Petition for Writ of Certiorari — Schwander v. Cordova

ge-1823 |

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SYOSEPH F.SPANIOL, SR |

—-—_~*

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

No.

JAMES R. SCHWANDER and CARLOTA SCHWANDER,

Petitioners,

vs.

ALBERT E. CORDOVA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES R. SCHWANDER

CARLOTA SCHWANDER

1919 Ygnacio Valley Rd., Apt. 34

Walnut Creek, Ca. 94598

(415) 935-8326

Petitioners in Propria Persona

QUESTIONS PRESENTED

1. Whether members of society who

are not lawyers or members of the legal

orofession are entitled to the same

treatment and Constitutional guarantees

under the law, Federal Statutes, State

Statutes, Civil Codes and Rules of Court

as those who are lawyers?

2. Whether the property, including

the homes and life savings of those who

are not lawyers can be gifted under color

of non-existant laws by the courts to any

lawyer who makes a request for such

property?

3. Whether court judges can ignore

the Constitution, Federal Statutes, Codes

of Civil Procedure, Rules of Court and

Evidence Codes to take the property of

non-lawyers and, through collusion,

conspiracy and covert activity, as in the

instant case, gift that property to

lawyers?

4. Whether an appeal to prevent

violations of the laws as written can be

dismissed in violation of federal

statutes and the constitution?

iil

TABLE OF CONTENTS

Page

Questions Presented....ceeeeeereeere 1

Table of AuthoritieS...--+++ehereess iv

Opinions Below.....--eeersersseeees 2

WPA MMICTAONs as sce cess sewseseessere 3

Constitutional, and Statutory

Provisions Involved...--+++eeeee 4

Statement of the CaS€..---++eeeeees 8

Reasons For Granting The Writ « «<4 0 18

DEPT MEMM Do Lease ese scsecesosesese 26

Rep Ac cs cscs ssccvscreresecess Al

SMIIUEEEE Dus se encecessceresossesses A2

BMNIMIEM Cys ssn s ens csnscsescssccses A4

BUMUEMIEM Tivo sass secserseresererss® A22

Bmmendix E.....-s-sseersesssseccrss A45

BRWUBIMAAM Foss ss-scesssessessesesess A79

WMTIEN Ge os sss ce wee ccs sesssesesrs A82

TABLE OF AUTHORITIES

CASES

Page

a . T

> - ad and ) ror ~ F 1+ mr

f iz ASSOC Laat if ii eo Dal Ye ii Ore

a ) —~“nHO c c rc her ’ a

V. Posner (1) » DC MD) 39]

C)} ~ (- > ae

©OUuUpp a ee ee Ye Re IC a ten ee “3

Pasadena City Board of Education

Vv. Spangler (1976) 427 US 424

Reynolds v. Birmingham, 29 Ala

914 F 2d WOSON ica b conan cewda ned, oe

Skinner v. American Oi] (1979,

S.D. Iowa) 470 F Pune 229.66 % 3. 16

ite)

O*

WY

e

4

1

1@ 8)

>

>

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as)

am]

./

2q = a,

te oe a oe oe oe ee - =e Se 2 Oe BOER ee ee ee ~yiery

Page

Van De Ryt v. Van D. Ryt, 6 Ohio

ST. 2d 31 Ohio OPS 2d 42, 215

NE 24 698 16 ALR 34 27leacccccves 24

STATUTES .

28 U.S.C. 1254(1), 2102, 2206.66» 3

2B U.S.C. 210] ce ccscscvcsscseveces osee 3

28 UsS.C. ZIGGc cosseveesssseeessace 3

$6 G.8.0.. 248608 boos eee ve 6,26

28 U.S.C. 2447 (CE) cccrcccccinsesevsats 5,42

42 U.S.C. 1983, T9SS.cccccccessee 6,239,296

42 U.S.C. [9S ccsrrccssseoesereeveee Spaapee

UNITED STATES CONSTITUTION

Fourth, Fifth, Eighth and

Fourteenth Amendment to the

United States Constitution..

vi

OTHER AUTHORITIES

Page

Supreme Court Rule 90s 5 60 nu 5-4 ee 17

SRS Mae Oo cess ceteris se e086 sees . 17

State of California Evidence Code

Division 1, Chapter 1, Article 1,

500; 803; Chapter 2, 550(B);

Chapter 3, Article 1, 600(;);

604; Chapter 6, Article i,

780(B),(E),(F),(H),(I); Chapter 1,

Article 2, 810, 811(A), 813

og Gres °° $4.63 8 6 6 6 itt eee ee? 2 ee 21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

No.

JAMES R. SCHWANDER and CARLOTA

SCHWANDER, Petitioners,

vs.

ALBERT E. CORDOVA

Respondent,

EMERGENCY

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioners, James R. Schwander

and Carlota Schwander, petitioners

herein, pray that a Writ of Certiorari

issue to review the judgment of the

United State Court of Appeals for the

Ninth Circuit entered in this case on

October 21, 1986.

OPINIONS BELOW

A copy of the Court of Appeals'

Order, not yet published, is appended

hereto as Appendix A, infra, Al. The

order of the district court, it is

believed not yet published, is appended

as Appendix B hereto, infra, p. A2-A3.

Petitioner's Objection To Appellee's

Opposition To Motion For Order and

Appellee's motion to dismiss appellents

appeal is printed in Appendix c hereto,

infra, p. A4-A21. The decision of the

court of Appeal State of California First

Appellate District, Division Two, not

published in the official records, is

printed in Appendix D hereto, infra,

p. A22-A44. Petitioners’ Petition For

Rehearing is printed in Appendix E

hereto, infra, P. A45-A78.

The judgment of the Superior Court

of The State of California In and For the

County of Marin, is printed in Appendix F

hereto, infra, p. A79-A81l.

Attorney client contract is printed

in Appendix G hereto, infra, p. A82-A85.

JURISDICTION

The order of the Court of Appeals

for the Ninth Circuit was entered on

October 21, 1986 (Appendix Al). No addi-

tional statement was provided. The

jurisdiction of this court is invoked

under 28 U.S.C. 1254(1), 2101(C)(F) and

2106.

CONSTITUTIONAL, STATUTORY AND

FEDERAL PROVISIONS INVOLVED

Amendment IV to the United States

Constitution provides in part as follows:

The right of the people to be secure

in their persons, houses, and

effects, against unreasonable---

seizures, shall not be violated----

Amendment V to the United States

Constitution provides in part as follows:

No person shall be deprived---of---

property---without due process of

law----

Amendment VIII provides in part as

follows:

Excessive bail shall not be

required, nor excessive fines

imposed, nor cruel and unusual pun-

ishments inflicted.

Amendment XIV provides in part as

follows:

No State---shall---deprive any per-

son of---liberty, or property, with-

out due process of law; nor deny to

any person within its jurisdiction

the equal protection of the law.

28 U.S.C. 1446(B) provides in part

as follows:

If the case stated by the initial

pleading is not removable, a peti-

tion for removal may be filed within

thirty days after receipt by the

defendant---of a copy of an order or

other paper from which it may first

be ascertained that the case is one

which is or has become removable.

42 U.S.C. 1983 provides in part as

follows:

Every person who, under color of any

statute, ordinance, regulation, cus-

tom, or usage, of any State or Ter-

ritory---subjects, or causes to be

subjected, any citizen of the United

States or other person---to the

deprivation of any rights, privi-

leges, or immunities secured by the

Constitution and laws, shall be

liable to the party injured in an

action at law, suit or equity, or

other proper proceeding for

redress---

42 U.S.C. 1985(3) provides in part

as follows:

Depriving persons of rights and

privileges. If two or more persons

in any State or Territory conspire--

-for the purpose of depriving,

either directly or indirectly, any

person or class of persons of the

equal protection of the laws---or---

from---securing the equal protection

of the laws---or to injure any citi-

zen in person or property---in any

case of conspiracy set forth in this

section, if one or more persons

engage therein do, or cause to be

done, any act in furtherance of the

object of such conspiracy, whereby

another is injured in person or

property, or deprived of having and

exercising any right or privilege of

a citizen of the United States, the

party so injured or deprived may

have an action for the recovery of

damages---against any one or more of

the conspirators.

STATEMENT OF THE CASE

This case arises from the purchase

by petitioners of their first home in

1975. The structural and soils defects

respecting the property were concealed

and petitioners thus filed suit in

Alameda County, California. Following

inaccurate advice from their first

attorney and his failure to commence

discovery over a period of ten months

petitioners employed the services of

other attorneys who failed to appear at

hearings, pursue discovery procedures,

meet contractural guarantees and who

removed petitioner's civil suit,

following a two plus year wait to reach

the top of the trial calendar, from the

trial calendar in breach of the

agreement, causing another two year delay

and EIGHTEEN THOUSAND DOLLARS of

additional expense. Following the

termination of these attorneys the

respondent in this case, lawyer Cordova

was employed, who later broke off

communications, concealed a settlement

document and attempted to sabotage the

settlement of the original underlying

Superior Court, Alameda County case.

A contract was entered into with

respondent five months prior to the

pre-trial settlement of the case. The

contract required a payment of $2,500 to

respondent to prepare case for trial and

a percentage of recovery over $15,000 if

trial commenced. Recovery as had never

been disputed by respondent, was to be

the "difference" between the damaged

value of petitioners' home and the

undamaged value. A settlement agreement

was agreed to at the pre-trial motion

10

hearing. The agreement was promoted by a

Superior Court judge, now a federal

judge. The agreement entered into in

Court and read into the record called for

petitioners to receive the undamaged

value for their home without reduction

for damage pli's a cash payment of

$15,000. Respondent told petitioner that

the pre-trial agreement hearing was a

trial and that he was entitled to another

$7,000 in addition to the $2,500 he had

previously been paid by petitioners.

Petitioners informed him that they were

not certain if the jury trial or any

trial had in fact commenced, and that he

would be paid per the contract terms. He

insisted on payment of another $7,000

(+-) and became angry when he was told

that following confirmation of trial

commencing and determination of recovery

11

he would be paid per the contract. He

became angry, concealed settlement

information, failed to comply with the

contract, broke off communications and

forced his termination. Subsequent to

this another court hearing was held at

which petitioners represented themselves

and at which the judges appraiser stated

on the record that the market value of

the property was reduced for damage.

Naturally, when the market value in an

undamaged state is reduced for damage you

have damaged value. On planet earth.

Since the judge refused to allow the

petitioners, per the agreement, the

undamaged value the only recovery was the

$15,000! cash payment. Since respondents'

percentage was to apply to recovery over

$15,000 plus a $1,000 cash payment he was

only entitled to an additional $1,000 and

12

refused an offer of an additional $3,000.

He then sued petitioners at the Superior

Court, County of Marin, State of

California, and was awarded 500% more

than the terms of the contract

required--now totaling 800% more.

Earlier petitioners refused to com-

plete the sale of their house since judge

Vukasin had breached the settlement

agreement. The judge then issued an

order that the closing papers be signed

which he followed up with ordering the

bed ridden wife of petitioner, and peti-

tioner JAMES SCHWANDER, out of the house

and onto the streets without any funds

from its illegal sale. Petitioner's

anger with judge who is now a judge at

the Federal District Court in San Fran-

cisco became well known and it is

believed that this judge is responsible

13

for much of the tyranny that has caused a

$2,500 plus $1,000 contractural obliga-

tion to, with the additional awards to

respondent, reach $21,000.

The state courts, due to the lower

state court judge's influence and the

fact that petitioners have been vocal in

exposing what is collusion, covert acti-

vity and conspiracy involving violations

by the courts of petitioners' civil and

constitutiona) guarantees and those of

numerous other victims, have attempted to

punish petitioners through the gifting to

respondent of 500% more of petitioners'

savings than required by the lawyer-

client contract.

The courts have violated the rules

of evidence, identified under REASONS FOR

GRANTING THE WRIT, applied two standards

of treatment under the law, one for

14

attorneys and a less favorable one for

non-lawyers, violated petitioners consti-

tutional guarantees, conspired on how to

injure petitioners and are attempting to

take the savings of petitioners and give

that savings as a gift to the respondent

lawyer.

It became apparent that when the

Court of Appeal of the State of Califor-

nia First Appellate District Division Two

issued their opinion on appeal on June

12, 1986 (Appendix D) that constitutional

violations, conspiracy and collusion were

afoot.

Throughout Petitioners' Petition For

Rehearing to the State Appellate Court,

First Appellate District, Division Two,

it was pointed out that constitutional

guarantees were being violated as refer-

enced in particular on Page 13 lines 8

15

through 19 (Appendix E, infra, p. A75-

A76.) It was also pointed out that the

court was concealing, distorting and

misrepresenting the record. On July 11,

1986 petitioners filed a Petition For

Removal of Civil Action to the United

States District Court For The Northern

District of California which was remanded

on September 29, 1986 to the Court of

Appeal of The State of California For The

First Appellate District, Division 2

(case No. A020927) without a certified

order (Appendix B), a declaration from

respondent requesting and supporting his

Motion to Remand and the Order To Remand

was not issued pursuant to 28 USC

1447(C)and was in difference to case law

requiring such compliance. Thermtron

Products, Inc. v. Hermansdorfer (1976)

423 US 336, 96 S CT, 584, 46 L.ED. 2d;

16

Self v. Self (1980, CA 5 TEX) 614 F 2d

1026; and Skinner v. American Oil (1979,

SD IOWA) 470 F Supp 229.

Petitioners have exhausted all lower

court rights.

Following the remand by the District

Federal Court, petitioners filed a Notice

of Appeal on September 17, 1985. On

October 21, 1986 the appeal was dismissed

by the United States Court of Appeals For

The Ninth Circuit in difference to the

failure of the lower court to follow

established case law, the federal sta-

tutes and rules of court as stated above,

thereupon, on November 4, 1986 petition-

ers filed a Motion For Stay and Approval

of Supersedeas to prevent respondent, a

lawyer, from executing upon the cash sav-

ings of petitioners in the Supersedeas

bond pending an appeal to the Supreme

17

Court of the United States. No reply was

received to this simple one page request

supported by Supreme Court Rule 44, FRAP

Rule 8, numerous state and federal case

law and the Constitution respecting equal

treatment. On January 3, 1987 a similar

request was made to the Supreme Court of

The United States, Justice Sandra

O'Conner. The request was returned with

the statement that, since the request was

pending in the Ninth Circuit, the court

would not consider it. Upon receipt of

this information which, no doubt, the

Ninth Circuit expected would be the

situation back on November 4, 1986,

petitioners contacted the Ninth Circuit

for the 3rd time requesting that they

approve or decline the request and cease

in their activity in keeping the doors

wide open for the respondent to steal,

18

under color of law, petitioners'

property. Following this they issued

their order denying the motion on the

basis that they would call the rose

(motion) which looked, felt, and smelled

as a rose--an apple. That is, they would

construe the "Motion for Stay" as

something else--obviously to attempt to

avoid the law as written and assist

respondent, lawyer Cordova. Petitioners

are convinced that the state court judge

who defrauded petitioners out of their

home, and who subsequent to that was

promoted to a federal judge, was and is

in back of much of the collusion and

conspiracy experienced by petitioners in

the courts in this action.

REASONS FOR GRANTING THE WRIT

The Decisions of the lower Courts in

19

this and numerous similar cases are a

philosophical pronouncement to all con-

sumers and residents ia this country that

lawyers are not subject to the laws that

those who are not lawyers are subject to,

that the property of the residents of

this country can be taken from the owners

and given by lawyers to any lawyer who

takes a liking to the property and that

the courtrooms, regardless of the law of

the land and in contempt of that law, can

be used as a vehicle to transfer the

property of unfortunate victims under

color of non-existant law to lawyers as

gifts.

The decisions below, if permitted to

stand, would place the stamp of approval

by the highest court of this land on the

ignoring of Constitutional guarantees

dealing with equal protection of the

20

laws, due process, and their right of all

persons to be secure in the property by

any court judge who wants to ignore these

alleged guarantees. Alleged guarantees

against unreasonable seizures by any

lawyer taking a fancy to their property.

The Constitution of the United States of

America, Amendments IV, V, VIII and XIV.

This petition is calling not only

into question an isolated act of Con-

gress but calling into question the very

Constitution itself as it pertains to

constitutional protections or guarantees

for those residents of this country who

are not lawyers. The United States may

intervene in various types of proceed-

ings. sad Vv

Spangler (1976) 427 US 424, 96 S CT.

2697, 49 L ED. 2d 599.

In the instant case we have a pat-

21

tern of collusion among various judges

attempting to destroy petitioners

reflected in numerous decisions such as,

for one example, the trial court ignoring

California Evidence Codes, Division 1,

Chapter 1 Article 1, 500 (burden of

proof), Evidence Code 803; Evidence Code

Chapter 2, 550 (B); Chapter 3, Article 1,

600(A); 604; Chapter 6, Article 1,

780(B), (E), (F), (H), (1) +? and Chapter

1, Article 2, 810, 811(A), 813, 814. The

codes deal with such items as presumption

of fact not being evidence, that infer-

ence must be appropriate, credibility of

witness, value of property relating to

opinion may only be shown by opinions of

witnesses qualified to express such val-

ues or the owner or spouse.

In the instant case the judge's own

appraiser's on record testimony stating

22

that petitioners property was valued in

its damaged condition was ignored. On

appeal it was stated by the court that

the appraiser didn't state what the

amount of reduction for damage was. On

planet earth it is not relevant whether

the value of the property was reduced one

dollar or one million dollars for damage.

Reducing a fair market value for damage

produces a product that EQUATES WITH

DAMAGED VALUE as all the state court

judges in this case know. Since recovery

on which respondent was to be paid an

additional percentage was accepted by all

parties as the difference between damaged

value and undamaged value, respondent was

not entitled to a percentage of any

recovery; their being only a "separate"

cash recovery of $15,000 and the percent-

age formula applying to recovery applied

a3

to recover over $15,000. Under the pre-

sent situation respondent receives based

upon the state court judges $2,500 (ear-

lier paid by petitioners), plus $10,400,

plus 10% interest on the judgment plus

what appears will be an additional

$6,000.00 in resisting petitioners'

attempt to protect their savings from

theft. A total of what it is believed

will exceed $21,000.00. Petitioners

position is one of a $15,000.00 recovery

less $21,000.00 (+-). Respondent testi-

mony though he committed known perjury

several times during trial was accepted

as fact respecting what petitioners

damaged property value was in difference

to the court's expert witness appraiser's

testimony. That is, respondent decided

petitioners recovered $45,000.00 while

the courts appraiser decideed the recov-

24

ery was zero on the property. Note: A

separate $15,000 payment was recovered by

petitioners in addition to damage value.

The record is clear that petitioners

cannot enforce or obtain their civil

rights in the State courts. Bar Associa-

tion of Baltimore v. Posner (1975, DC MO)

391 F Supp 76.

The power to open or vacate a judg-

ment is based upon substantial principles

of right and wrong and can be exercised

for the prevention of injury and the fur-

therance of justice and can only be exer-

cised if the Federal court maintains

jurisdiction. Reynolds v. Birmingham, 29

Ala App 505, 198 Ga. 360. Van De Ryt v.

Van D. Ryt, 6° Ohio St. 2d 31 Ohio Ops 2d

42, 215 NE 2d 698, 16 ALR 3d 271.

Petitioners first became aware that

there was collusion and conspiracy among

25

the state courts when the Court of

Appeals of The State of California issued

their decision which is replete with pre-

judice, discrimination, distortions,

twisting of the record and concealment.

Nekttienace within 30 days of learning of

this removed their case to Federal Dis-

trict Court on July 11, 1986.

When the case was remanded to state

court the decision was appealed to the

Ninth Circuit on the basis described

above. That is, a defective order and

not remanded under 28 USC 1447(C) and in

difference to case law as heretofore

stated; e.g., Thermtron Products, Inc. v.

Hermansdorfer (1976) 423 US 336, 96 S CT.

584 46 L.ED. 2nd and Self v. Self (1980

CA 5 Tex) 614 F 2d 1026.

The federal statutes such as 42 USC

1983 and 1985 that are alleged to protect

26

"all" residents of this country against

deprivation of any rights secured by the

Constitution the courts are making mean-

ingless respecting issues involving law-

yers or judges.

Petitioners removed their case to

Federal Court under authority of several

statutes including 28 USC 1446(B) and

claiming violations under 42 USC 1982 and

1985.

CONCLUSION

This case is only one of thousands

of similar cases. A ground swell is

growing throughout the entire country

respecting judges protecting lawyers

against accountability and the courts

participation, through ignoring the law

in enriching lawyers with their victim's

property.

27

For the foregoing reasons petition-

ers respectfully request that the Court

grant this Petition for a Writ of Cer-

tiorari.

January 16, 1987

Respectfully submitted,

James R. Schwander

Carlota Schwander

1919 Ygnacio Valley Rd., #34

Walnut Creek, Ca. 94598

(415) 935-8326

Petitioners in Pro Per

Al

APPENDIX A

FILED

OCT 21 1986

Cathy A. Catterson, Clerk

U.S.Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT E. CORDOVA, No. 86-2635

Plaintiff-Appellee,

DC# CV-86-3831-

Vs. DLJ

Northern

JAMES R. SCHWANDER California

and

CARLOTA SCHWANDER ORDER

Defendants~-Appellants.

aes

Before: HUG, POOLE and NORRIS, Circuit

Judges

The appeal is dismissed for lack of

jurisdiction. The district court's order

granting a remand to state court is not

appeaiable. vi Vv Ww

Telephone Co., 430 U.S. 723 (1977).

Appellee's request for sanctions is

denied.

A2

APPENDIX B

ORIGINAL

FILED

SEP 30 1986

William L. Whittaker

Clerk, U.S. Dist. Court

San Francisco

RECEIVED

SEP 22 1986

William L. Whittaker

Clerk, U.S. District Court

Northern District of California

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ALBERT E. CORDOVA No. 86-3831 DLJ

Plaintiff(s),

ORDER FOR REMAND TO

vs. THE COURT OF

APPEAL OF THE

JAMES R. SCHWANDER, STATE OF

et al., CALIFORNIA

defendant(s).

/

Good cause appearing.

IT IS HEREBY ORDERED that the action

of ALBERT E. CORDOVA vs. JAMES R.

SCHWANDER and CARLOTTA SCHWANDER (Case

No. 86-3831 DLJ) is hereby remanded to

the Court of Appeal of the State of Cali-

A3

fornia for the First Appellate District,

Division 2 (Case No. A020927).

Dated: 9/29/86

The Honorable D. Lowell Jensen

Judge of the U.S. District Court

For the Northern District of Calif.

A4

APPENDIX C

RECEIVED

OFFICE OF THE CLERK

U.S.COURT OF APPEALS

1986 OCT 14 PM 3:57

Filed

Docketed

Date Initial

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT E. CORDOVA

Plaintiff/Appellee

vs.

JAMES R. SCHWANDER and

CARLOTA SCHWANDER

Defendants/Appellants

J

No. 86-2635

DISTRICT COURT

ACTION

NO.C863831 DLJ

FOR THE NORTHERN

DISTRICT OF

CALIFORNIA

OBJECTION TO

APPELLEE'S OPPO-

SITION TO (APPE-

LLANTS) MOTION

FOR ORDER ON

SUPERSEDEAS BOND

APPROVAL ON

APPEAL AND STAY

(FRCP 62(D) AND

(F) AND OPPOSI

TION TO APPEL-

LEE'S MEMORANDUM

OF POINTS AND

AUTHORITIES TO

DISMISS APPEL

LANT'S APPEAL

A5

I

INTRODUCTION

Appellants, JAMES and CARLOTA

SCHWANDER, file this objection to appel-

lee lawyer Cordova's opposition to the

court following the law as written and

accepting Jim a Carlota's supersedeas

bond (cash bond), as the plaintiff lawyer

and the superior court have accepted as

security to guarantee the Superior

Court's gift, (from judge Richard Brener)

to the plaintiff. Accepting the bond as

required would prevent the life savings

of the victims contained in this bond

from being taken by the lawyer under

color of law while the victim's appeal is

pending. The law as written respecting

the cash bond as it relates to preventing

what could only be interpreted as a theft

is Rules of Civil Procedure For The

A6

United States District Courts Rule

62(da) (F).

Appellants also object to the dis-

missal of their appeal, as requested by

appellee, so that their savings in the

wand may be immediately taken by appel-

lee.

Appellee, lawyer Cordova's alleged

support for dismissal of the appeal has

no foundation per the law as written

since the remand or the sending back by

judge Jensen of Jim and Carlota's origi-

nal Superior Court Marin County case to

the state court is defective per the law

as written.

Per the Local Rules of the U.S. Dis-

trict Court For the Northern District of

California appellee's request to Federal

District Court judge, DL Jensen, to send

Jim and Carlota's case back to state

A7

court, though it was removed propertly

from state court to federal court by the

appellants under 28 USC 1446(B), was

defective. That is, appellee's motion

failed to comply with Local Rule 220.2.

The rule states "...Each notice of motion

shall be accompanied by...declarations

under penalty of perjury...."The rule

doesn't say may, but states shall. The

appellee's motion was not supported by a

declaration. This was called to the

attention of judge Jensen who ignored the

violation of the Rule on the part of the

lawyer appellee.

Further legal defects in the return-

ing of appellant's case to state court

respecting the issue of gifting by the

judge 5 times more than the terms of the

lawyer/client contracts, designed by the

appellee lawyer, required are the follow-

A&

ing: (1) the order of judge Jensen failed

to state the reason why the case was

being sent back to state court as

required by case law; (2) the judges

order failed to reference 28 USC S

1447(C) as a reason for remand (sending

the case back(, in fact, totally failed

to state any reason; (3) a certified copy

of the order was not mailed to the clerk

of the state court as required by 28 USCS

1447(C) and (4) the sending back to the

state court was an abuse of the laws as

written since Jim and Carlota provided an

abundance of on record confirmation that;

(A) the rules of evidence were violated

by the state court; (B) a covert conspi-

racy was in motion among a certain fed-

eral judge, which has now expanded to

include other federal judges; and state

court judges to punish appellants for

AQ

exposing violations of the law by certain

court judges; (C) certain state court

activity to attack appellants included

perjury, distorting and concealing fac-

tual information, misrepresentation and

violation, as was pointed out to the dis-

trict court, appellants constitutional

rights including, but not limited to,

those guarantees expressed by 42 USCS

1983 and 1985.

Il

STATEMENT OF FACTS

Appellants Jim and Carlota, have

paid over $40,000 in lawyer fees! Appel-

lee, lawyer Cordova's action was for the

purpose of being awarded by court judges

with 5 times more than the terms of his

agreement, with Jim and Carlota, that he

was fully paid under required. To assist

appellee in this respect the state courts

Alo

including the State Appellate Court, (1)

ignored the rules of evidence; (2)

ignored the fact the appellee perjured

himself during a brief hour trial on two

important issues one of which included a

false statement by appellee that he

wasn't representing Jim and Carlota ata

time when he was concealing a base case

settlement document from them; (3)

ignored expert on record documents of the

base case judge's appraiser and accepted

in its place a confirmed perjurers self-

serving, unsupported with any evidence,

statement that appellants recovered an

undamaged value for their property and on

that basis appellee, Cordova, was

entitled to 5 times more than he was paid

per the terms of the lawyer/client con-

tract; (4) attempted to make it appear

through distorting and twisting the

All

‘record that Jim and Carlota were dishon-

est which attempt was disproved and fully

exposed for what it was worth...and

attempted to enrich a contract violator

and perjurer with the property of inno-

cent victims and to punish these victims

even if, in doing do, it required the

violation of numerous laws as written.

While Appellee was suppose to repre-

sent appellants in a speedy settlement of

the base case he: (1) attempted to extort

sums of money from Jim and Carlota above

the terms of his lawyer/client agreement;

(2) attempted to conjure up new client

contracts; (3) broke off communications

with appellants, except for ongoing

extortion attempts, for approximately six

weeks; (4) concealed a settlement docu-

ment; (5) violated the terms of the set-

tlement agreement in the base case and

Ve

Al2

(6) forced Jim and Carlota to terminate

the relationship. All of the above was

brought to the attention of the state

courts to no avail. It was also brought

to the attention of the state courts that

appellee was totally paid under Part I of

his contract prior to the time he forced

appellants to terminate him. SEE EXHI-

BITS 1, 2, 3, 4 and 5 attached hereto and

made a part hereof.

Appellants have exhausted their

state court rights. The current situa-

tion is that from a recovery of $15,000

in the underlying case lawyer Cordova per

the state judges is to receive $14,900 +

10% and Jim and Carlota net $100 less

costs, interest, etc.

Al3

III

ADDITIONAL POINTS AND AUTHORITIES

TO SUPPORT THE IMPROPRIETY OF THE

DISTRICT COURT SENDING (REMANDING)

APPELLANTS CASE BACK TO STATE COURT

FOLLOWING APPELLANT'S REMOVING IT

TO FEDERAL COURT

Appellee in support of his motion

supporting Remand and dismissing Jim and

Carlota's appeal quotes. Thermtron Prod-

ucts, Inc. v. Hermansdorfer, (1976) 423

US 336, 96 S CT. 584, 46L. ED. 2d., a

Supreme Court case. Appellee expects us

to believe that this case supports the

remand and quotes a portion of the deci-

sion which states "...It is unquestioned

in this case and conceded by petitioners

this section prohibits review of all

remand orders issued pursuant to Section

1447(C) whether erroneous or not and

Al14

whether review is sought by appeal..."

Appellee failed to state that the Remand

Order in Jim and Carlota's case was not

issued pursuant to anything, in fact, was

totally silent respecting 1447(C)(D).

Appellee also failed to state that in the

above case-~the case he quoted--the

Supreme Court Reversed the Remand by the

district court and reversed the support

of the Remand by the Appellate Court and

concluded that, (1) a Federal District

Court could not remand a properly removed

case for reasons not authorized by 28USCS

1447(C), (2) the District Court had

exceeded its authority; (3) the provi-

sions of 28USCS 1447(D) generally prohi-

biting preview of remand orders applied

only to remand orders issued under

1447(C) and (4) the court stated in part

that "...Neither the propriety of the

A15

removal nor the jurisdiction of the court

was questioned by respondent the district

court in the slightest. Section 1447(C)

was not even mentioned.... We agree with

petitioners the District Court exceeded

its authority in remanding on grounds not

permitted by the controlling statute...."

In Jim and Carlota's case, no grounds

were stated and a certified copy of the

order to state court was not mailed to

state court as required by USCS 1447(C).

The Supreme Court also stated in the

above case that "...Section 1447(D) is

not dispositive of the reviewability of

remand orders in and of itself. That

section and 1447(C) must be construed

together as this court has said of the

predecessors to these two sections in

supra, at 380-381, 81LEDD 289,57 S CT 273

a a en

Al6

and Kloeb v. Armour & Co. 311 US 199,

202, 85 L ED 124, 61S CT.

213(1940)....This means that only remand

orders issued under 1447(C) and invoking

the grounds specified therein--that

removal was improvident and without

jurisdiction--are immune from review

under 1447(D)...." 423 US 346.

It was stated in Self v. Self (1980,

CA 5 Tex) 614F 2d 1026 that a ban on

appellate review of remand applies only

if order was issued on ground specified

in 28USCS 1447(C). In the present situa-

tion it was not.

In Skinner v. American Oil Co.

(1979, SD Iowa) 470 F Supp 229 it was

stated that remand on grounds other than

those expressly enunciated in 28USCS

1447(C) will subject District Court's

action to appellate review and possible

Al?

issuance of writ of mandamus.

IV

ACCEPTANCE OF SUPERSEDEAS BOND ON

.-PPEAL

Per Rule (62(D)(F) of the Rules of

Civil Procedure For The United States

District Courts a supersedeas bond-~-cash

bond=--on appeal would stay execution upon

an appellant and that a judgment debtor

if entitled to a stay according to state

law would be accorded such a stay in dis-

trict court. Appellees would be entitled

to a stay in the state had they main-

tained their action in state court.

V

SANCTIONS SHOULD BE IMPOSED AGAINST

PLAINTIFF APPELLEE FOR HIS WITHOUT

MERIT MOTION TO DISMISS APPELLANT'S

APPEAL OF THE ORDER FOR REMAND TO

STATE COURT

Als

Appellee's request to dismiss appel-

lant's appeal is clearly contrary to

existing law as is his order given to

district court to remand appellant's case

to state court. Appellee an officer of

the court has mislead the court respect-

ing the law as written and case law. His

motion is contrary to existing law and

his purpose is purely to complete under

color of law the theft obtained through

perjury and conspiracy with others the

theft of Jim and Carlota's remaining sav-

ings.

The laws as written and correspond-

ing case law clearly hold that an order

to remand under the circumstances such as

in this case is reviewable on appeal.

Appellee should be aware of this and if

his knowledge as a lawyer is in need of

development this defect should be brought

———— eee.

Alg

to the attention of the court.

Appellee, lawyer Cordova, has cyni-

cally, shamelessly and criminally per-

jured himself, repudiated his law-

yer/client contract, exploited his posi-

tion as an officer of the court, lied

under oath and manipulated the courts and

figuratively speaking sold his soul for,

rather than 40 pieces of silver, the life

savings of his victims. Such behavior

should be punished.

As a result of this pattern of

wrongful conduct by plaintiff/appellee,

defendants/appellants, Jim and Carlota

Should have their property--savings--

returned to them and be awarded the same

amount $14,900 in damages and costs.

Appellants should also be awarded $2,500

as sanctions for appellee's wrongful con-

Guct described herein.

A20

VI

CONCLUSION

The authorization to engage in the

practice of law as a lawyer and officer

of the court should not be allowed to be

used as a license to steal under color of

law the property of innocent victims. If

the laws as written including constitu-

tional guarantees are to have any meaning

Jim and Carlota's state action should be

returned to federal court, their Motion

for Order on Supersedeas Bond Approval

should be approved,--that is, the present

bond on file in state court accepted--and

the appellee prevented from executing

upon appellants in any manner.

A21

DATED: October 12, 1986

James R. Schwander

Carlota Schwander

Defendants/Appellants

in Propria Persona

1919 Ygnacio Valley Blvd., #34

Walnut Creek, Ca. 94598

(415) 935-8326

A22

APPENDIX D

NOT TO BE PUBLISHED COPY

IN OFFICIAL REPORTS

FILED

June 12, 1986

Court of Appeal

First Dist.

RON D. BARROW,

Clerk

ALBERT E. CORDOVA,

Plaintiff and Respondent

vs. A020927

JAMES R. SCHWANDER, Marin

et al:, County

Defendants and Appellants Superior

/Court No.

102688

James and Carlota Schwander (defen-

dants) appeal from a judgment awarding

Albert Cordova (plaintiff) $10,400 plus

$2,000 attorney's fees.

Viewing the evidence in the light

most favorable to the prevailing party,

as we must on appeal (Nestle v City of

Santa Monica (1972) 6 Cal.3d 920,

925-926), the following appear to be the

A23

pertinent facts presented at trial.

On June 9, 1980, defendants hired

plaintiff to act as their attorney in a

real estate fraud case which defendants

had filed against Wells and Bennett Real-

tors in the Superior Court of Alameda

County. On that date defendant James

Schwander executed a contingent fee

agreement. Thereafter, on July 23, 1980,

plaintiff sent defendant James Schwander

a letter, the pertinent portion of which

stated as follows: "As we agreed, my

sole fee in this matter consists of a

fixed payment of $2,500.00 cash, receipt

of which is acknowledged, for preparing

the case for trial, which payment would

be the entire fee if the case settles

prior to trail, plus an additional

$1,000.00 fixed fee payable at the con-

clusion of trial. You are responsible,

A24

however, for all costs incurred, as per

our original agreement. [P] If the case

proceeds to trial, there will be, in

addition, a contingent fee in the amount

of twenty-five percent (25%) of any

recovery between $15,000 and $35,000, and

thirty-three and one-third percent

(33-1/3%) of any recovery in excess of

$35,000." Nothing contained in either

the contingent fee agreement of the let-

ter defined when trial would commence for

the purpose of the fee agreement.

The underlying case was assigned to

a trial department after which time cer-

tain pretrial motions were heard. Prior

to the selection of a jury, a negotiated

settlement was reached between defendants

and the realtor defendants in the under-

lying action. The terms of the settle-

ment were that defendants herein would

A25

receive $15,000 in cash plus the fair

market value of their home, i.e., the

fair market value of the property without

any reduction in value for the concealed

structural and soil defects. A hearing

was subsequently conducted to determine

the value of the property at which

appraisers testified. Defendant James

Schwander represented himself at this

hearing.

At the trial below, plaintiff Cor-

dova testified that he and defendants had

Orally clarified the terms of the agree-

ment on four different occasions. The

first time was at the conclusion of a

deposition of one expert witness. At

that time the parties agreed that trial

would be deemed to have commenced on

December 1, 1980. The second occasian

was during the course of the settlement

A26

discussions before Judge Vukasin. Plain-

tiff asked Mr. Schwander, "'[d]Jo we have

any dispute whatsoever that the trial has

in fact commended'" and defendant replied

in the negative. The third occasion was

immediately before a jury was to be sworn

at which time defendant Schwander agreed

that there was no disagreement as to the

free agreement. Finally, plaintiff

stated that when the parties were cele-

brating the completion of the settlement

negotiations, they all agreed that plain-

tiff was entitled to a percentage fee and

were trying to determine how it could be

computed.

James Schwander denied that there

ever had been any agreement concerning

when trial had commenced; he stated that

he had relied on the terms of the written

agreement at all times. However, this

A27

testimony was impeached by his earlier

deposition in which he stated that at the

time of the "celebration" discussion he

believed that the trial had commenced.

It was not until he had "called a few

attorneys" to ask their opinions that he

came to believe that trial had not com-

menced.

On December 4, 1980, plaintiff sent

defendants a letter in which he confirmed

the understanding he believed the parties

had reached during their discussion after

the completion of the settlement negotia-

tions. The letter clearly contemplated

that plaintiff was entitled to a percent-

age of defendants' recovery. In

response, defendant Mr. Schwander sent

plaintiff a letter, dated December 11,

1980, in which he rejected plaintiff's

interpretation of the parties' conversa-

A28

tion, but confirmed that he had offered

to pay plaintiff $3,000 in addition to

the amounts specified in the contracts.

Plaintiff rejected the offer.

Plaintiff testified that he had

worked 172 hours on the case and that his

hourly rate was $75 per hour. He

acknowledged that he had already received

$2,500 towards payment of the total

amount.

Based on this evidence the trial

court found, among other things, that

plaintiff had been discharged by defen-

dants prior to the completion of the ser-

vices for which he had been retained,

that plaintiff was entitled to compensa-

tion for services rendered in quantum

meruit, and that the reasonable value of

plaintiff's services was $12,900. The

court then awarded plaintiff $10,400 (the

A29

value of his services less the $2,500 he

previously had been paid) plus $2,000

attorneys fees pursuant to Business and

Professions Code section 6204, subdivi-

sion (qd).

I.

Whether the valuation hearing

On appeal defendants generally chal-

lenge the amount of the judgment awarded

to plaintiff by the trial court. They

first assert that plaintiff had been paid

in full under the terms of the contract.

This assertion is apparently based on the

premise that the underlying action never

proceeded to tria? and no oral agreement

was made to the contrary.

""A trial is the examination before

a competent tribunal, according to the

law of the land, of the facts or law put

in issue in a cause for the purpose of

A30

determining such issue. When a court

hears and determines any issue of fact or

of law for the purpose of determining the

rights of the parties, it may be consid-

ered a trial.'" (City of Pasadena v.

Superior Court (1931) 212 Cal. 309, 313,

quoting Treqambo v. Comanche Mill & Min.

Co. (1881) 57 Cal. 501, 505; see also,

McDonough Power Equipment Co. v. Superior

Court (1972) 8 Cal.3d 527, 531; 7 Witkin,

Cal. Procedure (3d ed. 1985) S 1, p. 18.)

In the instant action plaintiff cor-

rectly described the status of the under-

lying proceedings in his trial brief:

"Although many elements of the underlying

case were resolved, such as the cash pay-

ment of $15,000.00 as additional damages,

a critical issue of fact remained uncer-

tain and unresolved -- the value of the

real property without defect. This issue

A31

would determine Defendant's ultimate

recovery, and was therefore a significant

and material element of the case." There

is no dispute that a hearing on the value

of defendants' property was conducted at

which evidence was given and a decision

was reached. Accordingly, we find that a

trial was held.

Defendants maintain that even if

there was a trial, the contract was

ambiguous and should be interpreted most

strongly against the party drafting the

instrument. (Taylor v. J. B. Hill Co.

(1948) 31 Cal.2d 373, 374). We reject

this argument for two reasons. First, as

stated above, the law is clear on the

definition of what constitutes a trial.

Second, the settlement which took place

in the present case was unlike the typi-

cal settlement that terminates all fac-

A32

tual disputes. Clearly defendants knew

or should have known that the services of

a retained attorney would normally be

used in such subsequent valuation pro-

ceedings as occurred here. Because we

conclude the hearing constituted a trial,

it is clear that the record supports the

court's determination that "Cordova was

discharged by defendants prior to the

completion of the case and prior to the

completion of the services for which

plaintiff was retained." It is also

clear that had plaintiff not been termi-

nated, he would have been entitled to the

contract contingency fee.

ii.

Whether quantum meruit recovery is

limited to the contract price.

Defendants next contend that even if

plaintiff is entitled to a quantum meruit

recovery, the recovery should be limited

A33

to the contract price.

In Fracasse v. Brent (1972) 5 Cal.3d

784, the California Supreme Court held

that an attorney employed under a contin-

gent fee contract and discharged prior to

the occurrence of the contingency is

entitled to quantum meruit recovery for

the reasonable value of services rendered

up until the time of discharge, rather

than the full amount of the agreed con-

tingent fee. (Id., at p. 791; see also,

Spires_v. American Bus Lines_(1984) 158

Cal.App.3d 211).

Traditionally, quantum meruit recov-

ery is not limited by the contract price

and a contract cap is inconsistent with

the basis of quantum meruit as an alter-

native to the agreed price. (See gener-

ally, Note, Limiting the Wrongfully Dis-

charged Attorney's Recovery to Quantum

A34

Meruit -Fracasse v. Brent (1973) 24 Hast-

ings L.J., 773-774.)

Prior to Fracasse, attorneys were

allowed to sue for the contract price or

for quantum meruit if they were dis-

charged without cause (see Echlin v.

Superior Court (1939) 13 Cal.2d 368,

375-376), but were limited to the reason-

able value of their services when dis-

charged for cause. (Fracasse, supra, at

pp. 788-789; Salopek v. Schoemann (1942)

20 Cal.2d 150). Even so, in case of dis-

charge without cause it was held that

"where the contract amount is less than

the reasonable value of the services,

recovery is nevertheless limited to the

fee fixed by the contract. [Citation.]"

(Moore v. Fellner (1958) 50 Cal.2d 330,

342.)

Fracasse did not address the precise

A35

issue of a contract cap on quantum meruit

recovery; however, the court did conclude

that "the attorney's action for reason-

able compensation accrues only when the

contingency stated in the original agree-

ment has occurred -- i.e., the client has

had a recovery by settiement or judgment.

It follows that the attorney will be

denied compensation in the event such

recovery is not obtained." (Id., at p.

792, fn. omitted.)

The court also explained: "To the

extent that such discharge occurs ‘'on the

courthouse steps,' where the client

executes a settlement obtained after much

work by the attorney, the factors

involved in a determination of reason-

ableness would certainly justify a find-

ing that the entire fee was the reason-

able value of the attorney's services.

el

A36

(Citations. 3" (ig., at . 779i.)

We believe that implicit in Fracasse

is the notion that the contract price

sets limits on quantum meruit recovery by

the discharged attorney. Clearly, Fra-

casse holds that if there is no recovery

by client, the attorney may not recover

compensation. It follows that the dis-

charged attorney may not recover more in

quantum meruit than he would have recov-

ered under the contract. This is consis-

tent with Moore and other pre-Fracasse

authority limiting recovery in quantum

meruit to no more than the contract fee.

It would be strange, indeed, to conclude

that by erasing the distinction between

discharge for cause and without cause

Fracasse allowed attorneys discharged for

Cause to recover more in quantum meruit

than they could have recovered previously

A37

under that theory.

Moreover, our conclusion is consis-

tent with the stated policy concern of

Fracasse that favors the client's abso-

lute right to discharge his attorney at

any time. (Id., at p. 786.) As recog-

nized by the majority: "'The right to

discharge is of little value if the

client must risk paying the full contract

price for services not rendered upon a

determination by a court that the dis-

charge was without legal cause. The

client may frequently be forced to choose

between continuing the employment of an

attorney in whom he had lost faith, or

risking the payment of double contingent

fees equal to the greater portion of any

amount eventually recovered ... . The

uncertain position of the client in such

circumstances is illustrated by the

A38

record in the present case where the

trial court found the discharge was with-

out cause and this court has made a con-

trary finding and concluded the discharge

was justified. Unless a rule is adopted

allowing an attorney as full compensation

the reasonable value of services rendered

to the time of discharge, clients will

often feel required to continue in their

service attorneys in whose integrity,

judgment or capacity they have lost con-

fidence.' (Salopek v. Schoemann, supra,

at pp. 156-157; see Denio v. City of

Huntington Beach, supra, 22 Cal.2d 580,

603-604.)" (Fracasse, Supra, at pp.

789-790.)

Any other conclusion would place a

practical limit on the client's absolute

right to discharge an attorney in whom he

has lost confidence.

A39

The result we reach is also consis-

tent with cases following Fracasse such

as Spires v. American Bus Lines, supra,

158 Cal.App.3d 211 wherein the court

held: "where, as here, the contingent fee

is insufficient to meet the quantum

meruit claims of both discharged and

existing counsel, the proper application

of the Fracasse rule is to use'an appro-

priate pro rata formula which distributes

the contingent fee among all discharged

and existing attorneys in proportion to

the time spent on the case by each. Such

a formula insures that each attorney is

compensated in accordance with work per-

formed, as contemplated by Fracasse,

while assuring that the client will not

be forced to make a double payment of

fees." (Id., at p. 216, emphasis added.)

It does not follow, however, that

A40

appellants are entitled to the cap upon

plaintiffs' recovery which they claim or

that they are entitled to reversal on

this account. Appellants contend they

actually recovered only $15,000 in cash

and thus, under the original agreement

plaintiff would, presumably, not have

been entitled to any percentage recovery

of such award. Thus, plaintiff would be

limited to a $3,500 fee, $1,000 above the

$2,500 he received at the outset. Appel-

lants support their argument by asserting

that the $180,000 price paid to purchase

their home was the value of the home in

its damaged condition, contrary to the

terms of the settlement agreement. They

refer to a single page of the transcript

of the valuation hearing where appellant

Schwander in cross-examining the court's

appraiser elicited the following testi-

A4l

mony:

"BY MR. SCHWANDER:

"QO: Are you aware, Mr. Holabird,

that this property was to be appraised on

the basis of no stigma, no structural

defects and no soil defects?

"A: I believe I said awhile ago

that I discussed it with the court

beforehand and he told me if I thought it

had an effect, to use it.

"QO: Did you deduct for any struc-

tural problems, soils problems or stigma

in your conclusions?

"THE COURT: We have covered that

already.

"MR. SCHWANDER: In my judgment, it

is not that clear.

"THE COURT: It is annoying, but it

is something that can be lived with.

"BY MR. SCHWANDER:

A42

"Q: Did you reduce your evaluation

determination for these factors?

"A: I undoubtedly did. No idea how

much I would have reduced it, however."

This testimony does not by itself

establish that the court actually awarded

the damaged value of the residence. The

record does not disclose what sum the

court in the underlying case concluded

represented the difference between the

damaged anda undamaged market value of the

property, whether the court in the

instant case found such sum the measure

of appellants' recovery, or whether the

court concluded appellants' recovery was

to be measured by the entire $195,000

amount. The Statement of Decision does

not address this issue and appellants'

request for such statement of decision

and objections to the proposed statement

A43

did not specify this issue as one to be

determined. Had this omission been

brought to the attention of the court, we

could not have presumed "that the trial

court decided in favor of the prevailing

party as to those facts or on that

issue." (Code of Civ. Proc., S 634; see

Code Civ. Proc., S 632; 7 Witkin, Trial,

supra, S 399, p. 405.)

Absent such a specification of

issues, we indulge the usual presumption

in favor of the prevailing party. Plain-

tiff Cordova testified at trial that one

of appellants' appraisers “had concluded

that the difference in value of the prop-

erty with and without defect was $30,000"

and that plaintiff believed $45,000 (the

$30,000 sum plus the $15,000 cash pay-

ment) represented the recovery to which

the percentage formula would be applied.

A44

If so, the contingency fee recover-

able under the agreement would have

exceeded the $10,400 fee award.?}

Therefore, the contract limitation

would not operate. @

The judgment is affirmed.

Kline, P. J.

WE CONCUR:

Rouse, J.

lfhe method for calculation of the

award under the contract itself is not

entirely clear. We assume the trial

court read the agreement to award Cordova

33-1/23% of the total $45,000 recovery;

meaning the cap would be $15,000. If the

court read the contract to provide 25% of

the first $35,000 and 33-1/3% of the

remaining $10,000, the cap would be

$12,083. This figure exceeds the $10,400

net award.

2plaintiff seeks attorneys fees on

appeal. No good reason appears to depart

from the standard practice of each party

bearing its own fees, with costs to the

prevailing party.

A45

APPENDIX E

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ALBERT E. CORDOVA,

Plaintiff and Respondent A_0209

VS.

JAMES R. SCHWANDER and

CARLOTA SCHWANDER

Defendants and Appellants

PETITION FOR REHEARING

On Appeal from the Judgment of the

Superior Court of the, State of Califor-

nia, Marin County.

Judge, Richard H. Breiner

A46

TOPICAL INDEX

Page No.

TABLE OF AUTHORITIES. ..... « A49

POINT 1. GENERAL OBSERVATIONS

OF VIOLATIONS . .<« « «@ A5l1

POINT 2 THE CASE AND ISSUE IS

SIMPLE, BUT THE LAWYER

JUDGES HAVE ATTEMPTED

TO CHANGE THE MEANING

OF THE ENGLISH LANGUAGE

AND HAVE BLATANTLY

DISTORTED AND VIOLATED

THE LAW OF THE LAND... AS

LJ

A47

POINT 3. EXAMPLES OF YOU THREE

APPELLATE COURT

JUDGES ATTEMPTING TO

DISTORT AND TWIST

THE LAW, CONCEAL ON

RECORD FACTS, PULL

STATEMENTS OUT OF

CONTEXT AND

CONCEAL THE FACTS .. . A57

POINT 4. THE 4 JUDGES

EXCEEDED THE MAXIMUM

PAYMENT THAT THE LAWYER

DRAFTED CONTRACT WOULD

HAVE REQUIRED (IN

THEIR ENTHUSIASM TO

ENRICH LAWYER CORDOVA

WITH THE LIFE SAVINGS

OF JIM AND CARLOTA IF

(1) TRIAL HAD STARTED:

(2) THE LAWYER DIDN'T

A48

REPUDIATE THE TERMS OF

HIS OWN CONTRACT WHICH

HE DRAFTED: (3) THE

LAWYER DIDN'T CAUSE

HIS OWN TERMINATION

BY REPUDIATING THE

CONTRACT, ATTEMPTING

TO DELAY AND SABOTAGE

THE PRE-TRIAL SETTLE-

MENT AGREEMENT; (4) JIM

AND CARLOTA HAD

RECEIVED THE UNDAMAGED

FAIR MARKET VALUE FOR

THEIR PROPERTY; (5)

THE RECOVERY WAS

$15,000 THAT THE

DOCUMENTED EVIDENCE

CONFIRMED . ... e« « -« A7 1

A49

TABLE OF AUTHORITIES

Page No.

Deeeee ee 6 6 4 © 8 8 0

CASES: Taylor v. J. B. Hill +

Co. (1948 31 Cal.

2G 373, 374;

Reynolds v. Forosis

Fruit Co. (1901) 133

Cal. 625, 630; Bradner

Vv. Vasquez (J954) 43

Cal. 2d 147, 151; Hicks

v. Clayton (1977) 67

Cal. App. 3d 251, 262;

Moore v. Fellner (1958)

50 Cal. 2d 330.

A50

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ALBERT E. CORDOVA,

Plaintiff and Respondent, A020927

Vs.

JAMES R. SCHWANDER and

CARLOTA SCHWANDER,

Defendants and Appellants

/

PETITION FOR REHEARING

On Appeal from the Judgment of the

Superior Court of the State of

California, Marin County

JUDGE, RICHARD BREINER

To judges P. J. Kline, J. Rouse and

J. Smith of the Court of Appeal of the

State of California, First Appellate Di

ee me he

A51

POINT 1

GENERAL OBSERVATIONS OF VIOLATIONS

From the first few words uttered by

one of the judges at oral argument of

this appeal it was clear that discrimina-

tion, bias and a predetermined decision

had been made. The judges left no doubt

by the tone and type of questions and

response to answers that they had become

part of a bay area judge conspiracy

respecting James and Carlota Schwander.

The above is further supported by the

written record and is accurate. It is

also accurate that the filing of this

PETITION FOR REHEARING is a total waste

of time and energy. However, perhaps

some public benefit may result from this

effort through one of the copies of this

paper which is heing distributed to a

variety of the media, etc., ending up

A52

with a paper, etc., that is not intimi-

dated or corrupted and thus not support-

ing, through silence, a corrupt legal

profession. No member of society would

sit in silence while his or her life sav-

ings or home or that of his or her fam-

ily's is being "stolen" by a segment of

society that is totally out of control.

That is, by a guild of lawyer judges

trampling the laws of the land to enrich

other nonbexe, ot their guild (in some

instances themselves), as demonstrated by

the tyranny in this case which is no

accident, but has been carefully plotted.

Should you three judges of division

two, or any one of you, believe that you

can justify your position of participat-

ing in the theft of my family's savings

in your goal to enrich a fellow lawyer,

or can prove that it is not outright

A53

theft under the guise of law, I challenge

you to join me on television and let the

people decide. This same invitation is

also extended to two lawyer judges on

division four, your associates Carl

Snderec and

M. O. Sabraw who recently decided

that I can't sue a lawyer who damaged me

for negligence and, at the same time,

decided that their decision should be

hidden, that is, they refused to publish

is as you have yours in the official

records. Its so obvious what is qoing on

one doesn't even have to ask... . why.

POINT 2

THE CASE AND ISSUE IS SIMPLE, BUT

THE LAWYER JUDGES HAVE ATTEMPTED TO

CHANGE THE MEANING OF THE ENGLISH LAN-

GUAGE AND HAVE BLATANTLY DISTORTED AND

VIOLATED THE LAW OF THE LAND.

0 tT

A54

The two (2) contracts drafted by the

lawyer Cordova, who the judges are dis-,

torting both the English language and the

law of the land to enrich, required a

$2500 payment to lawyer Cordova to pre-

pare James and Carlota's case for trial

which $2500 he was paid - plus a $1,000

additional payment if trial commenced.

In addition a percentage formula fee was

to be paid the lawyer on the difference

between the undamaged value of James and

Carlota's home (which lawyer judge John

Vukasin defrauded them out of) and the

damaged value of their home. If any

additional cash was received the amount

was to be added to the referenced differ-

ence or recovery.

The percentage formula was the fol-

lowing:

25% of the difference (recovery)

A55

between $15,000 and $35,000 and

33 1/3% of any difference (recovery)

in excess of $35,000. No percentage

was to apply to the lst $15,000 of

any recovery.

Lawyer Breiner also known as a judge

and you 3 lawyer judges were provided

with the court appraiser's sworn state-

ment which was that the value he gave the

house was a value after reduction for

defects, or a damaged value, not an

undamaged value.

In addition to damaged value which

equaled no recovery, James and Carlota

received a $15,000 cash payment.

Using the terms of the lawyer's con-

tract with James and Carlota and deduct-

ing $15,000 from total recovery, which

sum no percentage payment was to be

applied to per the written contract, the

A56

lawyer was not entitled to any further

payment above the original $2,500 he was

earlier paid since there was no recovery.

Damaged value equals no recovery and a

percentage formula applied to zero equals

ero. However, the judges want it to

appear that trial started regardless of

the fact that the settlement was a pre-

trial settlement and that James and Car-

lota, the victims were on record for a

jury trial and never waived their CONSTI-

UTIONAL RIGH e) RY TR - If by

some wild stretch of the enrich the law-

yer imagination and goal of the 3 lawyer

judges an illegal trial commenced, the

maximum additional sum lawyer Cordova

would be contracturally entitled to would

be $1,000. The settlement which judge

Vukasin deceived the Schwanders into

entering was intended to avoid a trial

A57

not to create one.

POINT 3

EXAMPLES OF YOU THREE APPELLATE

COURT JUDGES ATTEMPTING TO DISTORT AND

TWIST THE LAW, CONCEAL ON RECORD FACTS,

PULL STATEMENTS OUT OF CONTEXT AND CON-

CEAL THE FACTS

You judges say that you must view

the evidence in the light most favorable

to lawyer Cordova and you use as law some

1972 published opinion of 3 other lawyer

Judges at your facility. Are you trying

to tell us that this so called decision

authorizes you to distort the facts and

conceal other * tne record facts. I

thought you 3 judges said view the evi-

dence. Your concealing the evidence,

using heresay lawyer Cordova self-serving

Statements not documented by any sup-

ud

A58

mitted evidence by him to support his

self-serving statements and use this oral

Cordova heresay and call it evidence and

use it over the on record submitted docu-

mentation of James and Carlota which is

part of the record in this case, is not

following any laws as written that I have

ever heard of and is as prejudicial and

bias as anything I have encountered.

Several examples of what I refer to fol-

low:

You state the contract didn't spe-

cify when trial would commence. Trial

commences per the common standard and the

common standard when a jury trial com-

mences - which is the only type of trial

I requested - is when the jury is impa-

neled. No jury was ever impaneled and we

had a constitutional right to a jury

trial! We only agreed in the pre-trial

A59

settlement to allow Vukasin the judge to

determine, under honest standards, the

undamaged value of our property. We did

not agree to a non-jury, or any, trial.

Our position is that any trail in viola-

tion of constitutional guarantees and

right is an illegal trial, is null and

void and in fact is no trial at all.

Therefore, Cordova is not entitled to any

additional fee or percentage above what

he had been paid. The attempt to get the

Schwanders and enrich fellow lawyers

while knowingly violating the Constitu-

tional rights of the Schwanders, etc.,

should subject al] those involved to

Civil damages caused the Schwanders and

to additional penalties under RICO (the

federal Racketeering and Corrupt Organi-

zations Act).

Further on the subject of the trial

A60

commencing or not, the judge, Vukasin,

stated during the pre-trial settlement of

the underlying case that ".. .tI am

pleased to inform you you have a settle-

ment of this case... ." See trial

transcript of July 23, 1982 (Cordova vs.

Schwander) page 18, lines 17 through 20,

page 41, line 28 and page 42, lines 1-21.

This position we supported with the evi-

dence as Defendant's Exhibit A in evi-

dence.

You quote as evidence the not sup-

ported by any documentation oral state-

ments of lawyer Cordova in your ongoing

activity to enrich him with the life sav-

ings of my family tied up in the appeal

bond. You state ". . . plaintiff Cordova

testified . . . he and the defendants had

orally clarified the terms of the agree-

ment on four different occasions

Aél1

The second occasion was during the course

of the settlement discussions before

Judge Vukasin. Plaintiff asked Mr.

Schwander, "[d]o we have any dispute

whatsoever that the trial has in fact

commencea" and defendant replied in the

negative ... "™ Now, any pérson reading

the above quote would believe that it is

factual and that it is taken from the

transcript of the settlement discussions

before Judge Vukasin. our esentation

is a total deception. I am looking at a

transcript of the settlement discussions

which you also had as part of the record

and nowhere is the preceding quote "[d]Jo

we have any dispute whatsoever that the

trial had in fact commenced 1) included.

It is not included because it never hap-

pened! Judge Breiner also had the bene-

fit of this information. The same

A62

applies to the alleged other 3 occasions

which you reference and which is undocu-

mented heresay; the self-serving state-

ment of lawyer Cordova who lied during

the enrich the lawyer at all cost trial

which caused this appeal. The perjury he

committed under oath was documented as

you 3 judges and judge, Breiner know.

Regardless, you use this proven per-

jurer's statements as to when I was sup-

pose to have agreed trial commenced per

the terms of our contract with him and

his unsupported with any evidence other

than his heresay that my recovery was

$45,000, rather than the $15,000 recovery

which the documents on record support.

Respecting the lawyer's lies, during

the trial of July 23, 1986 before Judge

Breiner we pointed out that lawyer Cor-

dova was concealing from us case settle-

A63

ment information in 1980 during the set-

tlement period following the pre-trial

settlement on December 3, 1980. However,

Cordova denied he was representing us at

the time and this was an outright lie.

The Substitution of Attorney's form docu-

ments that he was attorney of record

until January 18, 1981 and this document

was part of the record and filed January

27, 1981 and presented as an exhibit.

See trial transcript of July 23, 1982,

page 45, lines 13-28, page 46, lines 1-28

and Declaration of James R. Schwander an

Carlota Schwander In Support of Defen-

dant's Motion For New Trial, page 4,

lines 14-28. The lawyer didn't deny con-

cealing the document, he just lied by

stating on the record that he was repre-

senting us.

Lawyer Cordova lied again during

A64

trial by stating he was not aware that we

had hired prior, before we contacted him,

until 1-1/2 months subsequent to his

agreement with us. However in the

Reports Transcript of July 23, 1980, the

lawyer stated that we brought in 2 boxes

full of material. Can you imagine that,

2 boxes of material that fails to dis-

close we had prior attorneys on the case

prior to him. further, perjury and lies

of lawyer Cordova are documented.on page

84 of Clerks Transcript on Appeal lines

14-28 and documented with an Exhibit,

page 103-104 if Clerk's Transcript on

Appeal.

Despite all the evidence respecting

the dishonesty of lawyer Cordova you use

his self-serving heresay undocumented

evidence to calculate what he states we

recovered above damage value for our home

A6é5

in the original case settlement.

Of course one reason you attempt to

discredit our testimony and state that we

impeached ourselves is that it is an

attempt to lay a foundation for your use

of lawyer Cordova's undocumented and

unsupported with evidence statement that

my appraiser had concluded that the dif-

ference in value of the property with and

without defect was $30,000 and that the

$15,000 cash payment added to this repre-

sents my recovery to which the percentage

formula should be applied. No evidence

Was presented that the difference in

value between damage and no damage was

$30,000 or that the damaged value of the

property was $150,000, but you take this

heresay self-serving statement of the

lawyer as fact. You accept it as taking

priority over the submitted evidence of

A66

the courts own appraiser who stated that

he reduced the undamaged value of the

property for defects and that this

reduced value after deducting for defects

was $180,000. You ignored further expert

evidence, which was submitted and in the

record, of my appraiser which stated that

the undamaged value of the property was

$195,000. This was submitted and

attached as EXHIBIT 1 to our Motion of

January 21, 1981 to judge Breiner for a

new trial and made available to you.

This and the court's appraiser responding

to my questions respecting his valuation

of the property as follows:

"QO. Are you aware, Mr. Holabird,

that this property was to be appraised on

the basis of no stigma, no structural

defects and no soil defects?

A . . e 1 discussed it with the

A67

court beforehand and he told me if I

thought it had an effect, to use it.

Q. Did you deduct for any

A. I undoubtedly did...."

It is not difficult to understand

that the court's appraiser thought the

defects effected value and thus his valu-

ation of $180,000 was a damaged value

after allow for the defects! The court's

appraiser stated that he reduced the

value for defects.

You attempt to present the uncon-

firmed undocumented heresay as fact. You

use it as though it was submitted by God

rather than that of a self-serving lawyer

attempting to be rewarded by you for 5

times more than the terms of his contract

require. The documented record confirms

that at all times we attempted to hold

the lawyer to the terms of the written

A68

contracts he drafted and not play around

with changing the terms and eonturine up

dates when trial was suppose to have

started for the benefit of lawyer Cor-

dova.

Your next questionable technique to

enrich lawyer Cordova with our cash

appeal bond followed the above and

involved an attempt to discredit us, to

make it appear that the record shows that

we lied and that we impeached ourselves.

You attempt this on page 3 second para-

graph of your pre-ordained decision. You

went so far in your attempt that you took

out of context one of my deposition

statements and deliberately omitted the

following sentence in the deposition

statement which totally destroy (as

stated on page 33 line 1-14 of the trial

transcript of Cordova v. Schwander which

A69

quoted the deposition) your attempt to

Support your accusation that my testimony

was impeached by my earlier deposition in

which you stated that I stated that at

the (to use your words) "celebration"

discussion that I believed the trial had

commenced. You went on to state that it

was not until I "checked a few a attor-

neys" to ask their opinions that I came

to believe that trial had not commenced.

The documented written record confirms

that in the deposition sentence you

excluded my statement:

- »« »« Excuse me. Excuse me. Let me

back off. I'm not sure. It seems

to me that, trying to remember, that

I--I wasn't certain at that time

whether trial had actually commenced

Or not, really. I believe that is

more factual information that I just

didn't know if trial had commenced

or not.

Now we had this expert evidence in

the record that we received 2a damaaqed

A70

value for our prior home. . . not an

undamaged value. We have further docu-

mented evidence in the court record from

my appraiser, an MAI, that the undamaged

value of our prior home was $195,000.

This being the case, our receiving

$180,000 for a $195,000 home plus a sepa-

rate cash payment of $15,000 equates with

a documented $15,000 recovery . . . not

the undocumented $45,000 heresay recovery

alleged by lawyer Cordova. You an. judge

Breiner accepting self-serving undocu-

mented heresay over documented evidence

is covert, bias prejudicial and a viola-

tion of our Constitutional and Civil

Rights and I'm certain, as you are, a

violation of others laws as well as case

law.

A71

POINT 4

THE 4 JUDGES EXCEEDED THE MAXIMUM

PAYMENT THAT THE LAWYER DRAFTED CONTRACT

WOULD HAVE REQUIRED (IN THEIR ENTHUSIASM

TO ENRICH LAWYER CORDOVA WITH THE LIFE

SAVINGS OF JIM AND CARLOTA) IF (1) TRIAL

HAD STARTED: (2) THE LAWYER DIDN'T REPU-

DIATE THE TERMS OF HIS OWN CONTRACT WHICH

HE DRAFTED: (3) THE LAWYER DIDN'T CAUSE

HIS OWN TERMINATION BY REPUDIATING THE

CONTRACT, ATTEMPTING TO DELAY AND SABO-

TAGE THE PRE-TRIAL SETTLEMENT AGREEMENT;

(4) JIM AND CARLOTA HAD RECEIVED THE

UNDAMAGED FAIR MARKET VALUE FOR THEIR

PROPERTY; (5) THE RECOVERY WAS $45,000

NOT THE $15,000 THAT THE DOCUMENTED EVI-

DENCE CONFIRMED.

The judges expect the readers to

believe that the court's appraiser

appraised the property on an undamaged

A72

value basis regardless of the appraiser

stating that he reduced the value for

damage. Naturally, the courts appraiser

would have reduced it to $150,000 if that

was the damaged value as the judges and

lawyer Cordova would like everyone to

believe based upon Cordova's heresay

undocumented evidence of the alleged

value at the time of the settlement, and

his heresay statement that the recovery

was $45,000.

To ignore the documented evidence

and to accept the self-serving statements

of Cordova in place of the documented

evidence as to the damaged value of the

property and applying the contract for-

mula, which the judges claim that they

don't understand, we develop:

Recovery per Cordova..... $45,000 ($30,000

+ $15,000 cash)

A73

Recovery amount between

$15,000 & $35,000 = $20,000

Percentage to be applied..... 25%

$ 5,000

Recovery amount between

35,000 and $45,000 = $10,000

Percentage to be applied = 33_1/3%

$ 3,330

Change to prepare case for

ee CE as i a -s o hb bb oho 0b oR 2,500

Additional $1,000 fee if

ee $_1,000

Total $11,833

Additional award by judge

Breiner to lawyer for

suing Jim and Carlota......... $_2,000

Total $13,833

Actual JUGGMONE..ccccsceocs oseece $14,900

Additional bonus given lawyer

COSGOVS BY COUPE sscciccocececsos $ 1,067

A74

That's correct, the judges even gave

the lawyer $1,067 above what the contract

would have provided if its requirements

had been met.

For every angle the decision from

the lower court (judge Breiner) to the

appellate court judges cannot be justi-

fied and is a violation of case law and

the law of the land. Case law sets the

contract as a limit of recovery so we

don't need as you state to know how judge

Breiner developed his figures. Facts are

facts and Breiner ignored the facts and

the law to enrich another lawyer.

PENDING FINANCIAL STATUS OF LAWYER

AND CLIENT RESULTING FROM COURTS ATTEMPT

TO ENRICH LAWYER CORDOVA WITH HIS/THEIR

VICTIMS SAVING:

A75

Respondent

LAWYER PLAINTIFF

Original Payment $ 2,500

Gifts by Judges 12,400

$14,900 + 100% interest

Appellant

NON-LAWYER VICTIMS

Recovery $15,000 (above

damage

value)

Less judge awards

to lawyer $14,900

$ 00 less

costs,

interest,

etc.

Its not only a violation of case law

and you know exactly what case law, but a

violation of the 4th, 7th, 8th and 14th

amendments to the Constitution of The

United States to support unsupportable

violations of JIM and CARLOTA's Constitu-

tional and Civil Rights. Ever your

A76

attempts to conceal, distort and misrep-

resent the facts cannot prevent the light

of truth and fact from revealing the

enormity of this white collar under the

guise of law, crime. Respecting contract

disputes, etc. the following case law

supports Jim and Carlota: Taylor v. J.

B. Hill Co. (1948) 31 Cal 2d. 373, 374;

Reynolds v. Sorosis Fruit Co. (1901) 133

Cal. 624, 630; Bradner v. Vasquez (1954)

43 Cal. 2d 147, 151; Hicks v. Clayton

(1977) 67 Cal. App. 3d 251,262; Pixweve

Aircraft Co. 61 Cal. App 2d 21, 24; and

Moore v. Fellner (1958) 50 Cal. 2d 330,

and Hernandez v. Fujioka (1971) 40 Cal.

App. 3d 294, 302.

Not only truth, honesty and morality

require that the present decision be

reversed, but the law of the land, as

written, demands that it be reversed.

A77

For if it is not, lawyers will be able to

continue to ignore contracts with

clients, change written contracts in any

manner and as often as they decide at any

time they decide, make any unsupported by

the evidence statements that best meets

their needs and have the heresay accepted

as truth by lawyer judges over documented

evidence of non-lawyers. Lawyers will

continue to feel secure that their

actions, regardless of how vile or cor-

rupt will be supported by lawyer judges.

DATED: July 26, 1986

James R. Schwander

Carlota Schwander

Defendants and

Appellants

In Pro Per

cc: The US Attorney (Russoniello)

The Justice Department

The Media

Others

A78

To sin by silence when they should

protest makes cowards of men.

Abraham Lincoln

Every person who, under color of any

statute, ordinance, regulation, cus-

tom, or territory, subjects, or

causes to be subjected, any citizen

of the United States or other per-

sons within the jurisdiction thereof

to the deprivation of any rights,

privileges or immunities secured by

the Constitution and laws, shall be

liable to the party injured in an

action at law, suit in equity, or

other proper proceeding for redress.

United States Code Annotated, Title

42, 83 i963.

A79

APPENDIX F

FILED

OCT 15 1982

PETER MEYER

Marin County Clerk

by P. Bradley, Deputy

IN THE SUPERIOR COURT OF THE STATE

OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN MATEO

ALBERT E. CORDOVA, No. 102 688

Plaintiff,

RHB JUDGMENT

vs.

JAMES E. SCHWANDER,

ot. Gi,

Defendants

/

The above entitled cause came on

regulary for trial on July 23, 1982, in

Department 6 of the above entitled court,

the Honorable Richard H. Breiner, Judge,

presiding, without a jury, a jury having

been expressly waived, and was actually

tried on that date. Plaintiff, Albert E.

Cordova appeared In Propria Persona and

A80

James E. Schwander and Carlota Schwander

appeared by Terrence Andrews, their

attorney.

Evidence, both oral and documentary,

was introduced on behalf of all parties

and the cause was argued and submitted

for decision. The Court, having consid-

ered the evidence and heard the arguments

of counsel, and being fully advised,

makes the following Decision:

IT IS ORDERED, ADJUDGED, AND DECREED

that plaintiff, Albert E. Cordova have

and recover from defendants, James E.

Schwander and Carlota Schwander the sum

of $10,400 with interest thereon at the

rate of ten percent (10%) per annum from

the date of the verdict until paid, -

together with attorney's fees in the sum

of $2,000 and costs of suit.

WITNESS, the honorable Richard H.

A81

Breiner, Judge of this court, and my hand

and seal of this Court, this

day of OCT 15 1982 , 1982.

CLERK OF THE SUPERIOR COURT

ORDER

Let the foregoing judgment be entered.

Date: October 15, 1982

Richard Breiner

Judge

ce:

Albert E. Cordova, Esq.

818 Fifth Ave., Suite 208

San Rafael, CA 94901

Terrence W. Andrews, Esq.

1091 Fifth St.

Napa, CA 94559

A82

APPENDIX G

Robert B. Ingram Telephone

Albert E. Cordova (415) 472-5450.

Law Offices of

ROBERT B. INGRAM

4340 Redwood Highway, Suite 133

San Rafael, California 94903

July 23, 1980

Mr. James R. Schwander

2235 Melvin Road

Oakland, California 94602

Re: Schwander v. Wells & Bennett,

et al.

Dear Mr. Schwander:

This will confirm our agreement as

to my continued representation of you and

your wife in your action against Wells &

Bennett, Realtors, et al.

First, I will attempt to advance the

A83

case for trial at the earliest available

date, with the understanding that I will

inform the court that the additional

delay from September 11, 1980, the first

available date suggested by the calendar

clerk, to December 1, 1980, the date cur-

rently set, was occasioned in part by my

failure to appear on June 27, 1980,. to

urge observance of Local Rule 507 of the

Local Rules of the Superior Court of the

County of Alameda.

Second, I will make another motion

to amend the complaint, once we have a

decision on the motion to advance.

Finally, with regard to my fees for

representing you in this case, there will

be no additional charge for the services

indicated above. As we agreed, my sole

fee in this matter consists of a fixed

payment of $2,500 cash, receipt of which

A84

is acknowledged, for preparing the case

for trail, which payment would be the

entire fee if the case settles prior to

trial, plus an additional $1,000.00 fixed

fee payable at the conclusion of trial.

You are responsible, however, for all

costs incurred, as per our original

agreement.

If the case proceeds to trial, there

will be, in addition, a contingent fee in

the amount of twenty-five percent (25%)

of any recovery between $15,000.00 and

$35,000.00, and thirty-three and one-

third percent (33-1/3%) of any recovery

in excess of $35,000.00.

I trust that our relationship will

continue on an amicable and cooperative

basis and I look forward to my continued

representation in this case.

A85

Sincerely,

ALBERT E. CORDOVA

AEC/jrw

JAMES R. SCHWANDER

ae pe ee ee =" -

AFFIDAVIT OF SERVICE

STATE OF CALIFORNIA )

)SS:

COUNTY OF CONTRA COSTA)

I, G. S. Dindral, depose and state

under penalty of perjury that the

following facts are true and correct:

I am a citizen of the United States,

over the age of 18 years and not a party

to or interested in the within entitled

cause. I served by mail on each of the

parties three copies of the foregoing

petition for Writ of Certiorari enclosing

true copies of said document in a sealed

envelope with postage fully prepaid in

the United States mail at Walnut Creek,

Ca. and addressed as follows:

Albert E. Cordova,

A Professional Law Corporation

Stephen Ciotoli

820 Fifth Street, Suite B

San Rafael, Ca. 94901

Office of the County Clerk

Marin County

Hall of Justice, Rm. 151

San Rafael, Ca 94903

Office of the Clerk

United States Court of Appeals For The

Ninth District

7th & Mission Streets

P. O. BOx 547

San Francisco, CA 94101

G. S. Dindral

161 Northcreek Circle

Walnut Creek, Ca. 94598

(415) 944-9706

Subscribed and sworn to before me

=) +) day of January, 198%.

NOTARY PUBLIC - State

of California