINGLE STONE may make only a small
splash, the ripples travel far beyond where the
stone landed—just like the benefit of your single
gift to the Los Angeles County Bar Foundation’s
2008-09 fund-raising campaign.
The Bar Foundation is the fund-raising arm of the
Bar Association. The Association’s own public
service projects rely heavily on the Foundation for
funding, as do many other very worthwhile
programs serving our community.
Be proud of your Foundation—it is a valuable
community resource. Support your Bar
Foundation—it cannot exist without you!
Donations may be made online via credit card or by
mail to Los Angeles County Bar Foundation, PO Box
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LA
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For additional information, call (213) 896-6409 or
send an e-mail to lstude@lacba.org.
Visit the Foundation’s Web page at www.lacba.org/foundation.
practice tips
BY STEVEN C. SHUMAN
Enforceability of Foreign Country Money Judgments in California
A NEW AND IMPROVED uniform statute for recognizing and enforcing judgments from foreign countries has been in place in California
for just over a year. The new law has brought clarity to when and how
to use a judgment from foreign shores to collect money that is here
in the state. While some hotly contested issues remain, the new law
contains most of what anyone would need to know to obtain recognition of a foreign country money judgment for the purpose of
enforcing that judgment in California. Still, practitioners must be cognizant of issues arising under the old law. Indeed, the California
Supreme Court recently resolved two significant issues relating to the
statute of limitations under the old law.
The enforceability of foreign country money judgments in
California is an issue that arises in a variety of circumstances. For
example, a business deal in the Middle East goes south. One party
gets a multimillion-dollar judgment in Israel. The offender has moved
to California, along with his ill-gotten gains, and there is not a shekel
available in Israel for the plaintiff to execute on.
In another example, a car jumps the curb in Chile and turns a single mother into a paraplegic. She sues the manufacturer of the part
that caused the brakes to fail. She succeeds, but her record judgment
against the part manufacturer is worthless in Chile because the judgment debtor has no assets there. Indeed, the judgment debtor is a
California corporation with plenty of assets in the state.
Parties seeking to enforce a foreign country money judgment in
California may wonder whether their victory is supported by the full
faith and credit clause in the U.S. Constitution.1 However, the clause
only requires one state to honor the judgment of another U.S. state
or territory. It imposes no requirement to honor the judgment of a
foreign country.2 In fact, nothing in the U.S. Constitution or federal
statutes requires that any state, or the United States, honor a foreign
country’s judgment. State law determines whether a foreign country’s
judgment will be enforced.3
RICHARD EWING
Uniform Statute
For years, the doctrine of comity was the governing law for situations
like those faced by the plaintiffs in the examples. A body of case law
sets forth the conditions that must be satisfied for a foreign country
judgment to be recognized by one of the states in the United States.4
For money judgments, that case law has been codified into a uniform
statute that has been adopted by at least 30 states, including
California.5
In 1962, the Commissioners on Uniform Laws promulgated the
Uniform Foreign Money Judgment Recognition Act (UFMJRA) to create a set of uniform principles for the recognition and enforcement
of foreign country money judgments. In 2005, that uniform law was
overhauled. It morphed into the Uniform Foreign Country Money
Judgment Recognition Act (UFCMJRA), the difference in title remedying confusion by states referring to the judgments of other U.S.
states as foreign judgments. Much of the uniform law remained the
same, but some changes occurred. California adopted the UFMJRA
in 19676 and the UFCMJRA in 2007. The new law is applicable to
any actions for recognition of a foreign country judgment that are filed
in California on or after January 1, 2008.7
Sister-state judgments receive full faith and credit because all
states accord basic due process protections and have relatively corruption-free judiciaries. Sister-state judgment debtors need no protection from the possibility the judgment was rendered without
regard to basic standards of fairness. A foreign country judgment,
though, could emerge from a country with protections similar to those
in the United States or where judgments are dispensed based on a dictator’s whim or who pays the larger bribe. Therefore, the uniform law
requires a foreign country judgment to be recognized by a state for
it to be enforced. Recognition is the means by which California
Steven C. Shuman litigates business and insurance cases on behalf of plaintiffs for Engstrom, Lipscomb & Lack. He briefed and argued as amicus curiae
on behalf of the plaintiff in Manco Contracting Company (W.W.L.) v. Bezdikian.
ensures that the foreign judgment debtor
received basic due process and converts the
foreign country judgment into a domestic
judgment enforceable by all the means available for collecting on a California judgment.8
The UFMJRA as originally adopted
referred to “recognition” but did not say
how to obtain it. Some states adopted a version of the UFMJRA providing for registration of a foreign country judgment with the
court clerk and notification of that registration to the judgment debtor. The judgment
debtor then had 30 days to initiate a proceeding for nonrecognition of the foreign
country judgment on one of several grounds
identified by the uniform law that preclude
recognition.9 California did not adopt this registration procedure. To secure recognition of
a foreign country judgment in California for
enforcement under the old law, the judgment
creditor had to file an action for relief.10 As
adopted by the Uniform Law Commissioners
and by California, the new law, the UFCMJRA,
codifies the requirement of filing an action for
recognition to enforce a foreign country judgment.11 Parties seeking recognition for some
purpose other than enforcement, such as
applying res judicata or collateral estoppel,
can do so by asserting a counterclaim, crossclaim, or affirmative defense.12
Requirements for Recognition
Both the old and new uniform law contain
certain threshold requirements for a judgment to be recognized. First, the judgment
must grant or deny recovery of a sum of
money.13 Judgments that grant or deny a
divorce, child custody, title to or possession
of property, an injunction, or other nonmonetary relief are not eligible for recognition
under the uniform law. Such judgments
remain recognizable and enforceable as a
matter of comity. 14 A judgment will be
deemed to be for a sum of money when an
amount of money is awarded, even if that
amount is subject to change by an accounting ordered by the foreign court.15
Second, the judgment must be final, conclusive, and enforceable under the law of the
foreign country in which it was rendered.16
This is the language of the new law. The old
law authorized recognition of “any foreign
judgment that is final and conclusive and
enforceable where rendered even though an
appeal therefrom is pending or it is subject to
appeal.”17 This language gave rise to an interesting statute of limitations dilemma: When
did the cause of action for recognition of a foreign judgment accrue if that judgment was on
appeal in the foreign country? Did the time
to seek recognition in California start running
when proceedings were concluded in the trial
court, thereby giving effect to the phrase
“even though an appeal is pending,” or did
the time to sue for recognition only start
when the appeal was completed in the foreign
country, and the judgment could no longer be
altered or reversed?
Last year the California Supreme Court
resolved this dilemma under the old law. In
Manco Contracting Company (W.W.L.) v.
Bezdikian, the court ruled that a judgment
would be deemed final even if on appeal in the
foreign country—and the statute of limitations
would start running on the recognition action
in California—if the judgment is considered
final while on appeal according to the law of
the country that rendered it. If the foreign
country rendering the judgment does not
consider a judgment to be final while on
appeal, then the foreign judgment cannot be
recognized in California, and the statute of
limitations for a recognition action does not
start running.18 The language of the new law
mandates the same result. Once a judgment
becomes final, conclusive, and enforceable
under the law of the country where it was rendered, it can be recognized in California, and
the statute of limitations starts running on an
action for recognition.
In Manco, the supreme court also determined that the limitations period for bringing an action to recognize a foreign country
judgment under the old law is 10 years.19
This issue arose because the UFMJRA contained no explicit statute of limitations. The
supreme court reasoned that the legislature
intended the statute of limitations to be the
same for a foreign country judgment as for a
sister-state judgment, based on a provision in
the UFMJRA that a “foreign judgment is
enforceable in the same manner as the judgment of a sister state which is entitled to full
faith and credit.”20 An action to enforce a sister-state judgment is subject to a 10-year limitations period.21
The UFCMJRA eliminates this issue. The
new law contains an explicit limitations
period for an action to recognize a foreign
country judgment. These actions must be
commenced while the judgment is effective in
the foreign country but not more than 10
years from when the judgment becomes effective in the foreign country.22
As the supreme court noted, the difference
between “final” and “conclusive” is not
immediately apparent under the UFMJRA.
The distinction may be even murkier under
the UFCMJRA. Under the old law, a foreign
money judgment was not conclusive if it was
rendered under a system without impartial tribunals or procedures compatible with due
process, or if the foreign court lacked personal
or subject matter jurisdiction. While all those
grounds remain mandatory bases for nonrecognition in the new law, they are no longer
characterized as indicia of nonconclusiveness, leaving no clear distinction between
“final” and “conclusive.”23 Even if a judgment is final in the foreign country, and therefore ripe for a recognition action in California,
California courts have discretion to stay the
recognition action pending conclusion of the
foreign appeal or expiration of the time to
appeal.24
Judgments for taxes, fines, and penalties
are excluded from the old and new uniform
law. Domestic relations judgments, even those
for money such as support orders, are similarly excluded.25 Judgment creditors have
the burden of proving that they are presenting a money judgment that is final, conclusive,
and enforceable and not for taxes, fines,
penalties, or domestic relations.26
Defenses
Even if a foreign country money judgment is
final, conclusive, and enforceable where rendered, it must still survive several possible
defenses before California will recognize it. At
this point in the proceedings the burden of
proof shifts to the judgment debtor.27
A foreign country judgment will not be
recognized in California if rendered under a
judicial system that does not provide impartial tribunals or procedures compatible with
due process.28 A judicial system has procedures compatible with due process if 1) it
affords defendants a full and fair trial before
an impartial tribunal, 2) the tribunal conducts regular proceedings after proper service
or voluntary appearance of the defendants,
and 3) there is no showing of prejudice in the
court system or the system of governing laws.
A lack of due process is indicated by a judiciary dominated by the political branches of
government or the opposing litigant, or if a
party is unable to obtain counsel, secure documents, or attendance of witnesses or have
access to appeal or review.29
The foreign country need not have all
the features of the U.S. judicial system to
demonstrate the presence of due process. In
case law, the bar has been set fairly low as to
what is required to satisfy the due process
standard for recognition. Procedures that
courts have deemed compatible with due
process include those in which all evidence
is submitted in writing or judges conduct
“cross-examination.”30 As long as the defendant has a right to counsel and some means
of putting forth his or her case, the judiciary has some measure of independence,
and rampant corruption is not demonstrated,
the foreign judicial system generally will be
found sufficient for the purpose of recognizing its judgments.31
Nevertheless, if human rights reports indicate the lack of a fair judiciary and defendants
cannot personally attend their own litigation
without endangering their lives, a court may
not find the requisite due process.32 However,
a judgment debtor cannot avoid recognition
on this ground merely by proving a lack of
due process regarding the judgment in the case
at issue. According to case law prior to the
new law, the foreign country’s judicial procedures as a whole are under scrutiny. Indeed,
the due process deficiencies cited by the judgment debtor have to be systemic.33
A foreign country judgment also will not
be recognized if the foreign court lacked subject matter jurisdiction over the dispute or personal jurisdiction over the defendant.34 These
defenses result in mandatory prohibition
against recognition of the foreign country
judgment.
In other circumstances, the uniform law
grants courts discretion not to recognize a foreign country judgment. If the defendant did
not receive notice of the foreign proceeding
in sufficient time to defend, or if the judgment
was obtained by fraud that deprived parties
of an opportunity to present their case, the
California court does not have to recognize
the foreign judgment.
The same is true if the judgment or the
cause of action or claim for relief on which
the judgment is based is repugnant to the
public policy of California or the United
States or if the judgment conflicts with another
final and conclusive judgment. The exception for judgments repugnant to public pol-
icy is applied narrowly. The level of contravention of the state’s policy must be high. A
mere difference in laws or remedies is not
enough to invoke this exception.35 However,
the new law slightly broadens this exception
by making it applicable if the judgment, not
just the cause of action or claim for relief on
which it is based, is repugnant. Now, if the
cause of action is not repugnant but the
recovery is, recognition of the judgment may
be denied. Debt collection, for example, may
not be repugnant to California policy, but usurious interest as part of such a judgment
might be.36
A California court may choose not to
recognize the judgment if the proceeding in
the foreign court contravened an agreement
by the parties to resolve the dispute by
means other than the foreign court. Courts
have the same discretion for cases in which
jurisdiction was by personal service and the
forum was seriously inconvenient for the
trial.37
All the foregoing defenses were available
under the old law and remain available.38
The UFCMJRA added two new discretionary
defenses. If the circumstances raise substantial doubt about the integrity of the rendering court regarding the judgment, or if the specific proceeding leading to the judgment was
not compatible with the requirements of due
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process, then California courts may choose
not to recognize the judgment.39 These new
defenses promise to relieve judgment debtors
of having to prove that an entire judicial system is corrupt or does not afford basic due
process—a more difficult burden than just
showing the individual foreign judge denied
due process.
The UFCMJRA specifically addresses the
defense of the lack of personal jurisdiction. A
court may not refuse recognition for lack of
personal jurisdiction if:
• The defendant was personally served in
the foreign country.
• The defendant voluntarily appeared other
than to avoid seizure of property or to contest jurisdiction.
• The defendant agreed to submit to the foreign jurisdiction.
• The defendant was domiciled in the foreign
jurisdiction when the proceeding began or was
a corporation or business principally located
in, or organized under the laws of, the foreign
jurisdiction.
• The proceeding involved conduct by the
defendant’s business office in the foreign
country.
• The proceeding involved an accident arising out of the defendant’s operation of a
vehicle or aircraft in the foreign country.
The statute also permits a finding of personal jurisdiction on other bases.40
Since the UFCMJRA—like its predecessor,
the UFMJRA—is a uniform law, it instructs
courts construing it to give consideration to
the need to promote uniformity among the
states enacting it. This is a slightly watereddown version of the old law, which mandated
that the law be construed to effectuate its purpose of making uniform the law of the states
that enact it.41 Even in its slightly diluted
form, this provision enables the practitioner
to argue that courts should give decisions of
other states the same precedential value as
California decisions to effectuate uniformity
among the states. The purpose of the uniform
law is to promote reciprocity among foreign countries in enforcing judgments rendered in the United States, and uniformity of
interpretation advances that goal.42
The UFCMJRA codifies in one convenient location the procedural and substantive requirements for recognition of foreign
country money judgments. Practitioners can
provide assistance for their clients without
having to devote hours of research into the
law of comity on enforcing foreign country
judgments.
■
1 U.S.
CONST. art. IV, §1. See also 28 U.S.C. §1738.
Allstate Ins. Co. v. Hague, 449 U.S. 302, 322, n.4
(1981); Kelly v. First Astri Corp., 72 Cal. App. 4th 462,
487 (1999).
3 Society of Lloyd’s v. Reinhart, 402 F. 3d 982, 993
(10th Cir. 2005); RESTATEMENT (THIRD) OF FOREIGN
2
RELATIONS LAW §481, cmt. a (1987).
4 Hilton v. Guyot, 159 U.S. 113, 163-64 (1895); In re
Stephanie M., 7 Cal. 4th 295, 314 (1994).
5 Manco Contracting Co. (W.W.L.) v. Bezdikian, 45
Cal. 4th 192, 198 (2008); Renoir v. Redstar Corp., 123
Cal. App. 4th 1145, 1150 (2004).
6 Former CODE CIV. PROC. §§1713.1 et seq., repealed
by 2007 Cal. Stat. ch. 212, §1.
7 CODE CIV. PROC. §§1713 et seq.
8 CODE CIV. PROC. §1719(b); Manco, 45 Cal. 4th at
205-06.
9 Memorandum from Drafting Committee to Amend
the UFMJRA re Issues for Conference Consideration
at the 2004 Annual Meeting (June 7, 2004), available
at http://www.law.upenn.edu/bll/ulc/ufmjra/2004Ann
MtgRpt.htm.
10 Manco, 45 Cal. 4th at 205-07; Renoir, 123 Cal. App.
4th at 1151.
11 CODE CIV. PROC. §1718(a).
12 CODE CIV. PROC. §1718(b); Manco, 45 Cal. 4th at
205-07.
13 CODE CIV. PROC. §1715(a)(1).
14 CODE CIV. PROC. §1723; Manco, 45 Cal. 4th at
198; Renoir, 123 Cal. App. 4th at 1150; In re Stephanie
M., 7 Cal. 4th 295, 314 (1994).
15 Société Civile Succession Richard Guino v. Redstar
Corp., 153 Cal. App. 4th 697, 703-04 (2007); Island
Territory of Curacao v. Solitron Devices, Inc., 489 F.
2d 1313, 1323 (2d Cir. 1973).
16 CODE CIV. PROC. §1715(a)(2).
17 Former CODE CIV. PROC. §1713.2.
18 Manco, 45 Cal. 4th at 195-96, 201-02 (citing several out-of-state cases determining finality based on the
foreign country’s law). See also Hernandez v. Seventh
Day Adventist Corp., 54 S.W. 3d 335, 337 (Tex. App.
2001).
19 Manco, 45 Cal. 4th at 196. For an out-of-state case
reaching the same conclusion on the same rationale, see
La Société Anonyme Goro v. Conveyor Accessories,
Inc., 286 Ill. App. 3d 867, 870-71 (1997).
20 Former CODE CIV. PROC. §1713.3.
21 CODE CIV. PROC. §337.5.
22 CODE CIV. PROC. §1721. California shortened the
maximum limitations period in the model UFCMJRA
from 15 years to 10 years to make it consistent with
California’s domestic and sister-state limitations periods. Manco, 45 Cal. 4th at 209.
23 Manco, 45 Cal. 4th at 200, n.5; CODE CIV. PROC.
§1716(b); former CODE CIV. PROC. §§1713.2, 1713.4.
24 CODE CIV. PROC. §1720.
25 CODE CIV. PROC. §1715(b).
26 CODE CIV. PROC. §1715(c).
27 CODE CIV. PROC. §1716(d). The party contesting the
judgment also had the burden of proof before passage
of the old law. 164 East 72nd Street Corp. v. Ismay,
65 Cal. App. 2d 574, 576-77 (1944).
28 CODE CIV. PROC. §1716(b)(1).
29 Wilson v. Marchington, 127 F. 3d 805, 811 (9th Cir.
1997) (citing R ESTATEMENT (T HIRD ) OF F OREIGN
RELATIONS LAW §482, cmt. b.).
30 See Brazilian Inv. Advisory Servs., Ltda. v. United
Merchs. & Mfg., Inc., 667 F. Supp. 136, 138-39
(S.D. N.Y. 1987) (finding these procedures compatible with due process in a forum non conveniens proceeding).
31 See S.C. Chimexim, S.A. v. Velco Enters., Ltd., 36
F. Supp. 2d 206, 213 (S.D. N.Y. 1999) (Court under
the UFMJRA found due process in Romania even
while noting some abuses existed.).
32 Bank Melli Iran v. Pahlavi, 58 F. 3d 1406 (9th Cir.
1995) (addressing due process under former Code of
Civil Procedure §1713.4), cert. denied, 516 U.S. 989
(1995).
33 Society
of Lloyd’s v. Reinhart, 402 F. 3d 982, 994
(10th Cir. 2005); Society of Lloyd’s v. Ashenden, 233
F. 3d 473, 477 (7th Cir. 2000) (noting statute requires
examination of the system and rejecting “retail
approach” of examining individual case for due
process); RESTATEMENT (THIRD) OF FOREIGN RELATIONS
LAW §482, cmt. b (1987).
34 CODE CIV. PROC. §1716(b)(2), (3).
35 See Crockford’s Club, Ltd. v. Si-Ahmed, 203 Cal.
App. 3d 1402, 1406 (1988) (allowing recovery of a foreign judgment as a matter of comity even though it was
for a gambling debt); In re Hashim, 213 F. 3d 1169,
1172 (9th Cir. 2007)(citing RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW §482(2)(d) (1987)); Society
of Lloyd’s v. Webb, 156 F. Supp. 2d 632, 643-44
(N.D. Tex. 2001) (decided under the Texas version of
the UFMJRA).
36 Memorandum from Drafting Committee to Amend
the UFMJRA re Issues for Conference Consideration
at the 2004 Annual Meeting (June 7, 2004), available
at http://www.law.upenn.edu/bll/ulc/ufmjra/2004Ann
MtgRpt.htm.
37 CODE CIV. PROC. §1716(c)(1)-(6).
38 Under the UFMJRA, one unpublished case found
these defenses discretionary. Society of Lloyd’s v.
Byrens, 2003 U.S. Dist. LEXIS 26719, at *21 & n.2
(S.D. Cal. 2003) (unpublished).
39 CODE CIV. PROC. §1716(c)(7), (8); former CODE
CIV. PROC. §1713.4(b).
40 CODE CIV. PROC. §1717.
41 CODE CIV. PROC. §1722; former CODE CIV. PROC.
§1713.8.
42 Manco Contracting Co. (W.W.L.) v. Bezdikian, 45
Cal. 4th 192, 198 (2008); Bank of Montreal v. Kough,
430 F. Supp. 1243, 1249 (N.D. Cal. 1977).
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practice tips
BY MARC L. SALLUS AND JUSTIN B. GOLD
The Viability of No Contest Clauses in Estate Planning
REPORTS BY COMMENTATORS that the California Legislature is
eliminating the enforcement of no contest clauses in estate plans
are—as Mark Twain once quipped about reports of his death—
greatly exaggerated. While new laws—effective January 1, 2010—represent a serious effort by the legislature to reform no contest clauses,
the effect of the clauses remains. However, their impact may be
diminished by challenges based on probable cause.
The current law creates serious dilemmas for devisees. For example, a parent devises her estate equally between her two children, a
son and a daughter. However, just prior to the mother’s death, while
she is in the hospital and heavily medicated, the son convinces her to
amend her will to leave him 75 percent of the estate, with his sister
to receive only 25 percent. Moreover, the will contains a no contest
clause that disinherits any beneficiary who challenges its validity,
directly or indirectly. When the mother dies, the son petitions to probate the revised will.
The daughter is in a quandary. She must either accept the 25 percent share, even though she knows her mother intended for her to
receive half of the estate as evidenced by the original will, or challenge
the validity of the instrument and risk the consequences. Under the
current Probate Code, a challenge to the will on the grounds of
undue influence or lack of capacity would make the daughter vulnerable to complete disinheritance.
The well-established public policy for enforcing no contest clauses
is to discourage litigation and give effect to the expressed intent of
the testator or settlor.1 However, the statutory scheme as it exists now
has spawned confusing and at times contradictory decisions regarding when a clause will be enforced. To ameliorate this, the legislature
sought to overhaul the applicability and enforcement of no contest
clauses.
The Probate Code contains statutes that attempt to define what
actions are contests and therefore in violation of the no contest
clause. Under current law, Probate Code Section 21300 defines contests by dividing them between those that are direct and those that
are indirect.
Section 21300(b) defines a “direct contest” as any pleading alleging the invalidity of an instrument based upon revocation, lack of
capacity, fraud, misrepresentation, menace, duress, undue influence, mistake, lack of due execution, or forgery. Under Probate
Code Section 21300(c), an “indirect contest” involves a pleading in
any court proceeding that challenges the validity of an instrument
or one or more of its terms based on a ground not specified in
Section 21300(b).2
The broad language of these statutes essentially encourages litigation over whether a pleading violates the no contest clause, since
any challenge to the validity of a will or trust could be construed as
a contest. The reward for a successful challenge may be a substantially larger share of the property without any truly significant deterrent. The only risks for those claiming a violation of the clause is, first
and foremost, having their petition denied and secondarily enduring
the necessary delay required for making a determination one way or
the other.
To stem the increase of no contest litigation, the legislature enacted
Probate Code Section 21305 to specifically delineate those pleadings
that are statutorily not considered a contest. Among the section’s 15
categories of actions that are not contests are such commonly used
pleadings as petitions to compel an accounting and to remove a
trustee, and a pleading challenging the exercise of a fiduciary power.
These types of pleadings are covered by the section for instruments
executed after January 1, 2001.
However, even with the clear language of Probate Code Section
21305, practitioners cannot necessarily be free of the threat of a no
contest clause when filing a petition on any of these grounds. First,
practitioners must consider when the instrument was executed to determine if the statute even applies. If the instrument was executed
before 2001, the statute provides no protection.3 Further, the no
contest clause must be free of language that specifically characterizes
the action as a contest. Even if one fully complies with Section
21305, a court may still disregard it if the court believes that the underlying pleading, no matter how it is labeled, is a direct attack on the
will or trust at issue.4
Prudent action requires practitioners to protect their clients from
disinheritance—and themselves from a malpractice claim—by securing an advance determination, pursuant to Probate Code Section
21320, that a proposed petition or objection will not violate the no
contest clause if it is filed. Petitions filed under Section 21320 are
extremely common in probate court and effectively prolong litigation
for many months and even years if there is a trial and the order is
appealed. The evidentiary hearing can include extrinsic evidence, if
the evidence is relevant to the clause, as well as any evidence pertaining
to the execution of the instrument that helps to establish an ambiguity
in the clause.5
The lengthy delay caused by an evidentiary hearing and the
appellate process does not have an impact on any statutes of limitation. This is because Probate Code Section 21308 stays the applicable statute of limitations while the Section 21320 petition is pending. The party attacking the will or trust cannot be heard on his or
her proposed petition until there is a final determination of the
declaratory relief petition.
A precursor to the new laws, and another legislative attempt to
limit enforcement of no contest clauses, is Probate Code Section
21307. This section allows a potential contestant to challenge an instrument under certain conditions without triggering enforcement of
the no contest clause.
Probate Code Section 21307 provides:
[A] no contest clause is not enforceable against a beneficiary
Marc L. Sallus is a partner and Justin B. Gold is an associate of Oldman, Cooley,
Sallus, Gold, Birnberg & Coleman, LLP. Sallus and Gold practice in the area
of probate, trust, and conservatorship litigation.
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to the extent the beneficiary, with probable cause, contests a provision that
benefits any of the following persons:
(a) A person who drafted or transcribed the instrument.
(b) A person who gave directions to the
drafter of the instrument concerning
dispositive or other substantive contents of the provision or who directed
the drafter to include the no contest
clause in the instrument, but this subdivision does not apply if the transferor
affirmatively instructed the drafter to
include the contents of the provision or
the no contest clause.
Under current law, there is no provision
in the Probate Code other than Section 21307
that prevents enforcement of a no contest
clause on a party who files a direct contest
with probable cause. Therefore, under the
example, if the son wrote the entire will and
had his mother merely sign it, under Probate
Code Section 21307 the daughter would very
likely prevail if the son tried to enforce the no
contest clause against her. This is because
she has probable cause to bring the action.
But if the son simply arranged for an
attorney to visit with his mother and otherwise had no involvement with the will, any
action filed by the daughter to contest the will
would likely trigger the no contest clause
since, under current law, a direct contest triggers enforcement of a no contest clause, probable cause or not. Under current law, the
daughter’s only option would be to file a
Section 21320 petition for declaratory relief
for an advance determination that the proposed petition is not a contest of the will. If
the court denies that declaratory relief petition, then the daughter cannot file her contest
without risking forfeiture of her entire share
of the estate.
The New Laws and Probable Cause
Effective January 1, 2010, Part 3 of Division
11 of the Probate Code—encompassing current Probate Code Sections 21300 through
21322—will be repealed. The new laws limit
their application to three types of actions.
New Probate Code Section 21310(b)
defines “direct contest” as a contest that
alleges the invalidity of a protected instrument
or one or more of its terms, based on one or
more of the following grounds:
1) Forgery.
2) Lack of due execution.
3) Lack of capacity.
4) Menace, duress, fraud, or undue influence.
5) Revocation of a will, trust, or an instrument
other than a will or trust.
6) Disqualification of a beneficiary on the
grounds that he or she is a witness, a drafter
of the instrument, a care custodian of a depen22 Los Angeles Lawyer April 2009
dent adult, or a fiduciary who transcribes or
causes the instrument to be transcribed as
defined under Probate Code Sections 6112 or
21350.
New Probate Code Section 21310(b) does
not significantly change the current definition
of “direct contest” other than to add pleadings to disqualify beneficiaries pursuant to
Probate Code Sections 6112 or 21350 as
direct contests.
The most significant change to the law
affecting no contest clauses is in new Probate
Code Section 21311, which provides:
(a) A no contest clause shall only be
enforced against the following types of
contests:
(1) A direct contest that is brought
without probable cause.
(2) A pleading to challenge a transfer
of property on the grounds that it was
not the transferor’s property at the
time of the transfer. A no contest clause
shall only be enforced under this paragraph if the no contest clause expressly
provides for that application.
(3) The filing of a creditor’s claim or
prosecution of an action based on it.
A no contest clause shall only be enforced under this paragraph if the no
contest clause expressly provides for
that application.6
(b) For the purposes of this section,
probable cause exists if, at the time
of filing a contest, the facts known to
the contestant would cause a reasonable person to believe that there is a
reasonable likelihood that the requested relief will be granted after an
opportunity for further investigation or
discovery.
The effect of new Probate Code Section
21311 is dramatic. For most cases, the no contest clause will be triggered only when there
is no probable cause. Probable cause is a low
standard designed to protect a litigant’s right
to assert arguable legal claims: “The term
‘reasonable likelihood’ has been interpreted
as more than merely possible, but less than
‘more probable than not.’”7 Consequently, the
new probable cause standard, while a component of new laws aimed at reducing litigation over no contest clauses, is likely to
cause an increase in will or trust contests.
However, new Probate Code Section
21311(a)(2) and (3) still provides that when
testators or settlors expressly state in the no
contest clause that beneficiaries will be disinherited if they file a creditor’s claim or challenge a transfer of trust property on the
grounds that they own the property, probable cause will not protect the beneficiaries.
Estate planners most likely will be including
this language in all their no contest clauses,
since a failure to bar these actions in the no
contest clause will mean that the actions do
not constitute a contest.
Another significant alteration is the repeal
of Probate Code Section 21320. Under the
new laws, parties will no longer have an
express right to an advance ruling to determine whether or not the no contest clause will
be triggered by a proposed pleading. The
new laws apply to any instrument, whenever executed, that became irrevocable on
or after January 1, 2001.8 Instruments that
became irrevocable before January 1, 2001,
are subject to current law and not the new
changes.
Under the new laws, no contest clauses
will continue to be strictly construed in determining the intent of the transferor.9 Further,
the legislature has retained current Probate
Code Section 21302, which establishes that
the new laws apply notwithstanding a contrary provision in the instrument.10 Finally, the
new laws preserve current Probate Code
Section 21301, which provides that “this
part is not intended as a complete codification
of the law governing enforcement of a no
contest clause. The common law governs
enforcement of a no contest clause to the
extent this part does not apply.”11
Nevertheless, once the new laws go into
effect, under the example, the daughter’s risk
in challenging the will is reduced significantly.
Though her proposed filing will be construed
as a direct contest because probable cause
exists, the no contest clause will not be
enforced against her. Thus, the daughter may
litigate the merits of her claim, and the son
will be unable to hide his conduct behind
the cloak of forfeiture provided by the no contest clause.
The legislature’s stated goal of revising,
recasting, and clarifying the statutes pertaining to no contest clauses seems to have
been realized to some extent. Nevertheless,
the new statutes also leave many questions
unanswered.
It would still be desirable in most, if not
all, situations to obtain declaratory relief to
determine if the court believes a party has
probable cause to file a contest or if the
action otherwise violates the no contest
clause. This option, however, is seemingly no
longer available.
Practitioners desiring this relief still have
one prospect to pursue, however slim. While
the new laws have repealed Section 21320, the
Probate Code does not specifically state that
a party has no right to declaratory relief.
Prior to the enactment of Section 21320,
parties could seek declaratory relief in trust
and will cases pursuant to Code of Civil Procedure Section 1060. However, in 1994, presumably because of the enactment of Probate
Code Section 21320, Code of Civil Procedure
Section 1060 was amended to specifically
exclude trust and will cases. Consequently, it
seems that there is no statutory authority for
declaratory relief in these cases. Nevertheless,
new Probate Code Section 21313 does allow
for common law principles to apply. Since
Code of Civil Procedure Section 1060 no
longer allows declaratory relief in trust and
will cases, and since Section 1060 was enacted
in 1921, a party looking for authority for
declaratory relief must find supporting common law predating 1921.12
Effect of the New Statutes
The key question for determining whether a
party had timely probable cause is, what was
the basis for the contest at the time of the filing? It is important to recognize that the new
statutory language does not appear to allow
enforcement of the no contest clause against
a party who simply loses a contest. Rather, a
no contest clause can only be enforced against
a party if the court finds that, at the time the
pleading was filed, no reasonable person
would believe that the requested relief would
be granted after the party has an opportunity
of further investigation or discovery. While
probable cause at the time of filing protects
a contestant, the mere filing of a contest without probable cause can trigger the no contest
clause. Therefore, it is imperative that a contest not be filed just to investigate if a beneficiary has potential grounds for a contest.
Practitioners should be aware that the
attorney for an alleged contestant may be an
essential witness against a petition to enforce
the no contest clause. Attorneys could be
forced to testify regarding what they advised
their client regarding the existing grounds
for the action at the time of filing. Alleged contestants may be forced into a conflict between
the preservation of their attorney-client privilege and attorney work product protection
and the need for testimony to establish probable cause. Therefore, before filing any direct
contest on behalf of a client, practitioners
should ensure that probable cause can be
established without disclosing attorney-client
communications.
After January 1, 2010, filing a petition to
enforce a no contest clause against contestants
almost immediately after the contest is filed
may be an effective tactic. In defense of the
petition for enforcement of the no contest
clause, contestants will have to state all the
bases for their petition. If the court believes
that the contest lacks probable cause, the no
contest clause will be enforced. However,
even if the court finds that probable cause
does exist, contestants may still be forced to
state all the bases for their petition in a verified pleading. These facts could be beneficial
for trial preparation.
Thus, with the passage of the new laws,
the volume of litigation regarding no contest
clauses, which is currently large, may not be
reduced if the probable cause challenge
becomes common. This result may occur no
matter whether the litigation arises from a
petition for declaratory relief pursuant to
Probate Code Section 21320 or a petition
for enforcement of a no contest clause.
Extensive California authority spanning
more than a century supports the general
validity of no contest clauses that disinherit
a contesting heir. 13 According to the
California Supreme Court, “[E]ven though a
no contest clause is strictly construed to avoid
forfeiture, it is the testator’s intentions that
control, and a court must not rewrite the
[testator’s] will in such a way as to immunize
legal proceedings plainly intended to frustrate the [testator’s] unequivocally expressed
intent from the reach of the no contest
clause.”14 Yet despite these principles, the
effect of the new statutes will be to rewrite the
testator’s intent by allowing contests based
upon probable cause even when a no contest
clause expressly states otherwise. Litigants
with a reasonable belief that they will prevail
after being permitted to conduct some discovery are no longer deterred from contesting an estate plan under the new laws since
the probable cause standard drastically
reduces the probability of beneficiaries suffering from enforcement of a no contest clause
against them.
The only limited areas in which the law
preserves the teeth of a no contest clause are
either a creditor’s claim or a beneficiary’s
pleading claiming ownership of trust property—for example, a forced election. Still,
while no contest clauses may be enforceable
in actions in which the party had no real
basis for bringing the claim, the vast majority of beneficiaries can now escape forfeiture
simply by having probable cause.
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1 Burch
v. George, 7 Cal. 4th 246, 254-55 (1994).
CODE §21300(c).
3 Hermanson v. Hermanson, 108 Cal. App. 4th 441
(2003).
4 Zwitn v. Schweizer, 134 Cal. App. 4th 1153 (2005).
5 Burch, 7 Cal. 4th at 258, n.8.
6 New Probate Code Section 21311 (a)(2) and (3) has
codified what is known as a “forced election.”
7 Plumley v. Mocket, 164 Cal. App. 4th 1031, 1047
(2008); Law Revision Commission cmt. (2008 ed.).
8 New PROB. CODE §21315(a) (effective Jan. 1, 2010).
9 Current P ROB . C ODE §21304; new P ROB . C ODE
§21312 (effective Jan. 1, 2010).
10 See new P ROB . C ODE §21314 (effective Jan. 1,
2010).
11 See new P ROB . C ODE §21313 (effective Jan. 1,
2010).
12 Maurice E. Harrison, Forms of Declaratory Relief
at Equity and Law Pre-1921, 9 CAL. L. REV. 359 (July
1921).
13 Estate of Davies, 127 Cal. App. 4th 1164, 1172-73
(2005).
14 Id. at 1173; Burch v. George, 7 Cal. 4th 246, 25455 (1994).
2 PROB.
Mediator
Referee
Arbitrator
213-926-6665
www.judgecrispo.com
A
Fee
Change
by Kurt L. Schmalz
A recent California
Supreme Court decision
has eviscerated
the effectiveness
of the Mandatory
Fee Arbitration Act
Court in Aguilar v. Lerner3 found that the
binding arbitration clause in an attorneyclient fee agreement was not superseded by the
MFAA, but the majority opinion narrowly
based the decision on the client’s waiver of the
MFAA. Justice Chin, in a concurring opinion
joined in by two other justices, advocated
overruling Alternative Systems, Inc. v. Carey,4
a 1998 decision in which the court of appeal
held that the MFAA displaced agreements
between attorneys and clients for binding
arbitration of their fee disputes. Indeed, until
Schatz in January 2009, the prevailing view
was that the MFAA had implicitly repealed
the older California Arbitration Act (CAA)5
as it pertained to binding arbitration agreements between attorneys and clients over fee
disputes.
Although Alternative Systems and the
MFAA survived the Aguilar decision, Justice
Chin and his colleagues exposed significant
cracks in the MFAA edifice regarding its support of California’s strong public policy promoting a single binding arbitration pursuant
to the CAA. In Schatz, a unanimous court
upheld binding arbitration clauses, enforceable under the CAA, as being complementary
to—and not in conflict with—MFAA arbitration.
In 1976, the State Bar of California Board
of Governors found that attorney-client fee
disputes “were the most serious problem
between members of the bar and the public.”6
Kurt L. Schmalz, a shareholder in the Beverly Hills
law firm of Lurie, Zepeda, Schmalz & Hogan, specializes in business litigation in state and federal
courts.
RON OVERMYER
For more than 30 years, attorneys and clients
in California have resolved disputes over
legal fees and costs through the Mandatory
Fee Arbitration Act (MFAA).1 Under the
MFAA, local bar associations conduct nonbinding arbitrations for the disputants, and
parties dissatisfied with the result of an arbitration can move for a trial de novo in superior court. But the days of the MFAA appear
to be numbered. A recent California Supreme
Court case, Schatz v. Allen Matkins Leck
Gamble & Malloy LLP,2 has eviscerated the
MFAA and, if that were not enough, cases
construing the Federal Arbitration Act have
created authority that threatens to preempt
what little remains of the MFAA.
The unraveling of the MFAA has been
sudden, but it should not have been unexpected. In 2004, the California Supreme
The State Bar proposed the creation of a consumer-oriented arbitration system that would
counteract the perceived disparity in bargaining power between attorneys and clients.7
In enacting the MFAA, the California
Legislature opted to devise an arbitration
scheme that was separate and distinct from
the previously established CAA. Under the
MFAA, the State Bar Board of Governors
was tasked with setting up a system and procedure for the arbitration of disputes over fees
charged for professional services by members of the California bar or by members of
the bar of other jurisdictions.8
The MFAA offers a dispute resolution
scheme that includes arbitration, mediation,
and ultimately (if either party rejects the arbitration award) a trial in superior court. The
MFAA’s dispute resolution procedure is limited to disputes between attorneys and clients
over attorney’s fees and costs and is specifically inapplicable to “claims for affirmative
relief against the attorney for damages or
otherwise based upon alleged malpractice or
professional misconduct.”9 The MFAA system that has developed over the past 30 years
involves arbitrations conducted through local
bar association programs that are subject to
review by the State Bar Board of Governors.10
An MFAA arbitration usually is triggered
when an attorney sends a client a written
notice of the client’s right to arbitrate under
the MFAA. If the client fails to initiate an
MFAA arbitration before a local bar association within 30 days following receipt of this
notice, the client waives the right to arbitration under the MFAA, and the attorney is entitled to sue the client in court for fees or, if
appropriate, to initiate a private arbitration
outside the MFAA.11 The client can also
waive the right to an MFAA arbitration by
seeking judicial resolution of the fee dispute
or suing the attorney for legal malpractice or
other affirmative relief.12 If the attorney files
a lawsuit or other legal proceeding against the
client to collect fees (including a private arbitration) without giving the client written
notice of the right to MFAA arbitration, the
client can stay the legal proceedings by serving and timely filing a request for arbitration,
pursuant to the MFAA, or ask the court to
dismiss the legal proceeding brought by the
attorney.13
The MFAA, designed to be consumer
friendly, allows the client to participate in
the MFAA arbitration without having to hire
a second attorney. Indeed, the MFAA system is voluntary for the client but mandatory
for the attorney, if the arbitration procedure
is properly initiated by the client.14 However,
unlike arbitration under the CAA, the award
in an MFAA arbitration is only binding if neither the attorney nor the client rejects the
award and seeks a trial in superior court no
later than 30 days after service of the award
on the parties.15
Significantly, the ability of the parties to
reject an MFAA award and proceed to trial
in court is in conflict with California’s strong
policy that parties who agree to resolve their
disputes in private arbitration should be
allowed to do so in a single binding arbitration. Moreover, the MFAA is a “closed system” of special arbitration before local bar
associations, not a binding arbitration in a private forum like the American Arbitration
Association or similar organizations.16 The
hybrid nature of the MFAA system—a combination of nonbinding arbitration and judicial proceedings—clearly clashes with the
core concept of arbitration, which is the private resolution of a dispute in a single proceeding outside of court.
State and National Public Policy
The CAA, which was enacted in 1961, “represents a comprehensive statutory scheme
regulating private arbitration in California.”17
The CAA emphasizes private arbitration as a
favored procedure for “speedy and relatively
inexpensive means of dispute resolution.”18
In enacting the CAA, the legislature expressed
a “strong public policy” in favor of private
arbitration when the parties to a contract
have agreed to arbitrate their disputes.19 The
CAA sets forth procedures for the enforcement of agreements to arbitrate;20 establishes
rules for conducting arbitration proceedings,
but the parties may otherwise agree to their
own;21 describes the circumstances in which
the awards of arbitrators may be judicially
vacated, corrected, confirmed, and enforced;22
and specifies where, when, and how court
proceedings that relate to arbitration matters
will take place.23
Private arbitration is a policy priority not
only in California. The Federal Arbitration
Act (FAA) makes agreements to arbitrate disputes a national policy priority as well.24
Moreover, a growing body of case law cites
the federal preemption doctrine to invalidate
state laws that interfere with contracts
between parties to resolve disputes through
a single binding arbitration.25
Thus the interplay between the MFAA, on
the one hand, and the FAA’s strong public policy in favor of the contractual arbitration of
disputes, on the other, does not bode well for
the continued viability of the MFAA. In the
FAA, not only did Congress declare “a
national policy favoring arbitration,”26 but it
also used its authority to regulate interstate
commerce to withdraw the power of the
states to require a judicial forum for the resolution of claims that the contracting parties
agreed to resolve by arbitration.27
The FAA applies to arbitration provisions
in written maritime contracts or contracts
“evidencing a transaction involving commerce.”28 The courts have found the FAA to
apply when a contract facilitates interstate
commercial transactions or directly or indirectly affects commerce between the states.29
Given the wide scope of what constitutes a
transaction involving or affecting commerce,
few commercial transactions, including those
between attorneys and clients, would fall
outside the ambit of the FAA. Even a garden
variety sale of residential property in California was held to be a transaction involving interstate commerce when the purchase of
the property was financed by a Federal
Housing Administration loan and the parties
used the forms copyrighted by the National
Association of Realtors in the transaction.30
Accordingly, a large number of attorneyclient fee agreements in California could
involve commerce sufficient to invoke the
FAA—even agreements between a California
attorney and a California-based client.
The FAA establishes an obligation to arbitrate notwithstanding any state substantive or
procedural policy to the contrary.31 The
national policy in favor of arbitration applies
in state as well as federal courts and “forecloses state legislative attempts to undercut the
enforceability of arbitration agreements.”32
Thus, when parties agree to arbitrate all
issues arising under a contract, “state laws
lodging primary jurisdiction in another forum,
whether judicial or administrative, are superseded by the FAA.”33
The Impact of Schatz
The MFAA scheme clearly is fundamentally
different from binding arbitration under the
CAA or FAA. Until Schatz, the prevailing
view was that if an attorney and his or her
client specified in their initial fee agreement
that all disputes would be resolved by binding arbitration, the MFAA system displaced
binding arbitration for a fee dispute. In Schatz,
however, the California Supreme Court tried
to harmonize the MFAA’s nonbinding arbitration with the binding arbitration provided
for by the standard arbitration clause in attorney-client fee agreements enforceable under
the CAA.
As a follow-up to Justice Chin’s concurring opinion in Aguilar, the Schatz court
found that the MFAA’s right to a trial de
novo was not intended to override a contractual obligation to arbitrate disputes pursuant to the CAA. In examining the statutory
language of the MFAA and the CAA and
“the strong public policy in favor of binding
arbitration as a means of resolving disputes,”
the court found that after completion of the
nonbinding arbitration under the MFAA, the
dissatisfied party could seek a trial de novo
“unless the parties had agreed to binding
arbitration.”34 In that situation, according to
the court, the parties would move to a binding arbitration, as they had agreed, and not
to a trial in court.35 The justices rejected the
contention, adopted by the court of appeal
reviewing Schatz, that the MFAA had implicitly repealed a portion of the CAA as it related
to attorney-client fee disputes:
It would be illogical, and contrary to
the purpose behind both the MFAA
and the CAA, for the Legislature to
permit attorneys to evade their agreement to arbitrate if, but only if, the
client invokes the MFAA.…[A]n adoption of Schatz’s position of implied
repeal would result in a statutory
scheme that is quite illogical. Giving
effect to both the MFAA and the CAA,
on the other hand, would be consistent
with the distinct purposes behind both
of those statutory schemes.36
Despite the court’s efforts to harmonize the
MFAA system with CAA binding arbitration, after Schatz it is hard to tell what is really
left of the MFAA. Why would clients opt for
a nonbinding MFAA arbitration when they
had agreed to binding arbitration in the first
place? Are two arbitrations—one under the
MFAA and the other under the CAA—something that furthers a client’s interest in an
efficient and relatively inexpensive resolution of an attorney’s fee dispute? A nonbinding arbitration—with its significant filing
fees of up to $5,000 as well as other expenses
and burdens on the client—seems to be pointless.37 The client would be better off skipping
the nonbinding MFAA arbitration and adjudicating all claims against the attorney in a
single binding arbitration or, if the arbitration
clause is waived or challenged, in court. Two
arbitrations to solve one attorney-client fee
dispute is not the consumer-oriented, cost-efficient system that the MFAA was supposed to
create.
Before Schatz, clients could use the MFAA
system to avoid binding arbitration agreements they had signed, using the trial de
novo provision to get a jury trial. Schatz
closed the door on that strategy in those circumstances when a valid arbitration agreement exists between attorney and client.
Thus, there seems to be little upside for
clients to invoke the MFAA following Schatz.
The next step may be for the legislature to
clarify whether it actually intended for the
MFAA to modify the CAA for attorney’s fee
disputes. Alternatively, it may be time to
repeal the MFAA and have fee disputes governed by the CAA when attorneys and clients
have agreed to binding arbitration in their initial fee agreements.
Federal Preemption Analysis
In crafting a response to Schatz, the legislature should be mindful that the current MFAA
system does not fare well under a federal
preemption analysis involving the FAA. To
date, the issue of whether an arbitration
under the FAA supersedes the MFAA system
has not been squarely addressed in a published
decision by either the California state or federal courts.38 However, after Schatz, the likelihood is high that a state or federal court will
soon address the issue of whether the MFAA
is preempted by the FAA.
At first glance, an argument could be
made that an agreement between a Californialicensed lawyer and a California resident for
a legal matter arising in California does not
evidence “a transaction involving [interstate]
commerce.” Several unpublished California
cases have reached this conclusion and
rejected the FAA’s applicability to attorneyclient disputes.39 One recent published court
a completely intra-state transaction between
a California attorney and a California resident
could affect interstate commerce if either the
lawyer or client had offices outside California
or if significant meetings or depositions in the
case were expected to take place outside
California. Similarly, if lawyers touted themselves to clients as having a reputation for representing clients or handling matters outside
California, a court may find that the representation probably evidences interstate commerce. Also, if all or some of the defense
costs of an engagement are being paid by an
insurance company located outside California,
the effect on interstate commerce from the
payment of insurance money should be sufficient to trigger the applicability of the FAA
to a dispute between the attorney and the
client when there is a signed arbitration agree-
of appeal decision, in dictum, noted that
when parties have a California choice of law
provision in their agreement and choose to
arbitrate in accordance with California law,
preemption under the FAA would not
occur.40
However, the preemption analysis employed by federal courts, and a few California
courts, supports the argument that a fee
agreement between a California attorney and
a California client could evidence a transaction involving commerce or an activity that
directly or indirectly affects commerce.41 The
U.S. Supreme Court has stated repeatedly
that the practice of law is important to the
national economy and, in the aggregate, the
activities of lawyers have a significant effect
on interstate commerce.42 Thus, even though
a specific attorney-client agreement at issue
may not actually reflect a transaction in interstate commerce, the cumulative effect of this
legal activity creates an impact sufficient to
affect commerce and trigger the FAA.
Moreover, what might first appear to be
ment between them.
Given the apparent resistance of some
California courts to apply federal preemption
to state-mandated proceedings in conflict
with the FAA, attorneys who want their arbitration clauses to be enforceable should make
sure that their fee agreements include recitations of the interstate aspects of their engagement. For example, the fee agreement containing the binding arbitration clause should
include language about the interstate nature
of the legal profession and its impact on the
national economy. If out-of-state meetings
or depositions are contemplated or out-ofstate experts or consultants are expected to
be retained, those facts also should be referenced in the agreement, along with a statement that the arbitration will be conducted
pursuant to the FAA.
Of course, mere recitals will not create an
effect on interstate commerce where none
exists. Still, the marshaling of facts in the fee
agreement to show the transaction’s effect
on commerce could be the difference between
an enforceable binding arbitration clause and
one that opens the door to state-mandated
administrative or judicial proceedings. As
the U.S. Supreme Court has stated: “[A]ny
doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an
allegation of waiver, delay, or a like defense
to arbitrability.”43
While these precautions could make the
difference, ultimately practitioners will gain
further guidance from the inevitable head-on
clash between the FAA and the MFAA.
Recently, in Preston v. Ferrer, the U.S. Supreme Court held that the FAA preempts the
administrative review provisions of the
California Talent Agencies Act.44 In 1984, the
Supreme Court invalidated the arbitration
preclusion provisions of California’s Franchise
Investment Law on the basis of FAA preemption.45 The MFAA is likely to meet a
similar fate once the FAA preemption issue is
properly raised in court.
Even after the California Supreme Court
held in Schatz that binding arbitration could
replace the trial de novo option when the
parties had agreed to binding arbitration,
the nonbinding arbitration component of the
MFAA would probably conflict with the FAA.
As the U.S. Supreme Court noted in Preston,
“A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings
and expeditious results.’”46 The Preston Court
rejected the argument that an administrative
proceeding that merely postponed the arbitration did not conflict with the FAA.
According to the Court, the initial proceeding would delay the binding arbitration in
contravention of the intent of Congress to
move parties to an arbitrable dispute out of
court and into arbitration as quickly and
easily as possible.47
Accordingly, if the state legislature decides
to review the MFAA post-Schatz, it may want
to consider repealing the MFAA and letting
the CAA control fee disputes when the parties have agreed to binding arbitration.
Having attorney-client disputes for fees and
other issues, including legal malpractice,
resolved in a single binding arbitration rather
than multiple arbitrations or other proceedings could be a more efficient and inexpensive alternative to the present system.
Another legislative alternative would be to
keep the MFAA initial arbitration in place but
make that arbitration binding only on the
attorney. The client could reject the arbitration award and thereafter seek a trial de novo
or go to binding arbitration if the parties
had agreed to binding arbitration in the fee
agreement. The lawyer, however, would have
to accept the results of the MFAA arbitration.
Although many lawyers would object to such
an arrangement as being unfair, this change
in the MFAA by the legislature would be
consistent with its original consumer-oriented purpose.48 Moreover, the client would
have an incentive to use the MFAA, whereas
after Schatz the initial arbitration—which
either party could reject—would probably
be a waste of the client’s money. Clearly the
MFAA, without legislative resuscitation, has
reached the end of its useful life as an efficient
dispute resolution system.
■
1 BUS.
& PROF. CODE §§6200 et seq.
Schatz v. Allen Matkins Leck Gamble & Malloy
LLP, 45 Cal. 4th 557, 87 Cal. Rptr. 3d 700 (2009). The
court has extended the date for finalizing its opinion
until March 27, 2009, pending a decision on Schatz’s
request for modification of the opinion.
3 Aguilar v. Lerner, 32 Cal. 4th 974 (2004).
4 Alternative Sys., Inc. v. Carey, 67 Cal. App. 4th
1034, 1042 (1998).
5 The California Arbitration Act, CODE CIV. PROC.
§§1280 et seq.
6 Aguilar, 32 Cal. 4th at 983 (discusses background of
the MFAA and contrasts the MFAA dispute resolution
system with the CAA procedures).
7 Id.
8 Id.
9 BUS. & PROF. CODE §6200(a), (b)(2).
10 BUS. & PROF. CODE §6200(d).
11 BUS. & PROF. CODE §6201(a); see also Ervin, Cohen
& Jessup, LLP v. Kassel, 147 Cal. App. 4th 821, 82829 (2007) (Binding arbitration clause in an attorney fee
agreement is applicable when the client fails to invoke
MFAA arbitration within 30 days after written notice.).
12 BUS. & PROF. CODE §6201(d); see also Aguilar, 32
Cal. 4th at 988-89.
13 BUS. & PROF. CODE §6201(b), (c); see also Alternative
Sys., Inc. v. Carey, 67 Cal. App. 4th 1034, 1042
(1998).
14 BUS. & PROF. CODE §6200(c).
15 BUS. & PROF. CODE §6204(b), (c). In addition, the
parties can agree in writing that the MFAA award
shall be binding, provided that the agreement is made
after the fee dispute arises. B US . & P ROF . C ODE
§6204(a).
16 Aguilar, 32 Cal. 4th at 984.
17 Moncharsh v. Heily & Blase, 3 Cal. 4th 1, 9 (1992).
18 Id.
19 Id.
20 CODE CIV. PROC. §§1281.2–1281.95.
21 CODE CIV. PROC. §§1282–1284.2.
22 CODE CIV. PROC. §§1285–1288.8.
23 CODE CIV. PROC. §§1290–1294.2.
24 9 U.S.C. §§1 et seq.
25 Federal preemption is based upon the Supremacy
Clause in the U.S. Constitution, which provides: “This
Constitution, and the Laws of the United States…shall
be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. CONST. art. 6, cl. 2.
26 Southland Corp. v. Keating, 465 U.S. 1, 10 (1984).
27 Id.
28 Id. at 10; see also 9 U.S.C. §2.
29 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388
U.S. 395, 401-02 (1967).
30 Hedges v. Carrigan, 117 Cal. App. 4th 578, 586-87
(2004) (FAA preempted Code of Civil Procedure §1298
requirements for type size and warnings in arbitration
contracts.).
31 Southland Corp., 465 U.S. at 10.
32 Id. at 16.
33 Preston v. Ferrer, ___ U.S. ___, 128 S. Ct. 978, 981
2
(2008).
34 Schatz v. Allen Matkins Leck Gamble & Malloy,
LLP, 45 Cal. 4th 557, 87 Cal. Rptr. 3d 700, 712-13
(2009).
35 Id.
36 Id. at 713-14.
37 According to the current fee arbitration schedule for
the Los Angeles County Bar Association, administered
through Dispute Resolution Services, Inc., the filing fee
for a client is 7% of the amount in dispute when the
total dispute is $20,000 or more, with a $5,000 maximum. Thus, for a $75,000 fee dispute, a client pays
a $5,000 filing fee to initiate the nonbinding arbitration. As of January 1, 2009, the filing fee for an unlimited jurisdiction civil action in Los Angeles Superior
Court was $350. For a commercial claim over $10,000
but not exceeding $75,000, the American Arbitration
Association charges a filing fee of $950. Also, the AAA
charges a case service fee of $300, payable after the first
hearing. Ironically, the cost to the client to initiate a nonbinding MFAA arbitration is significantly more than
the other supposedly less consumer-friendly alternatives.
38 In a footnote in Aguilar, the California Supreme
Court declined “to address any issue concerning the
Federal Arbitration Act” because the parties had not
raised the issue. Aguilar v. Lerner, 32 Cal. 4th 974, 991,
n.8 (2004). Justice Moreno’s concurring opinion also
notes that the court was not addressing “whether a state
statute that precludes binding predispute arbitration
agreements of legal fees would be preempted by the
Federal Arbitration Act.” Id. at 994.
39 See, e.g., Goodrich, Goodyear & Hinds v. Conkle &
Olesten, 2002 WL 2005678 (Cal. App. 4th Dist. 2002)
(unpublished); Soni v. Sheldon & Mak, Inc., 2003
WL 23019405 (Cal. App. 2d Dist. 2003) (unpublished); Gemmel Pharmacies, Inc. v. Vienna, 2003 WL
22865624 (Cal. App. 2d Dist. 2003) (unpublished). But
see Mitchell, Silberberg & Knupp v. McDonald &
Co. Invs., 2002 WL 253920 (Cal. App. 2d Dist. 2002)
(unpublished). The court states in dictum that an attorney-client fee agreement between a California law firm
and a California client involved “commerce.”
40 Duffens v. Valenti, 161 Cal. App. 4th 434, 452
(2008) (Parties failure to properly develop facts relating to interstate commerce rendered analysis of FAA
preemption “speculative.”).
41 Reber v. Provident Life & Accident Ins. Co., 93 F.
Supp. 2d 995, 1009-10 (S.D. Ind. 2000) (“There can
be no doubt that the practice of law in the aggregate
significantly affects commerce.”); Miller v. Travelers Ins.
Co., 723 F. Supp. 1345, 1346 (E.D. Mo. 1989) (The
extent of interstate communication, travel, and commerce necessarily involved in the practice of law today
is evidence that practice of law is an activity “affecting commerce.”). Reber and Miller involved ERISA
jurisdiction, not the FAA, but the commerce analysis
appears to be similar under the two statutes.
42 Supreme Court of N.H. v. Piper, 470 U.S. 274, 281
(1985); Goldfarb v. Virginia State Bar, 421 U.S. 773,
788 (1975).
43 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614, 626 (1985).
44 Preston v. Ferrer, ___ U.S. ___, 128 S. Ct. 978, 989
(2008) (FAA preempts Labor Code §1700.44(a), a
provision of the California Talent Agencies Act.).
45 Southland Corp. v. Keating, 465 U.S. 1, 16 (1984)
(“We hold that §31512 of the California Franchise
Investment law violated the Supremacy Clause.”).
46 Preston, 128 S. Ct. at 986 (citations omitted).
47 Id.
48 This amendment would still face potential preemption under the FAA. However, with the amendment in
place, a party could argue that the initial arbitration
does not directly conflict with the FAA because it promotes binding arbitration consistent with the FAA
and the CAA.
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 STEPHEN G. MASON
THEPRICE
IS
RIGHT
After a long evolution in case law,
minimum resale price agreements
are no longer per se illegal
O
ver a year and a half ago, with
some fanfare, the U.S. Supreme Court overruled a 1911
decision, Dr. Miles Medical
Company v. John D. Park &
Sons Company.1 Dr. Miles held that it was illegal per se under Section 1 of the Sherman
Act2 for manufacturers to require their distributors to adhere to minimum resale prices.
This practice is known as resale price maintenance, and in the lexicon of antitrust law,
a practice is illegal per se only when it is so
inherently pernicious that no explanation
will save it. Justice Kennedy, writing for the
Court in Leegin Creative Leather Products,
Inc. v. PSKS, Inc,3 ruled that minimum resale
price agreements would no longer be illegal
per se but would be judged on a case-bycase basis under the rule of reason.4
The 5-4 decision in Leegin split down
ideological lines, ending a century-old article
of faith for liberal antitrust scholars. For
many, the demise of Dr. Miles—the last bulwark against vertical price fixing—will sound
the death knell for discounters. Since Leegin,
forces on both sides of the issue have been
vocal.
Tim Craig, writing in Retailing Today,
suggested that the end of Dr. Miles would
have a convulsive effect on retailing, forcing
millions of businesses to close.5 University
of North Florida marketing professor Gregory
Gunlach—an expert witness for the plaintiff
in Leegin—said, “What we’re seeing here is
the potential for a reshaping of the retail
landscape in America.”6
Are these theories plausible? The day after
Leegin was decided, Cendant Corporation,
parent of Avis and Budget Rent-a-Car, successfully moved the U.S. District Court in
Alaska to dismiss a vertical price-fixing case
brought against it by one of its franchisees.
Citing Leegin, the district court found that
while the challenged agreement might reduce
Stephen G. Mason is of counsel to the firm of
Newell, Campbell & Roché in Los Angeles, where
he practices general business litigation.
competition between Avis and Budget,
Avis remained competitive with Hertz and
National.7
Jacob Weiss, the owner of Baby-Age.com,
a seller of maternity items, said that since
Leegin, 100 of his company’s 465 suppliers
now require minimum pricing, and a dozen
suppliers no longer deal with his company.
Weiss said that if the trend continues it will put
him out of business.8 Brian Okin, founder of
online retailer WorldHomeCenter.com Inc.,
said, “[I]t’s becoming a nightmare operating a
business.”9 Okin is suing lighting supplier
L.D. Kichler on grounds that its minimum
price policy caused WorldHomeCenter to
forego substantial profits.10 In response, Kichler
states that it has no policy against discounting,
so long as prices are not advertised. Okin
claims that the policy selectively discriminates
against online retailers because the practice of
online retailing requires price posting.11
In May 2008, the attorneys general of 35
states wrote Congress asking that legislation
be enacted to reverse Leegin.12 Even consumers have been dragged into the fray. In
April 2008, the president of Old Mother
Hubbard Dog Food Company threatened to
cut off a retailer if it did not cease selling
Mother’s 30-pound bags at 20 cents below the
minimum price of $39.99. The retailer, Morris
Sussex Pet Supply, put up signage asking its
customers to boycott Old Mother Hubbard
Dog Food. A full 85 percent of Old Mother
Hubbard customers switched brands.13
When a century-old precedent is overruled, it is cause for comment and controversy
among the legal community. But in some
quarters there was more than that—a reaction
approaching shock. Whatever result one
might have desired in Leegin,14 it is curious
that Justice Breyer in his dissent should
suggest that Dr. Miles ought to have been
maintained on grounds that it is a “wellestablished…statutory precedent.”15 At its
conception, Dr. Miles was so tenuous a ruling that the Supreme Court tried, in effect, to
undo it as early as 1919. For 70 years after
that, its reasoning and validity were whipsawed from decision to decision. By the late
1980s it was clear to all but those still believing that the antitrust laws were enacted to further populist and sociopolitical aims that Dr.
Miles would not survive. On June 28, 2007,
Justice Kennedy pulled the plug.
Dr. Miles began with an actual Dr. Miles—
a maker of “secret medicines” who was, in
truth, a snake oil salesman. He controlled his
business through agreements requiring wholesalers and retailers to resell at minimum
prices. When a wholesaler refused to comply
and inveighed other wholesalers to do the
same, Dr. Miles sued for tortious interference with contract.
He was denied relief because the con30 Los Angeles Lawyer April 2009
tracts constituted illegal restraints of trade.16
The 1911 opinion, authored by Justice
Hughes, rests on two pillars. First, the agreements at issue in the case were substantially
no different than horizontal agreements
between dealers, and thus they had an effect
akin to that produced by a cartel. Second, they
constituted an impermissible restraint on
alienation.17
Colgate. But this did not restore Dr. Miles to
good health.
Case Law Presaging the End of Dr. Miles
The death of Dr. Miles lies not in the law of
resale “price” restraints but resale “nonprice”
restraints. “Resale nonprice” restraints—
such as territorial restrictions—are a subset
of what are called vertical restraints. Five
By the late 1980s it was clear to all but
those still believing that the antitrust
laws were enacted to further populist
and sociopolitical aims that Dr. Miles
would not survive.
Less than a decade later, the Supreme
Court tried to undo the mischief of Dr. Miles
by—as it so often does—creating more mischief. In United States v. Colgate & Company,18 the Court held that while resale price
maintenance was illegal, a manufacturer
could announce to the world the terms on
which it would do business, including resale
prices, and simply refuse to deal with those
unwilling to comply. This, said the Court,
was mere unilateral conduct and not subject
to the antitrust laws.19 However, this was a
fiction. A dealer who agreed to distribute the
product of a manufacturer that had
announced its price terms to the world had,
at a minimum, consummated an implied contract that was per se illegal under Dr. Miles.20
The conundrum remained unresolved for
decades. In opinions stretching from 1920 to
1960, the Court restricted Colgate’s already
limited utility, culminating in United States v.
Parke, Davis & Company.21 In that case,
the Court held that while a manufacturer
could announce the price terms on which it
would do business, under no circumstances
could it do more than that, such as enforce
the terms. Parke, Davis & Company, a
national distributor of pharmaceuticals,
decided not only to exercise its Colgate rights
but to enforce them. Justice Brennan held
that in so doing, the company had “put
together a combination in violation of the
Sherman Act.”22 This was because enforcement goes beyond the mere “unilateral act”
of refusing to deal with those who refuse to
comply. So, after Parke, Davis & Company,
a manufacturer could announce its terms,
sign up wholesalers and retailers and, if they
failed to comply, take one of two steps: 1) do
nothing, or 2) seek enforcement and risk a private, treble damages antitrust suit. Justice
Brennan and the majority effectively overruled
decisions chart their course.
In 1963 the Supreme Court decided White
Motor Company v. United States.23 White, a
maker of custom-built trucks, sought to maximize sales through franchise agreements
employing territorial and customer allocation restrictions. The justice department
claimed the restraints were per se illegal under
the Sherman Act, but the Court disagreed.
Adumbrating modern antitrust analysis,
Justice Douglas opined, “[T]his [Court]…
know[s] too little of the actual impact of…
that restriction…to reach a conclusion on
the bare bones of the documentary evidence
before us.”24 Justice Douglas was effectively
saying that the form of a restraint (in this case,
vertical) will not necessarily doom it if its
actual impact is not anticompetitive. But
what the Court giveth, the Court taketh away.
And four years later it did just that.
In United States v. Arnold, Schwinn &
Company25 Justice Fortas delivered a tangled opinion holding certain resale nonprice
restraints illegal per se. Schwinn sold to
wholesale distributors both outright and on
consignment, employing territorial restrictions and confining sales to franchised
Schwinn dealers. Fortas’s reasoning was formalistic—a stark counterpoint to that of
Justice Douglas in White Motor Company. In
a nod to Dr. Miles, Fortas hung his hat on
alienation. Where Schwinn departed “with
title, dominion, or risk with respect to the article,” the restraint was illegal per se. But in all
other circumstances he declined “to introduce the inflexibility which a per se rule might
bring if it were applied to prohibit all vertical restrictions of territory…where the manufacturer retained ownership of the
goods….”26 This reasoning may have something to do with property rights; it has nothing to do with competition and antitrust law.
MCLE Test No. 180
The Los Angeles County Bar Association certifies that this activity has been approved for Minimum
Continuing Legal Education credit by the State Bar of California in the amount of 1 hour.
MCLE Answer Sheet #180
THE PRICE IS RIGHT
Name
Law Firm/Organization
1. After Leegin Creative Leather Products, Inc. v.
PSKS, Inc., minimum resale price agreements are
legal.
True.
False.
2. Dr. Miles Medical Company sued John D. Park &
Sons Company for tortious interference with
contractual relations.
True.
False.
3. Manufacturers have not seized on Leegin to
impose minimum resale prices on distributors or
retailers.
True.
False.
the product through a discounter.
True.
False.
State/Zip
13. In the 1988 Business Electronics Corporation v.
Sharp Electronics Corporation decision, the U.S.
Supreme Court held that nonprice vertical restraints,
though leading to higher consumer prices, may be
legal so long as there is no actual agreement on
price.
True.
False.
INSTRUCTIONS FOR OBTAINING MCLE CREDITS
1. Study the MCLE article in this issue.
14. Among the benefits of online retailing is that it
does not present a forum for free riding.
True.
False.
5. The development of the law of vertical nonprice
restraints played an important role in paving the way
for the Leegin decision.
True.
False.
15. Prior to Leegin, vertical price-fixing agreements
were illegal per se under Sections 1 and 2 of the
Sherman Act.
True.
False.
6. Horizontal price-fixing agreements among
manufacturers lead to decreased output and
increased prices to the consumer.
True.
False.
16. Only in the Dr. Miles decision does the U.S.
Supreme Court rely on the concept of restraints on
alienation as a basis to prohibit minimum resale
price agreements.
True.
False.
8. Vertical restrictions, such as location clauses and
sales territories, can assist in creating increased
interbrand competition.
True.
False.
9. To survive summary judgment, a distributor need
only show that it was terminated by a manufacturer
following complaints of discounting by a rival
distributor.
True.
False.
10. A manufacturer may legitimately require retailers
to maintain a trained staff to demonstrate and
service its products.
True.
False.
11. The “free ride” problem exists when a purchaser
learns about a product through a premium dealer’s
point-of-sale services and demonstrations but buys
City
12. There is now a consensus among antitrust
scholars that the problem of free riding is properly
resolved through resale price maintenance.
True.
False.
4. The U.S. Supreme Court’s Colgate doctrine
clarified ambiguities in Dr. Miles by enabling
manufacturers to announce their resale prices.
True.
False.
7. Consumer welfare is not a proper focus of
antitrust law.
True.
False.
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ANSWERS
Mark your answers to the test by checking the
appropriate boxes below. Each question has only
one answer.
17. One of the arguments in favor of resale price
maintenance is that it can prevent excessive
competition among retailers that drives prices down
to levels at which a profit is no longer obtained or is
negligible.
True.
False.
1.
■ True
■ False
2.
■ True
■ False
3.
■ True
■ False
4.
■ True
■ False
5.
■ True
■ False
6.
■ True
■ False
18. It may always be necessary for certain luxury
goods to be sold through retail establishments to
retain brand perception and customer loyalty.
True.
False.
7.
■ True
■ False
8.
■ True
■ False
9.
■ True
■ False
10.
■ True
■ False
11.
■ True
■ False
12.
■ True
■ False
13.
■ True
■ False
14.
■ True
■ False
15.
■ True
■ False
16.
■ True
■ False
17.
■ True
■ False
18.
■ True
■ False
19.
■ True
■ False
20.
■ True
■ False
19. Vertically integrated manufacturers of consumer
goods will usually take advantage, through lower
prices, of efficiencies achieved at the retail level.
True.
False.
20. Economic consequences are not a valid basis on
which to base antitrust decisions.
True.
False.
In 1977 Schwinn was overruled in
Continental T. V., Inc. v. GTE Sylvania Inc.27
The Continental decision marks the Court’s
final and decisive rejection of per se illegality
in the area of resale nonprice restraints. The
case emerged when Sylvania sought to
increase its market share by selling to franchised retailers bound by location clauses
under which they could sell only from certain
locations. When Continental was forbidden
to sell Sylvania products through one of its
new outlets, it claimed the location clause was
illegal per se under Schwinn. Justice Powell,
writing for the majority, disagreed.
The Continental opinion is groundbreaking. It rejects Schwinn’s formalistic
distinctions and relies instead on economic
reasoning and business efficiency as key
elements in antitrust analysis. And while
Justice Powell conceded that certain vertical
restraints may restrain “intrabrand” competition (that is, competition among retailers selling the same brand), he recognized
that they may also create fierce “interbrand”
competition (competition among retailers
selling different brands), thus mitigating
anticompetitive dangers.28
Continental was the beginning of the end
for Dr. Miles. The ensuing decision in
Monsanto Company v. Spray-Rite Service
Corporation 29 is illustrative. Spray-Rite
claimed it was terminated following complaints of price cutting by fellow distributors.
Spray-Rite alleged a vertical price-fixing conspiracy between Monsanto and its other distributors. Monsanto said Spray-Rite was terminated because it failed to hire a trained
staff and promote sales. Monsanto moved
that the case be dismissed outright, citing no
evidence of a price-fixing scheme. Prior to
Monsanto, the mere fact of a complaining
competitor followed by termination would
have been enough to proceed to trial. In
Monsanto, Justice Powell declared that plaintiffs would henceforth be required to adduce
“evidence that tends to exclude the possibility of independent action by the manufacturer and distributor.” Moreover, “there must
be…evidence that reasonably tends to
prove…a conscious commitment to a common
scheme designed to achieve an unlawful objective.”30 Monsanto ensures the gains made in
Continental. It protects manufacturers using
procompetitive nonprice restraints (such as
requiring retailers to maintain trained staff)
from the threat of treble damage awards when
there is no evidence of collusion.
Finally, in 1988 the Court held in Business
Electronics Corporation v. Sharp Electronics
Corporation31 that it is not illegal per se for
a manufacturer to terminate a discounting
dealer at the insistence of a premium dealer,
even if it means higher consumer prices, so
long as the vertical agreement between the
manufacturer and premium dealer does not
contain an actual agreement on price. Business
Electronics was terminated by Sharp after
Sharp received complaints from a rival dealer
about price cutting. Business Electronics
claimed the real reason was a price-fixing
agreement between Sharp and the rival dealer,
but the agreement between Sharp and the
rival dealer had no price component. Instead,
the agreement required servicing, repair, and
product demonstration.
Justice Scalia, writing for the majority,
opined that “a vertical restraint is not illegal
per se unless it includes some agreement on
price or price levels.”32 Under Justice Scalia’s
analysis, Sharp could exercise its unilateral
Colgate rights and terminate Business
Electronics for discounting to ensure the premium dealer’s financial ability—through
higher prices—to engage in nonprice activity
essential to brand integrity. While the entire
arrangement could lead to a higher price, it
was not illegal per se under Dr. Miles.
After Business Electronics, the writing
was on the wall: All vertical restraints would
eventually be decided under the rule of reason.33 To understand why, it is necessary to
survey the economic debate that allowed the
Leegin Court to do what it did.
The Economics of Vertical Restraints
Settled law holds that restraints of trade having no effect other than to decrease output
and increase price should under no circumstance be tolerated.34 Thus, price fixing and
divisions of territories, when effected horizontally, are justly deemed illegal per se.35 But
in the area of vertical restraints the analysis
is different.
Horizontal arrangements exist between
parties who compete for market share at the
same level of distribution. They are usually
implemented with the intent and effect of
decreasing output while raising costs to consumers.36 In contrast, vertical arrangements
are not typically between competitors. Rather,
manufacturer and retailer may be cast as
partners or joint venturers, together seeking
optimum sales and distribution of a product.
In this light, vertical restraints are but a tool
in the distribution process. Whether a manufacturer places restraints on independent
retailers or integrates forward, building its
own retail network, it has no apparent incentive to restrict output.37
However, can it justly be said that because
a manufacturer builds its own distribution
and retail network it should also have unrestricted control over independent distributors? An independent retailer obtains efficiencies through its own business decisions;
for example, how it structures its financial
base, its choice of employees, its policies on
customer service, its product-line decisions,
where it will locate, and its choice of target
customers. Wise choices create efficiencies
leading to greater distribution and lower
prices, thus stimulating competition. But
when pricing and distribution are determined
solely at the manufacturing level, efficiencies may go unrealized. This is not easy to
rationalize.38
For example, a low markup policy will
generate increased sales. Increased sales not
only enhance retail profits but create efficiencies upstream at the manufacturing level.
Perhaps, then, the integrated manufacturer is
likely to take advantage of efficiencies in its
own retail operations in order to maximize
sales.39 Assuming this to be true, it is fair to
ask why a manufacturer would forego these
benefits when its distributor or retailer is
independent. Indeed, some have argued that
because the manufacturer’s natural concern
is to maximize return, it will often seek retailers and distributors who can market and distribute its product at less cost than the manufacturer can on its own. Arguably, when
this benefit is achieved, the manufacturer’s
interest will not lie in requiring the retailer to
increase the price of the product. The natural
consequence of this action would be a reduction in sales to the retailer and ultimately in
revenue to the manufacturer as requests for
orders falter.40
Nevertheless, the commercial reality is
that few manufacturers distribute through a
single source. Moreover, discord among retailers can wreak havoc upon a manufacturer’s
business. Intense intrabrand competition may
drive a price down to a point at which distributors and retailers, themselves unable to
sustain a return, demand that the manufacturer cut its wholesale price.41 This may be
feasible in some cases, but not if the manufacturer operates on a thin margin. Resale
price maintenance can alleviate this situation by stabilizing retail prices.
Indeed, broad-based assumptions about
vertical restraints are imperfect and unwise.
For example, a major objection to vertical
restraints is that they facilitate cartelization
at both the dealer and manufacturing levels.42 A cartel of retailers can deter holdouts
from the cartel by enlisting manufacturers to
impose resale price maintenance. Thus, in
this argument, resale price maintenance stabilizes the cartel, and defection—in the form
of price cutting—becomes more difficult.43
Resale price maintenance also is said to
effectuate manufacturer cartels because it
removes the incentive to cheat and, if cheating occurs, makes it more readily apparent.
A manufacturer will not defect from a cartel unless its cut in price can be passed on to
consumers—and this is impossible when
resale price maintenance is in place. Moreover, policing the cartel becomes easier
because a cut in price at the point of sale is
likely due to a defection.44
These arguments, however, are ill-conceived. They rely on naked horizontal restraints. It makes no sense to condemn horizontal restraints and vertical restraints if,
standing alone, the latter is found to enhance
efficiency. Joint ventures may facilitate a
“conspiracy,” yet joint ventures are not so
readily condemned.
The question of cartelization has been
addressed directly by Robert Bork, who
shows that when retailers carry a multiplicity of brands, an effective cartel would generally require fixed prices for all or most of
them, necessitating the cooperation of numerous manufacturers in the resale price scheme.
Not only would such an arrangement be
almost impossible to manage,45 but it is illogical to assume that manufacturers will be
easily seduced into participating in dealer
conspiracies designed to restrict output.46 A
high markup, low volume program is not in
a manufacturer’s best interest.
Bork believes that resale price maintenance is not a necessary means of policing
manufacturer cartels. Dealers usually carry
more than a single brand of any given product and “continually play one supplier off
against another….” Thus, when a manufac-
turer cheats on the cartel, cutting its price to
dealers, the dealers are likely to demand similar cuts from other manufacturers—and thus,
in the process, exposing the defector.47
The most widely offered justification for
vertical restraints (and resale price maintenance) is that they prevent “free riding.” In
the typical free-ride situation, dealer A has
invested a substantial sum in maintaining
adequate sales staff, repair services, and promotional devices, all desired by the manufacturer. Dealer B, selling the same product,
is a discounter and provides no point-of-sale
services. In this scenario, potential customers
may learn about the product through Dealer
A’s advertising, partake of A’s demonstration
program, and educate themselves with A’s
brochures, but the purchase will be through
Dealer B, the discounter.48
This is anticompetitive because, eventually,
the point-of-sale services and promotional
devices employed by Dealer A are necessary
to provide proper product reliability and to
engender goodwill among the manufacturer’s
target customers. Dealers will not long incur
the costs of maintaining necessary point-ofsale services when discounting rivals, constrained neither by resale price maintenance
nor the costs of providing such services, consistently underbid them.
The result is that ultimately no dealer
provides these services, product reliability
and appeal falter, and sales are lost, leading
to reduced output and decreased interbrand
competition.49 Proponents of resale price
maintenance argue that it prevents this unfair
result by not only foreclosing discounters
but also providing retailers with increased
profits, enabling them to engage in service and
promotional activity that will actually increase
demand and output.50
But is this a universal truth? Professor
Robert Pitofsky has argued persuasively
against resale price maintenance as a viable
remedy for free riding. He cites not only
what he sees as the pernicious cartel-like
effects of resale price maintenance, but that
it is probably incapable of inducing the activity that its proponents applaud. Pitofsky
questions whether increased profits with
respect to any given item will cause a retailer,
selling perhaps thousands of items, to increase
the level of its service or promotional activity.51 Moreover, assuming less than perfect
nonprice competition, what is to prevent the
retailer from simply pocketing increased profits?52 Pitofsky argues that since retailers form
the front line in customer contact, it is they
who are best able to determine what services
are needed to achieve optimum sales. When
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services are necessary, they can easily be contracted for separately between retailer and
customer.53
Online Retailing
This sampling of competing perspectives suggests at least some, or perhaps much, justification for the Leegin Court’s decision, which
is focused almost entirely on traditional retailing. Curiously absent from the Court’s analysis was a consideration of whether the advent
of online retailing will affect the arguments
for or against resale price maintenance.
While online retailing remains relatively
new, several themes have emerged regarding
the issue of vertical restraints. Generally,
online retailing can be said to have three
laudable characteristics: lower operating costs,
the instant availability of price comparison,
and broad and immediate product advertising and distribution, well beyond even catalog mailings.54 Is it a forum ripe for free riding and hence a justification for resale price
maintenance? There is evidence to suggest
this is so.
The classic example is the shopper who
visits brick-and-mortar establishments to
check out a product firsthand but who buys
the product online at a reduced price. One
study suggests that over a quarter of online
buyers investigate their purchases at brickand-mortar establishments before buying
online.55 In effect, these purchasers are free
riding on the investments of shop retailers in
their establishments.
Still, some have suggested that free riding
can work both ways in the world of e-commerce. For example, a potential buyer can
sample music or books online, read online
reviews and ratings, and eventually drive to
the local music or bookstore to make the
purchase.56
Yet another issue arises when a manufacturer sells its product through both brickand–mortar specialty retailers and online catalogs. The services offered by the online
retailer are static and represent fixed costs57—
no shop need be leased nor expenditures
made for a trained sales staff or expensive
décor, not to mention upkeep. But the costs
of actually running a store—such as hiring
employees and training them to explain luxury goods or to demonstrate specialty electronics—constitute a variable cost well
beyond what the online retailer must bear.58
When a manufacturer decides to dual-track
its retailing, the existence of the specialty
shop remains essential to maintaining brand
perception and, consequently, sales. In these
cases, resale price maintenance may be an
appropriate means of protecting brick-andmortar retailers and, in the process, ensuring
brand integrity.59
The broader question is the future of traditional retailing. The continued existence
of the retail shop does not seem in doubt.
First, a large segment of the population enjoys
the traditional, physical experience of shopping. Second, buyers who simply will not
purchase a good they have not first touched
and examined will remain a contingent with
which retailers must reckon.
Nevertheless, an increasing number of
manufacturers of consumer goods of all kinds
are vertically integrating, selling online and
only through their own specialty outlets. These
firms need not deal with independent wholesalers or retailers; they can dual-track sales
online and at the mall, all the while controlling point-of-sale pricing without regard to vertical pricing agreements. This is even more true
for those manufacturers that have decided to
forego all independent forms of distribution
and sales, selling to and servicing the public
directly and exclusively online.
Thus, the overruling of Dr. Miles was long
overdue, since commercial realities rendered
its utility questionable. For the massive discount retail industry that has emerged over the
last generation, the end of Dr. Miles and the
per se rule will likely have little effect.
■
1 Dr. Miles Med. Co. v. John D. Park & Sons Co., 220
U.S. 373 (1911).
2 The Sherman Act, 15 U.S.C. §1.
3 Leegin Creative Leather Prods., Inc. v. PSKS, Inc, ___
U.S. ___, 127 S. Ct. 2705 (2007).
4 Id. at 2710-12. The rule of reason employs a facts-andcircumstances inquiry to determine whether a given
practice is an unreasonable restraint of trade. The language of the Sherman Act has never been interpreted literally; only “unreasonable” restraints of trade are
unlawful. See State Oil Co. v. Khan, 522 U.S. 3, 10
(1997).
5 Tim Craig, Editorial, MSRP: Suggestion or Mandate?,
RETAILING TODAY, Apr. 9, 2007, at 11 (after Leegin half
of retail industry could perish).
6 Price-Fixing Makes Comeback after Supreme Court
Ruling, WALL ST. J., Aug. 18, 2008, at A1, A12.
7 Id.
8 Id. at A1.
9 Id. at A1, A12.
10 Id. at A12.
11 Id.
12 Id. (including the attorneys general of California,
Massachusetts, New York, and Pennsylvania).
13 Id.
14 The facts in Leegin are typical of vertical price-fixing cases. Leegin discovered that the plaintiff was
marking down its line by 20%. Leegin demanded that
the plaintiff cease discounting. When the plaintiff
refused, Leegin ceased doing business with the plaintiff. The plaintiff then filed suit alleging, inter alia,
price fixing. Leegin, 127 S. Ct. at 2710-12.
15 127 S. Ct. at 2731 (Breyer, J., dissenting).
16 Dr. Miles Med. Co. v. John D. Park & Sons Co., 220
U.S. 373, 408-09 (1911).
17 Id. at 404. No one today takes the second pillar seriously. At the time of Justice Hughes’s writing, restraints
on alienation were designed to prevent the removal of
real property from the stream of commerce. They
have nothing to do with consumer welfare and competition, the proper focus of antitrust analysis.
18 United States v. Colgate & Co., 250 U.S. 300 (1919).
19 Id. at 307.
20 Edward S. Cavanagh, Attorneys’ Fees in Antitrust
Litigation, 57 FORDHAM L. REV. 51, 63-64 (1988).
Professor Cavanagh aptly bemoans the hopeless confusion created “in the wake of the conceptual strains
created by the[se] early Supreme Court decisions….”
21 United States v. Parke, Davis & Co., 362 U.S. 29
(1960).
22 Id. at 43-44.
23 White Motor Co. v. United States, 372 U.S. 253
(1963).
24 Id. at 261.
25 United States v. Arnold, Schwinn & Co., 388 U.S.
365 (1967).
26 Id. at 378-80.
27 Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S.
36 (1977).
28 Id. at 54-56.
29 Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S.
752 (1984).
30 Id. at 762-63, 768.
31 Business Elecs. Corp. v. Sharp Elecs. Corp., 485
U.S. 717 (1988).
32 Id. at 735-36.
33 With few exceptions, both the Leegin majority and
dissent rely overwhelmingly on authorities extending
no further than Business Electronics. By the late 1980s,
all the essential arguments in favor of and against per
se illegality had been made and digested—and it was
clear that the per se rule would not survive.
34 See Northern Pac. Ry. Co. v. United States, 356 U.S.
1, 5 (1958).
35 See United States v. Socony Vacuum Oil Co., 310
U.S. 150, 223 (1940); and Addyston Pipe & Steel Co.
v. United States, 175 U.S. 211, 241 (1899).
36 Edward D. Cavanagh, Detrebling Antitrust Damages:
An Idea Whose Time Has Come?, 61 TUL. L. REV. 777,
784 (1987).
37 See ROBERT H. BORK, THE ANTITRUST PARADOX 28891 (1978); Joseph J. Spengler, Vertical Integration and
Antitrust Policy, 58 J. POL. ECON. 347 (1950) (Vertical
integration either increases efficiency or has neutral
effect, discussed in F.M. Scherer, The Economics of
Vertical Restraints, 52 ANTITRUST L.J. 687, 689 (1983)).
38 See L. SULLIVAN, ANTITRUST §134, at 380-81 (1977);
see also Robert Pitofsky, The Sylvania Case: Antitrust
Analysis of Non-Price Vertical Restrictions, 78 COLUM.
L. REV. 1, 19 (1978) (High markup yields reduced sales
volume.).
39 This is generally not true of forwardly integrated
manufacturers in an oligopolistic market in which
commodities are sold for commercial use, such as the
ammonia market.
40 See SULLIVAN, supra note 38, §134, at 380-81.
41 See Robert Pitofsky, In Defense of Discounters:
The No-Frills Case for a Per Se Rule against Vertical
Price Fixing, 71 GEO. L.J. 1487, 1491-92 (1983).
42 See SULLIVAN, supra note 38, §134, at 383-85.
43 See Pitofsky, supra note 41, at 1490; see also United
States v. General Motors Corp., 384 U.S. 127 (1966);
cf. SULLIVAN, supra note 38, §134, at 383. A dealers’
cartel is attractive only if the manufacturer sets supracompetitive prices. But to sustain sales at those prices,
the product must be sufficiently differentiated from others of its kind. Id.
44 See Pitofsky, supra note 41, at 1490-91.
45 See BORK, supra note 37, at 292.
46 See Frank H. Easterbrook, Vertical Arrangements
and the Rule of Reason, 53 ANTITRUST L.J. 135, 142
(1984) (“[A] manufacturer that helps dealers form a
cartel is doing itself in.”); cf. Richard A. Posner,
Antitrust Policy and the Supreme Court: An Analysis
of the Restricted Distribution, Horizontal Merger and
Potential Competition Decisions, 75 COLUM. L. REV.
282, 285 (1975) (no empirical evidence to support
dealer cartelization theory). But cf. Pitofsky, supra
note 41, at 1490 (“[E]xperience shows that…[a] manufacturer is often induced” to oversee dealer’s cartel.).
47 See BORK, supra note 37, at 293.
48 See George A. Hay, The Free Rider Rationale and
Vertical Restraints Analysis Reconsidered, 56 ANTITRUST L.J. 27, 29 & n.8 (1987).
49 See, e.g., RICHARD A. POSNER, ANTITRUST LAW 149
(1976).
50 See F.M. Scherer, supra note 37, at 692-93; cf.
BORK, supra note 37, at 296. But see William S.
Comanor, Vertical Price-Fixing, Vertical Market
Restrictions, and the New Antitrust Policy, 98 HARV.
L. REV. 983, 997-98 (1985) (unlikely demand and
output will increase because consumers do not value
new services uniformly).
51 Pitofsky, supra note 41, at 1493.
52 Pitofsky, supra note 38, at 20.
53 Pitofsky, supra note 41, at 1493 (Distributors can
be depended upon to recognize which services are
essential.).
54 See Note, Leegin’s Unexplored “Change In Circumstance”: The Internet and Resale Price Maintenance,
121 HARV. L. REV. 1600, 1610-14 (2008); see also
Judith A. Chevalier, Professor of Econ. & Fin., Yale
Univ. Sch. of Mgmt., Free Rider Issues and Internet
Retailing, Written Statement to the Federal Trade
Commission Public Workshop on Possible
Anticompetitive Efforts to Restrict Competition on
the Internet (Oct. 10, 2002), available at http://www.ftc
.gov/opp/ecommerce/anticompetive/panel/chevalier.pdf.
55 See Note, supra note 54, at 1616 (citing Sebastian
Van Baal & Christian Dach, Free Riding and Customer
Retention across Retailers’ Channels, J. INTERACTIVE
MARKETING (Spring 2005) 75, 81-82).
56 Chevalier, supra note 54.
57 See id.
58 See id.
59 See id.
by Michael A. Shimokaji and Philip L. Gahagan
MIND
OVER
MATTER
The Bilski decision, like others before it, reveals how courts
have frequently kept patent law lagging behind technology
several differing and changing tests, from a
strict no-mental-steps rule to the more recent
physical-transformation rule. The physicaltransformation rule essentially states that in
order for a process to be patentable, it must
undergo a physical transformation during
the process.2 Recently, a second proposed
test—utility—surfaced.
A string of recent cases stemming from the
U.S. Supreme Court’s Diamond v. Diehr3
decision and continuing through the recent In
re Bilski has outlined a utility-based test for
patentable subject matter as it pertains to
mental steps. Under the utility test, an invention is patentable subject matter under Section
101 if it produces a useful, concrete, and
tangible result.4
Beginning in the 1970s and continuing
through the 1980s, a series of three cases
laid the groundwork for what became the
transformation test for patentability of subject matter for processes. The first two cases
that led to the transformation test are
Gottschalk v. Benson5 and Parker v. Flook.6
In Benson, the court held that computer software was not patentable subject matter as a
process since the algorithm that it encompassed was a mathematical formula and,
therefore, a law of nature.7 The court specifMichael A. Shimokaji is a partner of Shimokaji &
Associates, P.C., in Irvine, California, where his
practice includes patent litigation. Philip L.
Gahagan is a second-year law student and Center
for International and Comparative Law Fellow at
Whittier Law School in Costa Mesa.
AMANE KANEKO
F
or many years, patent law has struggled with the question of whether a
series of thoughts can be patented.
Under the mental steps doctrine, the
answer was no. More recently, the answer has
been maybe. With In re Bilski, the U.S. Court
of Appeals for the Federal Circuit, which has
exclusive jurisdiction over patent appeals,
recently revisited the issue. The mental steps
doctrine holds that an invention is not entitled to patent protection if it involves only
mental steps. The threshold question concerns whether an invention constitutes
patentable subject matter under 35 USC
Section 101, which outlines four categories:
machines, processes, manufactures, and compositions of matter.1
Over the years, the courts have applied
ically stated that “transformation and reduction of an article ‘to a different state or thing’
is the clue to the patentability of a process
claim that does not include particular
machines.”8 This sentiment was continued in
Flook, in which the court held that the patent
being applied for was not patentable “not
because it contains a mathematical algorithm
as one component” but because there is a lack
of “inventive application of the principle.”9
In other words, it was not the fact that the
application involved a mathematical formula
that doomed it (as in Benson) but the lack of
application to an “invention.”10
In 1981, the courts continued down this
line of reasoning in the case of Diamond v.
Diehr, in which the U.S. Supreme Court reiterated the reasoning from Benson and Flook,
creating the transformation doctrine in which
the Court held that “transformation and
reduction of an article to a different state or
thing is the clue to the patentability of a
process claim” not involving machines.11
This “transformation” test focused solely on
whether a physical transformation occurs
during the process and on little else.
However, in the 27 years since the Diehr
decision, the Federal Circuit has expanded
upon the physical-transformation rule handed
down in Diehr. In the 1998 decision of State
Street Bank and Trust Company v. Signature
Financial Group, Inc., the Federal Circuit
held that the repetitive use of the term “any”
within 35 USC Section 101 shows congressional “intent not to place any restrictions on
the subject matter for which a patent may be
obtained beyond those specifically recited in
§ 101.”12 The court in State Street continued
to carve out an exception for the transformation of data and began to outline the formation of a “utility-based” test for patentability of subject matter under Section 101. The
court held that the transformation of data was
valid subject matter since it transformed and
produced a “useful, concrete, and tangible
result.”13 The court focused on whether the
transformation of the data involved was “useful” and not whether a strict physical transformation occurred.14
Over the next 10 years, the Federal Circuit
would continue to move further away from
a “physical transformation” test and move
closer and closer to the adopting of a utility
test in tune with the congressional desire to
allow “anything under the sun that is made
by man” to obtain a patent.15
The Utility-Based Test
In AT&T Corporation v. Excel Communications, Inc., the court noted that at one point,
the “PTO published guidelines essentially
rejecting the notion that computer programs
were patentable. As technology progressed,
the courts disagreed…and announced more
expansive principles formulated with computer technology in mind.”16 The Federal
Circuit, mindful that it could not overrule the
Supreme Court’s physical-transformation test
handed down in Diehr, telegraphed its intent
to limit the impact of the rule when it stated
that “the notion of physical transformation
can be misunderstood.” The physical-transformation test “is not an invariable requirement, but merely one example of how a
mathematical algorithm may bring about a
useful application.”17 In this manner, the
Federal Circuit has effectively displaced the
Supreme Court’s physical-transformation test
and supplanted it with a utility test as the standard for patentability of subject matter under
Section 101. The utility test asserts that a
process is patentable if the process produces
a “useful, concrete, and tangible result.”18 The
Federal Circuit in AT&T reinforced the trend
away from requiring a physical transformation when it explained that an invention that
dealt solely in numbers did not “render it
non-statutory subject matter, unless, of course,
its operation does not produce a ‘useful, concrete, and tangible result.’”19
The court’s shift to the utility test from
more outdated legal methodologies is also
evidenced by the Federal Circuit’s most recent
reinterpretation of the mathematical algorithm exception established in State Street.
The court explained that if a process uses a
mathematical algorithm to achieve a “new
and useful end, it ‘at the very least is not
barred at the threshold by §101.”20 While
there are conflicting decisions in the case law,
the utility test appears to have taken root as
the new standard for determining patentable
subject matter under Section 101.
The twin cases of In re Comiskey21 and In
re Nuijten,22 decided in late 2007, epitomize
the struggle over whether the physical-transformation test retains any applicability.
Although the decisions were published on
the same day, they came to different conclusions concerning the patentability of mental
steps processes. The court in Comiskey effectively held that an invention must include a
physical transformation in order for it to be
the type of thing for which a patent is granted.
This conclusion was reached by following a
line of cases that had ultimately held that
mental steps processes must be tied to another
category of subject matter in order to be
patentable.23 The court in Comiskey breathed
renewed life into the mental steps doctrine by
once again concluding that mental steps were
not patentable subject matter and likened
them to abstract concepts.24
However, the Nuijten court ultimately
avoided the question of the patentability of
mental steps processes by holding that the
proposed invention, a method for embedding a “watermark-type” signal within an
audio or video format, did not fall into any
category of Section 101 and therefore was not
patentable subject matter since it was neither
a process (as the court defined it), method,
composition of matter, nor a machine.25
Comiskey and Nuijten illustrate the continuing struggle of courts to apply the physicaltransformation test and the utility test, as
well as whether mental steps processes are
patentable.
For example, after granting an en banc
hearing and collecting some 100 plus amici
curiae briefs, the Federal Circuit Court of
Appeals decided in Bilski that the utility
test was not the test that should be used in
order to ascertain whether a process application indicates Section 101 patentable subject matter. In Bilski, the court held that
“while looking for a ‘useful, concrete, and
tangible result’ may in many instances [be
useful]…that inquiry is insufficient to determine whether a claim is patent-eligible under
§101.”26 The court then proceeded to reaffirm the preeminence of the transformation
test, stating that in order to denote
patentable subject matter, the process must
be tied to a particular machine, or transform
an article “to a different state or thing.”27
However, while the court completely dismissed the utility test, it left open the possibility—discussed in the appellant’s supplemental brief—that a patentable process
could involve, if not be based completely on,
several mental steps.
In explaining this new reasoning, the court
held that “the proper inquiry under Section
101 is not whether the process claim recites
sufficient ‘physical steps,’ but rather the claim
meets the machine-or-transformation test.…A
claim that purportedly lacks any ‘physical
steps’ but is still tied to a machine or achieves
an eligible transformation passes muster
under §101.”28 As to what constitutes an
“eligible transformation,” the court was a
little unclear. The court did hold that the
“transformation” must be one that “is central to the purpose of the claimed process”
and that the patentability of a process that
involves a “chemical or physical transformation of physical objects or substances”
was “virtually self-evident.”29 Whether the
purported transformation could take place
entirely in the ether of computer circuitry is
less certain.
The court, however, reaffirmed a previous
ruling in which it held that the transformation of raw data into a particular visual depiction of a physical object on a display “was sufficient to render that more narrowly-claimed
process patent-eligible.”30 As the court stated:
“[T]he claim was not required to involve any
transformation of the underlying physical
object that the data represented.”31 The court
continued on—perhaps leaving the door of
mental steps patentability
open—by stating: “[S]o long
as the claimed process is limited to a practical application
of a fundamental principle to
transform specific data, and
the claim is limited to a visual
depiction that represents specific physical-objects or substances,” the claim would not
be preemptive and would be
patentable under Section 101.
Mental Steps after Bilski
To understand why mental
steps should be patentable, a
review of first principles is in
order. The patent system is
mandated by the U.S. Constitution in order to “promote the Progress of Science
and the useful Arts.”32 To
achieve this goal, the patent
system stimulates “the creative activity of authors and
inventors by the provision of
a special reward [a limited
monopoly], and [allowing]
the public access to the products of the genius after the
limited period of exclusive
control has expired.”33 By
allowing a creator to establish
a limited monopoly over the
invention, the sciences and useful arts are
promoted. Society reaps the benefits of the
invention during and after the grant of
monopoly. The Supreme Court has stated
that the patent system was created to foster
productive efforts that, in turn, will have a
positive effect on society.34 This is the constitutional and public policy backdrop against
which the debate about patenting of mental
processes is conducted.
In 1952, the 82nd Congress rewrote what
was essentially a nineteenth century version
of the patent laws by creating what became
Title 35 of the U.S. Code.35 Two important
changes were that Congress eliminated the
term “art” from the categories of patentable
subject matter, replacing it with the term
“process,” and added a definition of the term
“process” in what would become Sections
100 and 101.
The legislative history contains an explanation of the intent of Congress when it
changed “art” to “process.” Congress
explained that the change was necessary in
order to clarify that Congress intended “art”
in this instance to be synonymous with
“process or method” and not to be the same
as “useful art” or the way the term is used in
“other places in the statute.”36 In order to
make its intent clear, Congress included a
definition of the term “process” in the statute.
Congress defined it to be “a process, art or
method, and includes a new use of a known
process, machine, manufacture, composition
of matter, or material.”37 While usage of the
term “process” in its own definition is problematic, this usage indicates that the process
category is a separate category of patentable
subject matter independent of any of the
other physical categories of subject matter
(machine, manufacture, composition of matter, or material). The legislative history supports this interpretation.38
Congress placed no further limitation or
restriction on the categorical definition. It is
a judicially created truism that the courts
“should not read into federal patent laws
limitations and conditions which [the] legislature has not expressed.”39 Since Congress
did not divide processes into “mental” and
“physical,” the suggestion that somehow
these two categories exist—one patentable
and the other not—runs contrary to congressional intent.
Since enactment of Title 35, courts have
interpreted it as an effort to “to change the
slow but steady drift of judicial decision[s]
that had been hostile to patents.”40 This sentiment was echoed by Supreme Court Justice
Robert Jackson, who wrote in 1949 that
there existed a “strong passion in this Court for striking
[patents] down, so that the
only patent that is valid is
one which this Court has not
been able to get its hands
on.”41 Thus, when Congress
changed the patent laws in
1952, the change was meant
to create a broader and more
patent-friendly system. As the
legislative history illustrates,
“anything under the sun that
is made by man” and fulfills
the conditions of the title is
worthy of patent protection.42 The wide berth given
to the subject-matter standard derives from these
patent-friendly policies.
The courts have interpreted the usefulness of an
invention in similar terms of
benefits to society. Courts
have used language such as
“capacity to perform function,” practicability, and
accomplishment of a “purpose practically when applied
in industry.” 43 Therefore,
utility is found in the practicability and application of
the process and not from the
process itself or an intraprocess transformation. Under this rubric,
mental steps processes that are practicable,
accomplish a purpose, and are applicable to
industry and do not fall into the judicially created pitfalls of unpatentable subject matter
(e.g., abstract concepts) denote patentable
subject matter. This formulation is also in
line with congressional intent to create a system that would benefit society. A mental steps
process that conforms to these practical
requirements is within the applicability and
social usefulness standard from which
patentability derives.
Alternatively, if the physical-transformation test were to be held as the standard for
patentability of a process, the utility and usefulness of the process is taken out of the
equation. This would, in turn, defeat the purpose of granting a patent. Precedents and
legislative history illustrate that the genius of
the patent system rests in the dual benefit
conferred upon inventor and society. The
inventor benefits monetarily from the limited monopoly, and society benefits from the
invention.44
While Bilski disavowed the utility test as
the test for patentability of subject matter, it
did recognize that the standard could be beneficial and did not bar the courts from using
the standard entirely. Therefore, it could be
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argued that it would be prudent for a court
to employ the utility standard in a case in
which additional factors were needed in order
to ascertain patentability. While the Bilski
court merely mandated that the courts employ
the machine or transformation standard first,
it did not state that the standard should never
be employed.
Additionally, cases that potentially prevent
the patentability of mental steps processes
run contrary to congressional intent of fostering invention and rewarding risk.
Technology has evolved to the point where
many processes do not have physical representations. The final product of these
processes may be useful, but they would fail
a physical-transformation test for subject
matter, since no corresponding physical material is produced or changed. Advances in
computer science and related industries are
illustrative and have made it routine that
nothing physical is involved in processes that
have a useful result.45 Software patents typically recite how the physical components of
the computer act as a result of the software’s
instructions. Essentially, the mental step
processes in the software are being patented.
Freeing software patents from physical computer components would be a major improvement in patent law.
Furthermore, the court’s assertion that a
process claim must be tied to another category
of subject matter in order to be patentable (in
this instance, the category of machines) erodes
the process category as a separate category of
patentable subject matter. If a process were
tied to another category of subject matter, then
it would cease to truly be a process. Instead,
it would simply be a new and useful way to
use a machine, or manufacture, or composition of matter, which would effectively eliminate the process category as a separate category of patentable subject matter. This would
be a way to make a process invention truly
patentable, not because it is a process under
Sections 100(b) and 101 but rather because
it would fall within one of the other categories
of subject matter. Thus, once this position is
broken down, it becomes apparent that this
first prong of the court’s machine-or-transformation test is essentially a pure transformation test, only by another name.
The physical-transformation test was
workable in a world where most inventions
were physical things. But it is arguably an outdated test of patentability in the twenty-first
century. The Bilski court’s reemphasis on the
machine-or-transformation test, however,
indicates the court’s unwillingness to move
forward and evolve the patent law system.
Nevertheless, even under the recently affirmed
machine-or-transformation test, mental steps
processes, in their current forms, are not
unpatentable per se. Instead, an added layer
of judicial scrutiny must be applied in order
to ascertain whether or not the process is
patentable. In the end, the courts must finally
recognize that mental steps processes are
essential to the evolution of both technology and society and deserve protection. ■
1 35
U.S.C. §101 (2000).
v. Benson, 409 U.S. 63 (1972).
3 Diamond v. Diehr, 450 U.S. 175 (1981).
4 State Street v. Signature Fin. Group, Inc., 149 F. 3d
1368, 1374 (Fed. Cir. 1998).
5 Gottschalk, 409 U.S. 63.
6 Parker v. Flook, 437 U.S. 584 (1978).
7 An algorithm is “a mathematical or logical process
consisting of a series of steps, designed to solve a specific type of problem.” BLACK’S LAW DICTIONARY (8th
ed. 2004).
8 Gottschalk, 409 U.S. at 70.
9 Parker, 437 U.S. at 594.
10 Id.
11 Diamond v. Diehr, 450 U.S. 175, 184 (1981).
12 State Street v. Signature Fin. Group, Inc., 149 F. 3d
1368, 1373 (Fed. Cir. 1998).
13 Id. at 1373.
14 Id. at 1374.
15 Id. at 1373 n.3.
16 AT&T Corp. v. Excel Commc’ns, Inc., 172 F. 3d
1352, 1356 (Fed. Cir. 1999).
17 Id. at 1359.
18 See State Street, 149 F. 3d at 1374.
19 AT&T Corp., 172 F. 3d at 1359.
20 Id. at 1357.
21 In re Comiskey, 499 F. 3d 1365 (Fed. Cir. 2007).
22 In re Nuijten, 500 F. 3d 1346 (Fed. Cir. 2007).
23 In re Comiskey, 499 F. 3d 1365, 1377 (Fed. Cir.
2007).
24 Id. at 1377-78.
25 Nuijten, 500 F. 3d 1346.
26 In re Bilski, 545 F. 3d 943, 88 U.S.P.Q. 2d 1385 (Fed.
Cir. 2008)(en banc), available at http://www.cafc
.uscourts.gov/opinions/07-1130.pdf (visited Oct. 30
2008).
27 Id. at 956.
28 Id. at 961.
29 Id. at 962.
30 Id. at 963.
31 Id.
32 U.S. CONST. art. I, §8.
33 Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 429 (1984).
34 Kewanee v. Bicron, 416 U.S. 470, 480 (1974).
35 ROBERT PATRICK MERGES & JOHN FITZGERALD DUFFY,
PATENT LAW AND POLICY: Cases and Materials 10
(Lexis 2007).
36 1952 U.S.C.C.A.N. (66 Stat.) 2398.
37 35 U.S.C. §100(b).
38 1952 U.S.C.C.A.N. (66 Stat.) 2410.
39 Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980).
40 Reiner v. I. Leon Co., 285 F. 2d 501, 503 (2d Cir.
1960).
41 Jungerson v. Otsby & Barton Co., 335 U.S. 560, 572
(1949).
42 1952 U.S.C.C.A.N. (66 Stat.) 2399.
43 See Curtis-Wright Corp. v. Link Aviation, Inc., 182
F. Supp. 106 (N.D. N.Y. 1959); Isenstead v. Watson,
157 F. Supp. 7 (D.C. D.C., 1957); General Steel Prods.
Co. v. Lorenz, 337 F. 2d 726 (5th Cir. 1964).
44 See Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 429 (1984).
45 In In re Bilski, the process for which a patent was
sought has no physical substance but is useful in that
it helps shield users from risks due to fluctuations in the
markets due to demand.
2 Gottschalk
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CA 90017, (213) 627-8280, fax (213) 627-8301,
e-mail: kschulze@schulzehaynes.com. Web site:
www.schulzehaynes.com. Contact Karl J.
Schulze, principal. Specialties: forensic business
analysis and accounting, lost profits, economic damages, expert testimony, discovery assistance, business valuations, construction claims, corporate recovery, financial analysis and modeling, major professional organizations, and have experience across
a broad spectrum of industries and business issues.
Degrees/licenses: CPA; CVA; CFE; ABV; PhD-economics.
WHITE, ZUCKERMAN, WARSAVSKY, LUNA,
WOLF & HUNT
Oaks, CA 91423, (818) 981-4226, fax (818) 9814278; 363 San Miguel Drive, Suite 130, Newport
Beach, CA 92660, (949) 219-9816, fax (949) 2199095; 831 State Street, Suite 291, Santa Barbara,
CA 93101, (805) 648-4088, fax (805) 963-4088,
e-mail: expert@wzwlw.com. Contact Barbara Luna
or Bill Wolf. Expert witness testimony for complex
litigation involving damage analyses of lost profits,
unjust enrichment, reasonable royalties, lost earnings, lost value of business, forensic accounting,
fraud investigation, investigative analysis of liability,
marital dissolution, and tax planning and preparation.
Excellent communicators with extensive testimony
experience. Prior Big Four accountants. Specialties
include accounting, breach of contract, business interruption, business dissolution, construction defects, delays, and cost overruns, fraud, insurance
bad faith, intellectual property including trademark,
patent, and copyright infringement, and trade secrets, malpractice, marital dissolution, personal injury, product liability, real estate, tax planning and
preparation, IRS audit defense, tracing, unfair advertising, unfair competition, valuation of businesses,
and wrongful termination. See display ad on
page 49.
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 L. Bass,
CPA, David Dichner, CPA, ABV, CVA, 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, settlement negotiations,
and consultations. See display ad on page 65.
ADA/DISABILITY DISCRIMINATION
HAIGHT CONSULTING
1726 Palisades Drive, Pacific Palisades, CA 90272,
(310) 454-2988, fax (310) 454-4516. Contact Marcia Haight, SPHR. Human resources expert knowledgeable in both federal and California law. Twentyfive years’ corporate human resources management
experience plus over 19 years as a Human Resources Compliance Consultant in California. Specializations include sexual harassment, ADA/disability
discrimination, other Title VII and FEHA discrimination
and harassment, retaliation, FMLA/CFRA, safety, and
wrongful termination. Courtroom testimony and deposition experience. Retained 60 percent by defense, 40 percent by plaintiff. Audit employer’s actions in preventing and resolving discrimination, harassment, and retaliation issues. Assess human resources policies and practices for soundness, for
comparison to prevailing practices, and for compliance. Evaluate employer responsiveness to complaints and effectiveness of employer investigations.
Assist counsel via preliminary case analysis, discovery strategy, examination of documents, and expert
testimony.
ANESTHESIOLOGY/PAIN MANAGEMENT
SHLOMO ELSPAS MD
1200 North State Street, Suite 14901, Los Angeles,
CA 90033, (323) 226-4597, e-mail: selspas@aol
.com. Contact Shlomo Elspas, MD. Education:
MIT, Harvard, UCLA. Specialties: clinical assistant
professor of Anesthesiology at USC-Keck School of
Medicine. Board certified in anesthesiology, with fellowships in pediatric and obstetric anesthesiology,
and pain management. Regional, nerve block, hypotensive, transfusion-free, and safety in anesthesia.
Consultation and expert witness for plaintiff and defense.
APPRAISAL & VALUATION
FULCRUM INQUIRY
CA 90017, (213) 787-4100, fax (213) 891-1300,
page 1.
HARGRAVE & HARGRAVE
(310) 576-1090, fax (310) 576-1080, e-mail: terry
@taxwizard.com. Web site: www.taxwizard.com.
Contact Terry M. Hargrave, CPA/ABV/CFF,
CFE. Litigation services for family law and civil cases.
Past chair of California Society of CPAs’ Family Law
Section, business valuation instructor for California
CPA Foundation. Services include business valuations, income available for support, tracing separate
property, litigation consulting, real estate litigation,
mediation, fraud investigations, damage calculation,
and other forensic accounting work.
HIGGINS, MARCUS & LOVETT, INC.
CA 90017, e-mail: info@hmlinc.com. Web site:
www.hmlinc.com. Contact Mark C. Higgins, ASA,
president. The firm has over 25 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 61.
WARONZOF ASSOCIATES, INC.
2250 East Imperial Highway, Suite 120, El Segundo,
CA 90245, (310) 322-7744, fax (310) 322-7755.
Web site: www.waronzof.com. Contact Timothy R.
Lowe, MAI, CRE. Waronzof Associates provides
real estate and land use litigation support services including economic damages, lost profits, financial feasibility, highest and best use, property value, enterprise value, partnership interest and closely-held
share value, fair compensation, lender liability and reorganization plan feasibility. Professional staff of four
with advanced degrees and training in real estate, finance, urban planning and accounting. See display
ad on page 53.
ATTORNEY FEES
LAW OFFICES OF PHILLIP FELDMAN
Oaks, CA 91403, (818) 986-9890, fax (818) 9861757, e-mail: LegMalpExpert@aol.com; StateBarDefense@aol.com; PreventativeLaw@aol.com. Web
sites: www.LegalMalpracticeExperts.com; www
.LegalEthicsExperts.com. Contact Phillip Feldman. Certified SPECIALIST professional liability-legal
CA/ABA. Former judge pro tem—25 years. FEE DISPUTE Arbitrator—31 years. Forty years ETHICS, Bar
prosecution/defense. Consulting EXPERT. Testifying
EXPERT 28 years: standard of care, causation, fiduciary duties, professional responsibility and ethics,
and fee disputes. Any underlying case-litigation,
transaction, family, administrative, state or federal.
Former accountant, degree BS, MBA. Former managing partner plaintiff and defense firms. Also State
Bar Defense Counsel and preventative law.
AUDIO/VIDEO FORENSIC
AUDIO ENGINEERING ASSOCIATES
1029 North Allen Avenue, Pasadena, CA 91104,
(626) 798-9128, fax (626) 798-2378, e-mail:
stereoms@aol.com. Web site: www.wesdooley.com.
Contact Wes Dooley. Enhancement and authentication fixed price intelligibility evaluations. Audio and
video evidence analysis.
AUTOMOTIVE
JOHNSON FORD, INC.
1155 Auto Mall Drive, Lancaster, CA 93534, (661)
949-3586, ext 200, fax (661) 949-8803, e-mail:
flyingmj1@aol.com. Web site: www.auford.com.
Contact Michael Johnson. Auto industries: all
sales, DMV, pay plans, Song-Beverly, Magnus Moss,
advertising and all other issues regarding the automotive retail business. Thirty-seven years in the business, 30 years as a dealer.
EXPERT WITNESS IN GENERAL
CONTRUCTION FORENSICS
M.A. CALABRESE
ASSOCIATES
Contractor’s License No. 496208-B
MULTIPLE TRADE DISCIPLINES
30 YEARS HANDS-ON EXPERIENCE
• Mold growth due to
water intrusion
• Moisture intrusion
cause and origin
• Standards of care
applied
• Professional diligence
• Job site safety
• Property maintenance
and safety effects
• Contractor license laws
• Mechanic’s liens
• Project value analysis
• Cost estimates &
comparisons
TEL:
CSLB Construction
Consultant
CSLB Arbitrator of
Construction Disputes
Instructor Contractor
State License Exam
626.825.5444 FAX: 626.359.1908
E-MAIL:
foren6guy@earthlink.net
P.O. Box 50534, Pasadena, CA 91115
www.macalabreseassociates.com
SEAN SHIDEH, P.E.
19167 Harliss Street, Northridge, CA 91324, (818)
276-5995, e-mail: seanshideh@gmail.com.
Providing comprehensive expert consulting in automotive litigation cases: Automotive manufacturing,
and design defects analysis. Vehicle suspension/
handling testing and failure analysis. Vehicle brake
performance and failure analysis. Seatbelt/Airbag
design and protection performance analysis. Vehicle
fire root cause analysis. Mr. Shideh is a registered
professional mechanical engineer in the state of California. He has over 28 years of experience investigating various vehicle systems, including 18 years
for major manufacturers. He has performed numerous vehicle crash and safety compliance tests under
contract with the National Highway Traffic Safety Administration. Mr. Shideh’s work includes vehicle
crashworthiness and structural integrity, occupant
protection performance, suspension/handling and
brake performance. Automotive product liability issues that require specialized knowledge, testing and
research to determine product design defects, product failure, and product misuse. Expert consulting in
the area of automotive forensics including accident
reconstruction, injury biomechanics, safety systems,
human factors, and product failure analysis. Our
clients include law firms, insurance companies, government agencies, and fleet operators throughout
North America, all benefiting from the depth of experience we have developed over the past 25 years.
See display ad on page 63.
AUTOMOTIVE ACCIDENT INVESTIGATION
DR. WILLIAM D. GUENTZLER FORENSICS
INTERNATIONAL
10298 Hawley Road, El Cajon, CA 92021, (619)
390-9081, cell (619) 823-9081, fax (619) 390-9086,
e-mail: forensicsintl@cox.net. Contact William D.
Guentzler, PhD. Dr. Guentzler has over 30 years of
experience as an expert witness and forensic examiner and 36 years as a university professor. He is licensed in the state of Arizona as a private investigator. His expertise includes auto, truck, ATC, ATV,
motorcycle, motor homes, and golf carts. He also
specializes in braking systems, ignition, fuel systems,
cooling, electrical and battery explosions, as well as
vehicle fire cause and origin.
AVIATION
✒ 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...
ARGOS ENGINEERING
44 Argos, Laguna Niguel, CA 92677, (949) 3638205, fax (949) 429-5972, e-mail: johndpratt@cox.
net. Web site: www.argos-engineering.com. Contact John D. Pratt, PhD, PE. Litigation consulting,
inspections, expert reports, patent infringement and
validity analysis, deposition, and trial testimony.
AVIATION CONSULTING SERVICES
P.O. Box 1522, San Carlos, CA 94070, (650) 5081079, fax (650) 508-9005, e-mail: avconsult@aol
.com. Web site: www.avconsult.com. Contact
Capt. Robert E. Norris. Expertise: general aviation/airline ground/flight operations, flight crew hiring,
training, evaluation, checking, standard of care dictated by FARs and ICAO, review of aircraft accidents
attributable to “pilot error,” flight crew employability/
earnings model, and wrongful termination/discrimination. Experience: UAL Captain, flight manager,
FAA Check Airman, Hughes Aircraft—engineering
psychologist, owner/operator FAA-141 Flight
School/FAA maintenance repair facility, BS, ATP,
Typed B-737,757/767, DC8/10, flight dispatcher,
author.
BANKING
Contact Michael Krycler
PHONE (818) 995-1040
FAX (818) 995-4124
E-MAIL MIKE@KETW.COM
VISIT US @ www.KETW.COM
15303 VENTURA BOULEVARD, SUITE 1040
SHERMAN OAKS, CALIFORNIA 91403
@mcsassociates.com. Web site: www.mcsassociates
.com. Contact Norman Katz, managing partner.
Nationally recognized banking, finance, insurance,
and real estate consulting group (established 1973).
Experienced litigation consultants/experts include
senior bankers, lenders, consultants, economists,
accountants, insurance underwriters/brokers. Spe-
cialties: lending customs, practices, policies, in all
types of lending (real estate, subprime, business/
ANDELA CONSULTING GROUP, INC.
91436, (818) 380-3102, fax (818) 501-5412, e-mail:
ttarter@earthlink.net. Contact Thomas A. Tarter,
managing director. Former CEO of two banks.
Lending, forgery, endorsements, letters of credit,
guarantees, lender liability, checking accounts, credit
cards, credit damages, and bankruptcy. Expert witness, litigation consulting. Expert referral service escrow, corporate governance, mortgage banking,
and real estate. Over 900 cases national and international. See display ad on page 69.
BANKRUPTCY
FULCRUM INQUIRY
CA 90017, (213) 787-4100, fax (213) 891-1300,
professors, and industry specialists. Our analysis
and research combined with unique presentation
techniques have resulted in an unequaled record of
successful court cases and client recoveries. Our expertise encompasses damages analysis, lost profit
studies, business and intangible asset valuations,
appraisals, fraud investigations, troubled company
consultation, statistics, forensic economic analysis,
royalty audits, strategic and market assessments,
computer forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs,
CFAs, ASAs, PhDs and MBAs in accounting, finance, economics, and related subjects. See display ad on page 1.
BANKRUPTCY/TAX
Experienced litigation consultants/experts include
senior bankers, lenders, consultants, economists,
accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all
types of lending (real estate, subprime, business/
ANDELA CONSULTING GROUP, INC.
91436, (818) 380-3102, fax (818) 501-5412, e-mail:
ttarter@earthlink.net. Contact Thomas A. Tarter,
managing director. Former CEO of two banks.
Lending, forgery, endorsements, letters of credit,
guarantees, lender liability, checking accounts, credit
cards, credit damages, and bankruptcy. Expert witness, litigation consulting. Expert referral service escrow, corporate governance, mortgage banking,
and real estate. Over 900 cases national and international. See display ad on page 69.
CA 90024, (310) 873-1680, fax (310) 873-6600.
overall strategy. Help evaluate depositions and evidence. Provide well-prepared, well-documented,
and persuasive in-court testimony regarding compli-
cated accounting, financial, and business valuation
matters, fairness of interest rates, feasibility of reorganization plans, fraudulent conveyances, bankruptcies, mergers and acquisitions, and management
misfeasance/malfeasance. More than 100 opencourt testimonies, federal and state, civil and criminal. See display ad on page 57.
BIOMECHANICS/ RECONSTRUCTION /
HUMAN FACTORS
INSTITUTE OF RISK & SAFETY ANALYSES
Kenneth A. Solomon, PhD, PE, Post PhD, Chief
Scientist. 5324 Canoga Avenue, Woodland Hills,
CA 91364, (818) 348-1133, fax (818) 348-4484,
e-mail: biomech@irsa.us. Web site: www.irsa.us.
Specialized staff of 23, broad range of consulting
and expert testimony, 36 years of courtroom experience. Accident reconstruction, biomechanics,
human factors, safety, accident prevention, adequacy of warnings, COMPUTER ANIMATION and
SIMULATIONS, construction defect, criminal defense, criminal prosecution, premises, product integrity, product liability, product testing, warnings,
and lost income calculations. Auto, bicycle, bus,
chair, elevator, escalator, forklift, gate, ladder, machinery, motorcycle, press, recreational equipment,
rollercoaster, slip/trip and fall, stairs, swimming pool,
and truck. Litigation and claims; defense/plaintiff; educational seminars; and mediation and arbitration
services.
BUSINESS
ROBERT C. ROSEN
Wells Fargo Center, 333 South Grand Avenue, Suite
1925, Los Angeles, CA 90071, (213) 362-1000, fax
(213) 362-1001, e-mail: robertrosen@rosen-law
.com. Web site: www.rosen-law.com. Specializing in
securities law, federal securities law enforcement, securities arbitration, and international securities, insider trading, NYSE, AMEX, NASD disciplinary pro-
ceedings, broker-dealer, investment company and
investment adviser matters, liability under federal and
state securities laws, public and private offerings, Internet securities, and law firm liability. AV rated. Former chair, LACBA Business and Corporations Law
Section; LLM, Harvard Law School. More than 36
years practicing securities law, 12 years with the
U.S. Securities and Exchange Commission, Washington, DC. Published author/editor of securities regulations, including multivolume treatises. See display ad on page 55.
BUSINESS APPRAISAL/VALUATION
Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types
of lending (real estate, subprime, business/commercial, construction, consumer/credit card), banking
operations/administration, trusts and investments,
economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith,
real estate brokerage, appraisal, escrow, and construction defects/disputes, and title insurance.
BRIAN LEWIS & COMPANY
10900 Wilshire Boulevard, Suite 610, Los Angeles,
CA 90024, (310) 475-5676, fax (310) 475-5268.
Contact Brian Lewis, CPA, CVA. Forensic accounting; business valuations; cash spendable reports; estate, trust, and income tax services.
COHEN, MISKEI & MOWREY LLP
Oaks, CA 91403, (818) 986-5070, fax (818) 986-
5034, e-mail: smowrey@cmmcpas.com. Web site:
www.cmmcpas.com. Contact Scott Mowrey.
Specialties: consultants who provide extensive experience, litigation support, and expert testimony regarding forensic accountants, fraud investigations,
economic damages, business valuations, family law,
bankruptcy, and reorganization. Degrees/license:
CPAs, CFEs, MBAs. See display ad on page 67.
CONCRETE INSIGHTS CORPORATION
1040 East Howell Avenue, Anaheim, CA 92805,
(877) 231-1020, fax (714) 634-4933, e-mail: info
@concreteinsights.com. Concrete Insights Corp.
(CIC) specializes in evaluating all aspects of concrete, cement, and cement-containing materials, including constructed work, plans and specifications,
deliveries, installation, workmanship, material conformance, and material properties. CIC examines the
work and responsibilities of various parties in disputes, including owners, developers, general concrete and specialty contractors, materialmen, and related entities on projects during construction through
the warrantee period, and through the service life of
the work. Whether working directly for them, their insurers and/or attorneys, and often working in response to claims of construction defects, consequential damage, or other construction and payment
disputes, the consultation of CIC evaluates design,
installation, and performance of the many varieties of
concrete and related materials, including cement,
aggregates, admixtures, supplementary cementing
materials, plaster, gunite, masonry, integral colors,
and related ingredients. Frequently provided services
also include the assessment of distress or damage
to such construction, whether due to poor performance, overloading, earthquakes, fires, floods, soil
conditions, or improper maintenance. CIC also reviews contracts, specifications, construction documents, and testing and inspection work records for
comparison with industry standards.
90071-2005, (213) 553-2500, fax (213) 553-2699,
G. Strong, Jr., Richard W. Dalbeck, Katie J. Galley, Elaine Harwood, Carlyn Irwin or Elisabeth
Browne. Cornerstone Research provides attorneys
with expert testimony and economic and financial
analyses in all phases of commercial litigation. We
work with faculty and industry experts in a distinctive
partnership that combines the strengths of the business and academic worlds. Our areas of expertise
include identifying and supporting expert witnesses
in intellectual property, antitrust, securities, entertainment, real estate, financial institutions, and general
business litigation.
FULCRUM INQUIRY
CA 90017, (213) 787-4100, fax (213) 891-1300,
page 1.
90067, (310) 552-0960, fax (310) 557-3468, e-mail:
rwatts@gursey.com or swasserman@gursey.com.
Web site: www.gursey.com. Contact Robert Watts
or Stephan Wasserman. Gursey/Schneider is an
accounting firm specializing in forensic accounting,
litigation support services, business valuation, and
appraisal services for a variety of purposes including
marital dissolution, gift and estate planning, eminent
domain, goodwill loss, business disputes, malpractice, tax matters, bankruptcy, damage and costprofit assessments, insurance claims, and entertainment industry litigation. Gursey/Schneider has over
30 years experience as expert witnesses in litigation
support. See display ad on page 51.
HAYNIE & COMPANY, CPAS
4910 Campus Drive, Newport Beach, CA 92660,
(949) 724-1880, fax (949) 724-1889, e-mail:
sgabrielson@hayniecpa.com. Web site: www
.hayniecpa.com. Contact Steven C. Gabrielson.
Alter ego, consulting and expert witness testimony in
a variety of practice areas: commercial damages,
ownership disputes, economic analysis, business
valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists
in courtroom presentations.
CA 90017, e-mail: info@hmlinc.com. Web site:
www.hmlinc.com. Contact Mark C. Higgins, ASA,
MARCUS + THOMSEN, INC.
880 Apollo Street, Suite 139, El Segundo, CA
90245, (310) 416-1116, fax (310) 416-1117, e-mail:
bmarcus@marcusandthomsen.com. Web site:
www.marcusandthomsen.com. Contact Burton H.
Marcus. With backgrounds in business, economics,
finance, marketing, and psychology, Marcus +
Thomsen Inc. (MTI) professionals clarify and frame
key economic and valuation issues, respond effectively to client needs, and produce credible and wellsupported opinions and expert testimony. MTI’s primary areas of focus include: economic damage assessment; business, intangible asset and intellectual
property valuation; partnership interest valuation;
goodwill valuation; and industry, market, product,
and competitive analysis. Licenses/degrees held by
professional staff: CFA, ASA, PhD, MBA.
10474 Santa Monica Boulevard, Suite 200, Los
Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: sfranklin@cbiz.com. Web site: www
CA 90017, (213) 627-8280, fax (213) 627-8301,
SINAIKO HEALTHCARE CONSULTING, INC.
1875 Century Park East, Suite 2100, Los Angeles,
CA 90067, (310) 551-5252, fax (310) 551-5414, email: Jeff.Sinaiko@sinaiko.com. Web site:
www.sinaiko.com. Contact Jeff Sinaiko. Sinaiko is
a nationally recognized healthcare consulting firm.
Our professionals are handpicked for their broad understanding of the industry, detailed expertise and
superior communication skills. Clients have found
this expertise invaluable in litigation support where
there is no substitute for experience. Sinaiko’s litigation support practice includes, among others, industry standard practices evaluations; Medicare/Medicaid fraud; provider/payor payment disputes; business valuation; transaction disputes; and facility and
professional fee billing.
SQUAR & ASSOCIATES
2064 Phalarope Court, Costa Mesa, CA 92626,
(714) 825-0300, fax (866) 810-9223, e-mail:
rsquar@squarassociates.com. Web site: www
.squarassociates.com. Contact Richard
Squar.Professional litigation support services and
forensic accounting. Specialty areas include expert
witness testimony; damages calculations and lost
profits and lost revenues analysis; civil litigation and
arbitration ; business valuation; business owners’
disputes; accounting malpractice; purchase value
analysis; critique of other experts’ testimony, litigation, and valuation reports; taxation issues; fiduciary
accounting; development of economic, financial and
accounting analyses and models; financial statements analysis; business dissolution; marital dissolution; discovery assistance; and, breach of contract
matters. Many industries represented including professional practices, services, real estate, accounting,
insurance, manufacturing, and distributorships. Expertise in taxation and accounting for business entities including corporations, S corporations, limited liability companies, limited liability partnerships, partnerships and sole proprietorships. Certified Public
Accounting, Certified Valuation Analysis, Accredited
in Business Valuation, Certified in Financial Forensics. See display ad on page 53.
VICENTI, LLOYD & STUTZMAN LLP
2210 East Route 66, Suite 100, Glendora, CA
91740, (626) 857-7300, fax (626) 857-7302, e-mail:
RStutzman@vlsllp.com. Web site: www.VLSLLP
.com. Contact Royce Stutzman, CVA, CPA/ABV,
Chairman. At VLS, we’ve built a team of certified
valuation and forensic professionals with rich experiences and dedication to a wide variety of attorneys
and business owners. We provide responsible and
effective business valuation services and litigation
support to hundreds of clients in California. We conduct valuations related to mergers and acquisitions,
buy-sell agreements, purchase or sale of a business,
and partner disputes. Our forensic accounting experts assess the amount of an economic loss,
whether it be business interruption from casualty, unfair competition, condemnation, damage caused by
others, or loss of earnings from various events. For
planning and compliance, we work closely with attorneys and other professionals to prepare succession
and exit plans for business owners and to minimize
estate tax. These may include charitable remainder
trusts, family limited partnerships, defective trusts, irrevocable trusts, fractional interests and more. We
pride ourselves on the quality of the relationships we
build and the outcomes we achieve for our clients.
Call our Valuation Advisors today for your free consultation at (626) 857-7300. Making A Positive Difference Since 1953.
WOLF & HUNT
CA 93101, (805) 648-4088, fax (805) 963-4088, email: expert@wzwlw.com. Contact Barbara Luna
page 49.
11900 West Olympic Boulevard, Suite 650, Los Angeles, CA 90064-1151, (310) 826-1040, fax (310)
CEMENT & CONCRETE PRODUCTS
(877) 231-1020, fax (714) 634-4933, e-mail: info
the work. Whether working directly for them, their insurers and/or attorneys, and often working in response to claims of construction defects, conse-
Expert witnesses and litigation consultants for complex litigation
involving analyses of lost profits, lost earnings and lost value of
business, forensic accounting and fraud investigation
Other areas include marital dissolution, accounting and tax
Excellent communicators with extensive testimony experience
Offices in Los Angeles and Orange County
Call us today. With our litigation consulting, extensive experience and
expert testimony, you can focus your efforts where they are needed most.
818-981-4226 or 949-219-9816
www.wzwlw.com
expert@wzwlw.com
As an Expert Witness in Real Estate Litigation, Attorney
LAWRENCE H. JACOBSON
has consistently been on the Winning Team
• Real estate and
mortgage brokers’
standard of care
• Lawyer malpractice
in business and real
estate transactions
• Interpretation
of real estate
documents
Practicing real estate law in California since 1968. Member, Executive Committee, Beverly Hills Bar Association.
Former Vice President-Legal Affairs, California Association of Realtors. California Real Estate Broker since 1978.
LAWRENCE H. JACOBSON AB, UCLA 1964, JD UCLA SCHOOL OF LAW 1967
Tel 310.271.0747 Fax 310.271.0757 email law.jac@lhjpc.com www.lawrencejacobson.com
LAW OFFICES: 9401 WILSHIRE BLVD. SUITE 1250, BEVERLY HILLS, CA 90212
quential damage, or other construction and payment
CIVIL LITIGATION
90067, (310) 552-0960, fax (310) 557-3468. 20355
Hawthorne Boulevard, First Floor, Torrance, CA
90503, (310) 370-6122, fax (310) 370-6188, e-mail:
rwatts@gursey.com or swasserman@gursey.com.
Web site: www.gursey.com. Contact Robert Watts
or Stephan Wasserman. Gursey/Schneider specializes in forensic accounting and litigation support
services in the areas of civil litigation, business disputes, bankruptcy, damage and cost-profit insurance claims, court accountings, fraud investigations,
accounting malpractice, intellectual property, construction, government accounting and entertainment
litigation. Gursey/Schneider has over 30 years of experience as expert witnesses in accounting related
matters. See display ad on page 51.
COMPUTER EVIDENCE DISCOVERY
ROBERT J. ABEND, PE
1658 Laraine Circle, San Pedro, CA 90732, cell
(310) 346-6543, (310) 221-0716, e-mail: rabend
@linkline.com Web site: www.linkline.com/personal
/rabend. Specialties: Electrical engineering, computer forensics, data recovery, electronic discovery,
computer engineering, software, electronics, microelectronics, electronics manufacturing, intellectual
property, and trade secret litigation. Technical support during case preparation. Practiced at court and
deposition testimony. Thirty-five years of experience
in the electronics and computer industry. Fifteen
years as a forensic engineering consultant. References provided on request. Degrees/licenses: BSEE,
MS, Registered Professional Engineer, Certified EnCase Computer Forensic Examiner, FCC General
Radiotelephone license.
COSGROVE COMPUTER SYSTEMS, INC.
7411 Earldom Avenue, Playa del Rey, CA 90293,
(310) 823-9448, fax (310) 821-4021, e-mail:
jcosgrove@computer.org. Web site: www.cosgrovecomputer.com. Contact John Cosgrove. John
Cosgrove, PE, has over 45 years’ experience in
computer systems and has been a self-employed,
consulting software engineer since 1970. He was a
part-time lecturer in the UCLA School of Engineering
and LMU graduate school. He provided an invited article, “Software Engineering & Litigation,” for the Encyclopedia of Software Engineering. He is a Certified
Forensic Consultant (CFC), holds the CDP, is a
member of ACM, ACFEI, FEWA, a life senior member
of IEEE Computer Society, NSPE, a Fellow of the
National Academy of Forensic Engineers (an affiliate
of NSPE), and a professional engineer in California.
Formal education includes a BSEE from Loyola University and a master of engineering from UCLA.
COMPUTER FORENSICS
ROBERT J. ABEND, PE
1658 Laraine Circle, San Pedro, CA 90732, cell
(310) 346-6543, (310) 221-0716, e-mail: rabend
@linkline.com Web site: www.linkline.com/personal
/rabend. Specialties: Electrical engineering, computer forensics, data recovery, electronic discovery,
computer engineering, software, electronics, microelectronics, electronics manufacturing, intellectual
property, and trade secret litigation. Technical support during case preparation. Practiced at court and
deposition testimony. Thirty-five years of experience
in the electronics and computer industry. Fifteen
years as a forensic engineering consultant. References provided on request. Degrees/licenses: BSEE,
MS, Registered Professional Engineer, Certified EnCase Computer Forensic Examiner, FCC General
Radiotelephone license.
BURGESS CONSULTING & FORENSICS
2255 South Broadway, Suite 9, Santa Maria, CA
93454, (866) 345-3345, fax (805) 349-7790, e-mail:
steve@burgessforensics.com. Web site: www
.burgessforensics.com. Contact Steve Burgess.
“Helping you win with accurate discovery.” Since
1984, Burgess has performed services for thousands
of clients on tens of thousands of media. Computer
forensic, electronic discovery (e-discovery) and expert
witness services. Burgess Consulting will find whatever is there and explain it in a fashion that you, a
judge, or jury can understand. Professional and complete. Almost any type of media (hard drives, tapes, removable media, flash cards) and operating system
(Windows, Macintosh, Linux, Exchange). Accomplished testimony in court and deposition. Los Angeles office in Culver City, headquarters in Santa Maria.
DATACHASERS, INC.
P.O. Box 2861, Riverside, CA 92516-2861, (877)
DataExam, (877) 328-2392, (951) 780-7892,
e-mail: Admin@datachasers.com. Web site: www
.DataChasers.com. E-Discovery: Full e-discovery
services…you give us the mountain, we give you the
mole hill: Tiff production, de-duplication, redaction,
bates stamped data, and electronically stored information (ESI) production. Computer Forensic: Full
forensic computer lab. Recovering deleted text files
(documents), graphics (pictures), date codes on all
files, e-mail, and tracing Internet activity. Intellectual
property cases; family law; employment law; probate
resolution; asset verification; criminal law (prosecution or defense); etc. Litigation support, trial preparation, experienced expert witnesses, and professional
courtroom displays. See display ad on page 57.
SETEC INVESTIGATIONS
8391 Beverly Boulevard, Suite 167, Los Angeles, CA
90048, (800) 748-5440, fax (323) 939-5481, e-mail:
tstefan@setecinvestigations.com. Web site: www
.setecinvestigations.com. Contact Todd Stefan.
Setec Investigations offers unparalleled expertise in
computer forensics and enterprise investigations
providing personalized, case-specific forensic analysis and litigation support services for law firms and
corporations. Setec Investigations possesses the
necessary combination of technical expertise, understanding of the legal system, and specialized tools
and processes enabling the discovery, collection, investigation, and production of electronic information
for investigating and handling computer-related
crimes or misuse. Our expertise includes computer
forensics, electronic discovery, litigation support, and
expert witness testimony.
COMPUTERS/INFORMATION SCIENCES
ROBERT J. ABEND, PE
1658 Laraine Circle, San Pedro, CA 90732, cell (310)
346-6543, (310) 221-0716, e-mail: rabend@linkline
.com Web site: www.linkline.com/personal/rabend.
Specialties: Electrical engineering, computer forensics, data recovery, electronic discovery, computer
engineering, software, electronics, microelectronics,
electronics manufacturing, intellectual property, and
trade secret litigation. Technical support during case
preparation. Practiced at court and deposition testimony. Thirty-five years of experience in the electronics
and computer industry. Fifteen years as a forensic engineering consultant. References provided on request.
Degrees/licenses: BSEE, MS, Registered Professional
Engineer, Certified EnCase Computer Forensic Examiner, FCC General Radiotelephone license.
COSGROVE COMPUTER SYSTEMS, INC.
7411 Earldom Avenue, Playa del Rey, CA 90293,
(310) 823-9448, fax (310) 821-4021, e-mail:
jcosgrove@computer.org. Web site: www
.cosgrovecomputer.com. Contact John Cosgrove.
John Cosgrove, PE, has over 45 years’ experience in
computer systems and has been a self-employed,
consulting software engineer since 1970. He was a
part-time lecturer in the UCLA School of Engineering
and LMU graduate school. He provided an invited article, “Software Engineering & Litigation,” for the Encyclopedia of Software Engineering. He is a Certified
Forensic Consultant (CFC), holds the CDP, is a
member of ACM, ACFEI, FEWA, a Life Senior member of IEEE Computer Society, NSPE, a Fellow of the
National Academy of Forensic Engineers (an affiliate
of NSPE), and a professional engineer in California.
Formal education includes a BSEE from Loyola University and a master of engineering from UCLA.
INFOSCI, INC.
P.O. Box 7117, Menlo Park, CA 94026-7117, (650)
854-1567, fax (650) 854-1568. Contact Ned
Chapin. SOA—Service-oriented architecture, computer software design, intellectual property, IT (Information Technology) performance and alignment, IT
governance, software engineering, IT personnel
management, and computer applications. Background: PhD, PE (Professional Engineer), CISA (Certified Information Systems Auditor), more than 30
years of diversified experience in IT/IS, and has
served as expert witness.
JOHN LEVYCONSULTING
P.O. Box 1419, Point Reyes Station, CA 94956,
(415) 663-1818, fax (415) 663-0888, e-mail: info
@johnlevyexpert.com. Web site: http://johnlevyexpert
.com. Contact John Levy, PhD. A technical leader
with over thirty years of experience in the computer
software and hard disk industry; experience as an
expert in more than 35 actions related to patent,
copyright and class action; neutral advisor to Federal
District Court judges in three cases. Academic credentials include PhD—Computer Science, Stanford
University, engineering degrees from Cornell and
Caltech. Areas of expertise: hard disk; input/output
buses; computer engineering; internet protocol; software development, operating systems, and firmware.
COMPUTER TECHNOLOGY PATENTS
ECOMP WITNESS
1507 Dumont Street, Valrico, FL 33596, (813) 601-8142.
Web site: www.ecompwitness.com. Contact Mr. Ivan
Zatkovich. eComp Witness specializes in intellectual property and patent litigation in Internet, telecommunications &
information technology, including web commerce technologies, web marketing disputes, internet copyright, software contract disputes, eDiscovery and network forensics.
eComp consists of a collaborative staff of senior industry
experts and executives that provide full lifecycle services
including technology research, expert reports, depositions,
trial testimony, follow-up consulting.
CONSTRUCTION
AAA CONSTRUCTION WITNESS—MIKE PANISH
P.O. Box 725, Woodland Hills, CA 91365, (818) 429-1963
(Sharon), fax (818) 888-7302, e-mail: expert@constructionwitness.com. Web site: www.constructionwitness.com.
Mike Panish—Expert Witness and Consultant for general
construction (most trades). 30+ years of hands-on experience. Specializing in cabinets, counter tops, wood finishes,
automatic doors, commercial/residential doors, door hardware, door locks, ADA and life safety hardware. General
contractor, cabinet and millwork manufacturer and
installer, door contractor and installer, and most aspects of
construction. Commercial, residential, retail, medical,
jails/courthouses, county facilities, and historical renovations. Troubleshoot defects in materials, application and
installation for most construction trades and all environments. Custom courtroom displays and models fabricated.
Accurate and thorough testimony. Nationwide inspection
and service.
ARCADIS
Construction Claims Analysis, ARCADIS, 445 South
Figueroa Street, Suite 3650, Los Angeles, CA 90071,
(213) 486-9884, fax (213) 486-9894, e-mail: joe
.seibold@arcadis-us.com. Web site: www.arcadis-us
.com. Contact Joe Seibold. ARCADIS’ PMCM division is an industry leader in the analysis of construction claims and specializes in the prevention, investigation, evaluation and resolution of construction disputes. Our firm offers a full range of services including: litigation support, expert testimony, schedule
analysis, change order evaluation, delay/impact
analysis, discovery/deposition assistance, cause-effect-impact analysis, contractor financial audits, merit
analysis, document database development/management, and performance audits.
ROBERT BERRIGAN
MATHENY SEARS LINKERT & JAIME LLP
P.O. Box 13711, Sacramento, CA 95853, 4711, (916)
978-3434, fax (916) 978-3430, e-mail: rberrigan
@mathenysears.com. Web site: www.mathenysears
.com. Contact Robert Berrigan. Specialties: Contractor licensing issues; proper license class to perform work; B & P section 7031 issues. Contractor
State License Board (CSLB) investigations and disciplinary proceedings; obtaining licenses or documents from CSLB. Also violations of subletting and
subcontracting Fair Practice Act. Expert witness at
trial/arbitration. Degrees/licenses: BA; JD; Commercial Pilot; SEL; MEL.
(877) 231-1020, fax (714) 634-4933, e-mail: info
CONTRACTORS & COST CONSULTANTS
2700 West Coast Highway, Suite 212, Newport
Beach, CA 92627, (949) 631-0553, fax (949) 6310554, e-mail: dsccc@sbcglobal.net. Contact
Dennis St. Clair. Expertise in cost analysis and estimates, industry standards, building code, construction defects, and general issues. California General
Building Contractor #319388; active since 1976,
Classification B, HIC. Thirty-five years of progressive,
responsible, and diversified hands-on construction
experience. Twenty years of expert witness and appraiser experience in construction disputes, property
claims, and litigation. Qualified by the state superior
courts of California and Nevada. Affiliations: American Society of Professional Estimators; Past president, Orange County Chapter 3 and Forensic Expert
Witness Association.
COOK CONSTRUCTION COMPANY
7131 Owensmouth Avenue, Canoga Park, CA
91303, (818) 438-4535, fax (818) 595-0028, e-mail:
scook16121@aol.com. Contact Stephen M. Cook.
Specialties: Lawsuit preparation, residential construction, single and multifamily, hillsides, foundations, concrete floors, retaining walls, stairs, excavation, waterproofing, water damages, roofing, carpentry/rough framing, tile, stone, materials/costs, and
building codes. Vibration trespass, expert witness,
creditable, strong, concise testimony in mediation,
arbitration involving construction defect for insurance
companies and attorneys, consulting services for
construction, document preparation, construction
material lists, costs, building codes analysis, site inspections, and common construction industry standards of practice and its relationship with the California Building Codes. See display ad on page 71.
DIVERSIFIED ENGINEERING OF
WESTLAKE, INC.
31157 Lobo Vista Road, Agoura, CA 91301, (818)
865-8844, fax (818) 865-9944, e-mail: dewinc
@hughes.net. Contact L. Peter Petrovsky, PE. Expert witness and consulting in applied civil and mechanical engineering sciences, construction, and
earthwork. Our strength and experience is in combining engineering and contracting skills. Understanding the mechanical and civil engineering design
and principles, combined with knowledge of the
standards of use, is essential to clarifying complex
technical issues.
FORENSISGROUP, INC
THE EXPERT OF EXPERTS
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 & the competitive edge in
their cases from our group of high quality experts in
hundreds of disciplines. Forensic construction, engineering, accidents & safety, medical, business, real
estate, appraisal, insurance, accounting, psychology,
psychiatry, nursing, employment, metallurgy, computer software & technology, patent & trademark infringement, Personal Injury, Product Liability and
other technical & scientific disciplines. Free referral &
recruiting. Excellent client service. Call us now at
(800) 555-5422 for your free initial telephone consultation with our Experts. See display ad on page 61.
667-2600, fax (714) 667-2636. Web site: www
.gmgcpa.com. Contact Glenn Gelman. Exclusive
LA and Orange County representative for CICPAC
(Construction Industry CPA/Consultants Association)
This is a nationwide network of CPA firms specifically
selected for their experience in and commitment to
serving the construction industry. We are one of only
6 firms in all of California who are members of this
prestigious organization. We provide these litigation
support services: expert witness testimony, strategy
development, document discovery, deposition assistance, computation of damages, arbitration consulting, forensic accounting, investigative auditing, rebuttal testimony, fiduciary accountings, and trial exhibit
preparation. Our areas of expertise include: business
interruption, loss of earnings analysis, breach of contract, partnership dissolution, profits distribution, tax
consequences of settlements, reconstruction of accounting records, embezzlement and fraud, contract
costs, lost profits, construction claims, & damage
computations cases. Chosen by publishers of Accounting Today as one of 2008 “Best Accounting
Firms to Work For.” Honored by Construction Link as
the “Best Accounting Firm for the construction industry.” Glenn M. Gelman has been appointed and
served as Special Master in litigation support matters
and has testified over 30 times. Our comprehensive
case list is available upon request.
DAVID L. RAY
PACIFIC CONSTRUCTION CONSULTANTS, INC.
(800) 655-PCCI. Contact marketing director.
Construction contract disputes (claims) analysis,
prep and presentation, delay and monetary impact
evaluation, including CPM schedules. Architectural,
civil, structural, mechanical, and electrical specialties.
Full in-house courtroom visual exhibit preparation.
Assistance in negotiations, mediation, arbitration,
and litigation. Expert witness testimony. Additional
phone (310) 337-3131 or (916) 638-4848. See display ad on page 52.
STRATEGY, LLC
515 South Flower Street, 36th Floor, Los Angeles,
CA 90071, (213) 785-1239, fax (213) 232-3366,
e-mail: wkalayjian@strategyclaims.com. Website:
www.strategyclaims.com. Contact Wayne
Kalayjian. Strategy, LLC is a worldwide construction, environmental and financial consulting firm. Our
professionals are licensed architects, engineers, financial managers, mariners and general contractors with
over 30 years of industry and claims experience. Our
experts provide claims consulting and litigation support services for clients in the construction, insurance,
legal, and marine industries. Our services include but
are not limited to claims prevention and management,
claims preparation and analysis, dispute resolution, litigation support, and expert testimony.
URS
915 Wilshire Boulevard, Suite 800, Los Angeles, CA
90017, (213) 996-2549, fax (213) 996-2521, e-mail:
matthew-lankenau@urscorp.com. Expert witness for
entitlement, causation damages on design, construction, and geotechnical environmental disputes.
Experienced in all types of construction projects.
Saltzburg, Ray & Bergman, LLP
RECEIVERSHIP ACTIONS
• Partnerships and Corporate Dissolutions
• Government Enforcement Receivership Actions
• Partition Actions/Marital Dissolution
e-mail: dlr@srblaw.com
www.srblaw.com
310.481.6700
FAX 310.481.6707
TEL
12121 Wilshire Boulevard, Suite 600, Los Angeles CA 90025
The name
you’ve known and
trusted since 1978...
Richard M. Squar
CPA, CVA, ABV, CFF, MBA-Tax
CONSTRUCTION DEFECT
M.A. CALABRESE ASSOCIATES
1055 East Colorado Boulevard, 5th Floor, Pasadena,
CA 91106, (626) 359-1908, fax (626) 359-1908,
e-mail: foren6guy@earthlink.net. Web site: www
.macalabreseassociates.com. Contact Michael
Calabrese. Mr. Calabrese is a hands-on California licensed general contractor who has been in the construction field for over 30 years. Over the past 14
years, he has shifted his focus and expertise onto
developing his consulting skills in construction forensics. Among his specialty areas is tracing the cause
and origin of water intrusion resulting in mold growth
and collateral damage, personal injury resulting from
faulty construction components, job site safety, standards of care applied, contractor professional diligence, contractor license laws, earthquake repair
and cost analyses, cost estimates for building repairs
and remodeling, cost comparisons and analyses.
Visit our construction mediation site: www.disputeease.com. See display ad on page 46.
EXPERT WITNESS – LITIGATION SUPPORT SERVICES
TAX AND FINANCIAL CONSULTING
BUSINESS VALUATIONS
Squar
Associates
certified public accounting
litigation support & business valuation
www.squarassociates.com
2064 Phalarope Court
Tel: 714.825.0300
Costa Mesa, CA 92626-4734
Cell: 949.375.4388
Fax: 866.810.9223
CONSTRUCTION DISPUTE ADR
SERVICES
COMA CONSULTANTS, INC.
2220 Waterfront Drive, Corona Del Mar, CA 926251935, (949) 673-7273, cell (949) 246-4385, fax (949)
673-2104, e-mail: dgfcoma@hotmail.com. Contact
D. Gordon Follett, MSc, PE, Principal/Owner.
Construction dispute arbitrator and mediator. Panel
of Neutrals for American Arbitration Association since
1996; Certified Senior Mediator, Orange County Superior Court Mediation Program since 2003; Los Angeles County Superior Court Panel of Mediators
since 2004; Associate Member of both the Orange
County and Los Angeles County Bars. Have arbitrated or successfully resolved through mediation numerous technically complex construction claims and
disputes. Working construction manager with over
40 years of construction experience. Pepperdine and
American Arbitration Association trained. Professional member, Southern California Mediation Association; Licensed Professional Engineer, and General
Contractor. Also provides Construction Dispute Prevention Services and litigation support.
CONSTRUCTION DISPUTES—LITIGATION
SUPPORT
COMA CONSULTANTS, INC.
2220 Waterfront Drive, Corona Del Mar, CA 926251935, (949) 673-7273, cell (949) 246-4385, fax (949)
673-2104, e-mail: dgfcoma@hotmail.com. Contact
D. Gordon Follett, MSc, PE, Principal/Owner.
Expert litigation support for contractor/subcontractor/owner contract disputes—expert testimony, trial
support, and consultation. Working construction
manager with over 40 years of construction experience. Has provided litigation support, both as an expert witness and as a consulting expert, on a multitude of technically complex construction claims and
litigation matters with values in excess of $10 million.
Licensed professional engineer and general contractor. Also provides construction dispute ADR services
such as dispute prevention and resolution, mediation, and arbitration.
COPYRIGHT
A PHOTOGRAPHY EXPERT WITNESS
50 North Hill Avenue, Suite 302, Pasadena, CA
91106, (626) 808-0000, e-mail: expert@sedlik.com.
Web site: www.photographyexpertwitness.com.
Contact Professor Jeff Sedlik. The leading consultant and testifying forensic expert witness on all issues related to photography: copyright, licensing,
contracts, business practices, industry standards,
stock photography, model releases, rights of privacy/publicity, evaluation of lost or damaged photographs and film evaluation of photography assets,
technical matters, forensic digital analysis, forensic
photography, and litigation support.
CORPORATE GOVERNANCE
CA 90024, (310) 873-1680, fax (310) 873-6600.
CORPORATE INVESTIGATIONS
FULCRUM INQUIRY
CA 90017, (213) 787-4100, fax (213) 891-1300,
page 1.
VLS FRAUD SOLUTIONS | A PROFESSIONAL
SERVICE OF VICENTI, LLOYD & STUTZMAN LLP
91740, (626) 857-7300, fax (626) 857-7302, e-mail:
LSaddlemire@vlsllp.com. Web site: www.VLSLLP
.com. Contact Linda Saddlemire, CPA, CFE,
CFF, VLS Fraud Solutions Advisor. The VLS
Fraud Solutions INVESTIGATION SERVICE is an effective and discreet team of professional fraud experts that use a proven process to deliver a thorough
investigation, in partnership with you, the attorney,
while protecting a positive work environment of your
client. This team—CPAs, Certified Fraud Examiners
(CFEs), Certified in Financial Forensics (CFF) and former law enforcement (including the Federal Bureau
of Investigation)—are seasoned leaders, experienced
in the investigative community. With over five
decades of experience providing business solutions,
VLS has a proven reputation for credibility and a
proven track record of success. FOR MORE INFORMATION about VLS Fraud Solutions INVESTIGATION SERVICES or to schedule a free consultation,
contact us in complete confidence. Please call Linda
Saddlemire, CPA, CFE, CFF, or Ernie Cooper, CPA,
CFE, JD—our VLS Fraud Solutions ADVISORS—at
(626) 857-7300.
WOLF & HUNT
page 49.
DEMOLITION
DEMOLITION CONSULTANTS
P.O. Box 1274, Houston, TX 77251, (713) 2209479, e-mail: rdokell@comcast.net. Contact Ron
Dokell. Expert witness and consulting in demolition.
Over 40 years of experience in commercial and industrial projects. Past president of National Demolition Association.
DISPUTE ANALYSIS
STRATEGY, LLC
CA 90071, (213) 785-1239, fax (213) 232-3366,
Kalayjian. Strategy, LLC is a worldwide construction,
environmental and financial consulting firm. Our professionals are licensed architects, engineers, financial
managers, mariners and general contractors with over
30 years of industry and claims experience. Our experts provide claims consulting and litigation support
services for clients in the construction, insurance,
legal, and marine industries. Our services include but
are not limited to claims prevention and management,
claims preparation and analysis, dispute resolution, litigation support, and expert testimony.
DOCUMENT EXAMINER
SANDRA L. HOMEWOOD, FORENSIC
DOCUMENT EXAMINER
1132 San Marino Drive, Suite 216, Lake San Marcos, CA 92078, (760) 931-2529, fax (760) 510-8412,
e-mail: homewoodqde@sbcglobal.net. Contact
Sandra L. Homewood. Highly skilled and experienced document examiner and expert witness in
many complex and high profile civil and criminal
cases with fully equipped document laboratory. Specializing in handwriting and handprinting identification, handwriting of the elderly in financial elder
abuse cases and will contests, and examination of
altered medical and corporate records. Trained in
government laboratory including specialized training
by the FBI and Secret Service. Former government
experience includes document examiner for the San
Diego Police Department crime lab, Arizona State
crime lab and San Diego County District Attorney’s
office. Currently in private, criminal, and civil practice.
DOCUMENT EXPERT
BLANCO & ASSOCIATES, INC.— FORENSIC
DOCUMENT EXAMINATIONS
655 North Central Avenue, 17th Floor, Glendale, CA
91203, (818) 545-1155, fax (818) 545-1199, e-mail:
info@jimblanco.com. Web site: www.jimblanco.com.
Contact Jim Blanco. Former full time federal and
state government forensic document examiner
(handwriting expert) with the US Treasury Federal
Bureau of ATF and California State Department of
Justice. Court-qualified and certified ABFDE (Nov
1992 – May 2008). Signature, handwriting, and hand
printing examinations, writer identification, writer elimination, forgery and counterfeits, computer printed or
typewritten documents, medical chart evaluation (in
medical malpractice cases), probate, wills, trusts, real
estate documents, deeds, and contracts. All facets of
civil and criminal litigation nationally.
DOGS
JILL KESSLER
341 North Grenola Street, Pacific Palisades, CA
90272, (310) 573-9615, fax (310) 573-1304, e-mail:
jillkessler@mac.com. Web site: www.jillkessler.com.
Opinion, consultation, reports, evaluations in dog aggression, dog behaviors, training, showing, breed
tendencies, rescued dogs, dog bites; specializing in
Rottweilers and pit-bull type dogs.
ECONOMIC ANALYSIS
10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: sfranklin@cbiz.com. Web site:
www.MHM-PC.com, www.CBIZ.com. Contact
Steve Franklin. Specializes in business litigation;
business valuation and appraisal, marital dissolutions, transactional due diligence, financial reconstruction, fraud investigation, family limited partnerships, commercial damage and lost profits computations and business interruption. Experienced expert
testimony and tax controversy representation.
ECONOMIC DAMAGES
(949) 263-8700, fax (949) 263-0770, e-mail: experts@mcsassociates.com. Web site: www.mcsassociates.com. Contact Norman Katz, managing
partner. Nationally recognized banking, finance, insurance, and real estate consulting group (estab-
lished 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants,
economists, accountants, insurance
underwriters/brokers. Specialties: lending customs,
practices, policies, in all types of lending (real estate,
subprime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes,
and title insurance.
CA 90024, (310) 873-1680, fax (310) 873-6600.
CA 90024, (310) 475-5676, fax (310) 475-5268.
Contact Brian Lewis, CPA, CVA. Forensic accounting; business valuations; cash spendable reports; estate, trust, and income tax services.
90071-2005, (213) 553-2500, fax (213) 553-2699,
G. Strong, Jr., Richard W. Dalbeck, Katie J.
Galley, Elaine Harwood, Carlyn Irwin or Elisabeth Browne. Cornerstone
Research provides attorneys with expert testimony
and economic and financial analyses in all phases of
commercial litigation. We work with faculty and industry experts in a distinctive partnership that combines the strengths of the business and academic
worlds. Our areas of expertise include identifying and
supporting expert witnesses in intellectual property,
antitrust, securities, entertainment, real estate, financial institutions, and general business litigation.
CORPORATE SCIENCES, INC.
3215 East Foothill Boulevard, Pasadena, CA
91107, (626) 440-7200, fax: (626) 440-1800,
e-mail: jsdantoni@hotmail.com. Web site: www
.corporatesciences.com. Contact Dr. Joseph S.
D’Antoni, Managing Principal. Corporate Sciences, Inc. provides financial analysis and expert testimony in all types of commercial litigation. Extensive
experience in a broad range of industries for computing economic damages, lost profits, valuation and
appraisal, fraud, breach of contract, partnership disputes, and bankruptcy related matters. Professionals
also serve as mediators, arbitrators, special masters,
third party administrators as well as consulting and
testifying experts.
ECON ONE RESEARCH, INC.
601 West Fifth Street, 5th Floor, Los Angeles, CA
90071, (213) 624-9600, fax (213) 624-6994, e-mail:
lskylar@econone.com. Web site: www.econone
.com. Contact Lisa Skylar. Econ One provides
economic research, consulting and expert testimony
in many areas, including: antitrust, intellectual property and patent infringement, contract disputes,
damages analysis/calculations, employment issues,
and unfair competition. We offer in-house expertise
in applied economic theory, econometrics, statistics,
and years of experience successfully dealing with the
specific demands of the litigation process. Econ One
experts have testified in state and federal courts; administrative, legislative and regulatory agencies, and
in arbitrations and mediations. We understand the
need for clear, accurate, persuasive answers to
complex problems. See display ad on page 73.
CHARLES PEREYRA-SUAREZ
MEDIATOR, ARBITRATOR AND EXPERT WITNESS
RELEVANT EXPERIENCE:
• Trial/Appellate Attorney, U.S. Justice Department
Civil Rights Division
• Federal Prosecutor in Los Angeles
• Litigation Partner in Two National Law Firms
• Judge Pro Tem, Los Angeles Superior Court
• Diverse ADR and Expert Witness Practice
445 S. Figueroa St., Suite 3200, Los Angeles CA 90071
Tel 213.623.5923 Fax 213.623.1890 http://www.cpslawfirm.com
EXPERT WITNESS — Claims Consultant
EXPERIENCE
INTEGRITY
HONESTY
OVER 45 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
Securities & Business Law
SEC Enforcement Defense
International Business & Securities
Class & Derivative Actions
Insider Trading
NYSE, AMEX, FINRA Disciplinary Proceedings
Broker-Dealer, Investment Company & Investment Adviser Matters
Liability Under Federal & State Securities Laws
Public & Private Offerings
Internet Securities
Securities Arbitration
Law Firm Liability
AV Rated, Former Chair, LACBA Business & Corporations Law Section LLM, Harvard Law School.
36 years practicing Securities Law, 12 years with the U.S. Securities and Exchange Commission,
Washington D.C. Published Author of Securities Regulations, including eight volume treatise.
Wells Fargo Center • 333 S. Grand Avenue, Suite 1925 • Los Angeles, CA 90071
FULCRUM INQUIRY
CA 90017, (213) 787-4100, fax (213) 891-1300,
page 1.
667-2600, fax (714) 667-2636. Web site: www
.gmgcpa.com. Contact Glenn Gelman. Since
1983, our firm has specialized in delivering forensic
accounting and litigation support services that give
our clients an edge. We provide the quality and
depth traditionally associated with Big Four firms with
the personal attention and fee structure of a local
firm. We are recognized throughout southern California for the effectiveness of our work. Areas of expertise include: business interruption, loss of earnings
analysis, breach of contract, partnership dissolution,
profits distribution, tax consequences of settlements,
reconstruction of accounting records, embezzlement
and fraud, contract costs, lost profits, construction
claims, & damage computations cases. Selected by
Inside Public Accounting as recipient of 2008 “Best
of the Best” award given to only 25 firms across the
country. Our practice focuses on closely held entrepreneurial firms in the following industries: construction, real estate development, equipment leasing,
auto parts (wholesale and retail), manufacturing, &
professional services. Glenn M. Gelman has been
appointed and served as Special Master in litigation
support matters and has testified over 30 times. Our
comprehensive case list is available upon request.
CA 90017, e-mail: info@hmlinc.com. Web site: www
.hmlinc.com. Contact Mark C. Higgins, ASA,
MARCUS + THOMSEN, INC.
90245, (310) 416-1116, fax (310) 416-1117, e-mail:
bmarcus@marcusandthomsen.com. Web site:
www.marcusandthomsen.com. Contact Burton H.
Marcus. With backgrounds in business, economics,
finance, marketing, and psychology, Marcus +
Thomsen Inc. (MTI) professionals clarify and frame
key economic and valuation issues, respond effectively to client needs, and produce credible and wellsupported opinions and expert testimony. MTI’s primary areas of focus include: economic damage assessment; business, intangible asset and intellectual
property valuation; partnership interest valuation;
goodwill valuation; and industry, market, product,
and competitive analysis. Licenses/degrees held by
professional staff: CFA, ASA, PhD, MBA.
10474 Santa Monica Boulevard, Suite 200, Los Angeles, CA 90025, (310) 268-2000, fax (310) 2682001, e-mail: sfranklin@cbiz.com. Web site: www
valuation and appraisal, marital dissolutions, transactional due diligence, financial reconstruction, fraud in56 Los Angeles Lawyer April 2009
vestigation, family limited partnerships, commercial
STRATEGY, LLC
CA 90071, (213) 785-1239, fax (213) 232-3366,
Kalayjian. Strategy, LLC is a worldwide construction, environmental and financial consulting firm. Our
professionals are licensed architects, engineers, financial managers, mariners and general contractors
with over 30 years of industry and claims experience.
Our experts provide claims consulting and litigation
support services for clients in the construction, insurance, legal, and marine industries. Our services include but are not limited to claims prevention and
management, claims preparation and analysis, dispute resolution, litigation support, and expert testimony.
91740, (626) 857-7300, fax (626) 857-7302, e-mail:
and partner disputes. Our forensic accounting experts assess the amount of an economic loss,
CA 90245, (310) 322-7744, fax (310) 322-7755.
ad on page 53.
WOLF & HUNT
patent, and copyright infringement, and trade secrets,
malpractice, marital dissolution, personal injury, product liability, real estate, tax planning and preparation,
IRS audit defense, tracing, unfair advertising, unfair
competition, valuation of businesses, and wrongful
termination. See display ad on page 49.
WILLIAMS & RIBB LLP
600 Wilshire Boulevard, Suite 1515, Los Angeles, CA
90017-3227, (213) 683-1013, fax (213) 683-0510,
e-mail: cgross@williamsribb.com. Contact Charles
R. Gross, partner. Specialties: expert witness testimony and forensic accounting services in business
and contract disputes, marriage dissolution, and lost
profits, and earnings disputes, earnings loss and
economic damage calculations, income tax analysis,
and fraud investigations. Our expertise encompasses
engineering training, operational business experience, plus accounting and financial consulting, including economic analysis. Degrees/licenses: CPA;
BS; Engineering; Masters; Management Science;
Registered Investment Advisor; Insurance and Securities Advisor; Financial Planner.
Angeles, CA 90064-1151, (310) 826-1040, fax (310)
ECONOMICS
Oaks, CA 91403, (818) 986-5070, fax (818) 9865034, e-mail: smowrey@cmmcpas.com. Web site:
FULCRUM INQUIRY
CA 90017, (213) 787-4100, fax (213) 891-1300,
e-mail: dnolte@fulcrum.com. Web site:www.fulcrum
research combined with unique presentation techniques have resulted in an unequaled record of successful court cases and client recoveries. Our expertise encompasses damages analysis, lost profit studies, business and intangible asset valuations, appraisals, fraud investigations, troubled company consultation, statistics, forensic economic analysis, royalty
audits, strategic and market assessments, computer
forensics, electronic discovery, and analysis of computerized data. Degrees/licenses: CPAs, CFAs, ASAs,
PhDs and MBAs in accounting, finance, economics,
and related subjects. See display ad on page 1.
CA 90017, (213) 627-8280, fax (213) 627-8301,
ELECTRICAL
ROBERT J. ABEND, PE
1658 Laraine Circle, San Pedro, CA 90732, cell (310)
346-6543, (310) 221-0716, e-mail: rabend@linkline
.com Web site: www.linkline.com/personal/rabend.
Specialties: Electrical engineering, computer forensics, data recovery, electronic discovery, computer
engineering, software, electronics, microelectronics,
electronics manufacturing, intellectual property, and
trade secret litigation. Technical support during case
preparation. Practiced at court and deposition testimony. Thirty-five years of experience in the electronics
and computer industry. Fifteen years as a forensic engineering consultant. References provided on request.
Degrees/licenses: BSEE, MS, Registered Professional
Engineer, Certified EnCase Computer Forensic Examiner, FCC General Radiotelephone license.
ELECTRICAL ACCIDENTS
JAMES A. SMITH, CONSULTANT
2562 Treasure Drive, Suite 4102, Santa Barbara, CA
93105-4177, (805) 687-7911, fax (805) 687-0832,
e-mail: jasmith181@aol.com. Electrical accidents,
electrocution and electric shock, analyzing what happened and why, consulting on case strategy, and
being an expert witness, National Electric Code compliance, California GO-95 compliance, National Electric Safety Code compliance, protective relaying, and
equipment and product testing.
ELECTRICAL ENGINEERING
ALOHA SYSTEMS
8539 Barnwood Lane, Riverside, CA 92508-7126,
(951) 780-9903, fax (951) 789-0783, e-mail: marks
@alohasys.com. Web site: www.pwrexpert.com.
Contact Dr. Mark Shirilau. Electricity and electric
utility power systems, rates, and billing responsibilities. PhD in power systems—generation, transmission, distribution, energy use and conservation. PE
and licensed contractor. Former utility employee.
CTG FORENSICS, INC.
16 Technology Drive, Suite 109, Irvine, CA 92618,
(949) 790-0010, fax (949) 790-0020, e-mail: wbroz
@CTGforensics.com. Web site: www.CTGforensics
.com. Contact William Broz, PE. Construction-related engineering, plumbing, mechanical (heating,
ventilating, A/C) and electrical (power, lighting), energy systems, residential and nonresidential buildings, construction defects, construction claims, mold,
and green/LEED building.
ELECTRONIC DISCOVERY
BURGESS CONSULTING & FORENSICS
2255 South Broadway, Suite 9, Santa Maria, CA
93454, (866) 345-3345, fax (805) 349-7790, e-mail:
steve@burgessforensics.com. Web site: www
.burgessforensics.com. Contact Steve Burgess.
“Helping you win with accurate discovery.” Since
1984, Burgess has performed services for thousands
of clients on tens of thousands of media. Computer
forensic, electronic discovery (e-discovery) and expert witness services. Burgess Consulting will find
whatever is there and explain it in a fashion that you,
a judge, or jury can understand. Professional and
complete. Almost any type of media (hard drives,
tapes, removable media, flash cards) and operating
system (Windows, Macintosh, Linux, Exchange). Accomplished testimony in court and deposition. Los
Angeles office in Culver City, headquarters in Santa
Maria.
SETEC INVESTIGATIONS
8391 Beverly Boulevard, Suite 167, Los Angeles, CA
90048, (800) 748-5440, fax (323) 939-5481, e-mail:
tstefan@setecinvestigations.com. Web site: www
.setecinvestigations.com. Contact Todd Stefan.
Setec Investigations offers unparalleled expertise in
computer forensics and enterprise investigations providing personalized, case-specific forensic analysis
and litigation support services for law firms and corporations. Setec Investigations possesses the necessary combination of technical expertise, understanding of the legal system, and specialized tools and
processes enabling the discovery, collection, investi-
gation, and production of electronic information for
investigating and handling computer-related crimes
or misuse. Our expertise includes computer forensics, electronic discovery, litigation support, and expert witness testimony.
Computer Evidence
DATACHASERS® INC.
EMBEZZLEMENT AND FRAUD
667-2600, fax (714) 667-2636. Web site: www
.gmgcpa.com. Contact Glenn Gelman. Glenn M.
Gelman & Associates provides a variety of high-quality services traditionally associated with the “Big
Four” firms along with the personal attention that is
the hallmark of local firms. Our litigation support services include: embezzlement and fraud, expert witness testimony, strategy development, document
discovery, deposition assistance, computation of
damages, arbitration consulting, forensic accounting,
investigative auditing, rebuttal testimony, fiduciary
accountings, and trial exhibit preparation and reconstruction of accounting records. Winner of Inside
Public Accounting’s 2008 “Best of the Best” award
given to only 25 firms across the country. Our practice focuses on closely held entrepreneurial firms in
the following industries: construction, real estate
development, equipment leasing, auto parts (wholesale and retail), Manufacturing, & professional services. Glenn M. Gelman has been appointed and
served as Special Master in litigation support matters
and has testified over 30 times. Our comprehensive
case list is available upon request.
CARPE DATUMTM…
…SEIZE THE DATA
EMPLOYMENT/DISCRIMINATION/
HARASSMENT
TEL.
HAIGHT CONSULTING
(310) 454-2988, fax (310) 454-4516. Contact
Marcia Haight, SPHR. Human resources expert
knowledgeable in both federal and California law.
Twenty-five years’ corporate human resources management experience plus over 19 years as a Human
Resources Compliance Consultant in California. Specializations include sexual harassment, ADA/disability
wrongful termination. Courtroom testimony and deposition experience. Retained 60 percent by defense,
40 percent by plaintiff. Audit employer’s actions in
preventing and resolving discrimination, harassment,
and retaliation issues. Assess human resources policies and practices for soundness, for comparison to
prevailing practices, and for compliance. Evaluate
employer responsiveness to complaints and effectiveness of employer investigations. Assist counsel
via preliminary case analysis, discovery strategy, examination of documents, and expert testimony.
COMPUTER FORENSICS
•
•
•
•
Recover Critical Data
E-Mail Recovery
Dates on All Files
Websites Visited
E-DISCOVERY
•
•
•
•
De-Duplication
Redaction
Bates Stamped Data
Electronic (ESI) Production
951-780-7892
DATACHASERS.COM
BRIAN H. KLEINER, PHD, MBA
Professor of Human Resource Management, California State University, 800 North State College Boulevard, LH-640, Fullerton, CA 92834, (714) 879-9705,
fax (714) 879-5600. Contact Brian H. Kleiner,
PhD. Specializations include wrongful termination,
discrimination, sexual harassment, ADA, evaluation of
policies and practices, reasonable care, progressive
discipline, conducting third-party workplace investigations, retaliation, RIFs, statistics, negligent hiring,
promotion selections, CFRA/FMLA, compensation,
wage and hours, ERISA, workplace violence, and
OSHA. Consultant to over 100 organizations. Over
500 publications. Five-time winner of CSUF Meritorious Performance Award. Extensive experience giving
testimony effectively.
EMPLOYMENT/WAGE EARNING
CAPACITY
CALIFORNIA CAREER SERVICES
6024 Wilshire Boulevard, Los Angeles, CA
90036, (323) 933-2900, fax (323) 933-9929.
e-mail: swmcareer@aol.com. Web site: www
.californiacareerservices.com. Contact Susan W.
Miller, MA. Vocational examinations/labor market re-
10990 Wilshire Blvd., 16th Floor
Los Angeles CA 90024 • www.BCILLC.com
310-873-1680 • Fax: 310-873-6600
DepoSums
DEPOSITION SUMMARIES
➤ Experienced
➤ 3-step proof-reading
summarizers
process
➤ E-mailed direct to
your computer
Los Angeles’ Finest Digesting Service
FOR MORE INFORMATION:
800.789.DEPO • www.deposums.biz
search and testimony on employability and earning
capacity as well as educational options. Specializing
in divorce and wrongful termination cases.
90071, (213) 624-9600, fax (213) 624-6994, e-mail:
PERSONNEL SYSTEMS ASSOCIATES, INC.
P.O. Box 28597, Anaheim, CA 92809, (714)
281-8337, fax (714) 281-2949, e-mail: mding
@personnelsystems.com. Web site: www
.personnelsystems.com. Contact Mae Lon
Ding, MBA, CCP. Expert witness in employment,
business dispute, disability, and divorce cases involving issues of employee or owner compensation,
discrimination, wrongful termination, exemption from
overtime, labor market/employability, lost
wages/benefits, employee performance, and evaluation of personnel policies and practices. Nationally
recognized human resource management and compensation consultant, speaker, author of book and
articles, university instructor. Quoted in Los Angeles
Times, Orange County Register, Business Week,
Workforce, and Working Woman. Over 19 years of
testifying in cases involving major national organizations in a large variety of industries involving multiple
plaintiffs. MBA, Certified Compensation Professional.
ENGINEERING/GEOTECHNICAL
THE BEST LEGAL MINDS
IN THE COUNTRY
TALK TO US
• Metallurgical Failures
• Corrosion & Welding Failures
• Glass & Ceramic Failures
• Chairs / Ladders / Tires
• Automobile/Aerospace/
Accidents
Contact:
• Bio-Medical/Orthopedic Implants
• Plumbing/Piping/ABS Failures
• Complete In-House Laboratory
Testing & Analysis Facilities
• Expert Witnesses/Jury Verdicts
• Licensed Professional Engineers
Dr. Naresh Kar, Fellow ASM, Fellow ACFE
Dr. Ramesh Kar, Fellow ASM, Fellow ACFE
ADVANCED MATERIALS, INC.
Testing & Research Labs
2528 W. Woodland Drive
Anaheim, CA 92801
■ TEL: (714)527-7100
■ FAX: (714)527-7169
■ www.karslab.com
■ email: kars@karslab.com
COTTON, SHIRES AND ASSOCIATES, INC.
330 Village Lane, Los Gatos, CA 95030-7218,
(408) 354-5542, fax (408) 354-1852, e-mail:
pshires@cottonshires.com. Web site: www
.cottonshires.com. Contact Patrick O. Shires.
Full-service geotechnical engineering consulting firm
specializing in investigation, design, arbitration, and
expert witness testimony with offices in Los Gatos
and San Andreas, California. Earth movement (settlement, soil creep, landslides, tunneling and expansive
soil), foundation distress(movement and cracking of
structures), drainage and grading (seeping slabs and
ponding water in crawlspace), pavement and slabs
(cracking and separating), retaining walls (movement,
cracking and failures), pipelines, flooding and hydrology, design and construction deficiencies, expert
testimony at over 75 trials (municipal, superior and
federal); 100+ depositions; 200+ settlement conference in southern and northern California and Hawaii.
ENGINEER/TRAFFIC
WILLIAM KUNZMAN, PE
(714) 973-8383, fax (714) 973-8821, e-mail: mail
case against Caltrans. Before becoming expert witnesses, employed by Los Angeles County Road Department, Riverside County Road Department, City
ENGINEERING
(877) 231-1020, fax (714) 634-4933, e-mail: info
DIVERSIFIED ENGINEERING OF WESTLAKE, INC.
31157 Lobo Vista Road, Agoura, CA 91301, (818)
865-8844, fax (818) 865-9944, e-mail: dewinc
@hughes.net. Contact L. Peter Petrovsky, PE.
Expert witness and consulting in applied civil and
mechanical engineering sciences, construction, and
earthwork. Our strength and experience is in combining engineering and contracting skills. Understanding the mechanical and civil engineering design
and principles, combined with knowledge of the
standards of use, is essential to clarifying complex
technical issues.
R E A L E S TAT E / R E A L P R O P E R T Y M AT T E R S
Specializations:
Customs & Standards of Practice, Agency Relationships
Material Disclosure in Residential Real Estate Sales
TEMMY WALKER, REALTOR®
Real Estate Consulting Expert Witnessing
SERVICES RENDERED:
Litigation Consulting, Expert Testimony, Broker Practice,
Liability Audit, Educational Services, Industry Mediator
Certified Residential Broker Graduate Realtors Institute, Certified Residential Specialist,
California Association of Realtors® Director Since 1981, National Association of
Realtors® Director, State Faculty Master Instructor, Member, Real Estate Education
Association, Past President, San Fernando Valley Board of Realtors
5026 Veloz Avenue, Tarzana, California 91356
Telephone (818) 760-3355 • Cell (818) 438-0286
e-mail: temmyw@aol.com
CALIFORNIA BROKER LICENSE NO. 00469980
FALLBROOK ENGINEERING
355 West Grand Avenue, Suite 4, Escondido, CA
92025, (760) 489-5400, fax (760) 489-5412, e-mail:
veronicav@fallbrook-eng.com. Web site: www
.fallbrook-eng.com. Contact Richard P. Meyst.
Fallbrook Engineering provides expert witness services in the areas of IP (patent infringement, invalidity, claim construction and trade dress), personal injury, product liability, and product failure analysis.
Our professionals have represented both plaintiff and
defendant. We have done analysis, prepared declarations, been deposed and testified in court. We
have years of design and development experience
making us effective expert witnesses in all matters involving medical devices. Visit our website at
www.fallbrook-eng.com.
FORENSISGROUP
THE EXPERT OF EXPERTS
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 & the competitive edge in
their cases from our group of high quality experts in
hundreds of disciplines. Forensic construction, engineering, accidents & safety, medical, business, real
estate, appraisal, insurance, accounting, psychology,
psychiatry, nursing, employment, metallurgy, computer software & technology, patent & trademark infringement, Personal Injury, Product Liability and
other technical & scientific disciplines. Free referral &
recruiting. Excellent client service. Call us now at
(800) 555-5422 for your free initial telephone consultation with our experts. See display ad on
page 61.
HICHBORN CONSULTING GROUP
(714) 637-7400, fax (714) 637-7488, e-mail: info
@hichborn.com. Web site: www.hichborn.com.
Contact Geoffrey Hichborn Sr, PE. General civil
design with specialties featuring forensic investigations of concrete work and concrete products, concrete, cement and related materials expertise, construction practices and materials evaluation, repair
recommendations, construction observation, public
works/residential/commercial/industrial, and specially
designed tests of distressed materials.
ROGGENKAMP ERICKSON & ASSOCIATES, PC
10000 NE 7th Avenue, Suite 150, Vancouver, WA
98685, (360) 573-4545, fax (360) 576-7606, e-mail:
brandon@reastructuralengineers.com. Web site:
www.Reastructuralengineers.com. Contact Brandon W. Erickson. Structural engineering; forensic
evaluations; investigations of existing buildings’
structural problems due to design errors, construction defects, age, climate, use, catastrophes, and
loadings; determine the cause(s) of structural distress; detailed documentation and reports; litigation
support to assist in the equitable resolution of liability
claims; construction means and methods engineering; design of structural remediation and repairs; expert witness services; peer reviews; insurance claims
investigations. Licensed in Alaska, California, Hawaii,
Idaho, Oregon, Utah, and Washington.
ENTERTAINMENT & MEDIA
MEDIA VALUATION PARTNERS
10700 Santa Monica Blvd., Suite 11, Los Angeles,
CA, 90025, (323) 988-0506, e-mail: larry
@mediavaluation.com. Web Site: www
.mediavaluationpartners.com. Contact: Larry
Gerbrandt. Services available: MVP specializes in
analyzing the economics of media, entertainment
and emerging technologies. We provide data-driven
analysis and expertise for litigations, valuations and
regulatory proceedings. Headed by Larry Gerbrandt,
a 25-year veteran of leading international research
and advisory firms (including Kagan and Nielsen) and
dozens of high profile litigations, MVP bring rigorous
research tools and financial methodologies coupled
with a deep understanding of each sector’s revenue
drivers and business models, along with the industry
standards and practices.
ENVIRONMENTAL
HARGIS + ASSOCIATES, INC.
2365 Northside Drive, Suite C-100, San Diego, CA
92108, (800) 554-2744, (619) 521-0165, fax (619)
521-8580, e-mail: hargis@hargis.com. Web site:
www.hargis.com. Contact David R. Hargis, PhD,
PG. Expert witness testimony, technical consultation,
and litigation support concerning hydrogeologic assessments to evaluate groundwater supply, basin
studies, nature/extent of soil/groundwater contamination, source identification, identification of potentially responsible parties, cost allocation studies, and
negotiations with USEPA and state regulatory agencies involving cleanup levels and approval of RI/
FS/RD/RA documents for various state and federal
Superfund sites. See display ad on page 50.
PACIFIC HEALTH & SAFETY CONSULTING, INC.
2192 Martin, Suite 230, Irvine, CA 92612, (949) 2534065, e-mail: kristen.sarley@phsc-web.com. Web
site: www.phsc-web.com. Contact Tim Morrison.
Providing quality consultation and expert witness for
mold, bacteria, lead, and asbestos. Certified training
for health and safety, OSHA, and AQMD regulations.
ESCROW
(949) 263-8700, fax (949) 263-0770, e-mail:
experts@mcsassociates.com. Web site: www
.mcsassociates.com. Contact Norman Katz,
managing partner. Nationally recognized banking,
finance, insurance, and real estate consulting group
(established 1973). Experienced litigation consultants/experts include senior bankers, lenders, consultants, economists, accountants, insurance underwriters/brokers. Specialties: lending customs, practices, policies, in all types of lending (real estate, sub-
prime, business/commercial, construction, consumer/credit card), banking operations/administration, trusts and investments, economic analysis and
valuations/damages assessment, insurance claims,
coverages and bad faith, real estate brokerage, appraisal, escrow, and construction defects/disputes,
and title insurance.
EXPERT REFERRAL SERVICE
PRO/CONSUL
TECHNICAL AND MEDICAL EXPERTS
1945 Palo Verde Avenue, Suite 200, Long Beach,
CA 90815, (800) 392-1119, fax (562) 799-8821,
e-mail: eexperts@msn.com. Web site: www
.expertinfo.com. Contact Rebecca deButts. Right
expert right away! We are listed and recommended
by the A.M. Best Company. We welcome your rush
cases! 15,000 medical and technical experts in over
3,000 fields enables Pro/Consul to provide the best
experts at a reasonable cost, including: reconstruction, accounting, engineering, biomechanical, business valuation, construction, economics, electrical,
human factors, insurance, lighting, marine, metallurgy, mechanical, roof, safety, security, SOC, toxicology, medmal, MDs, RNs, etc. Free resume
binder. Please see display ad on page 45.
TASA (TECHNICAL ADVISORY SERVICE FOR
ATTORNEYS) EXPERTS IN ALL CATEGORIES
Contact Heather Williamson. (800) 523-2319, fax
(800) 329-8272. The best source for Consulting and
Testifying Experts, TASA provides time-saving, customized referrals to outstanding, local, regional, and
national specialists, including hard-to-find authorities
in virtually all professions. We offer more than 10,000
categories of expertise, including over 900 medical
specialties through the TASAmed division. Your request receives our prompt, personal attention. TASA
targets referrals, forwards resumes, and helps
arrange your initial expert interview calls. And if you
don’t ultimately designate or engage an expert we
refer, there is NO CHARGE at all. Plaintiff/defense,
civil/criminal cases. Experts can assist you at any
stage of your case from early case merit assessment
to deposition and testimony. Sample expertise categories include accident reconstruction, banking,
computers, construction, economics, electronics,
engineering, forensic accounting, healthcare, intellectual property, machine design, medical devices,
mold, OSHA, personal injury, product liability, safety,
security, and toxicology. Serving California law and
insurance firms of all sizes. Benefit from over 50
years of TASA Group experience. Please see insert
in this issue and display ad on page 65.
EXPERT WITNESS
AMFS MEDICAL EXPERTS NATIONWIDE
2000 Powell Street, Suite 520, Emeryville, CA
94608, (800) 275-8903. Web site: www.AMFS.com.
Medical experts for malpractice and personal injury
cases. AMFS is America’s premier medical expert
witness and consulting company. We are a trusted
partner with the legal community and provide a superior method of retaining medical experts. Since
1990, we have provided board-certified experts in
over 10,000 malpractice and personal injury cases
with a 92% win-rate compared to the industry average of 28%. • 8,500+ experts in 250+ specialties, •
Practicing Physicians with Legal Experience, • No
cost attorney consultations, • Record Review & Testimony, • Independent Medical Examinations (IME) &
Autopsies, • Essential Affidavits & Reporting. Free
Attorney Consultations. Discuss your case at no
charge with a physician who will identify and clarify
your case issues to ensure you retain the appropriate
specialists. Case Reviews for Merit. Have your case
reviewed for merit in round-table fashion by a multidisciplinary panel of practicing, board-certified physicians. Review & Select Expert CVs. Our experience,
resources and large proprietary database enable us
to quickly identify and interview a large number of
potential medical experts on your behalf and provide
you with the CVs of those who are best suited to
your case. See display ad on page 69.
EXPERT WITNESS WEB SITES
EXPERT4LAW—THE LEGAL MARKETPLACE
(213) 896-6561, fax (213) 613-1909, e-mail:
forensics@lacba.org. Web site: www.expert4law.org.
Contact Melissa Algaze. Still haven’t found who
you’re looking for? Click here! expert4law—The legal
Marketplace is the best online directory for finding
expert witnesses, legal consultants, litigation support, lawyer-to-lawyer networking, dispute resolution
professionals, and law office technology. This comprehensive directory is the one-stop site for your
legal support needs. Available 24/7/365! Brought to
you by the Los Angeles County Bar Association.
FAILURE ANALYSIS
(877) 231-1020, fax (714) 634-4933, e-mail:
info@concreteinsights.com. Concrete Insights Corp.
KARS ADVANCED MATERIALS, INC.
Testing and Research Labs, 2528 West Woodland
Drive, Anaheim, CA 92801-2636, (714) 527-7100,
fax (714) 527-7169, 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 in-house capabilities for tests.
Extensive deposition and courtroom experience (civil
and criminal investigations). Principals are fellows of
American Society for Metals and board-certified
diplomates, American Board of Forensic Examiners.
DR. WILLIAM D. GUENTZLER
FORENSICS INTERNATIONAL
10298 Hawley Road, El Cajon, CA 92021, (619)
390-9081, cell (619) 823-9081, fax (619) 390-9086,
e-mail: forensicsintl@cox.net. Contact William D.
Guentzler, PhD. Dr. Guentzler has over 30 years of
experience as an expert witness and forensic examiner and 36 years as a university professor. He is licensed in the state of Arizona as a private investigator. His expertise includes auto, truck, ATC, ATV,
motorcycle, motor homes, and golf carts. He also
specializes in braking systems, ignition, fuel systems,
cooling, electrical and battery explosions, as well as
vehicle fire cause and origin.
FAMILY LAW
Oaks, CA 91403, (818) 986-5070, fax (818) 986-
5034, e-mail: smowrey@cmmcpas.com. Web site:
90067, (310) 552-0960, fax (310) 557-3468. 20355
Hawthorne Boulevard, First Floor, Torrance, CA
90503, (310) 370-6122, fax (310) 370-6188, e-mail:
rwatts@gursey.com or tkatz@gursey.com. Web site:
www.gursey.com. Contact Robert Watts or Tracy
Katz. Forensic accounting and litigation support services in all areas relating to marital dissolution; including, business valuation, tracing and apportionment of real property and assets, net spendable
evaluations, determination of gross cash flow available for support and analysis of reimbursement
claims and marital standards of living. See display
ad on page 51.
HARGRAVE & HARGRAVE
(310) 576-1090, fax (310) 576-1080, e-mail:
terry@taxwizard.com. Web site: www.taxwizard
.com. Contact Terry M. Hargrave, CPA/ABV/
CFF, CFE. Litigation services for family law and civil
cases. Past chair of California Society of CPAs’ Family Law Section, business valuation instructor for California CPA Foundation. Services include business
valuations, income available for support, tracing separate property, litigation consulting, real estate litigation, mediation, fraud investigations, damage calculation, and other forensic accounting work.
WOLF & HUNT
CA 93101, (805) 648-4088, fax (805) 963-4088,
page 49.
Angeles, CA 90064-1151, (310) 826-1040, fax (310)
Green, CPA. Accounting experts in forensic accounting, tax issues, business valuations, and ap-
The Expert of Experts
Consultants, Experts, and Expert Witnesses
Forensic Business, Construction, Engineering, Medical, Scientific, Technical
1-800-555-5422
www.ForensisGroup.com
experts@ForensisGroup.com
INSURANCE BAD FAITH EXPERT
Clinton E. Miller, J.D., BCFE
Author: How Insurance Companies Settle Cases
39 YEARS EXPERIENCE
Qualified Trial Insurance Expert in Civil & Criminal Cases Nationwide
Coverage Disputes – Customs and Practices in the Insurance
Industry – Good Faith/Bad Faith Issues
TEL 408.279.1034 | EMAIL cemcom@aol.com | FAX 408.279.3562
www.millerjd.qpg.com
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
praisals, marital dissolutions, eminent domain, insurance losses, business interruption, goodwill, economic analysis, investigative auditing, loss of earning,
FASTENERS/LATCHES
ARGOS ENGINEERING
44 Argos, Laguna Niguel, CA 92677, (949) 3638205, fax (949) 429-5972, e-mail: johndpratt@cox
.net. Web site: www.argos-engineering.com. Contact John D. Pratt, PhD, PE. Litigation consulting,
FINANCIAL
economic analysis and valuations/damages assessment, insurance claims, coverages and bad faith,
90071-2005, (213) 553-2500, fax (213) 553-2699,
FULCRUM INQUIRY
CA 90017, (213) 787-4100, fax (213) 891-1300,
page 1.
HAYNIE & COMPANY, CPAS
4910 Campus Drive, Newport Beach, CA 92660,
(949) 724-1880, fax (949) 724-1889, e-mail:
sgabrielson@hayniecpa.com. Web site: www
.hayniecpa.com. Contact Steven C. Gabrielson.
Alter ego, consulting and expert witness testimony in
a variety of practice areas: commercial damages,
ownership disputes, economic analysis, business
valuation, lost profits analysis, fraud/forensic investigations, taxation, personal injury, wrongful termination, professional liability, and expert cross examination. Extensive public speaking background assists
in courtroom presentations.
CA 90067, (310) 551-5252, fax (310) 551-5414,
e-mail: Jeff.Sinaiko@sinaiko.com. Web site: www
.sinaiko.com. Contact Jeff Sinaiko. Sinaiko is a
nationally recognized healthcare consulting firm. Our
professionals are handpicked for their broad understanding of the industry, detailed expertise and superior communication skills. Clients have found this expertise invaluable in litigation support where there is
no substitute for experience. Sinaiko’s litigation support practice includes, among others, industry standard practices evaluations; Medicare/Medicaid fraud;
provider/payor payment disputes; business valuation; transaction disputes; and facility and professional fee billing.
FINANCIAL STATEMENTS
FORENSIC ACCOUNTING
CA 90024, (310) 475-5676, fax (310) 475-5268.
Contact Brian Lewis, CPA, CVA. Forensic
accounting; business valuations; cash spendable
reports; estate, trust, and income tax services.
90071-2005, (213) 553-2500, fax (213) 553-2699,
FULCRUM INQUIRY
CA 90017, (213) 787-4100, fax (213) 891-1300,
page 1.
667-2600, fax (714) 667-2636. Web site: www
.gmgcpa.com.Contact Glenn Gelman. Since
1983, our firm has specialized in delivering forensic
accounting and litigation support services that give
our clients an edge. We provide the quality and
depth traditionally associated with Big Four firms with
the personal attention and fee structure of a local
firm. Our litigation support services include: forensic
accounting, investigative auditing, embezzlement and
fraud, expert witness testimony, strategy development, document discovery, deposition assistance,
computation of damages, arbitration consulting, rebuttal testimony, fiduciary accountings, and trial exhibit preparation and reconstruction of accounting
records. Winner of Inside Public Accounting’s 2008
“Best of the Best” award given to only 25 firms across
the country. Our practice focuses on closely held entrepreneurial firms in the following industries: construction, real estate development, equipment leasing, auto
parts (wholesale and retail), manufacturing, & professional services Glenn M. Gelman has been appointed
and served as Special Master in litigation support matters and has testified over 30 times. Our comprehensive case list is available upon request.
STONEFIELD JOSEPHSON
Forensic Advisory Services
90067, (866) 225-4511 toll free. Website: www
.sjaccounting.com. Contact Sidney Blum, CPA,
CFE, F-ABFEI, CHESA, CFF. Offices throughout
California. Expert witness testimony for complex litigation, bankruptcy and valuation (CPAs and lawyers
also on staff). Recognized, national expert in intellectual property and royalties. Top 25-ranked audit firm.
Former Big 4 partner. Extensive testimony experience in complex litigations, lost profit calculations,
unjust enrichment, lost earnings, business valuation
and losses, forensic accounting investigations, fraud
and misconduct investigation, breach of contract,
business interruption, grey market investigations,
construction audits and other third party audits, estates, insurance, personal injury, background
checks, fraud, SAS 70, fraud internal control assessments and risk mitigation recommendations, copyright infringement, criminal defense, and wrongful
termination. Experience in most industries including
media and entertainment, real estate, banking, finance, oil and gas, government, manufacturing, international trade, construction, retail, apparel, pharmaceuticals, software and technology.
SQUAR & ASSOCIATES
(714) 825-0300, fax (866) 810-9223, e-mail:
.squarassociates.com. Contact Richard Squar.
Professional litigation support services and forensic
accounting. Specialty areas include expert witness
testimony; damages calculations and lost profits and
lost revenues analysis; civil litigation and arbitration ;
business valuation; business owners’ disputes; accounting malpractice; purchase value analysis; critique of other experts’ testimony, litigation, and valuation reports; taxation issues; fiduciary accounting;
development of economic, financial and accounting
analyses and models; financial statements analysis;
business dissolution; marital dissolution; discovery
assistance; and, breach of contract matters. Many
industries represented including professional practices, services, real estate, accounting, insurance,
manufacturing, and distributorships. Expertise in taxation and accounting for business entities including
corporations, S corporations, limited liability companies, limited liability partnerships, partnerships and
sole proprietorships. Certified Public Accounting,
Certified Valuation Analysis, Accredited in Business
Valuation, Certified in Financial Forensics. See display ad on page 53.
91740, (626) 857-7300, fax (626) 857-7302, e-mail:
and partner disputes. Our forensic accounting ex-
perts assess the amount of an economic loss,
Angeles, CA 90064-1151, (310) 826-1040, fax (310)
FORENSIC ENGINEERING
(877) 231-1020, fax (714) 634-4933, e-mail: info
FRANCHISING
LEON GOTTLIEB
USA-INT’L RESTAURANT, HOTEL &
FRANCHISE CONSULTANT
4601 Sendero Place, Tarzana, CA 91356, (818) 7571131, fax (818) 757-1816, e-mail: lgottlieb@aol.com.
Web site: http://flashjordan.com/leongottlieb.htm.
Over 45 years hands-on experience; all types of
restaurants, fast foods, hotels, operations, training,
manuals, franchisor-franchisee disputes, industry
standards/practices, safety, and security. Former
partner, V.P. IHOP, president, Copper Penny Chain,
author, director and expert witness.
FRAUD INVESTIGATIONS
HANDWRITING
DOCUMENT EXAMINER
experience includes document examiner for the San
Diego Police Department crime lab, Arizona State
crime lab and San Diego County District Attorney’s
office. Currently in private, criminal, and civil practice.
VEHICLE SYSTEMS
Over 28 years of experience with the auto
industry investigating various vehicle systems
Providing comprehensive expert consulting in
automotive litigation cases:
• Automotive manufacturing and design defects analysis
• Vehicle suspension/handling testing and failure
analysis
• Vehicle brake performance and failure analysis
• Vehicle fire root cause analysis
• Seatbelt/Airbag design and protection performance
analysis
SEAN SHIDEH, P.E. • 818.276.5995
seanshideh@gmail.com
JUNGYEOL OH, PH.D., NP
Bilingual Korean-American Clinical Psychologist &
Psychiatric Nurse Practitioner
Comprehensive Psychological
& Psychiatric Services:
HEALTHCARE
CA 90067, (310) 551-5252, fax (310) 551-5414,
.sinaiko.com. Contact Jeff Sinaiko. Sinaiko is a nationally recognized healthcare consulting firm. Our
–Parenting
–Psychotherapy
–Expert Witness
–Custody Evaluation
–Forensic Evaluation
–Psycho-Diagnostic Evaluation
–Psychopharmacological Services
818-572-3266 • FAX 818-957-6820
EMAIL passionoh@gmail.com
www.jurispro.com/JungyeolOh
TEL
2550 Honolulu Ave, Suite 107, Montrose, CA 91020
HOTEL
MAURICE ROBINSON & ASSOCIATES LLC
90245, (310) 640-9656, fax (310) 640-9276, e-mail:
maurice@mauricerobinson.com. Web site: www
.mauricerobinson.com. Contact R. Maurice
Robinson, president. Hotel and real estate industry
business issues, including market, economic and financial feasibility, valuation, and disputes between
owner-operator, borrower-lender, and franchisorfranchisee. Fluent in management contracts, license
agreements, ground and building leases, partnership
and JV agreement, concession contracts, development agreements, and loan docs. Can estimate
damages and appraise property values under multiple scenarios. Expert witness testimony, litigation
strategy, consultation and support, damage calculations, lost profits analysis, real estate appraisals, deal
structuring, workouts, new development, strategic
planning, market demand assessment, acquisition
due diligence, and economic, financial, and investment analysis. 30 years of experience.
INSURANCE
economic analysis and valuations/damages assess-
Air Weather & Sea
Conditions, Inc.
Clear, plain-language and convincing expert
testimony, reports and analyses to reconstruct
weather, climate, storm, and atmospheric
conditions at location and time of interest.
Wind and rain and ice assessments, and
indications of their normalcy, unusualness
and foreseeability.
Authoritative, certified data acquisition,
preparation of exhibit materials, site visits
and evaluations of reports for legal and
insurance matters including building
projects, mold, and accidents, homeland
security and alternative energy applications.
Excellent client references provided on request.
EXTENSIVE COURT EXPERIENCE
Jay Rosenthal CCM
AMS CERTIFIED CONSULTING METEOROLOGIST
NATIONAL WEATHER SERVICE WEATHER SPOTTER
Phone 818.645.8632 or 310.454.7549
Fax 310.454.7569
E-mail AirWeather@aol.com
www.weatherman.org
P. O. Box 512, Pacific Palisades, CA 90272
ment, insurance claims, coverages and bad faith,
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
HOWARD M. GARFIELD, ESQ
465 California Street, Suite 500, San Francisco, CA
94104, (415) 438-4545, fax (415) 397-6392, e-mail:
hgarfield@longlevit.com. Web site: www.longlevit
.com. Contact Howard M. Garfield, Esq. Consultations and testimony. Qualified as expert in both
state and federal courts in California.
LAUNIE ASSOCIATES, INC.
1165K Tunnel Road, Santa Barbara, CA 93105,
(805) 569-9175, fax (805) 687-8597, e-mail: jlaunie
@cox.net. Contact Joseph J. Launie, PhD,
CPCU, insurance professor, author, and consultant. Over 30 years of experience as expert witness
in state and federal courts. Coauthor of books and
articles on underwriting, insurance company operations, and punitive damages. Consulting, expert witness on underwriting, company and agency operations, and bad faith.
CLINTON E. MILLER, JD, BCFE
INSURANCE BAD FAITH EXPERT
502 Park Avenue, San Jose, CA 95110, (408) 2791034, fax (408) 279-3562, e-mail: cemcom@aol
.com. Contact Clint Miller. Insurance expert regarding claims, underwriting, agent and brokers errors and
omissions, coverage disputes, customs and practices,
and bad faith. See display ad on page 61.
MURPHY, CAMPBELL, GUTHRIE & ALLISTON
8801 Folsom Boulevard, Suite 230, Sacramento, CA
95825, (916) 484-3501, fax (916) 484-3511, e-mail:
kcollins@murphycampbell.com. Web site: www
.murphycampbell.com. Contact Kim H. Collins.
Kim H. Collins is an effective bad faith and coverage
expert with over 30 years of litigation experience, he
headed one of the largest bad faith departments firm
in Southern California and cofounded and was on
the board of directors of an ongoing insurance carrier handling claims and underwriting issues. An appellate court in Northern California just upheld a large
punitive damage award based on his testimony. He
has effectively testified for both insurers and insured.
PAUL PAULIN & ASSOCIATES
567 West Channel Islands Boulevard, Suite 329,
Port Hueneme, CA 93041, (805) 985-3917, fax (805)
985-6407, e-mail: paulpaulin@aol.com. Contact
Paul Paulin. Property/casualty insurance; surplus
lives insurance; agent/broker; standard of care; bad
faith; insurance office procedures practice; 37 years
as agent/broker; former chair Senate advisory commission on Business insurance. Degrees/licenses:
CPCU, AMIM, ASLI, broker/agent, life agent, surplus
lives agent.
DAVID F. PETERSON, INC.
10681 Encino Drive, Oak View, CA 93022, (805)
649-8557, fax (805) 649-5957, e-mail: DFPET
@sbcglobal.net. Expert witness and consultant for insurance coverage and bad faith claim handling for
first party policies, third party policies, directors and
officers policies, professional liability policies, bonds,
life and disability policies. Have been retained as an
expert in over 900 lawsuits and qualified and testified
in over 90 trials. Insurance coverage and bad faith
defense attorney for over 20 years with 23 published
and unpublished appellate decisions.
JANICE A. RAMSAY, ESQ.
5 Savos, Irvine, CA 92603, (949) 854-9375,
(949) 400-5040 (cell), fax (949) 854-0073, e-mail:
jramsay@cox.net. Contact Janice A. Ramsay,
Esq. Experience in testifying in depositions and at
trial. Can provide consultation to litigation counsel on
property insurance coverage issues and proper claim
handling. Practice law in property insurance specialty
since 1971. Have acted as appraiser, arbitrator, and
mediator in coverage disputes.
RICHARD MASTERS INSURANCE
SERVICES, INC.
35 West Main Street, #B170, Ventura, CA 93001,
(805) 377-2688, fax (805) 830-0432, e-mail:
richard.masters@mac.com. Contact Richard
Masters, CPCU, ARM, AAI, AIS. Standard of care
for agents and brokers; insurance company standards of underwriting and claims. Experience in over
250 cases.
ROBERT HUGHES ASSOCIATES, INC.
508 Twilight Trail, #200, Richardson, TX 75080,
(972) 980-0088, fax (972) 233-1548, e-mail: joakley
@roberthughes.com. Web site: www.roberthughes
.com. Contact John Oakley. Founded in 1979,
RHA is an international insurance and risk management consulting company based in Dallas. Our consultants’ experience in the insurance industry allows
us to provide highly qualified expert witness and litigation support services. Our expertise includes:
property/casualty insurance, life/health insurance,
Lloyd’s, London Market Research, claims handling,
bad faith, decision analysis, agency management
and practices, insurance laws and regulations, statistical forecasting, insurance sales and marketing
practices, insurance archaeology and policy interpretation and analysis.
SHARP & ASSOCIATES; INSURANCE
CONSULTANTS & EXPERTS.
West coast office: 21520 Yorba Linda Boulevard,
Suite G-257, Yorba Linda, CA. 92887, (213) 4079957; East coast office: 325 East Paces Ferry Road,
Suite 1603, Atlanta, GA 30305, (213) 407-9957,
e-mail: rsharp1959@aol.com Web site: www
.sharpandassociates.org. Contact Robert Sharp.
Good faith/bad faith. In regard to all insurance related issues and insurance industry standards. Mr.
Sharp has 33 years of experience, and retired as
president and CEO of a property-casualty insurance
company. He also held the positions of senior vice
president claims and executive vice president. He is
providing services to law firms, insurance companies, and corporations as a consultant and expert.
Mr. Sharp has testified in state and federal court in
insurance related matters such as property/casualty
claims, sales and underwriting issues, policy cancellations, coverage denials, general liability, uninsured/underinsured claims, and bad faith claims. CV
upon request. For immediate background information please see my Web site, as listed above.
THOMAS & ELLIOTT
CA 90025, (310) 571-2727, fax (310) 207-0900,
e-mail: steve@thomasandelliott.com. or jay
@thomasandelliott.com. Web site: www
.thomasandelliott.com. Contact Jay Elliott. Coverage analysis of liability, property, auto, malpractice,
health, disability, life, title, and fidelity insurance. Duty
to defend, reservation of rights, Cumis, bodily injury,
property damage, business torts, privacy, bad faith,
reasonableness of attorney’s fees, and defense cost
reimbursement claims.
BARRY ZALMA, ZALMA INSURANCE
CONSULTANTS
4441 Sepulveda Boulevard, Culver City, CA 90230,
(310) 390-4455, fax (310) 391-5614, e-mail: zalma
@zalma.com. Web site: www.zalma.com. Contact
Barry Zalma. Insurance bad faith, insurance claims
handling, insurance coverage, and insurance fraud
consultant and expert witness. Author of Construction Defects: Litigation and Claims, Insurance
Claims—A Comprehensive Guide and Mold: A Comprehensive Claims Guide, Insurance, Cases and Materials on Coverage, Claims, and Litigation. California
Claims Regulations, and the monthly Zalma’s Insur-
ance Fraud Letter.
INTELLECTUAL PROPERTY
90071-2005, (213) 553-2500, fax (213) 553-2699,
FULCRUM INQUIRY
CA 90017, (213) 787-4100, fax (213) 891-1300,
page 1.
WOLF & HUNT
CA 93101, (805) 648-4088, fax (805) 963-4088,
include accounting, breach of contract, business interruption, business dissolution, construction defects,
delays, and cost overruns, fraud, insurance bad faith,
intellectual property including trademark, patent, and
copyright infringement, and trade secrets, malpractice, marital dissolution, personal injury, product liability, real estate, tax planning and preparation, IRS
audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 49.
INTELLECTUAL PROPERTY/ACQUISITION
INVESTIGATIONS
90071, (213) 624-9600, fax (213) 624-6994, e-mail:
INTERNET/GOOGLE
ENGEL VENTURES
11 West Victoria Street, Suite 207A, Santa Barbara,
CA 93101, (805) 965-0255, fax (805) 884-0740,
e-mail: dan@engelventures.com. Web site: www
.engleventures.com. Contact Dan Engel. Led online
marketing for Google Adsense and Adwords. CEO of
FastSpring E-Commerce, VP of market development
at Picasa, and co-founder of Morpheus Software. Led
online marketing for Citrix’s GoToMyPC.
INVESTIGATIONS
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 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.
VLS FRAUD SOLUTIONS/A PROFESSIONAL
SERVICE OF VICENTI, LLOYD & STUTZMAN LLP
91740, (626) 857-7300, fax (626) 857-7302, e-mail:
LSaddlemire@vlsllp.com. Web site: www.VLSLLP
.com. Contact Linda Saddlemire, CPA, CFE,
CFF, VLS Fraud Solutions Advisor. The VLS
Fraud Solutions INVESTIGATION SERVICE is an effective and discreet team of professional fraud experts that use a proven process to deliver a thorough
investigation, in partnership with you, the attorney,
while protecting a positive work environment of your
client. This team – CPAs, Certified Fraud Examiners
(CFEs), Certified in Financial Forensics (CFF) and former law enforcement (including the Federal Bureau
of Investigation) – are seasoned leaders, experienced
in the investigative community. With over five
decades of experience providing business solutions,
VLS has a proven reputation for credibility and a
proven track record of success. FOR MORE INFORMATION about VLS Fraud Solutions INVESTIGATION SERVICES or to schedule a free consultation,
contact us in complete confidence. Please call Linda
Saddlemire, CPA, CFE, CFF, or Ernie Cooper, CPA,
CFE, JD – our VLS Fraud Solutions ADVISORS – at
(626) 857-7300.
EVALUATION
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Your Medical Expert.
SM
Neurology and Electromyography
Neurotoxicology
Occupational/Environmental
Medicine
415.381.3133 / FAX 415.381.3131
jsrutch@neoma.com
www.neoma.com
TEL
E-MAIL
San Francisco
Sacramento
Petaluma
Richmond
• Outstanding local and national Experts
in more than 900 healthcare categories –
even hard-to-find specialties
• Services include prompt, customized
searches, referrals, resumes, and your
initial interview calls with experts
• 5 decades of referral experience
Eureka
JONATHAN S. RUTCHIK, MD, MPH
20 Sunnyside Ave., Suite A-321, Mill Valley, CA 94941
800-659-8464
www.tasanet.com
213-625-0828 • tasamed@tasanet.com
LANDSCAPE ARCHITECTURE
KAMMEYER & ASSOCIATES, INC.
2837 Kellogg Avenue, Corona, CA 92881, (951)
371-2444, fax (951) 371-4719, e-mail: ken
@kammeyer.com. Web site: www.kammeyer.com.
Contact Ken Kammeyer, CLARB. Forensic landscape architects. Landscape construction, water
use, irrigation CIMIS studies, ground maintenance,
agriculture, turf grass management, site drainage,
erosion control, and playground safety. Past president California State Board of Landscape Architects,
faculty at council UCLA extension. Been in business
over 40 years.
LEGAL MALPRACTICE
LAW OFFICES OF PHILLIP FELDMAN
Oaks, CA 91403, (818) 986-9890, fax (818) 9861757, e-mail: LegMalpExpert@aol.com; StateBarDefense@aol.com; PreventativeLaw@aol.com. Web
sites: www.LegalMalpracticeExperts.com; www
.LegalEthicsExperts.com. Contact Phillip
Feldman. Certified SPECIALIST professional liabilitylegal CA/ABA. Former judge pro tem—25 years. FEE
DISPUTE Arbitrator—31 years. Forty years ETHICS,
Bar prosecution/defense. Consulting EXPERT. Testifying EXPERT 28 years: standard of care, causation,
fiduciary duties, professional responsibility and
ethics, and fee disputes. Any underlying case-litigation, transaction, family, administrative, state or federal. Former accountant, degree BS, MBA. Former
managing partner plaintiff and defense firms. Also
State Bar Defense Counsel and preventative law.
LAWRENCE H. JACOBSON, ESQ.
9401 Wilshire Boulevard, Suite 1250, Beverly Hills,
CA 90212, (310) 271-0747, fax (310) 271-0757,
e-mail: law.jac@lhjpc.com. Web site: www
.lawrencejacobson.com. Expert witness: lawyer
malpractice in business and real estate transactions,
standard of care for real estate brokers and mortgage brokers, and real estate document custom and
usage. Practicing real estate and business law in
California since 1968. See display ad on page 50.
EDWARD LEAR
5200 West Century Boulevard, Suite 345, Los Angeles, CA 90045, (310) 642-6900, fax (310) 642-6910,
e-mail: lear@centurylawgroup.com. Web site:
www.CalStateBarDefense.com Contact Edward
Lear. Specialties: Former State Bar prosecutor, expert testimony and declarations regarding breach of
standard of care, breach of fiduciary duties, especially in context of California Rules of Professional
Conduct. Expert testimony and declarations regarding legal fees and billing practices. Experience includes state and federal, plaintiff and defense. Fees:
$350/hour, $400/hour (depo and trial). Degrees/license: JD, UCLA (Law Review); AB, Dartmouth College; State Bar of California 1987.
LAW OFFICES OF CHARLES PEREYRA-SUAREZ
CA 90071, (213) 623-5923, fax (213) 623-1890,
e-mail: cpereyra@cpslawfirm.com. Web site: www
.cpslawfirm.com. Contact Charles PereyraSuarez. Acted as an expert witness for the plaintiffs
in a legal malpractice case that resulted in a $38 million jury verdict in favor of the plaintiffs against a
prominent international law firm. This was the fifth
largest jury verdict in California in 2005. See display
ad on page 55.
REHWALD GLASNER & CHALEFF
5855 Topanga Canyon Boulevard, Suite 400, Woodland Hills, CA 91367, (818) 703-7500, fax (818) 7037498, e-mail: wrehwald@rehwaldlaw.com. Web site:
www.rehwaldlaw.com. Contact William Rehwald.
Expert consulting and testimony on attorney standard of care, fiduciary duties, professional responsibility and ethics, underlying case proof, and fee disputes. Retained expert by plaintiffs and defendants in
legal malpractice trials. Representing litigants in contract disputes, employment law and medical malpractice in federal and state courts of 37 years. Extensive publication and lecture experience.
LAW OFFICES OF CHRISTOPHER ROLIN
5707 Corsa Avenue, Suite 106, Westlake Village, CA
91362, (818) 707-7065, fax (818) 735-9992, e-mail:
crolin@chrisrolin.com. Web site: www.chrisrolin.com.
Contact Christopher Rolin. Christopher Rolin is a
highly effective trial attorney with over 42 years of trial
activity in civil litigation. His area of emphasis is attorney malpractice, focusing on the applicable community standard of care for practicing attorneys in the
litigation and business areas. His trial experience has
resulted in numerous assignments as an expert witness on trial and standards of care issues. He has
been retained as an expert by both plaintiffs and defendants in legal malpractice cases. He has spoken
before numerous professional groups concerning
trial practice issues.
LITIGATION
90071, (213) 624-9600, fax (213) 624-6994, e-mail:
CA 90067, (310) 551-5252, fax (310) 551-5414,
.sinaiko.com. Contact Jeff Sinaiko. Sinaiko is a nationally recognized healthcare consulting firm. Our
SQUAR & ASSOCIATES
(714) 825-0300, fax (866) 810-9223, e-mail:
.squarassociates.com. Contact Richard Squar.
Professional litigation support services and forensic
accounting. Specialty areas include expert witness
testimony; damages calculations and lost profits and
lost revenues analysis; civil litigation and arbitration ;
business valuation; business owners’ disputes; accounting malpractice; purchase value analysis; critique of other experts’ testimony, litigation, and valuation reports; taxation issues; fiduciary accounting;
development of economic, financial and accounting
analyses and models; financial statements analysis;
business dissolution; marital dissolution; discovery
assistance; and, breach of contract matters. Many
industries represented including professional practices, services, real estate, accounting, insurance,
manufacturing, and distributorships. Expertise in taxation and accounting for business entities including
corporations, S corporations, limited liability companies, limited liability partnerships, partnerships and
sole proprietorships. Certified Public Accounting,
Certified Valuation Analysis, Accredited in Business
Valuation, Certified in Financial Forensics. See display ad on page 53.
MARKETING/ADVERTISING/MEDIA
LARRY STEVEN LONDRE/LONDRE MARKETING
CONSULTANTS, LLC/ USC/ CSUN
11072 Cashmere Street, Second Floor, Los Angeles,
CA 90049, (310) 889-0220, fax (310) 889-0221,
e-mail: LSL@LondreMarketing.com. Web site: www
.LondreMarketing.com. Contact Larry Steven
Londre. Experienced expert in marketing, advertising, media, communication, advertising agencies,
clients, trademarks, and global marketing. Also senior lecturer at USC, CSUN, and Pepperdine Universities.
MARKETING AND SURVEY RESEARCH
MARYLANDER MARKETING RESEARCH
16501 Ventura Blvd. Suite, Suite 601, Encino, CA
91367, (818) 464-2400, fax (818) 464-2399, e-mail:
cheryl@marylander.com. Web site: www.marylander
.com. Contact Cheryl Jaffe. Marylander Marketing
Research (MMR) provides trial-ready surveys, rebuttals, and expert witness services in marketing for intellectual property litigation cases. Our studies measure confusion, secondary meaning, descriptiveness,
genericness, and deceptiveness for matters involving
trademarks, copyrights, advertising, pricing, and
other intellectual property topics. For over thirty
years, MMR has measured consumer attitudes and
behaviors through data gathered directly from customers. We provide expert opinions and analysis.
Our reports are provided by professionals with extensive industry experience.
MECHANICAL ENGINEERING
ARGOS ENGINEERING
44 Argos, Laguna Niguel, CA 92677, (949) 3638205, fax (949) 429-5972, e-mail: johndpratt
@cox.net. Web site: www.argos-engineering.com.
Contact John D. Pratt, PhD, PE. Litigation consulting, inspections, expert reports, patent infringement
and validity analysis, deposition, and trial testimony.
CTG FORENSICS, INC.
(949) 790-0010, fax (949) 790-0020, e-mail: wbroz
ventilating, A/C) and electrical (power, lighting), energy systems, residential and nonresidential buildings, construction defects, construction claims,
mold, and green/LEED building.
ROBERT G. LINFORD PHD.
7515 Hansom Drive, Oakland, CA 94605-3802,
(510) 569-2054, fax (510) 569-2040, e-mail: bob
@blinford.com. Web site: www.blinford.com. Designbuild HVAC, commercial, industrial, and medical.
Forty years of construction experience. Both designbuild and plan/spec. Ten years of expert witness experience.
SEAN SHIDEH, P.E.
19167 Harliss Street, Northridge, CA 91324, (818)
276-5995, e-mail: seanshideh@gmail.com.
Providing comprehensive expert consulting in automotive litigation cases: Automotive manufacturing,
and design defects analysis. Vehicle suspension/
handling testing and failure analysis. Vehicle brake
performance and failure analysis. Seatbelt/Airbag design and protection performance analysis. Vehicle fire
root cause analysis. Mr. Shideh is a registered professional mechanical engineer in the state of California. He has over 28 years of experience investigating
various vehicle systems, including 18 years for major
manufacturers. He has performed numerous vehicle
crash and safety compliance tests under contract
with the National Highway Traffic Safety Administration. Mr. Shideh’s work includes vehicle crashworthiness and structural integrity, occupant protection
performance, suspension/handling and brake performance. Automotive product liability issues that require specialized knowledge, testing and research to
determine product design defects, product failure,
and product misuse. Expert consulting in the area of
automotive forensics including accident reconstruction, injury biomechanics, safety systems, human
factors, and product failure analysis. Our clients include law firms, insurance companies, government
agencies, and fleet operators throughout North
America, all benefiting from the depth of experience
we have developed over the past 25 years. See
MEDICAL
ALLERGY ASTHMA RESPIRATORY CARE
MEDICAL CENTER, INC.
KENNETH T. KIM, MD
2600 Redondo Avenue, Suite 400, Long Beach,
CA 90806, (562) 997-7888, fax (562) 997-8884,
e-mail: sueb@allergy-asthma.info. Web site: www
.allergy-asthma.info. Contact Sue Bass. Specialties
include latex allergy, asthma, food allergy, drug allergy, anaphylaxis, sinusitis, hives, sick building syndrome, mold, and environmental disease. Experience, civil: retained or reviewed more than 70 latex
products liability cases, retained for allergy and internal medicine cases in the areas of occupational
asthma, mold exposure, civil litigation, sick building
syndrome, multiple chemical sensitivity, smoke inhalation, and toxic exposure.
AMFS MEDICAL EXPERTS NATIONWIDE
2000 Powell Street, Suite 520, Emeryville, CA
94608, (800) 275-8903. Web site: www.AMFS.com.
Medical experts for malpractice and personal injury
cases. AMFS is America’s premier medical expert
witness and consulting company. We are a trusted
partner with the legal community and provide a superior method of retaining medical experts. Since
1990, we have provided board-certified experts in
over 10,000 malpractice and personal injury cases
with a 92% win-rate compared to the industry average of 28%. • 8,500+ experts in 250+ specialties, •
Practicing Physicians with Legal Experience, • No
cost attorney consultations, • Record Review & Testimony, • Independent Medical Examinations (IME) &
Autopsies, • Essential Affidavits & Reporting. Free
Attorney Consultations. Discuss your case at no
charge with a physician who will identify and clarify
your case issues to ensure you retain the appropriate
specialists. Case Reviews for Merit. Have your case
reviewed for merit in round-table fashion by a multidisciplinary panel of practicing, board-certified physicians. Review & Select Expert CVs. Our experience,
resources and large proprietary database enable us
to quickly identify and interview a large number of
potential medical experts on your behalf and provide
you with the CVs of those who are best suited to
your case. See display ad on page 69.
TASAMED (A DIVISION OF THE TASA
GROUP, INC.)
Customized Expert Referrals in all Medical practice
areas. (800) 659-8464, fax (800) 850-8272. Contact
Linda Bartorillo. FIND THE MEDICAL EXPERT or
EXPERT WITNESS YOU NEED quickly with one call
or click to TASAmed. We refer top caliber, experienced practitioners—including hard-to-find-specialists—for case merit reviews, litigation support, testimony, etc. in over 900 + medical fields. Save valuable search time. Every request receives personal
service from our skilled Referral Advisors who target
referrals, forward resumes, and help arrange your initial screening telephone interviews with experts. If
you don’t ultimately designate or engage an expert
we refer, there is NO CHARGE at all. Plaintiff or defense. Local, regional, and national referrals. Exceptional personal service. Sample categories include
anesthesiology, cardiology, dentistry, emergency
care, forensic pathology, hospital administration,
neurology, nursing homes, orthopedics, oncology,
pediatrics, pharmacology, psychiatry, radiology,
sports medicine, surgery, and more. Please see our
insert in this issue and display ad on page 65.
MICHAEL R. WEINRAUB, M.D.
BOARD CERTIFIED PEDIATRICIAN
30 YEARS PEDIATRIC PRACTICE EXPERIENCE
Areas of Pediatric Expert Litigation Support:
• Pediatric Malpractice
• Injury and Product Liability
• Developmental Disabilities
(Autism)
• Custody Evaluation
• Child Abuse and Neglect
OFFICE
• Munchausen Syndrome by Proxy
• Shaken Baby Syndrome (SBS) &
(SBIS)
• Toxic Lead Exposure
• Fetal Alcohol Spectrum Disorder
(FASD)
213.236.3662 FAX 213.236.3663 E-MAIL weinraub@sbcglobal.net
515 SOUTH FLOWER STREET, #3600, LOS ANGELES, CALIFORNIA 90071
MEDICAL/CARDIO-THORACIC SURGERY
HENRY FEE MD
14911 National Avenue, #6, Los Gatos, CA 95032,
(408) 358-8771, fax (408) 358-8621. Contact
Henry Fee, MD. Graduated Harvard Medical
School. Residency Johns Hopkins & UCLA. Expert
witness in adult heart and lung surgery for the defendant or the plaintiff. Twenty-five years of experience
in medical legal field. Full-time surgical practice in private hospital.
MEDICAL/DERMATOLOGY
BIERMAN FORENSIC DERMATOLOGY
2080 Century Park East, #1008, Los Angeles, CA
90067, (310) 553-3567, fax (310) 553-4538,
e-mail: sbiermanmd@aol.com. Web site: www
.biermandermatology.com. Contact Stanley Bierman, MD. Dr. Bierman is an expert witness in matters relating to diagnosis and treatment of skin cancers including melanoma. He is an acknowledged
expert in legal matters relating to sexually transmitted
diseases. Dr. Bierman is Honorary Associate professor of medicine and past president of Los Angeles
Dermatologic Society.
MEDICAL/EMERGENCY MEDICINE
BERNARD T. MCNAMARA, MD, FACP, FACEP
409 North Pacific Coast Highway, # 923, Redondo
Beach, CA 90277-2780, (310) 480-4770, fax (310)
943-3274, e-mail: mcnamarab12749@msn.com.
Contact Bernard T. McNamara, MD. Current
practice, full time emergency medicine and director
of infection control at Community Mission Hospital of
Huntington Park. Former assistant clinical professor
of medicine at Los Angeles County—USC Medical
Center, 1986 to 1997. Over 30 years of experience
in the practice of emergency medicine, infectious
diseases, and HIV/AIDS. Experience in medical malpractice for both plaintiff and defense. Board certified
in emergency medicine since 1987; infectious diseases since 1984 and internal medicine since 1980.
Degrees/licenses: MD; Fellow, American College of
Physicians; Fellow, American College of Emergency
Physicians; Fellow, American Academy of Emergency Medicine; member, Association for Professionals in Infection Control and Epidemiology; CA License G36838 since 1978.
MEDICAL/NEUROLOGY AND SLEEP
CENTER
BRUCE WAPEN, MD
EMERGENCY MEDICINE EXPERT
969-G Edgewater Boulevard, Suite 807, Foster City,
CA 94404-3760, (650) 577-8635, fax (650) 5770191, e-mail: ExpertWitness@DrWapen.com. Web
site: www.DrWapen.com. Contact Bruce Wapen,
MD. Board-certified emergency physician and experienced teacher/public speaker offers consultation,
chart review, and testimony as an expert witness for
defense or plaintiff involving litigation arising from the
emergency department.
MEDICAL/PLASTIC AND COSMETIC
RECONSTRUCTIVE SURGERY
MEDICAL/INFECTIOUS DISEASE
BERNARD T. MCNAMARA, MD, FACP, FACEP
409 North Pacific Coast Highway, # 923, Redondo
Beach, CA 90277-2780, (310) 480-4770, fax (310)
943-3274, e-mail: mcnamarab12749@msn.com.
Contact Bernard T. McNamara, MD. Current
practice, full time emergency medicine and director
of infection control at Community Mission Hospital of
Huntington Park. Former assistant clinical professor
of medicine at Los Angeles County—USC Medical
Center, 1986 to 1997. Over 30 years of experience
in the practice of emergency medicine, infectious
diseases, and HIV/AIDS. Experience in medical malpractice for both plaintiff and defense. Board certified
in emergency medicine since 1987; infectious diseases since 1984 and internal medicine since 1980.
Degrees/licenses: MD; Fellow, American College of
Physicians; Fellow, American College of Emergency
Physicians; Fellow, American Academy of Emergency Medicine; member, Association for Professionals in Infection Control and Epidemiology; CA License G36838 since 1978.
MEDICAL/NEUROLOGY
ROGER V. BERTOLDI, MD
8610 South Sepulveda Boulevard, Suite 200, Los
Angeles, CA 90045-4810, (310) 670-5555, fax (310)
670-9222. Web site: http://rbertold.bol.ucla.edu.
Contact Rosa. Traumatic brain injury (TBI): Neuro
behavior-anatomical-functional (PET, brain-mapping,
neuropsychological) workup and treatment. Diplomate (ABPN) qualification in clinical neurophysiology:
electrodiagnostics of electromyography (EMG), electroencephalography (EEG), and evoked potentials for
carpal tunnel syndrome (CTS), complex regional pain
syndrome (CRPS), back pain radiculopathy, peripheral nerve injuries, neurotoxic injuries, and chronic
pain, somatoform disorders, epilepsy, dementia,
headache, assistant clinical professor of neurology,
UCLA, AME, QME, IME.
MEDICAL/NEUROLOGY/PERSONAL
INJURY
ANDREW WOO, MD, PHD
2021 Santa Monica Boulevard, Suite 525-E, Santa
Monica, CA 90404, (310) 829-2126, fax (310) 9988887. Contact Gail. Board-certified neurology, clinical assistant professor UCLA, personal injury, pain,
carpal tunnel, spine, memory, seizure, sleep, and
clinical protocols. Multiple sclerosis, migraine, and
stroke. Education: AB Cornell University, MD and
PhD Brown University; residency + EMG/EEG fellowship UCLA; Advisory Boards: L.A. Neurologic Society, St. John’s Sleep Lab; honors: America’s Top
Physicians (Consumer Research Consul of America)
2005, 2006, 2007, Who’s Who in Medicine (2001)
and science/engineering (1993), international electrophysiology Young Investigator (1997), UCLA Neurology Teaching Awards (1994, 1996, 2006), American
Academy Neurology Research (1991), Brown University Sigma XI (1989), and research/publications (22),
lectures (382).
MOHSEN M. HAMZA, MD.
CA 90025, (310) 477-7201, fax (310) 575-0973,
e-mail: mhmd@verizon.net. Web site: www
.neurologycenter.org. Contact Mohsen M. Hamza,
MD. General neurology, head injury, toxicological
neurology, back pain, industrial neurology, sleep disorders, and neck injury.
JOHN M. SHAMOUN, MD, FACS, INC.
360 San Miguel, Suite 406, Newport Beach, CA
92660, (949) 759-3077, fax (949) 759-5458, e-mail:
jmshamoun@aol.com. Web site: www.ideallook
.com. Contact Yvonne. Specialties: only plastic
surgeon in the United States board certified by the 1)
American Board of Surgery, 2) American Board of
Plastic Surgery, 3) American Board of Facial Plastic
and Reconstructive Surgery, and 4) American Board
of Forensic Medicine. Extensive experience in all aspects of cosmetic, plastic, and reconstructive
surgery of the breast, nose, face, eye, and body.
Well-published author of several textbook chapters
and journal articles related to above topics. Extensive
experience in medical malpractice case review, consultation, written evaluation and testimony in depositions and trial for plaintiff and defense. Articulate subspecialty consultant with up-to-date knowledge and
expertise of plastic surgery literature and standards
of care. Opinions supported by extensive subspecialty education, training, and experience.
MEDICAL/TOXICOLOGY
JONATHAN S. RUTCHIK, MD, MPH, QME
20 Sunnyside Avenue, Suite A-321, Mill Valley, CA
94941, (415) 381-3133, fax (415) 381-3131, e-mail:
jsrutch@neoma.com. Web site: www.neoma.com.
Jonathan S. Rutchik, MD, MPH is a physician who is
board certified in both Neurology and Occupational
and Environmental Medicine. He provides clinical
evaluations and treatment, including electromyography, of individuals and populations with suspected
neurological illness secondary to workplace injuries
or chemical exposure. Services include medical
record and utilization review and consulting to industrial, legal, government, pharmaceutical, and academic institutions on topics such as metals and solvents, mold illness, Baychol issues, Persian Gulf War
syndrome, musicians’ injuries, and others. See display ad on page 65.
MEDICAL/UROLOGY
DUDLEY SETH DANOFF, MD, FACS
Cedars-Sinai Medical Center, 8635 West 3rd Street,
Suite One West, Los Angeles, CA 90048, (310) 8549898, fax (310) 854-0267, e-mail: danoff@aol.com.
Web site: www.towerurology.com. Contact Dudley
Seth Danoff, MD, FACS. Experience in urologic
case review and testimony for plaintiff and defense,
court experience, and strategies. Extensive expertise
in prostate, bladder, and kidney cancers; kidney
transplantation; pelvic trauma; sexual dysfunction;
penile implants; incontinence; infections; and stone
disease. Publishing experience in scientific journals,
books, lectures, training seminars, and course directorships. Princeton University, Summa Cum Laude;
Yale Medical School; Columbia University urologic
training; Major, U.S. Air Force; Who’s Who in America; Academic appointment. Detailed CV available.
MEDICAL DEVICES
92025, (760) 489-5400, fax (760) 489-5412,
e-mail: veronicav@fallbrook-eng.com. Web site:
www.fallbrook-eng.com. Contact Richard P.
Meyst. Fallbrook Engineering provides expert witness services in the areas of IP (patent infringement,
invalidity, claim construction and trade dress), personal injury, product liability, and product failure
analysis. Our professionals have represented both
plaintiff and defendant. We have done analysis, prepared declarations, been deposed and testified in
court. We have years of design and development experience making us effective expert witnesses in all
matters involving medical devices. Visit our website
at www.fallbrook-eng.com.
MEDICAL LEGAL
ROUGHAN & ASSOCIATES AT LINC, INC.
114 West Colorado Boulevard, Monrovia, CA 91016,
(626) 303-6333, fax (626) 303-8080, e-mail:
janr@linc.biz. Contact Jan Roughan at ext. 16.
Specialties: Roughan and Associates at LINC is a
case management and medical/legal consulting firm.
Services/products offered include: 1) expert testimony, 2) life care plan (LCP) construction/LCP critique, 3) medical record organization/summarization/analysis, 4) medical bill auditing, 5) expert witness identification, 6) IME attendance, 7) video services (e.g., day in life, settlement brief, IME evaluation, NDT/PT evaluation, etc.), 8) questions for: deposition/cross examination; 9) medical/psychiatric
case management. See display ad on page 50.
MEDICAL MALPRACTICE
J. CARLOS MAGGI, MD
Memorial/Miller Children’s Hospital. 2801 Atlantic
Avenue, Long Beach, CA 90806, (562) 933-8743,
fax (562) 933-8764, e-mail: cmaggi@memorialcare
.org. Contact Evelyn Rosas. Pediatric pulmonary,
pediatric critical care, pediatric hospital care, pediatric emergencies and resuscitation, pediatric trauma
and burns, and intoxications.
PEDIATRIC CONSULTANTS, INC.
11232 Kensington Road, Rossmoor, CA 90720,
(562) 964-9644, fax (562) 933-8764, e-mail:
drmaggic@aol.com. Contact J. Carlos Maggi, MD.
Evaluation of cases for medical malpractice in pediatric patient care.
GRAHAM A. PURCELL, MD, INC.
Assistant Clinical Professor Orthopaedic Surgery,
UCLA, 3600 Wrightwood Drive, Studio City, CA
91604, (818) 985-3051, fax (818) 985-3049, e-mail:
expert@gpurcellmd.com. Web site: gpurcellmd.com.
Contact Graham A. Purcell, MD. Dr. Purcell is a
board certified orthopedic surgeon, subspecialty in
spinal disorders affecting adults and children. Examples of spinal disorders treated by Dr. Purcell include disc diseases, stenosis, infections, tumors, injuries, and deformities including scoliosis. He possesses 29 years of orthopedic and 21 years of medlegal experience, including defense, plaintiff, insurance carriers, CA Attorney General’s office and Public
Defender’s office. Expert testimony pertains to medmal, personal injury, and workers’ compensation
cases. As a qualified medical evaluator, Dr. Purcell
has extensive experience in performing QMEs, AMEs,
IMEs, WC evals. See display ad on page 69.
MEDICARE
CA 90067, (310) 551-5252, fax (310) 551-5414,
.sinaiko.com. Contact Jeff Sinaiko. Sinaiko is a
nationally recognized healthcare consulting firm. Our
METALLURGICAL AND CORROSION
ENGINEER
Drive, Anaheim, CA 92801-2636, (714) 527-7100,
EXPERT WITNESS
SERVICES
• Bankruptcy - Interest Rates
• Banking - Lending & Operations
• Lender Liability, Letters of
Credit, Guarantees
• Forgery, Credit Cards, Ponzi
METALLURGY
Drive, Anaheim, CA 92801-2636, (714) 527-7100,
SEAL LABORATORIES
250 North Nash Street, El Segundo, CA 90245,
(310) 322-2011, fax (310) 322-2243. E-mail: akumar@seallabs.com. Web site: www.seallabs.com.
Contact Arun Kumar, PhD, president. Materials
failure analysis, product liability, and patent infringement support. Case evaluation, analytical support,
and expert witness testimony. Metals, composites,
plastics, and glass. Airplanes, autos, helicopters,
motorcycles, consumer products, medical devices,
prostheses and implants, and electrical components.
Analysis of failure due to fatigue, overload, corrosion,
wear, or manufacturing/material defect.
•
•
•
Schemes, Checking Account
Disputes
Consumer, Commercial, Real
Estate, Construction Loans
& Regulatory Issues
Credit Damages, ID Theft
Appraisal and Expert referrals
– 35 years experience –
CEO, Director, Sr. Loan Officer,
State, Bankruptcy, &
Federal Court
THOMAS TARTER
ANDELA CONSULTING GROUP
818-380-3102 or 818-884-2525
E-Mail: ttarter@earthlink.net
www.commercepartners.org
METEOROLOGY
AIR, WEATHER, & SEA CONDITIONS, INC.
P.O. Box 512, Pacific Palisades, CA 90272, (818)
645-8632, fax (310) 454-7569, e-mail: airweather
@aol.com. Web site: www.weatherman.org. Contact Jay Rosenthal, AMS Certified Consulting
Meteorologist (CCM). Experienced and authoritative expert testimony, reports and analyses of wind,
rain, storms, climatic conditions, flooding, waves;
specialist in auto/boat/ship/aircraft accident reconstruction, property damage, slip and falls, construction, mold issues, homeland security applications, air
pollution, transport, and risk identification. Movie industry applications, cinematography, and visual effects. Determining unusualness, normalcy, and foreseeability. Official data, site visits, clear and convincing testimony. See display ad on page 63.
Twenty-one years plaintiff & defense experience
’
’
, CA Attorney
General’s Office
NURSING/SURGERY/MEDSURG
MED-LINK CONSULTATION
3362 Budleigh Drive, Hacienda Heights, CA 91745,
(626) 333-5110, fax (626) 968-0064, e-mail:
dorothypollock@roadrunner.com. Contact Dorothy
Pollock, LNCC. Registered nurse with 40 years of
clinical experience. No-testifying services include
case analysis/for merit, chronology, translation, written reports, medical record organization. DME/IME
accompaniment including CD recording and written
report. Expert witness and testifying services, including affidavit, arbitration, declaration, and trial. Courtroom experienced both plaintiff and defense.
OBSTETRICS & GYNECOLOGY
ANTON L AMBROSE, MD, FACOG
18350 Roscoe Boulevard, Suite 504, Northridge, CA
91325, (818) 341-3111, fax (818) 886-6925, e-mail:
antonambrosemd@aol.com. Contact Anton L.
Ambrose, MD, FACOG. Specialties: OB/GYN.
Diplomate, American Board of OB/GYN; Fellow,
American College of OB/GYN; member; American
Medical Association, Los Angeles County Medical
Association, Sri Lanka Medical Association of North
America; Assistant clinical professor, UCLA School
of Medicine; OB/GYN Coordinator Family Practice
Residency Program, Northridge Hospital; private
practice OB/GYN, Northridge California. Experienced
expert witness.
juries, and deformities including scoliosis. He possesses 29 years of orthopedic and 21 years of medlegal experience, including defense, plaintiff, insurance carriers, CA Attorney General’s office and Public Defender’s office. Expert testimony pertains to
med-mal, personal injury, and workers’ compensation cases. As a qualified medical evaluator, Dr. Purcell has extensive experience in performing QMEs,
AMEs, IMEs, WC evals. See display ad on page
69.
ORTHOPEDIC SURGEON
RICHARD C. ROSENBERG, MD
18370 Burbank Boulevard, Suite 614, Tarzana, CA
91356, (818) 996-6800, fax (818) 996-2929, e-mail:
rcrnsx@aol.com. Web site: www.drrosenberg.com.
Orthopedic surgery, sports medicine, and physical
therapy. Experienced in IME, QME, agreed medical
exams, med/legal reports, and expert witness testimony. Personal injury and workers’ compensation.
Additional office in Oxnard, California.
ROBERT A. BAIRD, MD
16300 Sand Canyon Avenue, Suite 511, Irvine, CA
92618, (949) 727-3636, fax (949) 727-1883, e-mail:
rb@rbairdmd.com. Contact Debbie Black. Former
U.C. Irvine and V.A. chief of orthopedic surgery with
special expertise in trauma and spinal conditions.
Available for case consultation and expert testimony.
Extensive CV including expert qualification in orthopedic biomechanics.
MARC J. FRIEDMAN, MD
6815 Noble Avenue, Van Nuys, CA 91405, (818)
901-6600, fax (818) 901-6685, e-mail: mfriedman
@scoi.com. Web site: www.scoi.com. Contact
Holly Robinson, Ext 2810. Orthopedic shoulder
and knee, consulting, and expert witness testimony.
IME, AME, QME and workers’ compensation evaluations. See display ad on page 70.
UCLA 3600 Wrightwood Drive, Studio City, CA
91604, (818) 985-3051, fax (818) 985-3049, e-mail:
spinal disorders affecting adults and children. Examples of spinal disorders treated by Dr. Purcell include disc diseases, stenosis, infections, tumors, in-
WILLIAM B. STETSON, MD
191 South Buena Vista Street, Suite 470, Burbank,
CA 91505, (818) 848-3030, fax (818) 848-2228,
e-mail: wstet96263@aol.com. Web site: www
.sportsmedicinedr.com. Contact W. Stetson, MD.
Dr. William B. Stetson is a board certified orthopedic
surgeon who is fellowship trained in sports medicine
and arthroscopy. He is an Associate Clinical Professor of orthopedic surgery at the USC School of Medicine. He specializes in the reconstructive treatment
of complex shoulder, knee, elbow and ankle injuries.
PATENTS
ARGOS ENGINEERING
44 Argos, Laguna Niguel, CA 92677, (949) 3638205, fax (949) 429-5972, e-mail: johndpratt@cox
.net. Web site: www.argos-engineering.com. Contact John D. Pratt, PhD, PE. Litigation consulting,
BOARD CERTIFIED ORTHOPEDIC SURGEON
MARC J. FRIEDMAN, M.D.
6815 Noble Avenue, Van Nuys, California 91405
Tel. 818.901.6600 ext. 2810 • Fax: 818.901.6685 • Email: mfriedman@scoi.com
Web Site: www.scoi.com
Education: Princeton University and Cornell Medical School
Certificate: Board Certified Orthopedic Surgeon
Memberships: Fellowship Sports Medicine
Fellow American Academy of Orthopedic Surgeons
Fellow in the Arthroscopy Association of North America
Fellow in the International Arthroscopy Association
Fellow in the International Knee Society
Fellow in the American Orthopedic Society of Sports Medicine
ACL Study Group
Certified QME, IME, AME
Specialties: Sports Medicine, Arthroscopic and Reconstructive Surgery of
the Knee and Shoulder, and Knee Replacement
Appointments: Assistant Clinical Professor, Division of Orthopedics,
UCLA School of Medicine, Chairman, Education Committee
Arthroscopy Association of North America 1997-1999
World Cup Soccer Team Physician, 1985
Physician Specialist XXIII Olympiad 1984
Orthopedic Consultant–New York Knicks and Jets 1978-1985
Publications: 60 Publications including handbook for Orthopedic Surgeons
on Prosthetic Ligament Reconstruction of the Knee
Presentations: Lectures extensively with over 375 presentations worldwide
92025, (760) 489-5400, fax (760) 489-5412, e-mail:
veronicav@fallbrook-eng.com. Web site: www
.fallbrook-eng.com. Contact Richard P. Meyst.
Fallbrook Engineering provides expert witness services in the areas of IP (patent infringement, invalidity, claim construction and trade dress), personal injury, product liability, and product failure analysis.
Our professionals have represented plaintiffs and defendants. We have done analysis, prepared declarations, been deposed and testified in court. We have
years of design and development experience making
us effective expert witnesses in all matters involving
medical devices. Visit our web site at www.fallbrookeng.com.
PEDIATRIC EXPERT WITNESS
MICHAEL WEINRAUB, MD
515 South Flower Street, Suite 3600, Los Angeles,
CA 90071, (213) 236-3662, fax (213) 236-3663,
e-mail: weinraub@sbcglobal.net. Contact Michael
Weinraub, MD. Consultation, litigation support, and
trial testimony for pediatric cases; malpractice, product liability, personal injury, child abuse, developmental disabilities, ADHD, lead exposure, and fetal alcohol spectrum disorder. See display ad on page 67.
PERSONAL INJURY
91604, (818) 985-3051, fax (818) 985-3049, e-mail:
WOLF & HUNT
include accounting, breach of contract, business interruption, business dissolution, construction defects,
delays, and cost overruns, fraud, insurance bad faith,
intellectual property including trademark, patent, and
copyright infringement, and trade secrets, malpractice, marital dissolution, personal injury, product liability, real estate, tax planning and preparation, IRS
audit defense, tracing, unfair advertising, unfair competition, valuation of businesses, and wrongful termination. See display ad on page 49.
PHOTOGRAPHY
A PHOTOGRAPHY EXPERT WITNESS
50 North Hill Avenue, Suite 302, Pasadena, CA
91106, (626) 808-0000, e-mail: expert@sedlik.com.
Web site: www.photographyexpertwitness.com. Contact Jeff Sedlik. The leading consultant and testifying
expert witness on all issues related to photography:
copyright, licensing, contracts, business practices, in-
dustry standards, stock photography, model releases,
rights of privacy/publicity, evaluation of lost or damaged photographs and film evaluation of photography
assets, technical mattes, forensic digital analysis,
forensic photography, and litigation support.
PLUMBING
CTG FORENSICS, INC.
(949) 790-0010, fax (949) 790-0020, e-mail: wbroz
ventilating, A/C) and electrical (power, lighting), energy systems, residential and nonresidential buildings, construction defects, construction claims,
mold, and green/LEED building.
POLICE PRACTICES
MARTINELLI & ASSOCIATES: JUSTICE &
FORENSIC CONSULTANTS, INC.
Criminalist, federal/state court certified, police practices expert, criminal and civil investigator. 42143
Avenida Alvarado, Suite B2, Temecula, CA 92590,
(951) 719-1450, fax (334) 460-6175, e-mail:
code3law@aol.com. Web site: www.jurispro.com
/Ronmartinelli. Contact Ron Martinelli, PhD,
BCFT, CLS. Law enforcement/police practices,
adult/juvenile corrections, use of force/excessive
force (all levels), forensic trauma, excited delirium, incustody death and officer-involved shootings, pepper spray, taser, criminal/civil investigations, arrests/detentions, search and seizure, training, liability
and negligence, gang violence, and self-defense law.
Twenty-eight years police field and investigation experience, former police Academy Director. Nationally
recognized and published authority with significant
trial experience. Federal/state certified. Degrees/licenses: PhD, BCFT, CLS, MPA/MJA. Advanced
POST, CDAA, PI # 10808.
Polygraph Expert. I have the credentials you would
want when you have a client polygraphed, a case reviewed, or a motion made regarding polygraph. My
unique background allows me to bring the highest
levels of service and expertise to any polygraph situation. Current member of the board of directors and
chairman of the Ethics Committee, California Association of Polygraph Examiners (CAPE). Hundreds of
appearances on national TV, including Dr. Phil,
Oprah, Greta, Nancy Grace, O’Reilly Factor and
Hannity & Colmes. Degrees/licenses: BS Psychology; Certified APA, AAPP, CAPE, AAFE. See display ad on page 6.
PROBATE LAW
HONORABLE ANITA RAE SHAPIRO
Superior Court Commissioner (Retired), P.O. Box
1508, Brea, CA 92822-1508, e-mail: privatejudge
@adr-shapiro.com. Web site: http://adr-shapiro.com.
Retired Los Angeles Superior Court commissioner
(15 years) available to serve as a probate expert witness in cases involving wills and trust issues.
Presided in Long Beach Probate Department five
years. See display ad on page 4.
– EXPERT WITNESS –
CONSTRUCTION
41 YEARS
CONSTRUCTION EXPERIENCE
SPECIALTIES:
Lawsuit Preparation/Residential
Construction, Single and Multi-family,
Hillside Construction, Foundations,
Vibration Trespass, Concrete, Floors, Tile,
Stone, Retaining Walls, Waterproofing,
Water Damages, Roofing, Sheet Metal,
Carpentry/Rough Framing, Stairs,
Materials/Costs, Building Codes,
Construction Contracts.
CIVIL EXPERIENCE:
Construction defect cases for insurance
companies and attorneys since 1992
PROCESS SERVER
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 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.
COOK
CONSTRUCTION COMPANY
STEPHEN M. COOK
California Contractors License B431852
Nevada Contractors License B0070588
Graduate study in Construction
L.A. Business College, 1972
Tel:
818-438-4535 Fax: 818-595-0028
Email:
scook16121@aol.com
7131 Owensmouth Avenue, Canoga Park, CA 91303
PRODUCT LIABILITY
POLICE PROCEDURES/PRACTICES
EXPERT
TT WILLIAMS JR, INVESTIGATIONS INC.
CA 90071, (213) 489-6831, fax (213) 426-2151,
e-mail: ttwjrpi@aol.com. Web site: www.ttwilliamspi
.com. Contact Timothy T Williams Jr., CEO. Police procedure expert, use of force and domestic violence expert as it relates to police procedure issues in
both state and federal courts. Retired LAPD Senior
Detective Supervisor from the elite Robbery-Homicide
Division. Twenty-nine plus years of active law enforcement experience, with over twenty-six years conducting and supervising investigations including homicide,
robbery, domestic violence, child abuse, assault, sexual assault, burglary, auto theft, juvenile, and narcotics
investigations. Degree/Licenses: P.O.S.T. Supervisory
Leadership Institute; West Point Leadership Program;
Basic, Intermediate, Advanced and Supervisor
P.O.S.T. Certificates; PI 23399; PPO 14771.
POLICE/SECURITY
DANIEL R. SULLIVAN, DEPUTY CHIEF,
LAPD, RET.
76766 Daffodil Drive, Palm Desert, CA 92211, (818)
590-2486, e-mail: dansullivan@dslextreme.com.
Web site: www.investigativeservices.com. Contact
Dan Sullivan. Expert witness—use of force/police
practices, event/facility security—consultant to cities
of Los Angeles, Beverly Hills, U.S. Department of
Justice. Qualified as expert over 150 times in superior/federal courts.
motor vehicle types, bicycles, pedestrians), collisions, rollovers, skid marks, visibility, signal phasing,
time-motion, low-speed impact. Industrial and construction accidents: OSHA issues. Automotive, industrial, consumer products: brakes, seat belts, forklifts, machinery, tools, protective equipment, lawn
mowers, heaters, chairs, fixtures, ladders, scaffolds,
fasteners. Premises liability: code analysis, stairways,
ramps, doors, gates, windows, guardrails, pools,
and lighting. Slip-and-fall. Trip-and-fall. Biomechanics. Safety. Human factors. See display ad on
page 52.
CALIFORNIA TECHNOLOGY ASSOCIATES
17410 Mayerling St., Granada Hills, CA 91344, (800)
358-9909. Web site: www.technology-assoc.com.
Contact Dr. Ojalvo, chairman. Over 1700 cases.
Our staff of PhDs and professors has many scientific
publications and decades of testing and testifying
experience. We investigate accidents involving both
common and specialized equipment including: ladders and scaffolds, power tools, household appliances, playground equipment, helmets, shopping
carts, golf cars, etc. Extensive product safety and
standards reference library to determine accident
statistics, applicable product standards, marketplace
comparison, and whether the product design contained defects. Free phone consultation or visit our
web site for more information.
POLYGRAPH
JACK TRIMARCO & ASSOCIATES POLYGRAPH
INC.
9454 Wilshire Boulevard, 6th Floor, Beverly Hills, CA
90212, (310) 247-2637, e-mail: jtrimarco@aol.com.
Web site: www.jacktrimarco.com. Contact Jack
Trimarco. Former manager of the Federal Bureau of
Investigation’s polygraph program in Los Angeles.
Former Inspector General Polygraph Program—Department of Energy. Nationally known and respected
PSYCHIATRY/PSYCHOLOGY
JUNGYEOL OH, PHD, NP
2550 Honolulu Avenue, Suite 107, Montrose, CA
91020, (818) 572-3266, fax (818) 957-6860, e-mail:
passionoh@gmail.com. Web site: www.jurispro.com
/Jungyeoloh. Psychodiagnositic assessment for children and adults. Forensic evaluation, expert witness,
psychotherapy, and psychopharmacological services.
NINA T. RODD, PHD, QME, DABPS
Los Angeles office: 609 Deep Valley Drive, Suite 200,
Rolling Hills Estates, CA 90274, Newport Beach office: 620 Newport Center Drive, Suite 1100, Newport
Beach, CA 92660, (310) 378-7172, fax (310) 5419308, e-mail: drnrodd@cox.net. Web site: www
.psych-expert.com. Contact Nina T. Rodd, PhD.
Comprehensive psychological/psychodiagnostic
testing and evaluation, medical and records review,
expert witness testimony, and consulting.
QUESTIONED DOCUMENTS
BLANCO & ASSOCIATES, INC.— FORENSIC
DOCUMENT EXAMINATIONS
655 North Central Avenue, 17th Floor, Glendale, CA
91203, (818) 545-1155, fax (818) 545-1199, e-mail:
info@jimblanco.com. Web site: www.jimblanco.com.
Contact Jim Blanco. Former full time federal and
state government forensic document examiner
(handwriting expert) with the US Treasury Federal
Bureau of ATF and California State Department of
Justice. Court-qualified and certified ABFDE (Nov
1992—May 2008). Signature, handwriting, and hand
printing examinations, writer identification, writer
elimination, forgery and counterfeits,computer printed
or typewritten documents, medical chart evaluation
(in medical malpractice cases), probate, wills, trusts,
real estate documents, deeds, and contracts. All
facets of civil and criminal litigation nationally.
RILE & HICKS, FORENSIC DOCUMENT
EXAMINERS
Howard C. Rile, Jr. and A. Frank Hicks
100 Oceangate, Suite 670, Long Beach, CA 908024312, (562) 901-3376, fax (562) 901-3378. Web site:
www.asqde.org/rile or /hicks.htm. Diplomates,
American Board of Forensic Document Examiners.
Members, ASQDE, SWAFDE, SAFDE; Fellow AAFS.
Combined 60+ years’ experience in examination and
evaluation of disputed documents, including handwriting and signatures (wills, deeds, checks, etc.)
medical records, business records, typewriting, printing, and/or other business machine processes, alterations, indentations, obliterations, and ink and paper
questions. Fully equipped darkroom and laboratory,
including VSC-4C and ESDA. Testified more than
500 times.
DOCUMENT EXAMINER
experience includes document examiner for the
San Diego Police Department crime lab, Arizona
State crime lab and San Diego County District Attorney’s office. Currently in private, criminal, and
civil practice.
REAL ESTATE
economic analysis and valuations/damages assess-
ment, insurance claims, coverages and bad faith,
ROGER BERNHARDT
Professor, Golden Gate University School of Law,
536 Mission Street, San Francisco CA 94105
(415) 666 3343, fax (415) 974 1549, e-mail:
RBernhardt@GGU.EDU. Web site: www
.Rogerbernhardt.com. Specialties: Real estate and
mortgage law and transactions; standard of care.
Publications (partial list): Editor of California Real
Property Law Reporter (CEB). Bernhardt’s California
Real Estate Laws (Lexis), California Mortgage & Deed
of Trust Practice (CEB); Black Letter Law of Real
Property and Real Property in a Nutshell (West).
Casebooks on Property and Real Estate Finance
(Carolina Press). Professional Associations: American
College of Real Estate Lawyers, American College of
Mortgage Attorneys, American Law Institute, Chair of
Legal Education Committees of ABA & California Bar
Real Property Sections. Licenses: Attorney (California
& New York), Real Estate Broker (California). Education: AB, AB, AM, JD, University of Chicago, Phi Beta
Kappa, Coif, Law Review, Moot Court Winner.
COLDWELL BANKER
11611 San Vicente Boulevard, Los Angeles, CA
90049, (310) 442-1398, fax (310) 207-2354, e-mail:
mkessler@verizon.net. Web site: www.mickeykessler
.com. Contact Mickey Kessler. In the real estate
business for over 15 years. Associate manager and
top producer of the Coldwell Banker Brentwood
court office, specializing in all real estate matters related to the family law profession. Services include
but are not limited to: property valuation, title issues,
cost effectiveness of home improvements and repairs. Also able to provide expertise regarding market activity, statistics and trends. Reference available
upon request. See display ad on page 73.
STEPHEN B. FAINSBERT, ESQ., FAINSBERT
MASE & SNYDER, LLP
Angeles, CA 90064, (310) 473-6400, fax (310) 4738702, e-mail: sfainsbert@fms-law.com. Contact
Stephen B. Fainsbert. Expert testimony in real
property exchanges (coauthor CEB publication Real
Property Exchanges, 2nd ed.), real estate transactions, standard of care and practice for real estate
brokers, escrow, and real estate attorneys, disclosures in purchase and sale agreements, real estate
financing, and secured real property transactions.
HOWARD N. GOULD
FINESTONE & RICHTER
CA 90067, (310) 575-0800, ext. 249 fax (310) 5750170, e-mail: hgould@frlawcorp.com. Web site:
www.frlawcorp.com. Attorney malpractice in residential real estate, residential brokerage issues,
agent/broker employment issues, broker and finder
issues, corporate, LLC, partnership and shareholder
disputes.
LAWRENCE H. JACOBSON, ESQ.
9401 Wilshire Boulevard, Suite 1250, Beverly
Hills, CA 90212, (310) 271-0747, fax (310) 2710757, e-mail: law.jac@lhjpc.com. Web site: www
.lawrencejacobson.com. Expert witness: lawyer malpractice in business and real estate transactions,
standard of care for real estate brokers and mortgage brokers, and real estate document custom and
usage. Practicing real estate and business law in
California since 1968. See display ad on page 50.
JACK KARP/NATIONAL PROPERTIES GROUP
31115 Ganado Drive, Rancho Palos Verdes, CA
90275, (310) 377-6349, fax (310) 868-2880, e-mail:
jlkarp@cox.net. Industrial and commercial broker’s
care and duties, professional obligations to clients.
Mediation and arbitration between brokers and
clients regarding disputes, ethical questions, and fee
division. AAA neutral. Real estate leases and purchase contracts and their interpretations. Author AIR
Net and Gross Leases and AIR Standard Offer and
Agreement and Escrow Instruction for Purchase of
Real Estate. See display ad on page 42.
VICTOR S. LA CAGNINA
3262 East Thousand Oaks Boulevard, Suite 204,
Westlake Village, CA 91362, (805) 777-7899, fax
(805) 777-7199, e-mail: vlacagnina@earthlink.net.
Shopping center management, leasing, development, redevelopment; Operated more than
8,000,000 square feet of centers; Developed and
leased more than 20,000,000 square feet. All aspects of retail centers. Shopping center expert witness. Degrees/licenses: BBA; LLB; Real Estate Broker, Certified Shopping Center Manager; CSM/CRE.
MAURICE ROBINSON & ASSOCIATES LLC
90245, (310) 640-9656, fax (310) 640-9276, e-mail:
maurice@mauricerobinson.com. Web site: www
.mauricerobinson.com. Contact R. Maurice
Robinson, president. Hotel and real estate industry
business issues, including market, economic and financial feasibility, valuation, and disputes between
owner-operator, borrower-lender, and franchisorfranchisee. Fluent in management contracts, license
agreements, ground and building leases, partnership
and JV agreement, concession contracts, development agreements, and loan docs. Can estimate
damages and appraise property values under multiple scenarios. Expert witness testimony, litigation
strategy, consultation and support, damage calculations, lost profits analysis, real estate appraisals, deal
structuring, workouts, new development, strategic
planning, market demand assessment, acquisition
due diligence, and economic, financial, and investment analysis.
TEMMY WALKER, INC.
5026 Veloz Avenue, Tarzana, CA 91356, (818) 7603355, e-mail: temmyw@aol.com. Contact Temmy
Walker. Specializes in expert witness testimony and
litigation consultant in matters regarding residential
real estate, with emphasis on the customs and practice, standards of care, disclosure requirements,
agency relationships, and broker supervision. Complete assistance. Extensive transaction and court experience. Director California Association of Realtors,
master faculty instructor for continuing education
C.A.R. Excellent credentials and references. See
CA 90245, (310) 322-7744, fax (310) 322-7755.
ad on page 53.
REAL ESTATE APPRAISAL
CURTIS-ROSENTHAL, INC.
5959 West Century Boulevard, Suite 1010, Los Angeles, CA 90045, (310) 215-0482, fax (310) 2153089, e-mail: drosenthal@curtisrosenthal.com. Web
site: www.curtisrosenthal.com. Contact David
Rosenthal, MAI. Appraisal of commercial and residential real estate for estate planning, eminent domain, bankruptcy, divorce, and general litigation. Accepted in local, state, and federal courts.
RECEIVER
SALTZBURG, RAY & BERGMAN, LLP
CA 90025, (310) 481-6700, fax (310) 481-6707, email: DLR@srblaw.com. Web site: www.srblaw.com.
Contact David L. Ray, Esq. Specializes in handling
complex receivership matters, such as partnership
and corporate dissolutions, including law firm dissolutions, and government enforcement receivership
actions, including actions brought by the California
Department of Corporations, Department of Real Estate, Commodities Future Trading Commission, and
Federal Trade Commission. Nationally recognized in
both the lender and litigation communities as qualified to assist in complicated and commercially sophisticated liquidations, reorganizations, and ongoing
business operations. See display ad on page 53.
RESTAURANT/HOTEL
LEON GOTTLIEB
SA-INT’L RESTAURANT, HOTEL & FRA
CHISE CONSULTANT
4601 Sendero Place, Tarzana, CA 91356, (818) 7571131, fax (818) 757-1816, e-mail: lgottlieb@aol.com.
Web site: http://flashjordan.com/leongottlieb.htm.
Over 45 years hands-on experience; all types of
restaurants, fast foods, hotels, operations, training,
manuals, franchisor-franchisee disputes, industry
standards/practices, safety, and security. Former
partner, V.P. IHOP, president, Copper Penny Chain,
author, director and expert witness.
RETALIATION
HAIGHT CONSULTING
(310) 454-2988, fax (310) 454-4516. Contact
testimony.
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
ROOFING AND WATERPROOFING
SHEPHERD CONSULTING SERVICES
P.O. Box 10010, Torrance, CA 90505, (310)
378-0791, fax (888) 870-1663, e-mail: jds
@shepherdconsulting.com. Contact John
Shepherd, RRC, RRO. Roofing, waterproofing,
sheet metal and building envelope consulting services for construction defect litigation, personal injury
and water damage loss (standard of care and building code issues), and property loss claims (wind, fire,
earthquake and hail). Support services includes: visual inspections, invasive testing, leak investigation,
water testing, report development, documentation,
document review, research, mediation and trial expert witness testimony, and cost estimating.
SECURITIES
90071-2005, (213) 553-2500, fax (213) 553-2699,
ROBERT C. ROSEN
Wells Fargo Center, 333 South Grand Avenue, Suite
1925, Los Angeles, CA 90071, (213) 362-1000, fax
(213) 362-1001, e-mail: robertrosen@rosen-law
.com. Web site: www.rosen-law.com. Specializing in
securities law, federal securities law enforcement, seLos Angeles Lawyer April 2009 73
curities arbitration, and international securities, insider trading, NYSE, AMEX, NASD disciplinary proceedings, broker-dealer, investment company and
investment adviser matters, liability under federal and
state securities laws, public and private offerings, Internet securities, and law firm liability. AV rated. Former chair, LACBA Business and Corporations Law
Section; LLM, Harvard Law School. More than 36
years practicing securities law, 12 years with the
U.S. Securities and Exchange Commission, Washington, DC. Published author/editor of securities regulations, including multivolume treatises. See display ad on page 55.
SECURITY
CONFIDENTIAL BUSINESS CONSULTANTS, LLC
2275 Huntington Drive, Suite 309, San Marino, CA
91108, (626) 419-0082, fax (626) 799-7960, e-mail:
jfbroder@earthlink.net. Contact James F. Broder,
CFE, CPP, FACFE. Author of “Risk Analysis and
Security Surveys,” premises liability, adequate vs. inadequate security procedures and practices, expert
case analysis and testimony, corporate procedures,
training and operations, kidnap, ransom, extortion,
and workplace violence issues. Thirty-five years of law
enforcement and security experience, domestic and
international. Listed in the Encyclopedia of Security
Management as “One of the most highly recognized
security authorities in the US.” CA PI Lic. 0021073.
SEXUAL HARASSMENT/DISCRIMINATION
HAIGHT CONSULTING
(310) 454-2988, fax (310) 454-4516. Contact
testimony.
NINA T. RODD, PHD, QME, DABPS
Los Angeles office: 609 Deep Valley Drive, Suite 200,
Rolling Hills Estates, CA 90274, Newport Beach office: 620 Newport Center Drive, Suite 1100, Newport
Beach, CA 92660, (310) 378-7172, fax (310) 5419308, e-mail: drnrodd@cox.net. Web site: www
.psych-expert.com. Contact Nina T. Rodd, PhD.
Comprehensive psychological/psychodiagnostic
testing and evaluation, medical and records review,
expert witness testimony, and consulting.
SLIP, TRIP AND FALL
motor vehicle types, bicycles, pedestrians), collisions,
rollovers, skid marks, visibility, signal phasing, timemotion, low-speed impact. Industrial and construction accidents: OSHA issues. Automotive, industrial,
consumer products: brakes, seat belts, forklifts, machinery, tools, protective equipment, lawn mowers,
heaters, chairs, fixtures, ladders, scaffolds, fasteners.
Premises liability: code analysis, stairways, ramps,
doors, gates, windows, guardrails, pools, and lighting. Slip-and-fall. Trip-and-fall. Biomechanics. Safety.
Human factors. See display ad on page 52.
SWIMMING POOL
POOL RESOLUTION CONSULTING, INC
417-B West Foothill Boulevard, #443, Glendora
CA 91741. (626) 252-0725. E-mail: dgmorrill
@poolresolution.com. Website: www.PoolResolution
.com. David G. Morrill, president of Pool Resolution Consulting Inc, has over 40 years of experience
in the swimming pool industry. Before retiring as
president of one of the nation’s leading pool and spa
construction companies he was involved in over
50,000 pool construction projects including many
years of “hands-on” experience in design, construction and management. Mr. Morrill has excellent writing and verbal skills and is able to provide a clear understanding of the facts in depositions and during
testimony. PRC can provide in-depth analysis and
produce accurate and useful reports and presentations that speak to the facts. We can help you win
your case–call or e-mail for more information. See
TAXATION
KAJAN MATHER AND BARISH
9777 Wilshire Boulevard. Suite 805, Beverly Hills, CA
90212, (310) 278-6080, fax (310) 278-4805, e-mail:
ehk@taxdisputes.com. Web site: www.taxdisputes
.com. Contact Elliott H. Kajan. The firm’s practice
is devoted to representation of taxpayers before the
Internal Revenue Service, Franchise Tax Board, State
Board of Equalization, and California Employment
Development Department, involving tax audits, administrative appeals proceedings, tax collection matters, complex tax litigation, and criminal tax investigations and trials. The firm also represents and advises accountants and attorneys regarding tax penalties and professional responsibility matters.
TOXICOLOGY
PRINCETON-SOMERSET GROUP, INC.
4 Carroll Drive, Hillsborough, NJ 08844, (800) 5978836, fax (908) 369-6881. Contact Dr. Dennis
Stainken. Expert witness, toxicology, health issues,
chemical exposure, mold issues, worker exposure,
contamination issues, causation assessment, property damage/contamination and remediation,
sewage, gasoline and oil issues and age determination, petroleum releases, chemicals/products, risk
assessment, indoor air quality/health effects, toxic
tort evaluation, chemistry, site assessment, regulatory issues, environmental toxicology, environmental
issues, and wetland/ecological. Services nationwide.
Thirty plus years of industrial and government experience in pollution under NPDES, CERCLA, RCRA,
SDWA and CWA. Former federal and state regulator,
professor, consultant, industrial research. Seventyfive plus publications.
TRAFFIC ENGINEERING
ACCIDENT RECONSTRUCTION SPECIALISTS
(Field Test Engineering Inc,) 4510 Pacific Coast Highway, Suite 200, Long Beach, CA 90804, (800) 6757667, fax (562) 494-7667. Also: 11440 Bernardo
Court, Suite 300, San Diego, CA 92127, 8275 South
Eastern Avenue, Suite 200, Las Vegas, NV 89123;
2900 Adams Street, Riverside, CA 92604, 7362
Remcon Circle, El Paso, TX 79912. Web site: www
.FieldAndTestEngineering.com. Contact Robert F.
Douglas, PE—engineering manager. Registered
professional engineer in California and Arizona,
member—NCUTCD, I.T.E., ASTM, Transp. Research
Board, ASCE, SAE, ATSSA, IEEE. Profile: Accident
reconstruction, human factors, failure analysis, traffic
and transportation engineering: auto/truck/train/ped/
bike/cycle accidents. See display ad on page 47.
WILLIAM KUNZMAN, PE
(714) 973-8383, fax (714) 973-8821, e-mail: mail
case against Caltrans. Before becoming expert witnesses, employed by Los Angeles County Road Department, Riverside County Road Department, City
WASTEWATER
JOHN SHAW CONSULTING, LLC
P.O. Box 4259, Truckee, CA 96160, (530) 5501576, fax (530) 579-3388, e-mail: john@shaweng
.com. Web site: www.shaweng.com. Contact John
Shaw, PE. Water/wastewater/sewer industry—
unique combination of operations and engineering
background. Sanitary engineering including water
(potable) and wastewater (industrial and domestic)
treatment, conveyance, hydraulics, storage, reuse,
master planning, operations, maintenance, and expert witness and forensic (mode of failure and standard of care analysis; engineering analysis; product
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by the book
REVIEWED BY R. J. COMER
Norton Parker Chipman
What if you were in law school when
the U.S. Supreme Court decided Dred
Scott? What if you fought in the Civil
War, met President Abraham Lincoln,
served in the War Department with
Secretary of War Edwin M. Stanton,
and stood on the stage with Abraham
Lincoln during his Gettysburg Address?
What if you were asked to prosecute
Confederate Army Captain Henry Wirz
for war crimes at the notorious
Andersonville prisoner of war camp?
What if you were one of the founders
of Memorial Day, raised the funds to
complete the Washington Monument, and were elected the repNorton Parker Chipman
resentative of Washington, D.C.,
By Jeffery A. Hogge
to the U.S. Congress? And if that
McFarland, 2008
were not enough accomplishment
$39.95, 249 pages
for one life, what if you were
among the first to figure out how to transport redwood lumber to
growing California cities and served as the first presiding justice of
the California Court of Appeal, Third Appellate District? These are
the accomplishments of Norton Parker Chipman.
Modern biographies of historical figures tend to be of two kinds.
They either attempt to further illuminate the inner workings of men
or women whose public lives and accomplishments are already well
documented in previous biographies, or they attempt to save an
important and inspiring contributor from becoming an unrecognized name below an unrecognizable portrait hung in a less-traveled
hallway of some government building or library. These latter biographies serve a more important purpose than the former. Without
them, we would only know the icons of history. Without them, we
would believe the fallacy that history is made by the celebrated few,
when in fact it is made by the easily forgotten many who spend
their lives in service to the very ideals embodied by the often overexposed celebrities of history. For every Martin Luther King, there
were people like Dr. Benjamin Elijah Mays who stood by him. And
for Abraham Lincoln, there were men like Chipman.
Jeffery A. Hogge’s biography of Chipman resurrects him from
obscurity. In Norton Parker Chipman: A Biography of the Andersonville War Crimes Prosecutor, Hogge chronicles Chipman’s adventures
in direct service to Abraham Lincoln as well as to Lincoln’s loftiest
ideals of preserving the Union, protecting human rights, and promoting
justice. Hogge’s account rightly focuses on Chipman’s public life, rarely
illuminating the private man. After all, to rescue Chipman from
obscurity, Hogge must recount in detail Chipman’s public accomplishments in a life of service that began in 1860 and ended in 1921.
From this biography, we learn that Chipman, like his father and
many of the Founders of this country, was a Freemason. He was born
in Ohio but moved to Iowa with his family and attended Washington
College. He earned his law degree from Cincinnati Law School in
1859. The Dred Scott case sealed Chipman’s already growing sympathy with the abolitionist movement and his support for Abraham
Lincoln for president. He left the practice of law to join the Union
Army and distinguished himself leading the charge at the Battle of Fort
Donelson, where he was shot in the leg. Thereafter, he served in noncombat command positions as an administrator and military lawyer.
Over half of Hogge’s biography of Chipman is dedicated to
Chipman’s life through the Civil War and his prosecution of Wirz for
war crimes committed at the infamous Confederate prisoner of war
compound in Andersonville, Georgia. Chipman met Lincoln in 1863
and joined the War Department, working directly for Secretary
Stanton, and Chipman stood with Lincoln during the Gettysburg
Address. Immediately following the war, he prosecuted and secured
the conviction of Wirz for war crimes. Hogge’s contribution to these
facts is his facility for setting them in context. Often Hogge’s book
reads more like a history than a biography, but it is Hogge’s detailed
history lessons that illuminate the human drama and the significance of Chipman’s achievements. For example, Hogge reveals the
depths of the controversies surrounding the prosecution of Wirz, and
the Confederate claims that the Union’s decision to terminate prisoner-of-war exchanges caused the overcrowding and deplorable conditions at Andersonville. Also, the policy of the postwar federal government was reconstruction and reconciliation. So it was no easy task
to prosecute Wirz for war crimes, and Wirz’s conviction was anything
but a foregone conclusion.
Despite Hogge’s gifts for bringing Chipman and his times vibrantly
to life, Hogge’s biography lacks that critical evaluation of his subject
that is so important to the credibility of a biographer. Arthur James
Balfour once observed that “biography should be written by an
acute enemy.” Although Hogge’s credibility does not depend on
being Chipman’s enemy, it does require that he be more than an acolyte
at Chipman’s memorial. Hogge recounts that Chipman considered the
peace movement during the Civil War “intolerable” and that Chipman
criticized advocates for peace as “prolonging the war and jeopardizing
ultimate Union victory.” A biographer need not be a critic of our last
president or his war policies to at least recognize the controversy of
Chipman’s opinion of Americans opposed to war. Yet Hogge passes
by this without question or critique.
Nevertheless, Norton Parker Chipman is a valuable work. It resurrects Chipman from obscurity and, in Hogge’s exacting historic
detail, tells the story of an exceptional man whose public service began
during America’s fight to preserve the Union and continued through
America’s transition to a dominant world power. Hogge allows us to
witness extraordinary events in the life of an extraordinary man. ■
R. J. Comer is a graduate of the Coro Fellowship in Public Affairs Leadership
and is a partner at Armbruster & Goldsmith, LLP, where he practices land use
law and municipal advocacy.
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PERSONAL INJURY CASES ACCEPTED ON LIEN BASIS
Accident Reconstruction Specialists, p. 47
Tel. 562-743-7230 www.FieldAndTestEngineering.com
Marc J. Friedman, M.D., p. 70
Tel. 818-901-6600 e-mail: lonna@scoi.com
Pool Resolution Consulting, Inc., p. 67
Tel. 626-252-0725 www.PoolResolution.com
ACT of Communication, p. 35
Tel. 310-391-9661 www.actofcommunication.com
FULCRUM Financial Inquiry LLP, p. 1
Tel. 213-787-4100 www.fulcruminquiry.com
Pro/Consul, Inc., p. 45
Tel. 800-392-1119 www.expertinfo.com
Ahern Insurance Brokerage, p. 2
Tel. 800-282-9786 x101, www.info@aherninsurance.com
Steven L. Gleitman, Esq., p. 4
Tel. 310-553-5080
Graham A. Purcell, M.D., Inc., p. 69
Tel. 818-985-3051 e-mail: expert@gpurcellmd.com
Air, Weather & Sea Conditions, Inc., p. 63
Tel. 818-645-8632 www.weatherman.org
Guaranteed Subpoena, Inside Back Cover
Tel. 800-PROCESS (776-2377) e-mail: info@served.com
RGL-Forensic Accountants & Consultants, p. 59
Tel. 213-996-0900 www.rgl.com
AMFS, Inc. (American Medical Forensic Specialists, Inc.), p. 69
Tel. 800-275-8903 www.amfs.com
Gursey, Schneider & Company, p. 51
Tel. 310-552-0960 www.gursey.com
Risk Control Strategies, p. 19
Tel. 818-991-7475 www.riskcontrolstrategies.com
The American Institute of Mediation, p. 18
Tel. 213-383-0454 www.americaninstituteofmediation.com
Hargis & Associates, Inc., p. 50
Tel. 800-554-2744 www.hargis.com
Rosen & Associates, PC, p. 55
Tel. 213-362-1000 www.rosen-law.com
The Andela Consulting Group, Inc., p. 69
Tel. 818-380-3102
Higgins, Marcus & Lovett, Inc., p. 61
Tel. 213-617-7775 www.hmlinc.com
Roughan & Associates at LINC, p. 50
Tel. 626-303-6333 x16 e-mail: janr@linc.biz
A R Tech Forensic Experts, Inc., p. 52
Tel. 818-344-2700 e-mail: artech@earthlink.net
Jack Trimarco & Associates Polygraph, Inc., p. 6
Tel. 310-247-2637 www.jacktrimarco.com
Jonathan S. Rutchik, M.D. p. 65
Tel. 415-381-3133 www.neoma.com
Ballenger, Cleveland & Issa LLC, p. 57
Tel. 310-873-1717
Lawrence H. Jacobson, Esq., p. 50
Tel. 310-271-0747 www.lawrencejacobson.com
Saltzburg, Ray & Bergman, LLP, p. 53
Tel. 310-481-6700 www.srblaw.com
Bankruptcy Attorney, p. 23
Tel. 323-954-9144, 805-557-7001 e-mail:
BankruptcyFocus@aol.com
Kantor & Kantor, LLP, p. 8
Tel. 877-783-8686 www.kantorlaw.net
Bruce Schwartz, p. 14
Tel. 310-277-2323 e-mail: bsesq@swwlaw.net
KARS Advanced Materials, Inc., p. 58
Tel. 714- 892-8987 www.karslab.com
Steven R. Sauer APC, p. 8
Tel. 323-933-6833 e-mail: arbitr@aol.com
Law Offices of Rock O. Kendall, p. 6
Tel. 949-365-5844 www.dmv-law.com
Anita Rae Shapiro, p. 4
Tel. 714-529-0415 www.adr-shapiro.com
Krycler, Ervin, Taubman & Walheim, p. 46
Tel. 818-995-1040 www.ketw.com
Sean Shideh, P.E., p. 63
Tel. 818-276-5995 e-mail: seanshideh@gmail.com
Lawyers’ Mutual Insurance Co., p. 7
Tel. 800-252-2045 www.lawyersmutual.com
Squar & Associates, p. 53
Tel. 714-825-0300 e-mail: rsquar@squarassociates.com
Legal Tech, p. 9
Tel. 800-537-2128 www.legaltechshow.com
TASA, Technical Advisory Service for Attorneys, p. 65
Tel. 800-523-2319 www.tasanet.com
Lexis Publishing, Inside Front Cover, p. 13
www.lexis.com
Temmy Walker, Inc., p. 59
Tel. 818-760-3355 e-mail: temmyw@aol.com
MCLE4LAWYERS.COM, p. 4
Tel. 310-552-5382 www.MCLEforlawyers.com
Union Bank of California, p. 5
Tel. 310-550-6400 (B.H.), 213-236-7736 (L.A.)www.uboc.com
M.A. Calabrese Associates, p. 46
Tel. 626-825-5444 www.macalabrese.com
URS, p. 73
Tel. 213-996-2555 www.urscorp.com
Clinton E. Miller, JD, p. 61
Tel. 408-279-1034 www.millerjd.qpg.com
Waronzof Associates, P. 53
Tel. 310-954-8060 www.waronzof.com
DataChasers.com, p. 57
Tel. 951-780-7892 www.datachasers.com
Mr. Truck, p. 58
Tel. 925-625-4994 or 800-337-4994 e-mail:
william@mrtruckar.com
Michael R. Weinraub, M.D., p. 67
Tel. 213-742-0421 e-mail: weinraub@sbcglobal.net
DepoSums Deposition Summaries, p. 58
Tel. 800-789-DEPO www.deposums.biz
National Properties Group, p. 42
Tel. 310-516-0022
Dixon Q. Dern, P.C., p. 11
Tel. 310-557-2244 e-mail: ddern@dixlaw.com
Noriega Clinics, p. 77
Tel. 323-728-8268
Econ One Research, Inc., p. 73
Tel. 213-624-9600 e-mail: lskylar@econone.com
Jungyeol Oh, Ph.D., NP, p. 63
Tel. 818-572-3266 www.jurispro.com/Jungyeoloh
E. L. Evans & Associates, p. 55
Tel. 310-559-4005
Pacific Construction Consultants, Inc. (PCCI), p. 52
Tel. 916-638-4848 www.pcci.biz
Charles J. Fleishman, p. 35
Tel. 818-350-6285 www.erisarights.com
Pacific Health & Safety Consulting, Inc., p. 71
Tel. 949-253-4065 www.phsc-web.com
ForensisGroup Inc., p. 61
Tel. 626-795-5000 www.forensisgroup.com
Charles Pereyra-Suarez, p. 55
Tel. 213-623-5923 www.cpslawfirm.com
Lee Jay Berman, Mediator p. 14
Tel. 213-383-0438 e-mail: leejay@mediationtools.com
California Western School of Law, p. 33
Tel. 800-255-4252 www.californiawestern.edu
Case in Point Consulting, Inc., p. 6
Tel. 714-292-7498 e-mail: info@caseinpoint.net
Cheong, Denove, Rowell & Bennett, p. 11
Tel. 310-277-4857 www.cdrb-law.com
Cohen Miskei & Mowrey, p. 67
Tel. 818-986-5070 e-mail: cmmcpas@aol.com
Coldwell Banker, p. 73
Tel. 310-442-1398 www.mickeykessler.com
Commerce Escrow Company, p. 34
Tel. 213-484-0855 www.comescrow.com
Cook Construction, p. 71
Tel. 818-438-4535 e-mail: scook16121@aol.com
Lawrence W. Crispo, p. 23
Tel. 213-926-6665 e-mail: judgecrispo@earthlink.net
Thomson West, Back Cover
Tel. 800-762-5272 www.thompsonwestgroup.com
White, Zuckerman, Warsavsky, Luna, Wolf & Hunt, p. 49
Tel. 818-981-4226 www.wzwlw.com
Witkin & Eisinger, LLC, p. 11
Tel. 310-670-1500
Wolfsdorf Immigration Law Group, p. 42
Tel 310-570-4088 www.wolfsdorf.com
Zivetz, Schwartz & Saltsman, p. 65
Tel. 310-826-1040 www.zsscpa.com
Entertainment Year in Review
ON WEDNESDAY, APRIL 29, the Intellectual Property and Entertainment Law (IPEL) Section
The 110 Days
Before Trial
will host a program covering significant developments in entertainment law over the past
ON TUESDAY, APRIL 7, the Litigation
year. Speakers Jay F. Dougherty and Stan Soocher will present a practical look at recent key
Section will present a program on
court rulings affecting entertainment industry transactions and litigation. Topics to be
preparing a civil case for trial in the
covered this year include: digital music sales and artist royalties; the scope of content
licenses in new media; video game production; right-of-publicity statutory changes;
Los Angeles Superior Court. Speakers
challenges to unlicensed uses of trademarks; jurisdiction in entertainment industry Internet
Daniel M. Crowley, Judge Mary
disputes; copyright terminations; fair use, including its interplay with DMCA takedown
Thornton House, and James R. Robie
notices and new “best practices” proposals; remote DVRs; copyright preemption of state
will review the many tasks that must
claims, including the right of publicity and misappropriation; the relation between a film
and its underlying story; personal jurisdiction and DMCA takedown notices; and the
be accomplished to get a case ready
“making available” right. The program will take place at Lawry’s Restaurant, 100 North La
for successful trial, including
Cienega Boulevard in Beverly Hills. Parking is free. On-site registration will begin at 11:45
calendaring deadlines, getting
A.M., with the program continuing from 12:30 to 1:30 P.M. The registration code number is
witnesses lined up, expert witness
010383. The prices below include the meal.
$31—CLE+PLUS members
designations and depositions,
$60—IPEL Section members
organizing exhibits, and preparing for
$75—LACBA members
a jury trial. The program will take
$85—all others with meal
place at the Los Angeles County Bar
$90—all at-the-door registrants
1 CLE hour
Association’s new offices at 1055
West 7th Street, 27th floor,
Downtown. Self parking costs $8 with
Healthcare Bankruptcies
LACBA validation. On-site registration
ON TUESDAY, APRIL 28, the Healthcare and the Commercial Law and Bankruptcy Sections will
and breakfast will begin at 7 A.M.,
present an overview presentation on recent developments in the area of healthcare
with the program continuing from
bankruptcies. The program will focus on the recent changes in the bankruptcy laws as applied
to healthcare organizations. Specific case examples will be provided where applicable. The
7:30 to 8:30. The registration code
registration code number is 010381. The program will take place at the Olympic Collection,
number is 010370. The prices below
11301 Olympic Boulevard in Los Angeles. Parking costs $7. On-site registration and the meal
include the meal.
will begin at 5:30 P.M., with the program continuing from 6:00 to 9:00 P.M. The registration code
number is 010381. The prices below include the meal.
$45—support staff and new attorneys
$85—Healthcare Section members
(under 2 years)
$110—LACBA members
$55—attorneys (over 2 years in
$120—all others
practice)
$130—all at-the-door registrants
3 CLE hours
$65—all others
1 CLE hour
The Los Angeles County Bar Association is a State Bar of California MCLE approved provider. To register for the programs
listed on this page, please call the Member Service Department at (213) 896-6560 or visit the Association Web site at
http://calendar.lacba.org/ where you will find a full listing of this month’s Association programs.
closing argument
BY RICHARD S. CONN
The Need to Clarify Creditors’ Rights in Probate
IMAGINE THAT A CLIENT has been solicited to loan a substantial menced and the successor trustee has not initiated the optional claims
sum of money on an unsecured basis to an individual residing in a notice procedure, the recourse of the claimant is unclear.
A leading treatise states that in these circumstances “the creditor
mythical Third World country. On inquiring with foreign legal counsel, you learn that, under the law of the foreign jurisdiction, follow- may file suit against the trustee to enforce a debt, claim, or action
ing the death of the individual, your client’s ability to enforce its rights against the deceased settlor.”6 However, the treatise does not indicate
against the decedent’s estate could be delayed between six months and how long the creditor must wait, and it may be argued that the credthree years, and that during this period, the decedent’s heirs could be itor must institute a probate proceeding, rather than suing the trustee,
distributed a substantial part, if not all, of the estate’s assets. Clearly, in order to establish the insufficiency of the probate estate.7
few clients would knowingly subject themselves to these risks.
The law has doubtless reached this state of complexity for legitSurprise! The law of the state of California does not differ mate- imate reasons. However, it would seem that many of the policies
rially from that of the mythical Third World
nation, at least without careful lawyering.
Many of the pitfalls facing California creditors
Many of the policies intended to be served by the present
attempting to collect following the death of an
obligor were outlined in a previous article
appearing in this magazine.1 These include a
statutory scheme could be implemented by simpler measures.
one-year statute of limitations for commencing
suit against a personal representative of the decedent,2 the requirement for filing a claim in a
probate and serving it on the personal representative prior to filing intended to be served by the present statutory scheme could be impleof suit,3 and, as a condition to filing a probate claim, the need to secure mented by far simpler measures. Rather than requiring a creditor to
appointment of a personal representative through initiation of a institute a probate proceeding to preserve a claim from the bar of the
statute of limitations, it would seem far more efficient for the state
probate if the heirs or legatees fail to do so.
The case of Arluk Medical Center Industrial Group, Inc. v. Dob- to maintain a statewide death registry in which creditors could file
ler4 illustrates other potential impediments to enforcement of credi- claims within one year of the reporting of a death. Filing a claim in
tor claims when the decedent had established a revocable inter vivos the death registry would serve to toll any statute of limitations,
trust. During the individual’s lifetime, property held in a revocable pending receipt of a notice of rejection by a legally authorized sucinter vivos trust is liable to be applied in satisfaction of judgments cessor, whether a personal representative in probate or the successor
against the individual. After the death of the individual trustor, mat- trustee of an inter vivos trustee.
Further, there would seem little justification in prohibiting suit
ters are not so simple. Probate Code Section 19001(a) provides that
trust property that was subject to a power of revocation at the time against a successor trustee while probate is pending or while a sucof the trustor’s death “is subject to the claims of creditors of the cessor trustee evaluates whether to provide optional statutory notice.
deceased [trustor’s] estate and to expenses of administration of the By allowing a creditor to file suit against a successor trustee of a revoestate to the extent that the deceased [trustor’s] estate is inadequate cable trust at any time following the initial trustor’s death, the credito satisfy those claims and expenses.” The court in Arluk construed tor will be empowered to seek a prejudgment writ of attachment or prethis language to prohibit action against a successor trustee until a claim liminary injunction if appropriate. California is an acknowledged
in a pending probate has been reduced to judgment. And, while pro- leader in areas such as science and technology. It is time that our proceedings are pending, the trustee may without liability pay or distribute bate laws reflect the twenty-first rather than the nineteenth century. ■
trust assets to beneficiaries, even if the remaining assets are insufficient to satisfy creditor claims. (The harshness of this rule may be mit- 1 Stacie S. Polashuk, Death of a Litigant, LOS ANGELES LAWYER, July/Aug. 2003, at
igated by permissive recourse against distributees,5 subject to the one- 43.
2
year statute of limitations of Code of Civil Procedure Section 366.2.) 3 CODE CIV. PROC. §366.2.
PROB. CODE §9370.
This is a warning that, whenever a contract or guaranty provides for 4
Arluk Med. Ctr. Indus. Group, Inc. v. Dobler, 116 Cal. App. 4th 1324 (2002).
personal liability, the obligor should be required to sign both in the 5 PROB. CODE §19400.
obligor’s name as trustee of the trust, as well as in the obligor’s name 6 2 CALIFORNIA TRUST AND PROBATE LITIGATION §22.51, at 798 (2008).
7 See PROB. CODE §§19001(a) and 19400 and the discussion in Arluk, 116 Cal. App.
individually thus permitting direct action against the trust.
It is clear from Arluk that if a probate has been initiated, the cred- 4th at 1333-34.
itor must establish its claim in that forum. The course a creditor should
follow is also clear when a successor trustee provides optional notice
Richard S. Conn is a partner with the firm of Musick, Peeler & Garrett LLP, speto creditors to file claims. However, when no probate has been comcializing in probate, trust, and commercial litigation.
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