petition for writ of mandate 8.30.2011 draft 2
TRANSCRIPT
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CASE NO. 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT
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
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TABLE OF CONTENTS
I. OVERVIEW ......................................................................................................................... 16
II. ISSUES ............................................................................................................................... 17
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 PETITIONER’S 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
INTRODUCTION .............................................................................................................. 4
VERIFIED PETITION FOR WRIT OF MANDATE .......................................................... 18
MEMORANDUM OF POINTS & AUTHORITIES ........................................................... 29
PRAYER ........................................................................................................................ 36
PROOF OF SERVICE .................................................................................................... 38
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TABLE OF AUTHORITIES
Eisenberg et al., CAL. PRACTICE GUIDE: CIVIL APPEALS AND WRITS (The Rutter Group 2003) P 7:91:10 (CACIVAPP CH. 7-B) ............................................................ 26
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
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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. Petitioner’s 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
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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 Value’s 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
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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 world’s 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
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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
Citizen’s 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
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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 2nd
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
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employing their crushing power.
We now direct the court’s attention to the “Declaration of Peter Baer” sworn under
penalty of perjury, attached to Pro Value’s 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
trustee’s sale. How does he know this? Did he attend the sale? He supports his
conclusionary statement by his Exhibit B, the Trustee’s 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 Trustee’s 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 trustee’s
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
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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 Grossman’s
attorney. I testified asking her whether she can relate to me the subject of that Trustee’s
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
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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
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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 Attorney’s 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
Attorney’s 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 3rd 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
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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 don’t own the judiciary, except
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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 Petitioner’s Condo at a “rigged” Trustee’s Sale, utilizing
“backdated” and “forged” documents. Discovery was served by Petitioner on Bayview
and Seaside, the Trustee under the TD, and both asserted the 5th Amendment and
refused to produce documents, make admissions, and refused to answer interrogatories.
After purchasing Petitioner’s 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 “Court’s Proposed Statement on Appeal”, which is a nullity. On 8/22/2011 the
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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 Plaintiff’s 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
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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 Value’s 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 Trustee’s 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
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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
Lender’s 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 Trustee’s 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?
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2. Did Grossman state a Real Property Claim?
3. 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?
4. Did Petitioner’s Verified and First Amended Complaint contain a “real
property claim under CCP § 405.31
5. 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 trustee’s 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
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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 Reporter’s 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 Recorder’s Office to examine title to his
house. He obtained a copy of all of the recorded documents reflected in the County
Recorder’s 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
20
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 Value’s 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
21
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 Defendant’s 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
22
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
23
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 Plaintiff’s 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”
Petitioner’s 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 Cashier’s 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.
24
6. 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 Judge’s 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
25
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 Plaintiff’s 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. Friedlander’s 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 Petitioner’s detriment since it halted all discovery in
26
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 Court’s 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
27
Ewell’s is worthless. Pro Value cannot be a bona fide purchaser for value as Pro Value
had both actual and constructive notice.
15. The entire Plaintiff’s Statement on Appeal in the Pro Value case is true based on
the personal knowledge of both Grossman and Friedlander
16. The court’s 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 Grossman’s 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
28
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. Baer’s 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 Value’s 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. Grossman’s complaint was verified and therefore it totally
contradicts the nonsense submitted by Pro Value in its Expungment Motion. Baer’s
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 didn’t 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 trustee’s 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 Ewell’s
29
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
30
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
31
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 void—and 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
32
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 Petitioner’s 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 Value’s 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).
33
Court of Appeal accepted as true plaintiff’s 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. Petitioner’s 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 PETITIONER’S 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.
34
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.
35
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 Value’s 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
36
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.
37
____________________________________ Anthony Grossman, Esq. Petitioner and Attorney in Pro Se.
38
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
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 firm’s 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. ___ Federal 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.
October 3, 2011 ______________________________
Martin S Friedlander
39
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