rewarding student players · is the operative date for the new rules relat-ing to the vdop. section...

THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION

APRIL 2020 / $5

Los Angeles lawyer Jeremy M. Evans analyzes

the various possible ramifications of the newly

passed Fair Pay to Play Act permitting college

athletes to pursue profitable sponsorship

and endorsement deals in the future

page 20

EARN MCLE CREDIT

2019 EthicsRounduppage 26

LACBA Goesto Mexicopage 7

Equal ParentingProtectionspage 15

RewardingStudent Players




Semiannual

Guide to

EXPERT WITNESSES

PLUS

Surprise MedicalBillingpage 34

20 Rewarding Student Players BY JEREMY M. EVANS

The Fair Pay to Play Act will allow college athletes in California to profit insponsorship or endorsement deals similar to the publicity rights of professionalathletes

26 2019 Ethics RoundupBY JOHN W. AMBERG AND JON L. REWINSKI

High-profile misconduct by a justice, attorney fiduciary duty, separate counselrequirements, and just plain bad attorney behavior were among the professionalethics concerns California lawyers faced last yearPlus: Earn MCLE credit. MCLE Test No. 298 appears on page 29.

34 Another Kind of Medical Shock BY ERIC D. CHAN, BRIDGET A. GORDON, AND ANNALEE M. CLUBB

The results of California’s AB 72, which limits surprise medical billing, have been hotly debated, in part, because the results inform the debate over similarlegislation at state and national levels

40 Special Section Semiannual Guide to Expert Witnesses

F EATU RE S

Los Angeles Lawyer

the magazine of

the Los Angeles County

Bar Association

April 2020

Volume 43, No. 2

COVER PHOTOS CREDIT: TOM KELLER

04.20

7 LACBA MattersLACBA celebrates Día de los Muertos in MexicoBY VICTOR ACEVEDO

11 President’s PageNational conference examines the evolving role of bar associationsBY RONALD F. BROT

13 Barristers TipsConducting and documenting proper evidence collectionsBY CLAIRE-LISE KUTLAY

15 Practice TipsUpdating California parentage laws for the modern familyBY DENNIS F. HERNANDEZ

60 Closing ArgumentImproving health and well-being in the legal communityBY FRED KIPPERMAN, ANITA BHAPPU,

AND DAVE BAIOCCHI

DE PARTM E NTS

LOS ANGELES LAWYER (ISSN 0162-2900) is publishedmonthly, except for a combined issue in July/August, by theLos Angeles County Bar Association, 1055 West 7th Street,Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period -icals postage paid at Los Angeles, CA and additional mailingoffices. Annual subscription price of $14 included in theAssociation membership dues. Nonmember subscriptions:$38 annually; single copy price: $5 plus handling. Addresschanges must be submitted six weeks in advance of nextissue date. POSTMASTER: Address Service Requested. Sendaddress changes to Los Angeles Lawyer, P. O. Box 55020,Los Angeles CA 90055.

4 Los Angeles Lawyer April 2020

Visit us on the internet at www.lacba.org/lalawyerE-mail can be sent to [email protected] Los Angeles Lawyer on Twitter at@LALawyerMag

EDITORIAL BOARDChairTYNA ORREN

Articles CoordinatorCARMELA PAGAY

Articles CoordinatorTBD

SecretaryALEXUS BRIANNA PAYTON

Immediate Past ChairTHOMAS J. DALY

JERROLD ABELES (PAST CHAIR)TOM K. ARAMARA BERKETERENCE R. BOGASCOTT BOYERNORMAN A. CHERNINCHAD C. COOMBS (PAST CHAIR)MICHAEL R. DILIBERTODANA MOON DORSETTGORDON K. ENGMICHAEL A. GEIBELSON (PAST CHAIR)SHARON GLANCZSTEVEN HECHT (PAST CHAIR)COMM’R DENNIS F. HERNANDEZHON. MARY THORNTON HOUSENIKKI MEHRPOO JACOBSONDIANA HUGHES LEIDENLYDIA G. LIBERIOFLAVIA SANTOS LLOYDPAUL S. MARKS (PAST CHAIR)JANA MARIE MOSERCOMM’R ELIZABETH MUNISOGLULINDSEY F. MUNYERCYNTHIA ANN PEARSONGREGG A. RAPOPORTJ. D. REES, IIIJAN F. SCHAULACEY STRACHANBRIANNA JOAN STRANGERONALD TOCCHINITHOMAS H. VIDAL

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Editor-in-ChiefSUSAN PETTIT

Senior EditorJOHN LOWE

Art DirectorLES SECHLER

Director of Design and ProductionPATRICE HUGHES

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Copyright © 2020 by the Los Angeles County Bar Assoc ia -tion. All rights reserved. Reproduction in whole or in partwithout permission is pro hibited. Printed by R. R. Donnelley,Liberty, Missouri. The opinions and positions stated insigned material are those of the authors and not by the factof publication necessarily those of the Association or itsmembers. All manuscripts are carefully considered by theEditorial Board. Letters to the editor are subject to editing.

Los Angeles Lawyer April 2020 5

LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATIONOF THE LOS ANGELES COUNTY BAR ASSOCIATION

1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553Telephone 213.627.2727 / www.lacba.org

LACBA EXECUTIVE COMMITTEE

PresidentRONALD F. BROT

President-ElectTAMILA C. JENSEN

Senior Vice PresidentBRADLEY S. PAULEY

Vice PresidentJO-ANN W. GRACE

Vice President Of Diversity, Inclusion & OutreachPHILIP H. LAM

Immediate Past PresidentBRIAN S. KABATECK

TreasurerKRISTIN ADRIAN

Assistant Vice PresidentTBD

Assistant Vice PresidentTBD

Barristers/Young Attorneys PresidentDIANA ARIELLE SANDERS

Barristers/Young Attorneys President-Elect SHARON GELBART

Executive Director/Secretary STANLEY S. BISSEY

BOARD OF TRUSTEES

KRISTIN ADRIANSARVENAZ BAHARJULIA L. BIRKELDAMON MICHAEL BROWNBRANT H. DVEIRINGARY A. FARWELLJOHN F. HARTIGANAMOS E. HARTSTONROY J. JIMENEZRICHARD L. KELLNEREVE LOPEZJEFFREY B. MARGULIESJEANNE L. NISHIMOTOANN PARKBENJAMIN G. SHATZED SUMMERSKENDRA THOMASKEVIN L. VICK

AFFILIATED BAR ASSOCIATIONS

ASSOCIATION OF SOUTHERN CALIFORNIA DEFENSE COUNSEL (ASCDC)

BEVERLY HILLS BAR ASSOCIATION (BHBA)

CENTURY CITY BAR ASSOCIATION (CCBA)

CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES (CAALA)

CULVER MARINA BAR ASSOCIATION (CMBA)

EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY

GLENDALE BAR ASSOCIATION (GBA)

IRANIAN AMERICAN LAWYERS ASSOCIATION

ITALIAN AMERICAN LAWYERS ASSOCIATION (IALA)

JAPANESE AMERICAN BAR ASSOCIATION (JABA)

JOHN M. LANGSTON BAR ASSOCIATION

LGBT BAR ASSOCIATION OF LOS ANGELES (LGBT BAR LA)

MEXICAN AMERICAN BAR ASSOCIATION (MABA)

PASADENA BAR ASSOCIATION (PBA)

SAN FERNANDO VALLEY BAR ASSOCIATION (SFVBA)

SANTA MONICA BAR ASSOCIATION (SMBA)

SOUTH BAY BAR ASSOCIATION (SBBA)

SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION (SCCLA)

WOMEN LAWYERS ASSOCIATION OF LOS ANGELES (WLALA)

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•economic damages •fair compensation •property valuation •lost profits

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tation for over a quarter century. Then, on February 12, these invaluablemembers of our professional magazine publishing team (40 percent of it!) werelaid off. Sound reasons for this were articulated. Still, we who remain are heavy-hearted over this disruption of two friends’ lives. We wish them well, andwithout exaggeration, are left wondering how to manage without them. Fornow, though, we have a first-rate April issue for you.

The cover story, by sports lawyer Jeremy Evans, outlines California’s ground-breaking Fair Pay To Play Act, SB-206, under which, beginning 2023, a studentathlete in any California four-year college will have the right to earn compensationfor the use of his or her name, image, or likeness. SB-206 has attracted nationalattention, prompted nine other states and Congress to propose similar laws,and motivated the NCAA to remove restrictions against athletes at memberinstitutions selling endorsements and similar activities. Evans analyzes SB-206’santicipated impact, including opportunities it creates for California lawyers torepresent the newly empowered athletes.

In “Another Kind of Medical Shock,” Eric Chan, Bridget Gordon, andAnnalee Clubb provide a green book through the perplexing and largely lawlessterritory of surprise medical billing, describing efforts in California and nationwideto bring order and fairness to the chaos.

The California Legislature also has amended the Family Code’s parentageprovisions. Commissioner Dennis Hernandez explains these new statutes, intro-duced as AB 2684 and enacted in 2018. Some provisions became effective in2019; others, this year. The amendments were needed to harmonize California’sstatutory law with the U.S. Supreme Court’s recent recognition of constitutionalrights of same-sex couples to marry and to have legal relationships with theirchildren equal to those enjoyed by opposite-sex couples.

For basic practice, Claire-Lise Kutlay offers advice on how to execute effectivediscovery. Fred Kipperman, Dave Baiocchi, and Anita Bhappu suggest ways ofplanning well-being programs within law firms to help us survive and find ful-fillment amid the turmoil of our stress-intensive profession.

Commissioner Victor M. Acevedo provides a vivid account of LACBA’s falltrip to Mexico to celebrate Día de los Muertos while learning about recentchanges to the Mexican civil law system. LACBA President Ron Brot updatesyou on the association’s initiatives within the context of discussing the recentNational Conference of Bar Presidents he attended.

Finally, don’t miss John Amberg and Jon Rewinski’s venerable Ethics Rounduparticle for 2019. Then, take the MCLE test to store the ethics rulings in yourmind, and store the article away in case you consider calling the Ethics Hotline.

The MCLE test, incidentally, may be Los Angeles Lawyer’s last for the fore-seeable future. The same harsh circumstances that lost us two staffers alsomake it necessary for us to put the tests on indefinite hiatus. Just so ya’ know.

Tough times notwithstanding, we’re here for you and would love to knowhow you think we’re doing. n

This column is dedicated to John Lowe and MattyJallow Baby. Until February 12, 2020, John was LosAngeles Lawyer’s senior editor and Matty was our

administrative coordinator. Between them, they contributedimmensely to Los Angeles Lawyer’s quality and high repu-

Tyna Thall Orren is the 2019-20 chair of the Los Angeles Lawyer Editorial Board. She is anappellate attorney and a partner in the firm of Orren & Orren in Pasadena, California.

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LACBA matters BY VICTOR ACEVEDO

ON RETURNING from the Los Angeles County Bar Association’sOctober 27 to November 3, 2019 trip to Morelia, the statecapitol of Michoacán, to experience Día de los Muertos (Dayof the Dead), I couldn’t help but appreciate just how committedentire communities are to this celebration. It permeates the dailyactivity of thousands once the actual day arrives. Commitmentto this festival runs the gamut: some are there to follow alongin the celebrations while others are decked out in full Catrinacostume worthy of a Hollywood studio production. The skeletonfigure of La Catrina is the Mexican representation of death.

For our Sunday-to-Sunday trip, we stayed at the Hotel Virreyde Mendoza in the heart of the city center. Like most colonialcities, Morelia is old. The city was founded in 1541. The streetsare barely wide enough to fit a single row of cars, which meanslots of traffic at peak times and lots of one-way streets, but thebeauty of the baroque architecture throughout the city speaksto the age as well as to the fact that at some point in the distantpast, a lot of wealth had influence here.

During our first evening in the city, we were treated to quitea foodie’s delight. I was pleasantly surprised at the venues andthe food choices in almost every establishment we visited. Thiswas thanks to the efforts of retired Judge Teresa Sanchez-Gordon and LACBA Executive Director Stan Bissey. Both had

been to Morelia previously. We were greeted warmly by localbar leaders, the mayor, and representatives of the governor ofthe state of Michoacán, and other local leaders. They presentedus with awards recognizing our presence in their city, and welooked forward to local events that were to follow in the comingdays.

Our second day was all about local artisans and art. We metwith a local art legend at his hacienda and workshop in thevillage of Capula: Maestro Juan Torres, whose Catrina figuresare legendary. That evening, as a follow-up to the welcome recep-tion the night before, our group was joined by local attorneys,bar leaders, and representatives of local political figures, for aquestion-and-answer session.

Michoacán Courts

Our third day was an excursion to the courts. We visited thesuperior court, appellate court, and supreme court of the stateof Michoacán. We were able to meet the chief justice of the statesupreme court. Mexico recently underwent a gestalt shift in theirlegal system, moving away from their civil law system to bemore like our common law system. To see the new system in

Victor Acevedo is a Los Angeles County Superior Court commissioner.

Members and guests enjoy a picture together in the tiny village of Tupátaro.

Photos: Stan Bissey


place and working was quite a treat. Asingle building housed all of these insti-tutions. We were able to meet with judgesand justices as well as practicing attorneys.The mezcal tasting that evening was aspecial treat. Words cannot do justice tothe fine food paired with different typesof mezcal. Truly exceptional.

Arts and Crafts

Michoacán boasts many unique arts andcrafts villages, some devoted to one par-ticular art or craft. Santa Clara del Cobre,as its name implies, is all about copper.Our group was treated to a tour of afamily copper business, with some of ustaking turns pounding on a piece of veryhot copper with a hammer. This is oneof many Pueblos Mágicos (magic villages)in Mexico, towns selected for the desig-nation because their cultural, historical,and aesthetic qualities offer visitors a“magical” experience.

In Santa Clara del Cobre, all commer-cial buildings must be painted in two col-

Colonial architecture abounds in Morelia, as in this bird’s-eye view of the beautiful lobby of the Hotel Virrey de Mendoza.

Morelia main plaza and the elgegant baroque cathedral.

ors, a dark brick red on the bottom andwhite on the top. Lettering on the buildingsis also regulated: the first letter must bepainted red and the rest black. No devia-tions are allowed. The effect and thebeauty that comes with those rules wasnot overlooked.

We visited another Pueblo Mágicocalled Pátzcuaro. We visited during theannual artisans market in the center of thevillage. One thing that stood out is thenumber of people who were put ting updecorations for Día de los Muertos. Itseemed as if every person in the villagewas participating in preparations.

We took a quick detour to Tupátarowhere a very old chapel is located. Thelocals know it as the Sistine Chapel ofMichoacán. It is small inside. The oldwood panels covering the entire ceilingserve as a canvas for paintings of signifi-cance to the local community. It was animpressive sight, especially given the ageof the chapel.

The place where I truly felt immersedin the celebration of Día de los Muertoswas the Purépecha vil lage of Santa Fe dela Laguna, where the native language ofthe villagers sounds nothing like Spanish.The village is famous for its hospitalityand home altars decorated with marigoldsand other flowers and we were able tosee many of the alters up close. AlthoughI felt as if we were invading the workers’personal space, they were very welcomingto strangers. One local resident said he feltproud that we were there to appreciatetheir culture and customs.

On the main day of Día de los Muer -tos, professional makeup artists appliedfantastic Catrina face paint to almosteveryone in our group before we headedto the Purépecha village of Tzintzuntzán(in the native language, it means “placeof the hummingbirds”). This village hasgreat importance because it was the capi -tal of the Purépecha empire until the Span -ish arrived in 1522. In terms of food, thiswas by far the best and most surprisingtreat. We ate at the restaurant La Cocinade Blanca where we had local fare thatwas, hands down, one of the best culinaryexperiences of my life. We were treatedto a buffet of different items and eachdish was delicious.

After our meal, we watched the pro-cession of people going to the church tocelebrate Día de los Muertos. It was fascinating to see how the Purépecha culture and the Catholic traditions sur-rounding All Saints Day blended togetherin this unique celebration of food andculture that was our LACBA trip for2019, a truly memorable experience. n

The justice center in Morelia.

From left: Justice Carlos Moreno, Michoacán Judge Alejandro González Gómez, Retired LASC JudgeTeresa Sanchez-Gordon, and LACBA Exectuive Director Stan Bissey.


Left: Exquisite catrinas in the studio of artistMaestro Juan Torres.

Right inset: Lunch at restaurant La Cocina deBlanca.

LACBA travelers embrace Día de los Muertos.


I recently returned from the midyear meet -ing of the National Conference of Bar Presi -dents held in Austin, Texas. I brought alongLos Angeles County Bar Association Pres i -dent-Elect Tamie Jensen to ease her transitioninto the conference as our leader next year.

Why bother attending? Isn’t this just agroup of egos celebrating themselves? No,not at all. This group affords us a uniqueopportunity to have open and frank discus-

sions with state and local bar leaders fromthroughout the country about the key issueswe each face in the evolving role of barassociations as we begin the 2020s.

To put our participation into perspective,LACBA is out of the ordinary in that weare neither a state nor a local city or metro-politan bar association. Since we draw ourmembers from the over 4,750 square milesof Los Angeles County, our geographicboundaries are larger than most city barorganizations, and larger than many statebars as well. With over 10 million residents in Los Angeles County,our demographic population base exceeds many states.

Differences aside, I am impressed with the similarity of issuesfacing the bars of the states, metropolitan areas, and other citiesrepresented at the conference. Even more impressive is the will-ingness to share openly about problems and solutions, both thosethat have not worked and those that have. While the origin ofthe statement is in doubt, I have heard it said that while a smartman learns from his mistakes, a wise man learns from the mistakesof others. We have much to gain by learning from the successesand less-than-successes of others, and we have much to offerfrom our own experiences.

There are no wallflowers at these events. Everyone either hasbeen, is, or will be a bar president. All have already succeededto a significant extent. Thus, rather than a celebration of egos, Ifound the conference to offer an extraordinary resource fromwhich our own evolving LACBA can learn. What did we learn?First, notwithstanding some apparent differences, the challengeswe face at LACBA are similar to the difficulties experienced bybar associations across the country at the national, state, andlocal level.

Among the core issues are membership attrition in general,difficulty in attracting participation from younger lawyers, anda steady decline in participation by Big Law. The fundamentalquestion that demands urgent attention is: Why should a lawyer,particularly a younger lawyer with limited available time ormoney, participate in a voluntary bar association?

I will share some of the wisdom emanating from the collective

experiences shared by our colleagues, but there is no easy fix andno single, cure-all answer. The solution to our challenges may beas much about process as anything. We must open ourselves to anew willingness to think outside the box, engage in a dialoguewith those we wish to serve, and try new creative solutions.

Developing a philosophy of “innovate and collaborate” willfoster new solutions. At nearly any cost, we must overcome thefear that we may not have it exactly right, or the fear that a pro-posed solution may not work. Wherever it comes from, we mustbe mindful that perfect is the enemy of good.

There is a consensus among bar leaders that we must becomefar more active in reaching out to students at local law schools.Simply creating a category of law student membership is notenough. There was a difference of views as to whether a lawstudent should be charged a small fee for dues (ten or twentydollars). Many associations allow law students to join for free,though others believe “free” implies no value. Regardless, we atLACBA need a far better coordinated and more concerted presenceat our several law schools in Los Angeles County. We shouldconsolidate board and Barrister Section law student outreachcommittees, assign staff for support, and create a specific planto take LACBA to all local law schools. Our student membersshould be allowed low-cost or no-cost membership to our sectionsand should be granted low-cost or no-cost admission to our pro-grams. Section leaders should join in the effort for early exposureand participation as well.

Two Years’ Free Membership

For our newer lawyers, we must be willing to re-examine ourcurrent policy of two years’ free membership. Frankly, I didnot hear of any other bar association that offers two years offree membership, and I was at a loss to explain how adding asecond year free has helped either LACBA or its members. There

president’s page BY RONALD F. BROT

National Conference Examines the Evolving Role of Bar Associations

The fundamental question that demands urgent attention is: Why

should a lawyer, particularly a younger lawyer with limited available

time or money, participate in a voluntary bar association?

The 2019-20 president of the Los Angeles County Bar Association, Ronald F.Brot is a founding partner and chairman of Brot Gross Fishbein and a notedfamily law attorney. He is a past chair of LACBA’s Trial Lawyers Section (nowthe Litigation Section) and Family Law Section, among others.

appears to be a growing trend toward no- or low-cost CLE as an association ben-efit, at least for newer lawyers. While thisconcept is challenging under our currentsection organizational system, no ideashould be discarded, especially when openCLE appears to have helped other orga-nizations stabilize.

Mentorship Program

A robust mentorship program also hashelped other bar organizations through -out the United States. While I have triedto implement a mentorship program atLACBA, we are not yet ready to roll outthe program. We must do better and get this program going without furtherde lay. Next, several associations report that student loan refinancing programswere enthusiastically received by law students and young lawyers. LACBAalready has such a program in develop-ment, and I look forward to announcingthis formal program in the very nearfuture. Another program for youngerlawyers that has met with success is a jobplacement resource. This type of benefitcan be as simple as a job listing board, or as sophisticated as actual career coun-seling as offered by the Chicago Bar Asso -cia tion. Regardless of the form, providingsome type of an em ployment resource hasbeen well received.

Networking Hubs

Networking opportunities at formalevents or at social gatherings have becomeone of the most useful benefits offeredby the organized bar, particularly for young lawyers and those in smaller prac-tices. LACBA is at the forefront in thisregard. We have several networking hubsthat will soon open for operation in variouslocations throughout Los Angeles County.Our goal is to have 20 networking hubsfilled with lawyers from our many andvaried practice sections. The opportunitiesfor referrals from this resource are virtuallyunlimited.

Tamie and I have already brought backto LACBA many more ideas that were discussed at the conference. Most impor-tant to the process is the willingness to lis-ten to our lawyer and law student mem-bers. We must be willing to hear what theyhave to say and to try new ways to deliverwhat they need and want from us. Wehave some of the brightest and most cre-ative minds within the LACBA family. Iknow that many of our members sharemy enthusiasm and my vision for our asso-ciation. Please let me hear from you. Shareyour ideas. Help us innovate. Be with usas we collaborate. Join us. n


WELCOMETO OUR

NEWEST MEMBERS

Anthony J. Almaz

Michael D. Attar

Lauren Elizabeth Bass

Adam Gerald Berger

Feng Bo

Michael A. Carlin

Carlos Iriarte Law Offices

Kelly Jay Champ

Sarah Xiyi Chen

Sarah C. Clark

Steve Cortez

Jordan H. Davidoff

Maya Dharwarkar

Reema El-Amamy

Peter Lewis Ente

Lauren M. Estevez

Tess Feldman

George L. Fernandez

Gary Lee Ferrell

Peter Franck

Katherine Diana Franco

Roman Garagulagian

Susan Weisenberg Gilefsky

Alex Justin Hemmelgarn

Daniela Hernandez

Stephanie Hingle

Maide Holloway

Stephanie Huerta

Jennifer E. Jana

Christopher Charles Jew

Amelie Anne Kamau

Olga Katsnelson

Kyle Wayne Kellar

Samantha W. Koopman

Erina Shawnie Kwon

Yong Jean Kwun

Anthony W. Lai

Sandra Lepson

Melanie Luthern

Allison Margolin

Taylor Morgan Markey

Michael Murray McInnis

Brianna Margaret Mix Sweeney

Mark Mizrahi

David M. Mnatsakanyan

Maya Mouawad

Andre Nazarian

Barzin Pakandam

Ryan Patterson

Timothy J. Pollard

Rozanna Pondeva

Diana D. Price

Nitya Narayan Ram

Shayna Rasmussen Ockey

Holly J. Sheffield

Debbie Shon

Blair Slattery

David Zee Sohn

Jonathan Sun

Dianna Ter-Vardanyan

Simrandeep Singh Tiwana

Nareen M. Touloumdjian

Brenda L. Valle

Jinouth Vasquez Santos

Susan Wiesner


EVIDENCE IS AT THE HEART OF A CASE. Proper evidence collectionis key to understanding a case’s merits and potential weaknesses.Evidence collection can be broken into three simple steps: 1) plan-ning the collection, 2) conducting the collection, and 3) docu-menting the collection.

Planning is important to ensure a complete collection of poten-tially relevant materials and to control discovery costs. Theplanning stage may include issuing an evidence preservation orlitigation hold if one has not already been sent. Planning requiresdiscussion with the client and any IT department about their datasystems to understand where and how information is stored andwhat may be collected. Attorneys must also strategize regardingthe types of evidence to be collected and the scope of collectionsto ensure a complete collection and to control discovery costs bypreventing multiple collections.

Planning collections requires considering the types of evidencein the case—witness statements, tangible evidence, and docu-mentary evidence. Witness interviews are best conducted first todetermine which individuals possess information or documentsand which individuals should be deposed or called at trial.

Attorneys should also recognize the unique challenges inherentin collecting tangible evidence. Planning is required not only tolocate and obtain tangible evidence but also to maintain the chainof custody, which is critical to prevent challenges to its authenticityor admissibility. The chain of custody should be documented inreal time, tracking the item, date, location, and name and signatureof the persons releasing and receiving the item. Taking a fewminutes to document the chain of custody can save hundreds ofhours later on in the case when trying to establish an unbrokenchain of custody for a particular item.

Collecting documentary evidence—e-mails, text messages, andother documents—also requires planning. While electronic dis-covery has become routine, attorneys must still carefully considerwhich custodians to collect from and whether search terms canbe used. Attorneys also need to consider collecting sources otherthan e-mail, including social media, text messages, cellular phones,and smart devices that may contain relevant data. Each of thesesources presents its own challenges to ensure all relevant infor-mation is retained.

Once planning is complete, attorneys must arrange for thecollection. Best practices include tailoring the method of collectionto the specific evidence. For example, electronic documents andinformation must include collection and preservation of associatedmetadata. Thus, attorneys should engage in standard e-mail col-lection practices that provide e-mail accounts in .pst files or aselectronic .msg files. In many cases, e-mails will be collected by acustodian by either printing the e-mail to hardcopy or forwardingthe e-mail to the attorney. Both methods result in a complete lossof metadata and should be avoided whenever possible.

A key decision in conducting collections is whether to engage

in a professional collection or self-collection. Professional col-lections tend to cost more but have lower associated risks. Bycontrast, self-collections—when custodians search and collecttheir own documents—cost less but involve a much higher riskthat collections will be insufficient or challenged. While it is notpossible to guarantee that every discoverable document is captured,self-collection invites the issue of whether willful spoliation hasoccurred. This can prolong litigation and increase costs throughmotion practice, and it exposes the client to serious sanctions.In an ideal world, discovery collections would be handled byexperienced third-party vendors to prevent unnecessary exposureto the client. Self-collection, however, remains prevalent in casesof all sizes. Common reasons for self-collection include cost-sen-sitivities or the size of a case. These are valid concerns as discoverycosts can be difficult to control, but attorneys must alwaysevaluate whether the risk of a self-collection outweighs the poten-tial cost savings.

When analyzing whether a professional collection is necessary,attorneys should consider 1) the complexity of the collection andwhether there are any unusual file types or data repositoriesinvolved; 2) the size of the collection, including the number ofcustodians and expected size of the data; 3) the importance ofmaintaining metadata integrity, which can be compromised duringself-collections as most custodians are inexperienced at collectingintact metadata; 4) the custodian’s role in the litigation, includingwhether the custodian has a stake in the litigation or his conductmay have been embarrassing which heightens the risk of an in -complete collection; and 5) whether opposing counsel engages inaggressive discovery and motion practice.

If self-collection is necessary, attorneys can mitigate associatedrisks by educating clients about the importance of a completecollection, and providing clear and concise instructions on howto perform collections, including what information to look for,search terms, locations to search, and how to collect the infor-mation. Attorneys should avoid conducting collections themselvesas it exposes the attorney to risk where a collection is incomplete,and could expose attorney-work product.

Finally, documenting the collection is critical, regardless ofthe type of evidence or the size or method of collection. Doc -umentation provides an attorney with a summary of the collection,which can be relied upon later to analyze whether additional col-lections may be required, to defend the propriety of past efforts,and to aid authentication and admissibility of evidence at trial.Conducting and documenting proper evidence collections is para-mount to avoid pitfalls down the road, to increase efficienciesfor the client, and to allow attorneys to focus on litigating themerits of the case. n

barristers tips BY CLAIRE-LISE KUTLAY

Conducting and Documenting Proper Evidence Collections

Claire-Lise Kutlay is a business and employment litigator at Greenberg GrossLLP in Los Angeles and a member of LACBA’s Barristers Executive Committee.


AB 2684, THE UNIFORM PARENTAGE ACT (UPA) is the frameworkthat defines the legal relationship between parents and children.1

In 1975, California adopted the UPA to eliminate the legal dis-tinction between legitimate and illegitimate children and tofocus instead on the parent and child relationship defined asthe “legal relationship existing between a child and his naturalor adoptive parents incident to which the law confers or imposesrights, privileges, duties and obligations.”2 The relationshipextends equally to every child and to every parent, regardlessof the parents’ marital status.3 The UPA has evolved since itsadoption in California in 1975. In 2013, for instance, the UPAwas amended to allow the courts to find a child to have morethan two parents in the appropriate case.4 However, when con-stitutional guarantees for same-sex couples were finally recog-nized, it was clear that the UPA was in need of further reform.

In Obergefell v. Hodges,5 the U.S. Supreme Court held thatlaws barring marriage between two people of the same sex areunconstitutional. In June 2017, in Pavan v. Smith,6 the SupremeCourt held that, consistent with Obergefell, a state may not denymarried same-sex couples recognition on their children’s birthcertificates that the state grants to married different sex couples.In Pavan, two married same-sex couples had jointly plannedtheir children’s conception by means of an anonymous spermdonor. State officials listed the biological mothers on the children’sbirth certificates but refused to list their female spouses, sayingthat the female spouses were not entitled to a husband’s pre-sumption of paternity.

The case went to the Arkansas Supreme Court, which ruledthat same-sex parents did not have to be included on birth cer-tificates because “it does not violate equal protection to acknowl-edge basic biological truths.” The U.S. Supreme Court disagreed,pointing out that Obergefell gives same-sex couples marriagerights “on the same terms and conditions as opposite-sex cou-ples,” including the right to appear on birth certificates.7 AfterObergefell and Pavan, California parentage laws needed to beupdated to recognize the rights of same-sex couples.

New Amendments

On September 28, 2018, California Governor Jerry Brown signedinto law AB 2684 to update the UPA to address these and otherissues by revising the terms, presumptions, and procedures toensure that parents and children of same-sex couples are treatedequally and to improve genetic testing laws to ensure they applyequally to men and women.

Some of provisions of AB 2684 were made effective in 2019.For example, in 2019, many terms in the UPA were amended tobe more inclusive, such as replacing “paternity” with “parentage,”“birth parent” instead of “mother,” “other parent” instead of“father,” and changing pronouns to make them gender neutral.Additionally in 2109, genetic testing was prohibited to challenge

the parentage of a person who is a parent through assisted repro-duction under Family Code Section 7613 or 7962.8 In 2019,genetic testing was banned for in utero genetic testing, whichcan cause significant problems in the pregnancy.9 Moreover, theamendments specified that, if a genetic specimen is not availablefrom the person sought to be tested, and good cause is shown,the court may order testing of relatives,10 genetic testing foridentical siblings, and genetic testing of a deceased person. Thesechanges made genetic testing more available for determiningparentage.

Substantial changes are made under AB 2684 to the presump-tions of parentage, the voluntary declaration of parentage, andother provisions beginning January 1, 2020. The effective dateof these changes was delayed until 2020 to give the agencies

practice tips BY DENNIS F. HERNANDEZ

Updating California Parentage Laws for the Modern Family

Dennis F. Hernandez is a Los Angeles County Superior Court Commissionerand member of the Los Angeles Lawyer Editorial Board.

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time to revise forms, publications and procedures and to give the public and legalcommunity time to understand thesechanges.

Presumed Parents

Family Law Section 7541 has been amend -ed by AB 2684 to extend the presumptionof parentage to children born during amarriage of same-sex couples. Before theamendment, a child born to spouses cohab-itating at the time of conception was pre-sumed to be a child of the marriage andthat presumption was conclusive after twoyears.11 Children born to a woman whoattempted to marry the other parent werealso presumed to be children of the mar-riage, though that presumption was notconclusive after two years.12

Section 7541 now provides that a pre-sumption of parentage based on marriageor attempted marriage under Section 7611cannot be challenged after the child is twoyears of age, and an action to challengethe presumption may only be filed by eitherspouse, or by a person who is a presumedparent or by the child through a guardianad litem.13 If the court finds that the spousewho is the presumed parent is not thegenetic parent, the court must determinewhat is in the child’s best interest, consid-ering factors such as whether the childresided with the presumed parent, whetherthe presumed parent ever held out the childas his or her own and, in the case in whichthere are two or more presumptions,whether it would be detrimental to recog-nize more than two parents.14

The statute also provides that genetictesting may not be used to challenge parent-age when a final judgment was reachedprior to September 30, 1980, or whenchallenging the parentage of a spouse whois a parent through assisted reproductionagreements under Section 7962, or throughassisted reproduction when the womanconceives with semen or ova donated bya donor not her spouse with the consentof the other intended parent.15 Theseamendments are intended to provide moresecurity to children born to same-sex cou-ples and families that have used assistedreproduction.

Voluntary Declaration of Parentage

The voluntary declaration of parentage(VDOP) is a simple process to establishparentage for unmarried parents by signinga declaration.16 The declaration is a formusually provided at the hospital, by thecourt, or by the local child support agency.Once the VDOP is signed and filed withthe state Department of Child SupportServices (DCSS), this declaration is equiv-

alent to a judgment of parentage issuedby a court.17

AB 2684 amended Section 7571(a) toexpand the scope of individuals eligible tosign a VDOP to include persons identifiedby the woman giving birth as either theonly possible genetic parent or the intendedparent of the child conceived throughassisted reproduction.18

Section 7573(a) was also amended topermit the following persons to sign aVDOP to establish the parentage: 1) anunmarried woman who gave birth to thechild and another person who is a geneticparent and 2) a married or unmarriedwoman who gave birth to the child andanother person who is an intended parentof a child under Section 7613 conceivedthrough assisted reproduction.19 Thisexpansion of the VDOP to include the“intended parent” makes room for a moreexpansive definition of parentage and family.

In addition, the statute allows theVDOP to be signed before or after thebirth of the child but specifies that theeffective date of the VDOP occurs whenit is filed with the DCSS. 20. Previously,the effective date was undefined by stat -ute, but as a practical matter, was thechild’s birth date. Previously, Section 7573stated that a VDOP had the “same forceand effect” as a judgment of paternity.Section 7573 now states that a completedVDOP is “equivalent to” a judgment ofparentage and confers all rights and dutiesof a parent on the declarant.21 Section7578 states that, by signing the VDOP,the signatory submits to the personaljurisdiction in any proceeding challengingthe VDOP.22 While the legislation ex -panded the use of the VDOP for same-sex couples, it narrowed the time framein which a VDOP can be challenged by asignatory. Prior to the enactment of thelegislation, a signa tory could move to setaside the VDOP within two years of thebirth of the child, or within six monthsof initial order if the moving party couldshow mistake, inadvertence, surprise, orexcusable neglect under Code of CivilProcedure Sec tion 473, or longer basedon equitable considerations.23

Under new Section 7576, a signatorymay commence a proceeding to challengethe validity of a VDOP within two yearsof the “effective date” of the VDOP, thatis, the date the VDOP is filed with DCSSas specified in section 7573(c). Omittedare the exceptions based on Section 473and equity.24

Additionally, the statute radically altersthe grounds on which a signatory maychallenge a VDOP.

Under the prior Section 7575, a courtcould set aside the VDOP unless it deter-mined that the set-aside action would notbe in the best interest of the child basedon a number of factors, including the ageof the child, the length of time since thedeclaration was signed, the nature andquality of the relationship between thechild and the man who signed the decla-ration, if the signatory is not the biologicalfather, whether the biological father op -poses preserving the relationship betweenthe child and the signatory, and other fac-tors that the court determined to be rele-vant to the best interest analysis. 25

Limited Grounds to Challenge

Section 7576(a) now limits the groundsto challenge a VDOP solely on the basisof fraud, duress, or material mistake offact. One view holds that the standardssets a higher bar for challenges to a VDOPto the extent that it gives the court lessdiscretion based on the best-interest factors.Others argue that the standard is poten-tially more expansive to the extent that amaterial mistake of fact may be open tointerpretation.

A challenge based on fraud is clearly ahigher standard to meet. There may befraud in the making of a contract, asdefined in Civil Code Section 1572,26 and,in many ways, a VDOP is like a contract.Civil Code Section 1709 defines fraud as“one who willfully deceives another withintent to induce him to alter his positionto his injury,” but that is defined as deceitand not fraud.27 Section 7576(a) does notinclude negligent misrepresentation, whichis the more likely situation, when the child’smother knows that the signatory may notbe the father but fails to disclose that factto him.

Similarly, duress may be more difficultto prove. Civil Code Section 1569 definesduress to include: 1) unlawful confinementof the person of the party, or of the spouseof such party, or of an ancestor, descendant,or adopted child of such party or spouse;and 2) confinement of such person, lawfulin form, but fraudulently obtained, orfraudulently made unjustly harassing oroppressive.28 Is confinement a likely ele-ment when a child is born to two peoplein a relationship? That said, there may becircumstances when the signatory feelscompelled to sign by the mother or thefamily of the mother giving birth or byhospital staff.

Mistake of Fact

Mistake of fact may be the easier standardto meet. Civil Code Section 1577 statesthat a mistake of fact is a mistake, not


caused by the neglect of a legal duty onthe part of the mistaken person, consistingin: 1) an unconscious ignorance or forget-fulness of a fact past or present, materialto the contract; or, 2) belief in the presentexistence of a thing material to the contract,which does not exist, or in the past exis-tence of such a thing, which has notexisted.29 The signatory may have an easiertime proving a material mistake, such aswhen the mother or father or both mis-takenly believe that he is the biologicalfather. The law does not allow for a chal-lenge based on a mistake of law, that is,the signatory claims he or she did notunderstand the legal effect of the VDOP.

Lawyers may find Section 7576(a) anew territory to explore; however, the vastmaj ority of litigants challenging a VDOPare self-represented litigants who are with-out the benefit of representation or knowl-edge of the law. In many cases, these liti-gants merely seeking the assurance of aDNA test to confirm their relationship tothe child. It is unclear whether thesechanges, which notably omit all mentionof genetic testing for signatories and con-sideration of the best interest of the child,actually serve the best interests of thechild.

Non-Signatory Rights

Beyond the broad changes to the set-asiderules for signatories, the new statute nowrecognizes the right of a non-signatory tochallenge a VDOP. Section 7577(a) states:“A person has standing under this sectionif he or she is an alleged genetic parentwho is not a donor under Section 7613,is a presumed parent under Section 7611,or any person who has standing underSection 7630.”30 This could include analleged genetic parent who is not a donor,anyone with UPA standing (Section 7630)(includes all statutory “presumed” parents),or a person seeking to be adjudicated aparent, not merely a donor.

Under this section, the non-signatorymust file a petition stating specific factsin support of his or claim of standing. If ahearing is needed to determine standing,then it must be expedited and, if the personclaiming standing is alleging a genetic con-nection, the court must order genetic testingon an expedited basis.31 In these cases, theperson seeking to set aside the VDOP hasthe burden of proof by a preponderanceof the evidence, and the court may grantthe petition only if it finds that it is in thebest interest of the child considering theage of the child; the length of time sincethe VDOP was effective; the nature, dura-tion and quality of the relationship betweenthe signatory and the child. Additionally,

every person who signed the VDOP shallbe made a party to the proceeding.

New Section 7578(c) provides that,during pendency of any proceeding chal-lenging a VDOP, the court “shall not sus-pend the legal responsibilities arising froma voluntary declaration of parentage includ-ing the duty to pay child support, unlessthe party challenging the declaration showsgood cause.”32 What constitutes “goodcause” is not defined in the statute, but ifthe VDOP appears to be void (as definedin new Section 7573.5), that would appearto be good cause. The sections regardingVDOPs signed by minors (Section 7577)and pre-1997 VDOPs (Section 7576)remain the same but are renumbered tosections 7580 and 7581.

Void VDOPs

Under AB 2684, new Section 7573.5 pro-vides that a VDOP is void in the followingcircumstances:• At the time of the signing, the child hasa presumed parent under Section 7540(parents married and cohabiting); or a pre-sumed parent under Section 7611(a), (b)or (c) (married or attempted to marry thenatural mother or who took the child intohis or her home and held the child out ashis or her own);• There is already a judgment of parentage;another person has signed a valid decla-ration; the child has a parent as the resultof assisted reproduction other than thesignatories; or• The person seeking to establish parentageis a sperm or ova donor; or, the personseeking to establish parentage asserts heor she is a parent under Section 7613 andthe child was not conceived throughassisted reproduction.33

Previously, under Section 7612(f), aVDOP was “invalid” if the child had apresumed parent under sections 7540 or7611 or if the man signing the VDOP wasa sperm donor through assisted reproduc-tion. Under the present scheme, accordingto Section 7573.5, the VDOP is not merelyinvalid, it is void. One unresolved questionis: void as of what date? Void ab initio?One can imagine a scenario in which thiscould be questioned, such as when thereis a judgment against the signatory andmoney was collected and distributed orwhen the signatory made decisions on thechild’s behalf that had legal effects. Thesequestions will have to be resolved by thecourts.

Operative Dates

One major issue unresolved by the statuteis the operative date for the new rules relat-ing to the VDOP. Section 4(c) governs the

operative dates of new laws and states, inrelevant part: “the new law [enacted underthe Family Code] applies on the operativedate to all matters governed by the newlaw, regardless of whether an event oc -curred or circumstances existed before oron the operative date, including the com-mencement of a proceeding, making of anorder or taking an action.” Section 4(d)states that “[i]f a document is filed beforethe operative date, any subsequent pro-ceedings after the operative date, includingany objection or response, hearing or order,is governed by the new law and not theold law. Section 4(e) states “[i]f an orderis made or action taken before the operativedate, the validity of the order or action isgoverned by the old law and not the newlaw.” With the VDOP equivalent to a judg-ment under the new law (and having thesame force and effect under the previouslaw), it is unclear how to apply the effectivedate in each case.

Disclosure of Donor Identity

Beginning January 1, 2020, a gamete(sperm or ova) bank that provides re pro -ductive ser vices in California is re quiredto collect and maintain various identify -ing and medical information from a donorat the time of the donation. The bank mustalso obtain from the donor a declarationeither agreeing or not agreeing to disclosethe donor’s identity to the child at 18 yearsor age. If the donor initially decides tokeep his or her identifying informationconfidential, the donor can change his orher mind, but if the donor agrees to releaseidentifying information, that decision can-not be changed. At 18 years of age, thechild conceived as a result of the donationmay, if he or she so chooses, receive iden-tifying information from a donor whoagreed to the release of that information.Non identifying medical information isaccessible immediately by the child, or thechild’s parent or guardian if the child is aminor.34

The intent of AB 2684 was to modern-ize the UPA and to update the parentagelaws to provide equal treatment of same-sex parents. The law, in fact, does so muchmore to modernize and improve Calif -ornia’s parentage laws. n

1 WITKIN, SUMMARY OF CALIFORNIA LAW, PARENT AND

CHILD §9, 39-40 (11th ed. 2017-19) [hereinafterWITKIN].2 FAM. CODE §7601. 3 FAM. CODE §7602.4 FAM. CODE §7612(c); In re LL 13 Cal. App. 5th1302, 1314 (2017).5 Obergefell v. Hodges, 576 U.S. __, 137 S. Ct. 2075(2017).6 Pavan v. Smith, 576 U.S. __, 135 S. Ct. 2584 (2015).


7 Obergefell, 576 U.S. at 5. 8 FAM. CODE §7551(b)(1). 9 FAM. CODE §7551(c).10 FAM. CODE §7551(d)(4).11 FAM. CODE §7540.12 FAM. CODE §7611 states in substance the person ispresumed to be the natural parent if a) the presumedparent and the child’s natural mother are or were mar-ried to each other and the child is born during themarriage or within 300 days after the marriage is ter-minated by death annulment, divorce or judgment ofseparation; b) before the birth, the presumed parentand the child’s natural mother attempted to marry; c)after the child’s birth, the presumed parent and thechild’s natural mother attempted to marry; or d) thepresumed parent receives the child into his or herhome and holds the child out as his or her child.13 FAM. CODE §7541(b).14 FAM. CODE §7541(a), referring to factors outlinedin Section 7612(c).15 FAM. CODE §7613(a)(1).16 FAM. CODE §7570.17 FAM. CODE §7573.18 Prior to this amendment, the form of the declara -tion, as developed by DCSS, provided for, among otherthings, the name and signature of the mother, the nameand signature of the father, the name of the child andthe birthdate. WITKIN, supra note 1, at §21, 54.19 Section 7613 states: “If a woman conceives throughassisted reproduction with semen or ova or bothdonated by a donor not her spouse, with the consentof another intended parent, that intended parent istreated in law as if he or she were the natural parentof a child thereby conceived. The other intended par-ent’s consent shall be in writing and signed by theother intended parent and the woman conceivingthrough assisted reproduction.”20 FAM. CODE §7573(c).21 FAM. CODE §7573(d).22 FAM. CODE §7578(b).23 FAM. CODE §7575.24 FAM. CODE §7576(a).25 FAM. CODE §7575.26 Section 1572 generally requires acts by a party to acontract, with the intent to deceive or intent to inducethe party to enter the contract, to suggest facts thatare not true, or suppression of facts that are true, or apromise without intent to perform, or other acts fittedto deceive.27 CIV. CODE §1709.28 CIV. CODE §1569.29 CIV. CODE §1577.30 FAM. CODE §7577(a). There are additional categoriesof standing under the UPA, including an adoptionagency who has the child or a prospective adoptiveparent. See FAM. CODE §7630(e)(1).31 FAM. CODE §7577(c).32 FAM. CODE § 7578(c).33 FAM. CODE §7573.5(a) states: “A voluntary decla-ration of parentage is void if, at the time of signing,any of the following are true: (1) A person other thanthe woman who gave birth to the child or a personseeking to establish parentage through a voluntarydeclaration of parentage is a presumed parent underSection 7540 or subdivision (a), (b), or (c) of Section7611. (2) A court has entered a judgment of parentageof the child. (3) Another person has signed a validvoluntary declaration of parentage. (4) The child hasa parent under Section 7613 or 7962 other than thesignatories. (5) The person seeking to establish parent-age is a sperm or ova donor under subdivision (b) or(c) of Section 7613. (6) The person seeking to establishparentage asserts that he or she is a parent underSection 7613 and the child was not conceived throughassisted reproduction.”34 HEALTH & SAFETY CODE §1644.2.



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In September 2019, California Governor Gavin Newsomsigned into law the Fair Pay to Play Act (FPPA).1

Otherwise known as Senate Bill 206,2 the legislationallows college athletes playing a sport at a qualified academicinstitution in California that makes $10 million or more in mediarights annually to enter the marketplace and profit from theirnames, images, and likenesses. The law forbids educational insti-tutions from suspending or otherwise penalizing a student forpursuing such sponsorship or endorsement deals. It also allowsstudent athletes to retain the services of an agent and/or attorneyto help them obtain and secure such deals. The law, which becomesoperative January 1, 2023, exempts the California CommunityCo lleges system until 2021, when a report will be submitted tothe California Legislature to determine whether communitycolleges should be subject to the FPPA.

In October 2019, the Atlanta-based National Collegiate AthleticAssociation (NCAA) Board of Governors voted to remove restric-tions on student athletes competing at member institutions, allow-ing them to profit from their names, images, and likenesses. TheNCAA’s decision followed that of the California Legislature, thefirst in the nation to pass such a law, and the introduction or dis-

cussion of similar legislation in the U.S. House of Representativesand in Florida and New York. NCAA President Mark Emmertsaid, “There’s no question the legislative efforts in Congress andvarious states has been a catalyst to change.”3

This foundational change of course pursuant to the Californialegislative effort and the NCAA will indeed open opportunitiesfor student-athletes to make money while playing college sports.It is also a complete change from the NCAA’s historical stance.In addition, the FPPA raises five important sets of concerns orissues:4

1) The law raises questions about implementation when lookingat how the NCAA, the conferences, states, individual universities,and student-athletes will or will not be regulated, and, as important,what regulatory scheme will be in place, and when?2) What about minor league player development? The NCAAhas received a lot of criticism for not being student-athlete friendly,but it is the National Basketball Association (NBA) and theNational Football League (NFL) that forbid high school studentsfrom entering their drafts, requiring them to go through theNCAA or a foreign league.3) Does the Fair Pay to Play Act go far enough or too far? The

Jeremy M. Evans, founder and managing attorney at California Sports Lawyer in Los Angeles, represents entertainment, media, and sports clientele.

STUDENTPLAYERS

R E W A R D I N G

BY JEREMY M. EVANS

Implementation and enforcement of the Fair Pay to Play Act raises many questions about NCAA involvement in regulation

under the new rules

act raises questions about caps on student-athlete dollars made from their names,images, and likenesses and whether suchmoney should be placed in a trust untilthe student leaves college. The law alsoraises questions about limitations on exist-ing deals made with apparel, beverage, andtech companies with the universities thatare mostly exclusive. For example, in thecollegiate environment, generally, shouldprotections be in place to allow amateurismto still exist or should the free market deter-mine all?4) The ability of a student athlete to retainan attorney or an agent is a game changer,but it also raises regulation issues and ques-tions about whether the agent or attorneyis now full or partial service. How can oneadministrator or court of law distinguishbetween advising on signing an endorse-ment deal and advising for the upcomingdraft, and should there be a distinction?5) What is amateurism in the wake of SB206? Essentially, student athletes are beingtreated like Olympic athletes who can earnrevenue while participating in the Olympicsduring school but do not lose their colle-giate eligibility.5 What does this mean goingforward? Will tension build in the lockerroom between the haves and have nots?What type of athlete does the law affect?

Compliance Issues

Implementation and enforcement of theFPPA may be the most difficult becausethese aspects have so many moving parts.How will each state comply with NCAArules, once implemented, and how will thestates comply with federal law, if imple-mented? How will individual universitiesand the conferences, specifically the PowerFive conferences, comply with federal,NCAA, and state laws and regulations?6

Lastly, how will agents, attornies, coaches,athletic directors, and the student-athletesbe regulated?

Until a scheme is in place, the new areaof business development for student ath-letes will be prospective only. Whether or not one standard is implemented, orwhether that is a good idea, universitieswill complain about unfair advantagewhen it comes to a player’s marketabil -ity in Los Angeles versus Tempe, Arizona,or Oxford, Mississippi. The FPPA alsoopens administrators, coaches, agents,attorneys, and student-athletes to NCAAinquiries, civil lawsuits, criminal investi-gations, and liability because there is nowa whole new area of business developmentthat was once illegal. Moreover, whatoccurs when a coach decides to sit a playerfor reasons other than performance, likepreventing marketing exposure, and how

could that be proven beyond the coach’sdiscretion? What happens to broadcastcopyrights when student athletes havetheir own media channels like first-personfirst sports distributed through socialmedia channels and platforms for mar-keting purposes?7

Nevertheless, the beauty of the FPPAis that it places the onus on the player tosecure endorsement deals, not the uni -versity, and therefore the marketplace willdetermine who gets paid and who doesnot. Then again, no real date has been setby the NCAA on when changes will beimplemented or how. Furthermore, Calif -ornia’s FPPA does not go into effect until2023 (when current student athletes arelikely to have graduated). It is likely years,not months, before student athletes canbegin to be paid for their names, images,and likenesses.

Minor League Development

The lack of an established minor leaguesystem for the NBA and NFL and the rulesgoverning professional drafts are the mainreasons the California Legislature and theNCAA chose to move forward with grant-ing student athletes the ability to profitfrom their names, images, and likenesses.However, NBA Commis sion er Adam Silverhas discussed the possibility of removingthe “one-and-done” rule for the NBA by2021.8 Under this rule, players who haveplayed at least one year of college basketballare eligible for the NBA draft. CurrentNFL rules permit only players who arethree years out of high school to enter thedraft. Thus, high school student athletesplaying basketball and football are requiredto go to an NCAA institution to be draftedby a professional sports franchise in theNBA and NFL. The NFL has dabbled withthe Alliance of American Football (AAF)and has challengers like the XFL,9 twice,and the Arena Football League (AFL),among others, but it does not have—andhas never really had—a true minor league.However, the NBA and the NFL utilizethe NCAA talent as its minor league poolfor talent.

The NBA has the G-League (named forits lead sponsor, Gatorade), formerly theD-League (short for Development League),but it is not a development league like theminor and development leagues of MajorLeague Baseball (MLB), the NationalHockey League (NHL), or Major LeagueSoccer (MLS). For these leagues high schoolathletes have a choice to go professional(get drafted) or go to college. If the playeris drafted, the player goes into the minorleague or development system to train forthe highest level. Because the NBA and

NFL have been unwilling to change, Cal -ifornia and the NCAA wanted to find away to compensate student athletes fortheir, names, images, and likenesses as theyattend college. That said, the new systemin which student athletes can profit fromtheir names, images, and likenesses maybe incomplete unless college athletes havea say in where and when they go pro orgo to college.

In New York, one state senator pro-posed legislation that would require theuniversities to pay student athletes dir -ect ly. More specifically, the law “‘allowsstudent-athletes to receive compensationincluding for the use of a student's name,image or likeness; allows student-ath letesto seek professional representation; re -quires colleges to establish an injured athlete fund to provide compensation toathletes for career-ending or long-termin juries’” and was amended to give a “15%share of annual revenue to student-ath-letes, which would be divided equally.”10

The provisions on paying for university-sold merchandise and use of the studentathlete’s name, image, or likeness, com-pensation for post career-ending or long-term injuries, and 15 percent of annualrevenue are clear departures from theCalifornia’s FPPA and not likely what theNCAA envisioned when it voted yes tochange in October.

FPPA Compromise

Did the FPPA go far enough? The FPPAwas a compromise considering the limi-tations on trade pursuant to the NBA andNFL drafting rules, understanding that,for the most part, academic institutionsgenerally are debt-ridden as research uni-versities not focused on business devel-opment,11 and that beyond student fees, generally, the moneymaking athletic de - part ments are in the Power Five Confer -ences, while most athletic programs aresubsidized by the university.12 Requiringuniversities to pay student athletes directlyor for past or current sales is a muchlarger type of request and a longer debate,especially given the history of student ath-lete attempts at unionization and, moreimportant, what the market will bearwhen it comes to paying student athletesto endorse a product. That said, if theNBA and NFL eliminated their draft rules,it would significantly diminish the effec-tiveness of the argument that student ath-letes should be paid when there is a choiceto go pro or enroll in college. Withoutthat rule in place, the California Legislatureand the NCAA made a compromise tofree student athletes to seek money-makingventures from their names, images, and


likenesses while attending college andplaying a sport.

With enactment of the FPPA, the ques-tion becomes how the competition andacceptance of money for names, images,and likenesses might play out in the mar ketplace. First, student athletes anduniversities are now competitors. Theseparties may now compete for the samecom panies for sponsorships and en -dorsements. For example, UCLA has a$280 million appar el dealwith sportswear companyUnder Armour.13 A stu-dent athlete would not,according to the FPPA, beable to en ter in to a con -flict ing agree ment withath letic ap parel makerNike, for ex ample. It iscon ceivable that similarlanguage would ap pear inany NCAA or universitypolicy. Section 67456(e)(1) of the FPPA states: “Astudent athlete shall notenter into a contract pro-viding compensation tothe athlete for use of theathlete’s name, image, orlikeness if a provision ofthe contract is in conflictwith a provision of the athlete’s team contract.”14

Uni v ersities have similardeals with beverage, tech, banking, andother company sponsors and therefore student athletes would have limitations on how they are able to compete in themarket.

It also is conceivable to see student athletes enter into deals that are com-pletely off the field, but the fine print ofthe underlying contracts with the univer-sities will have precedence over the studentathlete deals. In the marketplace, withouta national or even a local television audi-ence to see a player wearing or discussinga product, marketability is limited to thesocial media following of the player, whichcould be substantial for select individuals.

Student Athlete Deals

If a student athlete does land a deal,should those deals be capped in terms ofhow much money can be made and/orshould the money be placed in a trustuntil the student athlete graduates fromcollege? The question is whether studentathletes should be able to walk aroundcampus with thousands, hundreds, or mil-lions of dollars in their proverbial pockets.Will this affect team morale? Will it causeissues with performance? Regarding these

last points, a trust is something that theEd O’Bannon NCAA/EA Sports litigationdiscussed,15 but it could be a great solutionto protect amateurism while allowing thefree market to determine value.

When the NCAA allows student athletesto profit from their names, images, andlikenesses while enrolled in school andplaying sports, what are the repercussionsof that financial benefit? Professional sportsinclude both have and have-not athletes

in terms of large and league minimum contracts. Team chemistry is mostly un -harmed because there is a process and aleadership track in the locker room andon the field. Will these same principlesapply to amateurs who are not getting paida salary? Time will tell, but the answer islikely to be yes because regardless of theirstatus as amateurs, they have preparedtheir entire lives to be professionals in onearea or another.

One thing is certain: As in MajorLeague Baseball, the NFL,16 the NBA,and other professional sports leagues,player development programs that includepersonal, business, and financial training,similar opportunities will need to be avail-able as resources to student athletes oncemarketing opportunities are made avail-able to them. Arguably, it should havebeen provided sooner to help with prepa-ration, and such programs are alreadybeing made available to student athletesat universities.17 Every one needs experts,including soon-to-be college athletes readyto use their influence to profit from theirnames, images, and likenesses. A trust tohold that funding until graduation or leav-ing college is another idea that will be

considered, which may alleviate some ofthe issues discussed here. The trust ideawill also be discussed alongside caps onrevenue from the student athlete’s name,image, and likeness, but setting caps willbe the more difficult request because thatwill essentially do, in effect, what oppo-nents claimed of the old system: preventa free-market and individual decision-making process.

Somewhat lost in the shuffle of theFPPA is the allowance ofattorneys and agents toenter the pic ture, workingwith stu dent ath letes atan earlier stage. An ex -ample of how the FPPAmight play out is illus-trated by former Duke Un -i ver sity basketball playerand New Or leans Peli cansphenome non Zion Wil -liam son and his deal withGat or ade.18 The deal wassigned after he was draftedand signed with the Pel -icans. Under the FPPA, ifDuke were in Cal iforniainstead of North Carolinaand the year was 2023,Zion would have been ableto sign the Gatorade dealwhile in college and collectits proceeds. Again, how-ever, had Zion not been

forced to go to college, one could surmisethat choosing to be drafted over the NCAAwould have been the choice anyway.

Representation

In addition to timing, representation isan important issue that has evaded studentathletes by law, regulation, and possiblythe fear of getting into trouble. Underthe existing scheme, agents and attorneysmust register with a school as an advisor,register with the underlying union of theprofessional league, and file agent paper-work with the state in which they aredoing business and representing athletes.19

There are differences between attorneysand agents in terms of requirements, reg-istrations, and sometimes education, but,under the existing sports agent scheme,both are treated equally.20 However, stu-dent athletes are forbidden by the NCAAand individual university regulations fromsigning a contract with an agent or attor-ney or receiving anything of value (downto and including a car ride, lunch, a T-shirt, and the like).21 Communication isallowed, but without signing a contractand having the ability to make a deal,what would be the point?


The issues that arise are: How will agents and attorneys be regulated? Shoulduniversities and the NCAA, the likely en -forcement arm of the FPPA, care aboutwhether the agent or attorney’s servicesexpand beyond endorsements or sponsor-ships? What if the agent or attorney givesadvice on entering the draft? Should some-one be disciplined? An important addition -al concern is how best to protect some ofthe most vulnerable. Those who are leav-ing home for the first time with little tono real-world experience need protection,and the implementation and enforcementarm of the FPPA and any NCAA, state,or federal legislation will help create thatstructure. Some of that protection shouldalso come from the agent or attorney interms of giving advice when anythingseems misplaced if there is a proper regu-lation scheme in place.

Amateurism

Concerning the FPPA legislation in Calif -ornia and the NCAA decision, what is thedefinition of amateurism now? One argu-ment is that student athletes in non-Olympic sports are being treated exactlylike student athletes competing in Olympicsports in which professionals do not play.This is a sound argument because Olympicathletes in college can get paid for endorse-ments. The FPPA and NCAA are expandingthe pool of available talent. However, prac-tically speaking, how many student athletesare really going to take advantage of theFPPA or changed NCAA rules in general?Before answering that question, it is nec-essary to consider the NBA and NFL rulesregarding restrictions of age/experience onentering the draft. Also, athletes who receivethe largest sponsorship and endorsementdollars generally are playing in sports thatdo not require helmets or hats so that visu-ally the stars are more recognizable.22 Inaddition, individual sport athletes generallyearn more in endorsements than team sportathletes23 because there is no salary beingpaid by a team or franchise.

Companies looking to get into the actionwill want a return on the investment soany deal will have to make financial sense(meaning dollars given to a student athleteshould be fewer than dollars received inprospective sales and market share).

The existing market with the addedFPPA and NCAA changes will consist ofthe top one- or two-star athletes from thetop 25 to 100 colleges in the country play-ing men’s basketball and football. If themarket expands beyond that, it will bebecause the student athlete has created amarket through a strong social media fol-lowing, personality, memorable play, and/or

competitive drive. This arena also is whereagents and attorneys can help to land cer-tain deals, but, ultimately, talent wins theday. Nevertheless, companies are moreinclined to be inclusive today, so it is likelythat a company would enter into endorse-ment deals with the top female and malebasketball stars at certain colleges, or, pos-sibly with more streaming options for lesswatched sports, companies might see valuein lacrosse, volleyball, water polo, swim-ming, and even baseball, soccer, and hockey,which do have established minor leaguesystems creating options. However, thepool of talent will likely be small. Theoption for the company paying the moneyand/or giving the product, or even owner-ship to the student athlete, must be prof-itable and that pool will be limited.

The Fair Pay to Play Act in Californiahas indeed sparked a great conversation.Many are excited about the prospects ofbusiness development. However, imple-mentation and enforcement, the idea ofminor league development and draft rules,competition, representation, and the ama-teurism rules and regulations present issuesthat need to be resolved. The structure ofthe FPPA, similar laws at the federal levelor in other states, and ultimately theNCAA and university regulations andpolicies will determine the success of thisnew frontier. n

1 Enacted as EDUC. CODE §67456, with parts addedand repealed to EDUC. CODE §67457.2 California Legislative Information, SB-206 Collegiateathletics: student athlete compensation and represen-tation, available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB206.3 Steve Berkowitz and Dan Wolken, NCAA Board ofGov ernors opens door to athletes benefiting from name,image and likeness, USA TODAY, Oct. 29, 2019, avail-able at https://www.usatoday.com/story/sports/college/2019/10/29/ncaa-board-opens-door-athletes-use-name-image-and-likeness/2492383001.4 Jeremy M. Evans, Five Takeaways from the Fair Payto Play Act, SPORTS RADIO AMERICA (Jul. 15, 2019),https://sportsradioamerica.com/2019/07/15/5-takeaways-from-the-fair-pay-to-play-act.5 Id.6 Zach Bigalke, A New Approach to Assessing thePower Five Divide, Fansided, https://saturdayblitz.com/2019/12/01/college-football-new-approach-assessing-power-five-divide (Last accessed Mar. 3, 2020) 7 Jeremy M. Evans, Industry Innovations in Enter -tainment, Media, and Sports, SPORTS RADIO AMERICA

(Jan. 30, 2020), https://sportsradioamerica.com/2020/01/30/industry-innovations-in-entertainment-media-and-sports.8 Sam Amick, Move to eliminate NBA one-and-donerule gaining momentum, commissioner Adam Silversays, USA TODAY, Jul. 10, 2018, available at https://www.usatoday.com/story/sports/nba/2018/07/10/adam-silver-nba-one-and-done/773991002.9 XFL—Official Home of the XFL, https://www.xfl.com (last accessed Mar. 3, 2020).10 Charlotte Carroll, N.Y. State Senator Proposes Billto Pay College Athletes Directly, SPORTS ILLUSTRATED,

Sept. 18, 2019, available at https://www.si.com/college-football/2019/09/18/ny-senator-kevin-parker-proposes-bill-pay-college-athletes.11 Jon Marcus, Why Colleges Are Borrowing Billions,THE ATLANTIC, Oct. 10, 2017, available at https://www.theatlantic.com/education/archive/2017/10/why-colleges-are-borrowing-billions/542352.12 See, e.g., David Ridpath, Who actually funds inter-collegiate athletic programs? FORBES, Dec. 12, 2014,available at https://www.forbes.com/sites/ccap/2014 /12/12/who-actually-funds-intercollegiate-athletic-programs/#380f027517af; Brad Wolverton et al., The$10-Billion Sports Tab: How College Students AreFunding the Athletics Arms Race, THE CHRONICLE OF

HIGHER EDUCATION, Nov. 15, 2015, available at https://www .chronicle.com/interactives/ncaa-subsidies-main#id=table_2014; Steve Berkowitz and ChristopherSchnaars, Colleges are spending more on their athletesbecause they can, USA TODAY, Jul. 6, 2017, availableat https://www.usatoday.com/story/sports/college /2017/07/06/colleges-spending-more-their-athletes-because-they-can/449433001/; Tom Joyce, In collegesports, non-athletes suffer just as much as the stars onthe field, THE GUARDIAN, Oct. 16, 2019, available at https://www.theguardian.com/sport/2019/oct/16/college-sports-revenue-loss-making-programs-academics.13 Darren Rovell, UCLA announces 15-year, $280million deal with Under Armour, ESPN (May 24,2016), https://www.espn.com/college-football/story/_/id/15697609/ucla-bruins-announce-15-year-280-million-deal-armour.14 EDUC. CODE §67456(e)(1).15 William C. Rhoden, The fight that Ed O’Bannonstarted with the NCAA isn’t over yet: Division I athletesdo get scholarships and supplemental cash, but morecould be done, The Undefeated (Mar. 16, 2018), https://theundefeated.com/features/fight-ed-obannon-started-with-ncaa-basketball-isnt-over-yet.16 National Football League Players Association,Choice: Financial Security, https://www.nflpa.com/active-players/financial (Last accessed Feb. 19, 2020).17 NCAA.org, Overview of NCAA Legislation forNFLPA Financial Advisors, https://www.ncaa.org/sites/default/files/20160419Overview%20of%20NCAA%20Legislation%20for%20NFLPA%20Financial%20Advisors.pdf; NCAA.org, NCAA Student-AthleteAdvisory Committees, http://www.ncaa.org/student-athletes/ncaa-student-athlete-advisory-committees-saacs (both last accessed on Feb. 19, 2020).18 Sam Carp, Zion Williamson adds ‘seven-fig ure’ Gat -orade deal to endorsement portfolio, SPORTS PRO MEDIA,Sept. 27, 2019, available at http://www.sportspromedia.com/news/zion-williamson-gatorade-endorsement-deal.19 Jeremy M. Evans, Lawyers, Agents, and the BlurredLines Regulating Talent Representation, 34 ENTER -TAINMENT AND SPORTS LAWYER, Winter 2018, availableat https://www.csllegal.com/assets/files/entertainment-and-sports-lawyer-winter-2018-jme.pdf.20 Jeremy M. Evans, Ethical and Practical Implica -tions and differences between Sports Agents andAttorneys, 23 THE PRACTITIONER, Summer 2016, avail-able at https://www.csllegal.com/assets/files/ethical-and-practical-implications-and-differences-between-sports-agents-and-attorneys-summer-2016-jme.pdf.21 2018-2019 NCAA DIVISION I MANUAL, https://www.ncaapublications.com/s-13-Manuals.aspxs (last ac -cessed Mar. 3, 2020). 22 Kurt Badenhausen, The World’s Highest-PaidAthletes, FORBES, June 11, 2019, available at https://www.forbes.com/athletes/#4ab89f2c55ae.23 Kathleen Joyce, These athletes make more moneythrough endorsements than sports, FOX BUSINESS (June14, 2019), https://www.foxbusiness.com/features/these-elite-athletes-make-more-money-through-endorsements-versus-sports.



KEN

CO

RRA

L

year 2019 saw charges of high-profile misconduct by a justiceon the Second District Court

of Appeal and by lawyers for the City ofLos Angeles. Associate Justice Jeffrey W.Johnson was accused by the Commissionon Judicial Performance of “willful mis-conduct [and] conduct prejudicial to theadministration of justice that brings thejudicial office into disrepute.” The com-mission heard testimony by fellow JusticesVictoria Chaney and Elizabeth Grimes,court employees, lawyers, and highwaypatrol officers that Johnson had asked forsex, touched them inappropriately, exposedhimself, and made salacious remarks.1

Johnson tearfully denied the charges. In a316-page report issued on January 3 ofthis year, a panel of special masters found15 incidents constituting prejudicial mis-conduct. If removed from the bench,Johnson would be the first justice oustedfor misconduct since the commission wasformed in 1961.2

Private lawyers hired to defend the Cityof Los Angeles in class action litigationconcerning Department of Water and Pow -er (DWP) overbilling were accused of con-flicts of interests, breaching their duty ofcandor to the court, and fraud when itwas revealed they had secretly colludedwith the plaintiff’s counsel to draft thecomplaint against the city and negotiateda $67 million settlement before any dis -

covery was taken.3 Paul Kiesel, former LosAngeles County Bar Association presidentand special counsel to the city, contendedthe Office of the City At torney authorizedthe scheme, but an investigation by ethicistEllen A. Pansky found a lack of corrobo-rating evidence and concluded City At -torney Mike Feuer committed no ethicalviolations in settling the case. Her reportwas less than a full exoneration because,in the face of an FBI investigation, formerattorneys for the city and a former DWPchief pleaded the Fifth Amendment, as didthe plaintiff’s lawyer when Judge Elihu M.Berle asked if he had shared his $19 millionfee with anyone.4

The July bar exam pass rate climbedback to 50.1 percent after recent recordlows.5 Officials insisted the improvementhad nothing to do with the State Bar’s mis-taken disclosure of the essay topics andsubject of the performance test five daysbefore the exam.6 After the American BarAssociation adopted a rule requiring that75 percent of a law school’s graduates passthe bar exam within two years of gradua-tion, Thomas Jefferson School of Law lostits ABA accreditation and University ofLa Verne College of Law voluntarilybecame a state-accredited school.7

Who Is Your Client?

In Sprengel v. Zyblut,8 one of two 50-per-cent owners of a limited liability (Sprengel),

John W. Amberg is a partner in the Los Angeles office of Bryan Cave Leighton Paisner LLP and Jon L. Rewinski is a retired partner in the Los Angeles office of Locke Lord LLP. They are former chairs,and Amberg is a current member, of the Los An ge les County Bar Association’s Professional Res -ponsibility and Ethics Committee. Amberg also is a former chair, and Rewinski is a former member, ofthe California State Bar’s Committee on Pro fessional Responsibility and Conduct.

One particularly

interesting ethics

outcome in 2019

occurred when the

Dickinson v. Cosby

court ruled in favor of

Bill Cosby and his

attorney in a matter

involving application

of the anti-SLAPP

statute and attorney-

client privilege

by John W. Amberg and Jon L. Rewinski

MCLE ARTICLE AND SELF-ASSESSMENT TEST

By reading this article and answering the accompanying test questions, you can earn one MCLE legal ethics credit. To apply for credit, please follow the instructions

on the test answer sheet on page 29.

outraged at the outcome of a lawsuit shefiled against the company and other 50-percent owner (Mohr) for misappropriatingher intellectual property rights as authorto a guidebook on the side effects ofchemotherapy, sued the company’s lawyersfor legal malpractice. Sprengel alleged thatwhile the lawyers purported to representthe company, they really represented Mohr,from whom they received their informationand instructions with respect to the litiga-tion. The company’s operating agreementprovided that neither had “the authorityto bind the Company without the consentand approval of the other.”9 Nevertheless,it also designated Mohr as the “sole man-ager” authorized to “[e]xecute instrumentsand documents” and to “do and performall other acts as may be necessary or appro-priate to the conduct of the Company’sbusiness.”10

Sprengel alleged that the lawyers vio-lated fiduciary duties owed her, as a 50-percent owner, and ethical rules on avoid -ing conflicts of interests. The superior courtgranted the attorney-defendants’ motionsfor summary judgment. The appellate courtaffirmed. Citing former ProfessionalConduct Rule 3-600 (now Rule 1.13), theap pellate court found that the attorney-defendants did not have an implied attor-ney-client relationship with Sprengel basedon the totality of the circumstances.11

Sprengel never believed, nor had reasonto believe, that the lawyers were acting toprotect her personal interests. She neverspoke directly with the lawyers or sharedconfidential information with them, andshe had separate counsel. The lawyersmade clear from the beginning that theyrepresented only the company and thattheir representation was adverse to her.

In Jarvis v. Jarvis,12 one 50-percent gen-eral partner of a partnership owning twoparcels of real property sued the partner-ship and the other 50-percent general part-ner, his brother, to partition one parcel onthe grounds that the brothers could notagree on what to do with the property.The defendant brother had the partnershipretain attorney William P. Roscoe III, whohad no previous professional relationshipwith either brother. The plaintiff movedto disqualify Roscoe. The trial courtgranted the motion. The Sixth DistrictCourt of Appeal affirmed, concluding thetrial court did not abuse its discretion.13

The partnership agreement was silent ondelegating selection of the partnership’scounsel or decision-making regarding lit-igation. If Roscoe could not take instruc-tions from either brother, how would herepresent the partnership without usurpingthe client’s role? Would he be inclined to

support the brother who selected him?Wouldn’t his services merely deplete thepartnership’s assets? Under the unique cir-cumstances of this case, the Sixth Districtconcluded that, on remand, the trial courthad discretion to determine whether sep-arate counsel for the partnership wouldbe necessary at all.14

Conflicts of Interests

A court’s decision to disqualify lawyerswith a conflict of interest is discretion -ary, and cases last year illustrated thedifference that a change of court or factscan make. In The National Grange of theOrder of Patrons of Husbandry v. Cal if -ornia Guild,15 the Third District Courtof Appeal considered the case of an asso-ciate lawyer who billed 26 hours for theplaintiff National Grange at Porter Scott,and then joined Ellis Law Group, whichwas defending Calif ornia Guild in thesame state court case and a related Lan -ham Act lawsuit. In 2017, the federal dis-trict court in Sacramento declined to dis-qualify the Ellis firm from the LanhamAct suit because it had screened the lawyerfrom all litigation between the parties,thereby rebutting the presumption ofshared confidences.16

Not withstanding the ethical screen, thestate court took an opposite view and dis-qualified Ellis Law Group in two relatedcases in 2019. The Ellis firm cited Kirk v.First American Title Ins. Co.,17 for theefficacy of ethical walls, but the appellatecourt relied instead on Henricksen v. GreatAmerican Savings & Loan,18 decided 18years before Kirk, which held that dis-qualification is automatic when an attor-ney possessing actual confidential infor-mation switches sides in the same case.Ignoring the fact that the lawyers in Kirkessentially joined the opposing law firmin the same case, too, it concluded: “Theeffectiveness of the ethical wall is irrelevantto our inquiry here.”19

In a second suit brought against theEllis firm’s client by National Grange’snew state charter, California Grange, thelawyers argued there was no conflictbecause the prior firm had never repre-sented California Grange. The appellatecourt disagreed, holding that, sinceCalifornia Grange’s master had sharedconfidential information with NationalGrange’s lawyers before it was charteredand retained its own counsel, Porter Scottalso represented California Grange.20

Finally, the Third District reject ed the Ellisfirm’s ethical wall because though allegedlyput in place when the lawyer was hired,written evidence for the wall was createdlater.21

When two disqualification motions were brought against the same law firmin related lawsuits, the Second DistrictCourt of Appeal reached different results.O’Gara Coach Company and its formeremployees Joseph Ra and Thomas Wuwere sued for fraud, conversion, andunfair business practices in connectionwith the sale of luxury vehicles. O’Garaand Ra filed cross-claims against eachother, and Ra retained a former O’GaraPresident Darren Richie to represent him.Richie had graduated from law schoolbefore he worked for O’Gara and, afterhe left the company, was admitted topractice and formed his own law firm. InO’Gara Coach Co., LLC v. Ra,22 O’Garamoved to disqualify Richie as Ra’s counselon the grounds that while president, Richiewas privy to privileged information andcoordinated substantially similar matterswith outside counsel, including the in -vestigation of employees that formedthe basis for O’Gara’s cross-claim. Richieargued there was no side-switching be -cause he was not an attorney when heworked for O’Gara and any fiduciaryduty he owed as an officer could not bethe basis for disqualification.

The superior court denied the motion,but the Second District reversed. PresidingJustice Dennis M. Perluss wrote that alawyer must protect the integrity of thejudicial process and disqualification isnot limited to situa tions in which anadversary’s privileged communicationswere acquired through a former attor-ney-client relationship. Though no longeran officer, Richie had no right to discloseprivileged information without O’Gara’sconsent, and now that he was a memberof the California State Bar, he had a dutyto refrain from representing former em -ployees against O’Gara in matters as towhich he possessed material confidentialinformation.23

Seven months later, the panel reacheda different result in Wu v. O’Gara CoachCo., LLC,24 an employment discrimina-tion case. O’Gara moved to disqualifyRichie from representing its former salesadvisor Wu, contending that as presidentRichie was responsible for the company’santi-discrimination policies and would be a percipient witness at trial. Again,writing for the court of appeal, JusticePerluss reversed the lawyer’s disqualifica-tion because there was no evidence Richiehad investigated Wu’s complaints of a hos-tile work environment or discussed themwith O’Gara’s outside counsel. He wasprivy to the company’s business practicesand litigation philosophy, but knowledgeof a party’s “playbook” does not disqualify



MCLE Answer Sheet #298

2019 ETHICS ROUNDUP

Name

Law Firm/Organization

Address

City

State/Zip

E-mail

Phone

State Bar #

INSTRUCTIONS FOR OBTAINING MCLE CREDITS

1. Study the MCLE article in this issue.

2. Answer the test questions opposite by markingthe appropriate boxes below. Each questionhas only one answer. Photocopies of thisanswer sheet may be submitted; however, thisform should not be enlarged or reduced.

3. Mail the answer sheet and the $25 testing fee($35 for non-LACBA members) to:

Los Angeles County Bar Association Attn: Los Angeles Lawyer Test P.O. Box 55020 Los Angeles, CA 90055

Make checks payable to: Los Angeles County BarAssociation.

4. Within six weeks, Los Angeles Lawyer willreturn your test with the correct answers, arationale for the correct answers, and acertificate verifying the MCLE credit you earnedthrough this self-study activity.

5. For future reference, please retain the MCLEtest materials returned to you.

ANSWERS

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

1. n True n False

2. n True n False

3. n True n False

4. n True n False

5. n True n False

6. n True n False

7. n True n False

8. n True n False

9. n True n False

10. n True n False

11. n True n False

12. n True n False

13. n True n False

14. n True n False

15. n True n False

16. n True n False

17. n True n False

18. n True n False

19. n True n False

20. n True n False

MCLE Test No. 298The Los Angeles County Bar Association certifies that this activity has been approved for Minimum ContinuingLegal Education legal ethics credit by the State Bar of California in the amount of 1 hour. You may take testsfrom back issues online at http://www.lacba.org/mcleselftests.

1. Within two years of graduation, 75 percent of grad-uates from a law school accredited by the AmericanBar Association must pass a bar exam.

True.False.

2. An attorney for a company always also representsthe individual shareholders.

True.False.

3. If the partnership agreement is silent, there maybe no one who can instruct the partnership’s lawyerin a dispute among the partners.

True.False.

4. A court’s decision to disqualify a lawyer based ona conflict of interest is discretionary.

True.False.

5. An effective ethical screen may rebut the presumptionof shared confidences among lawyers in a law firm.

True.False.

6. If an ethical screen is not effective, disqualificationis automatic when an attorney possessing actual con-fidential client information switches sides.

True.False.

7.A member of the California State Bar cannot representformer employees against a company when he pos-sesses material confidential information of the com-pany.

True.False.

8. Knowledge of an opposing party’s playbook—i.e.,its business practices and litigation strategy—disqual-ifies a lawyer.

True.False.

9. An attorney who approves a client’s settlementagreement “as to form and content” may also be boundby the terms of the agreement.

True.False.

10. A lawyer’s duty of zealous advocacy in a civil casemeans he or she must allow a client to lie on thewitness stand.

True.False.

11. If a lawyer suspects, but does not know, that a wit-ness’s intended testimony may not be true, he or she

is entitled to resolve doubts about credibility in theclient’s favor.

True.False.

12. When a lawyer is compelled to withdraw from arepresentation, he or she no longer has a duty of con-fidentiality and does not need to avoid prejudice tothe client.

True.False.

13. Unlike the American Bar Association Model Rulesof Professional Conduct, in California, the duty ofcandor to the court does not override the duty of con-fidentiality to a client.

True.False.

14. A lawyer may not contact an employee of an oppos-ing represented party if the communication concernsan act by the employee that is binding on the employerfor purposes of liability.

True.False.

15. As officers of the court, lawyers should avoid hastein seeking an opposing party’s default.

True.False.

16. California courts will refer lawyers who engage ingender bias to the State Bar for discipline.

True.False.

17. Compliments on a female judge’s appearance areappreciated and do not constitute gender bias.

True.False.

18. To avoid the one-year statute of limitations forlegal malpractice claims, a client may have to sue hisor her former lawyer before a final ruling in the under-lying case.

True.False.

19. The attorney-client privilege may prevent a partyfrom obtaining evidence to prove the element of malicein a defamation claim against a lawyer.

True.False.

20. A mediator’s ownership interest in the media -tion service is never material to a party’s choice ofmediator.

True.False.

a lawyer.25 Richie’s likely testimony didnot justify disqualification because heobtained his client Wu’s informed writtenconsent under Rule of Professional Con -duct 3.7(a)(3).26

Settlement Agreements

Is a lawyer bound by terms memorializedin a settlement agreement between hisclient and another party? In Monster En -ergy Com pany v. Schechter, the Calif orniaSupreme Court concluded that he mightbe, depending on the agreement’s wordingand the parties’ intent.27 Along with co-counsel, attorney Bruce Schechter filed awrongful death action against MonsterEnergy on behalf of the parents of a 14-year-old girl who died from cardiac arrestafter drinking two energy drinks. The casesettled. The settlement agreement’s con-fidentiality clause provided:

The parties understand and ac -knowledge that all of the terms,conditions and details of this Set -tle ment Agreement including its existence are to remain confidential.Plaintiffs and their counsel agreethat they will keep completely con-fidential all of the terms and con-tents of this Settlement Agree ment,and the negotiations leading there -t o, and will not publicize or disclosethe amounts, conditions, terms, orcontents of this Settlement Agree -ment in any manner.... [¶] Spec ific -ally,... Plaintiffs and their counselof re cord...agree...to not publiclydisclose to any person...includ -ing...Law yers & Settlements...cer -tain facts related to the settlement.28

The settlement agreement also reflect -ed that its provisions were binding on“the parties and a litany of related per -sons, including the “attorneys.” Schechterwas later quoted in an article titled “‘Sub -stan tial Dollars’ for Family in MonsterEn ergy Wrongful Death Suit” posted onthe website LawyersandSettlements.com.The article remarked that Schechter couldnot re veal the exact amount paid because“Mon ster wants the amount to be sealed.”29

The article mentioned three other lawsuitsSchechter had filed against Monster Energybecause of concerns that its products wereunsafe and concluded with a link andphone number for “Monster Energy DrinkInjury Legal Help.”30

Monster Energy sued Schechter and hislaw firm for breaching the settlement agree-ment, breaching an implied covenant ofgood faith and fair dealing, unjust enrich-ment, and promissory estoppel. The attor-ney-defendants moved to strike all fourclaims. The trial court granted the motion

except as to the breach of contract claim.The Fourth District Court of Appeal re -versed the trial court’s denial of the motionwith respect to the breach of contractclaim, but otherwise affirmed.31 TheCalifornia Supreme Court reversed. Thatthe attorneys signed the �settlement agree-ment under the notation “approved as toform and content” did not preclude a fac-tual finding that the parties intended theattorneys to be bound by provisions in theagreement, such as the confidentiality pro-

vision.32 Therefore, the trial �court properlydenied defendants’ special motion to strikethe breach of contract claim. MonsterEnergy had submitted enough evidencefrom which a fact finder could concludethat the attorney-defendants breached thesettlement agreement. �

Candor to the Court

Formal Opinion No. 2019-200 of the StateBar’s Standing Committee on Profession -al Responsibility and Conduct addressesthe difficulty that may arise when a law -yer’s duty of confidentiality to her clientcollides with her duty of candor to thecourt. Under California Business and Pro -fessions Code Section 6068(e)(1) and Ruleof Professional Conduct 1.6(a), a lawyershall not reveal a client’s secrets. However,a lawyer also has a duty of candor to atribunal under Business and ProfessionsCode sections 6068(b) and (d), 6106, and6128(a), and Rule of Professional Conduct3.3, which among other things, prohibitknowingly making a false statement offact or law or offering evidence the lawyerknows to be false. Rule 1.0.1(m) defines“tribunal” to include a court, arbitrator,administrative law judge, administra tivebody acting in a judicial capacity, or spe-cial master. The key to the duty of candoris the lawyer’s knowledge. Opinion No.2019-200 advises that if a lawyer suspectsbut does not know that a witness’s intendedtestimony may not be true, he is entitled

to resolve all doubts about the credibilityof the evidence in his client’s favor.

A lawyer has a duty to vigorously rep-resent his client within the bounds of thelaw and mere suspicion does not ethicallypreclude him or her from using the evi-dence.33 However, if the lawyer has actualknowledge of falsity, he or she may notoffer the evidence and, in a civil case, canrefuse to follow the client’s instruction tosubmit perjured testimony. The lawyermust remonstrate with the client by

explaining the illegality of perjury, thepotential consequences to the client, andthe lawyer’s ethical duty to refuse.34 Ifunsuccessful, the attorney may be com-pelled to withdraw, but must do so with-out violating the duty of confidentialityand only after taking steps to avoid rea-sonably foreseeable prejudice to theclient.35

The opinion also considers a scenarioin which the lawyer first learns of perjuryafter the witness has testified. Under Rule3.3(a)(3), the lawyer must take reason -able remedial measures that may includedisclosure to the tribunal. However, un -like the ABA Model Rules in which theduty of candor clearly trumps the dutyof client confidentiality, in California, theduty of candor does not override the dutyof confidentiality.36

Consequently, the lawyer must obtainthe client’s consent to reveal the false evi-dence to the tribunal, which could possiblyharm the client and even cause him to losethe case. If the client refuses to allow thelawyer to take remedial measures, thelawyer has several options, none of themsatisfactory. He may continue to diligentlyrepresent the client and simply refuse torefer to or rely on the perjured testimony.This would be inadequate, however, if thefalse evidence is material and the attorney’scontinued involvement is construed as con-sent or endorsement. If continued employ-ment will cause the lawyer to violate the


The Fourth District Court of Appeal was

not amused. It helpfully explained that a

succubus is a demon assuming female form

that has sexual intercourse with men in their

sleep, and concluded: “[G]en der bias by an

attorney appearing before us will not be

tolerated period.”

rules, he must withdraw under rules1.16(a)(2) and 3.3, comment [8]. Since arequest to withdraw may be denied, andmerely seeking withdrawal, whether ornot granted, may prejudice the client’scredibility, the lawyer should warn theclient of the consequences of refusing tocorrect the record.

Litigation Privilege

The litigation privilege, codified in CivilCode Section 47, generally applies to com-munications made in judicial or quasi-judi-cial proceedings by litigants and theirlawyers to achieve the objects of the liti-gation and have some connection or logicalrelation to the action. In Strawn v. Morris,Polich & Purdy, LLP,37 a couple sued theattorneys representing State Farm afterState Farm denied coverage for fire damageto the couple’s home and pickup truck onthe ground that the husband had set thefire. The couple sued State Farm’s attorneysfor invasion of �privacy, among otherclaims, because the attorneys had disclosedthe couple’s tax returns to State Farm andits forensic �accountants. The couple allegedthat the tax returns were inadvertentlygiven to State Farm’s attorneys when StateFarm was assessing the couple’s insuranceclaim.

The First Appellate District concludedthat the trial court erred in sustaining theattorney-defendants’ demurrer to the inva-sion of privacy claim. The trial court erro-neously relied on the litigation privilege.Although the couple’s invasion claim wasbased on a communication (disclosing theirtax returns), whether the communicationwas made at a time when imminent liti-gation was actually contemplated was afactual issue precluding the trial court fromdeciding the applicability of the litigationprivilege on demurrer.

Contact with a Represented Party

In Doe v. Superior Court,38 a female stu-dent-employee in the campus police depart-ment of Southwestern College sued thecommunity college district and three districtemployees for sexual harassment andassault. She alleged that two other districtemployees had also been harassed. Plain -tiff’s attorney contacted one of them inadvance of her deposition. The district hadoffered to provide counsel to the witness,but at the time of the contact she had notaccepted or retained counsel. The trialcourt disqualified plaintiff’s lawyer forcommunicating with “a person the lawyerknows to �be represented by another lawyerin the matter” in violation of Rule ofProfessional Conduct 4.2.39

The court of appeal reversed, finding

that the trial court had abused its discretion.Because the college district is a governmen-tal organization, Rule 4.2 only prohibitedplaintiff’s attorney from contacting a currentdistrict employee if “the subject of the com-munication [was] any act or omission ofsuch person…which may be binding uponor imputed to the organization for purposesof civil or criminal �liability.” The personcontacted was a purported percipient wit-ness to another employee’s wrongful act.The witness herself did not commit anyact or omission that could be binding uponor imputed to �the district. Thus, rule 4.2was inapplicable.�

Civility

Justice William Bedsworth of the FourthDistrict Court of Appeal delivered a lessonon civility in LaSalle v. Vogel.40 LaSallesued her lawyer Vogel for malpractice afterher lawsuit was defaulted as a terminatingsanction for failure to provide discovery.Thirty-six days after serving the complaint,having received no response, LaSalle’slawyer sent Vogel a letter and an e-mailstating that her response was past due andthreatening to take her default unless aresponsive pleading was filed by the nextday, a Friday. He waited until Mondayafternoon and then filed a request for entryof default and e-mailed it to Vogel. Toolate, Vogel asked for an extension of time,so she filed a motion to set aside the default,explaining she was a single mother in themiddle of a divorce and was preoccupiedbecause her husband had failed to paytheir property taxes or mortgage, puttingher home in jeopardy. Taking note of herprevious instances of discipline, the courtdenied the set-aside motion, and a defaultjudgment was entered against Vogel for$1 million.

The court of appeal held the superiorcourt had abused its discretion and re -versed. It chastised opposing counsel forfailing to heed Code of Civil ProcedureSection 583.130: “[A]ll parties shall coop-erate in bringing the action to trial or otherdisposition.”41 Though this chain of eventsmight not offend the average litigator, thatwas the problem, Justice Beds worth sug-gested: Courts and counsel “have lost sightof the fact that the practice of law is not abusiness. It is a profession.”42 The ordermust be reversed because it overlookedthe significance of being an officer of thecourt, “with all of the assumptions ofhonor and integrity that append to it.”43

The appellate court decried what itviewed as the unseemly haste with whichdefault had been sought and without suf-ficient notice.44 Using unreliable e-mail togive warning is hardly distinguishable from

stealth, and the court noted the lack ofprejudice to LaSalle from a set-aside, andthe inappropriate damage award in a com-plex malpractice case. The superior courtwas faulted for giving less weight to Vogel’spersonal troubles than to her prior disci-pline, which should not have coloredwhether she deserved an extension.45

Lawyers Behaving Badly

Under Business and Professions CodeSection 6068(b), an attorney has a dutyto maintain respect for judicial officers.Last year, lawyers paid a price for mani-festing gender bias towards judges, by bothsnarky insults and fulsome praise. In Mar -tinez v. O’Hara,46 plaintiff’s counsel Ben -jamin Pavone filed a notice of appeal froma “disgraceful order” by the female trialjudge. Letting rip with a purple pen, hecontinued: “The ruling’s succubistic adop-tion of the defense position, and resultingvalidation of the defendant’s pseudo -hermaphroditic misconduct, prompt oneto entertain reverse peristalsis unto its fourcorners.”47

The Fourth District Court of Appealwas not amused. It helpfully explainedthat a succubus is a demon assuming female form that has sexual intercoursewith men in their sleep, and concluded:“[G]en der bias by an attorney appearingbefore us will not be tolerated, period.”48

The lawyer also falsely suggested the trialjudge had attempted to thwart service of the signed judgment to evade appel -late review, and without any evidence,repeatedly accused the judge who deniedhis motion for attorneys’ fees of “inten-tionally” refusing to follow the law.49 Cit -ing its duty under Canon 3D(2) of theCalif ornia Code of Judicial Ethics toreport lawyer misconduct, the appellatecourt referred Pavone to the State Bar fordiscipline.50

After Keith Chow posted a Facebookcomment that motivational speaker Cyn -thia Briganti was a convicted criminal andhad stolen the identities of thousands ofpeople, Briganti sued him for defamationand intentional interference with prospec-tive economic advantage. In Briganti v.Chow,51 the trial court granted Chow’santi-SLAPP motion to strike the intentionalinterference claim but denied the motionas to the defamation claim. On appeal,the order was affirmed by the SecondDistrict Court of Appeal, which concludedits opinion with “A Note on Civility,Sexism and Persuasive Brief Writing.”52

Saying it was taking advantage of a teach-able moment, and “not to punish or embar-rass,” the court referred to the brief ofChow’s counsel Jan Stanley Mason which


described the trial judge as “an attractive,hard-working, brilliant, politically well-con-nected judge on a fast track for the Calif -ornia Supreme Court or Federal Bench.”53

At oral argument, the lawyer said heintended to compliment the judge, but theSecond District concluded the brief reflectedgender bias and disrespect for the judicialsystem.54 It explained that calling a womanjudge “attractive” is inappropriate becauseit is both irrelevant and sexist. Objectifyinga member of the profession “is uncivil andunacceptable” and “demean[s] the seriousbusiness of this court.”55 The court saidit would not report the lawyer to the StateBar but would call out gendered incivilityfor what it is and insist it not be repeated,adding that it did not find the peculiarstyle and content of the paragraph “appro-priate, helpful, or persuasive.”56

Malpractice

If a matter involves a client’s investment,the lawyer’s engagement letter shouldexplicitly exclude from the engagement’sscope giving investment advice, as illus-trated in Shim v. Lawler.57 The U.S. Im -migrant Investor Program (also known asthe EB-5 program) provides legal perma-nent residency in the United States to for-eign nationals who invest in a qualifiedU.S.-based project. In Shim, three foreignnationals, who ultimately obtained greencards, sued their immigration lawyer andlaw firm in federal court for legal mal-practice, breach of fiduciary duty, fraud,violations of California’s securities lawand Unfair Competition Law, amongother claims, for monetary losses on theirinvestments in EB-5 projects. The lawyersand law firms moved for summary judg-ment. Citing the engagement letter, JudgeEd ward M. Chen of the Northern Districtof California granted the motion. In ad -dition, there was no evidence of mis -representations by the lawyers about theproject’s business prospects, an intent tode fraud, or causation.58

Obtaining a default judgment can betricky, as illustrated in Sharon v. Porter.59 �In 2008, attorney Porter obtained a de -fault judgment on behalf of client Sharon.In 2014, Sharon retained a new attorneyto enforce the judgment. In October 2015,the judgment debtor’s lawyer wrote Shar -on’s new lawyer a letter claiming thedefault judgment was void because theunderlying complaint failed to specify theamount of damages sought. In November2015, Sharon’s new lawyer told attorneyPorter about the problem. In October2016, the superior court vacated the de -fault judgment. In May 2017, Sharon suedPorter for malpractice. Following a bench

trial on stipulated facts, the superior courtentered judgment for Sharon. The FourthAppellate District reversed. Sharon’s claimwas barred by the one-year statute of lim-itation under Code of Civil ProcedureSection 340.6(a). Sharon had discoveredthe relevant facts by October 2015. ByNovem ber 2015, she had suffered actualinjury because the value of the default judg-ment became impaired, even though thedefault judgment itself was not vacateduntil October 2016. In reaching this con-clusion, the court admitted that it putSharon in the awkward position of havingto file a malpractice lawsuit about a defaultjudgment prior to the superior court’s con-firming that the judgment was indeedvoid.60

Anti-SLAPP Statute

The anti-SLAPP statute61 empowers a courtto strike a cause of action based on pro-tected petitioning activity, including writtenstatements made in a public forum in con-nection with an issue of public interest. Ifa moving party establishes the claim arosefrom protected petitioning activity, theburden shifts to the nonmoving party toestablish a probability of prevailing on thechallenged claim by showing the claim hasminimal merit.

In Abir Cohen Treyzon Salo, LLP v.Lahiji,62 a law firm sued Arta Lahiji, the daughter of a former client, NahidLahiji, for defamation based on Inter netposts criticizing the law firm’s handlingof a homeowner’s insurance claim for the mother. Calling the firm “underhandedand shady” and “unprofessional and un ethical,” a Yelp post by “AI L.” withthe daughter’s photo, complained that thelaw firm used a law student “case man-ager” to negotiate with the insurer, didnot communicate appropriately withrespect to expenses, improperly deductedexpenses, and withheld disbursementslonger than necessary.63 The post warnedreaders to “stay away from this firm.”64

A couple days later, an anonymous userposted an identical review on Avvo. A fewweeks later, identical reviews appeared on the firm’s Facebook page, purportedlyby “Angela Helder,” on Ripoff Report by“Nancy” in Redondo Beach, and onGoogle by Nahid.65 The law firm believedthat the daughter created the postings.Although Nahid (the mother) advised thelaw firm that she had posted the reviews,the law firm did not sue her. The daughterfiled a special motion to strike under theanti-SLAPP statute. The trial court grantedthe motion, struck the defamation claim,and awarded the daughter about $37,000in fees for prevailing on the motion. The

appellate court affirmed. Given the com-plaint’s allegations, the conduct arose fromprotected petitioning activity. The law firmfailed to demonstrate minimal merit to itsclaim. It failed to make a prima facie show-ing that the daughter, as opposed to themother, was legally responsible for thepostings.

In Dickinson v. Cosby,66 a former mod -el/television personality sued dis gracedcomedian Bill Cosby and his former at -torney, Martin Singer, for def am ationbased on statements in Singer’s demandletter and three press releases at tackingwomen, including plaintiff, claiming tohave been drugged and raped by Cosby.On remand following an ini tial appeal,67

Singer and Cosby moved to strike Dickin -son’s amended defamation claim underthe anti-SLAPP statute. The trial courtgranted attorney Singer’s motion becauseDickin son failed to prove that Singer actedwith malice, a necessary element of herdefamation claim. The trial court notedthat Dickinson probably could not provemalice because Dickinson would essen-tially have to show that Cosby admittedto Singer that he had drugged and rapedthe women—an admission, even if it hap-pened, would be shielded from disclosureby the attorney-client privilege or thework product doctrine.68 Dickinson didnot appeal this ruling.

The trial court denied in part andgranted in part Cosby’s motion to strikethe defamation claim. Citing the law-of-the-case doctrine, the trial court declinedto revisit alleged statements that the courtof appeal previously found Dickinson couldprobably prove. With respect to the otherallegations, the trial court reasoned thatits ruling as to the lack of evidence provingSinger’s malice “does not automaticallylet Cosby off the hook.”69 Rather, analyz-ing each allegedly defamatory statement,the trial court found some to be nonac-tionable opinions. For others, Dickinsonprovided sufficient evidence that Cosbyapproved, authorized, and/or ratifiedSinger’s statements and that the statementswere false and defamatory.

Arbitration

In Monster Energy Co. v. City Beverages,LLC,70 the Ninth Circuit vacated an arbi-tration award in a commercial arbitra tionbecause of evident partiality. MonsterEnergy terminated one of its exclusive dis-tributors, Olympic Eagle. Olympic Eagleclaimed the termination was wrongful andwithout good cause. The distributor shipagreement required adjudication of disputesthrough JAMS. The parties chose theHonorable John W. Kennedy, Jr., a retired


judge from the San Bernardino SuperiorCourt, to serve as arbitrator. Prior to hisselection, Judge Kennedy submitted a dis-closure statement in accordance withJAMS’s rules. Among other things, it dis-closed that Kennedy had arbitrated a dis-pute between Monster Energy and anotherdistributor, resulting in a $400,000 awardagainst Monster, that he or JAMS hadbeen contacted by one of the partiesregarding prospective employment, andthat, like all JAMS neutrals, he had afinancial interest in JAMS’s success.71

Consistent with JAMS’s practice, however,Kennedy did not disclose that, like aboutone-third of all JAMS neutrals, he was ashareholder-owner of JAMS, nor the factthat within the last five years JAMS hadadministered 97 arbitrations involvingMonster Energy.72

At the conclusion of the arbitration,Kennedy denied Olympic Eagle’s claimand awarded Monster Energy its fees.The Ninth Circuit vacated the award.Judge Kennedy’s ownership in JAMS wassufficiently substantial and JAMS’s busi-ness dealings with Monster Energy werenontrivial. Therefore, these facts shouldhave been disclosed. The failure to dis -close created an impression of possiblebias. Circuit Judge Michelle T. Friedlanddissented, reasoning that the additionalinformation would not have made anymaterial difference in the parties’ arbi-trator selection.73 n

1 Justice Jeffrey Johnson’s Disciplinary Case Is UnderSubmission, METROPOLITAN NEWS ENTERPRISE, Oct.31, 2019, at 1.2 Special Masters’ Findings of Fact and Conclusionsof Law, Inquiry Concerning Justice Jeffrey W. Johnson,Commission on Judicial Performance No. 204, filedJan. 3, 2020.3 FBI raids, dropped suit and stonewalled depositionsmarked LA water bill tangle this year, L.A. DAILY J.,Dec. 26, 2019.4 LA city attorney issues new rules after probe clearshim in billing litigation scandal, L.A. DAILY J., Oct.24, 2019; Report of Ellen A. Pansky Regarding LegalEthics Issues in Connection with Antwon Jones v. Cityof Los Angeles Submitted to the Los Angeles CityAttorney’s Office Oct. 22, 2019.5 Press Release, State Bar of Cal., State Bar of CaliforniaReleases July 2019 Bar Exam Results (Nov. 15, 2019),available at www.calbar.ca.gov.6 Cheryl Miller, Slim Majority of Test-Takers PassedCalifornia’s July Bar Exam, THE RECORDER, Nov. 15,2019.7 Several California law schools faced struggles in2010, L.A. DAILY J, Dec. 27, 2019.8 Sprengel v. Zbylut, 40 Cal. App. 5th 1028 (2019).9 Id. at 1032.10 Id. at 1032-33.11 Id. at 1047-48.12 Jarvis v. Jarvis, 33 Cal. App. 5th 113 (2019).13 Id. at 121.14 Id. at 1415 National Grange of the Order of Patrons ofHusbandry v. Cal. Guild, 38 Cal. App. 5th 706 (2019).

16 National Grange v. Cal. Guild, Cer-No. 2:16-201WBS DB (E.D. Ca. May 11, 2017); J. Amberg and J.Rewinski, 2017 Ethics Roundup, L.A. LAWYER, Apr.2018 at 23.17 Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th776 (2010).18 Henricksen v. Great Am. Sav. & Loan, 11 Cal.App. 4th 109 (1992).19 National Grange, 38 Cal. App. 5th at 717.20 Id. at 720.21 Id. at 721.22 O’Gara Coach Co., LLC v. Ra, 30 Cal. App. 5th1115 (2019).23 Id. at 1128-29.24 Wu v. O’Gara Coach Co., LLC, 38 Cal. App. 5th1069 (2019).25 Id. at 1082-84.26 Id. at 1084-85.27 Monster Energy Co. v. Schechter, 7 Cal. 5th 781(2019).28 Id. at 786.29 Id. at 787.30 Id.31 Id. at 787.32 Id. at 795.33 State Bar of Cal., Standing Comm. on Prof’lResponsibility & Conduct, Formal Op. 2019-200, p.3.34 Id. at 5.35 Id. at 6.36 Id. at 7, n.13.37 Strawn v. Morris, Polich & Purdy, LLP, 30 Cal.App. 5th 1087 (2019).�38 Doe v. Superior Ct., 36 Cal. App. 5th 199 (2019).39 Id. at 202.40 LaSalle v. Vogel, 36 Cal. App. 5th 127 (2019). 41 Id. at 130

42 Id. at 134 (emphasis in original).43 Id. 44 Id. at 137-38.45 Id. at 138-40.46 Martinez v. O’Hara, 32 Cal. App. 5th 853 (2019).47 Id. at 857.48 Id. at 855.49 Id. at 857-58.50 Id. at 858.51 Briganti v. Chow, 42 Cal. App. 5th 504 (2019).52 Id. at 510.53 Id. at 510-11.54 Id. at 511. 55 Id. 56 Id. at 512.57 Shim v. Lawler, No. 3:17-cv-04920 EMC, 2019WL 2996443 (N.D. Cal. July 9, 2019).58 Id. at *16-*17.59 Sharon v. Porter, 41 Cal. App. 5th 1� (2019).60 Id. at 6.61 CODE CIV. PROC. §425.16. SLAPP is an acronymfor strategic lawsuit against public participation.62 Abir Cohen Treyzon Salo, LLP v. Lahiji, 40 Cal.App. 5th 882 (2019).63 Id. at 885.�64 Id. 65 Id. at 886.66 Dickinson v. Cosby, 37 Cal. App. 5th 1138 (2019)(“Dickinson II”).�67 Dickinson v. Cosby, 17 Cal. App. 5th 655 (2017).68 Dickinson II, 37 Cal. App. 5th at p. 1151.69 Id. at 1152.70 Monster Energy Co. v. City Beverages, LLC, 940F. 3d 1130 (9th Cir. 2019).�71 Id. at 1136.72 Id.73 Id. at 1140.



HA

DI F

ARA

HA

NI

Everyone has seen the headlines: thebicyclist who ends up in the emer-gency room (ER) after an accident,

and then wakes up to a $20,243 hospitalbill, or the patient who carefully selectsan in-network hospital for a plannedsurgery but still receives a substantialinvoice from a doctor who is out-of-net-work. These are examples of “surprisebilling,” when a patient has health insur-ance but is responsible for a significantout-of-pocket, unexpected liability. It isan increasingly hot topic, so much so thatsince mid-2018, National Public Radiohas published a special series that it callsthe “Bill of the Month.”1 Moreover, theonline publication Vox devotes an entiresection of its website to ER bills, which,in fact, helped generate recent legislativeinterest in surprise billing.2

To understand why surprise billing happens and what can be done to minimizeit, it is important to understand the com-plexities of the law that governs healthinsurance in California. Due to the frag-mented way in which private health careis financed in the United States, there isno single answer as to how surprise billingcan be avoided. Proposed legislative solu-tions at both the state and national levelshave also been caught up in a debate aboutthe appropriate solution. Is it enough to

hold the patient harmless from surprisebills? Or should the state legislature (orCongress) also regulate the default reim-bursement rates that are paid to healthcareproviders in a surprise billing scenario?Short of rate regulation, what kind of alter-native dispute resolution options shouldbe made available for providers and payorsto work out their disagreements over pay-ment? Which solutions will drive the bestoutcomes for patients? And which solutionswill get the greatest support from healthproviders and insurers? These are the keyquestions.

What is Surprise Billing?

There are two traditional surprise billingscenarios. The first occurs when a patientis treated in an emergency room and thehospital does not have an agreement withthe patient’s health insurer on rates (e.g.,is out-of-network). Patients do not havecomplete control over which hospital theywill be taken to in an emergency, especiallyif they arrive by ambulance. Because thehospital is not under contract with the in -surer, if the insurer does not pay a fair oradequate amount, the hospital can send abill to the patient for the balance of itscharges that are not paid by the insurer.The unpaid balance often far exceeds thepatient’s “cost sharing” responsibility (i.e.,

co-insurance, deductibles, and copayments).For example, after a patient is seen in

a hospital’s emergency room, the hospitalbills the patient’s health plan $8,000 forthe services it provided, which may includethe use of an observation room, as wellas charges for an x-ray and CT scan. Thehospital is not contracted with the insur-ance plan. The plan “allows” $5,000,issues a check to the hospital for $4,000,and assigns the remaining $1,000 to thepatient’s co-insurance. That $1,000 is thepatient’s “cost sharing” responsibility.However, depending on the circumstances,the patient may also be responsible for theunpaid balance of the hospital’s bill, inthis instance, $3,000.

A second scenario is represented by apatient who is seen at an in-network hos-pital but is treated by a doctor at that hos-pital who is out-of-network with thepatient’s health insurer. Again, the patientdoes not have complete control over thedoctors that end up treating him or her.Thus, the patient may not know whetherthose doctors are in-network. Because indi-vidual physicians bill for their medical ser-

Eric D. Chan is a litigation partner, Bridget A. Gordona senior counsel, and Annalee M. Clubb an asso- c iate in the Los Angeles office of Hooper, Lundy &Bookman P.C.

ANOTHER KIND OF

MEDICALSHOCKDespite national bipartisan agreement on the need for surprise billing legislation, all 2019 congressional proposals failed

by ERIC D. CHAN,BRIDGET A. GORDON,

and ANNALEE M. CLUBB

vices separately from the bill the hospitalsends, a patient may receive a bill for thebalance of the physician’s charges that theinsurer has declined to pay.

There are nuanced variations on eachof these scenarios (as well as other scenariosnot discussed here, e.g., those that involveelective medical procedures on an outpatientbasis), but these two examples are the pri-mary ways in which surprise billing arises.

According to a January 2017 study, approx-imately one in five inpatient emergencydepartment cases may lead to surprise bills.3

Prospect Medical and AB 72

California has been a leader in the countryin placing restrictions on surprise billing.In 2009, the California Supreme Courtissued a landmark decision, Prospect Med -ical Group, Inc. v. Northridge Emerg encyMedical Group.4 In Prospect, the court heldthat health care providers may not billpatients who are covered by health planscovered by the Knox-Keene Health CareService Plan Act of 1975, which in cludesmost health maintenance organiz ation(HMO) plans in California.5 The supremecourt reached this result because it foundthat the Knox-Keene statutory scheme, whenviewed as a whole, “intends to transfer thefinancial risk of health care from patientsto providers.”6 Thus, it concluded that“doctors may not bill a patient for emer-gency services that the HMO is obligatedto pay. Balance billing is not permitted.”7

While the Prospect decision providessignificant protections for HMO patientsin California, it does not extend to allcommercial health insurance issued inCalif ornia.8 Notably, it does not apply to health insurance policies governed by the Calif ornia Department of Insurance(CDI)—California is possibly the onlystate to have two health insurance regu-lators; the other being the Department ofMan aged Healthcare (DMHC), whichoversees health care service plans regulatedby the Knox-Keene Act. Similarly, Prospectdoes not extend to bills for nonemergencycare. Nor does Prospect extend to patientswith out-of-state health coverage or cov-erage under an employer-sponsored, self-funded plan. Recent California legislation,however, provides a partial answer to thesesizeable gaps.

On September 23, 2016, CaliforniaGovernor Jerry Brown signed AssemblyBill 72 into law.9 The protections of AB72 became effective on July 1, 2017, andthey apply to both DMHC-regulated andCDI-regulated health insurance policies.AB 72 prohibits surprise billing by out-of-network physicians—for example, anes-thesiologists, radiologists, and surgeons—when they provide nonemergency care to

a patient at an in-network hospital.10

As one example, a patient may go to ahospital facility that is in-network withthe patient HMO in order to undergo asurgical procedure. Prior to AB 72, if theanesthesiologist for the procedure was notcontracted with the patient’s health planand the health plan failed to pay a fair andreasonable amount, the anesthesiologistcould send a bill for the balance to thepatient, which might very well be a surpriseto the patient who believed he or she waschoosing in-network healthcare providers.Under AB 72, however, “non-contractingindividual health professionals” are pro-hibited from collecting more than the “in-network cost-sharing amount”—meaningthe co-payments, deductibles, and co-insur-ance—from patients.11 This is significantbecause out-of-network cost-sharing levelsare often much higher than in-networklevels.

Furthermore, AB 72 also requires in -surers to reimburse noncontracting phys -icians at a specified rate, namely, the greaterof the average commercial contracted rateor 125 percent of the amount Medicarereimburses on a fee-for-service basis forthe same or similar services in the generalgeographic region in which the serviceswere rendered.12 Doctors who believehigher payment is warranted must part -icipate in an “Independent Dispute Reso -lution Process” (IDRP) before the appli -cable regulator, CDI or DMHC.13 Underthe IDRP, the out-of-network provider mustcomplete the health plan’s internal processfor submitting and reviewing claims.14 Sub -sequently, if the provider still disagrees withthe amount of reimbursement, it can appealthe decision to IDRP. The decision obtainedthrough IDRP is binding on both partiesand must be implemented by the plan.15

However, if either party remains dissatisfied,either the pro vider or plan may pursue any

right or remedy established under otherapplicable law.16

A challenge to AB 72 was immediatelylaunched in federal court by a physicians’association, which argued that the law vio-lated the Due Process, Takings, and EqualProtection clauses of both the U.S. andCalifornia constitutions.17 The plaintiffhad two primary concerns: first, that thespecified payment rate (the greater of the

average contracted rate or 125 percent ofMedicare rates) would unfairly limit whatphysicians could be paid under the newlaw, and, second, that such default rate-setting would incentivize health plans tostop contracting with doctors or terminateexisting contracts or possibly both. InMarch 2018, the district court ruled thatthe challenge by the plaintiff was prema-ture.18 It agreed that certain aspects of AB72 “appear troubling at this early stage”and that “from a practical perspective, itseems more likely that in practice thoserates will end up acting as a ceiling ratherthan a floor.”19 However, because the asso-ciation did not plead that it was “unableto reach agreements with health-insuranceplans or pursue the dispute-resolutionprocess,” the court held that the doctors’claims were speculative.20

The association then added anotherplaintiff, a doctor who alleged that herrevenues had declined by 25 percent fol-lowing the passage of AB 72.21 The districtcourt again rejected the claims because theplaintiffs had still failed to plead facts thatwould tend to show that the rates set byAB 72 were confiscatory. 22 For instance,plaintiffs had not shown an “inability…to reach agreements for reasonable com-pensation with health care service plans.”23

Nor had they pled that attempts to engagein the IDRP had been unsuccessful.24 Thus,the court was unable to find, on the factsthat had been pled, that the IDRP was so“cost-prohibitive” or “burdensome” as todeprive plaintiffs of due process.25 Itacknowledged that plaintiffs “may even-tually be proven correct once the Act isactually applied to certain physicians” butheld that it was not enough, without more,that the physician’s revenue had declined.26

The court ultimately agreed to dismiss thechallenge without prejudice, given thatplaintiffs in large part had failed on stand-


Regardless of the ultimate outcome in the California Legislature, a state-only solution will not be a complete answer to surprise billing because manykinds of private health insurance are not governed by California law (or thelaw of other states).

ing grounds.27 This procedural resolutionleaves the door open to potential futurechallengers who are able to plead and provesuch facts.

In the two and a half years since AB72 went into effect, a number of trendshave become apparent. First, the law doesseem to have reduced the incidence of surprise billing by out-of-network physi-cians at in-network hospitals with respectto DMHC- and CDI-governed health in -surance policies.28 Nevertheless, there isalso significant anecdotal evidence that, atleast for doctors in certain specialties, AB72 has caused plans to be less willing tocontract with physicians in lieu of payingthe default rates set by the statute. In aletter to the U.S. Congress, dated July 10,2019 (which characterized AB 72 as a “failing law”), the California MedicalAssociation provided numerous examplesof medical groups who either faced steeprate cuts, contract termination, or both.29

Ad ditionally, a number of physicians havebegun utilizing the IDRP, though data onoutcomes are not yet publicly available.

The results of California’s enactmentof AB 72 have been hotly debated, in part,because the results inform the debate oversimilar legislation at the state and nationallevel. It is important to keep this largercontext in mind when examining the stateof legislation on surprise billing.

AB 1611 Fails to Pass

On February 22, 2019, AssemblymanDavid Chiu (D-San Francisco) introduceda bill, AB 1611, that would prohibit sur-prise billing by out-of-network hospitals.30

The bill was spurred, in part, by Vox’s cov-erage of surprise billing by Zuckerberg San Francisco General Hospital.31

The design proposed for AB 1611 wasto expand the framework established byAB 72 and Prospect. As with AB 72, thenew bill would limit out-of-network hos-pitals from collecting more than the in-network cost-sharing amount from patients.Furthermore, similar to AB 72, it wouldimpose a default rate for hospital emer-gency services and require hospitals toengage in the IDRP mechanism if theywere dissatisfied with payment.32 The billwas the subject of intense controversy. Itwas amended several times and was suc-cessfully voted out of the appropriationsand health committees before ultimatelyending up stalling midyear.33

The key sticking point was not the pro-hibition on surprise billing, which everyone,including hospitals, agreed was a goodthing.34 Rather, the trade association forCalifornia hospitals objected to the rate-setting provisions, which it viewed not only

as unnecessary but also as creating a strongdisincentive to health plans to enter intocontracts with hospitals.35 In fact, theCalifornia Hospital Association indicatedthat if the rate-setting provision wereremoved, it would support the bill.36

As semblyman Chiu and his co-sponsor,Cal ifornia State Senator Scott Wiener,responded by withdrawing the bill fromconsideration, and promising that it wouldbecome a “two-year bill” that would beconsidered further in 2020.37

Debate Over a National Solution

Regardless of the ultimate outcome in theCalifornia Legislature, a state-only solutionwill not be a complete answer to surprisebilling because many kinds of private healthinsurance are not governed by Californialaw (or the law of other states). Employer-sponsored insurance, in particular, is gov-erned by federal law, primarily the Em -ployment Retirement Income Security Act(ERISA). Private employers frequentlychoose to purchase group health insurancecoverage for their employees, which is sub-ject to state regulation, though ERISAapplies as well.38 However, many largeemployers, especially in the 1,000 to 5,000+employee market, choose to self-fund theiremployee health benefits. ERISA vigorouslypreempts state laws that seek to regulatesuch self-funded health plan arrangements,especially those that “intrude[] upon ‘acentral matter of plan administration’ [or]‘interfere[] with nationally uniform planadministration.’”39 Moreover, as a generalproposition, balance billing by healthcareproviders is permitted under ERISA.40

Thus, any comprehensive solution to sur-prise billing cannot rely on state legislationalone but will also require legislationenacted at the national level.

The Affordable Care Act, passed in2010, provides some baseline protections.Section 2719A of the Public Health ServicesAct, in particular, requires that when emer-gency services are provided out-of-network,the patient’s cost-sharing must be limitedto no more than the in-network level. Thisis not a complete solution because, as notedabove, patients can still be balance-billedin most out-of-network situations. If ahealth plan sets the level of out-of-networkpayment too low, that defeats the purposeof Section 2719A. Modest in-network costsharing aside, a large balance bill wouldstill result. Thus, the implementing regu-lations for Section 2719A also establish aminimum level of payment that a planmust provide for out-of-network emergencyservices based on the greatest of three pay-ment amounts (the “Greatest of Three”Rule).41 The Greatest of Three Rule was

intended to establish a floor on reimburse-ment for out-of-network emergency ser-vices.42 This, however, is not the same asprohibiting surprise or balance billing inits entirety.

A great deal of federal surprise billinglegislation was proposed in 2019, but nonewas ultimately passed. In the first half of2019, there were several major bipartisanproposals, including the No Surprises Act,sponsored by the House Energy andCommerce Committee; the Stopping theOutrageous Practices of Surprise MedicalBills (STOP) Act, sponsored by SenatorBill Cassidy (Republican from Louisiana),Maggie Hassan (Democrat from NewHampshire), and others; and the LowerHealth Care Costs Act of 2019, sponsoredby the Senate Health, Education, Laborand Pensions Committee. These proposalsvaried in the range of services covered(including emergency in addition to post-stabilization and other nonemergency ser-vices), the level of payment to out-of-net-work providers, and the processes availablefor dispute resolution. Despite the wide-spread bipartisan agreement on the needfor surprise billing legislation, none of theproposals advanced beyond Congress’sAugust recess.

Then, unexpectedly, in November andDecember, there was a renewed push topass surprise billing legislation as part ofa federal funding package due at the endof December.43 After high-level talks involv-ing numerous House and Senate commit-tees, and the reported personal involvementof Speaker Nancy Pelosi and Senator ChuckSchumer, among others, no agreement ona final proposal was reached.44 Congressnonetheless has resumed work on surprisebilling in 2020.45

Not surprisingly, the proliferation ofproposals has led to a wide variety ofapproaches. A key question facing any sur-prise billing legislation is whether and howto set “benchmark” or “default” paymentrates for out-of-network providers orwhether instead to require providers andpayors to engage in arbitration to resolvepayment disputes. Another important issueis how any federal legislation will interactwith existing state regulations and statesurprise billing solutions.

Surprise billing is a complicated problemwith many causes and, to date, a patchworkof incomplete solutions. A few things areclear, though. First, California’s experiencewith AB 72 has and will continue to serveas a source of practical experience forfuture legislation, both here and across thecountry.

Second, much of the debate around sur-prise billing legislation has been around


the setting of default or benchmark reim-bursement rates. It is very much worthasking whether such efforts are truly nec-essary to stop surprise billing. It is veryhard to set rates correctly by statute; ifrates are set too low, health plans may verywell decide not to contract with hospitalsand doctors—surely an unintended sideeffect. There is also no guarantee settingdefault or benchmark rates will lead tolower insurance premiums. While settinga default level of reimbursement may makesense in a context in which balance billingis allowed (for instance, as with the Greatestof Three methodology), that is not an issuehere, where any proposed legislation willban surprise billing itself. It seems that leg-islative rate-setting is directed towards themuch broader issue of health care afford-ability and that one should not necessarilybecome a proxy for the other.

Finally, the inability to pass surprisefederal billing legislation last year, despiterare bipartisan agreement on the issue, iseye-opening: If it is this hard to reach adeal on what should be a consensus issue,that may not bode well for even broaderor more comprehensive health reform, suchas the so-called “Medicare for All.” Thebest outcome would be to pass narrowand targeted legislation that ensures thatas many people as possible are protectedfrom surprise billing. Stay tuned—new leg-islation may yet pass both at the Californiaand federal level. n

1 NPR, Special Series: Bill of the Month, https://www.npr.org/series/651784144/bill-of-the-month (lastviewed Feb. 29, 2020).2 Sarah Kliff, Emergency rooms are monopolies.Patients pay the price., Vox (Dec. 4, 2017), https://www.vox.com/2018/2/27/16936638/er-bills-emergency-room-hospital-fees-health-care-costs.3 Christopher Gammon & Benjamin Chartock, OneIn Five Inpatient Emergency Department Cases MayLead To Surprise Bills, 36 HEALTH AFFAIRS 177 (Jan.2017) available at https://www.healthaffairs.org/doi/10.1377/hlthaff.2016.0970.4 Prospect Med. Group, Inc. v. Northridge EmergencyMed. Group, 45 Cal. 4th 497 (2009).5 Id. at 507-508.6 Id. at 507.7 Id.8 See generally Dameron Hosp. Ass’n v. AAA N. Cal.,Nev. & Utah Ins. Exch., 229 Cal. App. 4th 549, 564(2014) (discussing some limitations of the Prospectdecision).9 California Legislative Information, AB-72 Healthcare coverage: out-of-network coverage, https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201520160AB72 (last viewed Mar. 1, 2020).10 Id.; see also HEALTH & SAFETY CODE §§1371.9,1371.30, 1371.31 and INS. CODE §§10112.8, 10112.81,10112.82.11 HEALTH & SAFETY CODE §§1371.9(a)(3).12 HEALTH & SAFETY CODE §1371.31(a)(1); INS. CODE

§10112.82(a)(1).13 HEALTH & SAFETY CODE §1371.30; INS. CODE

§10112.81.


14 See generally California Department of ManagedHealth Care, Non-Emergency Services Independent Dis pute Resolution Process (AB 72 IDRP), https://www.dmhc.ca.gov/FileaComplaint/ProviderComplaintAgainstaPlan/NonEmergencyServicesIndependentDisputeResolutionProcess.aspx; California Departmentof Insurance, Implementation Guidance AB 72:2,Independent Dispute Resolution Process, available athttps://www.insurance.ca.gov/0250-insurers/0300-insurers/0100-applications/hpab/upload/AB_72_2-IDRP_GUIDANCE_CDI.pdf (both sites last viewedMar. 1, 2020).15 HEALTH & SAFETY CODE §1371.30(d); INS. CODE

§10112.81(d).16 Id.17 Association of Am. Physicians & Surgeons, Inc. v.Brown, No. 2:16-cv-02441-MCE-EFB (E.D. Cal. Oct.13, 2016). 18 Association of Am. Physicians & Surgeons, Inc. v.Brown, No. 2:16-cv-02441-MCE-EFB, 2018 U.S. Dist.LEXIS 53767 (E.D. Cal. Mar. 28, 2018).19 Id. at 16-17.20 National Educ. Ass’n v. DeVos, 345 F. Supp. 3d 1127,1149 (N.D. Cal. Dec. 17, 2018) (examining the Asso -ciation of American Physicians & Surgeons decision). 21 Association of Am. Physicians & Surgeons, Inc. v.Rouillard, 392 F. Supp. 3d 1151, 1156 (E.D. Cal.June 13, 2019). 22 Id. at 1158.23 Id.24 Id.25 Id. at 1160-1161.26 Id. at 1160.27 Association of Am. Physicians & Surgeons, Inc. v.Rouillard, No. 2:16TV-D2441-MCE-EFB, 2019 U.S.Dist. LEXIS 142378 (E.D. Cal. Aug. 20, 2019).28 Sarah Kliff & Margot Sanger-Katz, In California,

A “Surprise” Billing Law Is Protecting Patients and Angering Doctors, N.Y. TIMES, Sept. 26, 2019,avail able at https://www.nytimes.com/2019/09/26/upshot/california-surprise-medical-billing-law-effects.html.29 California Med. Ass’n, CMA urges Congress to fol-low New York’s successful surprise billing model (July22, 2019), https://www.cmadocs.org/newsroom/news/view/ArticleId/28116/CMA-urges-Congre; letterfrom California Med. Ass’n to Rep. Anna Eshoo andRep. Michael Burgess of the House Energy & Com -merce Committee re Support Protecting Patients fromSurprise Medical Bills but Oppose the Surprise MedicalBilling Framework (July 10, 2019), available at https://www.cmadocs.org/Portals/CMA/files/public/CMA%20Surprise%20Billing%20Letter%20to%20Congress%20July%202019.pdf.30 California Legislative Information, AB-1611 Emer -gency hospital services: costs. (2019-2020), http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=20920200AB1611 (last viewed Mar.1, 2020).31 Sarah Kliff, After Vox reporting, California movesforward on plan to end surprise ER bills, Vox (Apr.24, 2019), https://www.vox.com/2019/4/24/18514240/california-surprise-er-bills-zuckerberg.32 Id. Notably, the proposed default rate changed overtime as the bill was amended, as did the services towhich such default rate would apply.33 Emily Boerger, California’s surprise billing legislationstalled for the year, State of Reform (July 12, 2019),https://stateofreform.com/news/states/california/2019/07/californias-surprise-billing-legislation-stalled-for-the-year. [hereinafter Boerger].34 Id.35 Ana B. Ibarra, Hospitals Block “Surprise Billing”Measure, California Healthline (July 10, 2019), https://khn.org/news/hospitals-block-surprise-billing-measure/.

36 Id.37 Boerger, supra note 33.38 See generally Rush Prudential HMO, Inc. v. Moran,536 U.S. 355 (2002).39 Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936,945 (2016); 29 U.S.C. §1144 (ERISA conflict preemp -tion statute).40 See generally Spinedex Physical Therapy USA Inc.v. United Healthcare of Ariz., Inc., 770 F. 3d 1282,1289 (9th Cir. 2014).41 The three methodologies are: 1) the amount nego-tiated with in-network providers for emergency services,2) the amount for the emergency service calculatedusing the same method the plan uses to determine out-of-network emergency services (for instance, a “usual,reasonable and customary” methodology), or 3) theamount that Medicare would pay for the emergencyservices. 75 Fed. Reg. 37,188; 80 Fed. Reg. 72,192.42 Clarification of Final Rules for Grandfathered Plans,Preexisting Condition Exclusions, Lifetime and AnnualLimits, Rescissions, Dependent Coverage, Appeals, andPatient Protections Under the Affordable Care Act, 83Fed. Reg. 19,431.43 Margot Sanger-Katz, Ban on Surprise Medical BillsMay Pass After All, N.Y. TIMES, Dec. 8, 2019, avail -able at https://www.nytimes.com/2019/12/08/upsho/deal-surprise-medical-bills.html.44 Rachel Cohrs, How Congress’ surprise billing com-promise fell short, MODERN HEALTHCARE, Dec. 23,2019, available at https://www.modernhealthcare.com/politics-policy/how-congress-surprise-billing-compromise-fell-short.45 Rachel Cohrs, House leader aims for surprise billingdeal by Presidents Day, MODERN HEALTHCARE, Jan.28, 2020, available at https://www.modernhealthcare.com/politics-policy/house-leader-aims-surprise-billing-deal-presidents-day, January 28, 2020.



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COASTLINE REALTY ADVISORS3020 Old Ranch Parkway, Suite 300, Seal Beach, CA90740, (562) 598-2402, fax (562) 598-9097, e-mail:[email protected]. Website: www.coastlinerealtyadvisors.com. Contact Michael V.

Sanders, MAI, SRA. Real estate valuation and dam-age analysis expert in residential and commercial/industrial property. MAI and SRA designations fromthe Appraisal Institute, also membership in IRWA andFEWA; numerous articles and publications. Valuationexpertise includes construction defect, geotechnical,water intrusion, easement/title, environmental, view,proximate nuisance, natural disasters, estate/casualtyloss, marriage dissolution, appraisal review, and stan-dard of care.

GURSEY | SCHNEIDER LLP1888 Century Park East, Suite 900, Los Angeles, CA90067, (310) 552-0960, fax (310) 557-3468, e-mail:[email protected]. Website: www.gursey.com. Contact Stephan Wasserman. Gursey |Schneider is an accounting firm specializing in forensicaccounting, litigation support services, business valua-tion, 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 andcost-profit assessments, insurance claims, and enter-tainment industry litigation. Gursey | Schneider hasover 40 years of experience as expert witnesses in litigation support. See display ad on page 51.

HIGGINS, MARCUS & LOVETT, INC.800 South Figueroa Street, Suite 710, Los Angeles,CA 90017, (213) 617-7775, fax (213) 617-8372, e-mail: [email protected]. Contact Mark C. Higgins,

ASA. The firm has over 30 years of litigation supportand expert testimony experience in matters involvingbusiness valuation, economic damages, intellectualproperty, loss of business goodwill, and lost profits.Areas of practice include business disputes, eminentdomain, bankruptcy, and corporate and marital disso-lution. See display ad on page 45.



ad on page 46.

WARONZOF ASSOCIATES, INC.400 Continental Boulevard, Sixth Floor, El Segundo,CA 90245, (310) 322-7744, fax (424) 285-5380. Web-site: www.waronzof.com. Contact Timothy R. Lowe,

MAI, CRE. Waronzof provides real estate and land use

litigation support services including economic dam-ages, lost profits, financial feasibility, lease dispute,property value, enterprise value, partnership interestand closely held share value, fair compensation, lenderliability, and reorganization plan feasibility. Professionalstaff of five with advanced degrees and training in realestate, finance, urban planning, and accounting. See

display ad on page 5.

ATTORNEY FEE DISPUTES/ISSUES

KPC LEGAL AUDIT SERVICES, INC.550 North Brand Boulevard, Suite 1500, Glendale, CA91203, (818) 547-5000, fax (818) 547-5329, e-mail:[email protected]. Website: www.kpclegal.com. Contact André E. Jardini. KPC Legal Audit Services,Inc. is a dba of the law firm Knapp, Petersen & ClarkeP.C. KPC Legal Audit’s professional staff includesexperienced trial attorneys, auditors, and accountingpersonnel who have been performing legal audits forover 25 years. They utilize a customized audit softwareprogram to provide audit services, consultation, andlitigation support regarding outside legal expenses.

O’CONNOR AND ASSOCIATES201 Mission Street, Suite 710, San Francisco, CA94105, (415) 693-9960, fax (415) 692-6537, e-mail:[email protected]. Website: www.joclaw.com.Contact John D. O’Connor. Attorney John O’Connor provides both litigation and expert consul-tancy services in a broad range of attorney fee issues,including disputes over appropriate billing rates, litiga-tion efficiency, task assignment and staffing, litigationsuccess and prevailing party determination, and litiga-tion skill. His work in this regard has been widelylauded by clients, lawyers, courts, and arbitrators. See


ATTORNEYS’ FEES & ETHICS

JOEL MARK919 Box Canyon Trail, Palm Desert, CA 92211 (760)200-4554, mobile (805) 701-7731, fax (760) 772-6665, e-mail: [email protected]. Consulting/expert witness experience: One hundred plus assign-ments in attorney fee disputes; attorney ethics, attor-ney malpractice (litigation). Specialties include businesslitigation, intellectual property, commercial law, profes-sional liability, and banking. Previous position/appoint-ments: California State Bar Committee on MandatoryFee Arbitration, California State Bar Committee onProfessional Responsibility and Conduct; appointedexpert consultant by the Los Angeles County SuperiorCourt, State Bar MFA Presiding Arbitrator (2009-2012); State Bar of California Special Deputy TrialCounsel for Disciplinary Matters (2010-present). Mem-bership in professional societies: LACBA, State Bar ofCalifornia, Association of Professional ResponsibilityLawyers. Degrees/license: UC Berkeley (AB, 1969),UC Berkeley: Hastings College of Law (JD, 1972);Admitted California 1972, Colorado, 1994.

ATTORNEY MALPRACTICE

JOEL MARK919 Box Canyon Trail, Palm Desert, CA 92211 (760)200-4554, mobile (805) 701-7731, fax (760) 772-6665, e-mail: [email protected]. Consulting/expert witness experience: One hundred plus assign-ments in attorney fee disputes; attorney ethics, attor-ney malpractice (litigation). Specialties include businesslitigation, intellectual property, commercial law, profes-sional liability, and banking. Previous position/appoint-ments: California State Bar Committee on MandatoryFee Arbitration, California State Bar Committee onProfessional Responsibility and Conduct; appointedexpert consultant by the Los Angeles County SuperiorCourt, State Bar MFA Presiding Arbitrator (2009-2012); State Bar of California Special Deputy TrialCounsel for Disciplinary Matters (2010-present). Mem-bership in professional societies: LACBA, State Bar of

California, Association of Professional ResponsibilityLawyers. Degrees/license: UC Berkeley (AB, 1969),UC Berkeley: Hastings College of Law (JD, 1972);Admitted California 1972, Colorado, 1994.

BIOMECHANICS/RECONSTRUCTION/HUMAN FACTORS/ANIMATIONS

INSTITUTE OF RISK & SAFETY ANALYSESKENNETH A. SOLOMON, PHD, PE, POSTPHD, CHIEF SCIENTIST5324 Canoga Avenue, Woodland Hills, CA 91364,(818) 348-1133, fax (818) 348-4484, e-mail: [email protected]. Website: www.irsa.us.Specialized forensic staff of 23, broad range of con-sulting and expert testimony, 48 years of courtroomexperience for Dr. Solomon, combined courtroomexperience for company 560 person years. Accidentreconstruction, biomechanics, human factors, safety,accident prevention, adequacy of warnings, computeranimation and simulations, 3D scanning, 3D modelbuilding, construction defect, criminal defense, criminalprosecution, premises, product integrity, product liabil-ity, product testing, warnings, and lost income calcula-tions. Auto, bicycle, bus, chair, elevator, escalator,forklift, gate, ladder, machinery, motorcycle, press,recreational equipment, rollercoaster, slip/trip and fall,stairs, swimming pool, and truck. Litigation and claims,defense/plaintiff, educational seminars, and mediationand arbitration services.

BUSINESS

FORENSISGROUPEXPERT WITNESS SERVICES SINCE 1991301 North Lake Avenue, Suite 420, Pasadena, CA91101, (800) 555-5422, (626) 795-5000, fax (626)795-1950, e-mail: [email protected]. Web-site: www.forensisgroup.com. As a leader in expertwitness services for over 28 years, we specialize inproviding clients with a premier selection of expertsand consultants at an unsurpassed level of service.Over 20,000 clients have relied on us for an easy wayof connecting with highly qualified experts across awide range of industries to gain a competitive edge.We offer customized searches, referrals, and initialphone consultations at no cost or obligation to you. Inover 30,000 cases, we’ve provided experts to uncoverthe truth from thousands of complex subject matterssuch as construction, engineering, business, account-ing, intellectual property, computers, IT, medical, realestate, insurance, product liability, premises liability,and others, including hard-to-find disciplines. We’recommitted to being socially responsible to our clientsand our local and global communities through educa-tion, nutrition and other programs. See display ad on

page 41.

BUSINESS APPRAISAL/VALUATION

ARROWFISH | ECONOMIC DAMAGES ANDBUSINESS VALUATION EXPERTS350 10th Avenue, Suite 1000, San Diego, CA 92101, (801) 839-5778, fax: (801) 877-4830, e-mail: [email protected]. Website:www.arrowfishconsulting.com. Contact Jeremiah

Grant. With over 200 years of combined experiencefrom backgrounds at the Big Four accounting firms,Fortune 500 companies, and successful entrepreneur-ial ventures, Arrowfish has the experience, training,and credentials to exceed all your expectations. Ourprimary services include: economic damages (bothcommercial and personal litigation), businessappraisal/valuation, forensic accounting and insuranceclaims (ex. business interruption). For large-firm experi-ence, training, and quality with small-firm flexibility, ser-vice, and pricing, look no further. Call today! Offices inSan Diego, Las Vegas, Salt Lake City, Denver, Dallas,Chicago, and Washington, DC.


BAKER TILLYLos Angeles Office: 811 WilshireBoulevard,Suite 1747, Los Angeles, CA 90017, (213)996-0900. Orange County office: 625 The City Drive,Suite 290, Orange, CA 92868, (714) 740-2100. Contact Hank Kahrs, [email protected],

Alan Lurie, [email protected]. San Diegooffice: 11440 W Bernardo Court, Suite 300, SanDiego, CA 92127, (619) 236-0377. Contact Rich

Holstrom,[email protected]. BakerTilly Virchow Krause, LLP (Baker Tilly) is a leading advi-sory, tax, and assurance firm whose specialized pro-fessionals guide clients through an ever-changingbusiness world. Effective December 2018, RGL Foren-sics joined Baker Tilly Virchow Krause, creating a pre-mier global forensics practice. The firm’s forensicfinancial experts are dedicated to damage analysis,fraud investigation, and valuation. Serving the legal,insurance, and business communities for more than 30years, the practice is unique in its ability to combineinvestigative accounting, business valuation, fraud, andforensic technology expertise. For attorneys, we dis-cover and define financial value in transactions and civiland criminal disputes, and when necessary provideexpert witness testimony in court and arbitration pro-ceedings. Headquartered in Chicago, the firm hasoperations across five continents. Baker Tilly VirchowKrause is an independent member of Baker Tilly Inter-national, a worldwide network of independentaccounting and business advisory firms in 147territories. For more information, please visit www.bakertilly/globalforensics.

CMM, LLPWith offices in Woodland Hills and El Segundo, (818)986-5070, fax (818) 986-5034, e-mail: [email protected]. Website: www.cmmcpas.com.Contact Robert Schreiber. Specialties: consultantswho provide extensive experience, litigation support,and expert testimony regarding forensic accountants,fraud investigations, economic damages, business val-uations, family law, bankruptcy, and reorganization.Degrees/licenses: CPAs, CFEs, MBAs. See display

ad on page 49.

GURSEY | SCHNEIDER LLP1888 Century Park East, Suite 900, Los Angeles, CA90067, (310) 552-0960, fax (310) 557-3468, e-mail:Website: www.gursey.com. Contact Stephan

Wasserman. Gursey | Schneider is an accounting firmspecializing in forensic accounting, litigation supportservices, business valuation, and appraisal services fora variety of purposes, including marital dissolution, giftand estate planning, eminent domain, goodwill loss,business disputes, malpractice, tax matters, bank-ruptcy, damage and cost-profit assessments, insur-ance claims, and entertainment industry litigation.Gursey | Schneider has over 40 years of experience asexpert witnesses in litigation support. See display ad

on page 51.

HAYNIE & COMPANY, CPAS4910 Campus Drive, Newport Beach, CA 92660-2119, (949) 724-1880, fax (949) 724-1889, e-mail:[email protected]. Website: www.hayniecpa.com. Contact Steven C. Gabrielson.

Consulting and expert witness testimony in a variety of practice areas: commercial damages, ownershipdisputes, economic analysis, business valuation, lostprofits analysis, fraud/forensic investigations, taxation,personal injury, wrongful termination, and professionalliability.


ASA. The firm has over 30 years of litigation supportand expert testimony experience in matters involvingbusiness valuation, economic damages, intellectualproperty, loss of business goodwill, and lost profits.Areas of practice include business disputes, eminent

domain, bankruptcy, and corporate and marital disso-lution. See display ad on page 45.

SCHULZE HAYNES LOEVENGUTH & CO. 660 South Figueroa Street, Suite 1280, Los Angeles,CA. 90017, (213) 627-8280, fax (213) 627-8301, e-mail: [email protected] Web site:www.schulzehaynes.com. Contact Karl J. Schulze.

Our credentials include CPA, CVA, ABV, CFE, CFFand PhD. Our expertise includes analysis and testi-mony over a broad range of industries and issueareas. We provide advisory and testimony in mattersinvolving economic damages, intellectual property dis-putes, employment, fraud and embezzlement, gover-nance and shareholder matters, and alter ego, amongothers. We have worked with closely-held, middle-market and Fortune 500 companies and have pro-vided guidance on corporate governance, crisis man-agement, strategic planning, insolvency management,acquisition and feasibility analysis and debt restructur-ing. We perform business valuations in disputed mat-ters as well as for transactional purposes. Our experi-ence includes serving as CEO, CFO, CRO, and ourprincipals average well over 30 years’ experienceeach. See display ad on page 49.

SqUAR & ASSOCIATES 1001 Dove Street, Suite 100, Newport Beach, CA92660, (714) 825-0300, Cell (949) 375-4388, fax (866)810-9223, e-mail: [email protected]. Web-site: www.squarassociates.com. Contact Richard M.

Squar. Squar & Associates provides superior litigationsupport and tax services, including expert witness tes-timony, strategy development, document discovery,deposition assistance, computation of damages, arbi-tration consulting, forensic accounting, rebuttal testi-mony, fiduciary accountings, and trial exhibit prepara-tion. Our areas of expertise include loss of earningsanalysis, breach of contract, partnership dissolution,reconstruction of accounting records, embezzlementand fraud, contract costs, lost profits, damage compu-tations, and malpractice cases. Our practice focuseson closely held entrepreneurial firms in a wide variety ofindustries. See display ad on page 41.



ZIVETZ, SCHWARTZ & SALTSMAN, CPAS5990 Sepulveda Boulevard, Suite 650, Sherman Oaks,CA 91411, (310) 826-1040, fax (310) 826-1065. Web-site: www. zsscpa.com. Contact Lester J. Schwartz,

CPA/CFF, DABFE, DABFA, Michael D. Saltsman,



Hakobyan, CPA, Troy Hoang, CPA. Accountingexperts in forensic accounting, tax issues, businessvaluations, and appraisals, marital dissolutions, emi-nent domain, insurance losses, business interruption,

goodwill, economic analysis, investigative auditing,loss of earnings, commercial damages, and lost prof-its. Expert witness testimony preparation, settlementnegotiations, and consultations. See display ad on

page 53.

CIVIL LITIGATION

GURSEY | SCHNEIDER LLP1888 Century Park East, Suite 900, Los Angeles, CA 90067, (310) 552-0960, fax (310) 557-3468, e-mail: [email protected]. Website: www.gursey.com.Contact Gary Krausz. Gursey | Schneider specializesin forensic accounting and litigation support services inthe areas of civil litigation, business disputes, bank-ruptcy, damage and cost-profit insurance claims, courtaccountings, fraud investigations, accounting malprac-tice, intellectual property, construction, governmentaccounting, and entertainment litigation. Gursey |Schneider has over 40 years of experience as expertwitnesses in accounting related matters. See display

ad on page 51.

COMPOSITE & FIBERGLASSMATERIALS

KARS’ ADVANCED MATERIALS, INC.Testing and Research Labs, 2528 West WoodlandDrive, Anaheim, CA 92801-2636, (714) 527-7100, fax(714) 527-7169, e-mail: [email protected]. Website:www.karslab.com. Contact Dr. Ramesh Kar, Dr.

Naresh Kar, Dr. Nikhil Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engi-neers with 30+ years in etallurgical/forensic/structural/mechanical failure analysis. Experienced with automo-tive, bicycles, tires, fire, paint, plumbing, corrosion, andstructural failures. We work on both plaintiff and defen-dant cases. Complete in-house capabilities for tests.Extensive deposition and courtroom experience (civiland criminal investigations). Principals are Fellows ofAmerican Society for Metals and Fellows, AmericanCollege of Forensic Examiners. See display ad on

page 54.

COMPUTER FORENSICS

SETEC INVESTIGATIONS8391 Beverly Boulevard, Suite 167, Los Angeles, CA 90036, (800) 748-5440, fax (323) 939-5481, e-mail: [email protected]. Website: www.setecinvestigations.com. Contact Todd Stefan.

Setec Investigations offers unparalleled expertise incomputer forensics and enterprise investigations providing personalized, case-specific forensic analysisand litigation support services for law firms and corpo-rations. Setec Investigations possesses the necessarycombination of technical expertise, understanding ofthe legal system, and specialized tools and processesenabling the discovery, collection, investigation, andproduction of electronic information for investigatingand handling computer-related crimes or misuse. Our expertise includes computer forensics, electronicdiscovery, litigation support, and expert witness testimony.

CONSTRUCTION

FORENSISGROUPEXPERT WITNESS SERVICES SINCE 1991301 North Lake Avenue, Suite 420, Pasadena, CA91101, (800) 555-5422, (626) 795-5000, fax (626)795-1950, e-mail: [email protected]. Web-site: www.forensisgroup.com. Contact Tiffani

Cheung. As a leader in expert witness services forover 25 years, we specialize in providing clients with apremier selection of experts and consultants at anunsurpassed level of service. Over 20,000 clients haverelied on us for an easy way of connecting with highlyqualified experts across a wide range of industries togain a competitive edge. We offer customized


searches, referrals, and initial phone consultations atno cost or obligation to you. In over 30,000 cases,we’ve provided experts to uncover the truth from thou-sands of complex subject matters such as construc-tion, engineering, business, accounting, intellectualproperty, computers, IT, medical, real estate, insur-ance, product liability, premises liability, and others,including hard-to-find disciplines. We’re committed tobeing socially responsible to our clients and our localand global communities through education, nutritionand other programs. See display ad on page 41.

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

MPGROUP1202 Greenacre Avenue, West Hollywood, CA 90046(323) 874-8973, fax (323) 874-8948, e-mail:[email protected]. Website: www.mpgroup.com. Contact Michael S. Poles, GC, CM, RCI, DABFET,

ACFE. MPGroup is a Los Angeles County based col-laboration of architects, engineers, contractors, andother construction technical experts skilled in thedesign, management, and construction of buildings forhuman occupancy. We are a team of courtroomtested senior forensic expert witnesses in support oflegal counsel. We have more than 50 years’ experi-ence with construction issues ranging from safety toconstruction defects for all types of construction pro-jects. Please visit our website for complete information:www.mpgroup.com.

THE REYNOLDS GROUPP.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397, fax (714)730-6476, e-mail: [email protected]. Website: www.reynolds-group.com. Contact Ed Reynolds, RCE, Principal. Anenvironmental consulting, and contracting firm. Exper-tise: environmental contamination, assessment, reme-diation, reasonable value of construction, standard ofcare, and related financial matters. Degrees in CivilEngineering: USC (BS), University of Houston (MS),(MBA) Harvard. California Registered Civil Engineer,Licensed A, B, HAZ California Contractor. 30 years’experience. Adjunct Faculty Member USC ViterbiSchool of Engineering Department of Civil and Environ-mental Engineering.

CORPORATE INVESTIGATIONS



[email protected]. San Diego office: 11440W. Bernardo Court, Suite 300, San Diego, CA 92127,(619) 236-0377. Contact Rich Holstrom, ric

[email protected]. Baker Tilly VirchowKrause, LLP (Baker Tilly) is a leading advisory, tax, andassurance firm whose specialized professionals guideclients through an ever-changing business world.Effective December 2018, RGL Forensics joined BakerTilly Virchow Krause, creating a premier global foren-sics practice. The firm’s forensic financial experts arededicated to damage analysis, fraud investigation, andvaluation. Serving the legal, insurance, and businesscommunities for more than 30 years, the practice isunique in its ability to combine investigative account-ing, business valuation, fraud, and forensic technologyexpertise. For attorneys, we discover and define finan-cial value in transactions and civil and criminal dis-putes, and when necessary provide expert witness

testimony in court and arbitration proceedings. Head-quartered in Chicago, the firm has operations acrossfive continents. Baker Tilly Virchow Krause is an inde-pendent member of Baker Tilly International, a world-wide network of independent accounting and businessadvisory firms in 147 territories. For more information,please visit www.bakertilly/globalforensics.



COSMETIC, PLASTIC, &RECONSTRUCTIVE SURGERY

JOHN M. SHAMOUN, MD, FACS, INC.366 San Miguel, Suite 310, Newport Beach, CA 92660, (949) 759-3077, fax (949) 759-3087, e-mail:[email protected]. Website: www.ideallook.com.Contact Yvonne. Specialties: only plastic surgeon inthe United States board certified by the 1) AmericanBoard of Surgery, 2) American Board of PlasticSurgery, 3) American Board of Facial Plastic andReconstructive Surgery, and 4) American Board ofForensic Medicine. Extensive experience in all aspectsof cosmetic, plastic, and reconstructive surgery of thebreast, nose, face, eye, and body. Well-publishedauthor of several textbook chapters and journal articlesrelated to above topics. Extensive experience in med-ical malpractice case review, consultation, written eval-uation and testimony in depositions and trial for plaintiffand defense. Articulate subspecialty consultant withup-to-date knowledge and expertise of plastic surgeryliterature and standards of care. Opinions supportedby extensive subspecialty education, training, andexperience.

CREDIT REPORTING, SCORING, & DAMAGES EXPERT

EASY CREDIT RELIEF, INC.2625 Townsgate Road, Suite 330, Westlake Village,CA 91361, (805) 267-1118, fax (805) 267-1101,e-mail: [email protected]. Website: www.creditdamagesexpert.com. Contact Doug Minor.

Credit reporting, score and damages expertwitness/consultant with over 30 years of experience.He has passed the required examination to receivefrom the CDIA a Fair Credit Reporting Act Certificationand can help with credit report evaluation preparingcredit damages report, modern credit scoring andreporting codes, types of credit damages, assessingviolations of the Fair Credit Reporting Act (FCRA), aswell as industry standards of dispute resolutionprocess and review of residential mortgage loan docu-ments. Evaluate testimony, and developing questionsfor deposition and trial. Since 2010 he has beeninvolved in over 100 cases, as well as been qualifiedand testified in both federal and state courts.

DENTIST

RICHARD BENVENISTE, DDS, MSD19231 Victory Boulevard, Suite 256, Reseda, CA91335, (818) 881-7337, fax (818) 881-6183,e-mail: [email protected]. Website: www

.doctorbenveniste.com. Contact Richard

Benveniste, DDS, MSD. Previous three-term officerof State Dental Board of California, having ruled on allphases of dental practice. Practicing as an expert,consultant, evaluator and teacher in the treatment ofTMJ, personal injury (PI), lien cases, and dental injury.Multiple distinguished service citations from CaliforniaState Department of Consumer Affairs. Provider ofcontinuing education courses on oral diagnosis, oralmedicine, treatment modalities, TMJ diagnosis andtherapy. Multiple long-term professional organizationmemberships. Degrees/licenses: Doctor of DentalSurgery, (DDS); Master of Science in Dentistry (MSD).

JAY GROSSMAN DDS11980 San Vicente Boulevard, Suite 507, Brentwood,CA 90049, (310) 820-0123, e-mail: [email protected]. Website: http://www.expertwitness.den-tal/. Dental malpractice & injury expert testimony. As ofJan 2020: I have been deposed over 100 times;reviewed over 750 cases for both defense and plaintiffincluding peer review, accidents, and malpractice.52% plaintiff / 48% defense. I have qualified in Supe-rior Court over 50 times and never been disqualified.At least 95% of my time is spent in patient care. I canbe counted on to being ethical, competent, preparedand analytical as well as articulate and persuasive atdepositions and court appearances. Published andhave been written about in print, radio, and TV over200 times. (https://www.conciergedentistry.com/) -click on Expert Testimony - Media Coverage / Writeups) I hold two professorships: UCLA College of Den-tistry & NYU College of Dentistry, and, I am a formerprofessor at Western University College of Dental Med-icine (2013-2018). Licensed in 42 states to opine onthe standard of care, with a specific license in Califor-nia, Nevada, and the Northeast as well as a FloridaExpert Certification. Graduated NYU 1988; Lieutenant,United States Navy 1989- 91; private practice Brent-wood, CA since 1991 – serving over 13,000 patientson a fee for service basis. Founder of the non-profit“Homeless Not Toothless” (www.homelessnottooth-less.org), he has made it possible for tens of thou-sands of homeless Veterans and foster children toreceive over $5 million in pro-bono dental care to over60,000 people.

DRY CLEANERS

THE REYNOLDS GROUPP.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397, fax (714)730-6476, e-mail: [email protected]. Website: www.reynolds-group.com. Contact Ed Reynolds, RCE, Principal.

An environmental consulting, and contracting firm.Expertise: environmental contamination, assessment,remediation, reasonable value of construction, stan-dard of care, and related financial matters. Degrees inCivil Engineering: USC (BS), University of Houston(MS), (MBA) Harvard. California Registered Civil Engi-neer, Licensed A, B, HAZ California Contractor. 30years’ experience. Adjunct faculty member USC ViterbiSchool of Engineering Department of Civil and Environ-mental Engineering.

ECONOMIC DAMAGES

ARROWFISH | ECONOMIC DAMAGES ANDBUSINESS VALUATION EXPERTS350 10th Avenue, Suite 1000, San Diego, CA92101, (801) 839-5778, fax: (801) 877-4830,e-mail: [email protected]. Website:www.arrowfishconsulting.com. Contact Jeremiah

Grant. With over 200 years of combined experiencefrom backgrounds at the Big Four accounting firms,Fortune 500 companies, and successful entrepreneur-



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

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

ConfidenceAtThe Courthouse.

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

ial ventures, Arrowfish has the experience, training,and credentials to exceed all your expectations. Ourprimary services include: economic damages (bothcommercial and personal litigation), businessappraisal/valuation, forensic accounting and insuranceclaims (ex. business interruption). For large-firm experi-ence, training, and quality with small-firm flexibility, ser-vice, and pricing, look no further. Call today! Offices inSan Diego, Las Vegas, Salt Lake City, Denver, Dallas,Chicago, and Washington, DC.

BAKER TILLYLos Angeles Office: 811 WilshireBoulevard,Suite 1747, Los Angeles, CA 90017, (213)996-0900. Orange County office: 625 The City Drive,Suite 290, Orange, CA 92868, (714) 740-2100. Contact Hank Kahrs, [email protected],

Alan Lurie, [email protected]. San Diegooffice: 11440 W. Bernardo Court, Suite 300, SanDiego, CA 92127, (619) 236-0377. Contact Rich

Holstrom, [email protected]. Baker TillyVirchow Krause, LLP (Baker Tilly) is a leading advisory,tax, and assurance firm whose specialized profession-als guide clients through an ever-changing businessworld. Effective December 2018, RGL Forensics joinedBaker Tilly Virchow Krause, creating a premier globalforensics practice. The firm’s forensic financial expertsare dedicated to damage analysis, fraud investigation,and valuation. Serving the legal, insurance, and busi-ness communities for more than 30 years, the practiceis unique in its ability to combine investigative account-ing, business valuation, fraud, and forensic technologyexpertise. For attorneys, we discover and define finan-cial value in transactions and civil and criminal dis-putes, and when necessary provide expert witnesstestimony in court and arbitration proceedings. Head-quartered in Chicago, the firm has operations acrossfive continents. Baker Tilly Virchow Krause is an inde-pendent member of Baker Tilly International, a world-wide network of independent accounting and businessadvisory firms in 147 territories. For more information,please visit www.bakertilly/globalforensics.

CHRISTOPOULOS ECONOMICS CONSULTING GROUP555 Anton Boulevard, Suite 150, Costa Mesa, CA92626, (714) 442-8561, fax (714) 586-5940,e-mail:[email protected]. Website: www.econconsulting.com. Contact Jim Christopoulos.

Jim Christopoulos is well versed in the calculation ofpast and present value future economic damagesfor all matters such as employment litigation, businesslitigation, wrongful death, and personal injury,including the calculation of future medical care costs.We provide credible testimony and produce clearsummary reports of relevant conclusions.

CORPORATE SCIENCES, INC. 3215 East Foothill Boulevard, Pasadena, CA 91107, (626) 440-7200, fax: (626) 440-1800,e-mail: [email protected]. Website: www.corporatesciences.com. Contact Dr. Joseph S.

D’Antoni, Managing Principal. Corporate Sciences,Inc., provides over 40 years of financial analysis andexpert testimony in all types of commercial litigation.Extensive experience in a broad range of industries forcomputing economic damages, lost profits, valuationand appraisal, fraud, breach of contract, partnershipdisputes, and bankruptcy-related matters. Profession-als also serve as mediators, arbitrators, special mas-ters, and third-party administrators as well as consult-ing and testifying experts.

GURSEY | SCHNEIDER LLP1888 Century Park East, Suite 900, Los Angeles,CA90067, (310) 552-0960, fax (310) 557-3468, e-mail:[email protected]. Website: www.gursey.com. Contact

Gary Krausz. Gursey | Schneider specializes in foren-sic accounting and litigation support services in theareas of civil litigation, business disputes, bankruptcy,damage and cost-profit insurance claims, courtaccountings, fraud investigations, accounting malprac-


tice, intellectual property, construction, governmentaccounting, and entertainment litigation. Gursey |Schneider has over 40 years of experience as expertwitnesses in accounting related matters. See display

ad on page 51.


ASA. The firm has over 30 years of litigation supportand expert testimony experience in matters involvingbusiness valuation, economic damages, intellectualproperty, loss of business goodwill, and lost profits.Areas of practice include business disputes, eminentdomain, bankruptcy, and corporate and marital disso-lution. See display ad on page 45.

MICHAEL D. ROSEN, CPA, PHD, ABV3780 Kilroy Airport Way, Suite 200, Long Beach, CA90806, (562) 256-7052, fax (562) 256-7001, e-mail:[email protected]. Website: www.mrosencpa.com. Contact Michael D. Rosen. We are litigationconsultants, forensic accountants, expert witnesses.Our mission is to tell the financial story that underliesevery business litigation matter and to convey thatstory in a clear and concise manner to the trier of fact.Our findings allow a realistic assessment of the caseandsupport settlement efforts. Our work is designed torender conclusive opinions and to withstand cross-examination. We specialize in business damages (lostprofits and loss in value), personal damages (lost earn-ings), and business valuation.

SCHULZE HAYNES LOEVENGUTH & CO. 660 South Figueroa Street, Suite 1280, Los Angeles,CA. 90017, (213) 627-8280, fax (213) 627-8301, e-mail: [email protected] Web site: www.schulzehaynes.com. Contact Karl J. Schulze. Ourcredentials include CPA, CVA, ABV, CFE, CFF andPhD. Our expertise includes analysis and testimonyover a broad range of industries and issue areas. Weprovide advisory and testimony in matters involvingeconomic damages, intellectual property disputes,employment, fraud and embezzlement, governanceand shareholder matters, and alter ego, among others.We have worked with closely-held, middle-market andFortune 500 companies and have provided guidanceon corporate governance, crisis management, strate-gic planning, insolvency management, acquisition andfeasibility analysis and debt restructuring. We performbusiness valuations in disputed matters as well as fortransactional purposes. Our experience includes serv-ing as CEO, CFO, CRO, and our principals averagewell over 30 years’ experience each. See display ad

on page 53.

SMITH DICKSON, AN ACCOUNTANCYCORPORATION18100 Von Karman Avenue, Suite 420, Irvine, CA92612, (949) 553-1020, fax (949) 553-0249, e-mail:[email protected]. Website: www.smithdickson.com. Contact Deborah Dickson,

CPA, CFF, MAFF. 30+ years, testifying 20+ years,forensic accounting and litigation support. Forensicexpert witness in Federal Courts and State Civil andProbate Courts. The professionals at Smith Dicksonclearly, independently, and accurately analyze financialinformation, calculate damages, evaluate claims, pre-pare expert reports and render expert testimony.Thousands of hours of forensic accounting, depositionand trial experience. Damage calculations; lost profits;forensic accounting; expert testimony;intellectualproperty; fraud & embezzlement; real estate; trust &estate beneficiary disputes, tax controversy; employ-ment issues; business dissolution.


MAI, CRE. Waronzof provides real estate and land

use litigation support services including economicdamages, lost profits, financial feasibility, lease dis-pute, property value, enterprise value, partnershipinterest and closely held share value, fair compensa-tion, lender liability, and reorganization plan feasibility.Professional staff of five with advanced degrees andtraining in real estate, finance, urban planning, andaccounting. See display ad on page 5.



ZIVETZ, SCHWARTZ & SALTSMAN, CPAS5990 Sepulveda Boulevard, Suite 650, ShermanOaks, CA 91411, (310) 826-1040, fax (310) 826-1065.Website: www.zsscpa.com. Contact Lester J.

Schwartz, CPA/CFF, DABFE, DABFA, Michael D.

Saltsman, CPA, MBA, Lynda R. Schauer, CPA,

CVA, CGMA, David L. Bass, CPA, Sandy A. Green,

CPA, Silva Hakobyan, CPA, Troy Hoang, CPA.

Accounting experts in forensic accounting, tax issues,business valuations, and appraisals, marital dissolu-tions, eminent domain, insurance losses, businessinterruption, goodwill, economic analysis, investigativeauditing, loss of earnings, commercial damages, andlost profits. Expert witness testimony preparation, set-tlement negotiations, and consultations. See display

ad on page 53.

ECONOMICS

CMM, LLPWith offices in Woodland Hills and El Segundo, (818)986-5070, fax (818) 986-5034, e-mail: [email protected]. Website: www.cmmcpas.com. Contact Robert Schreiber. Specialties: consultantswho provide extensive experience, litigation support,and expert testimony regarding forensic accountants,fraud investigations, economic damages, business val-uations, family law, bankruptcy, and reorganization.Degrees/licenses: CPAs, CFEs, MBAs. See display

ad on page 49.

ELECTRONIC DISCOVERY

SETEC INVESTIGATIONS8391 Beverly Boulevard, Suite 167, Los Angeles, CA90036, (800) 748-5440, fax (323) 939-5481, e-mail:[email protected]. Website: www.setecinvestigations.com. Contact Todd Stefan.

Setec Investigations offers unparalleled expertise incomputer forensics and enterprise investigations pro-viding personalized, case-specific forensic analysis andlitigation support services for law firms and corpora-tions. Setec Investigations possesses the necessarycombination of technical expertise, understanding ofthe legal system, and specialized tools and processesenabling the discovery, collection, investigation, andproduction of electronic information for investigating

800-523-2319 [email protected] • TASAnet.com

For quality, variety, and fast turnaround, attorneys

trust The TASA Group.

When you need an expert, you need TASA.

and handling computer-related crimes or misuse. Ourexpertise includes computer forensics, electronic discovery, litigation support, and expert witness testimony.

EMPLOYMENT/WAGE EARNINGCAPACITY



[email protected]. San Diego office: 11440W. Bernardo Court, Suite 300, San Diego, CA2127, (619) 236-0377. Contact Rich Holstrom,

[email protected]. Baker Tilly VirchowKrause, LLP (Baker Tilly) is a leading advisory, tax, andassurance firm whose specialized professionals guideclients through an ever-changing business world.Effective December 2018, RGL Forensics joined BakerTilly Virchow Krause, creating a premier global foren-sics practice. The firm’s forensic financial experts arededicated to damage analysis, fraud investigation, andvaluation. Serving the legal, insurance, and businesscommunities for more than 30 years, the practice isunique in its ability to combine investigative account-ing, business valuation, fraud, and forensic technologyexpertise. For attorneys, we discover and define finan-cial value in transactions and civil and criminal dis-putes, and when necessary provide expert witnesstestimony in court and arbitration proceedings. Head-quartered in Chicago, the firm has operations acrossfive continents. Baker Tilly Virchow Krause is an inde-pendent member of Baker Tilly International, a world-wide network of independent accounting and businessadvisory firms in 147 territories. For more information,please visit www.bakertilly/globalforensics.

ENGINEER/TRAFFIC

WILLIAM KUNZMAN, PE1111 Town and Country #34, Orange, CA 92868, (714) 904-2821, e-mail: [email protected]. Website: www.traffic-engineer.com. Contact William

Kunzman, PE. Traffic expert witness since 1979, bothdefense and plaintiff. Auto, pedestrian, bicycle, andmotorcycle accidents. Largest plaintiff verdicts: 1)$12,200,000 in pedestrian accident case against Cal-trans, 2) $10,300,000 in case against Los AngelesUnified School District. Largest settlement: $2,000,000solo vehicle accident case against Caltrans. Bestdefense verdicts: 1) $0 while defending Caltrans andopposition sought $16,000,000. 2) $0 defending Cityof Long Beach and opposition sought $15,000,000.Before becoming expert witness, employed by LosAngeles County Road Department, Riverside CountyRoad Department, City of Irvine, and Federal HighwayAdministration. Knowledge of governmental agencyprocedures, design, geometrics, signs, traffic controls,maintenance, and pedestrian protection barriers. Hun-dreds of cases. Undergraduate work—UCLA, gradu-ate work—Yale University.

ENGINEERING

4X FORENSICENGINEERING�LABORATORIES, INC.5262 Oceanus Drive, Huntington Beach, CA 92649,(714) 450-8500, fax (714) 450-8599, e-mail: [email protected]. Website: www.4Xforensic.com. Contact Phil Van Herle. 4X Forensic EngineeringLaboratories is a full-service forensic engineering labo-ratory. We provide expert witness and analytical andtesting services in the following areas: fires and explo-sions: electrical and gas product defect investigations,thermal and fire modeling and laboratory testing; waterloss: materials, corrosion, and failure analysis ofplumbing products; failure analysis: metallurgy, prod-uct testing, and computerized stress analysis; accident

reconstruction: automotive, trucks, construction equip-ment, and premises liability. See display ad on

page 49.

EXPONENT5401 McConnell Avenue, Los Angeles, CA 90066,(310) 754-2700, fax (310) 754-2799, e-mail: [email protected]. Website: www.exponent.com. Contact Ali Reza. Specialties: fires and explosions,metallurgy and mechanical engineering, structural andgeotechnical, accident reconstruction and analysis,human factors, risk and reliability assessment, toxicol-ogy and human health, biomechanics, electrical andsemiconductors, aviation, materials science, HVAC,energy consulting, construction defect, scheduling,environmental remediation, water quality and policy.

ENVIRONMENTAL

THE REYNOLDS GROUPP.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397, fax (714)730-6476, e-mail: [email protected]. Website: www.reynolds-group.com. Contact Ed Reynolds, RCE, Principal. Anenvironmental consulting, and contracting firm. Exper-tise: environmental contamination, assessment, reme-diation, reasonable value of construction, standard ofcare, and related financial matters. Degrees in CivilEngineering: USC (BS), University of Houston (MS),(MBA) Harvard. California Registered Civil Engineer,Licensed A, B, HAZ California Contractor. 30 years’experience. Adjunct Faculty Member USC ViterbiSchool of Engineering Department of Civil and Environ-mental Engineering.

EXPERT REFERRAL SERVICE

PRO/CONSUL TECHNICAL AND MEDICAL EXPERTS1945 Palo Verde Avenue, Suite 200, Long Beach, CA90815, (800) 392-1119, fax (562) 799-8821, e-mail:[email protected]. Website: www.expertinfo.com.Contact Jesse De La Torre. Right expert right away!We are listed and recommended by the A.M. BestCompany. We welcome your rush cases! 15,000 med-ical and technical experts in over 3,000 fields, most inthe Southern California area. Pro/Consul always strivesto provide the best experts at a reasonable cost,including medical doctors for IME’s, biomechanicalengineers, accident reconstruction, electrical engi-neers, fire cause and origin, neuropsychology,accounting and economics, materials and metallurgy,engineering, plastics, appraisal and valuation, con-struction, human factors, insurance, lighting, marine,mechanical, medical billing, roof, safety, security, SOC,toxicology, MDs, RNs, etc. See display ad on back

cover.

TASA (A DIVISION OF THE TASA GROUP, INC.)Providing Outstanding Local, National and GlobalExperts in ALL Categories. Plaintiff/Defense. Civil/Criminal.Contact Tyra Merinar. (800) 523-2319, fax(800) 329-8272, e-mail: [email protected]. Web-site: www.TASAnet.com. Since 1956, TASA has beenyour source for a variety of superior quality, indepen-dent testifying and consulting experts. We offer morethan 11,000 diverse categories of expertise and hard-to-find specialties in technology, business, the arts,and sciences, including 1,000+ medical areas throughour sister company, TASAmed. Our experienced refer-ral advisors target your criteria and connect you withthe experts available to discuss your case. There is nocharge for our services until you engage or designatean expert witness we refer. Visit our website to searchexpert profiles by expertise key word, order due dili-gence research reports on your expert witness oropposing counsel’s, request an expert through ouronline form. Explore the Knowledge Center to readexpert-authored articles and view archived webinars.While on our website, you can register for upcoming

webinars and sign up to receive our electronicnewsletters. Save $175 (administrative fee) on yourfirst expert witness designation by mentioning PromoCode: LA19. Be sure to check out our insert and dis-play ad in this issue! Please see our insert in this

issue and display ad on page 46.

FAILURE ANALYSIS

4X FORENSIC ENGINEERING LABORATORIES, INC.5262 Oceanus Drive, Huntington Beach, CA 92649,(714) 450-8500, fax (714) 450-8599, e-mail: [email protected]. Website: www.4Xforensic.com. Contact Phil Van Herle. 4X Forensic EngineeringLaboratories is a full-service forensic engineering labo-ratory. We provide expert witness and analytical andtesting services in the following areas: fires and explo-sions: electrical and gas product defect investigations,thermal and fire modeling and laboratory testing; waterloss: materials, corrosion, and failure analysis ofplumbing products; failure analysis: metallurgy, prod-uct testing, and computerized stress analysis; accidentreconstruction: automotive, trucks, construction equip-ment, and premises liability. See display ad on

page 49 .


Naresh Kar, Dr. Nikhil Kar. Southern California’s pre-mier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engi-neers with 30+ years in metallurgical/forensic/struc-tural/mechanical failure analysis. Experienced withautomotive, bicycles, tires, fire, paint, plumbing, corro-sion, and structural failures. We work on both plaintiffand defendant cases. Complete in-house capabilitiesfor tests. Extensive deposition and courtroom experi-ence (civil and criminal investigations). Principals areFellows of American Society for Metals and Fellows,American College of Forensic Examiners. See display

ad on page 54.

FAMILY LAW







CMM, LLPWith offices in Woodland Hills and El Segundo, (818)986-5070, fax (818) 986-5034, e-mail: [email protected]. Website: www.cmmcpas.com. Contact Robert Schreiber. Specialties: consultantswho provide extensive experience, litigation support,and expert testimony regarding forensic accountants,fraud investigations, economic damages, business val-uations, family law, bankruptcy, and reorganization.Degrees/licenses: CPAs, CFEs, MBAs. See display

ad on this page.

GURSEY | SCHNEIDER LLP1888 Century Park East, Suite 900, Los Angeles, CA90067, (310) 552-0960, fax (310) 557-3468, 20355Hawthorne Boulevard, First Floor, Torrance, CA90503, (310) 370-6122, fax (310) 370-6188, 2211Michelson Drive, Suite 650, Irvine, CA 92612, (949)265-9900, fax (949) 265-9901, 1 California Street,Suite 450, San Francisco, CA 94111, (415)855-8400,fax (415) 855-8410, e-mail: [email protected] or [email protected]. Website: www.gursey.com.Contact Tina Fujisaki or Kristen L. Gillespie. Foren-sic accounting and litigation support services in allareas relating to marital dissolution, including businessvaluation, tracing and apportionment of real propertyand assets, net spendable evaluations, determinationof gross cash flow available for support and analysis ofreimbursement claims and marital standards of living.See display ad on page 51.

HAYNIE & COMPANY, CPAS4910 Campus Drive, Newport Beach, CA 92660-2119, (949) 724-1880, fax (949) 724-1889, e-mail:[email protected]. Website: www.hayniecpa.com. Contact Steven C. Gabrielson.

Consulting and expert witness testimony in a variety ofpractice areas: commercial damages, ownership dis-putes, economic analysis, business valuation, lostprofits analysis, fraud/forensic investigations, taxation,personal injury, wrongful termination, and professionalliability.



ad on page 46.

NIGRO KARLIN SEGAL & FELDSTEIN, LLP10960 Wilshire Boulevard, 5th Floor, Los Angeles, CA 90024, (310) 229-5161, fax (310) 229-4430, e-mail: [email protected]. Website: www.nksfb.com. Contact Irwin Nachimson. I specializein forensic accounting and litigation support projects.Our expertise includes contract dispute, fraud, familylaw, insolvency, music, and expert testimony. I haveover 26 years of experience and our entire departmentof 60 accountants is devoted exclusively to forensicprojects.

PAMELA WAX-SEMUS, CFE WSENTERPRISES107 North Reino Road, #402, Newbury Park, CA91320, (805) 499-3035, fax (805) 498-0468,e-mail: [email protected]. Website: www.tracingqueen.net. Contact Pamela Wax-Semus,

CFE. I am experienced in most areas of litigation support services with a particular emphasis in tracingof assets, real property allocation, stock option analy-sis, reimbursements and related allocation issues. I have vast experience not only in marital dissolutionmatters. My expertise extends to trust and probateaccounting, fraud, and other litigation-relatedmatters.

WHITE, ZUCKERMAN, WARSAVSKY,LUNA & HUNT15490 Ventura Boulevard, Suite 300, Sherman Oaks,CA 91403, (818) 981-4226, fax (818) 981-4278, 4Park Plaza, 2nd Floor, Irvine, CA 92614, (949) 219-9816, fax (949) 219-9095, e-mail: [email protected]: www.wzwlh.com. Contact Barbara Luna.







page 53.

FINANCIAL

HAYNIE & COMPANY, CPAS4910 Campus Drive, Newport Beach, CA 92660-2119, (949) 724-1880, fax (949) 724-1889, e-mail:[email protected]. Website: www.hayniecpa.com. Contact Steven C. Gabrielson. Consulting andexpert witness testimony in a variety of practice areas:commercial damages, ownership disputes, economicanalysis, business valuation, lost profits analysis,fraud/forensic investigations, taxation, personal injury,wrongful termination, and professional liability.

FIRE/EXPLOSIONS

4X FORENSIC ENGINEERING LABORATORIES, INC.5262 Oceanus Drive, Huntington Beach, CA 92649,(714) 450-8500, fax (714) 450-8599, e-mail: [email protected]. Website: www.4Xforensic.com. Contact Phil Van Herle. 4X Forensic EngineeringLaboratories is a full-service forensic engineering labo-ratory. We provide expert witness and analytical andtesting services in the following areas: fires and explo-sions: electrical and gas product defect investigations,thermal and fire modeling and laboratory testing; waterloss: materials, corrosion, and failure analysis ofplumbing products; failure analysis: metallurgy, prod-uct testing, and computerized stress analysis; accidentreconstruction: automotive, trucks, construction equip-ment, and premises liability. See display ad on

page 49.

FOOD SAFETY/HACCP

FOOD SAFETY AND HACCP COMPLIANCE 20938 De Mina Street, Woodland Hills, CA 91364,(818) 703-7147, e-mail: [email protected]. Website:www.foodsafetycoach.com. Contact Jeff Nelken,

BS, MA. Master allergy trainer and forensic food safetyexpert knowledgeable in both food safety, accidentprevention and hazard analysis critical control pointprogram development. Specializes in expert witnesstestimony and litigation consultant in matters regardingfood safety, Q.A., standards of performance, HACCP,crisis management, food-borne illness, burns, foreignobject, accidents, health department representation,food spoilage, allergy, intentional contamination andcustomer complain ts. Performs inspections, vendoraudits, site visits, reviews Health Department andthird-party inspections, training and public speaking.Hands-on food safety consultant for restaurants, man-ufacturers, distributors, country clubs, schools, nursinghomes, and casinos. National Registry of Food SafetyProfessionals certified instructor. Thirty years of foodand hospitality experience. Registered as a certifiedprovider with the Los Angeles County Health Depart-ment. Forensic food safety expert. Food safety expertfor CBS, NBC, Inside Edition and CNN, GeorgeNoory’s Coast to Coast broadcast. Free consultationfor law firms and insurance companies.

FORENSIC ACCOUNTING

BAKER TILLYLos Angeles Office: 811 Wilshire Boulevard, Suite 1747,Los Angeles, CA 90017, (213) 996-0900. OrangeCounty office: 625 The City Drive, Suite 290, Orange,CA 92868, (714) 740-2100. Contact Hank Kahrs,

[email protected], Alan Lurie, alan.lurie

@bakertilly.com. San Diego office: 11440 W.Bernardo Court, Suite 300, San Diego, CA 92127,(619) 236-0377. Contact Rich Holstrom, rich


GURSEY | SCHNEIDER LLP1888 Century Park East, Suite 900, Los Angeles, CA90067, (310) 552-0960, fax (310) 557-3468, e-mail:[email protected] or [email protected]. Website:www.gursey.com. Contact Tina Fujisaki or Kristen

L. Gillespie. Gursey | Schneider specializes in forensicaccounting and litigation support services in the areasof civil litigation, business disputes, bankruptcy, dam-age and cost-profit insurance claims, court account-ings, fraud investigations, accounting malpractice,intellectual property, construction, governmentaccounting, and entertainment litigation. Gursey |Schneider has over 40 years of experience as expertwitnesses in accounting related matters. See display

ad on page 51.

SMITH DICKSON, AN ACCOUNTANCYCORPORATION18100 Von Karman Avenue, Suite 420, Irvine, CA92612, (949) 553-1020, fax (949) 553-0249, e-mail:[email protected]. Website: www.smithdickson.com. Contact Deborah Dickson, CPA,

CFF, MAFF. 30+ years, testifying 20+ years, forensicaccounting and litigation support. Forensic expert wit-ness in Federal Courts and State Civil and Probate

Courts. The professionals at Smith Dickson clearly,independently, and accurately analyze financial infor-mation, calculate damages, evaluate claims, prepareexpert reports and render expert testimony. Thou-sands of hours of forensic accounting, deposition andtrial experience. Damage calculations; lost profits;forensic accounting; expert testimony; intellectualproperty; fraud & embezzlement; real estate; trust &estate beneficiary disputes, tax controversy; employ-ment issues; business dissolution.








page 53.

GOLF

MICHAEL S. JOHNSTONE, AIA 109 Pinnacle Peak Lane, Flat Rock, NC 28731, (828)697-2420, e-mail: [email protected]. Web-site: www.johnstonearch.com. Contact Michael S.

Johnstone, AIA. Golf course architect, expert witnessand forensic study including: wrongful death, drown-ing, serious injury, errant golf balls, golf cart accidentsand rollover, golf course design, safety, constructiondefects, irrigation damage, nets and barriers, propertydamage, slip and fall, and premises liability. Golfcourses, clubhouses, driving ranges, cart paths, neigh-boring property, and parking lots. Forty years architec-ture and construction management experience, 175+accident investigations completed across the UnitedStates including: court testimony, deposition, siteinspection, reports, graphic presentation, constructionanalysis, and replacement cost estimates.

HEALHCARE BILLING & COSTANALYSIS

POSNER HEALTHCARE CONSULTING1902 Prosser Avenue, Los Angeles, CA 90025 (310)903-7987, e-mail: [email protected]. Website: www.posnerhealthcare.com. Contact Barry L. Posner.

Expert testimony (document review, report prepara-


tion, conducting research, sworn depositions, and trialtestimony) for healthcare billing, finance, administra-tion, and other medical cost analysis matters. Areas ofexpertise: hospital and physician billing, claim analysesalignment of service delivery models physician pay-ment, incentive models, medical cost trend analysesand managed care operations. Demonstrated suc-cess: forms defensible opinions, writes superiorreports, exceeds expectations, no credibility issues,easy to work with, affordable (reasonable rates),dependable, responsive, and available.

HUMAN FACTORS

ANALYTICA SYSTEMS INTERNATIONAL, INC.(520) 882-5494, e-mail: [email protected]. Website:www.asi-az.com. Gary M. Bakken, PhD, CPE, BSE-Mechanical Engineering, MS-Safety, PhD in IndustrialEngineering with emphasis on human factors, ergo -nomics, biomechanics. Analysis of personal injury andproduct design matters from a systems engineeringand human performance perspective. Exemplar appli-cations: vehicle operator performance, vehicle occu-pant kinematics & biomechanics, pedestrian impacts,slips-trips-missteps, falls, lighting, visibility, warnings-instructions, decision-making and risk, work and designprocedures, falling objects, workplace and ADA issues.

INSURANCE

LOLA HOGAN INSURANCE CONSULTING, LLC1149 Seaview Avenue, Pacific Grove, CA 93950, (831)402-4069, e-mail: [email protected]. Web-site: www.lolahogan.com. Contact Lola Hogan,

CPCU ARM ARe. Claims handling—property casualty.Commercial and personal lines, bad faith, duty todefend.

MITCHELL L. LATHROP600 West Broadway, Suite 500, San Diego, CA92101-3357, (619) 955-5951, fax (619) 566-4034, e-mail: [email protected]. Website: www.Lath-ropADR.com. Contact Mitchell L. Lathrop. Expertconsulting and testimony in insurance matters, includ-ing claim handling, bad faith, standard of care, prop-erty and casualty, D&O, primary and excess, and rein-surance disputes. Also, lawyers’ professionalresponsibility, and malpractice. Curriculum vitae will besupplied upon request. Over 50 years of experience.Former Presiding Referee of the State Bar Court. A.M.Best recommended expert.

JANICE A. RAMSAY, ATTORNEY5 Saros, Irvine, CA 92603, (949) 854-9375, fax (949)854-9375, e-mail: [email protected]: www.JaniceARamsay.com. Contact Janice

A. Ramsay. Property insurance consultation and testi-mony as to the customs and practices of the insur-ance industry in handling property insurance claims ininsurance bad faith cases.

INTELLECTUAL PROPERTY

SMITH DICKSON, AN ACCOUNTANCY CORPORATION18100 Von Karman Avenue, Suite 420, Irvine, CA92612, (949) 553-1020, fax (949) 553-0249, e-mail:[email protected]. Website: www.smithdickson.com. Contact Deborah Dickson, CPA,

CFF, MAFF. 30+ years, testifying 20+ years, forensicaccounting and litigation support. Forensic expert wit-ness in Federal Courts and State Civil and ProbateCourts. The professionals at Smith Dickson clearly,independently, and accurately analyze financial infor-mation, calculate damages, evaluate claims, prepareexpert reports and render expert testimony. Thou-sands of hours of forensic accounting, deposition and

trial experience. Damage calculations; lost profits;forensic accounting; expert testimony; intellectualproperty; fraud & embezzlement; real estate; trust &estate beneficiary disputes, tax controversy; employ-ment issues; business dissolution.



LEGAL MALPRACTICE

LAWRENCE H. JACOBSON, ESq. 9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA90212, (310) 271-0747, fax (310) 271-0757, e-mail:[email protected]. Website: www.lawrencejacobson.com. Past President, Beverly Hills Bar Association.


Expert witness: lawyer malpractice in business and realestate transactions, fee disputes, legal ethics, standardof care for real estate brokers and mortgage brokers,and real estate document custom and usage. Practic-ing real estate and business law in California since1968. See display ad on page 53.

LITIGATION CONSULTING

NIGRO KARLIN SEGAL & FELDSTEIN, LLP10960 Wilshire Boulevard, 5th Floor, Los Angeles, CA90024, (310) 229-5161, fax (310) 229-4430, e-mail:[email protected]. Website: www.nksfb.com.Contact Irwin Nachimson. I specialize in forensicaccounting and litigation support projects. Our exper-tise includes contract dispute, fraud, family law, insol-vency, music, and expert testimony. I have over 26years of experience and our entire department of 60accountants is devoted exclusively to forensic projects.

LITIGATION SUPPORT

SqUAR & ASSOCIATES 1001 Dove Street, Suite 100, Newport Beach, CA92660, (714) 825-0300, Cell (949) 375-4388, fax (866)810-9223, e-mail: [email protected]. Web-site: www.squarassociates.com. Contact Richard M.

Squar. Squar & Associates provides superior litigationsupport and tax services, including expert witness tes-timony, strategy development, document discovery,deposition assistance, computation of damages, arbi-tration consulting, forensic accounting, rebuttal testi-mony, fiduciary accountings, and trial exhibit prepara-tion. Our areas of expertise include loss of earningsanalysis, breach of contract, partnership dissolution,reconstruction of accounting records, embezzlementand fraud, contract costs, lost profits, damage compu-tations, and malpractice cases. Our practice focuseson closely held entrepreneurial firms in a wide variety ofindustries. See display ad on page 41.

LOSS CARE PLAN/LOSS EARNINGS

BAKER TILLYLos Angeles Office: 811 Wilshire Boulevard,Suite 1747, Los Angeles, CA 90017, (213) 996-0900. Orange County office: 625 The City Drive,Suite 290, Orange, CA 92868, (714) 740-2100. Contact Hank Kahrs, [email protected],

Alan Lurie, [email protected]. San Diegooffice: 11440 W. Bernardo Court Suite 300, SanDiego, CA 92127, (619) 236-0377. Contact Rich

Holstrom, [email protected]. Baker TillyVirchow Krause, LLP (Baker Tilly) is a leading advisory,tax, and assurance firm whose specialized profession-als guide clients through an ever-changing businessworld. Effective December 2018, RGL Forensics joinedBaker Tilly Virchow Krause, creating a premier globalforensics practice. The firm’s forensic financial expertsare dedicated to damage analysis, fraud investigation,and valuation. Serving the legal, insurance, and busi-ness communities for more than 30 years, the practiceis unique in its ability to combine investigative account-ing, business valuation, fraud, and forensic technologyexpertise. For attorneys, we discover and define finan-cial value in transactions and civil and criminal dis-putes, and when necessary provide expert witnesstestimony in court and arbitration proceedings. Head-quartered in Chicago, the firm has operations acrossfive continents. Baker Tilly Virchow Krause is an inde-pendent member of Baker Tilly International, a world-wide network of independent accounting and businessadvisory firms in 147 territories. For more information,please visit www.bakertilly/globalforensics.

MARKETING

DR. MICHAEL A. KAMINSDrucker School of Management, Claremont University,6401 Warner Drive, Los Angeles CA 90048, 323) 868-9507, fax (323) 931-0258, e-mail: michael.kamins

@cgu.edu. Services offered include expert surveyresearch/questionnaire design on Lanham Act issuesof confusion, secondary meaning, and dilution. I haveknowledge of consumer behavior, marketing strategy,and marketing research. I have worked on false adver-tising cases and misappropriation of celebrity identityinclusive of cases involving President Trump (TrumpUniversity), Jay-Z, the rock group Boston, Taylor Swift,and The Doors as well as Samsung vs. Apple. Rate fordeposition, trial and consultation at $750/hr. and a 10hour retainer.

MARRIAGE DISSOLUTION





MECHANICAL ENGINEERING

4X FORENSIC ENGINEERINGLABORATORIES, INC.5262 Oceanus Drive, Huntington Beach, CA 92649,(714) 450-8500, fax (714) 450-8599, e-mail: [email protected]. Website: www.4Xforensic.com. Contact Phil Van Herle. 4X Forensic EngineeringLaboratories is a full-service forensic engineering labo-ratory. We provide expert witness and analytical andtesting services in the following areas: fires and explo-sions: electrical and gas product defect investigations,thermal and fire modeling and laboratory testing; waterloss: materials, corrosion, and failure analysis ofplumbing products; failure analysis: metallurgy, prod-uct testing, and computerized stress analysis; accidentreconstruction: automotive, trucks, construction equip-ment, and premises liability. See display ad on

page 49.

MEDICAL

MRK MEDICAL CONSULTANTS11249 Gold Country Boulevard, Suite 165, Gold River, CA 95670, (800) 403-1647. Website: www.mrkmedconsultants.com. Contact Edward Younger,

III, MD., Medical Director. Board certified in orthope-dic surgery. With over 30 consultant specialists, MRKprovides expert witness services throughout California.Our consultants are dedicated to maintaining the high-est standards of objective review and analysis of per-sonal injury cases. MRK coordinates the schedulingand report process and has physicians available tohelp you determine your expert witness needs.


TASAMED (A DIVISION OF THE TASA GROUP, INC.)Local, National and Global. Plaintiff/Defense.Civil/Criminal. Contact Patricia Keily. (800) 659-8464, fax (800) 850-8272, e-mail: [email protected]: www.TASAmed.com. Customized Expertand Consultant Referrals in all Medical Practice Areas!We refer a variety of quality, independent andexperienced medical experts—including hard-to-findspecialist—for case merit reviews, testimony atdeposition or trial, research, IMEs, and more in 1,000+medical fields. Our skilled referral advisors offerexceptional personal service to target your criteria,forward resumes for your review and help arrange yourinitial telephone screening interviews with experts.There is no charge unless you designate or engage anexpert we refer. Visit our website and search expertprofiles by expertise key word, order due diligenceresearch reports on your expert witness or opposingcounsel’s, request an expert through our online form,and check out our e-Discovery and Cyber SecuritySolutions. Call now so that we can start saving youtime! Save $175 (admin fee) on your first expertwitness designation by mentioning Promo Code:LATM19. Be sure to check out our insert and displayad in this issue! Please see our insert in this issue

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MEDICAL LEGAL

ROUGHAN & ASSOCIATES AT LINC, INC.465 N. Halstead Street, Suite 120, Pasadena, CA91107, (626) 351-0991, fax (626) 351-0992, e-mail:[email protected]. Contact Jan Roughan. Specialties:Roughan and Associates at LINC is a case manage-ment and medical/legal consulting firm. Services/products offered include: 1) Expert Testimony, 2) LifeCare Plan (LCP) Construction/LCP Critique, 3) MedicalRecord Organization/Summarization/Analysis, 4) Rea-sonableness Analysis, 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 dis-

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MEDICAL MALPRACTICE

MRK MEDICAL CONSULTANTS11249 Gold Country Boulevard, Suite 165, Gold River, CA 95670, (800) 403-1647. Website: www.mrkmedconsultants.com. Contact Edward Younger,

III, MD., Medical Director. Board certified in orthope-dic surgery. With over 30 consultant specialists, MRKprovides expert witness services throughout California.Our consultants are dedicated to maintaining the high-est standards of objective review and analysis of per-sonal injury cases. MRK coordinates the schedulingand report process and has physicians available to help you determine your expert witness needs.

MEDICAL/DERMATOLOGY

DANIEL A. GROSS, MD18364 Clark Street, Tarzana, CA 91356, (818) 345-7122, fax (818) 345-7448, e-mail: [email protected]. Contact Daniel A. Gross, MD.

Board certified practicing dermatologist. Experiencedforensic witness and consultant. Comparable experi-ence in plaintiff and defense cases. UCLA MedicalSchool, Honorary Clinical Professor.

MEDICAL/NEUROLOGY

JONATHAN S. RUTCHIK, MD, MPH, FAAN, FACOEM35 Miller Avenue, Suite 331, Mill Valley, CA 94941,(415) 381-3133, fax (415) 381-3131, e-mail: [email protected]. Website: www.neoma.com. JonathanS. Rutchik, MD, MPH, FAAN, FACOEM is one of thefew physicians in the USA who is board certified in


both Neurology and Occupational and EnvironmentalMedicine. An asssociate professor at UCSF, he pro-vides clinical evaluations and treatment, including elec-tromyography, of individuals and populations with sus-pected neurological illness secondary to workplaceinjuries or chemical exposure. Services include medicalrecord and utilization review and consulting to indus-trial, legal, government, pharmaceutical, and academicinstitutions on topics such as metals and solvents,pesticides, mold exposures, product liability, musi-cians’ injuries, neurological fitness for duty in police,firefighter, DOT and safety sensitive positions as wellas head injuries and neurological trauma. Offices in SF,Richmond, Petaluma, Sacramento, and Eureka/Arcata. Licensed in CA, NY, MA, NM and ID. See

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MEDICAL/NEUROPSYCHOLOGY

MRK MEDICAL CONSULTANTS11249 Gold Country Boulevard, Suite 165, Gold River, CA 95670, (800) 403-1647. Website: www.mrkmedconsultants.com. Contact Edward

Younger, III, MD., Medical Director. Board certifiedin orthopedic surgery. With over 30 consultant special-ists, MRK provides expert witness services throughoutCalifornia. Our consultants are dedicated to maintain-ing the highest standards of objective review andanalysis of personal injury cases. MRK coordinates thescheduling and report process and has physiciansavailable to help you determine your expert witnessneeds.

MEDICAL/PHYSICAL THERAPY

DR. JOYCE M. CAMPBELL, PHD, PT, EN3336 Winlock Road, Torrance, CA 90505, (310) 539-3143, e-mail: [email protected]. Over 40 years inphysical therapy practice (acute, rehab and outpa-tient); licensed electroneuromyographer, professor of

PT in DPT curriculum, peer review/expert consultantand witness since 1978 (both defense and plaintiff).Expertise/research: musculoskeletal, neuromuscular,peripheral and central nervous system disorders (CVA,TBI, SCI, CP, MS, peripheral neuropathy), botulinumtoxin on nerve & muscle, and clinical applications ofelectrical stimulation.

MEDICAL/TOXICOLOGIST

ALLERGY, ASTHMA, RESPIRATORY CARE2600 Redondo Avenue, #400, Long Beach, CA90806, (562) 997-7888, fax (562) 684-4899, e-mail:[email protected]. Website: www.theallergyasthma.com. Contact Jose Arraiga at (562)972-3775. Expert in over 700 cases in mold andallergy litigation, standard of care, allergy and asthma,medical practice, latex allergy.

MEDICAL/TOXICOLOGY

JONATHAN S. RUTCHIK, MD, MPH, FAAN, FACOEM35 Miller Avenue, Suite 331, Mill Valley, CA 94941,(415) 381-3133, fax (415) 381-3131, e-mail: [email protected]. Website: www.neoma.com. JonathanS. Rutchik, MD, MPH, FAAN, FACOEM is one of thefew physicians in the USA who is board certified inboth Neurology and Occupational and EnvironmentalMedicine. An associate professor at UCSF, he pro-vides clinical evaluations and treatment, including elec-tromyography, of individuals and populations with sus-pected neurological illness secondary to workplaceinjuries or chemical exposure. Services include medicalrecord and utilization review and consulting to indus-trial, legal, government, pharmaceutical, and academicinstitutions on topics such as metals and solvents,pesticides, mold exposures, product liability, musi-cians’ injuries, neurological fitness for duty in police,firefighter, DOT and safety sensitive positions as well

as head injuries and neurological trauma. Offices in SF,Richmond, Petaluma, Sacramento, and Eureka/Arcata. Licensed in CA, NY, MA, NM and ID. See

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METALLURGICAL & CORROSIONENGINEER

4X FORENSICENGINEERING�LABORATORIES, INC.5262 Oceanus Drive, Huntington Beach, CA 92649,(714) 450-8500, fax (714) 450-8599, e-mail: [email protected]. Website: www.4Xforensic.com. Contact Phil Van Herle. 4X Forensic EngineeringLaboratories is a full-service forensic engineering labo-ratory. We provide expert witness and analytical andtesting services in the following areas: fires and explo-sions: electrical and gas product defect investigations,thermal and fire modeling and laboratory testing; waterloss: materials, corrosion, and failure analysis ofplumbing products; failure analysis: metallurgy, prod-uct testing, and computerized stress analysis; accidentreconstruction: automotive, trucks, construction equip-ment, and premises liability. See display ad on

page 49.


Naresh Kar, Dr. Nikhil Kar. Southern California’s pre-mier materials/mechanical/metallurgical/structural /forensics laboratory. Registered professional engi-neers with 30+ years in metallurgical/forensic/struc-tural/mechanical failure analysis. Experienced withautomotive, bicycles, tires, fire, paint, plumbing, corro-sion, and structural failures. We work on both plaintiffand defendant cases. Complete in-house capabilitiesfor tests. Extensive deposition and courtroom experi-ence (civil and criminal investigations). Principals areFellows of American Society for Metals and Fellows,American College of Forensic Examiners. See display

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METALLURGY

EAG, INC. (FORMERLY SEALLABORATORIES)250 North Nash Street, El Segundo, CA 90245, (310)322-2011, fax (310) 322-2243. Website: www.eag.com. Contact Dr. Arun Kumar at akumar@eag

.com or Thomas Tan at [email protected]. EAG per-forms metallurgical analysis and failure analysis investi-gations of various metallic and non-metallic productsand components used in the aerospace, transporta-tion, consumer products, construction and medicaldevice industries. Additionally, we assist our clientswith product design, materials selection, productimprovement and quality assurance programs involv-ing metallurgical issues. From routine metallurgicaltesting to complex consulting, EAG ensures the high-est standard of quality for metallurgical evaluations.


Naresh Kar, Dr. Nikhil Kar. Southern California’s pre-mier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engi-neers with 30+ years in metallurgical/forensic/struc-tural/mechanical failure analysis. Experienced withautomotive, bicycles, tires, fire, paint, plumbing, corro-sion, and structural failures. We work on both plaintiffand defendant cases. Complete in-house capabilitiesfor tests. Extensive deposition and courtroom experi-ence (civil and criminal investigations). Principals areFellows of American Society for Metals and Fellows,


American College of Forensic Examiners. See display

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METEOROLOGY

AIR, WEATHER, AND SEA CONDITIONS, INC.P.O. Box 512, Pacific Palisades, CA 90272, (818) 645-8632, fax (310) 454-6530, e-mail: [email protected]. Website: www.weatherman.org. Contact Jay

Rosenthal, AMS Certified Consulting Meteorolo-

gist (CCM). Experienced and authoritative expert testi-mony, reports and analyses of wind, rain, storms, fog,ice, lightning, climatic conditions, flooding, waves, spe-cialist in wildfires, ice, dust, auto/boat/ship/aircraftaccident reconstruction, property damage, slip andfalls, construction, mold issues, homeland securityapplications, air pollution, transport, and risk identifica-tion. Movie industry applications, cinematography, andvisual effects. Determining unusualness, normalcy, andforeseeability. Official data, site visits, clear and con-vincing testimony. See display ad on page 52.

ORTHOPEDIC SURGEON

MRK MEDICAL CONSULTANTS11249 Gold Country Boulevard, Suite 165, Gold River,CA 95670, (800) 403-1647. Website: www.mrkmed-consultants.com. Contact Edward Younger, III,

MD., Medical Director. Board certified in orthopedicsurgery. With over 30 consultant specialists, MRK pro-vides expert witness services throughout California.Our consultants are dedicated to maintaining the high-est standards of objective review and analysis of per-sonal injury cases. MRK coordinates the schedulingand report process and has physicians available tohelp you determine your expert witness needs.

WILLIAM B. STETSON, MD191 South Buena Vista Street, Suite 470, Burbank, CA91505, (818) 848-3030, fax (818) 848-2228, e-mail:[email protected]. Website: www.sportsmedicinedr.com. Contact W. Stetson, MD. Dr.Stetson is fellowship trained in arthroscopic surgery ofthe shoulder, knee, elbow, and ankle. He is an Associ-ate Clinical Professor of orthopedic surgery at the USCKeck School of Medicine. He also has extensive expe-rience in sports medicine and orthopedic trauma.

PEDIATRIC EXPERT WITNESS

MICHAEL WEINRAUB, MD, FAAP777 South Figueroa Street, Suite 650, Los Angeles,CA 90017, (213) 335-6512, fax (213) 335-6517 e-mail:[email protected]. Website: www.michaelweinraubmd.com. Contact Dr. Michael

Weinraub. Experience in general pediatrics applied tolegal matters involving children. Board Certified Pedia-trician. Child abuse and neglect, Munchausen syn-drome by proxy, shaken baby syndrome (SBS), leadpoisoning, fetal alcohol spectrum disorder (FASD),pediatric malpractice, childhood injury and product lia-bility, developmental disabilities (autism), healthcare offoster children, and adoption/custody evaluation forhealth supervision concerns.

PERSONAL INJURY



[email protected]. San Diego office: 11440W Bernardo Court, Suite 300, San Diego, CA92127, (619) 236-0377. Contact Rich Holstrom,

[email protected]. Baker Tilly VirchowKrause, LLP (Baker Tilly) is a leading advisory, tax, andassurance firm whose specialized professionals guideclients through an ever-changing business world.

Effective December 2018, RGL Forensics joined BakerTilly Virchow Krause, creating a premier global foren-sics practice. The firm’s forensic financial experts arededicated to damage analysis, fraud investigation, andvaluation. Serving the legal, insurance, and businesscommunities for more than 30 years, the practice isunique in its ability to combine investigative account-ing, business valuation, fraud, and forensic technologyexpertise. For attorneys, we discover and define finan-cial value in transactions and civil and criminal dis-putes, and when necessary provide expert witnesstestimony in court and arbitration proceedings. Head-quartered in Chicago, the firm has operations acrossfive continents. Baker Tilly Virchow Krause is an inde-pendent member of Baker Tilly International, a world-wide network of independent accounting and businessadvisory firms in 147 territories. For more information,please visit www.bakertilly/globalforensics.



Expert witness testimony for complex litigation involv-ing damage analyses of lost profits, unjust enrichment,

reasonable royalties, lost earnings, lost value of busi-ness, forensic accounting, fraud investigation, inves-tigative analysis of liability, and marital dissolution, andtax planning and preparation. Excellent communica-tors with extensive testimony experience. Prior BigFour accountants. Specialties include accounting,breach of contract, breach of fiduciary duty, businessinterruption, business dissolution, constructiondefects, delays, and cost overruns, fraud, insurancebad faith, intellectual property (including trademark,patent, and copyright infringement, and trade secrets),malpractice, marital dissolution, personal injury, prod-uct liability, real estate, securities, tax planning andpreparation, IRS audit defense, tracing, unfair advertis-ing, unfair competition, valuation of businesses, andwrongful termination. See display ad on page 47.

PLASTIC & COSMETIC RECONSTRUCTIVE SURGERY

BRENT MOELLEKEN, MD, FACSBeverly Hills office, 120 South Spalding Drive, Suite110, Beverly Hills, CA 90212, (310) 273-1001, fax(310) 205- 4881. Santa Barbara office, 601 EastArrellaga Street, Suite 103, Santa Barbara, CA 93103,(805) 798-9299. Website: www.drbrent.com. Contact Mallery. IME, deposition, trial experience,medical record review, plastic and reconstructionsurgery, accident reconstructions, microsurgical nerverepairs, dog bite reconstructions, and laser scarservices. Associate clinical professor of surgery, UCLADivision of Plastic Surgery.

PLASTIC SURGERY/BURN SPECIALIST

JEFFREY L. ROSENBERG, MD, FACS1245 Wilshire Boulevard, Suite 601, Los Angeles, CA 90017, (213) 977-0257, fax (213) 977-0501,e-mail: info @jrosenbergmd.com. Website: www


.jrosenbergmd.com. Contact Wendy. Plastic andreconstructive surgery, burn specialist. Diplomate,American Board of Plastic Surgery. Member, AmericanBurn Association and American Society of Plastic Sur-geons. Past-President, California Society of PlasticSurgeons. Assoc. Clinical Professor of Medical Educa-tion, USC.

PLASTICS


Naresh Kar, Dr. Nikhil Kar. Southern California’s premier materials/mechanical/metallurgical/structural/forensics laboratory. Registered professional engi-neers with 30+ years in metallurgical/forensic/struc-tural/mechanical failure analysis. Experienced withautomotive, bicycles, tires, fire, paint, plumbing, corro-sion, and structural failures. We work on both plaintiffand defendant cases. Complete in-house capabilitiesfor tests. Extensive deposition and courtroom experi-ence (civil and criminal investigations). Principals areFellows of American Society for Metals and Fellows,American College of Forensic Examiners. See display

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PLUMBING

4X FORENSIC ENGINEERING�LABORATORIES, INC.5262 Oceanus Drive, Huntington Beach, CA 92649,(714) 450-8500, fax (714) 450-8599, e-mail: [email protected]. Website: www.4Xforensic.com. Contact Phil Van Herle. 4X Forensic EngineeringLaboratories is a full-service forensic engineering labo-ratory. We provide expert witness and analytical andtesting services in the following areas: fires and explo-sions: electrical and gas product defect investigations,thermal and fire modeling and laboratory testing; waterloss: materials, corrosion, and failure analysis ofplumbing products; failure analysis: metallurgy, prod-uct testing, and computerized stress analysis; accidentreconstruction: automotive, trucks, construction equip-ment, and premises liability. See display ad on

page 49.

PODIATRY—FOOT SPECIALIST

STEVEN L. ROSENBERG, DPM2901 Wilshire Boulevard, Suite 110, Santa Monica, CA 90403, (310) 828-3336, fax (310) 828-0096, e-mail: [email protected]. Website: www.rosenbergstevendpm.com. Expert witness, plaintiff and defense, IME, podiatric surgery, medicine, sportsmedicine, trauma injuries, and pain management. Second opinion reports, x-ray review, and evaluations.Treating all ages, infants, children and adults. Over 36 years of experience.

PSYCHOLOGY/PSYCHOLOGICALASSESSMENT

JUDY HO, PH. D., ABPP, ABPDN, CFMHEBOARD CERTIFIED CLINICAL AND FORENSICNEUROPSYCHOLOGIST Tenured Associate Professor at Pepperdine University;Diplomate, American Board of Professional Psychol-ogy; Diplomate, American Academy of Pediatric Neu-ropsychology; Diplomate, National Board of ForensicEvaluators; 1600 Rosecrans Avenue, Media Center 4thFloor, Manhattan Beach, CA 90266, (310) 745-8887,fax (310) 943-2585, e-mail: [email protected]: www.drjudyho.com. Dr. Ho conducts foren-sic, neuropsychological, and Independent MedicalEvaluations and provides expert testimony regardingpsychological testing methods, results, and conclu-sions for civil & criminal proceedings, including 1) per-

sonal injury (including psychological injury and trau-matic brain injury claims), 2) fitness for duty, 3) employ-ment/discrimination/wrongful termination cases, 4)sexual assault and trauma cases, 5) professionallicensing disputes, and 6) assessment of competency,risk, and psychological state/functioning at time ofcriminal offense. Dr. Ho is a member of the Interna-tional neuropsychological Society, National Academyof Neuropsychology and Division 40 (Soc. for ClinNeuropsych) and 41 (American Psych-Law Soc.) of theAmerican Psychological Association. Dr. Ho is a two-time recipient of the National Institute of Mental HealthNational Services Research Award, and the chair ofthe Institutional Review Board at Pepperdine Univer-sity. She conducts clinical and community research onmental health, and is a published author of a full-lengthbook, publishes empirical studies, book chapters, andbooks, and is a frequent invited speaker at variousnational and local conferences and media outlets.

REAL ESTATE

SAMUEL K. FRESHMAN, BA, JD5901 West Century Boulevard, Suite 1010, Los Ange-les, CA 90045, (310) 410-2300, fax (310) 410-2919.Contact Samuel K. Freshman. Attorney and realestate broker since 1956, banker, professor, arbitra-tion, brokerage malpractice, leases, syndication, con-struction, property management, finance, due dili-gence, conflict of interest, title insurance, banking,escrow, and development. Expert witness 30+ years in state and federal courts. Twenty-two published articles, arbitrator and mediator, general partner$500,000,000+ in shopping centers, apartments, andindustrial property. Stanford—BA 1954, JD 1956. See

display ad on page45 .

LAWRENCE H. JACOBSON, ESq.9401 Wilshire Boulevard, Suite 1250, Beverly Hills, CA90212, (310) 271-0747, fax (310) 271-0757, e-mail:[email protected]. Website: www.lawrencejacobson.com. Past President, Beverly Hills Bar Association.Expert witness: lawyer malpractice in business andreal estate transactions, fee disputes, legal ethics,standard of care for real estate brokers and mortgagebrokers, and real estate document custom and usage.Practicing real estate and business law in Californiasince 1968. See display ad on page 53.

THE REYNOLDS GROUPP.O. Box 1996, Tustin, CA 92781-1996, (714) 730-5397, fax (714)730-6476, e-mail: [email protected]. Website: www.reynolds-group.com. Contact Ed Reynolds, RCE, Principal.

An environmental consulting, and contracting firm.Expertise: environmental contamination, assessment,remediation, reasonable value of construction, stan-dard of care, and related financial matters. Degrees inCivil Engineering: USC (BS), University of Houston(MS), (MBA) Harvard. California Registered Civil Engi-neer, Licensed A, B, HAZ California Contractor. 30years’ experience. Adjunct Faculty Member USCViterbi School of Engineering Department of Civil andEnvironmental Engineering.

MAURICE ROBINSON AND ASSOCIATES LLC28 Dover Place, Manhattan Beach, CA 90266,(310) 640-9656, fax (310) 640-9276, e-mail:

[email protected]. Website: www.mauricerobinson .com. Contact R. Maurice

Robinson, president. Hotel and real estate industrybusiness issues, including market, economic andfinancial feasibility, valuation, and disputes betweenowner-operator, borrower-lender, and franchisor-fran-chisee. Fluent in management contracts, licenseagreements, ground and building leases, partnershipand JV agreement, concession contracts, develop-ment agreements, and loan docs. Can estimate dam-ages and appraise property values under multiple sce-narios. Expert witness testimony, litigation strategy,consultation and support, damage calculations, lost

profits analysis, real estate appraisals, deal structuring,workouts, new development, strategic planning, mar-ket demand assessment, acquisition due diligence,and economic, financial, and investment analysis.


MAI, CRE. Waronzof provides real estate and land uselitigation support services including economic dam-ages, lost profits, financial feasibility, lease dispute,property value, enterprise value, partnership interestand closely held share value, fair compensation, lenderliability, and reorganization plan feasibility. Professionalstaff of five with advanced degrees and training in realestate, finance, urban planning, and accounting. See


REAL ESTATE APPRAISAL

COASTLINE REALTY ADVISORS3020 Old Ranch Parkway, Suite 300, Seal Beach, CA90740, (562) 598-2402, fax (562) 598-9097, e-mail:[email protected]. Website: www.coastlinerealtyadvisors.com. Contact Michael V.

Sanders, MAI, SRA. Real estate valuation and dam-age analysis expert in residential and commercial/industrial property. MAI and SRA designations from theAppraisal Institute, also membership in IRWA andFEWA; numerous articles and publications. Valuationexpertise includes construction defect, geotechnical,water intrusion, easement/title, environmental, view,proximate nuisance, natural disasters, estate/casualtyloss, marriage dissolution, appraisal review, and stan-dard of care.

REAL ESTATE—PROPERTYMANAGEMENT

E. ROBERT MILLER & ASSOCIATESPROPERTY MANAGEMENT EXPERTS330 Primrose Road, Suite 606, Burlingame, CA94010, (650) 373-0705, fax (650) 373-0709, e-mail:[email protected]. Website: www.erobertmiller.com. Contact E. Robert Miller. Specialties: expertwitness in property management issues for all types ofcommercial and residential real estate. Experience inarbitration, litigation, lease terms, personal injury, prop-erty damage, security, industry standards of care, anddue diligence. Retained as an expert witness consul-tant in more than 1,400 lawsuits.

SAFETY


SPOUSAL EVALUATIONS/DISSOLUTION CASES

NIGRO KARLIN SEGAL & FELDSTEIN, LLP10960 Wilshire Boulevard, 5th Floor, Los Angeles, CA90024, (310) 229-5161, fax (310) 229-4430, e-mail:[email protected]. Website: www.nksfb.com.Contact Irwin Nachimson. I specialize in forensicaccounting and litigation support projects. Our exper-tise includes contract dispute, fraud, family law, insol-vency, music, and expert testimony. I have over 26years of experience and our entire department of 60accountants is devoted exclusively to forensic projects.


SURGERY

MRK MEDICAL CONSULTANTS11249 Gold Country Boulevard, Suite 165, Gold River, CA 95670, (800) 403-1647. Website: www.mrkmedconsultants.com. Contact EdwardYounger, III, MD., Medical Director. Board certifiedin orthopedic surgery. With over 30 consultant special-ists, MRK provides expert witness services throughoutCalifornia. Our consultants are dedicated to maintain-ing the highest standards of objective review andanalysis of personal injury cases. MRK coordinates thescheduling and report process and has physiciansavailable to help you determine your expert witnessneeds.

SURVEY RESEARCH

DR. MICHAEL A. KAMINSDrucker School of Management, Claremont University,6401 Warner Drive, Los Angeles CA 90048 ,(323) 868-9507, fax (323) 931-0258, e-mail: [email protected]. Services offered include expert surveyresearch/questionnaire design on Lanham Act issuesof confusion, secondary meaning, and dilution. I haveknowledge of consumer behavior, marketing strategy,and marketing research. I have worked on false adver-tising cases and misappropriation of celebrity identityinclusive of cases involving President Trump (TrumpUniversity), Jay-Z, the rock group Boston, Taylor Swift,and The Doors as well as Samsung vs. Apple. Rate fordeposition, trial and consultation at $750/hr. and a 10hour retainer.

TOXICOLOGY

PRINCETON-SOMERSET GROUP, INC.4 Carroll Drive, Hillsborough, NJ 08844, (800) 597-8836, (908) 369-6890, fax (908) 369-6881. Website:

www.PrincetonSomerset.com. Contact Dr. DennisStainken. Expert witness, toxicology, health issues,chemical exposure, mold issues, worker exposure,contamination issues, causation assessment, propertydamage/contamination and remediation, sewage,gasoline and oil issues and age determination, petro-leum releases, chemicals/products, risk assessment,indoor air quality/health effects, toxic tort evaluation,chemistry, site assessment, regulatory issues, environ-mental toxicology, environmental issues, and wet-land/ecological. Services nationwide. Thirty-plus yearsof industrial and government experience in pollutionunder NPDES, CERCLA, RCRA, SDWA, and CWA.Former federal and state regulator, professor, consul-tant, industrial research. Seventy-five plus publications.

TRAFFIC ENGINEERING/ROADWAY DESIGN

WILLIAM KUNZMAN, PE1111 Town and Country #34, Orange, CA 92868, (714) 904-2821, e-mail: [email protected]. Website: www.traffic-engineer.com. ContactWilliam Kunzman, PE. Traffic expert witness since1979, both defense and plaintiff. Auto, pedestrian,bicycle, and motorcycle accidents. Largest plaintiffverdicts: 1) $12,200,000 in pedestrian accident caseagainst Caltrans, 2) $10,300,000 in case against LosAngeles Unified School District. Largest settlement:$2,000,000 solo vehicle accident case against Cal-trans. Best defense verdicts: 1) $0 while defendingCaltrans and opposition sought $16,000,000. 2) $0defending City of Long Beach and opposition sought$15,000,000. Before becoming expert witness,employed by Los Angeles County Road Department,Riverside County Road Department, City of Irvine,and Federal Highway Administration. Knowledge ofgovernmental agency procedures, design, geomet-

rics, signs, traffic controls, maintenance, and pedes-trian protection barriers. Hundreds of cases. Under-graduate work—UCLA, graduate work—Yale Univer-sity.

MOMENTUM ENGINEERING CORP.2862 Columbia Street, Torrance, CA 90503, (310) 618-8017, fax (310) 618-8194, e-mail: [email protected] Website: www.momentum-eng.com Contact Reza Marshal. Expert witness ontraffic engineering and highway design including tortliability, traffic signals, traffic signs and pavement mark-ings, signal and stop warrant investigation, speed sur-vey, traffic impact study, construction zone temporarytraffic control, bicycle/pedestrian facilities, geometricalignment, sight distance, traffic barriers, pavementedge drop-off, drainage, access management andexpert testimony.

WASTEWATER

JOHN SHAW CONSULTING, LLC Tel: (530) 550-1576, e-mail: [email protected]. Website: www.shaweng.com. Contact John Shaw,PE. Water/wastewater/sewer industry—unique com-bination of operations and engineering background.Sanitary engineering including water (potable) andwastewater (industrial and domestic) treatment, con-veyance, hydraulics, storage, reuse, master planning,operations, maintenance, and expert witness andforensic (mode of failure and standard of care analy-sis, engineering analysis, product suitability and con-struction defect issues). Wastewater treatmentplants, disposal/reuse facilities, sewage lift stationdesign, sewer collection systems, and sludge treat-ment. Water treatment plants, pipelines, and swim-ming pools.



THE AMERICAN BAR ASSOCIATION’S 2017 National Task Force onLawyer Well-Being report1 highlights a “parade of difficulties”facing the profession, including mental illness, substance abuse,work addiction, social alienation, incivility, work-life conflict, jobdissatisfaction, and negative public perception. The report and itssupporting research suggest that these issues represent a significantthreat to the profession’s ability to “preserve the public’s trust andmaintain our status as a self-regulating profession, and truly becomeour brothers’ and sisters’ keepers.”

The ABA report served its purpose: The legal community isstarting to take notice of the well-being issue. Firms are designatingwell-being officers, instituting wellness programs, and offeringemployees new wellness-related benefits. Like most complex prob-lems, though, well-being cannot be patched with a single quickfix. New well-being programs, however well-intentioned, oftenpresent a one-size-fits-all approach that ignores the unique talentprofile and culture of each law firm. Further, because measuringimproved well-being is difficult, many law firm programs conflateparticipation with effectiveness.

From the perspective of a firm seeking to heighten performance,lawyer well-being is about “promoting sustainable careers, increasingworkplace social support, and safeguarding against work intensi-fication.”2 As consultants to law firm management, attorneys rec-ognize that this definition poses a significant challenge for firmsand recognize the legal community needs to take a more holistic,systems-oriented perspective. In short, a new approach to enhancingprofessional well-being is needed: one that looks less like a programand more like a process.

First, it is helpful to frame the challenge as a design problem,focusing on firm efficiency and individual well-being and adoptingan approach that engages a firm’s lawyers to find out what reallymatters to them. A firm must understand how its lawyers definewell-being and what interventions and policies they would findhelpful to increase and sustain it. One firm’s associates may valuea focus on mental health while another’s may emphasize physicalhealth or work-life balance. By finding out what matters most—before attempting to design interventions—firms can create asystem of action that is meaningful to employees and tailored totheir organizational values and culture.

This design process creates an ongoing conversation that engagesassociates, partners, and firm management. It also ensures thatwell-being programs and policies are aligned with the currentexpectations of younger associates who expect to have a voice inthe decision-making process. The design process of a firm’s well-being program, however, is not as simple as jotting down a fewquestions and deploying an online survey. An effective design maydepend as much on who is asking the questions as picking theright questions to ask, given the understandable concerns aboutcareer repercussions, confidentiality, and privacy.

The next second step in the design process is to align the well-

being priorities of employees with the expectations of the firm’sleadership to build and implement solutions that fit the firm’svision and existing culture while addressing the firm’s challenges.

Once the well-being program and policies are in place, the nextstep is to develop metrics to validate their impact with empiricaldata. For example, in 2013, the city of Santa Monica won aMayors Challenge grant from Bloomberg Philanthropies for thecity’s Wellbeing Project, which used a “data-driven approach tomeasuring and managing wellbeing,” using a “sophisticated indexfocused on economic vitality, social relationships, health, educa -tion/care, and local environment.”3 The city’s Wellbeing Indexwas the key to gaining an understanding of what policies actuallymade a difference in the quality of life of its residents.

The fourth step in the design process is ongoing feedback anditeration because very few effective processes are designed in thefirst take. Ultimately, addressing the well-being challenge will takea system of policies and programs working together to foster incre-mental improvements. Addressing lawyer well-being will undoubt-edly cause ripples across a firm as legacy processes and entrenchedpartner expectations come into conflict with new policies. By anal-ogy, when Alcoa made workplace safety its priority, new routines“moved through the organization, costs came down, quality wentup, and productivity skyrocketed.”4 A law firm may not operatelike a factory assembly line, but if a firm embraces change, it willultimately benefit.

The legal community has recognized the well-being problemand has started down the path of taking some initial steps. However,simply spotting the issue and instituting a few well-intended pro-grams is not going to suffice for the systematic change that isrequired to fully address what can become an existential threat.Law firms that pay attention to the process of designing, imple-menting, and constantly improving well-being initiatives amongtheir attorneys will likely have an advantage in the future. n

1 NATIONAL TASK FORCE ON LAWYER WELL-BEING, THE PATH TO LAWYER WELL-BEING: PRACTICAL RECOMMENDATIONS FOR POSITIVE CHANGE (Aug. 2017).2 Ellen E. Kossek et al., The Sustainable Workforce, in WELLBEING: A COMPLETE REF-ERENCE GUIDE. WORK AND WELLBEING 295 (Cary L. Cooper ed., 2014).3 Press release, Bloomberg Philanthropies, Bloomberg Philanthropies AnnouncesMayors Challenge Winners Providence, Chicago, Houston, Philadelphia, and SantaMonica (Mar.132013), https://www.bloomberg.org/press/releases/bloomberg-philanthropies-announces-mayors-challenge-winners-providence-chicago-houston-philadelphia-and-santa-monica.4 CHARLES DUHIGG, THE POWER OF HABIT: WHY WE DO WHAT WE DO IN LIFE AND BUS - I NESS (2012).

closing argument BY FRED KIPPERMAN, ANITA BHAPPU, AND DAVE BAIOCCHI

Improving Health and Well-Being in the Legal Community

Fred Kipperman, J.D., is president of Bay Cities Technology & Consulting andadvises HealthPiper, a virtual psychiatry company. Anita Bhappu is a professorand chair of the Management of Innovation, Sustainability and Technologygroup in the School of Engineering at UC Merced. Dave Baiocchi is the managingpartner at Imaginative Futures. All three have participated in recent well-being events concerning the legal community in Los Angeles.

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