# Petition for Writ of Certiorari — Kramer v. Better Business Bureau of Los Angeles, Ltd. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0644%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 401 U.S. 993 ## Text (213) 731-8761 FOR A WRIT DAVID KRAMER 3921 West Jefferson Boulevard Los Angeies, California 90016 » In Propria Persona Ce . , Ce 28 U.S.C. 1257 2 Ck ee Me me, 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 % t " i ¢ v . a ‘ ss) . ) Pa \ { ? - 4 e ° , * © ‘ b& e q ‘ ‘ r — > . P \ ; = ‘ rs 3 : + a ad did issue uppropriate orders to the real parties in interest to file such amended notices (Appendix | [Dp. | Vv 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. ) vi 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, 4. transmit and file part of record on appeal (Appendix [F)). mR 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 the > : @ fe: Justice Herndon sat a presiding justice. . , aan The senior. member of the firm of Meserve, ; Mumper and Hughes is on the Executive Board of -— [a their attempt to convince the court that the should not-be dismissed, and also filed a ut i HH f . | : g f a i i | i | ! UVttt» = 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. I] , 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 a) ee 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. IV 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. & | a 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. i. ! , ) \24 Civ. Mo. 34013 LOS ANGELES, LTD., ) a Petitione = a t cr, ; Court ant ean Dist. 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 Pd 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 a F ~~ ae a ~~ 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 A-2 meen 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 = ~ oO 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. a 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. A-6 & (7 eo” ee . 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.) A-8 oo stoggrenLenge annem © neD ° J ’ . . ° %, ‘ = . @ . . ‘ “a ) — “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), \ —_ nn 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 © evdered to be talen in the reparation of the record on _ 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. ) B-9 : e : Be ; 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 . . a o 0 Pg 2 A , ° . = 6 ; : . > : 9 e 4 : e ° t ° #4 —_ 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, ——,. z- 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) ae co ———_ —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 9 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 & Fs Ht i ile iH : Ht “dence on their behalf” can be determined erence to any portion of the reporter's if £228 go Dated this 24th day of June, 1968. Meserve, Mumpee & Huenns,’ By Dowmey A. Grosensaucn, Attorneys for Petitioner. @-10 / . 9 . > °) , 3 2 / « . t . s . ‘ % 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, ‘ 2 (y s | . 9 cH . 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 (c) Mark Zucker, Sr.; (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 ae > 6 (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 A, >, . 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 te 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 ¢ a IN THE COURT OF APPEAL OF THE STATE OF GALIFORNIA SECOND APPELLATE DISTRICT a 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 ¢ . — =~ sd 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, ve 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 4 ” ee} a 4k ¢ 6) 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. 4 233 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 a 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 19 ¢- 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 bb Se emt nacre oe - g 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 ey 1. Merk Zucker January 3, 1968 tee _ demary 4, 1968 «arte Becher, Je) Jenuary 4, 1968 3. James D. Williams January 8, 1968 ia 6. «= Rmer LePon January 6, 1968 Jemuasy 9, 1968 - 5S. John R. O’tlere Jenuery 25, 1968 a i February 14, 1968 Hoi ve ww >) oe -_— 6 ms 19) Se ee | 7! ° . . nn 7. 8. 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 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— id e* 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 end not © perty to the within shove entitled ection; ay 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 | b 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 I 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 a aR 2 / mG 6 _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. e* ¢ a IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA ; 5 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. , Se 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-! mo } 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 Ll bd 7 , . t 2 bd 2 ‘ 4 2 é é { Ks e ! g , 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 2 ) ) ) ) ) ) ) ) ) ) ) ) ) ) | 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 ‘ a 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 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 ad QA r °. 8 ° >» a . % ~. 2 ? » ° Y ° ‘ ~ Q « o e . a ‘ . 9 6 ry ” : m ; | peal. t was tn all sincerity when I wrote the appeal, ond o- > 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 cay, te aot frivolous, but © very certous thing. and to cay 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 = 8 . ° . a . } i ' j é ‘ . - ? 4 , 4 ; ’ b 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 ee ti - Yr, ep | a - i e 9 2 e é \ 4 2 & - LA? a c ; —o ° * e 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 w eee ? a . : — he Const Ginected tlist the ender of panef would pressed Cteet on the euictense or eewreftovenee of © conpizecy tevetitag 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 : r 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. o> Yo 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 Tv 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0644%3A1. Public record. Not legal advice.