Expert Testimony in Superior Court Trials

WAKE COMPOUND V. FISHER AND RITCHEY (Transaction Malpractice)
In September, 2016, in San Diego Superior Court, expert testimony on behalf of Plaintiff suing lawyer, on multiple theories arising out of a memo to acquire a permit, as well as contracts for the operation of a wake board cable park complex on the Paula Indian Reservation at a cost of over $2,000,000.  The Defendant attorney did no legal research, relied on the Indian attorneys in sophisticated negotiations and took the position that she was acting only as a scribner of the client’s wishes in violation of both the standard of care and fiduciary duties.  The case settled at a pre-trial mandatory settlement conference for the policy limits.  In summarizing the case, Plaintiff’s counsel stated to the undersigned that “the strength of your deposition compared with the weakness of defense counsel’s deposition was the main factor in contributing to a settlement with policy limits.”  Retained by Grant Peto of the law firm of Baroian Peto.

SHABANI, KAMBIZ V. FRIED AND GOLDSMAN (Marital Dissolution)
In March, 2016, before Judge Karlan, in Santa Monica Superior Court, hired by plaintiff concerning attorneys' failure to properly analize and upgrade forensic expert's analysis of client's real estate investments and income, as well as breach of fiduciary duty and fee dispute involving mid 6 figure fees incurred in a short number of months of the attorneys' engagement.  Case settled on the courthouse steps immediately before trial.  Retained by Pedram Minoofar.

BLOCK V. GOLLAND (Transaction Malpractice)
In November, 2015, in Santa Monica Superior Court, before Judge Craig Karlan, expert testimony against a lawyer who violated the standard of care by failing to give advice as to the inclusion of language in a guaranty allowing for installment payments and agreeing to a guaranty with an attorney fee provision, where the underlying contract did not have an attorney fee provision.  In the court trial, the judgment for defendant was based upon a failure to prove causation.

GUSEINOV V. MORRIS (Transaction Malpractice)
In February, 2015, in the Glendale Superior Court, before Judge Matz, expert testimony against lawyers on theories of breach of fiduciary duty acting in a conflict of interest. Defendant represented multiple investors in a business venture where plaintiff was the only person liable for rental payments on the business lease.  The business failed and was subject to an unlawful detainer action where plaintiff was solely responsible.  The jury awarded compensatory damages of $244,000 and punitive damages of $375,000.  Punitive damages were awarded because the jury found the breach of the fiduciary duty to be wanton and wilful.  Retained by Layfield & Wallace.

HUNTSMAN V. KRUPNICK (Transaction Malpractice)(Attorney Partnership)
In November, 2013, in Ventura Superior Court, before Judge Lang, expert testimony on behalf of lawyer being sued on multiple theories arising out of a memo to sell interest in a law practice. Expert testimony on behalf of defendant attorney regarding deficiencies and lack of certainty in the partnership memo which was never completed into a sale agreement. Two week jury trial resulted in defense verdict for defendant attorney. Retained by Jon Monroy.

LAI V. HANSON BRIDGETT, LLP (Transaction Malpractice)
In October, 2013, JAMS arbitration in San Francisco, before Justice Agliano, testified concerning attorney’s failure to adequately advise concerning right to bring a complaint in the event settlement was not completed and limitation of client’s ability to collect settlement against defendant guarantor of the settlement amount. Issues concerning legal rights in California arising out of contract to be performed in China. Arbitrator held for attorney on issue of causation. Retained by Joe Carcione, Jr. at Carcione, Cattermole, et al. in Redwood City.

OCEAN PARK V. KEVIN GERRY (Attorney Fee Dispute)
In June, 2013, Santa Barbara Superior Court, before Judge Tom Anderle, testified for defendant. Client challenged validity of fee agreement and attorney lien which was submitted in a court trial. Retained by Kevin Gerry (see Judge Anderle’s evaluation of Mr. Rolin as an expert witness attached to resume).

JOY V. SOLARES (Claim for Restitution)
In May, 2013, Orange County Superior Court, testified for defendant in a wrongful death case as to reasonable value of attorney’s fees in the settlement on behalf of the children for the wrongful death of their mother in a traffic accident. Also discussed economic versus non-economic damages. Retained by Kathy Learned, PD in Westminster.

IRELAND V. MCCARTHY (Transaction Malpractice)(Pension Agreement)
In December, 2012, San Jose Superior Court, expert testimony for a claim arising out of attorney's failure to properly document lifetime loyalty agreement, resulting in multimillion dollar losses. A combination of standard of care violations and violations of RPC 3-310, adverse interests, 3-600, non-distinguishing between organization and individual members, and violations of fiduciary duties. Confidential settlement achieved on first day of trial. Retained by Robert Machado.

HONARKAR V. JAHANGIRI (Transaction Malpractice – Usury)
In May, 2012, Orange County Superior Court, Judge Andrew Banks, testified for defendant attorney in claims for malpractice, fiduciary duty, usury, and violations of RPC 3-110, 3-210, 3-310, 3-500. Court trial. Court found no malpractice, but violation of fiduciary duty. Retained by Miller LLP.

F&F, LLC, ET AL. (Transaction Malpractice)(Shopping Center Construction)
In September 2011, testified for plaintiff in jury trial in front of Judge Meyer, LASC, Norwalk. Allegations of legal malpractice and breach of fiduciary duty arising out of representation of developer of construction of shopping center in Rancho Cucumonga. Defendant violated Rules of Professional Conduct, Rule 3-310 and fiduciary duty of loyalty in connection with the negotiation of a $17,000,000 construction contract. There was an ongoing need for legal advice regarding contractor disputes, and a subsequent term sheet agreement eighteen months later, which led to the contractor walking off the job and the bank foreclosing on a $30,000,000 plus shopping center loan. Defendant attorney did work for the contractor without having a informed written consent of plaintiff and, thus, was precluded from representing plaintiff when the contract came up for re-negotiation. After a three week trial, jury verdict for plaintiff $35,500,000.

ADAMS vs. PURDY (Litigation Malpractice)(Mold in Cold)
In July 2011 testified in Orange County jury case, Judge Derek Hunt on behalf of Plaintiff against attorney for malpractice based on the following: (1) Improper drafting of settlement of injuries occasioned by mold in condominium and reconstruction of unit. Settlement called for binding mediation, which the case of Lindsday vs. Lewandowsky called an oxymoron. Also chose mediator who does not do binding hearings. (2) Attorney abandoned Plaintiff after settling P.I. claims. (3) Violation of settlement agreement by failing to obtain lien removal and enforce time lines of repair and (4) Breach of Agreement to pay housing allowance. In a split trial, jury verdict 12-0 for Plaintiff on liability, which led to a confidential settlement of case. Retained by Doug Pettibone.

SCIORTINO vs. WILKINSON (Estate Handling Malpractice)
In October 2010 testified in San Bernardino in front of Judge Cynthia Ludvigsen on behalf of Plaintiff against attorney for malpractice based on the following: Violation of Rules of Professional Conduct 3-10, as well as fiduciary duties of loyalty; failure to give written notice of conflict and obtain consent in writing arising out of Defendant’s consultation with Plaintiff beneficiaries and trustor (deceased). Issue of Plaintiff’s reasonable relief in the establishment of an attorney-client relationship. Also Defendant violated and misused confidential information from Plaintiffs. Issue of causation. Retained by Robert Spitz.

PATIN vs. BOHRER (Non-Spouse Construction Dispute)
In March of 2010 testified in LASC in front of Judge Rex Heeseman on behalf of contractor against attorney for malpractice based on the following: Plaintiff found and built a custom home relying on an written agreement, which was lost and subsequent oral agreement with his partner that the home would be theirs for the rest of their lives. The partner reneged and evicted Plaintiff. Defendant attorney's lawsuit was lost on summary judgment. (1) Defendant attorney submitted the wrong contract, which was unsigned by Plaintiff; (2) did not sue for quantum meruit; (3) did not sue under appropriate exceptions to the statute of frauds; (4) did not properly value the damages to Plaintiff; (5) did not properly seek equitable relief; (6) improperly amended the complaint causing the court to find the amendment a sham pleading; (7) doing inadequate discovery; and (8) failure to designate experts. Judgment for Plaintiff. Retained by David Romley.

DOLKINOV vs. WERSHOW (Easement Dispute)
In February 2010 testified in LASC, Judge Ernest Hiroshige, defending an attorney in compliance with the standard of care in representing a client defending a contractor's claim in connection with real estate construction of two homes involving a sub-division requiring driveway access over neighbors property. Plaintiff asserted negligence in failing to designate expert witnesses and Plaintiff had not funded the litigation costs. There were issues concerning the scope of the attorney's assignment regarding appealing from the rescission of a building permit and whether the settlement with the surveyor was approved by Plaintiff. Hung jury. Retained by Kirtland & Packard.

SCHNEIDER vs. MELTON AND USHER
In February 2009, testified in LASC, Judge Soussan Bruguera, on behalf of attorney accused of malpractice in the trial of an underlying case of real estate fraud sale causing damages in excess of $2,000,000. Buyer sued for damages arising out of the sale of a 13 acre parcel in Palmdale, California. Defendant attorney substituted into the case three days into the trial. The case had been compromised by discovery sanctions, striking the answer leaving only the issue of damages. Purchaser was seeking $7,500,000, including loss of profits of $5,800,000. Underlying court awarded a judgment of $1,400,000, finding that amount of damage in the sales price. This is a case of no good deed goes unpunished. The attorney inherited an impossible assignment and was then accused of multiple claims of malpractice, including non-retention of an expert witnesses, non-disclosure of financial information and poor crossexamination of expert witnesses, proximately causing the adverse judgement. Attorney was successful in obtaining a judgement in his favor on all claims. Retained by Ulric E. J. Usher.

SHEPPARD MULLIN, ET AL. vs. BINFORD (Expert in Fee Dispute)
In October 2008 retained by Plaintiff Sheppard Mullin, et al. to give opinion testimony concerning the reasonable value of fees incurred in handling a multiple year lawsuit following Mr. Binford's purchase of a pharmacy for $1.2 million dollars. Binford alleged fraudulent books, misrepresentations as well as insurance fraud by the seller. Attorneys had obtained a writ of attachment and attempted to lobby with State legislature and represented Binford in responding to Department of Health Services investigation. Attorney fee exceeded $300,000.00. Binding arbitration in front of William Sheffield of Judicate West. Retained by Robert Beall of Sheppard Mullin.

CAMPBELL vs. SHALVOY (Expert in FINRA Underlying Case)
In January 2008 retained by Plaintiff, who accepted a reduced settlement following a NASD claim against a broker and his firm, for negligently handling and overworking his stock account in 2001 causing a loss of fifty percent of his portfolio. The Defendant attorney had the case for over 3 years, but was unable to bring the matter to arbitration. Malpractice was based upon lack of prosecution, failure to properly comply with NASD procedures, violation of Business and Professions Code, Section 6068, requiring the attorney to keep his client informed of all meaningful activity in the case. Plaintiff obtained a favorable settlement result at the conclusion of jury selection in the Torrance Courthouse in front of Judge Bob Hight, Department D. Expert qualifications were established as of my experience as a NASD arbitrator between 1995 and 2005. Retained by Avila and Peros of Manhattan Beach, California.

MARATHON ENTERTAINMENT vs. FOX & SPILLANE, LLP (Movie Contract Dispute)
In July 2007 testified in JAMS Binding Arbitration, Arbitrator Barbara Reeves on behalf of attorneys accused of committing legal malpractice in three separate underlying matters. Marathon had lost all three underlying matters and asserted the losses were the result of attorney malpractice. In the first case against actress Nia Vardalos, Plaintiff lost at the Labor Commission level. Thereafter, entered into a Settlement Agreement, which was breached and resulted in an Arbitration where the arbitrator found against Claimant in an amount in excess of $750,000.00. There were allegations of malpractice in the confidentiality and other terms of the Settlement Agreement with actress Vardalos. In the second case against actor Reggie Hayes, Defendants were accused of mishandling of the jury selection, crossexamination and burden of proof issues. Expert opinion was provided in support of the attorneys conduct. Finally in the case against Blasi, Defendants were accused of negligence in defending a Motion for Summary Judgment arising out of interpretation issues of the talent agencies act, which was the claim that also started with the Labor Commission. Attorneys were accused of negligence in the preparation of the Appellate brief. Defendant attorneys were successful in obtaining a Judgment in their favor against the charges on all three underlying matters. In addition, they were successful on their Cross-Complaint for attorney fees in an amount in excess of $200,000.00. Retained by Pat Golson of Wilson, Elser & Moskowitz.

PIKOOS vs. GREAVES (Super Shareholder Agreement)
In February 2007 testified in LASC, Central District, Judge Elihu Berle in a jury trial on behalf of a transactional attorney accused of malpractice in preparing a super majority shareholder agreement in favor of a multi-million dollar investor over the previous sole shareholder owner of the business. The Complaint alleged the super majority agreement had to be the subject of a change of article of incorporation versus a change in the bylaws and a shareholder agreement between the parties. Defendant attorney obtained a 11 to 1 defense verdict. Retained by Yee & Belilove, LLP.

GONZALES vs. FAULK (Specific Performance of Land Contract)
In August 2006, testified in the LASC, Central District, Judge Paul Gutman against an attorney, who had abandoned his client after entering into two separate fee agreements. As a consequence of the abandonment, Plaintiff lost a lawsuit for specific performance of a parcel of real property and suffered additional monetary damages as a consequence. This case of negligence per se was based upon violation of Business and Professional Code, Section 6068, subsections n m, which among other things requires the attorney to keep the client informed of a violation of Rule 3-110 "Failing to Act Competently" in numerous respects and a violation of Rule 3-500, requiring an attorney to keep the client reasonably informed of significant developments in the case.

HEFTY vs. FRIEDMAN, et al. (SOL Dispute)
In August 2005, testified in the LASC in Santa Monica, Judge Jacqueline Connor against an attorney, whose conduct was below the applicable standard of care in violations of California Rules of Professional Conduct, Rule 1.400 (d); ethical violation of In Re Miller 2 Cal. State Bar 423. There was an issue as to the duration of the attorney's duty pursuant to B.A.J.I.6.37.3 and an issue as to when the statute of limitations for malpractice commenced. In a bifurcated trial, the Judge found breach of the duty of care against the handling attorney.

CORDIER vs. TKACH (Malpractice and Fee Dispute)
In July 2004 testified in the LASC in Burbank in front of Judge Zaven Sinanian on behalf of an attorney accused of legal malpractice in response to a complaint to collect attorney fees. The claims of malpractice were failure to file a motion for judgment on the pleadings at the time of the trial in the underlying case, failure to prosecute an appeal after a jury awarded $271,000.00 in the underlying case. Defendants claim the attorney had overcharged for his services and that he had spent an unreasonable number of hours in handling the underlying case, which was a five week jury trial. The Judge dismissed the legal malpractice claims on motion and the jury awarded attorney fees consistent with the attorney's statement for services.

REVERE FINANCIAL vs. GETZELS (Real Estate Dispute)
In August 2003, testified in LASC, West District, Judge Cesar C. Sarmiento on behalf of an attorney Defendant accused of legal malpractice after an alleged unsatisfactory verdict in the underlying case alleging breach of warranty in the sale of a 23 unit apartment building. Testified as to applicable standard of care for attorney accused of malpractice in failing to call necessary expert witnesses, failing to take appropriate discovery, failing to assert additional defenses of rescission and reformation. After a 15 day jury trial. Attorney Defendant obtained a defense verdict and recovered on his complaint for attorney fees. Retained by Wilson, Kenna & Borys.

NEWBARTH vs. ASCANO
In March 2000, testified in LASC on behalf of an attorney Defendant, who was accused of malpractice after the Plaintiff former client, the victim in an automobile accident case, reneged on the settlement verdict and sued her attorney for legal malpractice. The Defendant attorney obtained a 12-0 defense verdict.

KABAYAN vs. KNAPP, PETERSON & CLARK
In December 1999 Jury trial, LASC, Central District, Judge Torres Testified on behalf of Plaintiff against Law Firm as to applicable standard of care to advise client of cost of litigation and chance of success in prosecuting lawsuit against institutional lender who made construction loan on a shopping center development.

Recent Legal Malpractice Defense Cases and Fee Dispute

GRANDE HOLDINGS, LTD., in the High Court of Hong Kong China.  (Fee Dispute)
In October, 2014, I was retained by Orrick Harrington to provide a 15 page opinion on excessive fees being sought by a law firm concerning a business liquidation under the jurisdiction of the Hong Kong Special Administration.  The issues included excessive billing, conflict of interest, and failure to disclose reasonably foreseeable consequences to the client.  Fees were substantially reduced by the court.  Retained by Orrick Harrington.

SMITH CAMPBELL V. WELEBIR
In October, 2012, Defended a $500,000 attorney fee claim arising out $6 million recovery in a vehicle roll-over case. Binding arbitration with Handweiler of Judicate West in Santa Ana. Attorney sued by original plaintiff’s attorneys who were fired by injured Plaintiff, seeking the reasonable value of services as well as contingent fee contract interpretation. Plaintiff awarded $33,350. Retained by Welebir.

Tague adv. Gdowski
In 2011 in Orange County Superior Court. Allegations defendant attorney had conflict of interest in a conservatorship proceeding, where she had previously worked with the conservator on several cases. Conflict in violation of Rules of Professional Conduct Rule 3-310 (b). Allegations of failure to disclose and obtain informed written consent from client. Also, attorney filed cross-complaint for attorney fees, which was disputed as being excessive. Underlying case went through trial and appeal and legal malpractice claims and fee dispute was settled on the eve of trial. Retained by Law Offices of Steven Ehrlich.

Consumer Alliance Processing Corporation (CAPC) vs. Pistone & Wolder.
In 2011, defended legal malpractice claim against plaintiffs who lost underlying case by trial. Allegations of sending junior attorney in place of named partner. Not supported. Underlying case alleged consumer fraud, fraudulent transfers and unfair business practices. Submitted declaration in support of defendants' motion for summary judgment. Motion for summary judgment granted. Retained by Kirtland & Packard.

Real Estate Broker Clientele
Regarding Defense and Prosecution of Standard of Care Issues in the Purchase and Sale of Real Estate.

Clientele:
Jon Douglas, West Los Angeles, California – representation included two trials, including the Malibu Big Rock Landslide 1979, which resulted in a settlement of $96 million dollars to all participating homeowners;

Century 21, Manhattan Beach, California – eight year representation;

George Elkins Company, Beverly Hills, California – 10 year representation, which included three trials over real estate sales and lease agreements;

Bud Petrick Real Estate Office, Pacific Palisades, California – 10 year representation, which also included three trials over broker commissions and standard of care for realtors;

Fred Sands Realty, Brentwood, California – representation included a trial defending Fred Sands in a neighbor dispute, services included lecture presentation to office sales staff on standard of care issues;

Lynne Wilson & Associates, Lake Arrowhead, California, representation included three trials, one case pending, defending allegations of fraud and misrepresentation. Have advised on real estate contracts for over 15 years.

Expert Witnessing – Legal Malpractice with Real Estate Underlying Cases:

Kabayan vs. Knapp Peterson (supra);

Revere Financial vs. Getzel (supra);

Gonzalez vs. Faulk (supra);

Mosich vs. Bowman (tried in June of 2008) Superior Court Torrance, legal malpractice case arising out of a failed real estate transaction, standard of care issues as to both the realtor and the attorney.

Bridgeport Terrace vs. Trevor Murphy, arbitrated in the summer of 2011. Expert for the defense on the duties of the owner of a condominium unit to make repairs within the four walls of the condominium unit, but not outside the four walls in the common areas, which repairs are the obligation of the homeowners association. Triable issues concerned the scope of the CC&Rs regarding repairs between the homeowners and the HOA. The litigation arose over exclusion to the maintenance by the owners of the subject units. Allegations of breach of the CC&Rs. Retained by Brian C. O’Hara.

Out of State Assignments:

I have served as an expert witness in lawsuits arising out of real estate transactions in (1) New Mexico
(Arnone vs. Century 21), (2) Idaho (Conflicting deeds to same property), (3) Tennessee (Tax liens).

Legal malpractice cases include: (1) Arizona (Attorney malpractice in case before tax court regarding tax returns), (2) New Jersey Transactional negligence), (3) State of Oregon on a pro hac vice basis (Legal malpractice regarding intellectual property rights) and (4) West Virginia (Stazzone v. Fannie Mae, federal case concerning standard of care violation on behalf of buyer by a realtor regarding habitability).

ROSENBERG BK TRUSTEE V. BULLIVANT HOUSER BAILEY PC
In 2013, District Court of Clark County, Nevada, suit for professional malpractice against law firm arising out of their mishandling the purchase and sale of Hotels Nevada, LLC. by L.A. Pacific Center for $70 million. The underlying case was submitted to binding arbitration in California and high eight figure award was a result. Retained by Jason Gerber of Marquis Aurbach Coffing.

Real Estate Related Trials:

Zabrucky vs. McAdams (2005) 129 Cal. App. 4th 618, eight year case involving two court trials, two appeals in interpreting the CC&Rs as to whether or not McAdams add on in Pacific Palisades, California violated Zabrucky's right to a view. California Supreme Court denied petition for rehearing in September 2008.

Galanty vs. Rubin, 2008 case regarding interpretation of CC&Rs as to the right to install a second story. Negotiated a favorable settlement permitting construction of an addition in the former courtyard of a hillside home.

Baumblatt vs. Palisar Homeowners Association, case involving interpretation of CC&Rs as to view easement and applicability of Davis Sterling Act;
Perez Construction, three trials, including easements involving ingress and egress and interpretation of CC&Rs;

Kihagi vs. Le, bench trial concerning claims for breach of contract, rescission and fraud after sale of apartment building. Successful defended a seller in a multiple day arbitration in front of the Honorable Robert Feinerman.


CALIFORNIA SUPERIOR COURT FOR THE COUNTY OF SANTA BARBARA

STATEMENT OF DECISION

Christopher Rolin Testified As Defense Expert In Fee Dispute

He specifically reviewed the executed hourly fee agreement at issue in this case; in his opinion it was very complete; it had cautionary language under the applicable rule of professional conduct; it cited the rule of professional conduct; it very specifically gave the client the opportunity to seek separate counsel; there was a warning concerning potential conflict of interest as to fees; it was done within and up to the standard of care; as to the $450/hr fee rate he believes that the rate is reasonable for work of this type during the time frame Gerry was performing the work. In terms of the legal bill itself, it sets forth a total number of hours expended, a total fee charged; he believes the legal bill adequately represents a reasonable fee incurred on the prosecution of the Williams vs. Hilton case from January of 2007 through July of 2008; additionally, the costs appear to be reasonably incurred in the prosecution of the Williams case.

The duty to protect the attorney lien fees runs from the subsequent attorney to the subsequent attorney's client; that's part of protecting a client's interest when the subsequent attorney takes over the representation; he's got to go to the client and tell him he has a contractual relationship with the prior attorney that has to be followed through with at the conclusion of the case.

He is familiar with California Rules of Professional Conduct 4-2100; it talks about unconscionable fees and the fact that attorneys must charge reasonable fees; sets out eleven yard sticks or bench marks to determine whether or not a fee is reasonable.

Observations about this witness

He was a very impressive witness and the court readily accepts his credibility; it will be very difficult for Williams and Murphy to overcome this very strong and compelling testimony; his opinion that the fee agreement was not unconscionable will be very difficult to overcome; I will wait until all the evidence comes in, of course; but he was a very believable witness.

Dated October 1, 2013

Thomas P. Anderle Judge

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