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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
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 2
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. 3
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 4
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 5
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 15th day fell on a weekend and therefore 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 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 “presumed correct” 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. 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 6
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 7
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 9th Circuit and 5th Circuit. 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. 8
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 14th amendment are filed and tried in Federal Court under the Civil Rights act. 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 9
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 10
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 11
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 12
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 3rd party witnesses file objections, not a motion as required by CCP Sec. 1987.1 (a). Judge Jewell admits that they served “objections”. Thus the 3rd party 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 13
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.
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 14th Amendment. 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
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 16
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
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 2nd 146 (1951). Certification of the Statement is mandatory on the Trial Judge. Potter v Solk (Super. 1958) 161 Cal App 2nd Supp 870. Since Judge Jewell lost jurisdiction and the Appellee never filed an objection, the Appellant Proposed Statement is “presumed” to be correct. “Forthwith” means just that. People v Jenkins
(Super. 1976) 55 Cal App 3rd Supp 55. 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 3rd persons, not the Trustee are “rank hearsay” as the Trustee cannot testify as to what actions Bayview
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,
549, citing Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 977 (Maryland Casualty) & Cal-American Income Property Fund II v. County of Los Angeles (1989) 208 Cal.App.3d 109, 112, fn. 2; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106 (Poseidon).) In Evans, the plaintiffs did not object to the request and further conceded the truth of the matters evidenced by the deed, and under those circumstances the appellate court upheld the trial court's evidentiary ruling taking judicial notice of a trustee's deed. (Evans, at p. 549.) In Maryland Casualty, this court, reviewing a summary judgment on an insurance company's declaratory relief complaint, asked the parties to identify evidence of ownership and took judicial notice of recorded deeds purporting to establish a chain of title so as to decide whether certain entities held interests in property and were subject to an exclusion against insurance coverage. (Maryland Casualty, 221 Cal.App.3d at pp. 976-977.) There is no indication in that case that any party objected to the request or disputed the validity of the deeds. Maryland Casualty in turn relied on B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, in which the appellate court took judicial notice under Evidence Code sections 459 and 452, subdivisions (g) and (h) only of the fact that the plaintiff had filed and recorded its final subdivision map. (Id. at p. 960.) The Court of Appeal in Cal-American Income Property Fund II granted the request to judicially notice the Los Angeles County Recorder's recordation of trust deeds as official acts of the executive department under Evidence Code section 452, subdivision (c), a provision not relied upon by defendants here. (CalAmerican Income Property Fund II, at p. 112, fn. 2.) The appellate court in CalAmerican did so in view of the fact that the plaintiff, who opposed the request on
grounds the documents were not introduced in the lower court, did not question the authenticity of the documents and the parties made reference to the trust deeds and foreclosure proceedings in the proceedings below. (Ibid.) In Poseidon, the appellate court observed that under Maryland Casualty, judicial notice may be taken of recorded deeds, but cautioned that "the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. The court does not take judicial notice of disputed facts, because it is hearsay and it cannot be considered not reasonably subject to dispute." (Poseidon, supra, 152 Cal.App.4th at p. 1117.) Poseidon involved plaintiff Poseidon Development, Inc.'s complaint for breach of a promissory note in which Poseidon sought to recover, inter alia, expenses associated with its initiation of a nonjudicial foreclosure proceeding. (Id. at p. 1109.) The trial court sustained the defendant's demurrers without leave to amend, finding that certain documents, including assignments of the trust deed and note from Poseidon to another mortgage company, showed Poseidon was not entitled to recover fees incurred for the foreclosure because it had assigned the deed of trust and had no right to initiate foreclosure proceedings. (Id. at p. 1116.) On appeal, Poseidon challenged the trial court's taking of judicial notice of the fact that the document transferred beneficial interest in the note and trust deed and argued that matter remained subject to dispute. (Id. at p. 1117.) The Court of Appeal rejected that argument, noting that the assignment contradicted Poseidon's allegations that it " 'remained the true and rightful owner of the note with the power to foreclose on the deed of trust . . . .' " (Id. at p. 1118.) It held the "legal effect [of the assignment] could not be clearer" in that it was
"not reasonably subject to dispute that, whatever else occurred, Poseidon gave up and no longer held the beneficial interest under the deed of trust" and thus no longer had the power to substitute the trustee of the deed of trust. (Ibid.) Importantly, the Court of Appeal observed that on appeal, Poseidon did not dispute the validity of the assignment, only its effect. (Ibid.) We take from Poseidon that had the plaintiff disputed the validity of the assignment, judicial notice as to whether Poseidon retained the beneficial interest would be a contested factual matter not subject to judicial notice. Thus Pro Value utterly failed in its proof and Grossman is entitled to reversal, costs, attorney fees, and restitution of the premises due to the fact that Judge Jewell absolutely refused to exercise any discretion and she knowingly let the Sheriff execute on the Writ of Possession. Judge Jewell’s dereliction of duty should warrant her referral for disciplinary proceedings. She has probably has judicial immunity and therefore she cannot be sued for that breach of duty, but that is under consideration. Last, but not least, Judge Jewell failed to adjudicate Grossman’s constitutional defenses which were raised by Grossman in his answer as affirmative defenses. She does not deny this. 3. Judge Jewell’s violations of the Canons of Judicial Ethics. The Preamble to the Canons of Judicial Ethics states that: “Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to this code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance an maintain confidence in our legal system. The 23
judge is an arbiter of facts and law for the resolution of disputes and a highly visible member of government under the rule of law.” The Preamble further states that: “The Code governs the conduct of judges and judicial candidates and is binding upon them. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, requires a reasoned application of the text and consideration of such factors as the seriousness of the transgression, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system.” The effect of Judge Jewell’s improper activity was to cause the Sheriff to execute on the Writ of Possession and forcibly remove Anthony Grossman from his home. The effect of this panel’s denial of the writ was to permit Judge Ewell’s unlawful activities to be enforced by the Sheriff. The failure of this panel’s not citing Judge Ewell to the Commission was to permit this pernicious Judge to remain sitting on the bench in Van Nuys as a judicial officer, with the imprimatur of this appellate panel. The message sent to this Judge Ewell was that she “got away with it and will continue to get away with it.” This is not the message that the judiciary should transmit to our citizens. All we request is that this panel or a panel of the Court of Appeal cite this Judge Ewell and this panel to the Commission for investigation and the imposition of discipline, if any. CANON 1 A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY. On several occasions I told Judge Ewell’s Clerk that Judge Ewell should not permit the “contract” eviction attorneys to sit in the “jury box” as that conveys the
impression to the poor and uneducated that the lawyers suing them will be members of the jury. If there is no room for these “contract attorneys” to sit, then proper arrangements should be made. Over my strenuous objection Judge Ewell conducted a “bench” trial from the counsel table. She has admitted this fact. There is no rule of law to permit such a transgression from hundreds of years of jury trials in this country and England where the common law derived. This practice deviated from every rule of law in the United States. Judge Ewell was not empowered to set up her own “convenient” system. This is a trial not an arbitration. It diminishes the public confidence in the judicial and impaired me, Grossman’s counsel” to give him my best defense. Judge Ewell cited no rule or practice to support her “convenience” The law is set up for the public and not for the convenience of the judiciary. CANON 2 A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL THE JUDGE’S ACTIVITIES. She showed a complete disrespect for the law. To an outside observer and to a Trained Litigator such as the undersigned who has tried cases in many jurisdictions throughout the United States, gave me the impression that these were the very acts by the Judiciary that were being tried and condemned in Nuremberg after WWII. Justice Jackson who prosecuted these Nazi War Criminals would have cringed. Even these war criminals were tried in a “Judicial” atmosphere and not in a “drumhead” manner. If Nazi criminals can be treated with respect during their trial so could my stepson. In the words of Emile Zola who wrote about the Dreyfus Trial, “J’accuse”. My stepson is a 25
lawyer, not a piece of human trash. These acts of Judge Ewell soured Mr. Grossman that he has expressed to me that he wishes to quit because there is no justice if Judges like Judge Ewell are permitted to dispense injustice. My stepson needs to be reassured that our justice system is alive and well and not just an aberration as to Judge Jewell. CANON 3 A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY. (B) (1) A judge shall hear and decided all matters assigned to the judge except those in which he or she is disqualified. She was required to hear the motion for the Stay of Execution. She refused. Violation. She was never diligent when it required the Judge to act. She totally disregarded the Rules in that regard. (2) A judge shall be faithful to the law regardless of partisan interests, public clamor, or fear of criticism, and shall maintain professional competence in the law. A bench trial from counsel table is a violation. Must means must and not to satisfy her convenience Promptly mean immediately and not when she gets around to doing it. If UD cases are to be handled in an expedited manner, the Judge is equally responsible to expedite. (3) A judge shall require order and decorum in proceedings before the judge. Bench trials at counsel table over the objection of defense counsel, is neither decorum or order. Tell defense counsel to “shoosh” and to preclude defense counsel from objecting or putting the lie to the bench is neither order or decorum. A judge manufacturing facts such as “notice and an opportunity to be heard” is professional misconduct to cover up her judicial error when pointed out to her on several occasions. 26
(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, et al. She was not courteous to me by telling me to “shoosh” “to sit down and be quiet” to prevent me from presenting an argument when she “sua sponte” made orders after the 3rd party witnesses filed objections, not motions. She lied when she stated that she gave “notice and an opportunity to be heard” to cover up her misconduct. (7) A judge shall accord to every person who has a legal interest in a proceeding...full right to be heard.” She denied me that right through her “sham” trial. (8) A judge shall dispose of all judicial matters fairly, promptly, and efficiently. A judge shall manage the courtroom in a manner that provides all litigants the opportunity to have the matter fairly adjudicated in accordance with the law.” She violated each and every of those provisions. She refused to hear the motion to stay execution; she refused to adjudicate the constitutional defenses; she did not act promptly where the rule called for prompt; She did not obey Must where the rule called for must. She continues to assert jurisdiction over this case when she lost jurisdiction by not obeying the word must and promptly. THE FOLLOWING CANON APPLIES TO THIS APPELLATE PANEL Canon 3 (D)(1) provides that: “Whenever a judge has reliable information that another judge has violated any provision of the Code of Judicial Ethics, the judge shall take or initiate appropriate corrective action, which may include reporting the violation to the appropriate authority.” This court now has reliable sworn testimony that Judge Ewell has violated the Code of Judicial Ethics has a duty to take appropriate corrective action including 27
reporting the misconduct to the appropriate authority. The corrective action we seek is the reversal of the judgment and a dismissal with prejudice of the underlying complaint as the Plaintiff was complicate in this misconduct. We want attorney fees, damages, costs and a publication of this decision for guidance to other judicial officers of their duties under the unlawful detainer statute. People in this county are being thrown out of their houses due to fraudulent foreclosure and eviction judges who “don’t give a damn” in rubber stamping evictions so that the fraudulent buyers can use the eviction process to carry out their illegal activities with the imprimatur of “rubber stamp” judges. We seek the ban of the use of “contract attorneys” to prosecute UD cases. The counsel of record should not be permitted to delegate that duty to others. Judge Ewell should be cited to the Commission as this panel has full knowledge of her transgressions. This Panel should cite itself to the Commission as the Petition for Writ of Mandate fully disclosed to this panel Judge Ewell’s refusal to carry out her judicial duties by refusing to hear the motion for a Stay of Execution. Then this Court should cite itself to the Commission for not issuing an OSC or a Writ commanding a hearing on the motion for a stay of execution. CONCLUSION ALL OF THE JUDICIARY ARE RESPONSIBLE IN PART FOR THIS TRAVESTY OF JUSTICE IN EVICTING AN HONEST LAWYER FROM HIS HOME; FOR NOT CONDUCTING A TRIAL COMPORTING WITH DUE PROCESS OF LAW; FOR NOT CERTIFYING THE PLAINTIFF’S STATEMENT ON APPEAL. FOR NOT REPORTING A BLATANT VIOLATION OF THE FUNDAMENTAL TENETS OF OUR LEGAL SYSTEM IN AMERICA. WE SUGGEST THAT A TEMPORARY STAY ISSUE SO THAT
AN APPROPRIATE REVIEWING PANEL MAY DECIDE THIS MOTION ON THE MERITS. WE RESPECTFULLY SUGGEST TO THIS PANEL THAT IT IS SOMEWHAT RESPONSIBLE FOR THESE TRANSGRESSIONS AND THAT IT BE REFERRED TO A PANEL OF THE COURT OF APPEAL. PERHAPS JUDGE JEWELL SHOULD BE TEMPORARILY ENJOINED FROM ACTING AS A SUPERIOR COURT JUDGE UNTIL THE COMMISSION INVESTIGATES THESE CHARGES. WE WANT A PUBLISHED DECISION. DATED: MAY 20, 2011 Respectfully submitted,
______________________ Martin S. Friedlander, Esq. 10350 Wilshire Blvd., Suite 603 Los Angeles, Ca. 90024 (310) 435 1519 Attorney for Anthony Grossman, Esq.
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