California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JANUARY 1999
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DISCIPLINE

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DISBARMENTS
RUSSELL GEORGE LOMBARD JR. [#66627], 55, of San Francisco was disbarred July 25, 1998, and ordered to comply with rule 955 of the California Rules of Court.

Lombard failed to comply with an earlier rule 955 requirement attached to a 1997 discipline. At that time, he was given a stayed two-year suspension and a one-year actual suspension, and was placed on probation for three years.

He was disciplined for misconduct in three client matters and for two criminal convictions - a DUI and driving with a suspended license.

In the first client matter, Lombard missed the deadline for filing a discrimination lawsuit and failed to return the client's file or refund unearned fees. In another case, he failed to communicate and eventually abandoned the client, did not maintain $3,000 in advanced costs in trust and misappropriated $2,800 of the trust funds.

He provided incompetent representation in a third case, did not adequately communicate and misrepresented significant events to the client, and failed to refund unearned fees.

He did not cooperate with the bar's investigation of these cases, and did not participate prior to the entry of his default.

Lombard was ordered to notify his clients, opposing counsel and other interested parties of his suspension, and to file an affidavit stating that he had done so with the Supreme Court.

Failure to comply with rule 955 is grounds for disbarment.

"The court is unaware of any facts or circumstances that would justify the departure from the usual sanction of disbarment for [Lombard's] wilful violation of rule 955," wrote hearing judge Eugene E. Brott.

SUSPENSIONS/PROBATION
KEVAN HARRY GILMAN [#97573], 46, of Van Nuys was suspended for one year, stayed, placed on two years of probation with a 60-day actual suspension, and was ordered to take the MPRE within one year. The order took effect July 10, 1998.

The State Bar Court found Gilman committed acts of misconduct over a significant time period in two consolidated cases.

In the first matter, he represented a client in a wrongful termination case which he filed, but then did not act upon.

About a year after being hired, Gilman stopped working on the case due to health problems and transferred it to another attorney without informing his client.

The new attorney told the client he associated into the case and that Gilman was still representing him. The client never heard from Gilman again. The case was dismissed when it was not brought to trial within the five-year statute of limitations.

Gilman withdrew from representation without protecting his client's interests, and failed to perform legal services competently or respond to his client's status inquiries.

In the second matter, Gilman was sanctioned in a civil case which he did not bring to trial. He did not pay the sanctions, although there was no evidence showing he was notified of them.

Gilman was then found in contempt of court and additional sanctions were imposed. He did not pay them or inform the State Bar that he had been sanctioned.

The bar court found that Gilman violated a court order.

He also did not cooperate with the bar's investigation.

In mitigation, Gilman has no record of discipline since his 1981 admission to the bar.

JOHN J. SCHIMMENTI [#37004], 60, of El Segundo was suspended for one year, stayed, and placed on one year of probation with a 30-day actual suspension. The order took effect July 10, 1998.

Schimmenti stipulated that he did not keep clients reasonably informed of developments in their case and he misrepresented a court ruling, an act of moral turpitude.

He represented multiple plaintiffs in an eminent domain suit against Los Angeles that was associated with airport noise. At one point in the case, an employee informed a client that the city offered a $4,000 settlement and that if she accepted, Schimmenti would take half. The employee also told the client that if she rejected the offer, the recovery might be greater.

At the time, Schimmenti knew the city was raising the statute of limitations as an affirmative defense to his client's claim but did not tell her.

Two weeks later, the court ruled that the claims of some of the plaintiffs, including the client in question, were barred by the statute of limitations.

Several months later, in response to telephone messages from the client, Schimmenti advised her in writing that the case was "litigated to a judgment based upon [her] refusal to accept the city's offer" and that the matter "[had] been concluded." The letter did not advise her of the court's ruling.

Schimmenti was disciplined in 1996 for similar misconduct. In that matter, he stipulated that he failed in two separate matters to promptly communicate to his clients the terms and scope of the trial in their inverse condemnation case, and failed to properly advise the clients that if they prevailed in the inverse condemnation matter, they were legally barred from making a personal injury claim.

There was no mitigation.

KENNETH JAY SCHWARTZ [#99548], 44, of Woodland Hills was suspended for one year, stayed, placed on two years of probation with conditions including restitution, and was ordered to take the MPRE within one year. The order took effect July 10, 1998.

Schwartz stipulated to three counts of failure to perform legal services competently, four counts of failure to communicate with clients, and four counts of failing to cooperate with the bar's investigation.

He also abandoned clients, did not promptly release their files or refund unearned fees, and violated his oath and duties as an attorney.

The misconduct involved four client matters.

A breach of contract case was dismissed when Schwartz did not timely file for arbitration, and an attorney malpractice case was dismissed after he failed to appear at a hearing. He did not re-initiate the matter.

He was hired by a couple involved in a bankruptcy proceeding to remove two judicial liens against their residence, but he never took any action to do so.

He filed a motion to re-open the Chapter 7 case, and on four different occasions indicated the case would be settled quickly. In fact, he had taken no steps to resolve the issue and knew it would not be resolved in the time he indicated.

Schwartz was publicly reproved in 1990 for two instances of failing to perform legal services competently and communicate with clients, and once for not returning a file and improperly withdrawing from representation.

In mitigation, he was experiencing family problems at the time of the misconduct, and he cooperated with the bar's investigation.

KATHERINE A. ZESSIN [#122549], 46, of Ventura was suspended for three years, stayed, and was placed on five years of probation with an actual two and a half year suspension, and until she makes restitution of almost $17,000 to eight parties and proves her rehabilitation. She also was ordered to comply with rule 955. The order took effect July 25, 1998.

Zessin stipulated to 37 counts of misconduct in seven client matters.

Her problems were primarily the result of the establishment of two personal injury "satellite" law offices she set up with two non-attorneys. She contends that cases were settled and funds disbursed without her knowledge or involvement.

In two matters, Zessin or someone under her supervision accepted personal injury cases for clients. The matters settled for $9,000 and $16,000 respectively without the clients' knowledge. Zessin did not inform the clients about the settlements, nor did she disburse funds to the clients or their medical providers.

On several occasions, the minimum balance in Zessin's client trust account fell below the required amount.

In another case, a man who identified himself as a Zessin employee solicited as a client a woman who was involved in a three-car rear-end collision. After Zessin filed a lawsuit, the court ordered that arbitration be completed in 180 days. Zessin did not meet that deadline and failed to perform legal services competently. She also did not respond to reasonable status inquiries or communicate with her client.

Zessin did not file two bankruptcy petitions she was hired to handle, and in a marital dissolution matter, she filed a motion her client had asked her to drop. In the divorce case, two documents were filed with the court purporting to bear the client's signature, but the client never signed either document.

In a spousal support case, Zessin sought and received four continuances, despite the need for timely action since her client's son was turning 18. She did not inform her client about the continuances, and when asked to return the client's file, she failed to do so.

She did not respond to numerous State Bar investigations of her actions.

Zessin was disciplined in 1996, but failed to comply with the conditions of her probation; namely, she did not file quarterly probation reports, attend a law office management class, or complete ethics school.

That discipline stemmed from failure to communicate with a client and failure to perform legal services competently.

In mitigation, when Zessin became aware of her associates' conduct, she severed her ties with them. She has stopped practicing law.

WALTER DAVID CHANNELS [#107719], 52, of Huntington Beach was suspended for four years, stayed, placed on two years of probation with a 45-day actual suspension, and was ordered to make restitution. The order took effect July 31, 1998.

Channels was disciplined in 1996 and was ordered to make restitution in two payments over the subsequent 12 months.

As he was making arrangements to obtain a loan in order to make the first payment, a former client who also was the son of the client to whom Channels was making restitution, sued for breach of contract and malpractice.

The plaintiff's mother had advanced fees to Channels on her son's behalf, and it was these funds Channels was ordered to repay.

He did not respond to the lawsuit. He then filed bankruptcy when he learned the plaintiff was seeking damages in excess of a half million dollars.

He made no restitution payments because he believed the bankruptcy trustee would view any payment as preferential treatment of a debtor.

The bankruptcy petition was dismissed for failure to file schedules and was later refiled. In the interim, however, the plaintiff in the malpractice action obtained a default judgment of $15,000 against Channels.

The bankruptcy court issued an order of discharge.

Channels has paid $3,000 to his former client and reached an agreement with her son to pay $600 a month towards the amount due, which they calculated at $15,517.

By not making the restitution ordered in the 1996 discipline, Channels violated the terms of his probation.

The earlier discipline involved misconduct in four client matters, including failure to communicate, competently perform legal services and return client files. Channels also was privately reproved in 1992 for failure to return client files and unearned fees, and for performing work on a case after he was dismissed from employment.

JOSEPH M. COLLER [#79893], 47, of Granada Hills was suspended for five years, stayed, placed on probation for five years with an actual 10-month suspension and until he makes restitution, and was ordered to take the MPRE within one year and comply with rule 955. The order took effect July 31, 1998.

Coller stipulated to misconduct in seven consolidated cases.

In a personal injury case in which he represented the plaintiff, Coller cancelled his client's deposition four times because of her unavailability. He then failed to appear at five hearings, failed to respond to two demands by opposing counsel, was sanctioned twice and did not notify his client about developments in her case. The case was dismissed.

Coller represented another client in her marital dissolution, but had no fee agreement with the woman and never billed her. She then hired him in a personal injury case, which settled for $7,500.

Coller kept $2,500 of the settlement as payment for handling the client's divorce. Because the client had not agreed to such an arrangement, Coller collected an illegal or unconscionable fee.

He also did not pay a medical lien in the personal injury case and allowed the balance in his client trust account to dip below the required amount.

Coller failed to perform legal services competently, misappropriated funds from a client and committed an act of moral turpitude.

In two other personal injury cases which he settled, Coller did not promptly pay the clients the amount they were owed, misappropriated funds, and allowed the balance in his client trust account to fall below the required amount.

He did not perform legal services competently or communicate with another client.

He did not file a substitution of attorney form in another personal injury matter he took over, nor did he oppose a motion for summary judgment which subsequently was granted. He also did not pay his clients' medical lien.

In mitigation, Coller is a sole practitioner and has suffered serious financial reversals in recent years. His money problems also led to marital difficulties.

He has no prior record of discipline, but his misconduct involved dishonesty and multiple acts of wrongdoing, and it harmed his clients.

ROBERT EATON DOWD [#93284], 53, of Bakersfield was suspended for one year, stayed, placed on probation for two years, and was ordered to make restitution and take the MPRE within one year. The order took effect July 31, 1998.

Dowd stipulated to misconduct in five client matters, all resulting from wrongdoing by his office administrator.

The administrator, Rick Alvarez, also served as Dowd's paralegal and investigator. In 1995, he pleaded no contest to charges of unauthorized practice of law, capping and grand theft.

Despite the plea, Dowd continued to employ Alvarez, who retained clients, accepted fees, and promised Dowd would handle their cases - all without telling Dowd.

As a result, Dowd did not appear at hearings, initiate proceedings or complete other legal work for which he had been hired. In one matter, a client paid Alvarez more than $22,000 to represent a family member accused of murder and robbery. In another matter, divorce proceedings were not initiated.

Dowd stipulated that he did not perform legal services competently.

The Bakersfield district attorney has filed criminal charges against Alvarez as a result of his actions with victims who thought they had hired Dowd. Dowd was unaware that advanced legal fees were given to Alvarez because he was in Arizona and Illinois handling federal criminal cases.

Alvarez is a fugitive.

Dowd began to make restitution to Alvarez' victims once he discovered the extent of the theft and has so far paid out more than $47,000. Much of the money came from Dowd's mother and from his three children's college fund.

He also pays $1,500 a month in child support, and currently lives in his office.

WILLIAM LEWIS FERNSIDE [#98376], 45, of Fresno was suspended for one year, stayed, placed on two years of probation with a requirement that he make restitution, and was ordered to take the MPRE within one year. The order took effect July 31, 1998.

Fernside stipulated to failure to perform legal services competently and failure to refund unearned fees.

He was retained in 1994 to prepare a writ of mandate regarding a claim of back pay for a client. Despite numerous phone calls and promises of action, Fernside did not prepare the writ for 16 months, and it was not in final form.

At that time, he advised the client that the better course of action was to file a breach of contract complaint.

In a second matter, Fernside filed an action in federal court for his client, withdrew the action three months later, and did no further work. He did not refund a $3,000 advance fee.

Fernside was privately reproved in 1984.

In mitigation, he cooperated with the bar's investigation.

RALPH CRAIG GREAVES [#71035], 51, of San Diego was suspended for two years, stayed, placed on two years of probation with a six-month actual suspension and until he proves his rehabilitation, and was ordered to take the MPRE within one year. Greaves received credit for an interim suspension which began July 28, 1997. The order took effect July 31, 1998.

Greaves pleaded no contest in 1997 to one count of filing a false federal income tax return, a crime which involved moral turpitude.

He stipulated that in 1990 and 1992 he filed tax returns which misrepresented his earnings.

In 1992, Greaves reported $38,578 in gross receipts for 1987, a year in which he actually received more than $100,000. In 1990, he filed returns for 1988 and 1989 in which he reported less income than actually received.

In 1988, he earned at least $91,760 in gross receipts and reported $62,672 on his taxes, and in 1989, he received at least $280,965 in gross receipts but reported $170,798.

Although he was charged with three counts, two of the counts were dismissed in a plea agreement.

Greaves was fined and placed on three years of probation.

CHRISTOPHER LEE PEARSON [#159520], 43, of Spring Valley was suspended for four years, stayed, and placed on four years of probation with an actual three-year suspension and until he makes restitution to five parties, provides a full accounting to two other parties and proves his rehabilitation. He also was ordered to take the MPRE during the period of actual suspension and to comply with rule 955. The order took effect July 31, 1998.

Pearson stipulated to numerous acts of misconduct in 10 consolidated cases, including failure to perform legal services competently, communicate with clients, pay settlement funds, pay medical providers, provide an accounting or cooperate with the bar's investigation.

Three of his actions amounted to moral turpitude.

Pearson also misused his client trust account, misappropriated funds, and allowed the balance to fall below the required amount.

He represented one client in both a personal injury and class action case involving toxic chemicals. When Pearson failed to appear at a status conference, the personal injury case was dismissed.

His client was dropped from the class action after Pearson failed to provide a questionnaire to the opposing party.

Prior to those developments, which he did not tell his client about, Pearson asked the client to refer to him other individuals injured in the accident involving a chemical company. In return for the referrals, he agreed to give his client 15 percent of the gross recovery of attorney's fees from each case. The client referred 198 cases to Pearson.

Pearson also listed the name of a non-attorney on his letterhead as an attorney.

In another matter, Pearson represented a woman and her four minor children in an uninsured motorist claim which he settled for $1,200 without the client's knowledge or consent.

He or someone he supervised signed the client's name on the settlement checks and on the release of all claims. Pearson did not notify the client about the settlement and deposited the funds in his client trust account. He then wrote his rent check and another personal check on the account.

Pearson represented another client who was a defendant in a dog bite case. He did not appear at a deposition or a hearing, provide formal discovery responses, or respond to a motion for default judgment. A judgment of $553,574 was entered against his client.

Although he informed counsel for another defendant that he was ending his representation of the client, he never properly withdrew from the case. He also did not pay monetary sanctions ordered by the court.

In two other cases, Pearson allowed the statute of limitations to run in one and did not appear at a deposition in the other, which was dismissed.

The probation of PAUL J. KELLY [#61695], 50, of Los Angeles was revoked, the stay of suspension was lifted and he was suspended for two years, stayed, placed on two years of probation with a one-year actual suspension, and was ordered to comply with rule 955. He will receive credit for the period of involuntary inactive enrollment which began April 23, 1998. The order took effect Aug. 6, 1998.

Kelly was disciplined in 1996 and was ordered to submit quarterly probation reports and reports from a mental health provider as part of his probation. Although he did so for several quarters, he stopped submitting reports after July 1997.

His original discipline was the result of five client matters in which he abandoned clients, failed to perform legal services competently, communicate with clients and in some cases return files or unearned fees. In one matter, he practiced law while suspended for non-payment of dues, and in another matter, he failed to obtain the informed written consent of a client in a conflict situation. He also failed to cooperate with the bar's investigation of his clients' complaints.

He did not participate in the probation revocation proceeding.

EDWARD D. HUME [#66261], 49, of Redwood City was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect Aug. 12, 1998.

Hume stipulated to one count of failure to perform legal services competently and one count of failure to respond to his client's requests for information.

In 1988, Hume was retained to prepare a Stipulated Qualified Domestic Relations Order (QDRO) following his client's divorce. The purpose of the QDRO was to dispose of the community property interests of the ex-husband's retirement benefits with his employer.

Hume prepared a draft QDRO and submitted it to both his client and her ex-husband. From 1989 through 1995, Hume communicated with the administrators of the retirement plan and the ex-husband's attorney in order to identify the community property portion and its division and share valuation.

When the ex-husband's attorney prepared a revised QDRO, Hume's client reviewed it and sent him a list of questions and proposed changes. Hume promised a revised copy to his client by Jan. 31, 1996. Despite phone calls and letters, the final QDRO wasn't completed until July 1996.

Hume did not inform his client that as a result of his failure to complete the QDRO, she did not have a perfected right to receive the community property funds that were the subject of the QDRO.

In mitigation, Hume has no prior record of discipline, and he reimbursed his client $1,000.

GARY STEVEN KLEINMAN [#85232], 45, of Encino was suspended for three years, stayed, placed on three years of probation with an actual one-year suspension and until he makes restitution to three parties and provides an accounting of funds to three others, and proves his rehabilitation. He was ordered to take the MPRE and comply with rule 955. The order took effect Aug. 12, 1998.

Kleinman stipulated to misconduct in five client matters.

In a personal injury case which he settled for $5,500, Kleinman did not pay his client's medical provider. He also let the balance in his client trust account fall below the required minimum.

In another personal injury case, he did not pay his clients their settlement funds for three months; when he did, the settlement check bounced. He did not respond to their requests for information, nor did he provide an accounting of their funds.

His failure to maintain his clients' funds in trust amounted to moral turpitude.

In another matter, Kleinman was hired to file a creditor's claim in a bankruptcy action. When his clients hired a new lawyer, he did not refund their fee.

Kleinman also bounced six checks written against his client trust account.

Kleinman has been disciplined by the State Bar on three previous occasions. He was publicly reproved in 1992 for collecting an illegal fee, withdrawing from employment without protecting his clients' interests, and failing to inform the bar of the imposition of sanctions.

In 1994, he was placed on probation for failing to comply with the conditions of the public reproval, and in 1996, he was given an additional period of probation for improperly withdrawing from representation.

In mitigation, Kleinman has endured a string of bad luck. A bakery he co-owned was destroyed by fire, and his partner took off with the insurance proceeds, leaving Kleinman with the responsibility for personally guaranteed bank loans and creditors. He was forced to file for bankruptcy, and has sued his ex-partner.

In addition, his law offices were destroyed in the Northridge earthquake in 1994 and Kleinman was forced to restart his practice and reconstruct his files. As a result, he suffered serious financial reversals.

Kleinman's nephew, with whom his family was close, died of leukemia in 1996.

ALVIN R. LUNDGREN [#170046], 52, of Mountain Green, Utah, was suspended for 18 months, stayed, placed on one year of probation with an actual 30-day suspension, and was ordered to take the MPRE within one year. The order took effect Aug. 12, 1998.

While working as an attorney in Utah in 1992, Lundgren was hired by a collection agency to recover debts from checks written on insufficient funds and closed bank accounts that had been issued to California merchants.

He sent letters to debtors on letterhead in which he represented that he was an attorney with an office in Sacramento. He was not admitted to the California bar until 1994.

When a federal lawsuit was filed against the collection agency, Lundgren and other defendants in 1993, Lundgren acted as an attorney prior to his admission to the California bar.

He stipulated that he engaged in the unauthorized practice of law and held himself out as an attorney when he was not entitled to do so.

JEFFREY ALLAN MATZ [#51123], 56, of Los Angeles was suspended for one year, stayed, placed on probation for six years with an actual 30-day suspension, and was ordered to make restitution and to pass the MPRE within one year. The order took effect Aug. 12, 1998.

In 1995, Matz represented a client in her divorce proceedings in both superior court and the California Court of Appeal. In a document he submitted to the superior court, he stated that he had handled approximately 16 cases before the Court of Appeal and two cases before the Supreme Court.

When he was notified by the Court of Appeal that it was considering sanctioning him for an infraction of rules, Matz sent a letter to the court stating that the matter in question was "only the second appeal I have prosecuted in my 25 years of practice . . . ." In fact, he had worked on 16 appeals handled by appellate attorneys in his firm.

He stipulated that he misled the court.

He was later sanctioned $5,000 by the appellate court for a rules infraction, filing an inadequate appellant's appendix, causing the court an unnecessary expenditure of time and effort, and for his attempted deception. He did not notify the bar of the sanction order.

In another matter, he substituted in as counsel in a personal injury case in which the previous attorney, in his fee agreement, was given a lien against any recovery for his fees and costs. The case settled for $500,000, and Matz received a net fee of $111,000.

He did not notify the previous attorney of the settlement, nor did he retain any funds for him in trust.

When the other lawyer learned of the settlement, he sued Matz and obtained a default judgment of more than $116,000. (Matz' attorney substituted out of the case and Matz did not show up for an arbitration hearing.)

The judgment is unpaid.

In a medical malpractice and wrongful death case in which he represented two clients, Matz knew that the state Department of Health Services (DHS) claimed a lien for services provided to his clients. He incorrectly believed the lien was not valid.

The case settled for $150,000, but Matz did not notify DHS, pay any funds it was owed, maintain the funds in his trust account, or inform his client's guardian that DHS had asserted a lien.

In mitigation, Matz has no prior record of discipline and in two of the cases, he incorrectly believed the liens did not have to be paid. He did not report the sanctions by the court of appeal to the bar, believing he was not required to do so because the court reported them.

The previously ordered probation of BERNARD L. NIZINSKI [#33579], 62, of Los Angeles was extended for one year, beginning Aug. 12, 1998.

Nizinski was placed on disciplinary probation in 1995 and ordered to submit quarterly probation reports and to comply with drug/alcohol abuse conditions of his probation. He submitted one quarterly report late, but did not report on whether he has met the drug and alcohol abuse conditions.

Efforts by the bar to contact Nizinski were unsuccessful.

Nizinski, who stipulated in 1995 to 30 years of drug addiction, was disciplined after a conviction for transporting cocaine and driving under the influence of a drug.

He was given a five-year stayed suspension, an actual 20-month suspension and was placed on five years of probation.

He also was disciplined in 1992.

DOUGLAS THOMAS RICHARDSON [#106275], 43, of Westminster was suspended for two years, stayed, and placed on two years of probation with a 45-day actual suspension. The order took effect Aug. 12, 1998.

Richardson was privately reproved in 1995 and ordered to attend ethics school, take the CPRE, and complete six MCLE hours in law office management and six more hours in civil litigation instruction. He completed ethics school late and did not comply with the other conditions.

In another matter, he represented a client in three criminal matters in Washington, where he is not licensed to practice. Richardson mistakenly believed the filing of a substitution of counsel notice and a notice of appearance complied with the state's pro hac vice status requirements.

PAUL YANEZ [#100492], 46, of Anaheim was suspended for two years, stayed, and placed on two years of probation with an actual 30-day suspension and until he proves his rehabilitation. The order took effect Aug. 12, 1998.

Yanez was suspended from practice in 1995 for not paying court-ordered family and child support.

During his suspension, he represented three clients in a personal injury case which he settled and for which he took fees.

He stipulated that he practiced law while not entitled.

Yanez also was suspended for 60 days and placed on two years of probation in April for failing to perform legal services competently for two clients or to return their phone calls.

In mitigation, he cooperated with the bar's investigation and participated in the proceedings.

RESIGNATION/CHARGES PENDING
JAMES HOWARD SCHENK [#48617], 55, of Elk Grove (July 4, 1998)

MICHAEL BRIAN SMITH [#116498], 41, of Brainerd, Minn. (July 4, 1998)

SUSPENSION/FAILURE TO PASS PRE
CONRAD A. SALUMBIDES JR. [#131472], 43, of Alhambra (June 28, 1998)

GARY EUGENE UHD [#83119], 48, of Fresno (June 28, 1998)