HOME DISINFORMATION PEOPLE RAMBAM KLAUSNER DUNN KUHL DUKES L.A. JUSTICE   FEDEX: KURTZ LASC APPEAL SUPREME
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In propria persona
Lubomyr PRYTULAK
[Address]
[Telephone]


COURT OF APPEAL � STATE OF CALIFORNIA

SECOND DISTRICT


LUBOMYR PRYTULAK
      Petitioner

      � v �

THE SUPERIOR COURT
OF LOS ANGELES COUNTY
      Respondent

STEVEN RAMBAM
(aka STEVEN ROMBOM),
      Real Party in Interest
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APPELLANT'S REPLY BRIEF

Court of Appeal Case No. B166388



On Appeal from the Judgment of
the Los Angeles Superior Court
Rambam v Prytulak
Case No. BC271433
Hon. James R. Dunn


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TABLE OF CONTENTS

  1. TABLE OF AUTHORITIES   [2]
  2. THE VNN HOAX RESURRECTED    [3]
  3. NINETEEN AA EXHIBITS THAT RAMBAM WANTED STRICKEN HAVE BEEN SAVED   [5]
  4. THE IRRELEVANCE OF RAMBAM'S NEW YORK VICTORY   [6]
  5. AN EVALUATION OF RAMBAM AUTHORITIES   [7]
    1. Forbes v Cameron Petroleums, Inc (does not support Rambam's Inviolate-Interval Theory)   [7]
    2. Fidelity Bank v Kettler (does not set any time limit which Prytulak exceeded)   [8]
    3. Schlyen v Schlyen (has nothing to do with waiving personal jurisdiction)   [9]
    4. Five Other Authorities Concern Waiving Personal Jurisdiction (which Prytulak never did)   [9]
    5. Five Authorities Concern Right of Discovery (which Rambam chose to waive)   [11]
    6. Hu v Silgan Containers Corp (does not apply to the single Prytulak submission for which the LASC expected a filing fee)   [14]
  6. RAMBAM QUESTIONS THE EXISTENCE OF PRYTULAK SUBMISSIONS   [17]
  7. SANCTIONS   [17]
  8. VERIFICATION   [19]
  9. CERTIFICATE OF LENGTH   [19]
  10. PROOF OF SERVICE   [20]

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I.  TABLE OF AUTHORITIES

State Cases
  1. 1880 Corp v Superior Court (Atlas Corp) 57 Cal2d 840 (California Supreme Court 1962)   [11]
  2. Bauer v Merigan 206 CalApp2d 769 (4th Dist 1962)   [15]
  3. Beckman v Thompson 4 CalApp4th 481 (2nd Dist 1992)   [13]
  4. California Overseas Bank v French American Banking Corp 154 CalApp3d 179 (2nd Dist 1984)   [09]
  5. Creed v Shultz 148 CalApp3d 733 (1st Dist 1983)   [09]
  6. Estate of Elftman 160 CalApp2d 10 (1st Dist 1958)   [09]
  7. Fidelity Bank v Kettler 264 CalApp2d 481 (2nd Dist 1968)   [08]
  8. Foley v Foley 147 CalApp2d 76 (1st Dist 1956)   [15]
  9. Forbes v Cameron Petroleums, Inc 83 CalApp3d 257 (2nd Dist 1978)   [07-08]
  10. Ginns v Savage 61 Cal2d 520 at fn. 2 (California Supreme Court 1964)   [14]
  11. Goehring v Superior Court (Bernier) 62 CalApp4th 894 (4th Dist 1998)   [11, 13-14]
  12. Henley v Philip Morris, Inc CalApp4th (1st Dist, 2001)  Volume and pagination as yet unavailable.   [06]
  13. Hu v Silgan Containers Corp 70 CalApp4th 1261 (3rd Dist 1999)   [14]
  14. Kathleen R v City of Livermore CalApp4th (1st Dist 2001)  Volume and pagination as yet unavailable.   [14]
  15. Kientz v Harris 117 CalApp2d 787 (3rd Dist 1953)   [15]
  16. Mansour v Superior Court (Eidem) 38 CalApp4th 1750 (4th Dist 1995)   [09]
  17. Mihlon v Superior Court (Murkey) 169 CalApp3d 703 (2nd Dist 1985)   [11]
  18. Mirvis v Crowder 32 CalApp4th 1684 (1st Dist 1995)   [15]
  19. Omega Video Inc v Superior Court (Robert Bosch Corp) 146 CalApp3d 470 (2nd Dist 1983)   [118]
  20. Penna v Toyota Motor Sales USA Inc 11 Cal4th 376 (California Supreme Court 1995)   [04]
  21. Rappleyea v Campbell 8 Cal4th 975 (California Supreme Court 1994)   [15]
  22. Sanchez v Superior Court (Martinez) 203 CalApp3d 1391 (6th Dist 1988)   [09]
  23. Schlyen v Schlyen 43 Cal2d 361 (California Supreme Court 1954)   [09]
  24. Transport Insurance Co v Cossaboon 291 SW2d 746 at 749 (Texas 1956)   [04]
  25. Ziller Electronics Lab GmbH v Superior Court (Grosh Scenic Studios) 206 CalApp3d 1222 (2nd Dist 1988)   [11]
Federal Cases
  1. Walker & Zanger (West Coast) Ltd v Stone Design 4 FSupp2d 931 (C.D.California 1997)   [10-11]
Statutes
  1. CCP §2017(a)   [12]
  2. CCP §2019(a)   [12-13]
  3. CCP §2030(a)(b)   [12-13]
  4. CRC §27(e)   [18]
  5. CRC §977(a)   [06]
  6. GC §26830(a)   [16]

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II.  THE VNN HOAX RESURRECTED
The chief purpose of the Respondent's Appendix (RA) appears to be to place before the Court of Appeal (the "Court") the evidence at [RA54 301-337] which had been relied upon at trial to support the Kurtz-Rambam VNN Hoax, and which Appellant Lubomyr Prytulak ("Prytulak") exposed and refuted at trial, as can be read starting at the heading Kurtz and Rambam play their last card, which is the 39-page-long VNN Hoax at [AA26 171-174, 181], and which can be read further starting at the heading The Kurtz-Rambam VNN Hoax Rekindled at [AA33 211-216].

Prytulak is stunned at Respondent Steven Rambam parroting again at [RB 1, 3, 16] what Rambam knew to be false at the outset, and what he has seen publicly refuted; and Prytulak is incredulous that Rambam should view the Court of Appeal as susceptible to his unsubtle incitement to passion and prejudice.  Most of all, Prytulak is deeply offended at Rambam painting him a "neo-Nazi," when in fact Prytulak's family and country of birth were devastated by the Nazi occupation, and when Prytulak's writing is strongly and consistently and unequivocally anti-Nazi.

In any case, the question of who is the good guy in the appeal at bar is irrelevant to the only question before the Court � that of personal jurisdiction � and Rambam's dangling before the Court's eyes the red herring of who is the good guy is symptomatic both of the desperation of his cause, and of his ignorance of an axiom of American jurisprudence:

It is an old rule, and a good rule, that it is the duty of the trial court to try the law suit and not the individual litigant, for it has been said many times "A bad person may have a good law suit" [...].
•  Transport Insurance Co v Cossaboon 291 SW2d 746 at 749 (Texas 1956)

For the "law has no roving commission to root out bad people or people whose minds may harbor bad thoughts."  Neither does it undertake to select for reward people of the opposite sort.  Indeed, it has "generally shared" "the belief ... that it is impermissible for" it "to judge one's person rather than one's conduct."  Thus, it treats all as equal before its bar, whether some may seem to be "small dealers and worthy men" and others "rapacious monopolists".
•  Penna v Toyota Motor Sales USA Inc 11 Cal4th 376 at 406 (California Supreme Court 1995)  References removed.

In the same vein, Rambam inculcates the idea that Prytulak has "amused himself" with the LASC [RB 3, 4, 19], and has "toyed with" the LASC [RB 19] � hoping by repetition to leave the Court with the impression that this language was boasted by Prytulak and is merely being quoted by Rambam, when in fact it was merely invented by Rambam and is being attributed to a straw man.  Rambam further attempts to blur who said what by the introduction of quotation marks where no one is quoted, as where he says of Prytulak:

[H]e briefly "borrowed" the New York defendant's attorney to advise him on the California case.  [RB 02]

As Prytulak never consulted any New York lawyer on any case, and most certainly has never been advised by, or has in any manner communicated with, Mordechai Levy's or A.J. Weberman's New York lawyers on the Rambam v Prytulak case, and as Prytulak has never described himself as having "borrowed" either of these New York lawyers, then Rambam's placing "borrowed" within quotation marks is deceitful, and offering the Court a figment of Rambam imagination as a fact is improper.  On top of that, the irrelevance is staggering, and is symptomatic of a mind convinced that if enough mud is slung, some will cling, and that victory in civil litigation goes to the side less muddied.

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III.  NINETEEN AA EXHIBITS THAT RAMBAM WANTED STRICKEN HAVE BEEN SAVED
The theme repeated most often in Respondent's Brief ("RB") is that Prytulak submissions must be ignored because they were not filed, the leading Rambam statements being:

  1. "Appellant relies on purported motions to quash that were never filed" [RB 02], bold emphasis was in the original;

  2. "before the entry of default, Appellant filed NOTHING in the trial court" [RB 07], capitalization was in the original;

  3. "Appellant complains that the default was improper, not because of what was filed in the trial court but because of materials that were not" [RB 07-08], bold emphasis was in the original;

  4. "Appellant never properly filed a motion to quash" [RB 13];

  5. "Appellant May Not Rely On Documents He Was Unable To Properly File In The Trial Court" [RB heading at 16];

  6. "this Court cannot consider materials that were not filed in the trial court" [RB 16];

  7. "because the materials were not filed in the trial court, they should not be considered in this Court" [RB 17];

  8. "because the matters were not filed, they are not properly before this Court" [RB 19].

Rambam's request to strike founded on the above sentiment would nicely expurgate 22 of the 23 Appellant's Appendix ("AA") exhibits that were authored by Prytulak, and none that were authored by Rambam.  However, the Court chose not to follow this Rambam path when it denied on 05-Sep-2003 Rambam's filed 25-Aug-2003 Request to Strike Documents.  It will perhaps suffice here to state that the Prytulak filed 04-Sep-2003 Appellant's Opposition to Respondent's Request to Strike Documents cited authority for the view that the proper criterion of admission to the trial record is litigant lodging, and not the court filing which may or may not follow lodging.  As a result of Prytulak demonstrating that 19 documents which Rambam wanted stricken were already part of the trial record not only because they had been lodged with the LASC, but also because the LASC or Rambam had acknowledged receipt and review of the majority of them, the following nineteen AA exhibits that Rambam wished stricken have been saved:
01, 06, 09,
14, 16, 17, 18,
20, 23, 26, 29,
32, 33, 36, 38,
42, 46, 47, 48 
In the absence of rules guaranteeing lodged materials admission to the trial record, litigants would stand helpless before absolute judicial power to spoliate their submissions and deny them their right to be heard.  The view that Rambam advocates for American justice is a throwback to the days of the Star Chamber or to the days of the lettre de cachet; it is a totalitarian view which dreams of abolishing the adversarial system in favor of ex parte proceedings which guarantee courtroom success to favored litigants.

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IV.  THE IRRELEVANCE OF RAMBAM'S NEW YORK VICTORY
Rambam has repeatedly invited the LASC, and now invites the instant Court, to be swayed by his having been awarded $850,000 in a different case [RB bottom of p. 1 to top of p. 2].  However, when even the opinions of the California Court of Appeal may not be cited as authority in California when unpublished, taking into consideration the unpublished decision of a trial court in New York would be way out of bounds:

Defendant has burdened an already mammoth record with vast quantities of unpublished authority from other jurisdictions.  Our own unpublished opinions are not authority, and parties are forbidden to cite them as such. (Cal. Rules of Court, rule 977(a).)  Nor does a written opinion by a California trial court possess precedential value. (Santa Ana Hospital Medical Center v. Belshé (1997) 56 Cal.App.4th 819, 831; see Neary v. Regents of University of California (1992) 3 Cal.4th 273, 282, quoting Fenske v. Board of Administration (1980) 103 Cal.App.3d 590, 596 [" '[T]rial courts make no binding precedents.' "].)
•  Henley v Philip Morris, Inc CalApp4th (1st Dist, 2001)  Volume and pagination as yet unavailable.

Even if the unpublished decisions of trial courts in other jurisdictions were in some way relevant to California proceedings, Rambam still never placed his New York exhibits before the LASC, such that the LASC was unable to evaluate the resemblance between the materials complained of in New York and in California, and such that the similarity between the two cases remains unexplored and unestablished.

The irrelevance of the New York judgment has already been addressed at trial under the heading High Time to Bury the New York Award at [AA33 219-220].

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V.  AN EVALUATION OF RAMBAM AUTHORITIES
  1. Forbes v Cameron Petroleums, Inc (does not support Rambam's Inviolate-Interval Theory)
    2. Rambam cites Forbes v Cameron Petroleums, Inc 83 CalApp3d 257 (2nd Dist 1978) in support of his contention that "a motion to quash after the entry of a default cannot be heard unless the default is set aside for a valid reason (such as excusable neglect), even though the motions may be filed together" [RB 08-09], which constitutes a Rambam reaffirmation of the Inviolate-Interval Theory which Prytulak has challenged under the heading The Interval Between Default Entry And Default Judgment Is Not Inviolate to Jurisdictional Challenge at Appellant's Opening Brief ("AOB") [AOB     25-30].

    Reading Forbes reveals that although defendants did submit within their paper of 11-Feb-1977 a motion to quash service of summons joined with a motion to set aside default on the ground of excusable neglect, the trial court gave no indication of which motion it granted first, or whether it considered the granting of one motion to be prerequisite to granting the other.  Forbes, then, leaves open the question of whether the trial court quashed service so that it could vacate default, or vacated default so that it could quash service, or considered the two to be independent and to have been performed simultaneously.  Certainly the trial court in Forbes did not require setting aside default to be moved in one paper and heard in one hearing, with the quashing of service to be moved in a later paper and to be heard in a later hearing, the way the Rambam v Prytulak court did.  Although the order in which Forbes lists the two motions varies, in its opening words it is quashing service that is given first place, with vacating default relegated to a secondary role not only by being in second place in a second paragraph, but also by use of the diminishing "also":

    Plaintiff James Forbes appeals from an order of the superior court quashing the service of the summons upon defendants [...].  [¶]  The order also vacated the default of defendants [...] "on the grounds of excusable neglect by defendants."
    •  Forbes v Cameron Petroleums, Inc 83 CalApp3d 257 at 259 (2nd Dist 1978)

    As Forbes does not come to his assistance, Rambam continues to find himself bereft of authority for his Inviolate-Interval Theory.
  2. Fidelity Bank v Kettler (does not set any time limit which Prytulak exceeded)
    3. Rambam quotes at [RB 11-12] Fidelity Bank v Kettler:

    While it is recognized that an order which is void on its face and which requires only an inspection of the record to show its invalidity may be set aside on motion at any time after its entry by the court which made the order, it is equally well settled that an order which is in fact void for want of jurisdiction, but the invalidity of which does not appear from the record, may be set aside on motion within a reasonable time after its entry, not exceeding the time limit prescribed by section 473, Code of Civil Procedure, namely six months.
    • Fidelity Bank v Kettler 264 CalApp2d 481 at 486 (2nd Dist 1968).  Bold emphasis added by Prytulak.  Rambam's "section 475" [RB 12] has been corrected to "section 473" above, and his attribution to p. 487 [RB 11] has been corrected to p. 486.

    Two observations on Rambam's citation of Fidelity are helpful:
    1. Rambam expurgated the portion of the quote emphasized in bold above, leaving no ellipses behind to mark the deed, for the probable reason that the expurgated material places Prytulak well within time allowed � Prytulak's Motion-to-Quash-B having been submitted 26 days before default entry, and Motions-to-Quash-C and D having been submitted approximately two and three months, respectively, after default entry.
    2. Rambam v Prytulak is void on its face, permitting all of its orders and its judgment to be vacated at any time, under the principle enunciated in Fidelity above.
  3. Schlyen v Schlyen (has nothing to do with waiving personal jurisdiction)
    4. Rambam continues his trial-court citing of Schlyen v Schlyen 43 Cal2d 361 (California Supreme Court 1954) in support of the principle that "failure to file a timely objection to personal jurisdiction is a waiver" [RB bottom paragraph at 10] � oblivious to Prytulak having pointed out to him, at [AOB     21] and at greater length at [AA33 220-221], that Shlyen has absolutely nothing to do with personal jurisdiction.  (An early signal of irrelevance is that Shlyen uses the word "personal" exactly three times, but each time within the expression "personal representative," meaning "personal representative of the estate.")  Rambam's desperation to make Schlyen mean what he wants it to mean culminates in his stab at a syllogism which falls short of adequate: "Similarly, the trial court in this case had subject matter jurisdiction.  Accordingly, Appellant's failure to file a timely challenge to personal jurisdiction waived the defense" [RB top of 11].
  4. Five Other Authorities Concern Waiving Personal Jurisdiction (which Prytulak never did)
    5. At [RB 12], Rambam cites five authorities relating to waiving personal jurisdiction:

    1. Mansour v Superior Court (Eidem) 38 CalApp4th 1750 (4th Dist 1995)
    2. Sanchez v Superior Court (Martinez) 203 CalApp3d 1391 (6th Dist 1988)
    3. California Overseas Bank v French American Banking Corp 154 CalApp3d 179 (2nd Dist 1984)
    4. Creed v Shultz 148 CalApp3d 733 (1st Dist 1983)
    5. Estate of Elftman 160 CalApp2d 10 (1st Dist 1958)

    However, these are the same five authorities that Rambam has already cited at [AA31 200:28 - 201:07] in support of the proposition that personal jurisdiction can be waived, with Prytulak having already pointed out [AOB 21] that these authorities portray waiving upon defendant making a general appearance, which Prytulak never did in Rambam v Prytulak, and which neither Rambam nor the LASC ever characterized him as having done.

    At [RB 12], Rambam puts these same five authorities to further service by citing them also in support of his claim that "It is well settled that personal jurisdiction challenges do not involve issues that would void a judgment," and which echoes his earlier statement at [RB 09] that "a complaint about personal jurisdiction cannot be the basis to set aside a default."  For the substantiation of this rule, however, Rambam neglects to offer quotations from his five authorities, or any indication of the page numbers on which such substantiation might be sought.  For the opposite proposition � that lack of jurisdiction of any kind, including lack of personal jurisdiction, is always able to void any judgment � authority is not hard to find, as for example in Walker below where it is noteworthy that personal jurisdiction is explicitly included in both first and last sentences:

    As a general rule a judgment is "void" if the party against whom default was entered was never properly served or received no actual notice of the action before the answer was due; if the court lacked jurisdiction over the parties; or if the court lacked subject-matter jurisdiction.  [...]  Unlike other bases for relief under Fed.R.Civ.P. 60, no time limit exists to bring a motion to vacate a judgment as void.  [...]  Moreover, although Fed.R.Civ.P. 60(b)(4) appears to require a motion to vacate for lack of jurisdiction to be made within a "reasonable time," court[s] have consistently held that there is no time limit for such a motion.  See e.g. United States v. Williams, 109 F.Supp. 456 (D.C.Ark.1952) (finding that a delay of twenty-two years after entry of judgment did not preclude motion to vacate as void under Fed.R.Civ.P. 60(b)(4)).  Courts do not have discretion to decline to vacate a void judgment.

    Relief is not available under Fed.R.Civ.P. 60(b) merely because the disposition was erroneous.  [...]  Instead, "it must be determined that the rendering court was powerless to enter it."  [...]  For example, where the court lacked personal jurisdiction over the defendant or the requirements for effective services were not satisfied, the default judgment is void and must be vacated.
    •  Walker & Zanger (West Coast) Ltd v Stone Design 4 FSupp2d 931 at 934 (C.D.California 1997)

    The above opinion, furthermore, strengthens the Prytulak argument at [AOB     17-19] under the heading 3. Motions-to-Quash B, C, and D should not have been spoliated for their untimeliness: Jurisdiction can be challenged at any time.
  5. Five Authorities Concern Right of Discovery (which Rambam chose to waive)
    6. At [RB 13-15] Rambam offers another cluster of five authorities in support of his right to conduct discovery:

    1. Mihlon v Superior Court (Murkey) 169 CalApp3d 703 (2nd Dist 1985)
    2. 1880 Corp v Superior Court (Atlas Corp) 57 Cal2d 840 (California Supreme Court 1962)
    3. Omega Video Inc v Superior Court (Robert Bosch Corp) 146 CalApp3d 470 (2nd Dist 1983)
    4. Ziller Electronics Lab GmbH v Superior Court (Grosh Scenic Studios) 206 CalApp3d 1222 (2nd Dist 1988)
    5. Goehring v Superior Court (Bernier) 62 CalApp4th 894 (4th Dist 1998)

    Although a reading of the above precedents does reinforce the view that a formal motion to quash serves to justify jurisdictional discovery by demonstrating the discovery's relevance, nowhere is it stated that a formal motion to quash is the only manner of demonstrating that requisite relevance.  In fact, throughout Rambam v Prytulak proceedings, Prytulak barraged both Rambam and LASC with his jurisdictional challenge, whose cumulative weight, even supposing all Prytulak submissions had gone unfiled, would justify viewing jurisdictional discovery as enjoying paramount relevance.  On top of that, though, Prytulak Motion-to-Quash-D, titled Notice of Motion to Vacate Default or Default Judgment joined with Notice of Motion to Quash Service of Summons for Lack of Personal Jurisdiction was formally filed [AA19 078], giving Rambam unassailable freedom to conduct jurisdictional discovery, as the relevance of jurisdiction had been demonstrated many times over in the most decisive and incontrovertible, and now even formal, manner.  Appreciation of Rambam's freedom to conduct discovery starts with a reading of CCP §2030:

    CCP §2030.  (a) Any party may obtain discovery within the scope delimited by Section 2017, and subject to the restrictions set forth in Section 2019, by propounding to any other party to the action written interrogatories to be answered under oath.
        (b) A defendant may propound interrogatories to a party to the action without leave of court at any time.  A plaintiff may propound interrogatories to a party without leave of court at any time that is 10 days after the service of the summons on, or in unlawful detainer actions five days after service of the summons on or appearance by, that party, whichever occurs first.  However, on motion with or without notice, the court, for good cause shown, may grant leave to a plaintiff to propound interrogatories at an earlier time.

    The delimitation of scope cited above that Rambam should have recognized can be seen to arise not from an absence of formal motion, but from an absence of relevance of the discovery either to the subject matter of the proceedings or to a motion:

    CCP §2017.  (a) Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.  Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.  Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.

    Jurisdictional discovery had been accessible to Rambam throughout trial, and could have been denied him only through a Prytulak motion for protective order, and only on narrow grounds, among which cannot be found the absence of a formal motion to which the discovery pertains:

    CCP §2019.  (a) Any party may obtain discovery by one or more of the following methods:
           [...]
       (b) The court shall restrict the frequency or extent of use of these discovery methods if it determines either of the following:
           (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.
           (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.
        The court may make these determinations pursuant to a motion for a protective order by a party or other affected person.  This motion shall be accompanied by a declaration stating facts showing a good faith attempt at an informal resolution of each issue presented by the motion.

    Thus, nothing obstructed Rambam discovery � not absence of leave from the LASC nor absence of a formal motion to quash (as neither of these was prerequisite, and in any case a formal motion to quash had been filed), and not the granting of a Prytulak motion for protective order.

    In view of the lack of restraint placed on discovery, a trial court might be asked for leave to obtain discovery only when some complication obtrudes, as for example in the situation alluded to in CCP §2030(b) above where a plaintiff, showing good cause, may ask leave to propound interrogatories earlier than normally allowed; or when in     Beckman v Thompson 4 CalApp4th 481 at 486-487 (2nd Dist 1992) arose the question of whether the trial court should have granted a continuance to enable appellant to conduct discovery.  Similarly, in the Rambam-cited Goehring above, the impression is that the traditional procedure of a litigant addressing the court with "Here's my evidence, what do you think?" is replaced with "Tell me if you think I'm doing poorly, in which case I'll go out and gather some evidence" � that is to say, perhaps it is the case that whereas the Goehring plaintiffs could have conducted discovery without court leave, what they really wanted was for two courts in succession � trial and appellate � to first signal them that such discoveries would ultimately be necessary:

    In opposing petitioners' motion to dismiss, plaintiffs asked to conduct jurisdictional discovery if the trial court considered granting petitioners' motion.  The court never reached the issue because it determined there were sufficient minimum contacts on the record before it.  Plaintiffs now reiterate their request that they be provided the opportunity to conduct discovery if this court finds the record does not support the trial court's jurisdictional ruling.
    •  Goehring v Superior Court (Bernier) 62 CalApp4th 894 at 911 (4th Dist 1998)

    Rambam's contention that the Court evaluating personal jurisdiction would be "depriving plaintiff of his right to discovery" or would "trample on Respondent's right to substantially oppose a motion to quash" [RB 14] is blaming others for depriving him of what he had been free to take but declined.  Furthermore, Rambam's failure to conduct jurisdictional discovery in the face of unrelenting Prytulak challenges to jurisdiction, and his failure to not only discover but to so much as allege any facts that might establish jurisdiction, raises the presumption that Rambam could not even imagine anything to allege, and expected that the only facts that discovery would establish would be facts denying jurisdiction.
  6. Hu v Silgan Containers Corp (does not apply to the single Prytulak submission for which the LASC expected a filing fee)
    7. Rambam renews [RB 17] the citation of Hu v Silgan Containers Corp 70 CalApp4th 1261 (3rd Dist 1999), beyond its original citation in a LASC Minute Order [AA12     041], in justification of LASC spoliation of Prytulak submissions, particularly of Motion-to-Quash-B.  However, Prytulak has already challenged reliance on Hu at [AA23 136-137] and [AOB 16-17], grounded on the principle that opinions are not authority for propositions not considered (Kathleen R v City of Livermore CalApp4th, volume and page unavailable because of recency (1st Dist 2001); Ginns v Savage 61 Cal2d 520 at fn. 2 (California Supreme Court 1964)); or, more concretely, grounded on the fact that clerks had sent Hu two letters (the first one certified) notifying her of the need to make payment after her check had bounced, whereas clerks had never notified Prytulak of any need to make payment with regard to any submission.  Rambam now proposes in footnote 1 at [RB 17] that it is only litigants whose checks bounce who receive clerical request for payment (and not litigants who fail to make payment for any other reason), which Rambam rule is contradicted by the five cases below in which manifestations of non-payment other than bounced checks did succeed in triggering a clerical request for payment:

    1. No fee accompanied mailed submission: Kientz v Harris 117 CalApp2d 787 (3rd Dist 1953)
    2. No fee accompanied mailed submission: Foley v Foley 147 CalApp2d 76 (1st Dist 1956)
    3. No fee paid at filing: Bauer v Merigan 206 CalApp2d 769 (4th Dist 1962)
    4. The amount of the check was too small: Rappleyea v Campbell 8 Cal4th 975 (California Supreme Court 1994)
    5. The amount of the check was too small: Mirvis v Crowder 32 CalApp4th 1684 (1st Dist 1995)

    Rambam knew or should have known that a bounced check is not the only variety of non-payment that elicits a clerical request for payment, and more particularly that a submission mailed without payment does normally elicit clerical request as well (though it didn't for Prytulak).  Rambam knew, or should have known, this if only from Prytulak having brought Kientz, cited above, to Rambam's attention at [AA23 136] (and on which AA page Prytulak happens to erroneously categorize Foley as a case in which clerical requisition for payment is not evident, when more careful reading of Foley reveals that clerical requisition is evident, which permits Foley to be included in the list immediately above).

    Rambam repeatedly mischaracterizes defects in Prytulak submissions as justifying their "rejection," which overlooks the oft-repeated Prytulak opposition that no Prytulak submission was ever rejected, but rather that all Prytulak submissions but one simply vanished, whether they required a filing fee or not, and whether Prytulak supplied a filing fee or not, and in two cases the fee payment accompanying a submission itself vanished along with the submission � all without explanation, all without answer to Prytulak queries as to their fate, as has been outlined at [AOB 37-39].  For such vanishing � or rather for such spoliation � Prytulak has been able to find no defense in the case law of California, or of any other State.

    Furthermore, Rambam has overblown the significance of Prytulak non-submission of filing fees.  That is, although toward the end of Rambam v Prytulak proceedings, Prytulak was making repeated request for an account of ten missing papers [AA38 238-240], the only one of these ten for which a filing fee had been needed but had not been supplied was first-paper Motion-to-Quash-B [AA06], but not any other papers, because these others either were first papers and were submitted with a filing fee, or else they were subsequent papers which did not require any fee because they did not put forward any motions requiring a separate hearing, pursuant to Government Code which at that time read (bold emphasis added):

    Government Code §26830.  (a) Except as provided in subdivisions (b) and (c), the fee for filing any notice of motion, or any other paper requiring a hearing subsequent to the first paper, or any notice of intention to move for a new trial of any civil action or special proceeding, or an application for renewal of a judgment, is twenty-three dollars ($23).

    More specifically, the only first papers submitted in Rambam v Prytulak BC271433 were Motions-to-Quash     B, C, and D, where the incongruity of more than one first paper is resolved by the LASC having spoliated the first two.  Of these three first papers, then, Motion-to-Quash-B had been unaccompanied by payment (and was spoliated), Motion-to-Quash-C was accompanied by payment (both motion and payment were spoliated), and Motion-to-Quash-D was accompanied by payment (and was filed).  All other Prytulak submissions addressed issues surrounding Prytulak's challenge to jurisdiction, but neither contained motions nor required a separate hearing, and so did not require a filing fee.  Thus, when Rambam [RB 17], citing the above Government Code 26830, refers to "motions" collectively without distinguishing motions in first papers from motions in subsequent papers, and without distinguishing motions that require separate hearings from motions that don't, he speaks imprecisely and misleadingly: "In addition, Government Code § 26830 requires a filing fee for motions, which would include a motion to quash" [RB 17].

    The filing fee question, then, can be summarized as follows � Prytulak having been unable to understand which filing fee in the LASC online fee schedule was appropriate, submitted his Motion-to-Quash-B without a filing fee on the expectation that the LASC would demand the correct fee.  However, the LASC did not demand any fee, and instead spoliated Motion-to-Quash-B.  The absence of Prytulak filing fees does not extend beyond that one instance.  Rambam's projecting the impression in his six references to fees at [RB 2, 16-18] that absence of filing fees offers a major justification for the spoliation of Prytulak submissions is unwarranted � projections such as the following: "Moreover, Appellant blames the trial court for spoliation of his submissions, rather than recognizing that submissions without fees were properly rejected" [RB 02].
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VI.  RAMBAM QUESTIONS THE EXISTENCE OF PRYTULAK SUBMISSIONS
Rambam questions the existence of Prytulak submissions at [RB top of 19]:

We have no way to verify Appellants claims that the materials were actually submitted.  We have no way to verify that Appellant attempted to file a motion to quash before the default date.  No appeal can be based on that level of uncertainty.

The Prytulak document that Rambam particularly doubts above, as he has done previously, is Prytulak Motion-to-Quash-B [AA06], delivered to the LASC by FedEx 26 days prior to default entry.  Although Rambam doubts the existence of Motion-to-Quash-B, its existence has been documented in Appellant's Opposition to Respondent's Request to Strike Documents filed by the Court on 04-Sep-2003, and whose p. 7 lists six pieces of evidence of existence, among which are that Prytulak has FedEx proof of service of Motion-to-Quash-B on Rambam two times (signed for, respectively, by "G. Kurtz" and by "D. Engel"), and on the LASC three times; and Rambam has acknowledged possession of Motion-to-Quash-B in one Rambam document, and the LASC in two LASC documents; and yet in the face of such incontrovertible evidence of the existence of Motion-to-Quash-B, Rambam ventures now in his RB to question that existence, thus putting Prytulak to the trouble of writing, and the Court of Appeal to the trouble of reading, the present rebuttal.

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VII.  SANCTIONS
The Court of Appeal has authority to impose sanctions sua sponte pursuant to 2003 California Rules of Court, Rule 27 Costs and Sanctions:

Rule 27(e) Sanctions
(1) On a party's or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs, on a party or an attorney for:
   (A) taking a frivolous appeal or appealing solely to cause delay;
   (B) including in the record any matter not reasonably material to the appeal's determination; or
   (C) committing any other unreasonable violation of these rules.

The most prominent occasion for sanctions is Rambam inclusion within his RA of the irresponsible, defamatory, irrelevant, but nevertheless voluminous VNN-Hoax material [RA54 301-337] whose purpose is to incite the Court of Appeal to passion and prejudice.  In addition, it becomes evident to anyone reading trial documents, as for example the instant Appellant's Reply Brief, that Rambam's repetition of previously-refuted errors necessitates Prytulak's repetition of previously-written refutations, thereby putting Prytulak to a vast amount of needless writing, and the LASC and the Court of Appeal to a vast amount of needless reading.  The Rambam fault complained of here is not that of being wrong, it is that of disregarding Prytulak arguments, neither acquiescing to them nor refuting them, but rather carrying on as if they did not exist, and as if a monologue recitation of the Rambam position satisfied litigation requirements � that is the modus operandi that inflicts heavy costs on both Defendant and on California courts.  If it is within the Court's power to impose sanctions for the purpose of deterring misconduct which drains scarce resources both from frivolously-prosecuted defendants and overburdened courts, then Prytulak prays that such sanctions be imposed, so long as they may be imposed on the occasion of a special appearance.  As a measure of the magnitude of the sanction that might be needed to serve as a deterrent to Respondent Rambam, it may be recalled that he considers $75,000 to be a "modest" sum: "This case is about a modest $75,000 default judgment" [RB top of 01].

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VIII.  VERIFICATION
I declare on penalty of perjury under the laws of the State of California that all facts alleged in the foregoing Appellant's Reply Brief are true and correct.

Date:  15 September 2003
Name:  Lubomyr Prytulak

Signature: 


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IX.  CERTIFICATE OF LENGTH

The Prytulak Appellant's Reply Brief dated 15 September 2003 contains 5,501 words from the top of the heading THE VNN HOAX RESURRECTED to immediately above the heading VERIFICATION.
I declare on penalty of perjury under the laws of the State of California that the foregoing Certificate of Length is true and correct.

Date:  15 September 2003
Name:  Lubomyr Prytulak


Signature: 


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X.  PROOF OF SERVICE
The following documents have been deposited with FedEx on 15 September 2003 for delivery on 16 September 2003

Delivery can be confirmed by entering the tracking numbers below at www.fedex.com/us/

To:
Los Angeles Superior Court
Office of the Clerk
111 North Hill Street
Los Angeles, CA
USA    90012

One copy of Appellant's Reply Brief

FedEx Tracking Number  8380 0497 7084
To:
Gary Kurtz, Esq.
20335 Ventura Blvd., Suite 200
Woodland Hills, CA
USA    91364

One copy of Appellant's Reply Brief

FedEx Tracking Number  8380 0497 7095
To:
Supreme Court of California
Office of the Clerk
300 South Spring Street
Los Angeles, CA
USA    90017

Five copies of Appellant's Reply Brief

FedEx Tracking Number  8380 0497 7100
I declare on penalty of perjury under the laws of the State of California that all facts alleged in the foregoing Proof of Service are true and correct.

Date:  15 September 2003
Name:  Lubomyr Prytulak


Signature: 


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