Petition for Writ of Certiorari — Generes v. Stich (No. 74-528)

OF THE

Rnited States

OcTOBER TERM, 1974

/ eer Q

No. %{4-> 3<6

HELEN Fave GENERES, Petitioner

vs.

EUGENE D. STICH, et al., and the CALIFORNIA COURT OF APPEAL

STATE OF CALIFORNIA, Respondents

PETITION FOR

AN ALTERNATIVE WRIT OF PROHIBITION

and /or

PETITION FOR A WRIT OF CERTIORARI

to the California Court of Appeal

HELEN Faye GENERES

2538 Waldon Street

Redding, California 96001

Telephone (916) 243-0586

Petitioner.

SUBJECT INDEX

Opinions Beiow ...

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Constitutional and Statutory Provisious involved —.......

Statement of the Case .....00.0.......... Fst big etic es lnnieacenamicehanceupebinn

IN rr I ec din sesh cnaasanidcihesas tbascanenseecieeniabtnsense

It is a Denial of Equal Protection and Due Process and Violates

Fundamental Constitutional Rights under the Fourteenth

Amendment for the Court of Appeal to Make a Decision

in Direct Conflict with All the Case Law Decisions in Every

Other Appellate Court of California that Have Been Upheld

by the Supreme Court of California that state an Untimely

I NN occas caccocnsosateanisiedhandcsianansninhoaeaniaddanneses

Ir is a Denial of Equal Protection and Due Process and Violates

Fundamental Constitutional Guarantees under the Fourteenth

Amendment for the Courts to Arbitrarily and Capriciously

Discriminate in the Application of the law Against a Lay

Person who Acts as Her Own Lawyer, to Deprive Her of her

Rightful Earnings from a Lawful Occupation and a Livelihood

to favor a Famous Attorney Who Makes his snail —

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TABLE OF AUTHORITIES CITED

CASES

Estate of Hanley (193-4) 149 ALR 1250; 145 P2d 423; 232d 120,:23 6

Desherow v. Rhodes (1969) 1 CA3d 733; 82 Cal. Rptr. 138 at 141 6,7

In Re Morrow (1970) 9 CA 2d 39, 88 Cal. Rptr. 142 2000. 6

Nu-Way Associates Inc. v. Keefe 15 CA 3d 926 at 928 (1971) 00... 5

Stegmann v. Holder (1963) 223 CA 2d 531 at 535; Cal. Rper. 1 ...... 6

Slawinski v. Mocettini (1905) 63 C2d 70; 45 Cal. Rptr. 15 .............. 6

Thompson, Curtis, Lawson & Parrish v. Thorne (1971) 21 CA 3d

FE I FID ccinerics esteensiaatinaticinnaictonecan einen riapeueniiies 7

CODES

California Code of Civil Procedure 664.5 .0.2........cccseeccceceteeeecereeeeees 3

California Code of Civil Procedure Section 1013 .20.......222.....1::esceeeeeees 4

ee eee 3

Rn UE I CRI I is rreecrtctereretcrernactnnecintemerssinsenteesstpaannens 3

California Rules of Court Rule 45 (C) (€) -....2.:0200cccccecceceeeeeeee fee roe

CONSTITUTIONAL AMENDMENTS

Fifth Amendment to the U.S. Constitution ............22.2.222.:20-sce0eeceeeceeees- 2

Fourteenth Amendment to the U.S. Constitution .................. 2, 3,6,7,9

STATUTES

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TEXTS

California Civil Appellate Practice Supplement by Edward L.

Lascher (July 1974) California Continuing Education of the

Bar. Introduction is by Donald R. Wright, Chief Justice of

| RES SIC E SIA Ti Bah Det Sas ee Ae TIPE 7,3

California State Bar Journal—September-October 1974 | .......2.0........ 8

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1974

No.

HELEN Faye GENERES, Petitioner

VS.

EuGENE D. Sticu, et al., and the CALIFORNIA COURT OF APPEAL

STATE OF CALIFORNIA, Respondents

MOTION FOR LEAVE TO FILE AND FOR

PETITION FOR

AN ALTERNATIVE WRIT OF PROHIBITION

and /or

PETITION FOR A WRIT OF CERTIORARI

to the California Court of Appeal

Third Appellate District

The Petitioner, Helen Faye Generes, prays that an Alternative

Writ of Prohibition and /or a Writ of Certiorari issue to review

the judgment of the Supreme Court of the State of California of

September 12, 1974, after judgment of the Court of Appeal, Third

Appellate District, on July 18, 1974 that vacated its April 24, 1974

order that granted petitioner's motion to dismiss the untimely

appeal, which was upheld by the Supreme Court of California.

OPINIONS BELOW

The judgments of the Supreme Court and the Court of Appeal

were without opinion and are attached as Appendix A and B.

Certified copies of the Judgment, Motion for New Trial Denied,

not aN Gl

Re oe

Weed hia ni dAM ak uaabich PA bebe ie dale ae Sia, WRU aire

2

and Folio of Register o. Civil Actions are attached as Appendix

C, D and E—respectively.

JURISDICTION

The Supreme Court of the State of California denied a Petition

for Hearing. without opinion, on September 12, 1974. The juris-

diction of This Court is invoked under 28 U.S$ ©. Section 1257;

and 28 U.S.C. Section 1651.

QUESTIONS PRESENTED

The statutery procedural requirements both Federal and State

are jurisdictional and mandatory. Petitioner has exhausted her

State remedies. The Court of Appeal has acted beyond, and will

continue to act in excess and without jurisdiction unless pro-

hibited by This Court. The Constitutional question of the Un-

timely Appeal was raised in a Motion to Dismiss the Appeal in

The California Courts. The Court of Appeal granted petitioner's

motion to dismiss the appeal. Thereafter, appellants substituted

attorneys, and the Court of Appeal, without opinion, 84 days, al-

most three months later, vacated their order of April 25, 1974 that

dismisse< the appeal in Violation of Fifth and Fourteenth Amend-

me~.t Guarantees.

1. Whether it is a Denial of Equal Protection and Due Proc-

ess and Violates Fundamental Constitutional Rights under the

Fourteenth Amendment for the Court of Appeal to make a de-

cision in direct conflict with all the case law decisions in every

_ other appellate court of California that have been Upheld by

the Supreme Court of California that state an Untimely Appeal

_ must be dismissed.

2. Whether it is a Denial of Equal Protection and Due Proc-

_ ess and Violates Fundamental Constitutional Guarantees under

3

the Fourteenth Amendment foi the Courts to Arbitrarily and

Capriciously discriminate in the application of the law against a

lay person who acts as her own lawyer, to deprive her of her

rightful earnngs from a lawful occupation and a livelihood to

favor a famous attorney who makes his money fighting Jawsuits?

Constitutional and Statutory Provisions Involved

28 U.S.C. Section 1257:

“Final judgments or decrees rendered by the highest Court

Me.

of a State :n which a decision couid be had may be reviewed

by the Supreme Court by . . . writ of certiorari.”

28 U.S.C. Section 1651:

(a) The Supreme Court may issue all writs necessary or ap-

propriate in aid of respective jurisdiction.

(b) An alternative writ of prohibition may be issued.

Constitution of the United States, Amendment XIV:

. . no State shall make or enforce any law which shall

abridge the privileges of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

This case involves the following statutes of the State of Cali-

fornia.

California Code of Civil Procedure 664.5 as set forth in Cali-

fornia rules of Court: Rule 2:

‘, . . motice of appeal shall be filed within 60 days after the

date of mailing notice of entry of judgment by the clerk of

the court pursuant to section 664.5 of the Code of Civil Pro-

cedure...

Rule 3: ‘““When a valid notice of intention to move for a new

ers es

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4

trial is served and filed by any party, and the motion is denied,

the time for filing the notice of appeal from the judgment is

extended for all pacties until 30 days after entry of the order

denying the motion. . .”

California Code of Civil Procedure Section i013:

“expressly removes any time extending effect of mail service

of notice of entry of judgment and the time for Sling notice

of appeal.”

California Rules of Court Rule 45 (c) and (e):

“The time for filing a notice of appeal shall not be ex-

tended.” “The reviewing court for good cause may relieve

a party from default occasioned by any failure to comply

with these rules, except the failure to give umely notice of

appeal.”

STATEMENT OF THE CASE

Introduction. '

Procedural History and Facts:

On December 5, 1974 the Judgment was served and entered.

Appendix C. The motion for new trial was not valid as it was

not served. It did not extend the time to appeal from the judg-

ment. The Court made and signed its written order that the mo-

tion for new trial was denied on January 7, 1974, Appendix D.

'Petitioner, a licensed real estate broker, under an exclusive listing sold

a beer and wine distributorship. The buyer and seller executed a legal

binding contract. The broker's commission was $20,439.30. The buyer

quit his job in southern California, sold his home, and moved his family

and furniture to Redding. After obtaining their Federal and Strate licenses

and permits to operate the business, they demanded a covenant not to

compete that was not in the sales contract. The buyers—the Stitches—

served notice of recission. The Trial Court found the buyer and seller

acted in collusion and “bad faith.” The buyers—Stitches—filed a com-

plaint against petitioner-broker. They did not sue the seller. Judg-

ment was in favor of broker for $20,439.30 against seller. Buyers—

Stiches—filed an appeal against judgment in favor of petitioner.

5

It was entered in the Register of Civil Actions January 7, 1974.

Appendix E-1. The original order is filed in its proper sequence

under date of January 7, 1974 in the Court's Permanent Minute

Book 95, Department I. On February 7, 1974 the appellants filed

a notice of appeal. The time to appeal from the judgment ex-

pired on February 3, 1974. Had the motion for new trial been

valid, it was still untimely. Thirty days from January 7th, 1974

is February 6th, 1974. This was one day too late. All the parties

relied on the January 7, 1974 written order as the date the time

commenced to run for appeal including the Trial Court. After

the notice of appeal was filed a “yellow copy” of the order in the

clerk’s case file was stamped with a rubber file stamp date ot

January 9, 1974. See Appendix E-2.

On February 26, 1974 petitioner filed a motion to dismiss the

appeal and on March 5, 1974 the Triai Court ruled: The motion

to dismiss is denied in this Court for want of jurisdiction, without

prejudice, to bringing the matter to the attention of the District

Court of Appeal and quoted: ‘Where a notice of appeal is un-

timely, the appellate court on its own motion must dismiss the

appeal. Na-Way Associates Inc. v. Keefe (197i) 15 CA 3rd 926

at 928.”

On April 25, 1974 Petitioner filed a Motion to Dismiss in the

Court of Appeal. On April 25th, 1974 the Court granted the

Motion to Dismiss the Untimely Appeal, and on May 9th, 1974

denied appellants Petition for ReHearing.

On June 26, 1974 Appellants substituted counsels and on July

18, 1974 the Court of Appeal vacated their April 25, 1974 order

that dismissed the appeal, without opinion. Petitioner filed a

Petition for rehearing, it was denied. Petitioner filed a Petition

for Hearing in Supreme Court and it was denied. Appendix A and

B. Petitioner has exhausted her remedies in the State Courts.

6

REASONS FOR GRANTING THE WRIT

It is a Denial of Equal Protection and Due Process and Violates

Fundamental Constitutional Rights under the Fourteenth

Amendment for the Court of Appeal to Make a Decision

in Direct Conflict with All the Case Law Decisions in Every

Other Appellate Court of California that Have Been Up-

held by the Supreme Court of California that state an

Untimely Appeal must be Dismissed.

“The power to relieve against excusable delay in complying

with procedural requirements relating to appeals does not extend

to delay in the taking of an appeal which is jurisdictional.” Estate

of Hanley (1934), 149 ALR 1250; 145 P2d 423; 23 C2d 120,

123; Stegmann v. Holder (1963), 223 CA2d 531 at 535; 36 Cal.

Rptr. 1. Desherow v. Rhodes (1969), 1 CA3d 733; 82 Cal. Rptr.

138 at 141; the Court said, “The failure of the clerk to stamp the

date on the order at the time he was instructed to do so does not

prevent the effective entry of the order on the date the judge

ordered it to be entered.”

There have been only two exceptions in Civil Cases in pub-

lished California Law Decisions. In the Slawéski v. Mocettini

(1965), 63 C2d 70; 45 Cal. Rptr. 15, the date typed on the order

was incorrect and the court said the parties were entitled to rely

on the written order of the judge denying the new trial. And in

the Morrow case (1970) 9 CA2d 39, 88 Cal. Rptr. 142 there was

no Opposition to the untimely appeal until it was raised in the

reply brief. The court ruled this was a waiver of objection by

failure to protest. In the case at bar, the date typed on the order

was correct and petitioner has protested strenuously. All parties

relied on the January 7th, 1974 date of entry.

All the published case law decisions re-emphasize that a depar-

ture from the strict requirement of timely notice of appeal can

succeed only in highly unusual and factually compelling cases.

7

An attempt to rationalize this further appears in Thompson,

Curtis, Lawson and Parrish v. Thorne (1971) 21 CA3d 797; 98

Cal. Rptr. 753 in which the Court said that quasi-estoppel requires

that the appellant establishes (1) that he was justifiably in doubt

regarding the time within which the notice was required to be

filed; and (2) that this doubt was caused by his reliance upon

some conduct by the respondent, at least some pari of which oc-

curred prior to the filing of the notice. There is no estoppel in

the case at bar. Appellants counsel is just trying to pull a fast one.

see California Civil Appellate Practice Supplement, CEB, Author

Edward L. Lascher (July 1974) page 20 section 3.96 and page 42

section 10.12: in which he quotes Desherow +. Rhodes supra.

“Failure of the clerk to stamp the date tiled on the order . . . does

not prevent the effective entry of the prder.?

It is a Denial of Equal Protection and Due Process and Violates

Fundamental Constitutional Guarantees under the Four-

teenth Amendment for the Courts to Arbitrarily and Capri-

ciously Discriminate in the Application of the law Against

a Lay Person who Acts as Her Own Lawyer, to Deprive

Her of her Rightful Earnings from a Lawful Occupation

and a Livelihood to favor a Famous Attorney Who Makes

his Money Fighting Lawsuits.

The Court of Appeal was discriminatory and arbitrary when

they reversed the decision that dismissed the appeal. The Four-

teenth Amendment prohibits any State from taking an action

which would deny to any person within its jurisdiction the equal

protecton of the laws.

After the Court of Appeal granted petitioner's motion to dis-

miss the appeal, appellants employed an additional counsel, Mr.

2"... . the Shasta County Clerk's Office was shaken not too long ago

by the still unsolved theft or embezzlement of a healthy chunk of county

funds.” Record-Searchlight—June 28, 1974. (Over $1000.00.)

sania (Ai ie

8

Edward L. Lascher, a famous appellate specialist, and Editor of

the California State Bar Journal; and Author of California Civil

Practice (July 1974) Supplement—Continuing Education of the

Bar. Mr. Lascher threw his weight around and obtained the re-

versal. The reversa! was without opinion. There were no grounds

under the applicable California laws for reversal. The California

Appellate Courts failed to make an independent de novo exami.

nation of the facts as required by the doctrine of Constitutional

Fact—Appendix C, D, E-1-2, F, or they would have been com-

pelled to uphold its decision that dismissed the appeal. The ap-

pellate judges were biased and prejudiced as they must have

thought because Lascher is a “bigwig’’. he’s right and discrimi

nated and ignored petitioner, a lay person, who acted as her own

lawyer. The Courts in its efficiency to eliminate motions on its

docket swept justice under the rug while the good published lav.

remains on the books.

This Court is requested to take judicial notice of Mr. Lascher’s

Editorial in the September-October 1974 issue of the California

State Bar Journal, page 466.5

3LASCHER AT LARGE (symbol! Tiger) at 467 quote: “Re-Hlusionment

—Speaking of settlement, I am delighted to digress to recount an incident

our profession should hear about. About 9:30 one morning recently, 1

settled a long and bitterly contested case on the telephone. A_ principal

ingredient of the deal was my side's dismissing its pending proceeding

for appellate review of a crucial order. Fifteen minutes later . . . my

mail arrived. In it was the decision against us... . I picked up the tcle-

phone and called Jack back, telling him that I had received the decision

but hadn't known about it when we agreed. His answer was: ‘we did

make a deal a few minutes ago, didn't we? If a case is settled, it’s settled.

I wanted to share that. The law is an honorable profession... . Court

reform? The character of the lawyer is a too casily-overlooked ingredient,

and at page 468 Getting Together (with appellate judges» ©. © one club

I belong to which doesn’t require a loyalty oath is the ostentatiously named

California Academy of Appelare Lawyers..

SOREN YEAIINI I EEL PLE LTE REE, OF IIR LEG AE

9

SUMMARY

It was arbitrary and discriminatory to reverse the decision that

dismissed the appeal. The Courts didn’t change the law. The

Legislature didn’t change the law. In every other published case

law decision where the facts were identical to this case, the Courts

said ministerial acts or misprisions did not impeach the order of

the trial court and the effectiveness of its entry. Petitioner will be

greatly damaged if she must again defend her substantial rights

in the Courts. The appellants let six months elapse from the

date of the decision September 4, 1973 before filing the late

notice of appeal. The Courts have said that sixty days is more

than ample time for a member of the bar to file a notice of appeal

in both criminal and civil cases.

CONCLUSION

The California Court of Appeal singled this case out and dis-

criminated against Petitioner and denied Petitioner Equa! Protec-

tion and Due Process in Violation of the Fourteenth Amendment

of the Constitution of the United States when it reversed and va-

cated its judgment that dismissed the appeal. The appeal was

untimely and the Courts have no jurisdiction. For these reasons

An Alternative Writ of Prohibition and ‘or a Writ of Certiorari

to review the judgment of the Court of Appeals should issue.

Respectfully submitted,

HELEN FAYE GENERES

2538 Waldon Street

Redding, California 96001

Petitioner.

i0

VERIFICATION

I, HELEN Faye GENERES, the undersigned state as follows:

That she is the petitioner for the Alternative Writ of Prohibition

and /or Writ of Certiorari to review the judgment of the Court

of Appeal that she has read the Motion and Petition and knows

the contents thereof; that the same is true of her knowledge ex-

cept as to those matters which are therein stated upon her infor-

mation and belief; and as to those matters, she believes them to be

true.

I declare under penalty of perjury that the foregoing is true

and correct. Executed at Redding. California. October 29, 1974.

HELEN FAYE GENERES

Petitioner.

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APPENDICES FOLLOW

Appendix A

Court of Appeal of the State of California

in and for the

THIRD APPELLATE DISTRICT

StTIcH vs. GENERES, 3 Civil 14526, Shasta No. 45738

By the Court: Respondents’ motion is granted and the appeal

filed by plaintiff on February 7, 1974 is hereby dismissed.

Dated: April 25, 1974 Richardson, P.J.

The order of this court dated April 25, 1974 dismissing the

appeal is hereby vacated, and the motion to dismiss appeal is

denied.

Dated: July 18, 1974 Friedmar., Acting P.J.

Appendix B

CLERK’S OFFICE, SUPREME COURT

4250 State Building

San Francisco, California 94102

(September 12, 1974)

I have this day filed Order ..................... HEARING DENIED.

In re 3 Civil No. 14526 STICH vs. GENERES.

Respectfully, G. E. BisHELL, Clerk

3

3

3

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i

E

F

LC SERDAR Kea Sr ECARD

Satesiie

2

} Appendix C

This instrument is a correct copy of the original on file in this

office. ATTEST’s Mar. 19, 1974 Richard C. Brennan, County

Clerk and ex-officio Clerk of the Superior Court of the State of

California in and for the County of Shasta.

By /s/RICHARDSON, Deputy.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SHASTA

Filed Dec. 5, 1973

EuGENE D. STICH, et al

Plaintiffs, CASE NUMBER

se 45738

HELEN FAYE GENERES, et 21.

Defendants.

NOTICE OF ENTRY OF JUDGMENT AND

CERTIFICATE OF MAILING

You are notified that judgment in this cause was entered in

Judgment Book No. 110, Page 18, on December 5, 1973.

RICHARD C. BRENNAN, Clerk of said Court

/s/By D. JOHANSEN, Deputy

State of California, County of Shasta

I, the undersigned, certify under penalty of perjury that I am

a Deputy County Clerk of the above entitled Court and not a

party to the within action; that I mailed a true and correct copy

of the above notice to each of the persons listed below, by de-

positing such notice in the United States Post Office at Redding,

California, enclosed in sealed envelopes with postage prepaid.

Helen Faye Generes, 2538 Waldon St., Redding, CA 96001

H. R. Harrison Smith & Frank W. Shuman

Carr, Kennedy, Peterson & Frost

Cresswell, Martin & Lamborn, 270 Grand Ave. & Lennox,

Oakland, CA 94610

Lopez, Kennedy & Srite.

Date: December 5, 1973

By /s/ D. JOHANSEN, Deputy Clerk

3

Appendix D

This instrument is a correct copy of the original on file in this

office. ATTEST: Feb. 15, 1974 RicHarD C. BRENNAN, County

Clerk and ex-officio Clerk of the Superior Court of the State of

California in and for the County of Shasta.

By /s/ D. JOHANSEN, Deputy Clerk

Minute Book 95 SUPERIOR COURT OF THE

Page 162 STATE OF CALIFORNIA

Date Jan. 7,1974 FOR THE COUNTY OF SHASTA—DEPT. |

Hon. RicHARD B. EATON, Judge — Department |

Ron Nelson, Deputy Sheriff — Arlene Lewis, Deputy Clerk

EuGENE D. STICH, et ux,

Plaintiffs Shasta Case

vs. No. 45738

HELEN FAYE GENERES,

Defendant

NATURE OF PROCEEDINGS

MOTION FOR NEW TRIAL

H. R. Harrison Smith and Frank W. Shuman, attorneys, appear.

Defendant Helen Faye Generes appears in propria pe“sona. Lee

A. Lopez, attorney, of the firm of Lopez, Kennedy and Srite,

appears for defendant Brown.

Mr. Harrison Smith presents opening argument.

Mrs. Generes presents argument in reply.

THE COURT RULES that the Motion for New Trial is denied.

cc: Mr. R. Harrison Smith & Frank W. Shuman, attys.

Mrs. Helen Faye Generes,

2538 Waldon St., Redding, Calif. 96001

Lopez, Kennedy & Srite, Attys.

Carr, Kennedy, Peterson & Frost, Attys.

Cresswell, Martin and Lamborn, Attys.

270 Grand Ave., Oakland, Calif. 94610

/s/RICHARD B. EATON,

RICHARD B. EATON, Judge

ee Ne 2

4

Appendix E-1

This instrument is a correct copy of the original in this office

ATTEST: March 20, 1974 Richard C. Brennan, County Clerk and

ex-officio Clerk of the Superior Court of the State of California

in and for the County of Shasta.

/s/ RICHARDSON, Deputy.

REGISTER OF CIVIL ACTIONS

IN THE SUPERIOR COURT OF CALIFORNIA

COUNTY OF SHASTA

EuGENE D. STICH AND JOAN C. STICH,

husband and wife,

VS. Shasta Case

HELEN FAYE GENERES, No. 45738

and Does I through V, inclusive.

Date: History of Action

JAN. 7, 1974: MOTION FOR NEW TRIAL DENIED.

Appendix E-2

IN THE SUPERIOR COURT OF CALIFORNIA

COUNTY OF SHASTA

Clerk's Transcript, Page 537 Filed: March 29, 1974

EuGENE D. Srticu, et al.,

Plaintiffs,

Shasta Case

VS.

No. 45738

HELEN FAYE GENERES, et al.,

Defendants.

I, Carol Barnard state: On February 6th, 1974 Helen Faye

Generes and I checked the following documents ii the above

action in the Clerk's Cffice.

1. The Permanent Minute Book Page 162 dated Jan..7, 1974.

2. A copy of the above in the case file. There was no file stamp.

The only date was Jan. 7, 1974.

3. The register of actions carried two entries as follows:

1. Jan. 7, 1974 Motion for New Trial Denied.

2. Jan. 7, 1974 Minute Order filed.

I declare under penalty of perjury the above is true and correct

Executed at Redding, California. March 29, 1974.

/s/CAROL BARNARD

aukse . poh cwtalowt- estas Nes

6

Appendix F

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SHASTA

and in the

COURT OF APPEAL

THIRD APPELLATE DISTRICT

Filed: April 9, 1974.

EuGENE D. Sticu, et al..

Plaintiffs, Shasta Case

No. 45738

vs. ‘i

HELEN Faye GENERES, et al., 3 Civil

No. 14526

Defendants,

Notice: Proceedings on Clerk's certificate

MOTION TO DISMISS APPEAL

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD

IN THIS ACTION: NOTICE IS HEREBY GIVEN that on April

3, 1974 the above entitled Court ordered that the legal aspect of

the Court’s order be presented to the Third District Court of Ap-

peal on the following facts:

1. The Court's order—the Motion for the New Trial denied

was made on January 7, 1974.

2. The entry was made in the Reyister of Civil Actions on

January 7, 1974—Motion for New Trial Denied.

3. The original (white copy) of the order motion for new

trial denied was denied filed in the Minute Book 95, page 162,

and copy mailed to defendant HELEN Fave GENERES and counsels

_ of all parties bears date of January 7, 1974.

4. The (yellow copy) of the minute order dated January 7.

1974 bears a stamp filed January 9, 1974.

5. Plaintiffs counsels in their paper filed in this action March

7

4, 1974 on page 2 quote ‘The court entered the Minute Order

that the motion was denied on January 7, 1974.

6. Defendant HELEN Faye GENERES appeared at the hearing.

No one else appeared. All the parties and their counsels of record

were served with notice of the hearing.

7. A motion for dismissal of the appeal will be presented to the

Third Appellate Court on the grounds that the appeal was un-

timely. (Na-Way Associates 15 Cal. 3d 926).

Executed at Redding, California. Dated April 6, 1974.

/s/HELEN Fayr GENERES

Carol Barnard signed the April 9, 1974, affidavit of mailing of

service On:

Lopez, Kennedy & Srite—P.O. Box 1826, Redding, California

Carr, Kennedy, Peterson and Frost—1640 West St., Redding,

California

Cresswell, Martin & Lamborn — 270 Grand Ave., Oakland,

California 94610

*Siple and Robison—300 South Mills Road, Ventura, CA 93003.

* Appellants Stitches counsels.