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CIV B228800


ANTHONY GROSSMAN, Plaintiff, Respondent, Cross-Appellant V

EDWARD SCHLOSS Defendant, Appellant, Cross-Respondent

Appellees Opening Brief and Cross Appellants Opening Brief Appeal from Orders of the Los Angeles Superior Court Judge John P. Shook, Presiding, Dept. 53

______________________________________________________________________________ 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 ANTHONY GROSSMAN 1

TO THE HONORABLE PRESIDING JUDGE AND ASSOCIATE JUDGES OF THE COURT OF APPEAL I INTRODUCTION On November 12, 2010, the trial court entered various orders. One order granted Schloss Slapp Motion to Grossmans 6th cause of action and denied Schloss Slapp Motion as to Grossmans 8th cause of action. Schloss filed his Notice of Appeal on 11/12/2010 and Grossman filed his cross appeal on 11/15/2010. Grossman also appealed from various other orders of the trial court listed as items 2, 3, 4, and 5 of his Notice of Cross Appeal. (CT 1625). II STATEMENT OF THE CASE Grossman, was foreclosed out of his house at a non-judicial sale by Bayview Loan Servicing, LLC, and (Bayview) who contended that MERS assigned the Trust Deed to Bayview. Bayview was not the holder or owner of the Note in favor of HOMEAMERICAN CREDIT INC DBA UPLAND MTG (HOME AMERICAN secured by said TD. Said Note to HOMEAMERICAN was assigned by HOMEAMERICAN to HSBC. See Exhibit 3 (CT 1465) attached as an Exhibit to Grossmans sur reply Brief. (CT 1434 1465) Bayview, Seaside, and Schloss contend throughout their papers that Grossman was required to make a tender to obtain relief under one of the causes of action. Grossman was not required to make a tender to Bayview who was not the holder or assignee of the Note. Grossman had no legal obligation to tender to a stranger. Bayview 2

was not able to trace any chain of title to the Note from HSBC to Bayview. Since the TD was security for a Note held by a 3rd party, Bayview was precluded from exercising its right of sale under the TD. If tender was made to an entity that did not hold the note then the real holder of the Note could sue Grossman. Grossman would be forced to pay the same Note twice. That is why Bayview was required to produce the original inked Note to enforce the terms of the TD security. It failed to do so, but Grossman produced the Allonge that assigned the Note to HSBC and Bayview was unable to trace title to the Note from HSBC. They manufactured an assignment of both the Note and TD by forging a signature of MERS with a false notarial acknowledgement. Bayview never traced the chain of title to the Note from HSBC to MERS. Grossman filed his First Amended and Supplemental Complaint on 11/23/2010, which was verified by Grossman. (CT 778-823 with the verification appearing on CT 823) Grossman alleged on (CT 779) that he intended to seek consolidation with the UD filed by Pro Value after the wrongful foreclosure allegedly counseled by attorney Schloss. (CT 779-780) Grossman used the word allegedly since he did not have any personal knowledge of the communications between Schloss and his clients. This was a special motion to strike and no deposition was taken of Schloss as he would claim the 5 th Amendment privilege as we accused him of a crime, and he would also assert the attorney-client privilege. Grossman alleged an illegal and fraudulent foreclosure with the subsequent filing of fraudulent and backdated documents with the County Recorders Office after Grossman filed his lawsuit on 12/4/2009 and recorded in December 2009. Grossman alleged at (CT 783) the holder of only the TD will never experience default 3

because only the holder of the note is entitled to payment of the underlying obligation. The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust. (CT 783) An obligation can exist with or without security. With no security, the obligation is unsecured but still valid. A security interest, however, cannot exist without an underlying existing obligation. See Cal. Civ. Code 2872, 2909, 2920, Henley v Totaling, 41 Cal. 22 (1871); Trowbridge v Love, 58 Cal. App 746 (1943). That is the basic reason to require the production of the original note. MERS separated the note from the security to facilitate the fraud perpetrated on America as alleged in the various State Attorney General Suits filed recently. These Attorney Generals alleged unfair business practices as set forth in statutes similar to Californias Business & Professions Code. The court is requested to take Judicial Notice of the filing of these complaints. (CT 784) To date neither Countrywide nor Bayview have provided us with the documentation to establish their right to record an NOD and a NOSThey had no right to be paid or to foreclose (CT 788) The Banksters even defied responding to the Attorney Generals subpoenas for the incriminating documents reflecting that these Banksters perpetrated a massive fraud on the people of the State of California. The AG of California then filed a massive lawsuit against the major Banksters to enforce the subpoenas. No individual homeowner like Grossman has the massive financial resources to obtain these incriminating documents from Banksters worth in the billions of dollars. They stonewalled the People of the State of California as they did Grossman. They then hid behind this shield to preclude Grossman from using discovery to obtain the admissions that he sought to 4

prove the allegations he asserted backed by his diligent efforts in obtaining the incriminating documents from the County Recorders office. Schloss conspired with his clients to cover up the fraudulent backdated and false documents that were created after the lawsuit was filed in order to cure the deficiencies discovered by Friedlander in the chain of title. Draw the dots to connect Schloss to the fraud directed against Grossman. Friedlander provided the documents to Schloss; Schloss then allegedly provided them to his clients; and his clients created new backdated documents to record after the lawsuit was filed. The chain has been connected. This fraud could not have been perpetrated without the active participation of Schloss. Both Schloss and his clients attempted to hide behind the shield of attorney-client privilege and the 5th Amendment. Schloss signed and filed the objections to the discovery served on his client corporations based on a 5th Amendment privilege that a corporation may not assert. Schloss hands are all over this fraud directed to Grossman. It over stepped the attorneyclient relationship as Schloss signed the improper 5th Amendment objections of his corporate clients. The perpetration of the fraud by Schloss directed against Grossman has been established. The Slapp Motion should not be allowed to be part of the coverup. This was a verified complaint and is presumed to be true. Bayview produced no evidence to defray the allegations of Grossman. The original lender is in Bankruptcy so it does not possess the original note. (CT 692) Schloss personally threatened Friedlander. (CT 795 at 55) Before recording the NOD Bayview was required to contact the borrower (Grossman) to assess his financial situation. Bayview never contacted Friedlander as required by statute. (CT 797). MERS 5

had never filed to do business in California in violation of California States. Every transaction by MERS involving real property in California is void not just voidable. (CT 798) See the admissions made by the President of MERS in a deposition taken in another case. (CT 798-799) On February 21 2010 I sent to Schloss a multi-page letter setting forth all of the title deficiencies (Exhibits 1-20) (CT 799-802) Seaside published a postponement of the Sale pursuant to mutual agreement. (CT 802 66) Grossman and Friedlander justifiable relied on that standstill agreement. (CT 802 67) In 70 Grossman alleged on information and belief that Schloss counseled his client to commit a fraud by causing Seaside to prepare a new assignment, backdated, wherein MORTGAGE ELECTRONIC REGISTRATION SYSTEM AS NOMINEE FOR HOME AMERICAN CREDIT INC dba UPLAND MORTGAGE, wherein both the Note and Deed of Trust were assigned to Bayview. (CT 802) See the allegations of fraud and impossibility alleged on (CT 803- 804) MERS could not assign the Note since the note was previously assigned to HSBC (the Allonge). The agency terminated with the Bankruptcy of the original lender. 71 alleged that the fraudulent backdated assignment executed after the lawsuit was filed on 12/4/2009 constituted the tort of fraud on Plaintiff. Thus Schloss conspired with Bayview and Seaside to defraud the Plaintiff, so as to make al co-conspirators jointly liable for tortuous acts committed by any of them pursuant to the conspiracy citing Okun v Superior Ct (1981) 29 Cal. 3rd 442, 454; Berg & Berg Enterprises, LLC v Sherwood Partners (2005) 131 Cal. App. 4th 802, 823. (CT 803 71 and 72) See also the allegations of fraudulent assignment alleged in F and G of (CT 805-806) 6

Grossman alleged a First Cause of Action for Declaratory Relief (CT 806- 809) asserting all of the legal citations to support that claim. Grossman alleged a Second Cause of Action for Declaratory Relief based on Cal. Civ. Code 2923.5. (CT 809-811) Grossman cited all of the cases to support those allegations. Grossman alleged a Third Cause of Action for Tort in Se (CT 811-813) and cited authority for that tort. Grossman alleged a Fourth Cause of Action for violation of 1788.17 of the RFDCPA. (CT 813814 134-140) Bayview, Seaside, and Schloss all advised Grossman that they were debt collectors. Grossman alleged a Fifth Cause of Action for violation of Civil Code 1708) See 141-145 setting forth the law and facts to support such a violation. Grossman alleged a Sixth Cause of Action for Breach of Lenders Promise to postpone the sale. (CT 816-818 particularly 147-153) Berger Kahn sets forth the exception to the Doctors Company case. The Trial Judge was correct. Schloss had an independent duty to Grossman, which superseded his duty to his clients. The analysis is set forth at length in the complaint. Grossman alleged a Seventh Cause of Action for violation of B & P 17200. See (CT 818-819 154-160) Grossman alleged an Eighth Cause of Action for Slander of Title. See allegations in 165-171 of CT 819820) Recordation of false document disparaged Grossmans ownership of the property. Grossman also alleged a Tenth Cause of Action to Quiet Title (CT 821 172-175) The court is also requested to take Judicial Notice of the Appellate Brief in Pro Value v Grossman filed on 12/14/2011 in Grossman as Appellant and Pro Value as Appellee filed in the Los Angeles Superior Court, Appellate Division Dept. 70 bearing Case No. BV 028930. Due to the Trial Judge rescinding his relationship order and 7

Motion to Consolidate, Grossman allegedly did not post his jury fees timely, Judge Ewell refused to grant relief, and the case proceeded to a Bench Trial where multiple errors were committed. Pro Value then used the Statement of Decision issued by the UD Court, which was pure hearsay and irrelevant to support a Motion to Expunge the Lis Pendens filed by Grossman in this case. If the cases had been consolidated, there would not have been a Statement of Decision and an Appeal from Grossman in that UD case to support a Motion to Expunge which was granted by the Trial Judge who replaced Judge Shook in Dept. 53. THE ULTIMATE TRAVESTY OF JUSTICE Grossman filed an Ex Parte on July 27, 2010. (CT 825-845) Grossman pasted to his Ex Parte the Published Statement of Katheryn-Director of the FBIs Office for Victim Assistance. (CT 831-834 1-53) and the Meet and Confer Letter that Friedlander sent to Schloss regarding his refusal to respond to discovery asserting the 5th Amendment (CT 834-843) Schloss should not be permitted to assert a 5th Amendment privilege to discover the communications between himself and his clients. Such stonewalling should relieve Grossman of any burden. We also contend that the Slapp Motions were filed in bad faith to prevent Grossman from discovering the criminal frauds perpetrated on him. Schloss should not be permitted to assert a 5th Amendment privilege to prevail on his Special Motion to Strike. These Slapp Motions violated Grossmans 1st and 14th amendment constitutional rights. They were designed to stifle the Plaintiff from recovering on his claims. For the record, a Corporation is not permitted to assert a 5 th Amendment privilege. It only belongs to individuals. Thus, the assertion by Bayview and Seaside, through Schloss, of a Fifth Amendment privilege is wrongful and this Court 8

should reverse on the Slapp Motion that granted and affirm on the Slapp Motion that was denied. Constitutional rights are a two way street. Citizens United did not overturn Rehnquists decision regarding Corporations not being permitted to assert the 5th Amendment. Discovery from Bayview and Seaside would have provided the evidence to overcome the shifting of burdens. Programs like 60 Minutes have described in detail the operations of the foreclosure attorney mills using robo signers who sign almost 100 documents an hours before a Notary who fraudulently affixes the notarial seal on these manufactured documents. Attorneys in Florida and New York have been shut down precluding them from assisting their clients who paid them millions of dollars for their guidance. Attorneys hide behind the attorney-client privilege, the 5th Amendment, and now Slapp Motions to prevent homeowner victims from relief they deserve. This is such a case. Schloss has asserted the 5th Amendment privilege, the attorney-client privilege and now the infamous Slapp Motion and files an appeal from an order denying his Slapp Motion. We contend, that the assertion of all these privileges and the Slapp Motion is being used as a sword a not a shield. This country has melted down with foreclosures and evictions with abandoned properties being torn down to prevent a further meltdown of under water homes. Now the State Attorney Generals such as Kamala Harris have filed suits to enforce subpoenas served on the foreclosures while the White House fails to do its duty by not prosecuting one Bankster for criminal wrongdoing under the guise of not being able to establish the necessary criminal intent. Breach of fiduciary duty is a sub species of fraud and no knowledgeable person can convince the undersigned that the 9

CEOs of these Banksters did not know what was going on. Ten hours of testimony by the leaders of Goldman Sachs convinced me to the contrary. They profited in the billions while the homeless sleep in cars or motels and struggle to put their children through school. III STATEMENT OF APPEALABILITY An appeal from a motion made pursuant to CCP 1714.10 shall be appealable as a final judgment in a civil action. An order granting or denying a special motion to strike shall be appealable under CCP 904.1 (Civil Code 425.16 (1). Pursuant to 904.1 et seq interlocutory non final orders are embraced therein and made appealable. IV STANDARD OF REVIEW An appellate court reviews interpretations of Civil Code 1714.10 de novo. Berg & Berg Enterprises, LLC v Sherwood Partners, Inc. (2005) 131 Cal App 4 th 802, 822. V ARGUMENT A. CORPORATION MAY NOT ASSERT THE 5TH AMENDMENT TO PROTECT ITS ATTORNEY. The privilege against self-incrimination only protects natural persons; it may not be asserted by a corporation, partnership, or other entity. Thus, a corporation can be required to produce its books and records by subpoena duces tecum notwithstanding possible incrimination of the corporation. Braswell v. United States (1988) 487 US 99, 104108, 108 S.Ct. 2284, 22882290; United States v. Kordel (1970) 397 US 1, 7, 90 10

S.Ct. 763, 767, fn. 9; Avant! Corp. v. Sup.Ct. (Nequist) (2000) 79 CA4th 876, 884885, 94 CR2d 505, 510. The same holds true for custodians of corporate records (directors, officers, or shareholders). In that capacity, they hold the records as representatives of their corporations and thus may be compelled to produce them even if the records will personally incriminate the custodian. Braswell v. United States, supra, 487 US at 108 109, 117118, 108 S.Ct. at 2290, 2295because custodian acts as a representative, the act is deemed one of the corporation and not the individual. Tending to incriminate: The privilege extends only to testimony that might tend to incriminate the witness. [Ev.C. 940] Criminal liability essentialno protection against implication in civil liability: The privilege may be invoked only to protect against testimonial compulsion that would implicate the witness in criminal liability. A witness cannot claim a privilege against self-incrimination to shield information that would simply expose him or her to civil liability or public disgrace. Metal Working Machinery, Inc. v. Sup.Ct. (1977) 69 CA3d 791, 794, 138 CR 369, 371; Warford v. Medeiros (1984) 160 CA3d 1035, 1039, 207 CR 94, 97, fn. 1. One of the privilege's basic functions is to protect innocent people who otherwise might be ensnared by ambiguous circumstances. Consequently, the privilege may be invoked by those who claim innocence. Ohio v. Reiner (2001) 532 US 17, 21, 121 S.Ct. 1252, 12541255 By the same token, a party cannot profit to his or her adversary's disadvantage by invoking the privilege for the purpose of excluding relevant evidence on the party's claim or defense; by refusing to testify to material matters under the cloak of the self11

incrimination privilege, a party may suffer the penalty of dismissal or evidentiary/testimonial sanctions. In the instant case attorney Schloss signed the objections, based upon his corporate clients non-existent 5th Amendment privilege against self-incrimination. Grossman contends that Schloss knowingly asserted a non-existent corporate 5th Amendment privilege, not to protect his clients, but to prevent his clients from incriminating him. A witness cannot claim a privilege against self-incrimination to shield information that would simply expose him or her to civil liability or public disgrace. Metal Working Machinery, Inc. v. Sup.Ct. (1977) 69 CA3d 791, 794, 138 CR 369, 371; Warford v. Medeiros (1984) 160 CA3d 1035, 1039, 207 CR 94, 97, fn. 1. Grossman contends that Schloss was protecting himself from State Bar disciplinary proceedings as opposed to protecting himself. State Bar disciplinary hearings: In State Bar disciplinary hearings, improper invocation of the Fifth Amendment privilege by the attorney being disciplined may be considered as an aggravating factor. Matter of Dixon (Rev.Dept. 1999) 4 Cal. State Bar Ct.Rptr. 23, 4142 Schloss illegal assertion of a non-existent corporate 5th Amendment privilege is material evidence in his complicity in a conspiracy to defraud Grossman. Schloss owed a duty to Grossman to produce the documents in his corporate clients possession and require his clients to admit or deny the truth of the Request for Admission and the Interrogatories. Grossman showed that Schloss personal advantage or gain was over and above ordinary professional fees earned as compensation. He wrongly asserted a nonexistent 5th Amendment privilege to protect himself from having his own clients to 12

incriminate him in this conspiracy. His monetary gain was protection from disciplinary proceeding from the State Bar for counseling a client to wrongly assert a privilege. Monetary loss would have been one of the results of a finding against the attorney. B. THE TRIAL COURT PROPERLY DENIED SCHLOSS SLAPP MOTION AS TO THE EIGHTH CAUSE OF ACTION. An appellate court reviews a denial of a Slapp motion de novo. Gerbosi v Gains, Weil, West & Epstein, LLP (2011) 193 Cal App 4th 435, 444. The appellate court will employ the same two-step procedure as did the trial court in determining if Gaims antiSlapp motions were properly denied. A defendant does not establish that a cause of action arises from an act in furtherance of the right of petition or free speech merely by showing that the plaintiff filed his lawsuit in retaliation for the defendants petitioning of speech activities. The defendant must establish that the Plaintiffs cause of action is actually based on conduct in exercise of those rights. Schloss offered no admissible evidence to make this showing. The Plaintiff filed a verified complaint, which is an affidavit. Schloss made no showing at all. The Plaintiff offered a verified complaint to establish that his lawsuit was not in retaliation. Schloss did not establish the first step. The second stepa probability of prevailing is a summary judgment like test. The trial court must accept as true the evidence favorable to the plaintiff and evaluating the defendants evidence only to determine whether the defendant has defeated the plaintiffs evidence as a matter of lawA court may not weigh or compare the weight of the evidence. The courts single task is to determine whether the plaintiff has made a 13

prima facie showing of facts supporting his cause of action. Id. Applying those rules, the Trial Court accepted Plaintiffs verified complaint as true. Schloss submitted no evidence in support of his motion. Schloss also signed a 5th Amendment objection to discovery served on his corporate clients to prevent his clients testimony and documents from actually proving Plaintiffs case against Schloss. Schloss failed to prevail on both the first and second steps in the two-step analysis and the Trial Courts order must be affirmed. What Schloss did was to file a Slapp Motion in lieu of a verified answer. Guile should not be permitted with a frivolous assertion of a Slapp Motion. C. THE TRIAL COURT IMPROPERLY GRANTED SCHLOSS SLAPP MOTION AS TO THE SIXTH CAUSE OF ACTION. Applying the 2-step analysis as set forth in in POINT B, the Trial Court improperly granted Schloss Slapp Motion to the Sixth Cause of Action. The Plaintiff made a verified evidentiary showing and Schloss made none. He filed a Slapp Motion to avoid filing a verified answer. The Court improperly allowed guile to outweigh evidence of the Plaintiff to support both steps of the 2-step analysis, supported by his improper assertion of a 5th Amendment privilege on behalf of his corporate clients. The Court must reverse. D. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT CONSOLIDATING THIS CASE WITH THE UD CASE. THE FACTS AND THE LAW WERE THE SAME. The trial court related the two cases and then refused to consolidate and reversed its order on the relating of the two cases. Plaintiff had recorded a lis pendens and 14

therefore Pro Value could not be a BFP, which shifted the burden to Pro Value to prove all of the elements of a proper foreclosure. Speed unlawfully trumped Justice. The following are excerpts from Grossmans proposed Statement of Appeal filed in the UD case and submitted to the Appellate Dept. in Grossmans Opening Brief. A bona fide purchaser is one who pays value for the property without notice of any adverse interest or any irregularity in the sale proceeding. Nguyen v. Calhoun, 105 Cal. App. 4th 428 (2003). The Lis Pendens gave constructive notice to the world including Pro Value. Thus, Pro Value was on constructive notice. Friedlander testified that the office manager told him that Pro Value had actual notice, a fact that has not been challenged by Pro Value. Friedlanders testimony established that not only did Pro Value have notice of irregularities in the sale proceedings, but also Pro Value participated in those irregularities per Friedlanders sworn testimony as to the arrangement of the price before the sale. Pro Value offered no testimony whatsoever as to the actual sale and bidding. The Trustees Deed should not have been admitted into evidence pursuant to Judicial Notice, since it was irregular on its face. The Trial Court should have noted that the amount of the Unpaid Debt was left blank. Both Bayview and Seaside knew or should have known what the Unpaid Debt was. The Trustees Deed was not an affidavit, but a Notarial Acknowledgment that Elvia Bouche signed the document as Vice President of Seaside. It does not make the facts in that document true. 4. The factual and legal basis as to whether or not Bayview was an Assignee of the Original Lender on the date that it substituted Seaside as Trustee of the Grossman 15

TD. The court deliberately failed to do so even after admitting into evidence the Allonge which stated on its face that the Note that Grossman signed in favor of the original lender was endorsed over to HSBC, an entity other than Bayview. That Allonge was faxed to Friedlander by Northwestern Trustee, the prior Trustee appointed by Bayview on a date prior to Seasides involvement, and puts the lie to the backdated and forged Assignment referenced in Pro Values Exhibit 2. This Court intentionally neglected to state that Exhibit 2 was recorded on 3/8/2010, one day before the sale. This court covered up the fraud and perjury of Bayview and Seaside by admitting that document into evidence and using that document to support its decision. It was backdated to 6/10/2009, which could not have been prepared by Seaside since Seaside was appointed on 8/3/2009 according to Exhibit 1. Since Bayview did not own the note, it could not enforce the security for a note that it did not own. 5. The factual and legal basis as to whether or not Seaside was a duly authorized Trustee on the date that they recorded the Notice of Default and Notice of Sale. This court did not answer that question. The evidence that it rejected reflected that on the date the NOD and NOS was recorded Seaside was appointed by an entity other than the original lender, rendering all recordings a nullity. Exhibit 2, recorded on 3/8/2010, and backdated to 6/9/2010, was Bayview and Seaside attempt to cover-up the invalidity of the prior recording of the NOD and NOS by Seaside. We have a subornation of perjury here by Pro Value by offering into evidence it knew was false. Pro Value committed a fraud on the Trial Court, and put into disrespect the rule of law which that Court swore 16

to uphold. 6. The factual and legal basis as to whether or not the Lis Pendens recorded by Grossman in December 2009 precluded the later Assignment recorded on March 8, 2010 from being subject to the pending action in Department 53 of the LASC. The court failed and refused to address that material issue of law and fact. 7. The factual and legal basis as to whether or not Seasides Trustees Deed was null and void on the date that it was recorded. The court failed and refused to address that material issue of law and fact. 8. The factual and legal basis as to whether or not the Trustees Deed passed legal title to Pro Value. The court failed and refused to address that material issue of law and fact. 9. The factual and legal basis as to whether or not the Assignment that was recorded by Seaside on 3/8/2010 was backdated by Seaside and fraudulently signed by an alleged officer of MERS on the date that it was notarized by the Florida notary. The court failed and refused to address that material issue of law and fact. 10. The factual and legal basis as to whether or not Grossman received a fair trial as that term is defined by the cases decided under the 14th Amendment. The court failed and refused to address that material issue of law and fact. However, Grossman addressed that issue to the effect that he did not receive a fair trial. 11. The factual and legal basis as to whether or not Trustee and Bayview complied with Federal and California law with respect to the Trustees sale allegedly conducted by the Trustee and/or its agents. The court failed and refused to address that 17

material issue of law and fact. However Friedlander filed a Memorandum of Law that Hearsay in a Recorded Document is still hearsay and inadmissible. Friedlander testified, under oath, without objection, that the Trustee and Bayview did not comply with those requirements of law. For example, Friedlander testified that CC Sec. 2923.5 was not complied with. There was no testimony by Bayview or declaration signed and recorded by Bayview that Bayview complied with CC Sec. 2923.5 (a)(1), (2); (b); or c. The use of the word declaration in subparagraph should be interpreted to mean a declaration by a mortgagee or beneficiary. A declaration by a Trustee is rank hearsay rendering the entire NOD and NOS void precluding a sale. Friedlanders testimony was first-hand knowledge and certainly trumped hearsay. CC Sec. 2923.5 was not complied with per the testimony of Friedlander. The Trustees declaration as to what Bayview told her is rank hearsay. It required a declaration by Bayview. No such declaration was filed. CC Sec. 2923.54 (a) required a declaration from the mortgage loan servicer (Bayview) in the Notice of Sale. It did not. The declaration by the Trustee is not only rank hearsay but did not comply with the Civil Code and the testimony of Friedlander trumps Pro Value on that issue. 12. The factual and legal basis as to whether or not Grossman prevailed on any one or more of his affirmative defenses. . The court failed and refused to address that material issue of law and fact 13. The factual and legal basis as to whether or not the California Unlawful Detainer Statute is Unconstitutional under either one or more of the Constitutional defenses raised by Grossman in his answer. . The court failed and refused to address 18

that material issue of law and fact. Grossman contends that the Trial Court in Department 53 abused its discretion by first relating the two cases and then reversing the Relation order and denied the Motion to Consolidate. Thus, we already had one trial and then we will have another trial, with two appeals pending from two different trial courts. The issues are the same and there is no constitutional reason why the two proceedings must be kept separate. The answer filed by Grossman in the UD case sets forth those constitutional defenses. We will paste those constitutional issues to this Brief. Petitioner was denied substantive due process under the 14th Amendment. There has never been any doubt that the government must provide due process before it deprives a person of real or personal property under the 14th Amendment. The required State Action is the Summary Proceedings delineated by our Legislature as Unlawful Detainer proceedings. The object of the proceeding is to evict the defendant from real property he claims he owns. The ability to litigate title and standing is extremely curtailed by this summary proceeding. The sole object is Landlord based, namely to get him out quick, no matter how fast and dirty. We contend that where a Plaintiff in a UD action claims title to property by virtue of a non-judicial sale under a deed of trust, then the proper court remedy for the purported holder of title is to file a legal action for ejectment, not unlawful detainer. This is the Petitioners home for years, and the Plaintiff is merely a real estate speculator who buys cheap to throw out the owner in a UD action, and then to flip it within a 30 to 60 day time limit. This kind of Plaintiff has no personal desire to live in Petitioners home, after all it is a Corporation 19

which does not live or breathe. Since the Plaintiff is using the court for this eviction proceeding the requisite state action is present. The defendant has been denied procedural due process under the 14th Amendment. Procedural Due Process refers to the procedures that the government must follow when it takes away a persons life, liberty or property. We do not contend that there has been any denial of any due process as to the Trustees sale under the power of sale granted under the Deed of Trust, since there has not been the required state action. The government was not involved except for the recording of deeds in the County Recorders Office. Our Due Process complaint deals with the state action of the government in empowering Unlawful Detainer actions by its statutes. If the purported purchaser at a foreclosure sale attempted to use self-help to throw Grossman out on the street, Plaintiff would have been guilty of forcible detainer. There is the required state action in the Eviction process. The issue that we raise here is whether procedural due process has been denied Petitioner when the State empowers the Plaintiff, who contends to be the buyer at a Trustees sale, the summary process of Unlawful Detainer. It is the Summary Process and the preclusion of certain affirmative defenses and crosscomplaints, that renders the UD procedure as it pertains to homeowners that form the basis of our claim for denial of procedural due process. In Sniadach v Family Finance of Bayview, 395 U.S. 337 (1969) (coincidence) the Supreme Court declared unconstitutional a Wisconsin statute that permitted a creditor to garnish a persons wages without judgment and without any notice or hearing. The UD 20

statute challenged herein limits the defenses that may be asserted, precludes counterclaims, provides for shortened discovery and a trial that must be set within a few days after the case is at issue. Petitioner is precluded from joining Bayview, Seaside or any third party as a defendant. A mans home is his Castle, which is being stolen away in the hundreds of thousands due to greed, fraud, perjury and the Ponzi scheme enabled by MERS. Are we going to have the big trial against MERS in this UD? I think not. See also Fuentes v Shevin 407 U.S. 67 (1972) wherein the US Supreme Court overturned the Replevin statute of California for lack of procedural due process. Defendant has been denied the Equal Protection of the Laws under the 14th Amendment. All equal protection cases pose the same basic question. Is the Governments classification justified by a sufficient purpose? Many government laws draw a distinction among people and thus are potentially susceptible to an equal protection challenge. Our case poses the reverse position, namely does the government deny homeowners who have been deprived of title to their homes by non-judicial sale where there is no judicial scrutiny of the underlying documents, testimony, chain of title, separation of the note from the security, MERS recordations, the failure to produce the original note to establish the fact that the party noticing the sale is the Real Party in Interest and thus had standing to commence the sale. I think not. Petitioner filed a prior lawsuit and recorded a lis pendens, which means that the purchaser at the foreclosure sale takes subject to the outcome of that lawsuit. The lawsuit that Petitioner filed will take several years to litigate while the "summary" UD will only take months. That gives Pro Value an unfair 21

advantage, which violates the Equal Protection clause of the 14th Amendment. What is the rational basis for the State of California grouping all Unlawful Detainers together irrespective of how the Plaintiff obtained title? Our Government failed to classify and that is the denial of equal protection that has been violated by our UD statutes. The burden of justification rests entirely on the State. United States v. Virginia, 518 U.S. 515 (1996) Our UD laws are over inclusive, and must be stricken under the Equal Protection clause. The government should have singled out foreclosed homes sold pursuant to non-judicial sale (not judicial foreclosures) and required the party claiming title to file an action for ejectment. The rest of the UD classifications can remain as is. Speculators such as Bayview and Pro Value should face the heightened scrutiny of a full-blown ejection suit. A social and economic purpose will be served by stopping speculation, fraud, forgery, backdating, and perjury. After the UD Court issued its Statement of Decision and Judgment of Eviction, Pro Value filed a Motion to expunge the Lis Pendens using said Judgment and Statement of Decision, even though the UD judgment was not final and on appeal, as evidence to support Pro Values Motion to Expunge the Lis Pendens. The Statement of Decision was conclusionary and rank hearsay. It was admitted over Grossmans objection and the Lis Pendens was ordered expunged. That is the travesty of justice due to Department 53s refusal to consolidate. VI CONCLUSION. For the reasons set forth herein, we request the following relief from this Court. 1. Schloss appeal from the denial of the Slapp Motion should be affirmed. 22

2. Schloss appeal from the Motion to Strike pursuant to Civil Code 1714.10 should be affirmed. 3. The Courts Order granting Schloss Slapp Motion as to the 6th cause of action should be reversed. 4. The Courts Order of October 6, 2010 sustaining without leave to amend the 1 st, 2nd, 3rd, 4th, 5th and 7th causes of action as well as to Plaintiffs 2nd cause of Action should be reversed, as after a de novo review, Plaintiff has stated sufficient facts to state causes of action against Defendants. 5. The Courts Minute Order of 10/4/2010 denying Plaintiffs ex parte for permission to file a Sur Reply Brief should be reversed for abuse of discretion. 6. The Courts Order of 8/25/2010 vacating its order of 8/20/2010 relating cases BC427386 and 10B01962 and denying Grossmans Motion to Consolidate should be reversed for abuse of discretion. 7. The Court should vacate the UD Judgment de novo and consolidate both cases under the low number case. 8. The Court should reinstate the Lis Pendens that was ordered expunged de novo. 9. The Court should require all defendants in this action to file verified answers. 10. For such other relief that may be just and proper. 11. For Costs and attorney fees Dated: December 28, 2011


Respectfully submitted, ___________________________ Martin S. Friedlander Esq.