1

Appellate Division No. 70

LOS ANGELES SUPERIOR COURT

APPELLATE DIVISION

ANTHONY GROSSMAN

Appellant Los Angeles Superior Court, Van Nuys, Case No. 10B01962 Unlawful Detainer After Non Judicial Sale

PRO VALUE PROPERTIES, INC., App. No. BV 028930

Appellee

_____________________________________________________________________

APPEAL FROM JUDGMENT ISSUED BY SUPERIOR COURT OF LOS

VAN NUYS CASE NO. 10B01962

HONORABLE CHRISTINE EWELL, JUDGE

PETITION FOR REHEARING FROM THE OPINION OF THIS COURT FILED ON MAY 3, 2012 PURSUANT TO CRC 8.889

MARTIN S FRIEDLANDER, ESQ. State Bar No. 36828

ANTHONY C. GROSSMAN, ESQ., State Bar No. 175408 10350 Wilshire Blvd., Suite 603

Los Angeles, Ca. 90024 Tel. No. 310 435-1510 Fax No. 310 278 7330

Attorney for Appellant ANTHONY GROSSMAN

2

TO THE HONORABLE PRESIDING JUDGE AND ASSOCIATE JUDGES OF THE

APPELLATE DIVISION OF THE LOS ANGELES SUPERIOR COURT

INTRODUCTION

On May 3, 2012, this Court filed its Opinion affirming the Judgment of the Trial

Court. This Petition is both timely and meritorious pursuant to CRC Rule 8.889 (a) (1), (2),

and (b) (1). This Petition is being filed within 15 days after 5/3/2012 and is therefore

timely.

Appellant contends that this Appellate Court made so many errors of law and cited

cases that did not support the proposition of law cited, that a miscarriage of justice

resulted to the absolute prejudice of the Appellant. Accordingly, it is Appellant’s position

that the Court has denied Appellant “Due Process of Law” required under the 14th

Amendment to the United States Constitution.

Furthermore since the Appellate Department of the Los Angeles Superior Court is

a Court of General Jurisdiction, when it sits in review of a Judgment of a Court of Limited

Jurisdiction, if this Court denies this Petition Appellant contends that he has a direct Right

to Appeal this erroneous decision to the Court of Appeal, or, at the very least Appellant

would have a right to file a Discretionary Writ to the Court of Appeal.

Appellant requests that this Court, on its Motion to Certify this Case to the Court of

Appeal and/or publish the Opinion as it meets all of the criterion set forth in the Rules for

publication as it deals with new and novel issues of law, and the denial of due process by

this Court.

3

In support of this Petition for Rehearing, we will cite each error committed by this

Court, by reviewing the Opinion with a “fine tooth comb”, and each of the Orders issued by

this Appellate Court, not the Trial Court, the “cumulative effect of which denied Appellant

Due Process.

A BRIEF STATEMENT OF THE ERRORS PRIOR TO OPINION.

This Court scheduled this appeal for Oral Argument for April 5, 2012 at 1:30 PM.

Appellant did not waive his right to Oral Argument. The Appellee never filed its Brief in this

case after this Court this Court sent all Notices of Default. The Appellee, Pro Value, was in

default, and according to the Rules of Court the Appeal was required proceed with Oral

Argument of Appellant and the Appellant’s unanswered Opening Brief.

At oral argument, I was presented with a tentative ruling based on items not

designated by Appellant in that the Record filed by the Clerk of the LASC prior to

Appellant filing “GROSSMAN’S PROPOSED STATEMENT ON APPEAL” which was filed

and served on February 15, 2011. After the Clerk of this Court rejected Exhibits for filing,

Appellant filed his Motion to Augment the Record. Denied. Appellant then filed his Motion

for Judicial Notice. Denied. Appellant then filed a Motion to require this Court to require

the Clerk of this Court to deliver the Trial Court’s file and Exhibits to this Court denied.

Appellant’s counsel was shocked and inquired at oral argument “where is the

record” upon which this Court issued its tentative decision. This Court had no such record

as it had denied all of Appellant’s Motions to require such a record, all of which were

authorized by the CRC and in each motion, I referred this Court to the Rule supporting

each of the Motions that I filed.

It led me to believe that the Court’s reviewing clerks or attorneys read or did not

4

read a non-existent record, and this Appellate Court merely “rubber stamped” the

mistakes of its clerks and attorneys. As an experienced appellate attorney, I am familiar

with the process. An appeal is from a record, and if there is no record, then the Appellate

Court may not Act. It reviews the record based on de novo errors of law, abuse of

discretion, or the substantial evidence rule. It does not act as a trial court. It is a

“reviewing” court. It could not have reviewed the record, since the record was incomplete.

Appellant’s counsel’s voice rose to address these obvious errors. This Court

committed error by basing a Tentative Decision on a record that did not exist due to the

denial of the prior Motions filed by Appellant pursuant to the Rules of Court and

Established Case Law. I then asked for more time than the 10 minutes allowed. Denied.

This Court took this appeal under submission after Oral Argument and thus was

required by the Rules to render a decision within 90 days. The next day I accessed the

docket of this Appeal and noticed “On the Court’s Own Motion it corrected the Record”. I

immediately called the Clerk and requested the order. The clerk told me it would be

mailed to me. The Court did not state any reason whatsoever for correcting the record.

What did this court find missing in the record? Why did it include documents that should

not have been included? Why did it include the ENGROSSED SETTLED STATEMENT

ON APPEAL filed by the Trial Judge on May 27, 2011?

Then on April 21, 2012, I received in the mail a document entitled

“SUPPLEMENTAL CLERK’S TRANSCRIPT” dated 4/18/2012, which included two

documents (1) GROSSMAN’S PROPOSED STATEMENT ON APPEAL filed on

2/15/2011. (2) ENGROSSED SETTLED STATEMENT ON APPEAL filed by the Trial

Judge on May 27, 2011. This Appellate Court committed reversible error by including a

5

document that was untimely filed. I made this argument during Oral Argument. This error

was made by the Appellate Department, not the Trial Court, Since the Appellate

Department acts as a court of General Jurisdiction when reviewing a decision of a Court

of Limited Jurisdiction, an error made by a Court of General Jurisdiction is appealable to

the Court of Appeal “as a matter of right”. If this Court persists in committing this error, I

will file a direct appeal to the Court of Appeal to review this Court’s error and not the Trial

Court’s error. I know the rules and I apply them.

Then this Appellate Court violated Grossman’s 14th Amendment rights of Due

Process, which entails notice and an opportunity to be heard. If this court was “sua

sponte” correcting its Denial of my Motions to Augment the Record and to Take Judicial

Notice, then it was required to give Appellant “reasonable notice” and an opportunity to be

heard. Need I cite the string of constitutional authorities to support this Due Process

argument as I wish to keep this motion as brief as possible. Instead, this Court gave no

notice whatsoever or an opportunity to be heard. The constitution was violated giving

Appellant the right of Appeal all the way to the Supreme Court of the United States.

This Appellate Court was mandated to “correct” the record only in one way, namely

to only Supplement the Record on Appeal by only including the document entitled

GROSSMAN’S PROPOSED STATEMENT ON APPEAL and none other. The law then

requires this Court to accept every point and fact in GROSSMAN’S PROPOSED

STATEMENT and reverse on all grounds. Any variance would be reversible error as “a

matter of law”. This case has been enough of a “travesty of justice” that this court should

not exacerbate those errors by the Trial Court that prompted this appeal.

Appellant granted this Court one last opportunity to do justice as required by the

6

laws of this State and the Constitutions of the United States and California. Grant this

motion in its entirety and reverse with instructions and/or grant a rehearing.

On April 23, 2012, Appellant filed his MOTION TO STRIKE ENGROSSED

STATEMENT. On 5/3/2012, this Court filed a one-sentence denial of the Motion to Strike

and at the same time file it Opinion. Both the Motion to Strike is error, reviewed on a de

novo basis, and the Opinion is erroneous, on a de novo review.

The printed docket reflects the following entries.

1. On 5/20/11 Appellant filed a Motion seeking to “Enjoin Judge Ewell from

conducting any conference whatsoever with respect to preparing any

Engrossed Settled Statement due to the Expiration of time to do so pursuant

to CRC Rule 837 (d) (4)” Appellant stated in the upper right hand corner of the

Motion that: “Judge Christine C. Ewell is without jurisdiction to conduct a

conference for preparation of an Engrossed Settled Statement Scheduled

for May 26, 2011” and requested a Stay. This Court converted my injunction

motion to a Petition-Writ- Prohibition on 5/20/2011 even though I did not

characterize it as such. If this Court had granted the Injunction or Writ, then Judge

Ewell would have been enjoined from conducting the hearing and issuing the

Engrossed Statement. On 5/24/2011, in a one-sentence order, denied what it

denominated a Petition for a Writ. No explanation given. In view of the fact that this

Court itself in its Opinion stated that Judge Ewell was 55 days late, the Petition, or

injunction should have been issued. That was prejudicial error. It is hornbook law

that jurisdiction is “power”. This court should have granted the Writ. This

Court could have avoided the error it committed by denying Appellant’s Motion to

7

Strike and stating that there is “no law”. There is law, and we will cite it. I am very

surprised that experienced lawyers and judges could make such a statement that

is obviously erroneous. I direct this Court’s attention to Appellant’s Inunction

Motion, which stated in no uncertain words that Judge Ewell was a fabricator,

committed Judicial Misconduct, and requested that she be cited to the

Commission of Judicial Performance. It was also denied. It is the unusual judge

who turns in a fellow judge for judicial misconduct. We now have a swearing

contest between my version of what happened and her version as to what

happened. A simple injunction addressed to Judge Ewell would have prevented

this miscarriage of justice.

2. The one sentence denial without explanation as to why she did not lose jurisdiction

or that there is no law on the subject would have cured the erroneous opinion that

it issued on May 3, 2012. To me, the writing was on the wall. Either this Court was

a “rubber stamp” or prejudiced, which prompted Appellant to file a Motion to recuse

the entire panel. One judge, who participated in the trial, was automatically

disqualified. That Motion was filed on 6/15/2011. It was denied on 6/24/2011.

Judge Keosian did recuse himself on 6/24/2011.

ERRORS IN THE OPINION

1. The Court’s procedural and factual background is based on the Engrossed

Statement prepared by the Trial Judge and not enjoined or stricken as

requested. Reference is made to P. 2 of the Opinion beginning with the words

“recapped”. Judge Ewell “fabricated: “giving the parties notice and an opportunity to

be heard”. What actually transpired is that she took the motions into chambers and

8

ruled from the bench. Friedlander asked to be heard. The Judge told me to “shoosh”

and sit down. Therefore no notice and certainly no opportunity to be heard. The

process server who testified under oath that no fees were requested presented an

affidavit. The subpoenas were certainly not irrelevant or oppressive, as they were the

Trustee who conducted the Sale (that Grossman claimed was rigged). The Trustee

signed the deed that was admitted pursuant to Judicial Notice but not for the hearsay

set forth therein. Friedlander testified that the hearsay statements were untrue based

on his personal knowledge. More on that in the argument.

2. No evidence that “a bench trial from counsel table was the customary practice of the

Trial Judge. The Trial Judge was not subject to my cross-examination. Irrespective of

that “fabricated” statement from the Trial Judge. There is no Rule or Case Law cited by

the Appellate Court on the subject. I therefore attach to this motion several orders

issued by respected trial judges as to bench trials and jury trials. Not one that I have

read permits trial from counsel table. Judge Ewell was a Federal Prosecutor in the

Central District before she was appointed by the Governor to be a Superior Court

Judge. She was Assistant US Attorney in the Central District. It was in my briefs. I

have practices in many federal and state courts throughout my 44-year career as a

trial lawyer and never once have I ever observed a trial from counsel table. Judge

Ewell demeaned the Judiciary in this State by conducting a trial from counsel table.

Witnesses are more apt to tell the truth when they are seated in the Witness Box. I can

look witnesses in the eye and observe, through experience whether they are telling

the truth. Judge Ewell denied Appellant confrontation of witnesses and that itself is a

denial of due process. Riojas was incompetent to testify that Pro Value was a “bona

9

fide purchaser”. She told Friedlander that she knew that there was a lis pendens

recorded and that she negotiated the price before the sale. That is a “rigged” sale. The

fact that Grossman introduced into evidence the Lis Pendens that he personally

recorded, as a matter of law, gave Pro Value Notice of the Lawsuit referenced in that

Lis Pendens. As stated in the briefs that were filed in this action, one by Justice

Rehnquist, actual notice and constructive notice have the same legal effect. It denies

bona fide purchaser status. She lied that she conducted a “chain of title” since I did the

same and the lis pendens was reflected in the “chain of title”.

Riojas testimony that she did not recall having a conversation with Friedlander did

and could not impeach Friedlander’s testimony that he did have such a conversation

and Friedlander testified what was said during the conversation. Did Judge Ewell call

me a liar? I am an attorney for 44 years with an AV Rating from Martindale-Hubbell

and I do not lie under oath.

3. Directing the court’s attention to P. 4 lines 25-27 regarding that:”Ms. Riojas was

credible regarding her testimony that Pro Value was a bona fide purchaser….” That is

an incredulous finding by the Trial Judge and this Court, and Riojas was totally

incompetent to testify that Pro Value was a BFP. The Lis Pendens that was recorded

that gave her and Pro Value “constructive notice” that the lawsuit was pending.

Friedlander, not Grossman had the conversation with Riojas as set forth in P. 5, lines

4-5 of the Opinion.

4. Directing the court’s attention to P. 5, lines 5-8, wherein this court stated that the Trial

court’s proposed statement was issued May 10, 2011, 55 days late. Directing the

court’s attention to P. 6, lines 18-25, wherein the court stated “no authority exists on

10

this precise point… and that Grossman must be prejudiced. We will cite the court to

authorities in the brief portion but since this court believes that it is a “case of first

impression”, we request that the decision be published and certified to the Court of

Appeal. Prejudice is presumed when a Court loses jurisdiction to issue an order. The

order is void. Citations to follow. Then further prejudice resulted in that we contend

that Judge Ewell “fabricated” and the Engrossed Statement should have been

enjoined or declared void. This opinion was written on Judge Ewell’s version of the

facts, which we strenuously contend were fabricated. The presumption based on a

void order simply does not exist.

5. Attention is directed to P. 7, lines 1-5. This court cited CCP § 607 to assert the “false”

proposition that the Trial Court “is allowed wide latitude in conducting trial”. It is

obvious that this court did not read CCP § 607 since it deal strictly with “jury trials”.

This case was a “bench trial” Ev. Code § 320 deals strictly with “the order of proof”.

Thus, this Court cited as authority irrelevant statutes to justify its decision. It is

unethical for a court to knowingly cite “false” authorities to support an appellate

decision.

6. The court also failed to address or adjudicate Grossman’s affirmative defenses. It is

hornbook law that the issues in the case are framed by the pleadings. Need I

cite them? I direct the court’s attention to the verified answer filed by Grossman, who

is also an attorney. See the sworn allegations in ¶ 7 of the Answer. We also direct this

Court’s attention to the Fourth Affirmative Defense particularly ¶ ¶ 16, 18, and 19.

Grossman alleged a violation of the Due Process Clause of the 14 Amendment, and

the Equal Protection of the Laws under the 14th Amendment. These affirmative

11

defenses cited legal authority for these Constitutional Challenges to the “due process”

and “equal protection” clauses of the 14th Amendment. These constitutional

challenges were discussed In Cherminiknsky’s Treatise on Constitutional Law.

Grossman and his attorney wished to adjudicate these challenges for a “social and

economic purpose”. To stop speculation. Robo signing, fraud, forgery, backdating,

perjury, and to eliminate Eviction Mills such as Fast Eviction Service. The major banks

just signed off on a $26 billion settlement of which this court can take judicial notice.

Neither the Trial Court nor this Appellate Court addressed these issues. They

are cases of first impression and should have been adjudicated. The failure to

do so, constitute a denial of due process in the Appellate Court.

7. It is obvious that this Appellate Court did not do its research when it wrote in its opinion

that “it is unclear how the knowledge of a Trust Deed’s purchaser that there was a lis

pendens on a property could impact the vesting of title for purposes of an unlawful

detainer trial, citing a 1957 case to support that position. Both Federal and State Law

have superseded that case, which will be the subject of discussion.

8. It was obvious to Appellant’s Attorney that Judge Ewell was going beyond the bounds

of accepted bench trials in not only the State of California, but in almost all the Federal

and State Courts in the United States. As an experienced appellate record, I preserve

a record for a subsequent appeal and I knew that Appellant was not going to receive a

fair trial in violation of the Due Process Clause but that she was going to make many

errors of law that I wished to preserve for an appeal.

9. Appellant this Requested in Writing a Statement of Decision in writing pursuant to

CCP § 632 and CRC Rule 632. Appellant thus requested a written Statement of

12

Decision explain the factual and legal basis for its decision with respect to the

following controverted issues, as follows: (1) the factual and legal basis of this Court

Quashing the Subpoenas served on the Seaside witnesses, in a sua sponte manner

when the statute required a Motion to Quash, not an objection. The Judge thus

fabricated a response in its Engrossed Statement. She never gave notice or an

opportunity to be heard; (3) The factual and legal basis as to whether or not Pro Value

was a BFP; (4) The factual and legal basis as to whether Bayview was an Assignee of

the Original Lender on the date that it substituted Seaside as Trustee of the Grossman

TD; (5) The factual and legal basis as to whether or not Seaside was a duly authorized

Trustee on the date they recorded the NOD and NOS; (6) The factual and legal basis

as to whether or not the lis pendens recorded by Grossman in December 2009

precluded the later Assignment recorded on March 9, 2010 from being subject to the

pending action in Dept. 53 of the LASC; (7) The factual and legal basis as to whether

or not Seaside’s Trustee’s Dee was null and void on the date it was recorded; (8) The

factual and legal basis as to whether or not the Trustee’s deed passed legal title to Pro

Value; (9) The factual and legal basis as to whether or not the Assignment that was

recorded by Seaside on 3/8/2010 was backdated by Seaside and fraudulently signed

by an alleged officer of MERS on the date it was notarized. (The Robo Signing issues

were hitting the press at this time and was the basis of the $26 billion settlement with

the major banks); (10) the factual and legal basis as to whether Grossman received a

“fair trial” under the 14th Amendment; Appellant then included (11), (12), (13) and (14).

This was filed while the Trial and what happened at the Trial was “fresh” in

everybody’s mind, including the court. The court refused to address most of these

13

requests or “fabricated” responses to them.

10. The Court’s statement of decision must explain the legal and factual basis of the

decision “as to each of the principal controverted issues” at trial as “listed in the

Request”. CCP Sec. 632. As shall be demonstrated below the Court failed in its duties.

A “principal” or material issue is one “which is relevant and essential to the judgment

and closely and directly related to the trial court’s determination of the ultimate issues

in the case. Kuffel v. Seaside Oil Co. 69 Cal. App. 3rd 555, 565 (1977) A statement of

decision should set forth ultimate facts rather than evidentiary facts. Lynch v. Cook

148 Cal. App. 3rd 1072 (1983). It should provide a narrative explanation of the judge’s

reasoning. People v. Casa Blanca Convalescent Homes, Inc., 159 Cal. App. 3rd

509,524 (1984). The findings should not be so “ultimate” that they are simply legal

conclusions. E.g., findings that a “contract existed” between the parties; or that

“coverage existed” under an insurance policy. Such findings “make it extremely

difficult if not impossible for the reviewing court to ascertain the basis for the trial

court’s conclusion that “coverage existed”. Employers Cas. Co. V. Northwestern Nat’l

Ins. Group, Cal. App. 3rd 462, 473 (1980). Reversible error results where a statement

of decision “fails to make findings on a material issue which would fairly disclose the

trial court’s determination”. Sperber v. Robinson, 26 Cal. App. 4th 736, 745 (1994).

Grossman’s objections should be “specific”. Ripani v. Liberty Loan Corp, 95 Cal. App.

3rd 603, 615 (1979)

11. The undersigned contends that what this court conducted, calling it a “trial” was a

farce and certainly did not meet the minimum expectations of “Due Process of Law”

required by the 14th Amendment. This Court overruled Grossman’s request that all

14

witnesses take the witness stand as is required in every court that this writer attended

over his 40-year career and certainly every Federal Trial the Trial Court attended as a

Chief Prosecutor for the US Attorney’s office for the Central District of California, major

crimes division. This Court required both witnesses and attorneys to question the

witness from the counsel table, which demeaned the court process as we all have

known it throughout history. That irregular process prejudiced defense counsel since

he had difficulty in hearing the questions and answers, which proceeded in “machine

gun” style, partially precluding Evidence Code objections to be raised. This court

arbitrarily denied Grossman a jury trial as timely requested by Grossman, arbitrarily

denied Grossman’s statutory and constitutional right to enforce validly served

Subpoenas to extremely important and relevant witnesses who had first-hand

knowledge of the “irregularities” in the foreclosure procedure leading to the illegal sale

to Pro Value. The documents and testimony of the Trustee who issued the NOS,

NOD, and allegedly conducted the “sale” “rigged” in favor of Pro Value would have

defeated Pro Value’s case.

12. This Court “stifled” Grossman’s counsel from posing relevant questions to the

witnesses, including his narrative, by admonishing counsel to “shoosh” as a polite way

of refusing to adhere to the Evidence Code and the Constitution. Friedlander was duly

“shooshed” under pain of contempt. This Court abused it power by stifling Defense

counsel. It appeared to defense counsel that this Court used “time constraints” to

“trump” justice and “due process”. No reasonable bench trial could have been

conducted in three 45-minute segments, especially one that required documentary

evidence that needed foundation and relevance. Friedlander thus made an offer of

15

proof but there was no court reporter to record that process to preserve the record on

appeal. Thus Friedlander, on almost a daily basis, submitted memorandums of law to

assist the court in following the law.

13. THE REQUEST FOR STATEMENT OF DECISION.

14. The factual and legal basis of this Court Quashing the Subpoenas served on the

Seaside witnesses, in a “sua sponte” manner, when the law required a Motion to

quash, not an objection. The court failed to do so.

15. The factual and legal basis as to whether or not Pro Value was a bona fide

purchaser. The court refused and failed to do so on the basis of relevancy based on

the evidence that it claims it properly excluded. However, the court did receive in

evidence the Lis Pendens recorded by Grossman, which put Pro Value on

Constructive Notice, which, by itself would have precluded Pro Value from being a

BFP. The Court failed to deal with the legal consequences of that Lis Pendens in the

context of a BFP. Carleen Riojas, the office manager’s testimony was worthless. She

testified that she did not recall the telephone conversation that she had with

Friedlander. Friedlander testified, without objection, that Riojas told him that she was

the office manager; that she pulled the Grossman file; that she knew, before the sale

that Grossman had recorded a Lis Pendens and that he had claims to the property

(actual notice); she testified that was a basis of a conversation with Seaside, the

Trustee, and the sales price was negotiated downward due to the impediment prior to

any actual sale which gives credence to Grossman’s claim that the sale was rigged.

Riojas was given an opportunity to change her testimony, but she did not.

Friedlander’s testimony puts the “lie” to Riojas’ testimony, and she was anything but

16

credible. Friedlander even offered into evidence a letter that he wrote to Pro Value

after his conversation with Riojas, which Friedlander testified that it was his business

practice over 40 years to reiterate a conversation in a letter to the other side to

memorialize that conversation for a trial to take place many months or years later.

Friedlander was not cross-examined. That letter was not admitted into evidence on

the grounds that it was a settlement letter I did not discuss settlement in that letter

because we had no intention of settling. That letter merely recorded for posterity and a

trial the substance of my conversation. Judge Ewell read it, and even though it did not

mention “settlement” refused to admit it into evidence. I served this Court with a

Motion to require the Trial Court to deliver both the Exhibits rejected and admitted, and

this Appellate Panel, wrongfully denied that motion. Thus, this Appellate Court

committed an error of its own precluding appellant from presenting an appeal based

on the record of the Trial. Error and error compounded the errors made by the Trial

Court. Every motion that I presented was denied without explanation. This meets the

threshold of “miscarriage of justice” by multiple errors, thus denying Appellant a “fair”

appeal as mandated by the due process clause of the 14th Amendment.

16. The Trial Court deliberately refused to render a factual and legal basis as to

whether Pro Value was a BFP, and left it ambiguous. That is deliberate error and a

denial of due process.

17. A bona fide purchaser is one who pays value for the property without notice of any

adverse interest or any irregularity in the sale proceeding. Nguyen v. Calhoun, 105

Cal. App. 4th 428 (2003). The Lis Pendens gave “constructive notice” to the “world”

including Pro Value. Thus, Pro Value was on “constructive notice. Friedlander testified

17

that the office manager told him that Pro Value had “actual notice”, a fact that has not

been challenged by Pro Value. Friedlander’s testimony established that not only did

Pro Value have notice of “irregularities” in the sale proceedings, but also Pro Value

participated in those irregularities per Friedlander’s sworn testimony as to the

arrangement of the price before the sale. Pro Value offered no testimony whatsoever

as to the actual sale and bidding. Riojas had no memory of my conversation with her.

Thus, I was not “impeached”. Judge Ewell stated that her testimony was more credible

than mine. How can that be, unless Judge Ewell called me a “liar”. The letter that was

not produced to this Court and refused to be admitted into evidence would have made

Judge Ewell the fabricator, not me. A total “miscarriage of justice” when I am forced to

call Judge Ewell’s credibility into issue after she put my “credibility” into issue. I have

practiced law enough years to know of specific instances where judges, who are just

people, fabricate. John Edwards lied. President Bill Clinton lied. Some of our Supreme

Court Justices fabricate during the confirmation process after being “coached” by their

handlers. I watched the Clarence Thomas confirmation from “gavel to gavel”. His word

vs. Anita Hill. Who was the liar?

18. The Trustee’s Deed should not have been admitted into evidence pursuant to

Judicial Notice, since it was “irregular” on its face. The Trial Court should have noted

that the “amount of the Unpaid Debt” was left blank. Both Bayview and Seaside knew

or should have known what the “Unpaid Debt” was. The Trustee’s Deed was not an

affidavit, but a Notarial Acknowledgment that Elvia Bouche signed the document as

Vice President of Seaside. It does not make the facts in that document “true”. I testified

under oath that they were untrue. The Trustee was incompetent to testify, as she had

18

no personal knowledge. I did.

19. The factual and legal basis as to whether or not Bayview was an Assignee of the

Original Lender on the date that it substituted Seaside as Trustee of the Grossman

TD. The court deliberately failed to do so even after admitting into evidence the

“Allonge” which stated on its face that the Note that Grossman signed in favor of the

original lender was endorsed over to HSBC, an entity other than Bayview. That

Allonge was faxed to Friedlander by Northwestern Trustee, the prior Trustee

appointed by Bayview on a date prior to Seaside’s involvement, and puts the lie to the

backdated and forged Assignment referenced in Pro Value’s Exhibit 2. This Court

intentionally neglected to state that Exhibit 2 was recorded on 3/8/2010, one day

before the sale. The trial court covered up the fraud and perjury of Bayview and

Seaside by admitting that document into evidence and using that document to support

its decision. It was backdated to 6/10/2009, which could not have been prepared by

Seaside since Seaside was appointed on 8/3/2009 according to Exhibit 1. Proof

positive that it was backdated. Crimes were committed and covered up by the Trial

Court. As Chief Prosecutor for the US Attorney, she could not contend that she lacked

experience to make a finding that it was backdated and fraudulent. She was a Harvard

Law graduate.

20. Since Bayview did not own the note, it could not enforce the security for a note that

it did not own.

21. The factual and legal basis as to whether or not Seaside was a duly authorized

Trustee on the date that they recorded the Notice of Default and Notice of Sale. This

court did not answer that question. The evidence that it rejected reflected that on the

19

date the NOD and NOS was recorded Seaside was appointed by an entity other than

the original lender, rendering all recordings a “nullity”. Exhibit 2, recorded on 3/8/2010,

and backdated to 6/9/2010, was Bayview and Seaside attempt to “cover-up” the

invalidity of the prior recording of the NOD and NOS by Seaside. We have a

subornation of perjury here by Pro Value by offering into evidence it knew was “false”.

Pro Value committed a fraud on the Trial Court, and put into disrespect the “rule of

law” which that Court swore to uphold.

22. The factual and legal basis as to whether or not the Lis Pendens recorded by

Grossman in December 2009 precluded the later Assignment recorded on March 8,

2010 from being subject to the pending action in Department 53 of the LASC. The

court failed and refused to address that material issue of law and fact, and so did this

Court.

23. The factual and legal basis as to whether or not Seaside’s Trustee’s Deed was

invalid on the date that it was recorded. The court failed and refused to address that

material issue of law and fact, and so did this Court

24. The factual and legal basis as to whether or not the Trustee’s Deed passed legal title

to Pro Value. The court failed and refused to address that material issue of law and

fact, and so did this court.

25. The factual and legal basis as to whether or not the Assignment that was recorded by

Seaside on 3/8/2010 was backdated by Seaside and fraudulently signed by an

alleged officer of MERS on the date that it was notarized by the Florida notary. The

court failed and refused to address that material issue of law and fact, and so did this

Court.

20

26. The factual and legal basis as to whether or not Grossman received a “fair trial” as

that term is defined by the cases decided under the 14th Amendment. The court failed

and refused to address that material issue of law and fact. However, Grossman

addressed that issue to the effect that he did not receive a “fair trial”. This Court just

“rubber stamped” the Trial Court instead of a “de novo” review.

27. The factual and legal basis as to whether or not Trustee and Bayview complied with

Federal and California law with respect to the Trustee’s sale allegedly conducted by

the Trustee and/or its agents. The court failed and refused to address that material

issue of law and fact. However Friedlander filed a Memorandum of Law that “Hearsay

in a Recorded Document” is still “hearsay” and inadmissible. Friedlander testified,

under oath, without objection, that the Trustee and Bayview did not comply with those

requirements of law. For example, Friedlander testified that CC Sec. 2923.5 was not

complied with. There was no testimony by Bayview or declaration signed and

recorded by Bayview that Bayview complied with CC Sec. 2923.5 (a)(1), (2); (b); or c.

The use of the word “declaration” in subparagraph should be interpreted to mean a

declaration by a mortgagee or beneficiary. A declaration by a Trustee is rank hearsay

rendering the entire NOD and NOS void precluding a sale. Friedlander’s testimony

was first-hand knowledge and certainly trumped “hearsay”. CC Sec. 2923.5 was not

complied with per the testimony of Friedlander. The Trustee’s declaration as to what

Bayview told her is rank hearsay. It required a declaration by Bayview. No such

declaration was filed. CC Sec. 2923.54 (a) required a declaration from the mortgage

loan servicer (Bayview) in the Notice of Sale. It did not. The declaration by the Trustee

is not only rank hearsay but did not comply with the Civil Code and the testimony of

21

Friedlander trumps Pro Value on that issue. This Court did not review de novo as

required.

28. The factual and legal basis as to whether or not Grossman prevailed on any one or

more of his affirmative defenses. The court failed and refused to address that material

issue of law and fact. It required a de novo review.

29. The factual and legal basis as to whether or not the California Unlawful Detainer

Statute is Unconstitutional under either one or more of the Constitutional defenses

raised by Grossman in his answer. The court failed and refused to address that

material issue of law and fact. It required a de novo review by this Court.

30. Tender is not an issue in this UD case. It may be an issue in the main case entitled

Grossman v. Bayview. In any event Bayview did not own the Note, per the Allonge”

and therefore there was no duty to tender. Tender is a “red herring” irrelevant issue in

this case.

THE CONSEQUENCES OF THE COURT FAILING TO ADDRESS MATERIAL

ISSUES IS RELEVANT TO THE APPEAL FILED BY GROSSMAN

“The clear implication of this provision, of course, is that if a party does not bring

such deficiencies to the trial court's attention, he waives his right to claim on appeal

that the statement was deficient in these regards, and hence the appellate court will

imply findings to support the judgment.” [Marriage of Arceneaux, supra, 51 C3d at

1133–1134, 275 CR at 799 (emphasis added)] THIS COURT VIOLATED THESE

BASIC PRINCIPLES OF LAW AND WAS THEREFORE PRECLUDED FROM

MAKING IMPLYING FINDINGS. De novo review denied.

“[F]irst a party must request a statement of decision as to specific issues to obtain

22

an explanation of the trial court's tentative decision (§ 632); second, if the court issues

such a statement, a party claiming deficiencies therein must bring such defects to the

trial court's attention to avoid implied findings on appeal favorable to the judgment (§

634) ... ” [Marriage of Arceneaux, supra, 51 C3d at 1134, 275 CR at 799 (emphasis

added); see also Marriage of Hoffmeister (1987) 191 CA3d 351, 360–361, 236 CR

543, 547–548—when party timely requests “clarification” of statement of decision

(pursuant to CCP § 657 or § 663), appellate court may not invoke doctrine of implied

findings]

Appellant meticulously complied with all of the above to preclude this

Appellate Court to imply findings. This Appellate Court violated these

principles of law on appeal. De novo review denied.

The request must specify each “principal controverted issue” as to which a

statement of decision is desired. [CCP § 632; see Espinoza v. Calva (2008) 169

CA4th 1393, 1397, 87 CR3d 492, 495—tenants request for “specific findings” as to

each affirmative defense satisfied § 632; There was nothing ambiguous to Appellant’s

Request. The Trial Court went out of its way to dodge these specific requests thereby

precluding this Appellate Court from implying any finding to sustain the judgment.

This was not just “mere” error on the part of this Court. It intentionally

denied Appellant a “fair” appeal and violated his Due Process Rights under the

14th Amendment.

ANOTHER MAJOR ERROR OF LAW BY THIS APPELLATE COURT THAT

DENIED GROSSMAN DUE PROCESS.

Defendant would claim that they have not and Plaintiff will submit to the court a

23

certified copy of the Notice of Trustee’s Sale and ask the court to take judicial notice of

said document as well as the Trustee’s Deed.

If the Trustees sale had occurred prior to Sept 6, 2008 plaintiff would prevail but for

other procedural defects in the assignment of the Deed of Trust.

A different rule applies in an unlawful detainer action that is brought by the

purchaser after a foreclosure sale. His or her right to obtain possession is based upon

the fact that the property has been “duly sold” by foreclosure proceedings, CC1161a

(b) (3) and therefore it is necessary that the plaintiff prove each of the statutory

procedures has been complied with as a condition for seeking possession of the

property.

When the eviction is by a bona fide bidder at the sale, the defendant has no

defenses to eviction. However as in this case a beneficiary that is the plaintiff in the

unlawful detainer action must prove that it has duly complied with each of the

statutory requirements for foreclosure, and the trustor can put these questions in

issue in the unlawful detainer proceeding. Miller and Star 3rd 10:220.

Additionally as of Sept 6, 2008, additional requirements for a duly perfected

foreclosure were added in 2923.5. What did SB 1137 do? SB 1137 added a number of

new code sections including Civil Code §§ 2923.5 and 2924.8 (which are the “notice

provisions” of SB 1137 and designated as sections 2 and 4, respectively). Section

2923.5 requires contact with, or due diligence to attempt to contact, the borrower

before a notice of default (“NOD”) may be recorded after 9-6-08 or continued where

the notice of default was recorded prior to 9-6-08 but the notice of sale (“NOS”) will not

be recorded until after 9-6-08. Section 2924.8 requires a new Notice of Sale to

24

Resident to be posted on the residential property and mailed to the resident of

residential properties (in English and in 5 other languages) as part of the nonjudicial

foreclosure process.

What Loans are Covered under new Civil Code § 2923.5? Civil Code § 2923.5 only

applies to: (1) Loans made from January 1, 2003, to December 31, 2007, inclusive

(“Covered Period”); and, (2) loans secured by residential real property that are for

owner-occupied residences. For purposes of § 2923.5, “owner-occupied” means that

the residence is the principal residence of the borrower. The words “made” and

“principal residence” is not defined in the statute, leaving uncertainty as to what these

terms mean. Further, the statutory definition of “residential property” is not limited to

1-4 residential properties. Therefore, if one unit in any residential property (e.g., an

apartment building, a residential unit in a mixed use commercial/residential property,

etc.) is owner-occupied as the borrower’s principal residence, the borrower may be

considered to be covered under Section 2923.5. Lastly, while it appears that the

legislature intended to cover loans that were originally intended to be “owner

occupied”, the timing of the owner occupancy is also uncertain. Loans meeting the

above requirements will be called “covered loans” in this brief.

Any loan that was not made between January 1, 2003, through December 31,

2007, is not a “covered loan” and is not subject to the provisions of § 2923.5 (although

it still requires a “Notice of Sale to Resident” under certain circumstances discussed

below). The Grossman loan was made during the time period where new foreclosure

and eviction requirements had to be complied.

Preconditions to Recording Notice of Default (“NOD”). A trustee, beneficiary, or

25

authorized agent may not file a notice of default (“NOD”) until: (1) 30 days after contact

is made with the borrower as required by section 2923.5(a); or, (2) 30-days after

satisfying the due diligence requirements of section 2923.5(g); or (3) after qualifying

for one of the exclusions under section 2923.5(h).

Contact with the Borrower (Before Foreclosure). The beneficiary or authorized

agent must contact the borrower in person or by telephone in order to: (1) Assess the

borrower’s financial situation; and, (2) Explore options for the borrower to avoid

foreclosure. Since many lenders already have policies which may fulfill these

requirements, those policies should be reviewed, as they are likely to fall short of

some of the new requirements.

Assessment of the Borrowers Financial Situation; Discussion of Options and

Notice of Borrower’s Right to Have a Meeting with Beneficiary or Agent. The

assessment of the borrower’s financial situation and discussion of options may occur

during the first contact, or at the subsequent meeting scheduled for that purpose. Civil

Code § 2923.5 gives no guidance as to what the lender or servicer must do in

“assessing the borrower’s financial situation. Similarly, there is no guidance as to

what, if any, “options for the borrower to avoid foreclosure” should be discussed.

During the initial contact, the beneficiary or authorized agent must advise the

borrower that he or she has the right to request a subsequent meeting and, if

requested, the beneficiary or authorized agent shall schedule the meeting to occur

within 14 days. (Civ. Code § 2923.5(a).) A beneficiary’s or authorized agent’s loss

mitigation personnel may participate by telephone during any contact required by this

section. (Civ. Code § 2923.5(d) (2).)

26

The undersigned spent his time researching the law as “evictions” based on

judicial and non-judicial foreclosures sales, are overwhelming our state and federal

court systems. Having handled many “lis pendens” cases, “constructive notice” based

on a recorded “lis pendens the undersigned will discuss the effect of the recordation of

a ‘lis pendens” on a party claiming to be a bona fide purchaser (“BFP”) Simply put,

there is no such “animal” even though Pro Value asserts that it is a BFP. Whether or

not Pro Value is a BFP affects presumptions, rebuttable or conclusive. Pro Value’s

counsel continues to misrepresent to the Court that Pro Value is a BFP, and the

undersigned says “hogwash”. The undersigned does not presume to lecture this

Court. The undersigned must “make a record” for an appeal that may be filed by

Grossman. Appellant made such a record.

Friedlander testified based on personal knowledge that each one of those

requirements was never performed.

I direct the Court’s attention to P. 21 through 24 of Appellants Proposed Statement

on Appeal, which the Court finally received as part of the Record after I made “noises”

about this failure during oral argument. This Court knew it had made a mistake after

I pointed out the mistake during oral argument. Yet this Court seemed to

recognize its mistake, but it refused to grant me additional time to discuss the mistake.

It covered up its mistake by correcting the record on its own motion instead of

extending to me an additional few minutes to discuss the mistake and the proper way

to correct it. Instead, the court berated me for being “loud”, and denied my request for

additional time to argue. Then, when I filed a Motion to Strike the Engrossed

Statement and to reargue the case, it denied my request in a one-sentence ruling. I

27

would seem to believe as an experienced appellate lawyer that I should have been

granted my request to reargue and to point out to the Court why the Engrossed State

was void for lack of jurisdiction.

My briefs pointed out to this Court that even though the Court may take

judicial notice of the recording of the NOD, NOS, and Trustee’s Deed, it may not take

judicial notice of the disputed hearsay facts set forth therein. My sworn testimony

trumped the “hearsay in the recorded documents. It is hornbook law that taking notice

of disputed hearsay in recorded documents denied Appellant’s right to confront the

signatories of those documents. The Trial Court quashed the Subpoena’s denying

Appellant his due process right of “confrontation” of witnesses to prove fraud and lack

of personal knowledge. Appellant’s briefs stated on numerous occasions that the Trial

Judge, by quashing, sua sponte, on fabricated grounds, the subpoenas served of the

officers of the Trustee, that the Trial Judge “gutted” Appellant’s case. This court

committed the same egregious error by “rubber stamping” the same error Thus the

Appellate Court compounded the error by making an egregious error of its own.

Taking judicial notice of disputed hearsay is prejudicial error. Store Media v Sup. Ct.

(1999) 20 Cal 4th 449, 457, footnote 9; Joslin v HAS Ins, Brokerage (1986) 184 Cal

App 3rd 369, 374. Love v. Wolf (1964) 226 Cal App 2nd 378; People v Long (1970) 7

Cal App 3rd 586. Court took judicial notice of forged recordings and found hearsay

true.

On May 31, 2011, the Court of Appeals for the Third District of California published

an opinion at 196 Cal App 4th 1366, which is quite relevant as to the judicial notice

issue as to disputed facts in recorded instruments. This Court stated that: “Judicial

28

Notice may not be taken of any matter unless authorized or required by law” (Citation

omitted) “Matters that are subject to Judicial notice are listed in Ev Code § § 451 and

452…” Taking judicial notice of a document is not the same as accepting the truth of

its contents or accepting a particular interpretation of its meaning” (Citations omitted)

“While courts take judicial notice of public records, they do not take judicial notice of

the truth of its contents or accepting a particular interpretation of its meaning.”

(Citations omitted) “When judicial notice is taken of a document …the truthfulness and

proper interpretation of the documents are disputable” (Citations omitted), citing a

California Supreme Court Case, StorMedia. The Court continued “This court

considered the scope of judicial review of a recorded document in Poseidon

Development v Woodland Lane Estates (2007) 152 Cal App 4th 1106. “ The fact a

court may take judicial notice of a recorded deed, or similar document, does not mean

it may take judicial notice of this fact, because it is hearsay and it cannot be

considered not reasonably subject to dispute…”

The court went on to say, “The same situation is present here in the context of this

residential foreclosure litigation… Plaintiffs dispute the truthfulness of the contents of

all of the recorded documents. Judicial notice of the recorded documents did not

establish that the Bank was the beneficiary or that CRC was the Trustee under the

2003 deed of trust. Defendants failed to establish “facts justifying judgment in their

favor (citations omitted) through their request for judicial notice… “The judgment is

reversed with directions to vacate the order granting summary judgment and to enter a

new order denying summary judgment….”

This was the very same argument I made to the Trial Judge and to this

29

Appellate panel. That judicial notice argument drove a truck right through Pro

Value’s case as Friedlander’s Testimony Established the Dispute and Judge

Ewell would not let the Trustee testify for a very good reason. On

cross-examination, I would have established their fraud and perjury and that

corporations may not assert the 5th Amendment.

If this Court certifies this Case to the Court of Appeal or publishes the

required reversal, all of the foreclosures and evictions based on hearsay in

recorded documents would be subject to being set aside.

This is the banksters’ donut hole in their RICO conspiracy to defraud the

world. Appellant wants this case to be precedent and in order for it to become

precedent it must be published by this Court or the Court of Appeal.

Do the right thing and save the homeowners in this state who have been

made homeless by these crooked foreclosure and eviction mills. If the AG

refuses to act for political reasons, then I thrust the ball in your park to do your

judicial duty without bias or prejudice.

Thus, this Appellate Court affirmed elite bankster crime by evicting Appellant from

his home and refused to issue a stay pending this appeal. Where does the buck stolen

from homeowners stop. Congress is hamstrung. The President sold the homeowners

out with his “crap” settlement, leaving homeowners with $2000 to $4000 a pop if the

States do not take the money and use it to cure their budget deficits. Now it all makes

sense why AG Kamala Harris personally told me in a face-to-face meeting along with

her Asst. AG of how she was going to help homeowners in this state. Instead, like

most politicians and their lackeys, AG Harris sold out the homeowners by signing on to

30

the BS settlement the President sold with his “conflicted” Attorney General Eric

Holder. Holder was a partner in the same law firm that created MERS with Fannie Mae

and the big Banksters until he was selected by our new President to be our AG. Then

Holder’s old law firm commenced to represent the very banksters Holder was

investigating. No longer is there a rule of law; only the Rule of Money and Super Pacs

legitimized by Chief Justice Roberts in Citizen’s United. I recommend that everybody

read Toobin’s article in this month’s New Yorker Magazine as to how this Chief Justice

the so-called “umpire” maneuvered the Citizens United Case to a 5-4 decision and

assigned the Opinion to Justice Kennedy so that Kennedy could be his “beard”.

Pardon my sarcasm as to the State of the Dis Union today. Three Governors since

Davis was recalled and still California cannot balance a budget with a $16 billion deficit

now that Brown has been elected. His hands are tied due to a 2/3rds super majority to

raise taxes. All he can do is cut spending on a majority vote. Between the super

majority filibuster and a 2/3 super majority, we are doomed to stalemate and the “light

on the hill” is in danger of burning out with Europe and the Euro. To think that both

Holder and Axelrod are both graduates of my old HS in NYC, Stuyvesant High and

Colin Powell attended CCNY with me.

This writer has presented so many new and novel issues of law, that according to

the Rules of this state, that it should certify the reversal and publish the opinion and/or

certify to the Court of Appeal so that the Appellate and Trial Courts of this State may

receive guidance. We have a foreclosure and eviction mess in this state. President

Obama has sold the homeowners down the river with the “ridiculous” $26 billion

settlement with five major banksters with only a “trickle” of those funds going to

31

homeowners. The pension funds of this state were “impaired” including the pension

funds of the Judiciary of this state by the insufferable, intentional, material breaches of

fiduciary duty committed by “Banksters” such as Goldman Sachs who sold the “crap”

to its clients and permitted John Paulson to “short” the “crap” by buying naked Credit

Default Swaps against the “crap”. The pension funds hold the “crap” while Paulson

shorted the “crap” and made $5 billion on this web of criminal fraud and deceit.

The biggest clients of the “banksters: who securitized the “crap” were the pension

funds of the 50 states, including the State of California. I believe that all pension funds

that provide pensions to Judicial Officers of this state were sold the securitized “crap”

To the extent the “crap” is adjudicated illegal and the evicted homeowners are not

evicted in UD actions, the assets of these pension funds will be reduced to part “crap”

affecting the distribution of pensions to Judicial Officers. I believe that Judicial Officers

belong to CALPERS and CALPERS was one of the biggest purchasers of this “crap”.

If the crap is written down or written off, Pension Funds such as CALPERS will have

less pension monies to distribute to retired Judicial Officers. If my facts are correct

facts, (I do not warrant them correct) then each Judicial Officer or this State, including

the Judges on this Appellate Panel would have a “Conflict of Interest” in adjudicating

appeals from UD judgments. If that were the case, then my motion to recuse this panel

should have been granted, based on bias.

The allonge was introduced into evidence by me and admitted into evidence. An

allonge is a separate assignment of the note that is attached to the note itself. The

allonge stated on its face that the note was assigned to a financial institution other

than Bayview. Bayview, not owning the Note that was assigned to another, did not

32

have standing to enforce the security for the Note. Bayview had no standing to cause

the Trustee that it had no standing to appoint, to file an NOD and a NOS. The whole

procedure was a sham based on forgery, perjury, and every crime referenced in all of

the indictments filed by the 50 Attorney Generals for the 50 states of the United States.

I personally had a face-to-face conversation with AG Kamala Harris to present her a

legal brief to enable AG Harris to shut down these disgusting fraudulent entities. For

whatever reason, out AG signed on to Obama’s settlement deal. Many commentators

have characterized this settlement as the ultimate fraud on the homeowners who were

thrown out on the streets by rubber-stamping Trial Judges and Appellate Judges who

do not follow the law. I have one request of this Court. FOLLOW THE LAW AND DO

NOT RUBBER STAMP. THE COURTS ARE THE LAST ROUTE OPEN TO THE

EVICTED HOMELESS WHO MAKE UP THE 99%. No Bankster has taken the “perp”

walk. A travesty of justice. If I was the US Attorney, I could prepare an indictment

that would convict the “banksters”. Breach of fiduciary duty is a sub species of

fraud, and no one in the world can tell me that the CEOs of these banksters did

not know they were intentionally violating their fiduciary duty to their clients

such as CALPERS who bought the crap without disclosing that they gave an

“inside” deal to John Paulson, a hedge fund operator, who made $5 billion

making bets with naked credit default swaps. This country is “Mad as Hell and

they are not going to take it any more”. The Greeks will not knuckle to Germany

for one simple reason. Over 1 million Greeks died of starvation due to the

German occupation. The Germans owe the Greeks reparations in the form of

forgiveness, That is the Christian thing to do.

33

POINTS AND AUTHORITIES

1. IN SOME CASES, THE SHEER NUMBER OF ERRORS ESTABLISHES A

MISCARRIAGE OF JUSTICE. Though each may be minor in isolation, the

cumulative effect may deprive appellant of a fair trial. That is a direct quote from

California Civil Appellate Practice, Vol 1, 3rd Ed at P. 228. The editors cite several

cases in support of that proposition of law, namely Delzell v. Day (1950) 36 Cal 2nd

349, 351; Smith v Shankman (1962) 208 Cal App 2nd 177, 187; Maertins v Kaiser

Found. Hosps (1958) 162 Cal App 2nd 661, 667. If cumulative errors go to the

same issue, prejudice is even more likely. See, e.g. Cortez v Macias (1980) 110

Cal App. 3rd 640. The concept of finding prejudice in cumulative effect, of course, is

not new. Under the “cumulative error” doctrine, errors that are individually

harmless may nevertheless have a cumulative effect. Denzell v Day, supra. See

also Du Jardin v City of Oxnard (1995) 38 Cal App 4th 174, 180; Gackstetter v

Market Street Ry. Co (1933) 130 Cal. App 316, 325-327. In Denzell, the Supreme

Court stated; “Taken separately, they do not justify a reversal of the judgments.

However, considering the entire record, it cannot be reasonably said that their

cumulative effect did not prejudice the appellant’s case.” Judgment reversed.

In Potter v Salk 161 Cal App 2nd Supp 870, cited by Appellant in his opening

brief, the Court stated that the “defect in the record exists either as the result of

failure upon the clerk to present the engrossed statement to the judge for

certification, or the neglect of the judge of the judge in this final step of

authentication of the record. In this case, the Appellant filed his Statement; the

Appellee filed no objection; and the time lapsed for an objection by the Appellee.

34

Appellant notified the Clerk to present the Plaintiff’s statement to the Judge for

Certification; the Judge sat still and allowed her time to lapse. Then after her time

lapsed, she noticed a hearing. Unfortunately, by Judge Ewell sitting on her rights

as codified by the CRC she lost jurisdiction due to lapse of time. Appellant timely

filed a motion to enjoin the judge from acting after she lost jurisdiction to act; but

this court refused to enjoin her from acting. Thus, this Court committed reversible

error by not enjoining Judge Ewell to hold a hearing. Appellant did everything

under his power to cause her to act. She committed the error by failing to act and

this court committed the error by not enjoining her from acting. Judge Ewell had too

much “hubris” and contempt for the processes of this court that she did not even

file an opposition to my injunction motion. This court did not even, on its own

motion direct the Court to certify the Appellant Proposed Statement. It just sat still

and condoned, by inaction, the inaction of Judge Ewell. Judge Ewell demonstrated

her “disdain” for the Rules of this Court by filing “crap” 55 days late. This Court

committed reversible error by not striking the late filed certification at the request of

Appellant. This Court permitted a void fabricated document to stand and used

it for the opinion. That is a slam-dunk miscarriage of justice and a denial of

due process. Court rules are there to be obeyed by the litigants and judges. If

Appellant was late and did not file a motion to cure it would be dismissed. We are

all equal under the law, and that includes Trial and Appellate Justices.

The Supreme Court in Auto Equity Sales Inc. v Superior Court 57 Cal 2nd 450

(1952) in a decision written by Justice Peters stated that the “superior Court

exceeded its jurisdiction”. Justice Peters laid out the principle of jurisdiction, not in

35

the subject matter or personal sense, but in the sense of exercising an act

which exceeds the defined power of a court in any instance, whether that

power be defined by constitutional provision, express statutory declaration

or rules developed by the courts and followed under the doctrine of stare

decisis, are in excess of jurisdiction, in so far as that term is used to indicate

that those acts may be restrained by prohibition or annulled on certiorari.” It

cited the famous case entitled Abelleira v. District Court of Appeal, 17 Cal. 2nd 280,

288 the leading case on acts in excess of jurisdiction. That is what I meant that the

Trial Court lost jurisdiction to act, and any act beyond the time within which it was

required to act would be in excess of jurisdiction, in the power sense. Justice

Peters stated, “In this sense the appellate department clearly exceeded its

jurisdiction” Justice Peters concluded that “the judgment of the superior court,

appellate department, is annulled. Appellant a Motion that this Court characterized

as a Writ of Prohibition, which it denied in a one-sentence order. In denying this

writ of prohibition, the Appellate Department acted in excess of its jurisdiction and

the order denying the Writ of Prohibition should be annulled. I would do so now on

this Petition for Rehearing. The Opinion based on an annulled order must be

vacated and set aside and a new order entered reversing the Judgment for

possession, and restoring the Appellant to the premises.

2. THE TRIAL JUDGE’S ENGROSSED STATEMENT ON APPEAL IS A NULLITY

IN ADDITION, MUST BE STRICKEN FROM THE RECORD AS BEING

UNTIMELY.

I refer the Court to Rule 1.5 (a) (1) of the CRC, which states, “must’ is

36

mandatory. Judge Ewell was bound by that definition. She was required to comply

with the time limits or lose jurisdiction. She did not. Judge Ewell has her own

agenda. After being appointed to the US Attorney’s office Judge Ewell was then

elevated to Chief of the Criminal Division of the US Attorney’s Office. Our

Governor, months before leaving office appointed this maverick judge to the Los

Angeles Superior Court. This “maverick” judge then conducted a trial from counsel

bench. Unheard of in the annals of American Jurisprudence. No Court rule or

authority permitted such a trial. I objected and my objection was repeated

overruled. This Judge needs to be overruled and to be taught jurisprudence and

demeanor as a Judge. Only a reversal with instructions and reported to the

Presiding Judge of the Los Angeles Superior Court will teach a lesson and lessons

must be taught. She fabricated throughout her Engrossed Statement.

JUDGE EWELL IS NOT ABOVE THE LAW.

Judge Ewell’s Court Order re: “Engrossed Settled Statement on Appeal”

was a NULLITY, as Judge Ewell lost jurisdiction to issue it. Jurisdiction is power.

The issuance of that untimely document is a mistake of law, which this

Court must review de novo. We request this Appellate Court to Strike Judge

Ewell’s Statement and Proceed on the only valid Statement on Appeal,

namely the one filed by Grossman on 2/15/2011. THIS COURT IS MANDATED

TO DO SO.

I telephoned the Clerk’s office downtown on 3/9/2011 and I was referred to

the appellate clerk by the first name of Walter. I told Walter that I needed the

certified Statement on Appeal sent to the Appellate Department so that this appeal

37

could be processed according to the Rules. Walter then advised Friedlander that

the Clerk in Van Nuys had not sent the 2/15/2011 Statement to Walter in the

appellate record department in the downtown courthouse and he requested that I

fax the same to him. Pursuant to his request, I faxed a copy of that document to

Walter bearing the Received Stamp of the Clerk dated Feb. 15, 2011 on 3/8/2011.

The online docket reflects that Walter sent a written Notice that I had filed this

document on 2/15/2011 and that Walter had served a Notice to Judge Ewell’s

court with the document that I prepared and filed.

As of 3/29/2011, Friedlander had received nothing from Judge Ewell or Bouzane.

I then faxed a letter to Walter on 3/29/2011, wherein I stated that:

I direct your attention to Rule 8.837 (d) (1) which provides that within 10 days after

the appellant files the proposed statement, the respondent may serve and file

proposed amendments to that statement. Nothing was filed or received, and the

time to do so has long passed. Respondent has thus waived its rights.

Subsection (d) (2) provides that no later than 10 days after the respondent files

proposed amendments or the time to do so expire, a party may request a hearing.

Since the Respondent filed nothing, and the words may are used in the rule, I

exercised my right not to request a hearing. The Trial Judge ordered no hearing

and therefore no hearing was held. This then brought into play the provisions of

subsection (4) which provides that if no hearing was timely ordered the trial judge

MUST review the proposed statement and may make any corrections or

modification. The word MUST indicate that the Rule mandated the review.

Assuming, arguendo that the Clerk in Van Nuys did not serve the Trial Judge as

38

required, YOU, as the Clerk served a Notice on the Trial Judge on 3/10/2011.

Giving an additional 5 days for mailing, Judge Ewell had 15 days from 3/10/2011 to

file and serve any corrections or modifications. The 15th day fell on a weekend and

therefore 3/28/2011 was the last day that Judge Ewell was mandated to act. She

did nothing, and based upon the fact that she refused to hear any ex-parte request

to stay execution on the judgment, (ARBITRARY), the undersigned did not expect

Judge Ewell to do anything. I refer the Court to page 7 of the annotations to this

rule; Judge Ewell was mandated to act. Potter v Solk (Super. 1958) 161 Cal App

2nd Supp 870. Thus, the proposed statement is presumed to be correct. People v

Torres (App. 2nd Dist.) 96 Cal. App. 3rd 14 (1979) I therefore request that you

deliver the Statement on Appeal filed by Grossman to the Appellate Department,

so that the Appellate Department may decide this case in Grossman’s favor and

reverse on the grounds set forth in the Statement.

I received a communication from Walter. He told me that he was without

authority to do that. He suggested that I file a motion with the Appellate

Department seeking an Order to Show requiring Judge Ewell to show cause why

she never complied with the mandate. I did just that. Denied. I filed a Motion for an

Injunction with this Court. Denied.

The word must is mandatory not discretionary. Judge Ewell had no choice

but to comply. Rule 8.387 (f) (1) states that; If the trial judge does not make any

correction or modifications to the proposed statement under (d) (4) and does not

order either the use of an official electronic recording or the preparation of a

transcript in lieu of correcting the proposed statement under (d) (6), the judge must

39

promptly certify the statement. She did nothing. Again, Judge Ewell did not obey

the law and Mr. Grossman was tossed out of his home. The word promptly may not

be construed to file her own PROPOSED STATEMENT ON APPEAL on May 10,

2011. Judge Ewell was mandated to act promptly from March 28. 2011. Counting

the days between March 28, 2011 and May 10, 2011 (a period of 42 days) Judge

Ewell has thus violated the Canons of Judicial Ethics of California. The CRC does

not grant any authority for Judge Ewell to issue any PROPOSED STATEMENT

ON APPEAL. Judge Ewell was only given authority to make corrections or

modifications to the Appellant’s Proposed Statement. Judge Ewell waived her right

to do so. That waiver has consequences. She lost her jurisdiction to correct

or modify. She is not beyond the law, so stated the US Supreme Court in the

Watergate case dealing with the Nixon impeachment proceedings.

Judge Ewell has consistently disregarded the law, with serious

consequences to the appellant. It is her way or the highway no matter what the law

says. Her illegal and unlawful actions have resulted in the Sheriff evicting the

appellant because she flatly refused to hear a motion for a Stay pending Appeal.

She does not deserve to hold any judicial office.

This Appellate Court also violated the law. It never should have attached

any document from Judge Ewell to the Supplemental Transcript. It must be

stricken. If it is not this court will have committed grievous error and a Notice of

Direct Appeal will be filed with the Court of Appeal. Do what must be done to

correct the judicial injustices enacted on Grossman by Judge Ewell. Every wrong

has a remedy. It is in this court’s hands.

40

3. THE ENGROSSED STATEMENT IS NULL AND VOID AND SO IS THE

JUDGMENT AND THE OPINION OF THIS COURT.

In a court of limited jurisdiction, the court must proceed exactly according to

the law or statute under which it operates. Flake v. Pretzel, 381 Ill. 498, 46 N.E.2d

375 (1943) ("the actions, being statutory proceedings, ... were void for want of

power to make them.") ("The judgments were based on orders which were void

because the court exceeded its jurisdiction in entering them. Where a court, after

acquiring jurisdiction of a subject matter, as here, transcends the limits of the

jurisdiction conferred, its judgment is void."); Armstrong v. Obucino, 300 Ill. 140,

143, 133 N.E. 58 (1921) ("The doctrine that where a court has once acquired

jurisdiction it has a right to decide every question which arises in the cause, and its

judgment or decree, however erroneous, cannot be collaterally assailed, is only

correct when the court proceeds according to the established modes governing

the class to which the case belongs and does not transcend in the extent and

character of its judgment or decree the law or statute which is applicable to it."

Whenever a judge does not exactly comply with the statute, he/she has lost

subject-matter jurisdiction and all orders or judgments issued without

subject-matter jurisdiction are void, of no legal force or effect.

Since a void order has no legal force or effect there can be no time limit within

which to challenge the order or judgment. Further since the order has no legal

force or effect, it can be repeatedly challenged, since no judge has the lawful

authority to make a void order valid. Bates v. Board of Education, Allendale

Community Consolidated School District No. 17, 136 Ill.2d 260, 267 (1990) (a court

41

"cannot confer jurisdiction where none existed and cannot make a void proceeding

valid."); People ex rel. Gowdy v. Baltimore & Ohio R.R. Co.

It is clear and well-established law that a void order can be challenged in

any court. Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236

(1907) ("jurisdiction of any court exercising authority over a subject `may

be inquired into in every other court when the proceedings in the former are relied

upon and brought before the latter by a party claiming the benefit of such

proceedings,' and the rule prevails whether `the decree or judgment has been

given, in a court of admiralty, chancery, ecclesiastical court, or court of common

law, or whether the point ruled has arisen under the laws of nations, the practice in

chancery, or the municipal laws of states.'");

In re Marriage of Macino, 236 Ill.App.3d 886 (2nd Dist. 1992) ("if the order is

void, it may be attacked at any time in any proceeding, "); Evans v. Corporate

Services, 207 Ill.App.3d 297, 565 N.E.2d 724 (2nd Dist. 1990) ("a void judgment,

order or decree may be attacked at any time or in any court, either directly or

collaterally"); Oak Park Nat. Bank v. Peoples Gas Light & Coke Co.

NO RESTRICTION ON TIME TO VACATE A VOID ORDER , 46 Ill.App.2d 385,

197 N.E.2d 73, 77 (1st Dist. 1964) ("that judgment is void and may be attacked at

any time in the same or any other court, by the parties or by any other person who

is affected thereby."). [Emphasis added].

VOID ORDERS ARE VOID EVEN BEFORE REVERSAL , 46 Ill.App.2d

385, 197 N.E.2d 73, 77 (1st Dist. 1964) ("that judgment is void and may be

attacked at any time in the same or any other court, by the parties or by any other

42

person who is affected thereby."). [Emphasis added]. The law is well-settled that a

void order or judgment is void even before reversal. Vallely v. Northern Fire &

Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920) ("Courts are constituted by

authority and they cannot go beyond that power delegated to them. If they act

beyond that authority, and certainly in contravention of it, their judgments and

orders are regarded as nullities. They are not voidable, but simply VOID, AND

THIS EVEN PRIOR TO REVERSAL." [Emphasis added]); Old Wayne Mut. I.

Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8

How. 495, 540, 12 L.Ed. 1170, 1189 (1850); Rose v. Himely

ELEMENTS OF LACK OF JURISDICTION , 4 Cranch 241, 269, 2 L.Ed. 608, 617

(1808).

Attached hereto as Exhibit 1 are the Guidelines set by the USDC for the Eastern

District of Michigan, Southern Division. I am familiar with the guidelines of the

USDC for the Central District of California, and they are similar. These are the

guidelines that guided Judge Ewell when she was Chief Prosecutor in the US

Attorney’s Office in Los Angeles. Why did she demean the Los Angeles Superior

Court with her slap-dash, slapstick procedure that she utilized in the Pro Value v.

Grossman case? Does she think less of this Court?

CONCLUSION

The judgment of the trial court must be reversed and a new judgment be entered in

favor of Defendant Grossman and against Pro Value with costs, permitting Grossman to

prove up damages for wrongful eviction and attorney fees. This Appellate Court should

not remand back to the Superior Court and it should retain jurisdiction to perform the

43

following acts.

1. This Court should issue a new judgment in favor of Defendant Grossman and

against Pro Value with costs, permitting Grossman to prove up damages for

wrongful eviction and attorney fees before this Court or a Judicial Officer appointed

by it as a Master to give recommendations to this Court.

2. This Court should immediately issue a Writ of Possession to Pro Value and the

occupants of the Grossman residence so that Grossman may immediately recover

possession of the same. If Judge Ewell had not “abused” her discretion by refusing

to even hear a Motion for a Stay upon the Posting of a Bond, the Sheriff of Los

Angeles County would not have forcibly evicted Mr. Grossman. Appellant requests

this reviewing court to exercise its discretion to grant this immediate relief to

Appellant justified by the circumstances spelled out in the record, even before the

Remittitur issues.

3. The Trial Judge was callous and injudicious. She is bound by her own errors and

the appeal should proceed on Grossman’s “STATEMENT ON APPEAL”, and on

the Default of Appellee, Pro Value Properties, Inc. She must be reported to the

Presiding Judge.

4. This charade must end. We request this Appellate Court to address all of the

Constitutional Issues raised in the Appellant’s Brief unless this Court choses to

reverse on non-constitutional grounds. If it chooses not to, I want to challenge the

constitutionality of the UD law. Judge Ewell failed to respond to those affirmative

defenses.

5. Publish the decision

44

6. Certify the Opinion to the Court of Appeal.

DATED: May 17, 2012

Respectfully submitted.

______________________

Martin S. Friedlander, Esq. 10350 Wilshire Blvd., Suite 603 Los Angeles, Ca. 90024 (310) 435 1519 Attorney for Anthony Grossman, Esq.