Appellate Division No. 70 IMMEDIATE STAY REQUESTED UNTIL MOTION DECIDED ON MERITS Judge Christine C. Ewell is without jurisdiction to conduct a conference for preparation of an Engrossed Settled Statement Scheduled for May 26, 2011 at 3:15 pm in Dept. J of the Van Nuys Superior Court. Friedlander cataract surgery 5/24/11 LOS ANGELES SUPERIOR COURT APPELLATE DIVISION ANTHONY GROSSMAN Appellant Los Angeles Superior Court, Van Nuys, Case No. 10B01962 Unlawful Detainer After Non Judicial Sale The Honorable Christine Ewell Presiding. PRO VALUE PROPERTIES, INC., Appellee v. JUDGE CHRISTINE EWELL, LOS ANGELES COUNTY SUPERIOR COURT Respondent _____________________________________________________________________ APPELLANT’S MOTION TO ENJOIN JUDGE CHRISTINE 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 8.837 (d)(4) APPELLANT’S MOTION TO CITE JUDGE CHRISTINE EWELL TO CALIFORNIA COMMISSION ON JUDICIAL PERFORMANCE FOR MULTIPLE WILLFUL VIOLATIONS OF THE CODE OF JUDICIAL ETHICS 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 1
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Appellate Division No. 70IMMEDIATE STAY REQUESTED UNTILMOTION DECIDED ON MERITS
Judge Christine C. Ewell is withoutjurisdiction to conduct a conference forpreparation of an Engrossed SettledStatement Scheduled for May 26, 2011 at3:15 pm in Dept. J of the Van Nuys SuperiorCourt. Friedlander cataract surgery 5/24/11
LOS ANGELES SUPERIOR COURT
APPELLATE DIVISION
ANTHONY GROSSMANAppellant Los Angeles Superior Court, Van
Nuys, Case No. 10B01962Unlawful Detainer After NonJudicial Sale
The Honorable Christine Ewell Presiding.
PRO VALUE PROPERTIES, INC.,Appellee
v.JUDGE CHRISTINE EWELL, LOS ANGELES COUNTY SUPERIOR COURT
Respondent_____________________________________________________________________APPELLANT’S MOTION TO ENJOIN JUDGE CHRISTINE EWELL FROMCONDUCTING ANY CONFERENCE WHATSOEVER WITH RESPECT TOPREPARING ANY ENGROSSED SETTLED STATEMENT DUE TO THE EXPIRATIONOF TIME TO DO SO PURSUANT TO CRC RULE 8.837 (d)(4)
APPELLANT’S MOTION TO CITE JUDGE CHRISTINE EWELL TO CALIFORNIACOMMISSION ON JUDICIAL PERFORMANCE FOR MULTIPLE WILLFULVIOLATIONS OF THE CODE OF JUDICIAL ETHICS
MARTIN S FRIEDLANDER, ESQ. State Bar No. 36828ANTHONY C. GROSSMAN, ESQ., State Bar No. 175408
10350 Wilshire Blvd., Suite 603Los Angeles, Ca. 90024
Tel. No. 310 435-1510Fax No. 310 278 7330
Attorney for Appellant ANTHONY GROSSMAN
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TO THE HONORABLE PRESIDING JUDGE AND ASSOCIATE JUDGES OF THE
APPELLATE DIVISION OF THE LOS ANGELES SUPERIOR COURT
I OPENING STATEMENT
Our unlawful detainer statutes, which Appellant believes to be unconstitutional, is
the culminating end to a non judicial sale process that has been marked with fraud,
perjury, and other revolting crimes committed by the financial industry against the
homeowners of this nation. The major offenders have signed consent decrees and the
50 State Attorney Generals are pursuing these offenders for financial and other relief
for these tortuous acts. The financial industry is so powerful, that through their lobbies,
they have disenfranchised the Executive and the Legislative branches of our Federal
Government. So far, only the judiciary has been pushing back against these injustices.
Homeowner expect, and the law demands, that the Judicial Officers, governed by the
Canons of Ethics, exact justice, follow the law, and refrain from just “rubber stamping”
what has preceded the wrongdoing. Trials are to be conducted with dignity, decorum,
and the judges are expected to follow the law. Bench trials conducted from the counsel
table do not meet that standard of justice which our constitution demands. We have
witness stands so that witnesses can be sworn and testify from that stand. The slovenly
proceeding, which this trial judge called a “trial” does not satisfy these minimum
standards of due process of law. This was not an “arbitration” where the proceedings
are conducted informally. This was a trial in a judicial courtroom conducted by a judge
either appointed or elected to this exhalted office. Time constraints are just as binding
on the judiciary as they are on the litigants. Judges are not free to disregard these time
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restraints as it applies to judicial officers. This trial judge stated that the defendant failed
to post his jury fees timely (not true) but that failure had consequences, namely a
“waiver” of the fundamental constitutional right to a trial by jury. Judicial officers are
required to follow the same law as the litigants. The judiciary does not get a free ride. If
the trial judge exceeds its authority under the law, that is an abuse of power which has
consequences, such as a “reversal” and a citation to that judicial officer for disciplinary
proceedings. This “travesty of justice” mandates both a reversal and a referral to the
State Commission on Judicial performance. The appellate courts are both empowered
and mandated to do that under the law and under the Canons of Judicial ethics. In this
case we have a “rogue” judicial officer whose action need to be examined. The First
Amendment (free speech) permits an appellant to do this in the appellate court (but not
in the trial courtroom itself) as the trial judge would have the summary power to punish
for contempt. If the trial judge “stifles” an attorney defending his client, the trial attorney
has to do his best to make a record for appeal, and then shut up. I was thus “shooshed”
to silence while this Judicial Officer went “rogue”. This is not Nazi Germany or
Communist Russia. This is the United States of America, which has a constitution which
mandates that judges follow it. This trial judge did not do so. Most defendants in UD
proceedings are destitute and can not afford to employ experienced and dedicated
counsel. This defendant was destitute, but he had a step father who had both the
experience and financial ability to demand and expect a trial that comported with the
law. The trial judge was an experienced prosecutor and trial lawyer, and defense
counsel was an experienced trial and appellate counsel. The trial judge’s conduct was
inexcusable in view of her experience. A “sham” trial ensued.
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II INTRODUCTION
The facts and law are very straight forward and the following is a short summary.
CRC Rule 8.837 (a), (b) and (c) provide that an appellant can elect under Rule 831 to
use a “Statement on Appeal”. Appellant elected to do so since there was no court
reporter and therefore no reporter’s transcript. Appellant then fully complied by filing the
required Notice Designating Record on Appeal. (1/13/2011). Then after receiving a
Notice of Default from the Clerk (2/7/2011) Appellant’s counsel personally filed
Grossman’s Proposed Statement of Appeal with the Clerk’s Office in Van Nuys
(2/15/2011) and personally served a copy of the same by mail on John Bouzane,
counsel for Pro Value, the plaintiff and appellee.
The docket maintained by the Court on line did not reflect that Bouzane filed any
response to that document, nor had Friedlander received any objections from Bouzane.
On 3/9/2011 I called the appellate clerk’s office and was advised that Walter, was the
Clerk assigned to preparing the record on appeal. I advised Walter that I filed the
Statement on Appeal on 2/15/2011 and that the online docket reflected that filing and
the fact that no response had been filed by Bouzane nor had I received any Response
from Bouzane by mail or otherwise, nor had I received any document certifying or
objecting to the Statement by Judge Ewell, the Trial Judge. The on line docket is
attached as Exhibit 1. The Proposed Statement on Appeal prepared by the undersigned
is attached as Exhibit 2.
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 could be
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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 Jewell’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. (Exhibit 3). The pertinent portions of Exhibit
3 are as follows:
“I am attaching hereto a copy of the court rule 8.837 with annotations. 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” his 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 my 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. No
hearing was ordered by the Trial Judge and therefore no hearing was held. This then
brought into play the provisions of subsection (4) which provides that if no hearing was
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
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review. Assuming, arguendo that the Clerk in Van Nuys did not serve the Trial Judge as
required, YOU, as the Clerk served a Notice on the Trial Judge on 3/10/2011. Giving an
additional 5 days for mailing, Judge Jewell had 15 days from 3/10/2011 to file and serve
any corrections or modifications. The 15 day fell on a weekend and thereforeth
3/28/2011 was the last day that Judge Jewell 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 Jewell to do
anything. I refer you to page 7 of the annotations to this rule; Judge Jewell was
mandated to act citing Potter v Solk (Super. 1958) 161 Cal App 2 Supp 870. Thus thend
proposed statement is presumed to be correct. People v Torres (App. 2 Dist.) 96 Cal.nd
App. 3 14 (1979) I therefore request that you deliver the “presumed correct” Statementrd
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.
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” promptly certify the
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statement.”
The word “promptly” may not be construed to file her own “PROPOSED
STATEMENT ON APPEAL” 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) Must is defined by the dictionary as “Something that is absolutely
required or indispensable: “ (The Free dictionary) There is no definition of “Must” in
Black’s law Dictionary. There is no definition of “promptly” in Black’s Law Dictionary.
The adverb “promptly” is defined as; “promptly - with little or no delay; "the rescue
squad arrived promptly". Forty Two days is not promptly. Judge Ewell has thus
violated the Canons of Judicial Ethics of California. This will be discussed in the
Memorandum of Law. The CRC does not grant any authority for Judge Ewell to issue
any “PROPOSED STATEMENT ON APPEAL” . Judge Ewell is only given authority to
make “corrections or modifications” to the Appellant’s Proposed Statement. Judge
Jewell waived her right to do so. That “waiver” has consequences. She lost her
jurisdiction to correct or modify.
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 and Appeal”. We will also demonstrate
that what she has written as her PROPOSED STATEMENT ON APPEAL HAS BEEN
FABRICATED IN PART AND IS UNTRUE IN PART.
The remedy is to “Certify the Appellant’s Proposed Statement on Appeal” to the
Appellate Department, which is presumed to be true. The Plaintiff’s PROPOSED
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STATEMENT ON APPEAL has not been objected to by Pro Value, nor certified by the
Trial Judge, and thus Appellant seeks a “reversal” on all or most of the grounds stated
in his proposed 25 page statement.
Judge Ewell must be certified to the CALIFORNIA COMMISSION ON JUDICIAL
PERFORMANCE FOR MULTIPLE WILLFUL VIOLATIONS OF THE CODE OF
JUDICIAL ETHICS to maintain the dignity of the law of California and its courts.
DECLARATION OF MARTIN S FRIEDLANDER
I, Martin S Friedlander, do hereby declare under penalty of perjury under the
laws of the State of California, based upon his personal first hand knowledge that the
following facts, not conclusions of law, are true and correct.
1. I am an attorney duly licensed by the State of California since 1965 to practice law in
this state. I have also been licensed by the State of New York since 1963. I have
practiced law in the federal courts of California, New Mexico, New York, Mississippi,
and Texas. I have practiced law in the States of New York, Oregon, Arizona, New
Mexico, Texas, and other states either in pro se or pro hac vice status. I have tried over
100 jury and non jury trial in various jurisdictions. I have published opinions in the
appellate courts of California including its Supreme Court, the 9 Circuit and 5 Circuit.th th
2. I am and was the attorney for Grossman in the proceedings before Judge Ewell and
other Judges in this UD case. I tried the UD case as a bench trial due to the fact that we
were wrongfully denied a jury trial, irrespective of Judge Jewell’s contentions. Judge
Jewell may only state facts not conclusions in her statement. She may not “gut” the
appellant’s appeal.
3. All of the facts set forth in the Introduction are true based on my personal knowledge.
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4. All of the facts set forth in Plaintiff’s Proposed Statement on Appeal are true based
on my personal knowledge.
5. Judge Ewell is 42 days late in violation of the rules of the CRC. She has not honored
the word “must” nor has she acted “promptly” as the words “must” and “promptly” are
defined by the dictionary.
6. Judge Ewell was the Chief Asst Trial Attorney, Crimes Division, for the US Attorney
office in the USDC for the Central District of California. She served as an assistant US
Attorney appointed by the Bush administration when Bush was President. Judge Ewell
was appointed as a Superior Court Judge by Governor Schwartznegger and not elected
to office. As Chief Assistant US Attorney, and a graduate of Harvard Law School, Judge
Ewell was well versed in California and Federal Procedure, especially trials, both jury
and non jury, and the dignity of the Courts as one of the pillars of American Society and
Justice. Most Civil Right cases involving the due process and equal protection clauses
of the 14 amendment are filed and tried in Federal Court under the Civil Rights act.th
7. Appellant’s proposed statement on appeal cites a violation of due process of law by
refusing to conduct a trial with witnesses taking the witness stand. In all my years of
practicing law I have never observed a trial being conducted from the counsel table.
Judge Ewell admits that to be a fact. She cited no rule of court or case supporting this
deviation from standard trial procedure throughout the United States. “She just did it her
way”. Her way is not supported by law or due process.
8. CCP Sec. 1176 (a) mandates Defendant/Appellant to first direct a petition for a Stay
of the judgment pending appeal “to the Judge before who it was rendered. The
judgment was rendered by Judge Ewell who was transferred to another Department in
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Van Nuys. I made approximately three telephone calls to Judge Ewell’s courtroom clerk
to ask Judge Ewell when she could set this motion for an Ex-Parte hearing before her
as she was the Trial Judge. I read the code section to Judge Ewell’s clerk, who told me
on two separate occasions that Judge Jewell would not hear the motion for a Stay and
that Grossman should schedule the motion in Dept. P before Judge Shimer, who was
not the Trial Judge. Judge Ewell’s clerk hung up the telephone on me after the last and
final attempt. Judge Ewell, knowingly and willfully refused to follow the Code in order to
avoid exercising her discretion to either deny or grant the Stay on the merits. That was
a total abdication of her duties as a Trial Judge in the Los Angeles County Superior
Court and a violation of her judicial ethics, which is but a “mere” example of Judge
Ewell’s decisions both before, during and after the trial. She absolutely refused to
exercise any discretion, which is the worst abuse of discretion that a Judge can make.
9. Grossman then scheduled an ex parte motion before Judge Shimer as directed by
Judge Ewell. In refusing to hear the motion, Judge Shimer apologized to Grossman for
Judge Ewell’s conduct. This conduct by Judge Ewell left Grossman without a remedy in
the Trial Court due to the proper judge refusing to act and another Judge recognizing
that he did not have the power to act.
10. The Writ of Possession was served by the Sheriff and Grossman was forced to
move out on Tuesday, December 14, 2010 leaving him homeless. But for his mother
paying the rent he would be living on the street or in his car as so many thousands are
now doing because of the fraudulent foreclosures now plaguing this country. This
“misconduct” by a judicial officer had terrible consequences. Grossman was required to
file a “fee waiver” in order to file the Notice of Appeal. Grossman’s sole remedy for a
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stay of execution pending his appeal from the judgment in the UD action is to seek a
stay from the trial judge. However, the trial judge has refused to hear the motion for
stay, on Petitioner by the Respondent Court.
11. The appellant is Anthony Grossman (“Grossman”), who is the Defendant in that UD
proceeding entitled Pro Value Properties v. Anthony Grossman LASC No. 10B01962
filed in Los Angeles County Superior Court, Northeast District in Van Nuys (“UD Case”).
Grossman is also an attorney at law licensed to practice before all of the courts of the
State of California, and has associated in as co-counsel to Petitioner’s attorney of
record, Martin S. Friedlander, Esq. Mr. Friedlander is also Grossman’s step-father.
Grossman contends that he is the “owner” of the real property located at 19221
Sherman Way #29, Reseda, CA 91335 (“Subject Property”) notwithstanding the
scurrilous attempts by Loan Servicer, Pro Value, their attorneys, and others to “steal” it
from him through an improper and unlawful foreclosure of the Subject Property.
12. The Appellee is Pro Value Properties, Inc. (“Pro Value”), who is the Plaintiff in the
above referenced UD proceedings. Grossman has steadfastly contended that Pro
Value “unlawfully” claims title due to a “rigged” non-judicial trustee’s sale conducted by
Bayview, which is not in the “chain of title.” Title and Standing are the issues in
Grossman v. Bayview and Pro Value v. Grossman. Pro Value took with both actual
and constructive notice and is therefore not a BFP for value, notwithstanding Judge
Ewell’s misstatements to the contrary. There was no court reporter present for these
proceedings and the anticipated dispute between court and counsel as to what
happened; what evidence was admitted and rejected; as well as the inferences to be
raised from the same is now before this appellate court. Judge Jewell and I can never
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resolve our differences in the facts. I can only meet fabrication with truth. Fortunately,
Judge Jewell did not comply with the time constraints imposed on her by the California
Rules of Court, and she has lost all jurisdiction to fabricate a Statement on Appeal. Due
to the fact there was no court reporter it is her word against mine and my word is under
oath and hers is not. The law does not permit me to put Judge Jewell on the witness
stand to examine her under oath. That is the very reason why Grossman’s Statement
must be Certified and since it is presumed to be true, a reversal must follow on all the
grounds of error specified.
Summary evictions are akin to pre-judgment attachments which have been
declared to be unconstitutional when there is no “prior” hearing. UD actions are
summary in nature where the defendant may not cross-complain with limited abilities to
try title with shortened discovery and trial dates, with witnesses in the State of Florida
where Bayview is located.
13. Prior to trial in the UD case, Grossman sought and was erroneously and improperly
denied a jury trial in the action. Therefore, on September 23, 2010, a bench trial
commenced in Dept. P of Respondent Court, before Judge Christine Ewell. Trial
proceeded for three days and completed on September 28, 2010.
14. On October 15, 2010, Judge Ewell issued a proposed statement of decision
following trial, finding judgment for Pro Value. On October 27, 2010, Grossman filed
Objections to the Court’s Proposed Statement of Decision. On November 13, 2010,
Judge Ewell issued a ruling overruling Grossman’s objections to the proposed
Statement of Decision, and issued her final Statement of Decision which was a
codification of the proposed statement of decision. On the same date, and in line with
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her statement of decision, Judge Ewell entered judgment in favor of Pro Value and
against Grossman, awarding Pro Value possession of the Subject Property as well as
holdover damages.
16. On December 2, 2010, Pro Value requested and Respondent Court issued a Writ of
Possession in favor of Pro Value and against Grossman for possession of the Subject
Property.
17. Judge Jewell’s “PROPOSED STATEMENT ON APPEAL” dated May 10, 2011 is
attached hereto as Exhibit 4. We request the court to place my statement (Exhibit 2)
with her statement (Exhibit 4) so that I may state what is true and what is fabricated
based on my recollection that was recorded in my statement. I will now direct this court
to Exhibit 4. Lines 6-11 of P. 2 is not based on Judge Jewell’s personal knowledge as
she did not hear the motion or listen to the argument. It should be stricken.
18. Reference is made to Lines 12-19, where she states that “objections” were made. If
you turn to P. 15, lines 11 to 28 through P. 16 lines 1-13 of my statement you will note
that the 3 party witnesses file objections, not a motion as required by CCP Sec.rd
1987.1 (a). Judge Jewell admits that they served “objections”. Thus the 3 partyrd
witnesses did not follow the law and the “objection” should have been overruled on that
basis. Instead the court took the bench and “sua sponte” quashed each of the
subpoenas. Sua sponte means “on the court’s own motion” (Black’s Law Dictionary 7th
Ed. @ P. 1437). I specifically recall that Judge Jewell gave no notice whatsoever,
refused Grossman’s counsel an opportunity to be heard; and over his objection Judge
Jewell told me “to be quiet and sit down”. I sat down since I did not wish to be found in
contempt in a summary fashion which this Judge is capable of doing. I direct this court’s
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attention to P. 16 lines 1-15 as to the truth and puts the lie to Judge Ewell. SHE NEVER
GAVE THE PARTIES NOTICE AND AN OPPORTUNITY TO BE HEARD. That is a
fabrication and a violation of the Canons of Judicial Ethics. P. 16 lines 14-28 through
P.17 lines 1-2 of Exhibit 2 was my offer of proof. Judge Jewell never explained in her
Statement why the testimony of those witnesses was irrelevant, privileged, or
unreasonable and oppressive. She also never stated in open court her reasons. Thus
she fabricated again. Another offense. See P. 15 lines 11-21 where affidavits stated
that they wee served and that they did not demand fees which was the witnesses
burden of proof. Judge Jewell gutted my case.
19. As to the service of the Notice to Appear I admitted that fax service was not proper
and did not object to the quashing of those notices.
20. Judge Jewell was correct in her statement on P. 4, lines 25-26 which makes my
point. My testimony that I spoke with Ms. Riojas and she did not recall such a
conversation makes my point that my testimony under oath as to what she said to me
and what I said to her is uncontradicted. I was not impeached as a liar. My testimony is
thus true. The Judge refused to admit my letter to Pro Value which reiterated my
conversation to Riojas as part of my business practice on the “false” grounds that it was
a letter of “settlement”. I did not discuss settlement with Riojas at any time and the
subject matter of settlement was never mentioned in my letter. Judge Jewell refused to
admit it under the guise as being “an offer of settlement”. I forced Judge Jewell to mark
the Exhibit with the words not admitted. This unadmitted letter is my proof that this was
not a settlement letter. Judge Jewell has it in her possession and she should be
ordered to produce it.
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21. Riojas testified that she spoke to Seaside, the Trustee. I recall that testimony. Since
Judge Ewell quashed the subpoenas on Seaside, Judge Ewell denied me the
opportunity to cross-examine the Seaside witnesses as to the deal that was negotiated.
Judge Jewell’s illegal quashing the subpoenas were extremely prejudicial and denied
my client a fair trial in violation of the 14 Amendment.th
22. According to P. 9 of Judge Jewell’s statement she states that she admitted the
Notice of Pendency of Action into evidence. That defeated Pro Value’s claim that it was
a BFP and the burden of proof shifted. The Allonge was an allonge to the original note
signed by Grossman that was secured by the TD. The admission of the Allonge proved
that Bayview was not the owner or holder of the Note and therefore could not enforce
the security for the enforcement of the note.
23. Judge Jewell never explained why Pro Value was not a BFP which was a required
finding of fact. She danced around that issue. Riojas told me that she saw and knew
about the Lis Pendens and therefore Pro Value was on both Constructive and Actual
Notice. The court is directed to my Statement, particularly P 17 lines 3-28 through P 18
lines 1- 20 is dissertation of Actual Notice and Constructive Notice. Judge Ewell danced
around that issue.
24. P. 6 lines 21-28 through P. 7 lines 1-12 of my Statement reflects that it was my
position that the court may take judicial notice of the recordation of the documents but
not the facts stated therein. The court stated on P. 8 lines 14- 17 that I testified that
“none of the statements in any of the certified documents 1, 2, 3, and 4 were true. The
Plaintiff offered no evidence whatsoever that they were true. Exhibits 1, 2, 3, and 4
were “rank hearsay” as to the truth of the required statutory statements set forth in the
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Statutes of the State of California. This will be discussed in the Points and Authorities.
25. On May 24, 2011 at 9:00 am I will be undergoing cataract surgery on my left eye at
the Jules Stein Clinic and will be incapacitated for a period of two days from driving,
which includes attended the hearing called by Judge Ewell for May 26, 2011, at 3:15
pm in Dept. J in Van Nuys.
I therefore request a Stay of that Hearing until this court determines this motion
on the merits since the opposition has 15 days to file a written opposition to this
motion with a reply period.
I declare under penalty of perjury that the foregoing testimony is true and correct under
the laws of the State of California.
Executed on May 20, 2011 at Los Angeles California
_____________________________
Martin S. Friedlander.
MEMORANDUM OF POINTS AND AUTHORITIES
1. The trial court no longer has jurisdiction.
The introductory paragraphs of this motion prove beyond any reasonable doubt
that Judge Jewell is totally without jurisdiction to hear the motion she scheduled for May
26, 2011. She is the party totally at fault due to the fact that the evidence and her own
admissions reflect that she wilfully refused to follow the law. Must is mandatory and
promptly is immediately. Those words ring on deaf ears with this Trial Judge who is
well educated in the law and well trained in Trial Practice. Judge Jewell must be
enjoined or we can write off our system of justice. People in power are more apt to
abuse that power. Presidents of the IMF rape the poor and uneducated. Scooter Libby
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is convicted and then pardoned. Madoff swindles and still lies about the circumstances.
Governors cheat on their wives. Presidential candidates lie through their teeth in both
parties.(Sen. John Edwards) Lying by powerful people is endemic in this country.
Arrogance is prevalent at the top of the food chain. At 73, during the waning years of
my legal career, I have the temerity to speak truth to power and I get stifled under
penalty of contempt. The problem between Judge Jewell and the undersigned is that I
had the experience to understand exactly what denials of due process she was inflicting
on my stepson, a lawyer whom I put through school. I trust that this appellate court will
impose the same time restrictions on Judges that the law imposes on litigants. A trial at
the counsel table is a travesty, to my prejudice, and offends my sensibilities as a lawyer
and a citizen. Abuse of power is endemic. Judge Jewell cites no rule of law to support
her “sloppy” practice. She demeans the Court system. She must be held accountable.
The record on appeal cannot be sent up to the appellate court for review
because Judge Ewell has intentionally and wilfully thrown a “monkey wrench” in the
appellate system. Rule 11.8 permits motions to be filed in the appellate court. CRC
Rule 11.8 (b) and served on all parties as this is a non-routine motion. Judge Jewell
refuses to certify anything and therefore CRC Rule 11.8 (d) permits motions before the
record has been filed or certified due to the “monkey wrench” and is permissible so long
as documents are submitted sufficient to permit review. We have submitted these
documents as exhibits. Walter is preparing or has prepared the record but is precluded
from filing it with the appellate court due to Judge Jewell’s inaction. He is frustrated and
so am I. Frustrating willful misconduct can be dealt with by this appellate court, by
exercising its appellate jurisdiction. This Appellate Panel is not free from fault in this
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miscarriage of Justice. Grossman previously filed a “Verified Petition for Writ Of
Mandate and sought a Stay of Execution of the Writ of Possession resulting from this
same Judge Ewell’s willful refusal to entertain a Motion that must be directed to the
Trial Judge in the first instance. The “misconduct” of Judge Ewell was revealed to this
panel and yet this panel denied the Writ and did not report or cite Judge Ewell to the
Commission in its own violation of the Canons of Judicial Ethics. A copy of the Writ
sought by Grossman is attached. The original is in this appellate department’s files.
One of the Judges sitting on this panel is Judge Gregosian who participated in the
Grossman case when he was assigned to Dept P in Van Nuys. (He must recuse
himself) No claims of misconduct, other that reversible are being asserted against
Judge Gregosian.
I would suggest that this Motion be Certified to the Court of Appeal and not be
heard by this Panel in view of the fact that this panel denied the Writ Petition knowing
that Judge Ewell violated the canons of ethics in absolutely refusing to hear a “Stay of
Execution Motion”. This was a citable offense under the Canons and this panel did not
cite this offense to the Commission. All are complicate in this serious miscarriage of
justice.
The Trial Judge has a duty to comply with the settlement of the record even
though one of the trial counsel has died. Western States Const. Co. V. Municipal Court
38 Cal 2 146 (1951). Certification of the Statement is mandatory on the Trial Judge.nd
Potter v Solk (Super. 1958) 161 Cal App 2 Supp 870. Since Judge Jewell lostnd
jurisdiction and the Appellee never filed an objection, the Appellant Proposed
Statement is “presumed” to be correct. “Forthwith” means just that. People v Jenkins
18
(Super. 1976) 55 Cal App 3 Supp 55.rd
2. Statements of fact in a record received by judicial notice is hearsay.
Propriety of Taking Judicial Notice of the "Effect" of the Recorded Documents to which
Grossman filed a hearsay objection
Pro Value sought judicial notice under Evidence Code section 451, subdivision
(f), mandating notice of "[f]acts and propositions of generalized knowledge that are so
universally known that they cannot reasonably be the subject of dispute," and
subdivisions of Evidence Code section 452 permitting judicial notice of court records
(Evid. Code, § 452, subd. (d)), facts and propositions of such common knowledge that
they cannot reasonably be the subject of dispute (Evid. Code, § 452, subd. (g)), and
facts and propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination "by resort to sources of reasonably indisputable
accuracy." (Evid. Code, § 452, subd. (h).)
"Judicial notice is the recognition and acceptance by the court, for use by the
trier of fact or by the court, of the existence of a matter of law or fact that is relevant to
an issue in the action without requiring formal proof of the matter."
Evid. Code, § 450.) (Unruh-Hazton v. Regents of University of California (2008) 162
Cal.App.4th 343, 364-365; accord, StorMedia Inc. v. Superior Court (1999) 20 Cal.4th
449, 457, fn. 9. When judicial notice is taken of a document . . . the truthfulness and
proper interpretation of the document are disputable"]; C.R. v. Tenet Healthcare Corp.,
supra, 169 Cal.App.4th at pp. 1103-1104.)
Grossman argued that the required statutory actions taken by 3 persons, notrd
the Trustee are “rank hearsay” as the Trustee cannot testify as to what actions Bayview
19
took to satisfy the statutory requirements. The Trustee did not have “first hand
knowledge”. Friedlander had “first hand knowledge since he dealt with Bayview” and he
testified that the statements of fact in the recorded documents were not true. Even
Judge Jewell agreed that I so testified under oath. Therefore Pro Value did not meet its
statutory burden of proof and Friedlander’s sworn testimony conclusively establish that
the statements of fact were untrue. The statutes cited by Pro Value do not permit
judicial notice of the assignment and trust deed; that none of the statutory grounds were
present. The recorded documents are not court records (Evid. Code, § 452, subd. (d)),
and the contents of the documents, purporting to evidence particular transactions,
neither constitute nor include "facts and propositions" that would be the subject of
Evidence Code sections 451, subdivision (f), and 452, subdivisions (g) or (h).
Accordingly, we reject defendants' assertion that judicial notice lies under section 452,
subdivision (h), which involves facts that are "widely accepted as established by experts
and specialists in the natural, physical, and social sciences which can be verified by
reference to treatises, encyclopedias, almanacs and the like. . . . ." (Gould v. Maryland
Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 2009,
Grossman concedes the propriety of taking judicial notice of the fact of
recording. He maintains the court cannot, however, take judicial notice of the key issue
here: whether Bayview complied with the statutory requirements, a claim that involves
the truth of the documents' contents. We argue recordation is not a substitute for
evidentiary proof of the truth of the facts asserted in a recorded document.
There is authority for the proposition that a court may take judicial notice of
"recorded deeds." (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540,