Lasting Agreement

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Lasting Agreement Powered By Docstoc
					                                                             by Steven G. Mehta

                               L A S T I N G
 Agreement        Carefully drafted settlement terms are the key
    to ensuring that an agreement does not unravel

After years of protracted litigation and months of skirting the edges of settlement, finally the parties have
come to an agreement on the key terms of a settlement to fully and finally resolve their dispute. All that remains
is the formality of drafting and executing a settlement document. Compared with the litigation, this last step
seems almost easy. Yet this last step, if not handled properly, can lead to more litigation, particularly when
one of the parties later has buyer’s remorse.
To prevent settlement agreements from unraveling, counsel for both            same manner as any other contract. In that regard, contrary to pop-
sides should consider general concepts relating to the enforcement of         ular belief, a settlement agreement does not need to be in writing to
settlement agreements. These include enforcement of confidential               be enforceable. An oral settlement agreement can be enforced just like
mediation rules and the use of Code of Civil Procedure Section                any other oral contract, as long as it does not violate the statute of
664.6. In addition, some tax consequences are important to settle-            frauds.3 Whether oral or written, a settlement agreement is enforce-
ments. If they are not understood, they can be a cause of buyer’s             able by several means. It can be enforceable by summary judgment,
remorse. When an understanding of these concepts is part of the set-          a suit for breach of contract, a suit in equity,4 as an affirmative
tlement, the dispute will in fact be fully and finally resolved, and the       defense,5 or by using Code of Civil Procedure Section 664.6.
joyous feelings of settlement will not be spoiled.                                Once the parties have arrived at a valid, enforceable settlement
     The first thing to understand about settlement agreements is that         agreement that reflects their intentions, the time for performance
                                                                                                                                                              AMANE KANEKO

they are, just like any other contract, subject to the law of con-            arrives. This raises the issue of what is the best way to enforce the terms
tracts.1 A court will not enforce a settlement agreement provision that
is illegal, contrary to public policy, or unjust.2 If there is a dispute as   Steven G. Mehta is a full time mediator specializing in complex and emotional
to its meaning, a settlement agreement will be interpreted in the             disputes.

28 Los Angeles Lawyer September 2007
Los Angeles Lawyer September 2007 29
of the settlement. Most parties prefer to enforce the settlement agree-     signature is not necessary to enforce the settlement under Section
ment pursuant to Section 664.6. The primary reason that parties wish        664.6.20 It is of course important to have the insurer’s signature on
to enforce a settlement under this provision is the speed and conven-       the settlement agreement. The reason for this, according to at least
ience of the process. Section 664.6 provides that “if parties to pend-      one court, is that the party that is being bound by the settlement agree-
ing litigation stipulate, in a writing signed by the parties outside the    ment must be the one that signed the document. Therefore, since the
presence of the court or orally before the court, for settlement of the     insurance company is the one being bound by the settlement agree-
case,” they can summarily seek to enter a judgment on the terms of          ment, the adjustor’s signature or the insurance company representa-
the settlement. Compared to using the settlement as an affirmative          tive’s signature is necessary.
defense or filing a new action for breach of settlement contract, the
procedures under Section 664.6 are preferable to other means of             After Dismissal or during Appeal
enforcement.                                                                Many settlement agreements will also provide that the action will be
    To take advantage of the summary procedure set forth in Section         dismissed with prejudice. It is important to note that for purposes of
664.6, case law has established certain requirements. First, in order       summary enforcement pursuant to Section 664.6, dismissal may
to have an enforceable agreement pursuant to Section 664.6, the mate-       cause problems with the court’s ability to retain subject matter juris-
rial terms of the settlement must be explicitly defined.6 A settlement       diction. Once a party has dismissed its action, the dismissal terminates
agreement, like any other contract, is unenforceable if the parties fail    the action. A superior court thereafter has no subject matter jurisdiction
to agree on a material term or if a material term is not reasonably cer-    to grant relief under Section 664.6 other than awarding costs and fees
tain.7 For example, if the parties leave the specifics of payment in dis-    as appropriate.21 Even if the parties insert language in the settlement
pute and employ a vague term (such as “binding mediation”) regard-          agreement that purports to confer jurisdiction on the court, that
ing how payment will be settled, a court may hold that the stipulation      language is a nullity, since subject matter jurisdiction is not something
for settlement is unenforceable because a material term is unclear.8        that can be conferred by stipulation or agreement of the parties.22 Thus,
However, the fact that the parties leave unresolved terms to be deter-      a motion to enforce a settlement pursuant to Section 664.6 is not
mined by future agreement is not invariably fatal, since a settlement       allowed when the parties have dismissed the lawsuit.23 One alterna-
may be enforceable if the parties agree that the remaining issues will      tive that may be available to the parties if the action is dismissed is
be decided by arbitration.9                                                 to first seek a motion to set aside the dismissal pursuant to Code of
    If the parties are placing the settlement agreement on the record       Civil Procedure Section 473, and only then seek to enforce the set-
orally before the court, in order to qualify under Section 664.6, the       tlement agreement under Section 664.6. Another option would be to
oral agreement must be evidenced by a verbal statement on the               make sure that the case is not required to be dismissed, and is not dis-
record; a nod of a head is insufficient to qualify as an enforceable oral   missed, until all terms are met.
agreement under Section 664.6.10 Note that in order to enforce an               It is also important to note that the courts have not decided
“oral agreement” under Section 664.6, the oral agreement must be            whether Section 664.6 applies to settlements that become effective dur-
placed on the record during a judicially supervised hearing.11 It is not    ing the pendency of an appeal. Under that circumstance, the courts
sufficient to have the oral agreement placed before a court reporter        have indicated that if a case is settled while an appeal is pending, the
at deposition.12 However, an agreement entered into before an arbi-         judgment that is the basis of the appeal is vacated, and the settlement
trator satisfies the requirement of a judicially supervised hearing.13       agreement supersedes the judgment.24 Any dispute regarding the
The same also holds true for a temporary or private judge.14 As to          postjudgment settlement agreement must be enforced by other means,
judicially appointed referees, the issue of whether the stipulation is      such as a separate lawsuit, affirmative defense, or summary judgment.
enforceable depends on the type of referee appointment. If the ref-
eree is appointed under Code of Civil Procedure Section 638(a),             Enforceability of Mediated Agreement
then an oral stipulation on the record in front of the referee would        The fact that many cases are being settled at mediation complicates
be enforceable under Code of Civil Procedure Section 664.6. However,        the enforcement of settlement agreements. The reason is that confi-
if the referee is appointed under Section 638(b), and is not given the      dentiality is integral to mediation and the documents associated with
ability to make a final determination, an oral stipulation on the            mediation. Indeed, the confidentiality of mediation can create a major
record in front of the referee would not be enforceable under Section       obstacle to enforcing the settlement agreement because, ironically, the
664.6.15 Finally, for oral agreements before the court, the supervis-       settlement agreement may not be admissible. Evidence Code Section
ing judicial officer must have questioned the parties regarding their       1119 expressly provides that subject to exceptions, “[A]ll communi-
understanding of the material terms, and the parties must expressly         cations, negotiations or settlement discussions by and between par-
acknowledge their understanding of and agreement to be bound by             ticipants in the course of the mediation or mediation consultation shall
those terms.16                                                              remain confidential.”25 This Evidence Code prohibition (and its
    On some occasions, the parties enter into an oral agreement             related sections) is often called the mediation privilege.26
before the court and indicate that they will also execute the terms in          Fortunately, there are statutory exceptions to the mediation priv-
writing. Once the parties have orally agreed to the settlement terms,       ilege in Evidence Code Section 1123. In particular, a written settlement
a party may not later escape its obligations by refusing to sign a writ-    agreement prepared in the course of, during, or pursuant to mediation
ten agreement that conforms to the oral terms. The oral settlement,         is not made inadmissible if the agreement is signed by the settling par-
like any agreement, imposes upon each party a duty of good faith and        ties and any of the following conditions is satisfied: 1) The agreement
fair dealing in its performance and its enforcement.17                      provides that it is admissible or subject to disclosure or words to that
    When a party seeks to use Section 664.6 to enforce the terms of         effect,27 2) the agreement provides that it is enforceable or binding or
a written settlement agreement that was entered into out of court, sig-     words to that effect,28 3) all parties to the agreement expressly agree
natures become critical. An out-of-court written settlement agreement       in writing or orally in accordance with Evidence Code Section 1118
must be signed by the parties and not just the attorneys.18 In addi-        to the disclosure of the settlement agreement,29 or 4) the agreement
tion, all parties to the settlement agreement must sign and not just        is used to show fraud, duress, or illegality that is relevant to the issue
the party against whom enforcement is sought.19 When, however, the          in dispute.30 Of course, if the provisions of Section 1123 cannot be met,
defendant is insured under a policy that allows the insurance com-          a party may find itself with a settlement that cannot be proven.
pany to settle without the defendant’s consent, then the defendant’s            Additionally, oral agreements arising from mediation are admis-

30 Los Angeles Lawyer September 2007
sible under certain condi-                                                                                                  holding that the require-
tions that must be met in                                                                                                   ment of Evidence Code
order to have an enforce-                                                                                                   Section 1123—namely,
able agreement. First, the                                                                                                  that the written settlement
oral agreement has to be                                                                                                    agreement be “signed by
recorded by a court re-                                                                                                     the settling parties”—does
porter, tape recorder, or                                                                                                   not require that a waiver
other reliable means of                                                                                                     of mediation confiden-
sound recording.31 Second,                                                                                                  tiality “be signed by each
the terms of the oral agree-                                                                                                of the parties litigant, so
ment must be recited on                                                                                                     long as that written
the record in the presence                                                                                                  waiver is signed by each
of the parties and the medi-                                                                                                of the settling parties or
ator, and the parties must                                                                                                  their respective coun-
express on the record that                                                                                                  sel.”38 The court further
they agree to the terms                                                                                                     explained that waiving the
recited.32 Third, the par-                                                                                                  mediation privilege was a
ties to the oral agreement                                                                                                  procedural issue, not a
must expressly state on the                                                                                                 substantive right, and
record that the agreement                                                                                                   therefore the attorney
is enforceable or binding                                                                                                   could waive the issue on
(or words to that effect).33                                                                                                behalf of his client.39
Finally, the recording must                                                                                                     Additionally, the plain-
be reduced to writing and                                                                                                   tiff in Stewart contended
the writing must be signed                                                                                                  that the settlement was not
by the parties within 72                                                                                                    enforceable because both
hours after it is recorded.34                                                                                               parties had not signed the
If, however, the oral agree-                                                                                                agreement. The court again
ment does not meet all the                                                                                                  disagreed, holding that the
requirements of Evidence                                                                                                    requirement that a party
Code Section 1118, it can                                                                                                   specifically sign the settle-
still be admissible and sub-                                                                                                ment agreement is only
ject to disclosure if it has                                                                                                necessary if enforcement
been recorded, the parties                                                                                                  is sought pursuant to
have stated their agree-                                                                                                    Section 664.6. The court
ment on the record, the                                                                                                     held that the settlement
agreement is reduced to                                                                                                     agreement could be
writing within 72 hours, and the parties expressly agree in another          enforced in alternative procedures, such as by motion for summary
writing or oral agreement in accordance with Section 1118 to dis-            judgment, a separate suit in equity, or an amendment of the plead-
closure of the agreement.35                                                  ings.40 The court also explained that just because the party had not
     There are some other issues to consider regarding settlement            signed the settlement agreement did not mean that it was not an
agreements arising from mediation. First, if the parties have signed         enforceable settlement document. The insurance company, which
two different versions of the document and counterparts, the courts          was not opposing the settlement, had authorized its attorney to sign
have held that the contract was uncertain because the parties could          the settlement agreement and therefore, the settlement was enforce-
not agree upon which term of payment was the appropriate term.36             able in the context of a motion for summary judgment.41 It is impor-
Additionally, the issue of who is authorized to waive the confidentiality     tant to note that had the insurer itself signed the settlement agreement,
of the mediation privilege is procedural. Thus, signature by counsel         and not just the insurer’s attorney, then the summary procedures of
waiving the mediation privilege is enough to comply with the require-        Section 664.6 would likely have been available as a method of enforc-
ment of Code of Civil Procedure Section 1123 for the admissibility           ing the settlement.
of a settlement agreement reached at mediation.
     The case of Stewart v. Preston Pipeline, Inc.,37 illustrates the sub-   Tax Consequences
tle difference between enforcing a settlement under Section 664.6 ver-       Although enforceability of the settlement agreement is often the
sus enforcement under other procedures. The plaintiff in the Stewart         most important issue to address, there are also other issues that need
case was an injured motorist who attended mediation. The plaintiff           to be considered in evaluating the settlement agreement. One impor-
ultimately signed a settlement agreement stating that it was intended        tant issue that should be addressed is whether or not the income will
to be an enforceable settlement agreement. However, the defendant            be deemed taxable to the plaintiff. It is advisable for defense coun-
did not sign the settlement agreement, and instead it was signed by          sel to make sure that in the release agreement there is a provision that
defense counsel only. Thereafter, the defendant sought to enforce the        indicates that the plaintiff is responsible for all tax consequences of
settlement by way of a motion for summary judgment, as opposed               the settlement, or that the plaintiff agrees to indemnify the defendant
to a Section 664.6 proceeding.                                               for the tax consequences regarding the reporting of settlement income.
     In opposing the motion, the plaintiff contended that the settlement     This is a common issue in many employment cases in which the pay-
agreement was not admissible because neither the defendant nor the           ment of sums relating to the employment injury is deemed a taxable
insurer, as “settling parties,” had signed the agreement, which included     event. In fact, according to IRS publications, the following settlement
a waiver of mediation confidentiality. The Stewart court disagreed,           components are taxable as income: interest, punitive damages, emo-

                                                                                                                      Los Angeles Lawyer September 2007 31
   Computer Evidence                             tional distress (not associated with personal        problem that is often overlooked, however, is
                                                 injury) and employment discrimination or             the tax consequence of a confidentiality

    DATACHASERS® INC.                            injury to reputation.42 As another example,
                                                 depending on the cost of a particular piece of
                                                 property, settlements involving the loss of
                                                                                                          In a case involving former basketball star
                                                                                                      Dennis Rodman, the tax court held that a
    We find what they                             use of property may be taxable.43 According          portion of a plaintiff’s personal injury set-
                                                 to one IRS publication, the taxability of the        tlement was taxable because it was for the
       left behind                               settlement is based upon the terms of the            purpose of confidentiality.48 In that case,
                                                 final settlement agreement.44 It is critical to       involving a photographer who was injured by
          CERTIFIED DATA                         make sure that the final settlement agree-           Rodman, the IRS sent a notice of deficiency
            DISCOVERY                            ment clearly delineates the nature of any set-       to Amos, the photographer, asserting that all
                                                 tlement for the purposes of tax consequences.        but one dollar of the settlement amount was
    COMPUTER FORENSICS                               Another tax consequence that needs to be         taxable. The tax court was more sympa-
    •    Recover Critical Data                   considered is the taxability of structured set-      thetic to Amos, allowing an exclusion of
    •    E-Mail Recovery                         tlements. For example, in cases in which a           $120,000 from his gross income for his
                                                 structured settlement is going to be issued, the     injuries but still reallocating $80,000 of the
    •    Dates on All Files
                                                 parties need to be concerned about whether           $200,000 as taxable compensation for the
    •    Websites Visited                        the plaintiff has constructively received the        confidentiality aspect of the settlement, assert-
                                                 funds. Income is constructively received by a        ing that the total amount of the settlement
                                                 taxpayer when it is made available so that           was too high to be exclusively for the phys-
    •    De-Duplication                          a party may draw upon it at any time.45              ical injuries sustained. According to the tax
    •    Redaction                               However, if there are substantial limitations        court, the 40 percent reallocated as taxable
    •    Bates Stamped Data                      or restrictions upon the receipt of the funds,       damages was the value to Rodman for the
                                                 then it is not deemed constructively received.       covenant of confidentiality contained in the
    •    Electronic (ESI) Production
                                                 Thus, the key to constructive receipt is the         settlement agreement.49
                                                 availability of the money without strings                The IRS has successfully challenged the
                                                 attached.46                                          allocations of other settlements, including
    TEL.   951-780-7892                              Many people assume that structured set-          ones for punitive damages. In Barnes v.
                                                 tlements are tax free. This is not necessarily       Commissioner, punitive damages had been
        DATACHASERS.COM                          the case. It is true that if the settlement itself
                                                 is tax free because it involves a personal
                                                                                                      alleged in the pleadings. The settlement agree-
                                                                                                      ment did not identify how much, if any, was
                                                 injury, then the interest or dividends paid          for punitive damages. The tax court allo-
                                                 out on the investment of the settlement are          cated half of the damages to taxable punitive
  – EXPERT WITNESS –                             also tax free. However, if there is constructive     damages, and the remaining half to personal
                                                 receipt of the structured settlement, then the       injury damages.50
   CONSTRUCTION                                  interest or dividends are immediately tax-               Given the potentially devastating tax con-
                                                 able to the plaintiff.47                             sequences to a client, there are several things
                     40 YEARS                        For example, the issue of constructive           an attorney may consider in trying to address
        CONSTRUCTION EXPERIENCE                  receipt can arise when a party has entered into      the tax consequences in a settlement agree-
                                                 an oral settlement agreement on the record           ment. First, the attorney may consider allo-
                                                 and has agreed on the record to release the          cating the sums in the settlement agreement
        Law Suit Preparation/Residential
                                                 defendant. At that time, the plaintiff could         at the time of the settlement. The failure to do
        Construction, Single and Multi-
                                                 theoretically request immediate payment of           so was one of the primary reasons why the tax
        family, Hillsides, Foundations,
                                                 the sums of money from the defendant. In this        court performed its own allocation in the
        Concrete Floors, Retaining
                                                 circumstance, there is no longer any sub-            Barnes case. For example, the agreement
        Walls, Waterproofing, Water
                                                 stantial limitation on the plaintiff receiving the   might include a provision that states that the
        Damages, Roofing, Carpentry/
                                                 sums, and the plaintiff would be deemed to           confidentiality of the settlement has its own
        Rough Framing, Tile, Stone,
                                                 have constructively received them. Thus it is        consideration of $100. Another option that
        Materials/Costs, Building Codes.
                                                 important to keep constructive receipt issues        may be used to address the possible tax con-
        CIVIL EXPERIENCE:                        in mind when formalizing a structured set-           sequences of a confidentiality clause is to cre-
        Construction defect cases for            tlement.                                             ate a mutual confidentiality clause. This way,
        insurance companies and                                                                       the consideration for the confidentiality is
        attorneys since 1992                     Taxes and Confidentiality Clauses                    the reciprocal confidentiality from the oppos-
                                                 Another important issue that arises in settle-       ing party.
                                                 ment agreements is the issue of whether to
                    COOK                         include a confidentiality clause as a material        Confidentiality in Elder Abuse Cases
  CONSTRUCTION COMPANY                           term. Many defendants want to make sure              The issue of confidentiality clauses also cre-
               STEPHEN M. COOK
                                                 that the settlement agreement has a confi-            ates problems in the context of elder abuse
        General Contractors License B431852
          Graduate study in Construction         dentiality clause. On the other hand, some           cases. The legislature has indicated that con-
            L.A. Business College, 1972          plaintiffs will only agree to a confidentiality       fidential settlement agreements are disfavored
                                                 clause if additional consideration is paid for       in civil actions involving elder abuse. 51
 Tel:   818-438-4535 Fax: 818-595-0028           the confidentiality of the settlement. There are      Moreover, confidential settlement agreements
                                                 several problems that may arise when address-        that evidence elder abuse may not be recog-
   7131 Owensmouth Ave., Canoga Park, CA 91303
                                                 ing the issue of confidentiality. One major           nized or enforced by the court absent a show-

32 Los Angeles Lawyer September 2007
ing of any of the following: 1) The informa-
tion is privileged under existing law, 2) the
information is not evidence of abuse of an
elder or dependent adult, or 3) the party
seeking to uphold the confidentiality of the
information has demonstrated that there is a
substantial probability that prejudice will
result from the disclosure and that the party’s
interest in the information cannot be ade-
quately protected through redaction.52 In
fact, even if the foregoing factors are met, the
court is not permitted to seal or redact the
defendant’s name in any information made
available to the public.53 However, the court
can enforce the part of a confidentiality agree-
ment, settlement agreement, or stipulated
agreement between the parties that requires
nondisclosure of the amount of any money
paid in settlement of a claim.54
    This issue can easily be handled by both
sides who wish to agree to a confidentiality
clause in the settlement agreement as it relates
to the amount of the settlement. However, the
parties should make sure to specify that the
confidentiality only applies to the amount of
the settlement and not to the name of the par-
ties or to the evidence of any potential actions
undertaken by any of the parties.
    The settlement agreement is often one of
the most important documents drafted in the
litigation context. This document governs
the relationship of the parties for the future
and closes a chapter in the litigation book. It
is critical to make sure that this document is
properly drafted to ensure its enforceability
as well as to make sure that it properly pro-
                                                            remc Virtual                                          Offices
tects the client from any corollary issues. A          EVERYTHING AN OFFICE SHOULD BE...WITHOUT THE WALLS
well-drafted settlement agreement does not
need to be long, complex, or even typed; it
simply needs to make sure that it addresses          AVAILABLE IN 4 PRESTIGIOUS LOCATIONS
the material terms and shows that the parties
                                                     DESIGNED FOR COMPANIES AND
have agreed to the terms. As a matter of
practice, it is advisable to ensure that the set-
                                                     HOME OFFICE PROFESSIONALS
tlement agreement meets the requirements             • Established business presence
of Code of Civil Procedure Section 664.6. This       • Private phone number with professional telephone
procedure is the most efficient means by
                                                     • Mail services
which to enforce a settlement agreement.
                                                     • 24 hour accessible voice mail
However, if the requirements of Section 664.6        • Reception service
are not met, it is important to understand           • Access to a day office or conference room
what is necessary to ensure that the settlement      • Full array of business services available
will be enforceable via other means. The
                                                     4 Los Angeles Locations
safest bet is to make sure that all parties sign
the settlement agreement, that the agreement            >1999 Ave. of the Stars 11th Flr.         >9911 West Pico Blvd.
                                                        >5959 Century Blvd.                       >6033 Century Blvd.
clearly delineates the material terms that are
really at issue, and that the agreement states       Call 310-356-4600
on its face that it is enforceable and admis-        Full time offices also available in 13 Southern California locations.
sible as evidence of the settlement.           ■

1 Nicholson v. Barab, 233 Cal. App. 3d 1671, 1681
(1991); Gopal v. Yoshikawa, 147 Cal. App. 3d 128,                                                          1-888-551-REMC
132 (1983); Barndt v. County of Los Angeles, 211
                                                                                                           W W W. R E M C I N C . C O M
Cal. App. 3d 397, 403-06 (1989).
2 California State Auto Ass’n Inter-Ins. Bureau v.

Superior Court, 50 Cal. 3d 658, 664 (1990); Timney
v. Lin, 106 Cal. App. 4th 1121, 1127 (2003).

                                                                                                                             Los Angeles Lawyer September 2007 33
                                                       One Source.                                                                3 See,

                                                                                                                                         e.g., Ryan v. Garcia, 27 Cal. App. 4th 1006, 1009

                                                                                                                                  4 Robertson v. Chen, 44 Cal. App. 4th 1290, 1293

                                                                                                                                  5 Thompson v. Williams, 211 Cal. App. 3d 566, 571
                                                       ■   EXPERT WITNESS                   DIRECTORY                             (1989).
                                                       ■   MCLE-APPROVED PROGRAMS                                                 6 In re Marriage of Assemi, 7 Cal. 4th 896, 911 (1994).
                                                                                                                                  7 Weddington Prods., Inc. v. Flick, 60 Cal. App. 4th
                                                       ■   MONTHLY MEETINGS                                                       793, 811 (1998); C IV . C ODE §1580; C IV . C ODE
                                                           THROUGHOUT CALIFORNIA                                                  §3390(5).
                                                                                                                                  8 See Lindsay v. Lewandowski, 139 Cal. App. 4th
                                                       ■   ANNUAL             EXPERT WITNESS                                      1618, 1622-23 (2006).
                                                           SUMMIT                                                                 9 Id.

                                                       ■   AN ASSOCIATION OF                                                      10 Conservatorship of McElroy, 104 Cal. App. 4th

                                                           CONSULTANTS PROVIDING                                                  536, 550-51 (2002).
                                                                                                                                  11 Datatronic Sys. Corp. v. Speron, Inc., 176 Cal. App.
                                                           FORENSIC SERVICES
                                                                                                                                  3d 1168, 1173-74 (1986).
                                                       ■   ONE RELIABLE SOURCE FOR                                                12 Id.

                                                           HUNDREDS OF QUALIFIED EXPERTS                                          13 In re Marriage of Assemi, 7 Cal. 4th 896, 900, 909

                                                           IN ALL DISCIPLINES                                                     (1994).
                                                                                                                                  14 Id.
                                                                                                                                  15 Murphy v. Padilla, 42 Cal. App. 4th 707, 713-14

                                                        Visit WWW.FORENSIC.ORG for our                                            16 In re Marriage of Assemi, 7 Cal. 4th 896, 911.
                                                      Expert Witness Directory online or contact                                  17 Elyaoudayan v. Hoffman, 104 Cal. App. 4th 1421,
                                                         Forensic Expert Witness Association                                      1430-31 (2003).
                                                          today for your FREE desktop copy:                                       18 Levy v. Superior Court, 10 Cal. 4th 578, 585-86

                                                                                                                                  (1995); Robertson v. Chen, 44 Cal. App. 4th 1290
                                                                    949.640.9903                                                  (1996).
                                                                                                                                  19 Sully-Miller Contracting Co. v. Gledson/Cashman
                                                                                                                                  Constr., Inc., 103 Cal. App. 4th 30, 37 (2002).
                                                                                                        20 Fiege v. Cooke, 125 Cal. App. 4th 1350 (2004).
                                                                                                                                  21 Hagan Eng’g, Inc. v. Mills, 115 Cal. App. 4th 1004,

                                                                                                                                  1007-08 (2004).
                                                                                                                                  22 Id.
                                                                                                                                  23 Id.
                                                    Los Angeles • Orange County • Sacramento/Sierra • San Diego • San Francisco   24 Ebensteiner Co., Inc. v. Chadmar Group, 143 Cal.

                                                                                                                                  App. 4th 1174, 1180-81 (2006).
                                                                                                                                  25 EVID. CODE §1119(c).
                                                                                                                                  26 See, e.g., Foxgate Homeowners’ Ass’n v. Bramalea

                                                                                                                                  Calif., Inc., 26 Cal. 4th 1, 5, 13 (2001).
                                                                                                                                  27 EVID. CODE §1123(a).
                                                                                                                                  28 EVID. CODE §1123(b).
                                                                                                                                  29 EVID. CODE §1123(c).
                                                                                                                                  30 EVID. CODE §1123(d).

     JACK TRIMARCO & ASSOCIATES                                                                                                   31 EVID. CODE §1118(a).
                                                                                                                                  32 EVID. CODE §1118(b).
                                                                                                                                  33 EVID. CODE §1118(c).

   POLYGRAPH/INVESTIGATIONS, INC.                                                                                                 34 EVID. CODE §1118(d).
                                                                                                                                  35 EVID. CODE §1124(c).
                                                                                                                                  36 Lindsay v. Lewandowski, 139 Cal. App. 4th 1618,

                                                                                                                                  1623-24 (2006).
                                                                                                                                  37 Stewart v. Preston Pipeline, Inc., 134 Cal. App. 4th

                                                                                                                                  1565, 1579-84 (2005).
                                                             9454 Wilshire Blvd.                                                  38 Id.
                                                                                                                                  39 Id.

                                                                 Sixth Floor                                                      40 Id. at 1584.
                                                                                                                                  41 Id.

                                                           Beverly Hills, CA 90212                                                42 I.R.S. Pub. No. 4345 (Rev. 6-2006).
                                                                                                                                  43 Id.
                                                             (310) 247-2637 TEL                                                   44 Id.
                                                                                                                                  45 Treas. Reg. §1.451-2; CEB, C ALIFORNIA C IVIL
                                                             (310) 306-2720 FAX                                                   PROCEDURE BEFORE TRIAL §49.52.
                                                                                                                                  46 CEB, CALIFORNIA CIVIL PROCEDURE BEFORE TRIAL

               Jack Trimarco - President                                                                                          §49.52.
                                                                                                                                  47 Rev. Rul. 79-220, 1979–2 C.B. 74; see also CEB,
             Former Polygraph Unit Chief
                                                                                                                                  CALIFORNIA CIVIL PROCEDURE BEFORE TRIAL §49.52.
             Los Angeles F.B.I. (1990-1998)
                                                                   email:                                       48 Amos v. Commissioner, 86 T.C.M. (CCH) 663

                     CA. P.I. # 20970                                                               (2003).
                                                                                                                                  49 Id.
                                                                                                                                  50 See Barnes v. Commissioner, 73 T.C.M. (CCH)
          Member Society of Former Special Agents           Former Polygraph Inspection Team Leader
             Federal Bureau of Investigation                     Office of Counter Intelligence                                   1754, 1756 (1997).
                                                                                                                                  51 CODE CIV. PROC. §2017.310(a).
                                                                   U.S. Department of Energy
                                                                                                                                  52 CODE CIV. PROC. §2017.310(b).
                                                                                                                                  53 CODE CIV. PROC. §2017.310(c).
                                                                                                                                  54 CODE CIV. PROC. §2017.310(e).

34 Los Angeles Lawyer September 2007