Petition for Writ of Certiorari — Kramer v. Better Business Bureau of Los Angeles, Ltd.

Supreme Court brief1971

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What actually matters in this document.

Text

(213) 731-8761

FOR A WRIT

DAVID KRAMER

3921 West Jefferson Boulevard

Los Angeies, California 90016

» In Propria Persona

28 U.S.C. 1257 2

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ws ' ‘The judgment of the Court of Appeal, rh

' Second Appellate District, Second Division, /

State of California, was entered August 27, /

1970, modified August 28, 1970. A timely

petition for rehedring was filed on 11,

1970, and was denied on September 16, 1970.

A Petition for Hearing by the Supreme |

of California was filed on October 2, 1970, and

_- was denied on October 22, 1970. The jurisdic-

tion of this court is invoked under 28 U.S.C. 1257.

QUESTION PRESENTED

State of California, Second Appellate

District, Division Five: Presiding Justice

J. Aiso with Justice J. Stephens concurring,

having prior knowledge of the two points that the.

appellants would use as the bases of their appea!

issued a writ of mandate compelling the appellants

to proceed in the preparation of their appeal in

conformity with Rule 4, subdivision (B),

California Rules of Court. Division Two of the

same appellate district, acting upon a motion of

the respondent's attacking one of the two points

being used by the appellants, dismissed the appeal

on the grounds that the appellant did not provide —

the entire record of oral proceedings and accord-

ingly has not produced a record which may be

accepted as complete under the rules on appea!

a8 required under Rule 4, subdivision (A),

Se eee.

Where in the Court of Appeal of the State

of California, Second District, Division Five, let

Wherein the petitioner (now respondent)

petitions in the Supreme Court of the State of

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did issue uppropriate orders to the real parties

in interest to file such amended notices (Appendix |

[Dp. |

ie Wherein the real parties in interest

(appellants) filed their timely amended notices

to the clerk (Appendix (EP. (Appendix E-4, 5

was signed by the trial judge with the approval

of opposing counsels. )

Wherein the appellants in pursuing

further preparations of the record on appeal in

conformity with Rule 4, subdivision (B), California

Rules of Court, based their appeal on two points

and instructed the clerk of the Superior Court to

forward to the Court of Appeal all of the Exhibits,

transmit and file part of record on appeal

(Appendix [F)).

dismiss appeal as to said point (Appendix (H)),

and requesting appellants' appearance in opposi -

tion to the motion, on July 9, 1970, at 9:39 a.m.

in the Second Appellate District in Division Two. |

On June 9, 1970, appellants filed paints

and authorities in opposition to motion to strike

point on appeal and dismiss appeal as to said

point (Appendix (1}). 2

xi Pe cS

On July 6, 1970, respondents filed an

; for extention of time to file Respondents'

——— {Jp. the order shortened

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fe: Justice Herndon sat a presiding justice.

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The senior. member of the firm of Meserve, ;

Mumper and Hughes is on the Executive Board of -—

their attempt to convince the court that the

should not-be dismissed, and also filed a

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was dismissed (Appendix (M)).

XVII

_ Respondents Better Business Bureau's

Publicatiog, sent to their members, who act as

managers for the Bureau, announcing and noticing

their members of the law suit (Appendix {N}).

CONCLUSION

_It is very obvious from the proceedings

as shown in paragraphs I through XVII herein

and beyond any reasonable doubt that collusion

existed, wherein the justices of the Court of

Appeal, of the State of California, Second

District, Division Two combined with the

respondents' attorneys to dismiss and destroy

appellants' appeal.

, It is a positive fact that, had the pro-

ceedings of the appeal, gone as directed to the ,

Court of Appeal of the State of California, Second

District, Division Five, that this Court would not

have contested the form of the appeal (Rule 4/B))

but would have gone immediately into the substance

of the appeal.

a et cia ae

That the only reason for the collusion

between the justices of Division Two and the

respondents' attorneys was because these parties

knew that the 621 Exhibits, the oral testimony of

the witnesses and the clerk of the court's tran-

scripts that made up the appeal would result in

the reversal of the trial court's decision (Appendix

[Op.

Being ever mindful that the ultimate

judgment is that of the injured party, before God;

the appellant emplores the Supreme Court of the

United States, in the interest of justice, to grant

this Petition for a Writ of Certiorari or other .

relief as this Honorable Court sees fit.

Respectfully submitted, |

; : @

DAVID KRAMER

In Propria .Persona

18 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOMD APPELLATE DISTRICT

DIVISION FIVE

Deputy Clerk

STANFORD H. BERMAN and DAVID KRAMER,

Real Parties in Interest.

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) \24 Civ. Mo. 34013

LOS ANGELES, LTD., ) a

Petitione = a

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vs. . Filed

THE SUPERIOR COURT OF THE STATE OF ) May 16, 1969 °

CALIFORNIA FOR THE COUNTY OF LOS )

ANGELES ,. , oe : Clay Rebbins, Jr., Clerk

Respondent,

)

PROCEEDING in mandamus to compel respondent court to

order @ full repvrcer's transcript es part of record on

appeal. Writ for eppropriate relief granted.

‘ Meserve, Mumper & Hughes and Downey A. Grosenbaugh

for Petitioner,

Alvin RB. Isenberg for Devid “ramer, o Real Party in

v ~

Interest,

No appearances by Respondent or Stanford H. Berman,

®@ Real Party in Interest,

ae q FA EEN RRC CT a a NARI

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Petitioner, Better

tea doiten'ser an:cbder stvectiog the eloch of thet gout te

_ cause the preparation of « full and complete reporter's

" Eranaeript on appeal, and for en order directing the superior

court to want the motion. :

| Mandamus is 2 proper remedy for this purpose. Cautnan

ve Brown (2951) 106 Cal.App.26 686, 689; Cross v. Superior

Sourt (1951) 106 Cal.App.24 594, 595, disapproved on another

point in Summers v. Superior Court (1959) 53 cal.24 295, 299.)

In the case of Stanford N. Berman, et al., plaintiffs,

vs. Detter Dusinese Busey of Los Angeles, Ltd. ot sl... :

defendents, Los paged! Cupecter Court No. 812684, » judgment

was entered July 3, 1968, efter « trial to .the court sitting

without « jusy, vheveia it was adjudged that the plaintiffs

take nothing by virtue of their second amended complaint and |

that defendants have judgment against the plaintiffs, Stanford

H. Berman and\Dovid Kramer for costs and disbursenents.’ The

amount imusine to the petitioner her ein was $2,306.41.

The losing plaintiffs, real parties in interest in this .

peseueteen. Berman and Kramer, filed a notice of appeal from

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the above judgment on September 3, 1968. The notice stated

thet pleintific appeal from the “Judgment entered on July 3,

1968. . » im fever of the defendants and adjudging that

plaintiffs take nothing by their Second Amended Complaint

and the Judgment being based on defendants’ motion pursuant

to Section 631.8 of the Code of Civil Procedure.”

Without stating the points to be raised by them upon

appeal as required by Rule 4 subdivision (b), California

Rules of Court, Berman end Kramer filed « notice to prepare Ds

reporter's transcript which directed preparation of only

partes of the oral proceedings.

. The notice to prepare the partial reporter's transcript

was served on petitioner by mail on September 12, 1968, so

it was incumbent upon petitioner to serve end file within

ten days from September 13, ad ite netice counter-

designating the oral proceedings it desired to have transcribed.

There appears to be nv such notice by petitioner as required

by Rule 4 eubdivision (b) in the trial court's files. Even

tf the notice of motion (sore fully described below) be

construed as euch a notice, it was not served or filed

until September 24, 1968, which.was one dey too late.

L/ 1968 amendment to Code of Civil Procedure, section 1013

_ WOe not effective at this date.

A-3

Petitioner moved the superior court for an order dsvecting

ond compelling the clerk of thet court to causes full and

complete reporter's transcript, of oll of the oral proceedings

held, to be prepared, certified, and filed. Kramer filed «

declaration in opposition to the aption disclosing for the

first time that his appeal was based on two points: "(a)

That the evidence presented by plaintiffs was adequate and

sufficient to esteblish s prima facie case. (b) That Section

631.8 was inapplicable and beyond the right of the trie)

court to consider because defendants had alreay introduced

evidence on their behalf.”

| On October 16, 1968, the superior court ruled: "Motion

denied. Under California Rules of Court, Appellate Rule

12 (a), augmentation of the reporter's transcript is ordered

by the reviewing court, not the terial court. The fact thet

“plaintiff has not complied with Rule 4 (b) does not appear

to be @ ground for the instant motion.” |

| The failure of the petitioner to file # timely counter-

designation of the portions of the oral proceedings not

designated by appellants, but which it desired to have

transcribed, apparently was overlooked by the parties end

the superior court.

OE ——————

II.

Weither petitioner nor the real parties in interest

have complied with Rule 4 subdivision (b). The trial

court misconstruing, we feel, the purpose and function

of Rule 12 subdivision (a) of the California Rules of.

Court has refused to lend its assistance in the prepara-~

tion of a record on appeal agreeable to all the parties.

It is furthermore useless to permit the real parties in

interest to bring up a record limited to those matters

designated in their notice to prepare reporter's transcript.

In Haskins v. Crumley (1957) 152 Cal.App.2d 64, the

appellant omitted statement of the points he desired to

raise on appeal as required by Rule 4 subdivision (b)

and brought uponly a partial reporter's transcript. He

sought to attack sufficiency of the evidence to support

certain findings. The appellate court acting upon a

motion to dismiss the appeal held that the appeal would

be dismissed unless appellant brought up a complete

reporter's transcript. ™ | |

The "rules which prescribe the necessary proceedings

on appeal and the time within which the various steps

- Shall be taken, are mandatory and should not be relaxed

save in those meritorious cases where (the) fault is

clearly excusable." (Estate of Wolper (1956) 146 Cal.

App-24 249, 251.) a d

: There is, of course, no excuse in the record before us

for petitioner not taking the remedial measure provided for

ite benefit under Rule 4 subdivision (b). The drafteman “

the rule has noted: “The use of a partial, designated

transcript, at the option of the appellant, permits a

shortening of the record in cases where the issues and

. evidence is readily suvecdhe. Certain safeguards are ~~

added for the protection of the respondent: (1) the

appellant must estate his points on appeal; (2) there can

be no dcctqnatien of only a part of the testimony of a

single witness, except by stipulation; (3) the respondent

may counterdesignate any additional portions of the record.

Thus, if the respondent desires a complete trancript, he

may designate the balance of the record, subject only to a

possible penalty under Rule 26 (a) for bringing up unnecessary

record in bad faith.” |

‘The fact that appellants and real parties in interest,

Berman and Kraner, are acting in propria persona does not

excuse them from complying with the rule to any less degree

Attorney Alvin R. Isenberg limited his appearance on —

behalf of Kramer to the oral argument in this mandamus pro~

ceeding only.

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then that to which e lawyer is held responsible. andreas v.

California Milling Corp, (1959) 170 Cal.App.2d 226, 233; ef.

Mongatere v. Lop Angeles Transit Co. (1955) 131 Cal.App.2d

156, 160-162.) Without a statement of points to be raised $

on appeal in the notice to the clerk to prepare reporter's

transcript, there is no gauge by whith the trial judge can

know whether the portion of the oral peneeethige designated

by appellants adequately covers what actually transpired in

the course of trial,

= We digress to admonish Kramer, who is not a licensed

attorney, that he may not sign or file papers on behalf of

his co-party Berman,’ Buch acts constitute the practice of

law by one not licensed to practice law and are punishable

as misdeameanors, (Bus. & Prof. Code, section 6125; Biakania v:.

Irving (1958) 49 Cal.2d 647, 651; People v. Sipper (1943)

61 Cal.App.2d Supp. 644, 646.) Gonsequenti, neither of

the notices ‘to the clerk for preparation of the clerk's

or-the reporter's transcript has been properly filed by

Berman. These are subject to being stricken upon appro-

priate motion. (City of Downey v. Johnson (1968) 263

Cal.Appf2d se, __ ed) |

a/ Advance Report Citation: 263 A.C.A. 896, 905.

With reference to Rule oT subdivision (a) of the Californie

Rules of Court, which permits appellate courts in appropriate

instances to order augmentation of she record, it has been

held: "The motion to ‘augment’ cannot be used to create a

record. Ite function aie supplement an incomplete but

existing record.” (Estate of Larsen (1949) 92 Cal.App.2

261, aad accord, Wagner v. Chambers (1965) 232 Cal.App.24_

eS ft

The motion before the trial court wes one which con-

cerned the preparation of the record on appeal, the super-

visory function of which is, in the first inatance, in the

trial court, The filing of a notice of appeal neither

divests the superi Fr court of ite power nor absolves it of a

ite duty to make orders in aid of perfecting the record on

appeal (Sullivan v. Superior Court (1954) 128 Cal.App.2d

476, 479), except where it is specifically curtailed, e. 8,

in Rule 45 subdivision (b). The county counsel's menor andun -.

presented to the trial court at the time the motion was

heard concedes that the trial court has this power and duty.

‘(See Summers v. Superior Court (1959) 53 Cal.2d 295, 298.)

It has also been held that where corrections to the

transcript are requested by either party under Rule 8, it

is the duty of the trie} judge to hear and determine the

request. (YcMahon v. Superior Court (1946) 29 Cal.2d $15,

519.)

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These rules are logical, for the ertet judge who tried

the case is in the best position to know what portions of

the trial record should be sent forward to apprise the

appellate court accurately and sufficiently es to what

tranapired-in the trial court with reference to the point | _

or points en which an appellant feels aggrived, Motions |

of the kind in question might be more appropriately heard

and determined by the trial judge, rather than the lew

and motion Sapartnent, if the manne is complex, The

trial eourt file is approninatesy seven times as voluminous si

_ aa the average civil case,

Ill,

Fairness to both the petitioner and the real parties

in interest, as well as the interests of justice, would be

promoted by granting relief to the real parties in interest

to file amended potices to the clerk to prepare the clerk's

and reporter's transcript conforming to the requirements of

Rule 4 eubéivieion (b) and then have the respective parties

pursue the preparation of the record in accordance with the

“ puleson appeal, A writ of mandate directing the superior

court to take proceedings apprapriate to that end should

be granted.

, IV,

Let @ peremptory writ of mandamus issue directing the

A-9 nant =

eupertor court to issue appropriate orders te the reel parties

in interest to file amended notices to the clerk to prepare

the clerk's and reporter's transcript in conformity with

Rule 4 subdivision ), California Rules of Court, within

ten days from the date of such order; the respective parties —

to thereafter pursue further preparation of the record on

appeal in conformity with the rules of Court governing

preparation of such records. The order made on October

16, 1968, denying petitioner's motion is ordered vacated;

the alternative writ heretofore iseued ie discharged.

AIs0, J.

STEPHENS, J.

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2nb Civit No,

34013

In the Court of Appeal

SECOND APPELLATE DISTRICT

State of California

BETTER Business Bureau or Los ANGELES, Ltp.,

Petitioner,

VS. :

THE Superior Court oF THE STATE oF CALIFORNIA

FOR THE COUNTY OF Los ANGELES, -

Respondent,

STANFoRD H. BERMAN and Davip Kramer,

Real Parties in Interest.

PETITION FOR REHEARING, POINTS AND

AUTHORITIES AND PROOF OF SERVICE.

MESERVE, MumPER & HuGHEs,

By Downey A. GrosENBAUGH,

612 South Flower Street,

Los Angeles, Calif. 90017,

(213) 626-0300,

Attorneys for Petitioner.

Parker & Son, Inc, Law Printers, Los Angeles. Phone 685-9790

TABLE OF AUTHORITIES CITED

Cases Page

Haskins v. Crumley, 152 Cal. App. 2d 64, 312 P.

SNM Silisdilhcnnceassscnceibssncesnsnsenscanesanaconannie.s & 7,8

Wolper, Estate of, 146 Cal. App. 2d 249, 303 P.

CRESS RE ava 3

Rules 4

California Rules of Court, .Rule | a §

California Rules of Court, Rule 4(b) <ccccscsscessoo.

eeleanibsainnlAadadieinintasibeiisnseunisesssnan 2, 3, 4, 5,6, 7, 8

Calfornia Rules of Court, NN 3

California Rules of Court, Rule | aaa 3

California Rules of Court, Rule | ee 3

California Rules of Court, a, eee a 4

Rules on Appeal, Rule 26(a) a . 4

Rules on Appeal, Rule 27 ooo... cccccccleccscssosseceesoss. l

Textbook

23 West’s Annotated California Codes, Civil and

Criminal Court Rules, Part 1, p. 82 ................ a 2

B-2

In the Court of Appeal

SECOND APPELLATE DISTRICT

State of California

Betrer Business Burkau or Los ANGeExss, I,1p.,

Petitioner,

Vs.

Tue Superior Court Or THE STATE OF CaLivonmta

FOR THE COUNTY OF los ANGELES,

Respondent,

StTanvorp H, Berman and Davin » aoe

Real Parties in Interest. ~

PETITION FOR REHEARING, POINTS AND

AUTHORITIES AND PROOF OF SERVICE.

——s eee

To the Honorable Court of Appeal of the State of

California, Second Appellate District, Division

Five:

° Pursuant to Rule 27 of the Rules on Appeal, peti-

tioner hereby petitions for a rehearing of the above en-

titled cause, opinion filed May 16, 1969, modified May

20, 1969, and respectfully submits the following in sup-

port thereof.

The opinion of this Court is contrary to the law in

stating that “it was incumbent upon the petitioner to

serve and file within 10 days from September 13, 1968,

its notice counter-designating the oral proceedings it

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—_

desired to have transcribed”, (Opinion, p. 3.) The

error is compounded by the opinion further characteriz-

ing petitioner's conduct as a failure to comply with

Rule 4, subdivision (b), California Rules of C ourt,

Rules on Appeal, (Opinion, p. 4 last —. p. 5

first paragraph, p. 6.)

The remedy provided to the respondent (petitioner

herein) by Rule 4, subdivision (b) is permissive only.

“Within 10 days . . . the respondent ay serve

and file a notice designating the oral proceedings .

and instructions given, not designated in the ap-

peHant’ s‘notice . . . which he desires transcribed.”

(Emphasis added. )

This is in direct contrast to the action required of

the appellant, which is not only mandatory but’ is in-

deed a condition precedent to his further action and to

any counter-action permitted to respondent. Rule 4 b).

states in part:

“Tf the appellant, in his notice to the clerk, ‘states

the points to be raised “hy him on the appeal, he

may designate the portions of the oral proceedings

to be transcribed, .. .” (Emphasis added. )

Thus, appellant may take advantage of the partial tran-

script at his option, but if and only if he has desig-

nated the points to be raised by him on appeal. Clearly,

if he has not done so, respondent is without any basis

for making an informed and discriminating designa-

tion of additional portions of the record to be tran-

scribed. The opinion herein quotes froni the Drafts-

man’s Explanatory Notes (West's Annotated California

Codes, Civil and Criminal Court Rules, Volume 23,

B-+

Part 1, p. 82) wherein this point is further em-

phasized ;

", ++ (1) the appellant must state his points on

appeal ;” (Emphasis added, )

", + (2) the respondent may counter-designate

any additional portions of the record.” (Emphasis

added.) (Opinion, p. 6.)

Histate of Wolper (1956), 146 Cal. App. 2d 249, 303

I, 2d 578 cited by this Court in its opinion (Opinion, -

p. 5) is not to the contrary, although the Court follows

its reference to that case with the inference that some

action was required of petitioner and that petitioner

had a duty to provide a record excusing his failure to

act, The Wolper case had under consideration Rules

on Appeal other than Rule 4(b) under which this Court

suggests respondent should have acted. The rules al-

luded to in Wolper were Rule 4(a), 4(c), S(c),

7(u) and Rule 10, and are indeed mandatory; but the

case does not speak to Rule 4(b), the language of which,

hy contrast, is permissive as to respondent's action:

4(a) ",.. shall serve... within 10 days...

a notice to prepare a reporter's transcript...”

4(c) ".,, notice shall not be effective... un-

less, within 10 days... appellant shall deposit .. ,

2. va

5(c) ", .. notice shall not be effective... un-

less, within 10 days... appellant shall make ar-

rangements ,, ,”

7(u) ".., appellant shall serve and file a fotice

80 stating within 10 days...”

", . . within 30 days thereafter the appellant

shall serve and file a condensed statement...”

B.o

—

“, .. appellant shall state the points to be raised

by him on appeal... .”

10“... clerk... shall notify the appellant that

the filing fee shall be paid within 20 days...”

“After the expiration of such 20-day period the

clerk shall not permit the filing of the record. . .”

In the case at bench Justice Aiso observed:

“Without a statement of points to be raised on

appeal in the notice to the clerk to prepare report-

er’s transcript, there is no gauge by which the trial

judge can know whether the portion of the oral

proceedings designated by appellant’s adequately

covers what actually transpired in the course of the

trial.”

By the same token, there is no gauge by which re-

sporident can know what additional record may be neces-

sary to inform the appellate court of other relevant evi-

dence introduced in the course of the trial. In this

connection it should be noted that the Draftsman’s

Explanatory Notes on Rule 4(b) previously cited (Opin-

ion, p. 6) call attention to the fact that respondent is

subject to a “possible penalty under Rule 26(a) for

bringing up unnecessary record in bad faith”. It is

submitted that, absent any indication from appellant

of the points to be raised by him on the appeal, re-

spondent faces these risky alternatives: (a) Do nothing

about augmenting the record on the assumption that ap-

pellant has generously requested transcription of all

parts of the record unfavorable to his appeal; or (b)

Counter-designate transcription of the entire balance of

the record, and incur the certain cost of $18,000 to

$20,000 for a transcript which might well expose him

- . . te 4% ” :

record . ora 2

3 ".

Parther, the «qinion of tis Gout ts error ih

characteriomg petitieren’s action im the fewer court ras

a faitere to comply with Rute 4(b) Under that rate,

Vorespamdent: dees aot ler the partial trenecript en

fanged. We oan tater necaction at all ard neverthetes: be

in ful compliance. 11 however, reqpandem does wish

the record aggrented. he net serve and file notice to

that effect: within the 10 days required by the rat.

The filing by petitioner of &s Notice of Motion for

Onder Conpeliing Wiliam G. Sharp, County Qerk, to

Caase a Pall Reporter's Transcrgt to be Prepared, -

Certified and Fited was not taken under the provision

of Rate 406), for the reason that appellant's feigere to

desugnate the pomts te he rarsed by him oon the appeal

ing wader Rule 4(b). By his general notice of appeal,

and respondents motion was directed to enforcing com:

phance by anpeliant and the clerk with Rute 4a).

The Court ig &s qpinion noted some of the inept

procedure followed by this an propria persone bitigamt _

(Opinion, p. 7.) Pothioner has ctraggied with this

problem throagheet the course of this protracted hitga-

tian. ‘The Gilemma now posed by the Rule 4(a)-type

Notice of Appeal and the Rute Notice to Pre-

pare Reporter's Transcript (partial) is typical. Peti-

haner couki ret stand by without calling attention to

thi meonsistency m the trial court where it occurred.

As stated in this Court's pinion, it is the duty of the

trial court to supervise the preparation of the record or

6-7

—

“appeal i the firt temence. (pinion, p 8) Be Rb.

inaccurate, and wohl be mideading to the trial court

wpe reconsideration of this matter. to be governed by

an apinien of this Court which characterises petitioner's

action axa failure to comply of an entimety compliance

~ Gmmung equa te Gn Gute: Gate

on Rule 4(b), & woeld be chwerved that the

quoted portion thereot appearing on page 6 of this

Cort’. pinion commences with the following words

“The wee of a partial, designated twanscrat, at

the eption of the appellant, permits a shortening

of the record jn cases bere the testes end eridence

samen cn

Kramer's untimely statement that upon appeal de in-

tended to show “that the evidence presented by plain.

tift's was adequate and sufficient to establish a prime

facie case . . .” goes even further to take the matter

om of the contemplation of Rule 4(b). Assuming

arquendo that Kramer's statement: amounts to an ac

— Ceptable designation of a “point to be raised by him on

the appeal”, the point is self destructive of: the 4(b)

option im that eff the issues and evidence must be re-

, viewed for a proper determination of such a contention.

This is analogous to a claim that there is not sufficient

evidence to justify the decision. This is appellant's elec-

tion in the first instance, and he is thereafter bound

"by the rule clearly stated in Heshins v. Crumiey (1957),

—_

Fé 100 Cal dap. 2008, 208 B88 catty te Onn

\ tate qahe at game 5. As in Herts :

“We ogqenitiem te the motion aqpefiante say that

the testimony ordered reported is alt that there ix

pen the wecific points they ere on aqpeal. This, |

fewever, drew) satixfy the rate, and ax the appeal

ts predicated apm the axertion hat the evidence

dees et mgppert the findings, will be necennary

| for Pits Court to Rave the reporter's transcrae

al! of the evidence in the case.”

Shea it be argued by agpeiiant that be has stated a

paint on witch the issues and evidence i, readily sever.

ale in bis tardy comention “What Section G3LR was

mappticable and beyond the right of the trial court te

comvider because defendants had already imroduced evi-

dence om their behalf” (See Opinion herein, p. 4), re- z

spomdent will stipulate to the pertinent facts and there ‘

will be mo weed for any portion of the reporter’s tran-

script. - ;

_ ‘Simee the opinion in this procesding will govern the

trial court in its supervision of the further proceedings

_ appeal, sad apmion should be modified in the following ;

1. Omit any suggestion that any action was neces-

sarily required of respondent under Rule 4(b), or that

seme excuse ts called for in the record for respondent's

not having taken action under Rule 4(b), or that the ;

action taken by respondent was taken under Rule 4(b)

after the time permitted by the rule. )

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2 Ownit the feviting language of the apinion direct.

ing “Vie veal partic: tm tterem to file Weir qunended

notices to the clerk te prepare the clerk's and reporter's

transcr@t in conformity with Rute 4 subdivision (b),

‘California Rates of Court” (Opinion, p. 10), antes

and weil they have first complied with thet prrtian of

the Rute requiring that they wate the points to be

rateed by them on the appral.

3. Re-affivm the rule of Mastine v. Crmmiey fer the

irvine of the lower comrt in determining that it wil!

be appellant's duty to supply the reporter's transcrip!

of aif the evidence in. the cave in the event one of the

points epecified by appellants is predicated upon the as-

Wherefore, it ix renpect fully prayed that saline

be ordered im this matter and that the Opinion heretofore

filed on May '%6, 1999 and modified on May 20, 1909

ee aaa co race

Aue.

Dated: May 27, 1989.

Respectfully submitted, ee

Mauseeve, Muwees @ Hucnes.

— >" By Downey A. Gaosewaaucn.

Attorneys for Pettnoner

=a vost Cake.

aie . .

0 Pg 2

A ,

. = 6

; : . > :

9 e 4 : e °

—_

Gc Queda: |

State of California

BETTER BUSINESS BUREAU OF LOS ANGELES, LTD.

Vettsomer r

ioe

THE SUPERIOR COURT OF THE SYATE OF CALI.

PORNIA FOR THE COUNTY OF ANGELES,

STANFORD H. BERMAN and DAVID KRAMER,

——,.

a 7

To the Honorable Roger J. Traynor, Chief Justice, end

the Assiciate Jastces of the Supreme Court of th

State of Calfornia:

Pursuant to Rule 29(2), Rules on Appeal, Better

Business Bureau of Los Angeles, Lid., a corporation,

respectfully petitions this Honorable Court for a

hearing in this case upon.the grounds that a hearing is

mecessary to settle an important quedtion of law as to

the interpretation of Rule 4(b) of the Rules on Appeal

and to secure uniformity of decisional law, the opinion

of the District Court of Appeal being in conflict with

Estate of Wolper, (1956) 146 Cal. App. 24 249.

The decision of the District Court of Appeak.was

filed on the 16th day of May 1969; 2 Modification of

Opinion (on identities of parties but not on matter of |

substance) was filed on May 20, 1969; a Petition for

Rehearing was duly filed and this was denied on June

3, 1989. A copy of the opinion and modification is

attached in the Appendix.

;

: Aa Important Question of Law.

Akthough -the District Court of Appeal granted a

Writ of Mandate, the upinion erroneutusly describes>the

procedures to be tulluwed as being limited to those set

cast in Rule 4b) of the Rules un Appeal.

| ‘The apinion at page 7 states: —

“Fairness to both the petitioner and real parties

im interest, as well as the interests of justice, would

he promoted by granting relief to the real parties

im interest to file amended notices to the clerk to

prepare the clerk's and reporter's transcript con-

forming to the requirements of Rule 4, Subdian-

gion (6) and then have the respective parties pur-

sue the preparation of the record im accordance

with the rules on appeal. A writ of mandate direct-

(img, the superior court to take proceedings appro-

\ priate to that end should he granted.” (Emphasis -

added. )

Under Rule 4(b) where any portion of the testimony

of a witness has been designated, the entire testimony

of that witness is required to be designated for inclu-

sion in the reporter's transcript. There has been no

stipulation in this case that a portion of a withess’s

tire testimony of each witness, a portion of whose testi-

ey Sey ae SO oe Oe

the reporter’s transcript. Ma

If the real parties in interest purse the same legal

procedures pursuant to this opinion as they did in the

past (and the opinion would stimulate them to do so)

e-3

then the petitioner will be ina wurse legal position than

it was before commencing the original motions in the

Superior Court. The opinion of the District Court of

Appeal is cumpuanding the error made by the real par-

ties im interest and the trial court. If the real parties

im imterest repeat the same points on appeal as they did

in the past, the puints will be as follows :

“3. The appeal is based upon two points : |

. (a) That the evidence presented by plaintiffs

was adequate and sufficient to establish a prima

facie case.

(bo) That Section 631.8 was inapplicable and

beyond the right of the trial court to consider be-

on their behalf.” |

(See Reply Brief of (Appellants) Real Parties in In-

terest to Petition for Writ of Mandamus, p. 6.)

To meet the issue,

9 “, + + that the evidence presented by the plaintiffs

was adequate and sufficient to establish a prima

facie case . ...”

would require the petitioner to designate (and pay for

the original and one copy) of the balance of the entire

S transcript. This imposes an improper burden

the petitioner because of the erroneous statements

i in the opinion of the District Court of Appeal.

The entire oral proceedings would be required to dis-

pursuant to the motion made under the provisions of

the Code of Civil Procedure 631.8. The opinion of the

—

4b). This position was clearly

' and explicitly sct

forth to the District Court of Appeal in the Reply Brief

issue catmot be raised under Rule 4(b), although there

are’two reasons; namely, (1) that this is not the legal

test on appeal from a judgment entered upon the 631.8

motion ; and

Op Oe hv ex ct exp ceniath ecient ep

port the judgment) would have to be raised by pro-

ceedings under the provisions of Rule 4(a).

To the contrary, the Opinion of the District Court of

Appeal condones and directs that future proceedings

nuast Le limited to Rule 4(b). The Courtsaid at page

7, ¥

. the interests of justice, . . . promoted by

grenting calles to the cash austin és tense to Os

amended notices to the clerk to prepare the clerk’s

and reporter's transcript conforming to the re-

quirements of Rule 4, subdivision (b) and then

have the respective parties pursue the preparation

of the record in accordance with the rules on ap-

peal.” (Emphasis added. )

This comment was made by the in the light

of its earlier statement indicating that it been the’

duty of the petitioner to have prepared and filed a

" notice counterdesignating’ the oral proceedings thai it

desired to have transcribed. This is the fundamental

error of which petitioner. complains. ° What the Dis-

e-€

_ seein

trict Court Apna i hat regard i nt forth a

pages 2-3.0f the Opinion as follows:

‘“The ‘notice to’ prepare’ the partial. eapnier'e

transcript was served on petitioner by mail on Sep:

tember 12, 1968, si it 5 incumbent upon peti-

tioner to serve and file

tember 13, 1968, (footnote |) its notice ‘counter-- -

designating the oral proceedings it desired tu have

transcribed. There

in the trial court's files.” ° ; A

Upon this state of the record, the Superior Court

would have no-alternative under the present opinion but

siete ee

script under the provisions of Rule"4(b). The opinion

would then impuse upon petitioner the financial burden

of producing the balance of the reporter's transcript of

the oral proceedings or hazard ‘the risk of the ‘matter

being presented on rom only a limited transcript

and the criticism which might then be leveled upon it

for having failed te comply with the provisions of the

opinion which is under review. In this connection, peti-

tioner wishes to point out that in the initial proceed-

ings, it, was under no duty to bring the motion which it

_ brought seeking clarification in the trial court and peti-

tioner could, at that time, have simply relied upon the

cases of Kaufman v. Brown, 106 Cal. App. 2d 686

and Swails v. General Electric Co., 264 A.C.A. 100.

Had petitioner not been dealing with a plaintiff in pro-

pric persona it would have taken no action and would

have let the appellant assume the responsibility of the

improper, and inadequately prepared notices: both for the

clerk and reporter’s transcript. It was only in an abun-

C-6&

to be -no such notice ss

by petitioner as.required by Rule 4 subdivision (b)

———_

—6— :

dance of caution that petitioner sought the relief and

intervention of the Superior Court in the first instance.

continually worsened, resulting in this inaccurate opin-

ion of the District Court of Appeal which the petitioner

seeks to have reviewed in this Court.

is Sa cat ,

Uniformity of Decisional Law.

The District Court of Appeal relies upon the Estate

of Wolper, (1956) 146 Cal. App. 24 249 (see Opinion,

pp. 4 and 5 for the proposition that some manda

tory action was required of petitioner in compliance

with Rule 4(b). The Court then proceeds to comment

that petitioner should have proceeded under Rule 4(b)

and designated the balance of the reporter's transcript

not designated by the real parties in interest. The Dis-

trict Court opinion at pages 4-5 states :

“There is, of course, no excuse in the record before

us for petitioner not taking the remedial measure

provided for its benefit under Rule 4 subdivision

(b), ... Thus, if the respondent desires a com-

plete transcript, he may designate the balance of

the record, subject only to a possible penalty under

Rule 26 (a) for bringing up unnecessary record in

bad faith.”

The District Court of Appeal misapplied the rule in

Wolper, That case had under consideration rules on ap-

peal other than Rule 4(b), under which the Disirict

Court of Appeal suggests that the respondent should

C-7

—_

.* ai

have acted. The rules alluded to in Wolper were

Rule 4(a), 4c), 5(c), 7(a) and Rule 10. Each of

SAN SRD

as:

Ma)”. .. shall serve , - within 10 days .

a natice to prepare reporter's transerigt . oY ad

| Mc)”. . . notice shall not be effective .

less, within 10 days . . pron ge gal

i...”

5(c) “. . . notice shall not be effective .. . un-

less, within 10 days .. . appellant shall make ar-

rangements ...”

7(a) “.. - appellant shell serve and file 2 notice

soateenp atin SD digs « .

. within 30 days Ques the appellant

shal serve and file w condensed statement.

apps thal wate the points wo be ried

by hin on appeal . .

10“... clerk . dilitbiaiitiy tea aniline tus

the filing fee shall be paid within 20 days. . ..”

“After the expiration of such 20-day period the

clerk shall not permit the filing of the record. . . .”

\ The Wolper case does not mention Rule 4(b), the .

language of which is permissive and not mandatory.

This was brought to the attention of -the District Court

of Appeal in the Petition for Rehearing (see p. 3).

c-8

The opinion of the District Court of Appeal at page

7 ordered as follows:

“Let 2 peremptory writ of mandamus issue direct-

(b), California Rules of Court. . . .’

The further proceedings in this case should not be Timi-

ted to Rule 4, subdivision (b), and herein lies the er-

ror. This can readily be corrected by the opinion of

this Court directing that further proceedings shall be

had pursuant to both Rules 4(a) and 4(b) on appeal

that

they wilt bd informed that-the prapesed paint “thet the

evidence presented by plaintiffs was adequate and suf-

ficient to establish a prima facie case” cannot be raised

under Rule 4, sshdivision (b) and if the substantial

evidence rile is to be invoked, it will be necessary to

a &

ile

“dence on their behalf” can be determined

erence to any portion of the reporter's

£228

Dated this 24th day of June, 1968.

Meserve, Mumpee & Huenns,’

By Dowmey A. Grosensaucn,

Attorneys for Petitioner.

@-10

°) , 3

‘

% b

‘

» °

? °

: ’

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

BETTER BUSINESS BUREAU OF ) 26 Civ. Mo. 34013

LOS ANGELES, LTD., :

Petitioner, ) |

! ) WRIT OF MANDATE

vs.

SUPERIOR COURT OF THE STATE OF )

CALIFORNIA FOR THE COUNTY OF )

LOS ANGELES,

‘ <

Respondent. ) :

STANFORD H. BERMAN )

DAVID KRAMER,

Real Parties in Interest.)

MESERVE, MUMPER &

612 South Flower Street

Los Angeles, California 90017

Telephone: 620-0300

25 a8 Ae A RMR ln en RAIN Np

“a a2ene?se88eeFeeaeocir

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

(

SUPERIOR COURT OF THE STATE OF

CALIFORNIA FOR THE COUNTY OF )

LOS ANGELES, , )

(

Real Parties in Interest.

THE. PEOPLE OF THE STATE OF CALIFORNIA, TO THE SUPERIOR

COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS

ANGELES, GREETINGS:

Whereas, petitioner served and filed herein his duly

verified petition for a writ of mandate, and an alternative

writ of mandate issued herein on the 30th day of January,

1969 and a hearing was held herein on April 11, 1969; and

Whereas, it appears to this court that a peremptory wri

of mandate should issue herein and that petitioner has no othe

plain, speedy and adequate remedy in the ordinary course of

law; |

| Now, therefore, you, THE SUPERIOR COURT OF THE STATE

OF CALIFORNIA, FOR THE COUNTY OF LOS ANGELES, are commanded

—

7 pea " . Lf ase “ . LOO Ne ede Oa Es

ene

mediately after receipt of this weit:

(a) To vacate the order made on October 16, 1968

nying motion of defendant and respondent Better Business

eau of Los Angeles, Ltd.;

,(b) To issue appropriate orders to the Real Parties in

terest to file amended notices to the Clerk to prepare

e Clerk's and Reporter's Transcripts in conformity with

le 4, subdivision (b), California Ruler of Court, within

n days from the date of such order;

spective parties so that they shall pursue the further

eparation of the record on appeal in conformity with the

les of court governing preparation of such records.

WITNESS the Honorable Otto M, Kaus, Presiding Justice

Division Five of-the Court of Appeal of the State of

lifornia, Second Appellate District.

ATTEST my hand and seal of this Court, this 7 /_ day

July, 1969,

CLAY ROBBINS, JR,, CLERK

By as H. P, LAY es

”'Paputy Clerk

pre hie

Sana 2322822232932 2339°9328

Due service of the foregoing peremptory writ, and

receipt of a copy thereof, is hereby acknowledged this

of/_ day of July, 1969,

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, FOR THE OF

LOS ANGELES ee

Due service of the foregoing peremptory writ, and

receipt of a copy thereof, is hereby acknowledged this

—atlek_ day of July, 1969.

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, FOR THE COUNTY OF

LOS ANGE - DEPARTMENT 66

p-4

¥ ,

¢ g

me :

R Ps

. DAVID KRAMER and

STANFORD H. BERMAN

3921 West Jefferson Boulevard

Los Angeles, California 90016

RE 1-876)

Attorneys in Pro Per.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

STANFORD H. BERMAN, et al., No. 612: 684

Plaintiffs, AMENDED |

vs. NOTICE TO PREPARE

ae ———

Defendants,

_ NOTICE IS GIVEN that plaintiffs and appellants desire

the preparation of a reporter's transcript of the oral proceedings

in this action, only to the following oral testimony at the trial;

1, The stipulation entered into by the parties on the

5th day of February, 1968.

2. Stipulation entered into by al] of the parties ©

with reference to the 1957-1963 Sears comparative price policy in

retail advertising.

3. Stipulation entered into by al! of the parties

with reference to the Better Business Bureau policy on comparative

price retail advertising concerning the aluminum awning companies

operating on a par deal basis. Fey me,

4. All of the oral testimony of witness David Ross.

This has already been ordered from the court reporter® paid for

by appellants, and is in process of completion. ;

5. All of the oral testimony of the following witnesses,

which oral testimony has already been transcribed by the court

reporter, paid for by appellants, and completed, the origirials of

which ‘are already in the possession of the official court reporter

who took the testimony: ;

(a) Ralph Denning;

/ (b) | Seymour N. Sutter; | an

(d) Mark Zucker, Jr.;

(e) James B. Williams;

(f) Elmer LePon;

(9) | Raymond L. Kokkelenbery;

(h) Benjamin Nissen;

(1) Don Ashby;

(J) Douglas J. Kamp;

(k) - . Marvin Reimer;

(1) Roy F. Walker;

ori (m) Argunent: of David Kramer.

DATED: August 28, 1969.

w sae

(PROOF OF SERVICE BY WAIL -- 1013a, 2015.5 C.C.P.)}

STATE OF CALIFORNIA

COUNTY OF LOS ANGELES)*®*®

I am a citizen of the United States and a resident of the county .

aforesaid; I am over the age of eighteen years and not-a party to -

the within entitled action; my business address is: ;

3407 West Sixth Street, Suite 801, Los Angeles, California 90005.

On September 3, 1969, | served the within Amended Notice to

Prepare Reporter's Transcript on the interested parties in seid

action, by placing-a true copy thereof enclosed in a sealed —

envelope with pos ‘thereon fully prepaid, in the. United States

mail at Los Angeles address as follows:

Clerk of egerter Court, 111 North Hill Street,

‘ — - . ae mauee hs bi

. Grosenbaugh c/o Meserve, r s

612 South Flower, Suite 500, Los Angeles, California 90007

Robert Keller, €sq., 615 South Flower, Suite 604,

Los Angeles, California 0

Wheeler, McCue & Knox, 2650 E. Olympic,

* Los Angeles, California » 90054

I certify (or declare), under penalty of perjury,* that the fore-

going is true and correct.

Executed on September 3, 1969, at Los Angeles, California

Barbara S$. Tanezakt

*Both the verification and proof of service by mail forms, being

signed under penalty of perjury, do not require notarization.

DAVID KRAMER

3921 West Jefferson Boulevard

Los Angeles, California 90016

RE. 1-876]

In Pro Per

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

STANFORD H. BERMAN and DAVID KRAMER db

under the Firm name LIFETIME AWNING CO.,

P NO. 812,684

Plaintiffs,

NOTICE TO CORRECT

vs.

ae . AND TO SUPPLEMENT

BETTER BUSINESS BUREAU OF LOS ANGELES,

LTD., OLIN H. STAPP, AIR VENT AWNING CO.,) REPORTER'S

a corporation, AIRFLO AWNING COMPANY, a |

corporation, SEARS ROEBUCK & COMPANY, a TRANSCRIPT

corporation, HEARST PUBLISHING CO., INC.,

@ corporation, and TIMES MIRROR CO., a

corporation,

Defendants.

TO: — G. SHARP, County Clerk and Clerk of the Superior

urt:

PLEASE TAKE NOTICE that the Reporter's Transcript on

appeal is incomplete and requires correction and supplementation

in that the Reporter's Transcript fails to and does not include the

testimony of JOHN R. O'HARE, taken in court on February 14, 1968.

. Please correct and supplement the Reporter's Transcript

by adding thereto the transcript of the testimony of JOHN R. O'HARE,

who testified in the above-entitied matter on February 14, 1968. |

The transcript of the testimony of JOHN R. O'HARE was originally

requested and prepared for the original appeal but inadvertently

— A LEE ATT

, ommitted in the request for the amended transcript.

DATED: November 11, 1969.

‘amp

DAVID KRAMER, In Pro Per

(PROOF OF SERVICE BY MAIL -- 1013a, 2015.5 C.C.P.)

STATE OF CALIFORNIA

COUNTY OF LOS ANGELES)®®

I am a citizen of the United States anc a resident of the county

aforesaid; | am over the age of i ner ycars and not a party to

the within entitled action; my businesé address {s:

3407 W. Sixth Street, Suite 801, Los anentes California 90005.

On November 11, 1969, I served the within Notice to Correct and

to Supplement Reporter's Transcript on the defendants in said

action, by placing a true copy thereof enclosed in a sesled

‘ envelope with postage thereon fully prepaid, in the United States

mail at Los Angeles addressed as follows:

. Meserve, Mumper & Hughes - 612 S. Flower St. Los Angeles, Calif. 90017

Wheeler, McCue & Morris - 2650 E. Olympic Blvd., Los Angeles, Calif. 90023

Robert A. Keller - 612 S. Flower St., Los Angeles, Calif. 90017

I certify (or declare), under penalty of perjury,* that the fore-

going is true and correct.

Executed on November 11, 1969, at Los Angeles, California.

Barbara S. Tanezakt

“Both the verification and proof of service by mail forms, being

signed under penalty of perjury, do not require notarization,

APPENDIX F

POST CARD

CLERK'S OFFICE Y :

Court of Appeal Wane $4

Secono Dieraicry °

CaLironmia STATE Bul_oime, Room 1201 Is

Civic Canver °

LOS ANGELES. CALIF. 80018

. David Krarnay

. ‘ dpeoecee-s

3971 Vest Jefferson islvd.

; .

Los Anvelos, ~,

» California

§ 9

Los Angeles, Cal. WUV si Ty , 19 _

NyTwwns 17 yore on A PMA ant Le A. AM

SEE SE SERS ADRES OE eR Ra Civil gi0

oan ee ee Nera F .s

- Se = ("A

Tr: COPTNPs Aowtication for order allowing and Alveaee

ectins cunertinr Court Clark to trarsn’t

and file vart ©” record on anneal ‘ented

without nrefiudica, |

Chay Rosas, Clerk

eeeet.ria vo-00 on @ one

]

)

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DAVID KRAMER, et al No. C~8ak 681,

Plaintiff

vs | CERTIFICATE RE

THE BETTER BUSINESS BUREAU MISSING EXHIBITS :

Defendant _ 74

I, WILLIAM G. SHARP, Cougty Clerk and Clerk of the Superior

.Court for the County and State aforesaid, do hereby certify

that the exhibits in the above entitled action were charged

to Superior Court Reporter Popkin Simonian (Department 51) on

July 8, 1969, for preparation of an appeal transcript. In

December 1969, when Mr. Simonian was transferring to Pasadena,

he arranged with the Courtroom Bailiff, Roy Belyea, to return

the exhibits to the Exhibit Room, Mr. Belyea states that he re-

turned them, however, the Clerk has no recollection of receiving ©

then, and Mr, Simonian's "charge-out" card is still in place.

There has been a complete and comprehensive search of

Courtroom, Exhibit Room, and all areas of the Clerk's Office

where these records could conceivably be, and they have not been

found, At this point, it appears that further search would not be

WILLIAM, G. SHARP, County Clerk and

Clerk of the Superior Court of the

State of California for the County

of los Angelos

wr_ Dr. 8. ex. Sa ae

productive,

APPENDIX H

2nd Civil Mo. 36226

IN THE COURT OF APPEAL OF THE STATE OF GALIFORNIA

SECOND APPELLATE DISTRICT

DAVID KRAMER and STANFORD H. BERMAN,

Plaintiffs and~

Appellants,

gf Ve

BETTER BUSINESS BUREAU OF LOS

ANGELES, LTD., a corporation,

OLIN H. STAPP, an individual,

AIR-VENT (Aluminum) AWNING CO., a

corporation, and SEARS ROEBUCK and.

CO., a corporation, a

Defendants and

Respondents.

RF FF I I IW WI

¢ .

—

NOTICE OF MOTION TO STRIKE POINT ON APPEAL

AND DISMISS APPEAL AS TO SAID POINT;

SUPPORTING DECLARATION; and POINTS .

AND AUTHORITIES IN SUPPORT THEREOF

MESERVE, MUMPER & HUGHES

| 612 South Flower Street

; Les Angeles, California 90017

Telephone: 620-0300

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

"SECOND APPELLATE DISTRICT

DAVID KRAMER, et al., 2d Civil No. 36226

NOTICE OF MOTION TO STRIKE

POINT ON APPEAL AND DISMIS!

APPEAL AS TO SAID POINT;

SUPPORTING DEC TION; an

POINTS AND TIES

IN SUPPORT THEREO

Plaintiffs and

Appellants,

BETTER BUSINESS BUREAU OF

LOS ANGELES, LTD., et al.,

Defendants and

Respondents.

te ee a et a ee ea ea ee ee ea ee

TO SANFORD H.. BERMAN AND DAVID KRAMER, APPELLANTS IN

PROPRIA PERSONAM:

PLEASE TAKE NOTICE that on July 9, 1970 at 9:30 o'clock

&.m., OF as soon thereafter as the matter can be heard, the

respondent, BETTER BUSINESS BUREAU OF LOS ANGELES, LTD.,

will move the Court of Appeal of the State of California,

Second Appellant District, in Division Two, - in such other

division as may be ordered, in the courtroom located on the

Eleventh Floor of the State Building, 217 West First Street,

Los Angeles, California, for an order striking from

appellants’ Amended iii of Appeal the following point to

be raised by appellants on appeal, and to dismiss the appeal

@s to said point:

"(1) That the evidence pre-

sented by plaintiffs was adequate

and sufficient to establish a prima

q-2

Neer

EL LE LT LT ET

“facie case; . .. " (See Appellants’

Amended Notice of Appeal, lines 25 and

26.)

Said motion will be based on the grounds that:

1. Point (1) of appellants’ Amended Notice of Appeal

above-quoted does not state a valid ground of appeal.

2. Appellant has not provided the entire record of

oral proceedings and accordingly has not produced a record

which may be accepted as complete under the Rules on Appeal.

This motion will be based upon this notice, the -~

dechenantos of Downey A. Grosenbaugh, the menorandua of

points and authorities filed in support hereof, and the

record on appeal. |

Dated: May 25 , 1970.

_MESERVE, MUMPER & HUGHES

By____DOWNEY A. GROSENBAUGH

Downey A. Grosenbaugh

Attorneys for Respondent

H-3

Te prime Peete, wale to uot whe test applied by the revter-

tng court tn considering whether or ust « judgnent should

ave Conn cutered pursuant to 0 aotton unter Californie Code

_ ot -Cteth Pescndere, conten 622.0.

B. Mare gudguent hee been entered for the dafentent,

ponenent Oo « cotton water Californie Cote of Corti

”

ee}

88 Cal.Jer.28 Gee. 524. }

a. Under the Bvidence Code 2 party hes the

Suntan Of prosf as te cach fact, the entetence or ase-

Ovid. Code, Section 500.

etartial evidence. (Citing cases. )”

4. When two of eore inferences cen be ressonsbly

| Qu@eced fren the fects, the cevieutng court ts without pewdr

p to eubetivute ite deductions for these of the trial court.

Srvening_v. Generel Air Conditioning Corp.

233 Cal.app.2¢ S45 et 551.

alae ‘wameieeilied

etteched herete and by this ceference aade « part hereof,

_ he Ceotineny of these fourteen (24) witeseses chove naned

‘Wines oral ceotineay appellant hes designated for trenscrip-

tion, eutended ever appcentnately thirty-four (34) trial

days. Se8é decleretion of Sounay A. Gresenbeugh further

Ghows that, in edfition to catd witnesses, there were

fey,

| s “Qe to eovarthntese sot ouch 6 pote oo will bp constderet ty “s

‘6

Smartt (8) wate pereene we wenutttet ot voted;

, dgpatiane tude URY-of Win Cabttornte Mates of Court, wate

eerie, tm pare, 0 feltew: a

os un eam eqgatons, tate

Gettce te the check, etetes the nape t

| Gatane te be eateed ty tte on

sare thn aqpeel,, be cay Guntgnete va

A ' (im pertiens of theeralpre-

euadings te be transcribed, or

| 7 (Giseat thn ententens 6 any gor

eas, Sy - “Aamme steht donne somnane- =,

2. Gavmtng samiinta that. egyettent*s pies: “wes: ian

"cottine gumesant Wp Qlataettt i ctuyinte ant euttleanee

So eunaBitsh © prtun Caste cass” to « walld “pdint to te

“ented ty htm on the agpent™ en called fer ty Mais 41),

trina Geter ate tes nn? ,

kh | ae yomvtenaly seated, ths extton-ter-jutguent

Qreentuse cat up tty the Cole of Civtl Precatere, section

‘G2.0 capstone che extal Jufye co weigh the evidence, witch

tm epee calle Gor the application of the eubetential

judge with

sndenneelnataaitatiaa ati isc

and

éraw from

| any of it euch inferences

, 48 seam ressonad)« to

¢- Surthermore, the evidence to be dub-

stantial aust be evidence which is of ponderabie icgs)

significance end reasonably to be belicved. NC ia

. . - aie

q@ere ct 32. 2 -

4. Without the full record before it, this

eoviewing court connot pase judgnent on the lagal nigaifi-

samce or believability of the evidence on which the trial

“+ + + as the appeal is predi-

- cated upon the assertion thet the

evidence does not support the

findings, it will be necessary

fer this court to heve the =

reporter's transcript of all the

evidence in the case.”

C. A motion’te strike or for dienisss! of the appesi

hes been indicated to be the appropriste remedy, and euch

welief has been granted in ceases where appellant has failed

to provide s complete record on appect.

Muatle v. General Electric Co.,

264 Cal.App.24 62 et 86;

4-10

Se emt nacre oe

4, oe

& ‘

a =

DOWNEY A. CROSEMBAUGH declares:

1 am the sttorney for respondent, BETTER BUSINESS

SHREAD GF LOS AMOMAS, LID., tm eubject ection ant was con- :

Ciawously present and represented esid BETTER BUSINESS

GUREAD OF LOS ANGELES, LTD., during the trial of eaté ection

to Gepertuent Si of the Superior Court of the State of Celi-

fornie for the County of Les Angeles.

During the entire course of esté trisl’ defenéents

caused © summary secord of the procesdings ond testineny to °

be cohen dovn and transcribed daily by privete stensgraphers

present et ell times in court for the purpose. Theee records

tndjicate thet the vitecsses naned in appellant's Amended

Metice to Prepare Reporter's Transcript end the Oréer of

Deyertment 51 of osid Sperior Court supplementing said

» testified in esid trisl-on the detes inéiceted

1. Merk Zucker January 3, 1968

tee _ demary 4, 1968

«arte Becher, Je) Jenuary 4, 1968

3. James D. Williams January 8, 1968

6. «= Rmer LePon January 6, 1968

Jemuasy 9, 1968 -

5S. John R. O’tlere Jenuery 25, 1968

February 14, 1968

Hoi

-_—

19)

Se ee | 7!

° . .

Allen Kramer

Robert Semple

Joseph Sadacca

87 Re

Ted Garber

Ralph Fleming

Richerd £. Merivether

Bugene A. Mulligen

John G. Love

Gilbert Dunsyer

Seul Kimme!

Warren 8. Magwood

Senford Steinberg

Robert Fogle

Olin H. Stapp

January 24, 1968

January 24, 1968 :

January 24, 1968

January 25, 1968

January $1, 1968

February 5, 1968

Debruary 6, 1968 -

Vebruery 6, 1968

February 13, 1968

Februery 13, 1968

Pebrusry 14, 1 968

February 15, 1968.

March 4, 1968

Merch 5, 1968

March 6, 1968

Merch 7, 1968

Merch é, 1968

March 11, 1968

March 12, 1968.

March 13, 1968

March 14, 1968 .

Merch 15, 1968

Hab

yoy

Q—

Hi?

(PROOF OF SERVICE BY MAIL-1013e, 2015.5 €.C.8.)

STATE OF CALIFORNIA ;

COUNTY OF LOS ANGELES )

the county storesetd; I am over the age’of eighteen years

business address is: c/o’ Meserve, Munp or & lughes, Suite

500, 612 South Flower Street, Loe Angeles, California 90017;

On May 27, 1970, 1 served the within NOTICE OF NOTION

30 STRIKE POINT ON APPEAL AMD DISMISS APPEAL AS TO SAID

POINT; SUPPORTING DECLARATION; ond POINTS AMD AUTHORITIES IN

SUPPORT THEREOF, on the plaintiffs end appeliente in seid

ection, by plecing « true copy thereof enclosed in « sealed

envelope with postage thereon fully prepaid, in the United

States post office mail box ot 612 South Plover Street, Lee

Angeles, Californie 90017, addressed as follove: :

CONT RE gy

Loe Angeles, Calif. 90016. Los Angeles, Calif. 90016

t declare under penalty of perjury thet the foregoing

de true end correct. ar :

Executed on May 27, 1970, at Los Angeles, Californis.

lil See ed

)

) Second Appeliete

tppellente, ‘

)

}

)

—

POLNTS AND AUTHORITIES

—

IM THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOMD APPELLATE DISTRICT |

DAVID KRAMER, et al., ) |

| ) 2nd Civil Wo; 36226

Pleintiffe end )

Appellants, ) POINTS AID AUTHORITIES

> my OPPOSITION TO MOTION TO

ve. ) GTRIKE POINT on APPEAL

) AMD DISMISS APPEAL AS TO

BETTER BUSINESS BUREAU OF ) SAID POINT

LOS ANGELES, LTD., et al., ; ;

Defendants ané )

te. :

POINTS AMD AUTHORITIES

POINT I OF RESPONDENTS’ POINTS AND AUTHORITIES

IGWORES FACT THAT RESPONDENTS ADDUCED

EVIDENCE OF THEIR OWN BEHALF,

A. Whether appellant refers to "prima facie case" or other-

wise, is not the true test of the matter before the court. The fact

remains, notwithstanding respondents’ argument and citation of

authorities, that appellant d4d establish, by substantial proof,

@ case in his own behalf. Following’ the presentation of appellant's

case, respondents chose to introduce evidence on their own behalf.

Although it is true, that under Section 631.8 of the Code

of Civil Procedure, the court may approve findings "as though made

after a trial in which evidence was produced by both sides”,

"fection 631.8 contemplates a procedure whereby the ruling is actually

based upon plaintiff's case alone. A very iennun case,

Gharles C. Chapman

prosented by defendant, by way of rebuttel.

Ie the inetance case, no such opportunity was allowed or granted

plaintiff. Although defendants elected to treat the case made by

appellant as vulnerable to an attack under Section 631.8, defendants

nevertheless presented their own case by way and in the course of tha

defense. At this point, consequently, appellant should have been

Given an opportunity te proceed in rebuttel and not be denied the further

"wight of due process following the presentation of the defense case.

5. Regerdless of the nomenclature used by appellant, "prima

facie case” or othervise, appellant should not be denied his right of

appeal. Appellant is now in the process of preparing his Opening

Brief, and the inetent motion of respondents is both belated end

untimely. This Honorable Court should not allow respondents at this

late date in these proceedings to attack appellant's right to continue

with his appeal.

+e |

THE PRESENT RECORD I8 SUFFICIENT IN THE

CIRCUMSTANCES OF THIS CASE. |

. A. Respondents have previously attacked the record under

which appellant is proceeding. This Honorable Court in ite opinion

, f4led on May 10, 1969, ordered the Superior Court to proceed with

_Hhe preparation of the second a0 therein indicated, The Superior

Court on August 26, 169, made ite order pursuant to the onder of

thie Nenerable Court, Vollowing these orders, ond further eugmente-

tien of the record, the partion have been proceeding in the cotiree of

thie appeal, As indicated in — 1, Of thie Memorandum, respondents

now, both after the opinion of thks Honorable Court, the ruling of the

Superior Court, the filling of the recerd, end the enormous amount of

work appellant hee already deveted to the preparation of his Opening

Oriel, belatedly come before thie court in an effort to sscompiioh

| the wane result which haw alveady been passed upon by this Honorable

Court and reject, It would be an unnecessary waste of time of beth

thie Honorable Court and oh) parties invelved for appellant to restate

hie position with reference-to this record, the position having

already been tated and Feetated on several occasions, Vor resepen-

dente to relitigate thie sane tooue at thie Late date ie almost

tentamount tos frivolous proceeding,

DATED) June 6, 1970, | Pater

in Pro Per

ee,

(PROOF OF SERVICE py MALL-10130, 2013.5.C.¢.P,)

STATE OF CALLPORNLA | Pi Soe Vs .

COUNTY OF LOS AMoELES ) “

I am @ citizen of the United States and « resident of the county

stevesete; i em Over the age of eighteen years and tot « party to the

within entitled action; my business address is: 3407 West Sixth

Street, Suite 801, Low Angeles, Californie 90005,

5 Om June 8, 1970, 1 served the within Pointe and Authorities

in Opposition to Motion to Strike Point on Appeal and Disdies Appeal

ae to Said Point, on the defendants in said action, by placing « true

copy thereof enclosed in « sealed envelope with postage thereon fully

ptepaid, in the United States wail at Los Angeles, addressed as

follows: / | ae

Gas south Vibes seen? |

Los Angeles, California 90017. .

Wheeler, McCue & Morris

Loe Angeles,” at rorase” 90023

Robert A, Keller, Eeq, a

612 South Flower Street

Les Angeles, California 90017

I declare under penalty of perjury thee pene foregoing ie true

and. correct, -

Executed on June 6, 1970, at Los Angeles, California.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA ;

SECOND APPELLATE DISTRICT a

2pé Civil Mo. 36226

DAVID KRAMER, et al., ;

Plaintiffs end )

Appellants, ;

“ve. =

_ BETTER BUSINESS BUREAU or Ct )

LOS ANGELES, LTD., et al., ;

Defendants and ss)

Respondents. ,

The undeveiqned Downey A. Grosenbaugh declares that: °

1, ‘1 am the attorney representing the defendant and

‘Feapondent Better Business Bureau of Los Angeles, Ltd. I meke thie

application in behalf of my client and in behalf of the other respondents

who join in this application by their attorneys, whose signatures are

affixed hereto,

2. °Om July 9, 1970 at 9:30 A.M. @ motion is set for hearing

before this honorable Court to strike one of the appellants’ points

_ 0 appeal and to diomiss the appeal as to that point. (See Notice a

of Motion to Strike Point on Appeal and Dismiss Appeal as to Said

Point; Supporting Declaration; and Pointe and Authorities in Support

‘Thereof, filed on May 27,1970.)

3. The appellants’ opening brief was personally served

upon all of the undersigned on or about June 11, 1970, thus re-

quiring the respondents’ briefs to be filed on or about July 13, 1970.

4, The content of the respondents’ briefs will depend upon

the ruling made on the pending siotion.

WHEREFORE, the undersigned respectfully request that this

’

cichgueniin a ;

file their reply briefs,

I declare under penalty of perjury that the foregoing is

true and correct ..

Buscuted at Los Angeles, Californie, this let day of July

1970.

pewer for ssenbaush

Better Business Bureau of Los Angeles, Led.

The undersigned join in the foregoing application.

Attorney for Defendant Air-Vent

Aluminum Awning Co.

———/e/_John J. McCue

John J. MeCue

Attorney for Defendant Sears,

Reebuck and Co,

QRDER

Vor good cause shown, IT I8 ORDERED that the time to file

ad serve the respondents’ reply briefs is extended or

11970,

Dated this _6 day of July 1970.

”

(PROOF OF SERVICE BY MAIL~1013a, 2015.5 C.C.P.)

STATE OF CALIFORNIA )

) es.

COUNTY OF Los ANGELES )

T am a citizen of the United States and @ resident of the

county aforesaid; I am over the age of eighteen years and not a

party to the within above entitled action; my business address is:

c/o Meserve, Mumper & Hughes, Suite 500, 612 South Flower Street,

Los Angeles, California 90017.

On July 6, 1970, I served the within APPLICATION FOR

, EXTENSION OF TIME TO FILE RESPONDENT’ 5 BRIEF AND ORDER, on the

plaintiffs and appellants in said action, by placing a true copy there-

of enclosed in a sealed envelope with postage thereon fully prepaid,

in the United States post office mail box at 612 South: Flower

Street, Los Angeles, California 90017, addressed as follows:

| Mr. David Kramer Mr. Stanford H. Berman

3921 W. Jefferson Blvd. 3921 W. Jefferson Blvd,

Los Angeles, California 90016 Los Angeles, Calif. 90016

I declare under penalty of perjury that the foregoing is

true and correct.

Executed on July 6, 1970, at Los Angeles, California.

Jeanne B. Miller

j.3

P A complete listing of the Board of Directors

of the CITY NATIONAL BANK as shown on their brochure of

alune 30, 1070, present; |

“JOSEPH BANDLER Investments

LOUIS (. HLA Attorney at Law

ISADOKE FAMILIAN President

Price Pfister Brass Mfg. Co,

MARTIN GANG Attorney at Law

Giang, Tyre & Brown °

; te

BRAM GOLDSMITH President |

Huckeye Realty & Management Corp,

AKMAND HIAMMER President ap

(eeidental Petroleum Corporation am

ALFRED HART Chairman of the Board

RUGENE V. KLEIN Chairman

National General Corporation

CHESTER 1, LAPPEN Attorney at law

Mitchell, Silberberg & Knupp

SID WW. LEVINE Partner

Royal Investment Company

WILLIAM 1. OLSEN Executive Vice President

CURTIS H. PALMER President

JOUN J. POLLON Vice President-Director

Amana Refrigeration, Inc,

MARCUS H, RABWIN, M.D, Surgeon

LESTER WM, ROTH Investments

H. W. SALL President

Western Non-Ferrous Metals Corp

MARK 5S, SCHULMAN President

Marks Security Corporation

K-!

} APYHNDEK J.

ad Civil 36940

DePWE COURT oF ARPKAL OF THK BTATK OF CALIFORNIA

BRCOM) APPRLLATE DiBTRICT

DIVISION Two

DAV ib KRAMEM wind HTANVOK) HH, WKMMAN,

Platntiffea and Appellants,

v, .

-“

BETTER BURINKHH BUKKAU OF LOB ANGELEA, . ~

LtD,, a Corporation, OLIN H, TAPP, an

individual, ALR- VENT (Aluminum) AWNING

CO,, # corporation, and BRAKE WOR MUCH

(AND CO,, ® corporation,

Defendants and Keapondente, |

REPORTER'S TRANKGKIPT OF ORAL ARGUMENT

July 0, 1070

APPRKARANC KB ; |

Vor Plaintiff DAVID KMAMER, in Propria Persons

and Appellant: 302) Weet Jefferson Rouleverd

Low Angeles, California 90016

Telephone: BE L876)

Vor Defendant and MRGRAVE, MUMPER & WUGHES

Respondent better DOWNEY A, GROBRNRAUGH

Business Bureau of 612 Bouth Plower Street

Loe Angeles, Led, : Loe Angeles, California 90017

Telephone: 620-0300

bd 2

‘ 4

{ Ks

e !

1H THE COURT OF APPEAL OF THE STATE OF CALIFORNIA °

SECOND APPELLATE DISTRICT

, DIVISION Two :

Serena geeeces

DAVID KRAMER and STANFORD H, BERMAN, .

Plaintiffs and Appellante,

Vv»

BETTER BUSINESS BUREAU OF Los ANGELES,

LTD., a corporation, OLIN H. .STAPP, an

(Aluminum) AWNING

09., @ corporation, and BEARS RORBUCK

individual, AIR-VENT

CO., @ corporation,

Defendants and Respondents.

2d Civ, 36226

)

| d

REPORTER'S TRANSCRIPT OF ORAL ARGUMENT

July 9, 1970-

APPEARANCES ;

Vor Plaintiff and

Appellant:

DAVID

KRAMER, in Prepria Persona

3921 West Jefferson Boulevar |

Los Angeles, California 900)

Telephone:

MESERVE, MUMPER & HUGHES

By ‘DOWNEY A. GROSENBAUGH

612 Bouth Flower int

For Defendant and eo

Respondent Better :

Business Bureau of

Los Angeles, Ltd,:

RE 1-876)

Loe Angeles, Califdrnia 90017

Telephone: 620-03

‘

LOS ANGELES, CALIFORNIA, THURSDAY, JULY 9, 1970

| errr egececas

WR. JUSTICE ROTH: Kramer v. Better Business

MR. GROSENBAUGH: I am Downey A, Grosenbaugh, the

attorney for the moving party and the respondent Better < §

Business Bureau,

I am willing to submitthis motion on the briefs

and record as it ia filed.

I wish to make one observation that I feel would

be proper, and under the Haskine v. Crumley case, that's on

the last page of the brief, that if the court feele that the

motion is well taken, that Mr. Kramer, the appellant be

given additional time in order to prepare a full record on

appeal, that, of course, presupposes the court agrees that

our point is well taken, I might observe that we have called

what we believe ie an error to the trial court's attention

and to the appellate court's attention before for the reason

that we didn't want to appear to not do this and just sit

back and take some advantage of a person that's appearing in

pro per,

Unless the court has some inquiry I have no other

comments to make.

MR. JUSTICE ROTH: All right. Mr. Kramer.

MR. KRAMER: First of all, we hadn't been advised

that this was going to come up, and the defendants had

L-3

Bante

twenty months in which to advise us that they were going to

bring up this motion, and they didn't do it. They brought

it up Spproximately about June 15, knowing that the deadline |

was going to be June 15 -- I mean Juné 1 knowing that the — | |

deadline was going to be June 15, .

The clerk's transcript on pages 640 to 869 shows

the defendants in support of their motion on 631.8 gave the

trial court and the plaintiffs a summary of testimony of

witnesses in lieu of reporter's transcript té aid the trial:

court in making its decision. fo this te @ pretty late

date for the defendants to deny that they stfpulated that

this could be used. I have -- 7

JUSTICE HERNDON: Mr, Grosenbaugh, we have before

us an incomplete record, Ag I understand your position, the

appellant here proceeds on the erroneous notion that a review

of @ judgment made pursuant to 631.8 is similar to that on

@ directed verdict or nonsuit, whereas, in truth and in fact,

our review simply calle for a determination whether there

= owe ee es = TTD Spin cntipmmeteetee

te substantial evidence to support the findings of the trial &

—— ee Ce oc eee a o_o -_. = ee ~ oe

court adverse to the appellant.

~=_ ew

The other proposition argued by the appellant, as

I understand it, is that there was a waiver of a right to

proceed, or to determine the case, under 631.8 because

certain evidence had been received by the court offered by

the defendant out of order. Well, that seems to me, probably,

@ completely untenable premise, At least as to the question F

L-4 :

eee area ee.

Vtetemt te pect ty showtan's he sapeat be dtemtaned on :

epeett te error eany times. t Beltewe that the polet te not

well taken. 1 Delteve thet the record would whew, although

| E Rave mot quentond tt preetesty, thet mumber ome the court

“an 2 eRGME to conduct the ender of tetel. The were fect

Although it te mot of record, for = very Limited purpose,

thet Uhis does ot deprive the Gefendunt of the right to

sabe @ ection under 631.8. '

| SOSTICE weemon: til, Ut deen to we thet any

(2. Gesmmawen: 1 hove to agree. I have aot |

waged thet for the reason thet I ¢o aot believe thet it'wes ~

SD €0 ae te presente the methed of the extent of the in

pte per’e appeal. 1 --

| ?

ao Sas Geen cheerved from the bench here previowbly, be is

wet Created any €ifferent then « person thet is represented

me)

.-*

your Gener. t wnderetent ent t agree. & whebelieartedty

| RSFER Chat the potet te aot wet teten ot atl, and t woete

be pertectiy wilting to etther auund ap motion, oF by writing,

te Rave Seth the peters en appeal stricken, |

, (i SUOTIOR ROTM Tee court feats thet tt tes

Wnts wunver, Mr. framer, and thet thts te a

appeal Te fe going te wubmtt the eotton because

we may, wntens convinced to the contrary, dtentes the appeal

ef oer ew antion. Teerefore, we will give you ten Gaye

within watch to @ bete?, Af you co dentre, te tnéteste

to we the coasons why the appeal ehoulé not be Glentesed cs

frivolous. tnt cree ay ere San fap tn tn

to reaped.

2. cnesumaven: Thanet you, your enor.

. JUSTICE GOTH: te thet eattefactery te you!

Nave Geum chout these and e half te four eenths preparing

this brief, and te cay thet I chouké prepare another brief

venmuse of what be tas just eni¢ aust te -- I, I, — mt

eee cake as auch time to prepare another brief es it 414

the first one. and co far cs being frivolous is concerned,

t can't understand the posttion because — ~- Well, let =

et ovate, the defendants have on efvantage ever the

plaintiff for « very simple eensen, this -- the judge --

L-é

duhn Roque, Getendent, attorney Gefendack, of SeereRevbes:

xe |

WR. JESTICE koTH: wnt, to commence teh te,

frame: Gresemhengh

| HA RMN: t Gent enderetand whet you are

telling me

with the record, nd we feel thet At te a ftvstons appeet. ”

rN On wy port.

WR. sueTece nore: On your part, yes. We feel

cnt we ore tuclteet to dtuniee the appeal of cur om axtion.

Rew, we will give you ten days within whteh to file « tefet

te couvince us otherwise. Uf you want ore tine we will

give you twenty days.

when I filed theee points. t 480n"t @o it on ay ow.

JUSTICE HERNDON: You cen consult the sane counsel

o> Guar exppiemaneed Gated. *

tS WW. JUSTICE ROTH: Tf counsel filed thie brief

our caply to him would be precioely whet we are telling you.

We ere going te aark the astter cubuitted, and we will: give

the appellanttwenty days to file authorities to indicate

L-7

a 4

r °.

8 °

>»

~. 2

» °

‘ ~

‘ . 9

”

m ;

| peal. t was tn all sincerity when I wrote the appeal, ond

> so why he appeal shout wot be dtuntened a0 frivolous,

and Give Wr. Groseebangh ten Gaye within witch te reply.

=. Gam Your Romore, t don't thteh thts case

wee Tiled frivetownty. t thteh thte cave. wee ftted tn ot!

Stncortty and t whieh chat att the trtate thet T hove hed

teretotore, I aean.wtth the trial ceurt --

| 2. JUSTICE GoTm: fe. Greer --

WR. Capt: § ~~ t don’t Goubt whatecever --

we. FeRTICE OTH: Wr. Reamer, we ere not peaking

Ghent filing of the original case fetveteusiy. = ae

epnatiteg cheut the appeal. uy

=. cm: That te whet I am talking about, the

the agpeal, tn ay judgnent, regerdiess of what your Honors

What it te friveleus te covering up the actions of the trial

court .

Seapentent moves te strike « point on appeal

and Giomiss egpeal es to seid point. this motion is

tayend the cight of the trial court to consider becemse =

. a

}

‘ .

; ’

: -

~ .

Ma,

Judqnent under section 631.8 of the Code of Civil procedure.

“The Cent ie the same es @ review of any other findings

of a trial: court. That is, is there substantial evidence

in the record to support the trial court findings? ae

(Greening v - General Air-Conditioning Corp... 233 Cal.App.

26 545; Cherles C. Chapman Building Co. v. California

Mert, 2 Cal.app.34 646.)

The appellant, however, -secks to convince thie

gfourt that he presented evidence which established a

prima facie case for the plaintiff. It is apparent that

he is secking to apply a rule of law which would be

*pplicable to a non-suit. ‘This explains the pertial

| reporter’s transcript.

Appellant's second point raised by the notice

of eppeal eppears on its face to be groundless end without

merit. There is nothing in section 631.8 of the Code of

Civil Procedure which can be construed as limiting the

| power of @ judge to grant such @ motion simply beceuse |

he has heard some defense testimony. In this case, as

Occurs so often in trial,. the court permitted defendant

a M-2

July 9, 1970, the court indicated @ disposition to dismiss

the appeal as frivolous. only “ppellént Berman appeared

in opposition to the motion. The court granted-20.deys

*° appellants to submit supplemental points and

authorities on why the court should not dismiss the appeal.

Respondent was givdn 10 days to answer. Only appellant

Mramer has filed anything with the court. On July 29,

ppellant Kramer filed a “supplemente! Opening. ariet,-

This document does not come to grips with the

point raised in the motion nor with the court's view as

Te ae

The respondent s' motion is granted. The remain-

ing portion of the appeal is dismissed on the court’s

own motion, “ e

The eppesi of both Kramer and Berman is dismissed

@s to all respondents.

The order dismissing the appeal filed August 27,

is corrected as follows:

On page 3, line 7, etrihe “Berman” and in its .

insert the name "Kramer." 3

Yr, ep | a

- i e

& -

LA?

c ;

—o

ae)

—_

STAMPORD U. SERUM, ot ol., |

Pletacifts, ? Mo. 612686

; ve. VIMDINGS OF PACT AID

CONCLUSIONS OF Law a

)

}

% Peank C. Chervet, commencing on December 5, 1967, ase jury trial. There-

efter, the jury heving been exprosaly waived by all pertics, the case

continued es « court trial. |

defendent Setter Business Bureau of Los Angeles, Ltd., 0 corporation,

eppeared by Nescrve, Munpor & Maghes, through Attorney Downey A. Grosenbinigh;: Fee

therfefendents Olin B. Stepp, on individesl, and Ais-Voat (Alumious) uming *

_ 0+, & eaxporation, appeared by Attorney Robert A. Keller; end the defendant

fears, Resbuck and Co., 2 corporation, appeased by Uhecles, NeCue & Rnox |

. Taeeeeniiiineen ia ean Deal . SN RCN REECE aay

eee

a . : —

he Const Ginected tlist the ender of panef would pressed

the Joint Pre-Tyiel Stetensst. After the platati#fe tad pessentes

ell of. chats evidence on these teeues ond had sested, the éefentents

pocccated § wsttten aotton exported by oval angunente for 2 |

; Jutgnent in behalf of oll defentunts yurmsent to Section 631: ae

Mt he Code of Cott Prncaturs. @n Mey 17, 1968, this eotion was

‘qutmttted to the Court for decision.

The Court hoving hesrd the tostiaeay,, heving euanined che

pecete offeved by the respective pertice, heving sonstintes the® a

crores precentnt by if te partion, and beta faity atriens

g to the prantond, ep ee Ott etme =

«WEES OF pact :

The detdadente 414 act conspire between or aneng thenselves

to Limit or seduce the production of pan and gover.type of slimiows

eunings, or co incsease or fix the price thesesl, or to provest of

Minit competition 1 the Gemufecture or sale therest, ox to violate

ov ethos guovtatons of the Gantunighe tas.

ei Noes ar

| Defendent Sears, Rocbuck ond Co. 444 not, nor dees it nov,

dominste the market for the sale ond distribution of pen and cover

type of elusiaun evaings.

Imi

Defentents Ais-Vest Alunioun Auming Co. end Olin B. Stepp

444 not, nor do they nov, depinste the market for the asnufecture,

sale or dieteibution of pon ond cover type of sluniaun evnings;

asither 414 these defenducis heretofore heve, saree.

@ monopoly in esid market.

Oa-a en

The various publications of the Better Business Bureeu,

mow in evidence, and the various letters, also nev in evidence, |

written by employees of this defendent ond relating to the plaintifte

and to other eluminum evning dealers, were intended to and 414

Feasonsbly reflect the information thet the Better Business: Bureau

hed in its files, and the Better Business Bureau had probable

cause to deen said information eubstantially eccurete. Moreover,

euch publications end letters, not prompted by mslice, vere queli-

fiedly privileged under Section 47(3) of the Civil Code.

The wawarrented removal from the files of the Better

Business Bureau by David Ross of papers containing sone unfavorable

information about 0. i. Stapp end Air-Vent Aluminum Awning Co.

was 6 gratuitous and unselicited act heaving no relation to any

alleged conspiratorial activity,

Prom the foregoing facts the Court concludes:

CONCLUSIONS OF LAW

1, The motion of the defendants for judgment under

Section 631.8 of the Code of Civil Procedure should be granted.

2. The defendants are entitled to recover their esses.

3. Judgment should be entered accordingly.

DATED a) 2 1968.

a aa gs —

0-3 ied

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