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CIV B 427386

Relates to Pending Appeal filed by Schloss And Cross Appeal filed by Grossman. Grossman requests consolidation of this Writ with the Pending Appeal.


ANTHONY GROSSMAN, Petitioner v LOS ANGELES COUNTY SUPERIOR COURT, Respondent PRO VALUE PROPERTIES, INC., Real Party in Interest From the Los Angeles Superior Court, Ca. Case No. BC 427386, the Honorable Steven Kleifield, Judge Presiding. Related Case: Pending Appeal from Judgment in LASC No. 10B01962 in Appellate Dept. 70, Lis Pendens in BC 427386 Recorded and Filed in LASC No. BC427386; Lis Pendens ordered Expunged by Judge Kleifield of Dept. 53 __________________________________________________________________ PETITION FOR WRIT OF MANDATE OR OTHER APPROPRIATE RELIEF FROM EXPUNGMENT OF LIS PENDENS BY LOS ANGELES SUPERIOR COURT JUDGE STEVEN KLEIFIELD AT HEARING ON AUGUST 19. 2011 IN DEPT 53, and MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; RECORD ON APPEAL FILED. NEW EXHIBITS FILED UNDER SEPARATE COVER; JUDICIAL NOTICE REQUESTED OF VERIFIED COMPLAINT AND FIRST AMENDED COMPLAINT IN GROSSMAN V. BAYVIEW LASC No. BC27386 AND NOTICE OF APPEAL FILED IN 10B01962. ______________________________________________________________________ MARTIN S FRIEDLANDER, ESQ. State Bar No. 36828 10350 Wilshire Blvd., Suite 603 Los Angeles, Ca. 90024 Tel. No. 310 435-1510 Fax No. 310 278 7330 Attorney for Petitioner ANTHONY GROSSMAN 1


INTRODUCTION .............................................................................................................. 4
I. II. OVERVIEW ......................................................................................................................... 16 ISSUES ............................................................................................................................... 17

VERIFIED PETITION FOR WRIT OF MANDATE .......................................................... 18 MEMORANDUM OF POINTS & AUTHORITIES ........................................................... 29
A. A PETITION FOR A WRIT OF MANDATE IS THE EXCLUSIVE REMEDY. ....................... 29 B. THE MOTION TO EXPUNGE SHOULD HAVE BEEN DENIED AS THE FILING OF THE MOTION VIOLATED THE AUTOMATIC STAY. ....................................................................... 29 C. THE COURT ABUSED ITS DISCRETION BY NOT ORDERING A SHORT CONTINUANCE TO OCTOBER 5, 2011. .................................................................................. 33 D. THE PETITIONER STATED A REAL PROPERTY CLAIM. ............................................... 33 E. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PETITIONERS REQUEST FOR A MINI TRIAL AND IT ABUSED ITS DISCRETION BY FINDING THAT THE PETITIONER FAILED TO MEET ITS BURDEN OF PROOF IN ESTABLISHING THE PROBABLE VALIDITY OF ITS CLAIM. .................................................................................... 33

PRAYER ........................................................................................................................ 36 PROOF OF SERVICE .................................................................................................... 38

TABLE OF AUTHORITIES Cases BGJ Associates, LLC v. Superior Court (2nd Dist. 1999) 75 Cal. App. 4th 952 .......... 34, 35 California Code of Civil Procedure Section 405.39 .................................................. 15, 29 Deane v. Superior Court (4th Dist. 1985) 164 Cal. App. 3rd 292 .................................... 33 Gomes v Countrywide, Petition for Cert. filed August 2011....... 7, 8, 13, 20, 21, 23, 33, 35 Kendall-Brief co. v. Superior Court (4th App. Dist. 1976) 60 Cal. App. 3rd 462 ............... 32 Mason v. Superior Court (4th Dist. 1985) 163 Cal. App. 3rd 989 ..................................... 32 Mattel, Inc. v. Luce, Forward, etc. (2nd Dist. 2002) 99 Cal. App. 4th 117........................... 4 United Professional Planning v. Superior Court (4th Dist. 1970) 9 Cal. App. 3rd 377 27, 33 Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180 ........... 25, 27,29,30,31, 32 Statutes California Code of Civil Procedure Section 405.30 ....................................................... 25 California Code of Civil Procedure Section 405.31 ........................................................ 17 California Code of Civil Procedure Section 484.090 ...................................................... 35 California Code of Civil Procedure Section 512.060 ...................................................... 35 California Code of Civil Procedure Section 761.010 ...................................................... 17 California Code of Civil Procedure Section 916 ............................................................. 25 California Code of Civil Procedure Section 425.16 .................................................... 4, 25 Other Authorities Eisenberg et al., CAL. PRACTICE GUIDE: CIVIL APPEALS AND WRITS (The Rutter Group 2003) P 7:91:10 (CACIVAPP CH. 7-B) ............................................................ 26

TO THE HONORABLE PRESIDING JUDGE AND ASSOCIATE JUDGES OF THE COURT OF APPEAL INTRODUCTION The case entitled Grossman v. Bayview LASC No; BC 427387 is on appeal from the denial of a Special Motion to Strike filed by Schloss and a Cross Appeal filed by Grossman. The Notice of Appeal was filed by Schloss on 11/12/2010 and Grossman filed his Cross Appeal on 11/15/2010. A copy of the Notice of Cross Appeal is attached hereto as Exhibit 1. Petitioners grounds of said Cross-Appeal are set forth in said Exhibit. On 12/1/2010 Schloss filed a Notice of Stay of the Entire Lawsuit. Both Schloss and Petitioner contended that pursuant to CCP 425.16 (l) An order granting or denying a special motion to strike shall be appealable under Section 904.1. Pursuant to 904.1 et seq interlocutory non final orders are embraced therein and made appealable. CCP 916 (a) states that the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein of affected thereby. (See Mattel, Inc. v. Luce, Forward, etc. (2nd Dist. 2002) 99 Cal. App. 4th 1179, 1190). The entire record designated by the Parties and the Reporters Transcript have been filed by the Clerk of the LASC with this Court of Appeal. Thus this Court of Appeal has the entire record on appeal in its physical possession and accordingly Petitioner will not be attaching the record lodged with the Court of Appeal to this Writ Petition. The conduct of Pro Value in both the UD litigation and this litigation has been despicable warranting an investigation by the Attorney General of California Kamala 4

Harris of the alleged illegal and criminal conduct of Pro Value, Bayview, Seaside, which conduct has deprived Plaintiff of his home without due process of law and alleged criminal and civil violations of both the United States Constitution, the criminal and civil laws of Florida, (the home state of Bayview) and California (the home state of both Seaside and Pro Value). Pro Value has even defrauded the Superior Courts of California by submitting or actively concealing the truth of its misconduct. Judge Kleifield, the new trial judge in Department 53 has been defrauded into issuing an Order Expunging the Lis Pendens from record title by the misrepresentations, perjury, and concealments referenced in its Motion to Expunge the Lis Pendens which the undersigned received by hand delivery on 7/19/2011. The motion papers were not only untrue and unethical but the filing of such constituted a wilfull violation of the existing Stay Order caused by the filing of an Appeal and Cross Appeal from two adverse decisions involving the Slapp Suit provisions of California law. A copy of Pro Values Motion to Expunge is attached hereto as Exhibit 2. The sole basis of the spurious motion is The motion will be made upon the ground that Plaintiff cannot establish the probability of a real property claim. No other grounds to expunge are mentioned. The motion was supported by two declarations, namely a declaration by attorney Helen Grayce Long a contract attorney employed by John Bouzane dba Fast Eviction Service. The records of the State Bar of California reflect that Bouzane was disciplined by the State Bar for certain misconduct which resulted in a 2 year suspension, which was stayed, provided that Bouzane faithfully comply with a 2 year probation period. The misconduct of Bouzane occurred during the 2 year 5

suspension period and warrants another review of his record as the attorney in both the UD case and this case, which for purpose of the Writ Proceeding I shall characterize this present proceeding as the main action. Ms. Long was employed by Bouzane pursuant to contract to be the attorney in this main proceeding and also the attorney for Pro Value as Plaintiff in the UD proceeding. She personally appeared at that disgusting bench trial conducted by new Superior Court Judge Christine Ewell, a political appointee of our former governor, Mr. Schwarzenegger, before his term expired, and Jerry Brown was elected by the people to serve as new governor. Ms. Kamala Harris was also elected by the people of the State of California as our statewide Attorney General to protect the rights of the California citizens and to investigate this Foreclosure Fraud that has been permeating not only the State of California but all 50 states, the US as a country, and the world as a whole, as these dirty securitized bonds were sold and distributed, worldwide, causing a meltdown of the worlds economies. We as lawyers and as members of the judiciary have taken an oath to support and defend the constitution of the United States when each of us was sworn into office. Some have turned a deaf ear on that oath of office. Apparently Attorney General Harris, untainted by that which preceded her, took her oath of office seriously, and conducted an investigation of unlawful mortgage and foreclosure practices. On behalf of the People of the State of California AG Harris pulled out of the 50 state AG investigations as did the AG of New York since both AGs determined that their constituencies were not being properly served by the Attorney General of the United States and the Congress of the 6

United States. See letter from AG Harris addressed to the AG of the US and the AG of the State of Iowa attached as Exhibit 3. This pull out by Attorney General Harris represented a departure from the politics of the Presidency and the Congress as it did not properly serve the interests of the People of the State of California. For the record, I laud her brave decision in bucking her own party to do her sworn duty. This foreclosure fraud situation is the hottest political issue in the United States today and perhaps the outcome of our economy rests in the balance. Money in the millions has poured into defending these banksters from their greedy and unlawful activities, due to the Citizens United case. Former Chief Justice Ronald George, a man I know and eminently respect, has been reversed twice by our politicized US Supreme Court. One was Smiley which overturned the usury law pronounced by the California Supreme Court and the Second being the gay rights initiative overturned by the George court. Two former opposing advocates in the Bush v Gore case have joined forces to petition the Supreme Court to overturn that initiative. Then there is attorney Ehud Gersten of San Diego, representing an individual homeowner, who has filed a Petition for Cert. with the US Supreme Court in the Gomes v Countrywide case. I will be quoting freely from that brief as it makes it mark on me and hopefully on the members of the 4th District Court of Appeal which it seeks to reverse on Due Process grounds of the 14th Amendment. That Petition has not yet been acted on by the Supreme Court. I commend attorney Gersten in taking on the entire bankster community in this most important case, perhaps the most important case now before the Supreme Court, if they accept it. The Foreclosure Crisis had brought the US to its 7

economic knees by greedy banksters. The money from this bankster operation has tainted the Executive, Legislative, and Judicial branches of the United States, and every member of the European Union, whose solvency hangs in the balance. I stand with that small minority. This fraud must be brought to a halt now before we become a corrupt 3rd world banana republic as the African nations I just visited during the month of September 2011. This Court has the power to act, and it must act now. It must not follow the 4th District Court of Appeal decision which was wrongly decided. Perhaps, if the 2 nd District goes the other way, we will have a conflict between Districts and the Supreme Court of California may choose to hear the issues presented by the Gomes and Grossman cases. The California Supreme Court needs to act on these issues, which is one of the purposes I have devoted my retirement time to this Petition. I am attaching the 30 page Petition for Writ of Certiorari filed by attorney Gersten with the US Supreme Court as Exhibit 4. I will not embellish the same as it needs nothing from the undersigned to make the case under our Constitution. However it does quote several statutes and California cases that are quite relevant. The positions taken by Gersten are the same positions as mine. As Gretchen Mortgenson, the New York Times Pulitzer recipient stated in her new best seller, Reckless Endangerment. I implore that this Court of Appeal read this book carefully as it is written by a financial journalist who, on its cover characterizes the book as follows: HOW OUTSIZED AMBITION, GREED, AND CORRUPTION LED TO ECONOMIC ARMAGEDDON. It tells it how it is and why nothing has been down about it. POLITICS. Politics is money and money empowers and corrupts. The Banks (after being bailed out by the Treasury and Taxpayers) are still 8

employing their crushing power. We now direct the courts attention to the Declaration of Peter Baer sworn under penalty of perjury, attached to Pro Values Motion to Expunge, in support thereof. He states in 2 that the matters are known to him personally. How and why are they known to him personally? He states in 3 that Pro Value purchased the Grossman property at a trustees sale. How does he know this? Did he attend the sale? He supports his conclusionary statement by his Exhibit B, the Trustees deed. What is his connection to that deed? Then comes the big LIE. He falsely stated that at no time prior to said purchase of the Property at the Trustees sale did Defendant, or any of its agents or employees, have any NOTICE of any claimed or purported defects in the foreclosure nor did WE have any knowledge of the claims now being made in this action by (sic) Andrew Grossman. Defendant paid the sum of $165,000 for the property at the trustees sale. This perjurious declaration was used to support the Motion to Expunge. There are two types of Notice, Constructive and Actual. The whole statutory purpose of recording a Notice of Pendency of Action is to give constructive notice to the world, including Mr. Baer, that Plaintiff has stated real property claims. That is just one LIE shot down. Does Baer mean to tell us that before Pro Value purchasing this property that it did not investigate title and that record title reflected the recordation of the Lis Pendens he is now seeking to expunge? If Baer had no constructive notice why did he instruct his attorney to file this expungement motion? The lie is obvious. The Trial Judge swept that lie under the rug to deprive Grossman of his property rights. Then Baer states that neither he nor any of his agents had actual notice. That is also a lie. I told Judge Ewell at 9

the UD mock trial that I spoke to the Office Manager when I received the Cash for Keys letter. I was under oath in a court of law subject to being cross-examined. I testified that I called the Pro Value Office with the Cash for Keys letter and spoke to a woman who identified herself as the Office Manager. I identified myself as Grossmans attorney. I testified asking her whether she can relate to me the subject of that Trustees sale. She told me she had to pull the file. She told me flat out that she knew that Grossman had recorded a Lis Pendens before purchasing the property and there were title problems. She told me that she spoke to both Seaside the Trustee and Bayview the Seller that she negotiated the price down from the published price to $165,000 and that she made arrangements to deliver the check to the Trustee. THAT IS A RIGGED SALE. The price was lower than the published price due to the fact that Pro Value was willing to take title to the property having actual and constructive knowledge of the Grossman lawsuit as it was damaged merchandise. Not only was it rigged but the time, place, and price, were kept secret from me. I was thus precluded from personally attending the sale. I was also promised by Mr. Schloss that no sale would take place as we were working out a settlement. I was defrauded by that broken promise then followed with a SLAPP MOTION. Then we discovered this very weekend by reviewing title records that on 3/17/11 Pro Value caused to be recorded a Grant Deed selling the subject property to Hayat Fazel and Zohra Fazel, husband and wife as Joint Tenants. Judicial Notice is requested of this Grant Deed as Exhibit 5. This document just came into my possession this Saturday after I returned from Africa and thus did not have the physical opportunity to 10

have this document certified but will do so if that becomes an issue raised by Pro Value. This Court is requested to review the signature of the Seller, Pro Value Properties, Inc., a Corporation, Peter Baer; the same Peter Baer who signed that perjured declaration. The Grant Deed is defective as it is not a Corporate Acknowledgement only a personal acknowledgement. This sale on 3/17/2011 was not disclosed to the court or counsel. They had a duty to disclose this material piece of evidence. A failure to disclose when the law imposes a duty to disclose is a subspecies of fraud. Thus Baer, his counsel and Pro Value defrauded the court into entering the Expungment Order and defrauded the Plaintiff by refusing to permit the undersigned to conduct a mini trial by putting Baer on the witness stand, under oath to cross examine him as to his perjured declaration and the concealed sale. How was Baer able to procure Title Insurance for the Fazels with the Lis Pendens still of record on the day it was sold? Did Pro Value procure Title Insurance and if not, why not? Did Baer defraud the Fazels by not disclosing the Lis Pendens of record? How many more frauds did Baer, Pro Value and its counsel commit? This will be turned over to AG Harris for investigation for civil and criminal liability. Will the Trial Judge realize that he too has been defrauded into an improper decision and set aside the Expungement Order, sua sponte? This is what I would do as Trial Judge. Next we attach as Exhibit 6 a Report of Data Quick which reflects that the property Pro Value bought at the rigged price of $165,000 was resold one year later into a worse real estate market for a sales price of $236,500, for a gross profit of $71,502. Pro Value has thus been unjustly enriched by $71,502, and they defrauded the buyers 11

of the house they purchased for $236,500. Like a steam engine rolling down the track this vulture Pro Value, lies, cheats, and perjures itself into a gross profit of $71,502 while the Plaintiff is tossed out on the street due to the non-judicial and unethical behavior of Judge Ewell (the chief prosecutor for the US Attorneys office in Los Angeles), a Harvard Law School graduate who must have actively participated in this fraud. After all, she was the Chief White Collar Fraud Prosecutor for the LA US Attorneys office. This Judicial Officer has no shame or ethics and I have referred her to the Commission of Judicial Ethics for Investigation. I introduced the Allonge into evidence at the UD case and it was received by Judge Ewell. An allonge is a separate document assigning a note to a 3 rd party. Apparently the original note bore no endorsement over to the assignee. These securitizer banksters thus separated the Note from the Security. The allonge that was received in evidence by both Judge Ewell and Judge Kleinfield, reflected that the Note was owned by a 3rd party other than Bayview. If Bayview did not own the note it could not enforce a nonpayment of the note by a Trust Deed. The Note cannot and should not be separated. But what the heck for that lack of formality, there were billions to be made as these toxic mortgage (not note backed) bonds were circulated throughout the world and sold to State, County and City Pension Funds. The sale of these toxic assets to government pension funds depleted these funds so drastically that millions of government workers had to be laid off; Greece was destroyed; the Taxpayers of the US were tapped for $700 billion to bail out the Banks and nothing was done of any consequence to take care of the homeowners who had been forced out of their homes 12

and their lives destroyed. The Banksters smoke cigars lit with $10 bills, while the homeowners smoke butts picked up off the street. Fairness is no longer part of the American culture. Oh yes, the Counties of the State of California were deprived by the MERS conspiracy of billions of dollars of recording fees, thereby breaking the Counties and enriching those fat cats. The Counties were forced to lay off their own employees due to lack of revenue. That was my personal appeal to AG Harris when I wrote several letters to her. The AG should shut down MERS and file an Amicus Brief with the Supreme Court in favor of Gomes. Shutting down MERS will turn off the tap for these Banksters. MERS is not licensed nor do they pay any taxes to the State of California yet they do business here enforcing thousands of mortgages throughout our state. MERS does not deserve to exist and should not exist. Baer states that Grossman made no tender. Baer neglects, conveniently, to state that Bayview did not own the note thereby precluding Bayview and Pro Value from making demand for payment and relieved Grossman of the obligation of tendering payment to an unknown 3rd party who claims they owned the Note. WHAT IS THE PROBLEM WITH THE COURTS? HAVE THEY FORGOTTEN THE BASIC ELEMENTS OF THE COMMON LAW? Even the Chinese laundryman tells his customers no tickee no shirtee. There is nothing complicated here. This Country has been brought down by greed with a bought and paid for government overlooking it. That is why I applaud the decision of AG Harris for taking this brave stand. I watched and heard Senator Durbin of Illinois state on the floor of the Senate that The Banks own Us. They may own the legislative and executive branches but I sure hope they dont own the judiciary, except 13

perhaps Judge Ewell, appointed by former Attorney General Alberto Gonzalez, the Attorney General under the Bush Administration. No such accusations are made against Judge Kleifield as he was defrauded into committing error. We implore this Court to set aside this Expungement Order so that Pro Value and their cohorts can reap the whirlwind of major hurt they generated. Pro Value purchased Petitioners Condo at a rigged Trustees Sale, utilizing backdated and forged documents. Discovery was served by Petitioner on Bayview and Seaside, the Trustee under the TD, and both asserted the 5 th Amendment and refused to produce documents, make admissions, and refused to answer interrogatories. After purchasing Petitioners condo at the rigged TD sale, Pro Value filed an Unlawful Detainer Action against Grossman, seeking possession of the Condo and damages. The Trial Judge in the UD action committed a multitude of errors, including denying a jury trial and denying Grossman Procedural Due Process of Law in violation of the 14th Amendment. The Trial Judge issued a Proposed Statement of Decision Following Trial on 11/13/2010 which Pro Value attached to its Motion to Expunge the Lis Pendens, and on the same date issued a Non-Jury Trial Judgment. On 12/8/2010 Grossman filed a Notice of Appeal and filed a Motion for a Stay Pending Appeal and was prepared to post Bail. This Trial Judge refused to hear the Motion in violation of law and the Writ of Possession was levied and Grossman was forced out of possession of the Condo by the Sherriff in violation of law. On 2/15/2011 Grossman filed his proposed Statement on Appeal and after the Trial Judge lost jurisdiction, the Trial Judge untimely filed the Courts Proposed Statement on Appeal, which is a nullity. On 8/22/2011 the 14

Clerk of the LASC in the UD case transmitted the Record on Appeal to the Appellate Dept. 70. SINCE THE PRO VALUE JUDGMENT IS ON APPEAL THERE IS NO EVIDENTIARY VALUE TO THE STATEMENT OF DECISION. Thus the Trial Court committed reversible error by considering that document as admissible Evidence. Any finding by the Trial Judge that Pro Value was a Bona Fide Purchaser (BFP) is error since Pro Value had constructive notice that it was purchasing the Condo subject to the lawsuit. The Trial Judge committed gross error in stating on the record that; There has already been an adverse finding by another court. RT p. 18 lines 11-19. The trial judge failed to even consider that said adverse finding had not become final as stare decisis, res judicata, or collateral estoppel, or the law of the case, and therefore there was no evidentiary support for his finding. It is hornbook law that a buyer cannot be a bona fide purchaser if he has constructive notice of a lawsuit regarding the real property he is purchasing. Attached hereto as Exhibit 7 is the Plaintiffs Proposed Statement on Appeal from the UD Judgment. That statement is true, unlike the Statement of Judge Ewell. In conclusion the entire record on both the appeal in the Bayview case and the appeal by Grossman from the UD case are in the physical possession of the Court of Appeal and Appellate Department. The Court of Appeal is requested to take Judicial Notice of the Records filed in both Appeals as they would be too voluminous to reproduce here for this Writ Petition. A Petition for a Writ of Mandate is the sole remedy for a party aggrieved by the expungment of a Lis Pendens. CCP 405.39. Thus this is a statutory writ. We 15

have not yet been served by the Clerk or Pro Value with a signed copy of the Expungment Order. A copy of the Expungement Order, which we obtained ourselves, is attached as Exhibit 8. This is the order that we seek to set aside. I. OVERVIEW On 8/19/2011, the trial court granted Pro Values Motion to expunge the Lis Pendens recorded by Anthony Grossman (Petitioner) after he filed his verified complaint on 12/4/2009, which Lis Pendens was filed with the trial court on 12/8/2009. Thereafter, Bayview caused a back dated fraudulent assignment to be recorded in an attempt to cure the defects in the chain of title from the original Bankrupt lender to Bayview, utilizing MERS, whose agency had been terminated by operation of law due to the Chapter 7 Bankruptcy Petition filed by the original lender in 2005. All transferees of the TD took subject to the Lis Pendens. In March 2010, Bayview utilized a back dated and fraudulent assignment to cause a fraudulent Trustees Sale noticed by someone other than the Real Party in Interest with standing to order the Trustee to sell the subject real property pursuant to the Power of Sale set forth in the Trust Deed to secure the Note executed by the Petitioner. The original complaint alleged several causes of action, including, but not limited to, DECLARATORY RELIEF, SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF. Petitioner alleged that MERS is the subject of many lawsuits in the state and federal courts in the United Stated. In order to relate the MERS lawsuits to this complaint, The Deed of Trust that is the subject of the complaint was recorded on 10/25/04. The Security Instrument means this document, which is dated October 14, 2004. The Borrower is Anthony Grossman, a single man. The Lender is 16

HomeAmerican Credit Inc. dba Upland Mtg. The Lender is a corporation under the laws of Pa. with an address Wanamaker Bldg., 100 Penn Sq. East, Phila, Pa. The Trustee is Jeffery M. Ruben, whoever he is. MERS is Mortgage Electronic Registrations Systems, Inc. MERS is a separate corporation that is acting solely as a NOMINEE for Lender and Lenders successors and assigns. MERS is the beneficiary under this security instrument. MERS is organized and existing under the laws of Delaware, and has an address telephone of PO Box 2026 Flint, Mi. 48501. The Note was for $252,000.00 with an adjustable rate rider. THUS PETITIONER STATED ONE OR MORE CAUSES OF ACTION IN ITS ORIGINAL COMPLAINT STATING REAL PROPERTY CLAIMS as required by CCP 405.31. After Bayview sold the Condo subject to the recorded lis pendens to Pro Value, Petitioner filed a First Amended and Supplemental Complaint on 7/23/2010 seeking Declaratory Relief; to Set Aside Trustees Sale; Wrongful Foreclosure; Specific Performance and Injunctive Relief; Quiet Title; Slander of Title; etc. There is a 10th Cause of Action to Quiet Title. In such a situation a Lis Pendens is required by Statute. CCP 761.010. THUS PETITIONER STATED ONE OR MORE CAUSES OF ACTION IN ITS AMENDED COMPLAINT STATING REAL PROPERTY CLAIMS as required by CCP 405.31. II. ISSUES 1. Was this Motion to Expunge Stayed? 17

2. 3.

Did Grossman state a Real Property Claim? Did the Court abuse its discretion by not continuing the hearing to October 5, 2011 as requested by Petitioner to see whether the US Supreme Court would grant cert. in Gomes v. Countrywide which involved due process issues with MERS being a nominal beneficiary under a TD?


Did Petitioners Verified and First Amended Complaint contain a real property claim under CCP 405.31


Did the Trial Court abuse its discretion in denying Petitioner his request to put on a mini trial under CCP 405.32. VERIFIED PETITION FOR WRIT OF MANDATE

1. The Petitioner is Anthony Grossman (Grossman), who is the Plaintiff in Grossman v. Bayview and the Defendant in that UD proceeding entitled Pro Value Properties v. Anthony Grossman. Grossman is an attorney licensed by the State of California, and maintains a law office in Pasadena Ca. Grossman contends that he is the owner of the subject property. 2. The Real Party in Interest is Pro Value Properties, Inc. (Pro Value), who is a Defendant in the Grossman v Bayview case and the Plaintiff in the Pro Value v Grossman in the above referenced UD proceedings. It unlawfully claims title due to a rigged non-judicial trustees sale conducted by Bayview, which is not in the chain of title from the Bankrupt Lender. Title and Standing are identical issues in Grossman v. Bayview and Pro Value v. Grossman. It is not the type of case that can be rendered Constitutional Justice in a summary proceeding such as Unlawful Detainer under the 18

California Code of Civil Procedure. Pro Value took with both actual and constructive notice and cannot be a Bona Fide Purchaser (BFP) for value. Summary evictions are akin to pre-judgment attachments, which have been declared 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. 3. The undersigned has personal knowledge of all of the facts, not conclusions,

alleged in the Original and First Amended and Supplemental Complaint, and based upon my attending and testifying at the UD trial and arguing against the Motion to Expunge. We are providing a Reporters Transcript of the entire proceeding before the Trial Court on 8/19/2011. 4. Mr. Grossman employed me as his attorney to investigate, check out record title,

write letters and otherwise deal with Bayview and its Trustees under the Deed of Trust. Petitioner, at my request, went to the County Recorders Office to examine title to his house. He obtained a copy of all of the recorded documents reflected in the County Recorders office. I provided a copy of those documents and my analysis to Mr. Schloss the attorney for Bayview and Seaside. Bayview and Seaside submitted 5th Amendment objections to discovery that I propounded to Bayview and Seaside, a privilege that a corporation does not hold. The former Trustee of the Deed of Trust provided me with an Allonge, a copy of which was attached to the Opposition papers I filed with the Court and Dept. 53. I have attached a copy of my Opposition to the Motion to Expunge as Exhibit 9. This Allonge, which is attached as Exhibit 10, proves beyond a shadow of a doubt 19

that a party other than Bayview owned the Note secured by the Grossman TD. A TD is security for the Note. If Bayview did not own the Note they could not enforce the security, the TD, by causing a phony TD sale. Thus Bayview sold nothing to Pro Value and the sale should be set aside, and both Bayview and Pro Value and Seaside should be reported to the new AG of California, Kamala Harris, who is in the middle of investigating mortgage fraud in the State of California with the 49 other State Attorney Generals. I have written letters to both AG Brown and AG Harris to investigate this case for violations of law. 5. Petitioner alleged in his verified pleadings that after the original lender made the

loan to Grossman, it filed Chapter 11 in the US Bankruptcy Court in Philadelphia, Pa. in 2005, which was then converted to a Chapter 7. A Request for Judicial Notice of the Court documents established this filing in the Bayview Record on Appeal. Petitioner alleged that the event of bankruptcy terminated whatever agency agreements ever existed between said Lender and MERS by operation of law, i.e., the death or incapacity of the principal or agent terminates the agency by operation of law unless the agency was coupled with an interest. There was no coupling of any interest between the original bankrupt principal and the disqualified MERS, and therefore MERS had no power to act for the original lender as of 2005 when it filed for Bankruptcy. This court is requested to review the original verified complaint. Unlike Gomes cited in Pro Values Motion to Expunge, we relied on other factors. For example the court is directed to 26 of the Original Complaint wherein Petitioner stated that none of the defendants are payees on the note nor do they possess the original note. THAT IS 20

TRUE. We have produced an Allonge to the Note which reflects that the Original Note was assigned to an entity OTHER THAN BAYVIEW. Gomes did not make such allegations since he contended that Countrywide had to prove they had a right to foreclose. That was decided at the demurrer stage. 49-53 allege a different set of facts than that which was alleged in Gomes. We alleged another set of facts in 68- 84 that were different than those alleged in Gomes. We did not entirely rely on MERS for our case. We alleged a second cause of action seeking declaratory and injunctive relief and Defendants Lack of standing to conduct a non-judicial sale. See 85- 99 of the verified complaint. MERS was not mentioned. Since Bayview did not own or have possession of the Original Note as it was assigned to an entity other than Bayview, Petitioner had no duty to tender to an entity that did not possess or own the Note. (See Allonge) Petitioner did not wish to pay Bayview and then pay to a Party that could demonstrate ownership of the Original Note. Tender is and always was a red herring as Bayview never could establish that it owned the note or that it was assigned to it. The Allonge says otherwise. Then after the undersigned in his letters sent his letters to Schloss and after the complaint was filed by Grossman and answered by Bayview and Seaside, we alleged that Schloss counseled his client, Bayview, to execute a new Assignment of Deed of Trust from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS AS NOMINEE FOR HOME AMERICAN CREDIT INC. Dba UPLAND MORTGAGE wherein both the note and deed of trust were assigned to Bayview. The Note could not have been assigned as it had previously been assigned to the entity referenced in the Allonge. THAT IS OUT 21

AND OUT FRAUD, BOTH CRIMINAL AND CIVIL. That document was recorded on 3/08/10 and did not exist on the date that the Petitioner obtained all of the recorded documents. That fraudulent assignment was attached to the pleadings that constitute the Record on Appeal. The Court is requested to review these documents. It appeared to be dated 06/10/2009 and executed by a Robert G. Hall, Vice President, before a Notary Public in Florida by the name of Rogelio A. Portal. Said document was backdated and signed by an employee of Bayview. That document did not exist on said date. See the other Exhibits, which is proof positive of that fact. Exhibit 6B in the Record is a substitution of Trustee by Bayview to Seaside Trustee Inc. It was prepared by Seaside, signed by Bayview before a Notary Public on 8/3/2009, and recorded on 8/24/09. Seaside was not the Trustee on 6/10/09 the date that Exhibit 6A was signed. THIS IS A MASSIVE FRAUD PERPETRATED ON PETITIONER BY BAYSIDE, SCHLOSS AND SEASIDE. This is the very type of fraud that is discussed in the newspaper articles and court cases in other jurisdictions that were attached hereto as Exhibits in the Record on Appeal. What did exist of record was an assignment executed by MERS for American Business Mortgage Service, Inc., not HomeAmerican. See my letter dated February 21, 2010, where that is part of the record on appeal, which points out the title defects of Bayview. They could not assign a Note that they did not own. Fraud.

The Notice of Default and Election to sell and the Notice of Sale was recorded by Seaside based on the alleged recorded assignment executed by MERS for American Business Mortgage Service, Inc., not HomeAmerican. This second fraudulent assignment required Seaside to record a new NOD and a new NOS. The new NOD 22

would have given Petitioner 90 days to cure and the new NOS would have noticed a sale to take place 20 days thereafter. The sale conducted on May 9, 2010 constituted a wrongful foreclosure and did not put Pro Value in title superior to Petitioner, precluding this entire UD action. This Court is requested to review the Plaintiffs Amended and Supplemental Complaint, particularly the allegations under oath in 65-110 and 141-153 and 172-174, and the prayers to the Original and First Amended Complaint. Most of the allegations do not rest on MERS and therefore Gomes does not apply Bayview, Seaside and attorney Schloss used the documents that I provided to them, pursuant to our agreement to create a backdated and fraudulent document to correct the title defect referenced in my prior paragraph. This took place after the Petitioner filed his Verified Complaint on December 4, 2009 and after he recorded his Lis Pendens. The recording of the LIS PENDENS prior to 3/8/10 evidences a fraudulent conspiracy between Bayview, Seaside and Schloss to rewrite history and to steal Petitioners real property and sell it to Pro Value pursuant to a rigged prearranged bid by Pro Value to Bayview. When I found out about this purported sale, I called Pro Value and spoke to its Office Manager. She told me that she had to pull the file. After she pulled the file, she told me that Bayview and Pro Value had agreed to a price of $165,000 in advance of the auction sale; Pro Value arranged for a Cashiers Check in said amount; which was brought down to the sale conducted by the Trustee; and Bayview reduced its opening bid from the approximate $285,000 allegedly due on the loan to $165,000. 23


Both Mr. Grossman and Mr. Friedlander traced the chain of title and discovered

there was a broken chain. The former Trustee of the Deed of Trust provided me with an Allonge, which reflects, without any shadow of a doubt, that a party other than Bayview owned the Note. The court is directed to the fax header. This was the header of the faxed Allonge that I received from Northwest Trustee. Notice the Note signed by Grossman was assigned to a party other than Bayview. Bayview has never provided Friedlander or Grossman with an assignment over to Bayview. Thus Bayview sold nothing to Pro Value and the sale should be set aside, and both Bayview and Pro Value should be reported to the new AG of California, Kamala Harris. 7. Both Grossman and Friedlander applied their lawyer skills before Grossman

verified the Original Complaint and the Amended Complaint that was drafted by Friedlander based upon his careful investigation and research of the law. 8. Judge Ewell received that allonge into evidence at the UD trial she mistried, and

Judge Ewell mentioned that Allonge in her engrossed Statement on Appeal which was untimely filed and should not be considered by the Appellate Department. I spoke to Walter, the Clerk, who is preparing the record on appeal. He told me out in the hallway outside the Judges chambers that said Allonge was missing from the UD file and asked me for a copy. Judge Ewell was the last person who handled that file. A mysterious disappearance. Neither Friedlander nor Grossman ever touched that file after the case was submitted for decision. Friedlander noticed that her chambers were strewn with papers on her couch on her floor and all over the place. Whether those papers belonged to the Grossman file, Friedlander does not know since he never entered her chambers or 24

was able to read any of the scattered documents. 9. CCP Sec. 405.30 provided this court with discretion to permit evidence to be

received in the form of oral testimony. Both Grossman and Friedlander wished to take the witness stand and testify under oath to support the Plaintiffs burden of proof. Both Friedlander and Grossman wished to put Ms. Long and Mr. Baer on the witness stand to impeach the declarations and documents filed by Ms. Long. The Trial Court denied that request and in so doing abused his discretion and committed an error of law. See Reporters Transcript. 10. Friedlander prepared and filed the Notice of Appeal in the Bayview and Pro Value

case after much research and evaluation of the evidence and the law. 11. Friedlanders research reflected the following law: Appeal from denial of motion

to strike complaint as strategic lawsuit against public participation (anti-SLAPP motion) automatically stays all further trial court proceedings on causes of action affected by motion, under statute providing that perfecting of appeal stays trial court proceedings on matters embraced or affected by the appeal; appellate reversal of order denying such motion could result in dismissal of action, which outcome would be irreconcilable with judgment for plaintiff, and proceeding to merits of affected causes of action would be inherently inconsistent with appeal, which would seek to avoid that very result. (Code Civ. Proc. 425.16(j) and 916(a); see Eisenberg et al., CAL. PRACTICE GUIDE: CIVIL APPEALS AND WRITS (The Rutter Group 2003) P 7:91:10 (CACIVAPP CH. 7-B); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180). 12. That automatic stay worked to Petitioners detriment since it halted all discovery in 25

the Bayview case to his detriment. It precluded Petitioner from taking the depositions and other discovery of Pro Value. Pro Value should not have been permitted to take advantage of that Stay since the Stay put a halt to everything, 13. Said Quiet Title cause of Action naming Pro Value as a defendant is still pending

due to the stay on appeal. Said Appeal is still pending and we are required to file our opening brief in early November 2011. 14. It is also axiomatic that in an Unlawful Detainer action, like the one filed by Pro

Value, a defendant is not permitted to try title. Thus title to the property was never tried. The docket for Case No. 10B01962 reflects that Grossman filed an appeal from the UD Judgment, and therefore the Statement of Decision and the Judgment has not become final. Grossman filed his notice of Appeal from the UD judgment on 12/8/2010, and perfected the same. Grossman filed his proposed Statement of Appeal on 2/15/2011. The Courts order re: Engrossed Settled Statement of Appeal filed on 5/27/2011 is void as the trial court lost jurisdiction to issue one due to the expiration of time, and that will be one of the issues on appeal. All of the declarations and points of law filed by Pro Value are false as they are contradicted by the truth and the law. The manager of Pro Value told me that she had both actual and constructive notice of the Lis Pendens it is seeking to quash. I so testified at the so called trial conducted by Judge Ewell. Plaintiff Statement on Appeal tells the truth as to what actually happened at that trial. Judge Ewell fabricated her documents and it will be a swearing contest because her version is different than mine and there was no court reporter. If Judge Ewell lost jurisdiction my version of the Statement of Appeal must be followed by the appellate court as Judge 26

Ewells is worthless. Pro Value cannot be a bona fide purchaser for value as Pro Value had both actual and constructive notice. 15. The entire Plaintiffs Statement on Appeal in the Pro Value case is true based on

the personal knowledge of both Grossman and Friedlander 16. The courts attention is directed to Exhibit 1, the Notice of Cross Appeal. The

Court will note that Grossman did not limit his Appeal to just the granting of the Slapp motion but the Orders referred to in paragraphs 2, 3, 4, and 5. The Order set forth in paragraph 4 directly relates and embraces the issues in both cases. First the court related the cases and then vacated that order and denied Grossmans motion to consolidate. 17. The United Professional Planning v. Superior Court (4th Dist. 1970) 9 Cal. App.

3rd 377, case does not support the Expungement of the Lis Pendens. It has been distinguished by Varian Medical System, Inc. v. Delfino, supra, 35 Cal. 4th 180. The UPP case holds in part that: We conclude that the present showing made by defendants is insufficient to support a finding that the action was commenced for an improper purpose and not in good faith. . . . Let a peremptory writ of mandate issue, commanding the respondent court to vacate its order of December 30, 1969 expunging plaintiff's notice of pendency of action recorded in Book 8844, Pages 3 and 4 of the Official Records in the Office of the County Recorder, County of Orange, and awarding defendants' attorney fees and costs. The alternative writ heretofore issued by this court is discharged and the restraining order of this court dated January 21, 1970 is dissolved. (United Professional 27

Planning v. Superior Court, supra,9 Cal. App. 3rd at 396). 18. The only evidence submitted in the Expungment Motion was the declaration of

Ms. Long and the Declaration of Peter Baer. Neither Ms. Long nor Peter Baer testified at the UD trial. Baers testimony is contradicted by my sworn testimony at the UD trial that the Manager of Pro Value told me that they knew about the Lis pendens and that she had actual notice of the Grossman v Bayview lawsuit. In fact Pro Values other lawyer told me that they had actual notice. The Manager also told me that the price paid at the auction was pre-arranged. Mr. Grossmans complaint was verified and therefore it totally contradicts the nonsense submitted by Pro Value in its Expungment Motion. Baers testimony should be stricken for lack of foundation and personal knowledge and totally contradicts the statements made to me by the manager of the office. How many managers does Pro Value have and what are their duties and responsibilities? Ms. Long prepared his declaration without first laying the foundation. Why didnt Ms. Long put Baer on the stand as a witness? 19. Grossman has met his burden of proof under CCP Sections 405.31 and 405.32.

Grossman has stated a real property claim throughout the original and amended complaint. There is a 10th Cause of Action to Quiet title. In such a situation a Lis Pendens is required by Statute. CCP 761.010. The complaint seeks declaratory relief, specific performance and to cancel a trustees sale. Grossman has also met his burden of proof by a preponderance of the evidence the probable validity of his real property claim. In the meantime Pro Value has submitted no admissible evidence to refute the evidence submitted by both Friedlander and Grossman. Judge Ewells 28

decision is not final as it is up on appeal and should be reversed. Her misguided decision should be given no weight whatsoever. I declare under penalty of perjury under the laws of California that the foregoing is true and correct. Executed at Los Angeles, Ca. on 10/2/2011 ___________________________ Martin S. Friedlander, Esq. MEMORANDUM OF POINTS & AUTHORITIES A. A PETITION FOR A WRIT OF MANDATE IS THE EXCLUSIVE REMEDY. A petition for a writ of mandate filed by a party to the underlying proceeding is the exclusive appellate remedy for review of an order denying or granting a Motion to Expunge. (C.C.P. 405.39.) B. THE MOTION TO EXPUNGE SHOULD HAVE BEEN DENIED AS THE FILING OF THE MOTION VIOLATED THE AUTOMATIC STAY. The leading case is the California Supreme Court Case entitled Varian Medical Systems v. Delfino, supra, 35 Cal. 4th 180. The Supreme Court Stated that: Under Code of Civil Procedure section 425.16, subdivision (b) (1),FN1 a defendant may move to strike any cause of action arising from any act ... in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.... If the plaintiff cannot demonstrate a probability of prevailing on that cause of action ( 425.16, subd. (b)(1)), then the trial court must strike the cause of action and award the defendant attorney's fees and costs ( 425.16, subd. (c)). In 1999, the Legislature made the denial of a special motion to strike under section 425.16 29

appealable. We now determine whether the perfecting of an appeal from the denial of a special motion to strike automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion. We conclude that it does. (Varian Medical Systems v. Delfino, supra, 35 Cal. 4th at 186). The Supreme Court stated that: Under section 916, the trial court is divested of subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal. (Betz, supra, 16 Cal.App.4th at p. 938, 20 Cal.Rptr.2d 841.) The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court.... ( Statler, supra, 107 Cal. at p. 539, 40 P. 949.) FN9 Thus, that court is without power to proceed further as to any matter embraced therein until the appeal is determined. (Ibid.; see also 2 Witkin, Cal. Procedure (4th ed. 1997) Jurisdiction, 319, p. 893 [when the cause is taken over by a reviewing court on appeal or other proceeding in review, the trial court is divested of jurisdiction of the subject matter during the period of review, and has no power to vacate or modify the judgment or otherwise to deal with the cause].) And any proceedings taken after the notice of appeal was filed are a nullity. (Davis v. Thayer, supra, 113 Cal.App.3d at p. 912, 170 Cal.Rptr. 328; see also Kinard v. Jordan (1917) 175 Cal. 13, 16, 164 P. 894 [finding that the lower court order must be deemed a nullity].) This is true even if the subsequent proceedings cure any purported defect in the judgment or order appealed from. (See Sacks v. Superior Court, supra, 31 Cal.2d at p. 541, 190 P.2d 602 [ after the appeal was perfected, the lower court lost jurisdiction of the cause and could take no step to defeat appellants of the right to prosecute their 30

appeal with effect.... A recognition of any other rule would lead to uncertainty and confusion in litigation, and in effect would enable the lower court to review its own proceedings]. (Varian Medical Systems v. Delfino, supra, 35 Cal. 4th at 196-198). Varian than stated: In order to preserve the status quo and return the parties to the same condition they were before the order was made ( Wolcott v. Hudner, supra, 67 Cal.App. at p. 707, 228 P. 46), section 916 necessarily renders any subsequent trial court proceedings on matters embraced in or affected by the appeal voidand not merely voidable ( 916). A contrary conclusion would allow the trial court to render an appeal futile. If trial court proceedings during the pendency of the appeal are consistent with the reviewing court's resolution of the appeal, then the appeal is, in effect, futile because the trial court has already granted the relief that would have been granted on appeal. And if trial court proceedings during the pendency of the appeal conflict with the reviewing court's resolution of the appeal, then the appeal will likely be futile because the prevailing party, in most instances, will have no adequate remedy left. Because the remedy by appeal cannot be denied to an aggrieved party dissatisfied with the judgment or the order appealed from by an act of the trial court in the action, at the behest or on the motion of the respondent, after an appeal has been taken and is pending ( Durbrow v. Chesley (1913) 23 Cal.App. 627, 629, 138 P. 917, italics added), the automatic stay under section 916 must divest the trial court of fundamental jurisdiction over the matters embraced in or affected by the appeal (see Mulvey v. Superior Court (1913) 22 Cal.App. 514, 516, 135 P. 53 [ Common fairness and a sense of justice readily suggests that while 31

plaintiffs were in good faith prosecuting their appeals, they should be in some manner protected in having the subject matter of the litigation preserved intact until the appellate court could settle the controversy ] ). Indeed, the only way to ensure that the appealing party has a remedy on appeal is to deprive the trial court of jurisdiction in its fundamental sense.(Footnote) (Varian Medical Systems v. Delfino, supra, 35 Cal. 4th at 198-199). The appellate court held in Kendall-Brief co. v. Superior Court (4th App. Dist. 1976) 60 Cal. App. 3rd 462 held that: A lis pendens cannot be expunged if the action affects right of possession of real property in which the Lis Pendens is recorded. (Kendall-Brief Co. v. Superior Court, supra, 60 Cal. App. 3rd at 468.) In the instant case the Petitioner will lose his claims to property, both possession, and ownership, if the Lis Pendens were expunged. Pro Value had possession, then sold to an innocent 3rd party, subject to Petitioners right to reverse the judgment for possession on appeal. This is an untimely Motion to Expunge as the 3rd Party has already bought the property subject to the Lis Pendens. Thus a 3rd party has to be named and served due to the fraud of Pro Value and others. By usual rule of statutory construction, sections of a statute to the same subject matter the real property should be interpreted together. (Kendall-Brief Co. v. Superior Court, supra, 60 Cal. App. 3rd at 466). Pro Values papers did not reflect that they had previously sold the property. They are a party without possession. They have unjustly enriched themselves by their fraud and skullduggery to the detriment of both the Plaintiff and the Fazels. It is an abuse of discretion to expunge a Lis Pendens solely on the basis of the granting of a partial summary judgment. (Mason v. Superior Court (4th Dist. 1985) 163 Cal. App. 3rd 989, 996). 32

Court of Appeal accepted as true plaintiffs allegations in complaint in underlying actions. (Deane v. Superior Court (4th Dist. 1985) 164 Cal. App. 3rd 292, 294, footnote 1). If the action of the trial court would tend to render pending appeal futile, such action should be classified as embraced within or affected by the judgment and prohibited in accordance with 916. (UPP v. Superior Court, supra, 9 Cal. App. 3rd at 384.) THUS THE AUTOMATIC STAY APPLIED AND THE TRIAL COURT VIOLATED THE STAY. C. THE COURT ABUSED ITS DISCRETION BY NOT ORDERING A SHORT CONTINUANCE TO OCTOBER 5, 2011. Pro Value relied entirely on MERS being sanctified by the Gomes case, even though our case was not solely based on MERS being valid or not. See the Verified Original Complaint and the Verified First Amended Complaint which sets forth the sworn facts as to the improper sale. Petitioners request for the short continuance is set forth at RT p. 16 p. 19 and denied. D. THE PETITIONER STATED A REAL PROPERTY CLAIM. Both the Original and First Amended Complaint and the UD action stated real property claims. Both cases are on appeal. E. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PETITIONERS REQUEST FOR A MINI TRIAL AND IT ABUSED ITS DISCRETION BY FINDING THAT THE PETITIONER FAILED TO MEET ITS BURDEN OF PROOF IN ESTABLISHING THE PROBABLE VALIDITY OF ITS CLAIM.


Justice Charles Vogel probably gave one of the best analysis of the revised lis pendens statute in 1992 in BGJ Associates, LLC v. Superior Court (2nd Dist. 1999) 75 Cal. App. 4th 952, which I will quote, in part, verbatim. Section 405.4 provides, 'Real property claim' means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property .... This section defines the type of claim which must be pleaded to support a lis pendens. If the pleading filed by the claimant does not properly plead a real property claim, the lis pendens must be expunged upon motion under CCP 405.31. (Comment to 405.4.) Section 405.31 provides, In proceedings under this chapter, the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. This section concerns pleading. Prior law became confused because of failure of the courts to distinguish between allegations (pleadings) and evidence. This section concerns judicial examination of allegations only. Judicial examination of factual evidence is separately governed by CCP 405.32. [] ... The analysis required by this section is analogous to, but more limited than, the analysis undertaken by a court on a demurrer. Rather than analyzing whether the pleading states any claim at all, as on a general demurrer, the court must undertake the more limited analysis of whether the pleading states a real property claim. (Comment to 405.31.) (BGJ Associates, LLC v. Superior Court, supra, 75 Cal. App. 4th at 956.) Thus under this analysis, the examination is akin to a demurrer, and under this analysis the Petitioner plead real property claims. 34

The Court then examined CCP . 405.32. and opined: In contrast to such demurrer-like review of whether the pleading states a real property claim, section 405.32 provides an entirely separate ground of attack in the trial court on a lis pendens notice, an evidentiary hearing on the probability the proponent will be able to establish a valid real property claim. It provides, In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. This section expressly concerns factual merit. Provision for a demurrer-like review of the pleading is preserved in CCP 405.31. (Comment to 405.32.) (BGJ Associates, LLC v. Superior Court, supra, 75 Cal. App. 4th at 956-957.) The present case involves only the demurrer-like review pursuant to section 405.31 of whether the pleading states a real property claim. ( 405.4, 405.31.) In the trial court, the defendants' motion to expunge the lis pendens notice was based solely on the pleading pursuant to section 405.31. The defendants expressly disclaimed an evidentiary hearing on the probable validity of the real property claim pursuant to section 405.32. The parties' moving and opposing papers addressed only the pleading. The trial court granted the defendants' motion to expunge the lis pendens notice, on the ground that the [c]omplaint does not involve a real property claim. The plaintiffs promptly filed the present writ petition to review that order. Pro Values Motion relied solely on CCP 405.32, i.e. the probable validity of the real property claim. Pro Value relied on Gomes which is not applicable and a Statement of Decisions by the UD Court which is also on appeal. The term probable validity is 35

drawn from the attachment law. (CCP 484.090; See also CCP 512.060 (same standard applicable to claim and delivery proceedings)). This section is intended to require a hearing on the merits of the same type as those conducted in attachment and claim and delivery proceedings. A hearing was requested and denied. The Trial Court thus abused its discretion granted to the trial judge under CCP 405.32. PRAYER Wherefore, Petitioner prays that this Court 1. Issue an alternative writ directing respondent superior court to set aside and vacate its order Expunging the Lis Pendens, or to show cause why it should not be ordered to do so, and upon return of the alternative writ issue a peremptory writ of mandate and/or prohibition or such other extraordinary relief as is warranted, directing respondent superior court to set aside and vacate its order Expunging the Lis Pendens, and to enter a new and different order denying the motion; 2. Award petitioner his costs pursuant to rule 8.490(m) of the California Rules of Court; and 3. Grant such other relief as may be just and proper. Dated: October 2, 2011 Respectfully submitted, By: ______________________________ Martin S. Friedlander, Esq. Attorney for Petitioner. 36

____________________________________ Anthony Grossman, Esq. Petitioner and Attorney in Pro Se.



I am employed in the County of Los Angeles, State of California. I am over the age of 18 and am not a party to the within action; my business address is: 10350 Wilshire Blvd., Suite 603, Los Angeles, Ca. 90024. On October 3, 2011, I served the foregoing document described as Petition for Writ of Mandate or Other Appropriate Relief from Expungement of Lis Pendens on all the interested parties in this action as follows: ( x) Mail () Federal Express

By placing true copies thereof enclosed in sealed envelopes addressed as indicated on the attached Service List: I am readily familiar with the firms practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. As to Judge Steven Kleifield of Dept 53 of the LASC, Stanley Mosk Courthouse (X ) Personal Service to Clerk of Dept. 53 on 10/3/11

I delivered the Petition for Writ of Mandate personally. _x__ State I declare under penalty of perjury under the laws of the State of California that the above is true and correct. I declare under penalty of perjury under the laws of the State of California and the United States of America that the above is true and correct. ______________________________ Martin S Friedlander



October 3, 2011


Service List The Supreme Court of California (4 copies) 350 McAllister Street San Francisco, CA 94102-7303

Edward G. Schloss 3637 Motor Avenue, Suite 220 Los Angeles, CA 90034

Steven W. Kerekes 117 E. Colorado Bouelvard, Suite 460 Pasadena, CA 91105

John Bouzane Helen Grace Long 634 Oak Street San Bernardino, CA 92410