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Unlawful Interference With The Reviewing Court

"After the filing of a notice of appeal, the failure of any court reporter or clerk to perform a duty imposed on him by statute or these rules which delays the filing of the record on appeal is an unlawful interference with the proceedings of the reviewing court." California Rule of Court 46.5

Some background information:
The trial transcript covering the Steven Rambam testimony of 03-Oct-2002 in Rambam v Prytulak BC271433 shows Plaintiff lawyer Gary Kurtz entering the Plaintiff Book of Exhibits into evidence, followed by the court reporter confirming that the Book of Exhibits has been admitted into evidence, and then by Judge James R. Dunn talking of taking the exhibits "into consideration," and taking the matter "under submission" (p. 33):

MR. KURTZ:  YOUR HONOR, I -- MOVE EXHIBITS 1 THROUGH 13 INTO EVIDENCE.
THE COURT:  SO ADMITTED.
[...]
{HERETOFORE, PLAINTIFF'S EXHIBITS 1 THROUGH 13 ADMITTED INTO EVIDENCE.}
THE COURT:  UM -- IS THERE ANYTHING ELSE THAT HAS BEEN SUBMITTED, BESIDES THESE EXHIBITS AND THE TESTIMONY WHICH YOU'D LIKE THE COURT TO TAKE INTO CONSIDERATION?
MR. KURTZ:  UM -- NO, YOUR HONOR.
THE COURT:  ALL IN THE BINDER HERE (INDICATING)?  EXHIBITS?
MR. KURTZ:  (NOD OF THE HEAD).
THE COURT:  BECAUSE OTHER SUBMISSIONS HAVE COME IN.  BUT I THINK THEY'RE ALL INCLUDED HERE IN EXHIBITS 1 THROUGH 13?
MR. KURTZ:  YES, YOUR HONOR.
THE COURT:  ALL RIGHT.  I WILL -- I WILL TAKE THE MATTER UNDER SUBMISSION.

However, after Defendant Prytulak requested a copy of this Book of Exhibits five times, the Court answered that it did not have a copy, the Court having returned its copy to Gary Kurtz.  At the moment, the Court sees nothing wrong with its copy of this Book of Exhibits being absent from the trial record while an appeal is pending, and nothing wrong with the only copies in existence being in Plaintiff hands.


07 June 2003


James R. Dunn
Los Angeles Superior Court
111 North Hill Street
Los Angeles, CA
USA     90012


Re:
Los Angeles Superior Court, Rambam v Prytulak, BC271433
California Court of Appeal, Rambam v Prytulak, B166388


James R. Dunn:

On 20-May-2003, Defendant Lubomyr Prytulak received from the Los Angeles Superior Court (the "Court") by mail copies of various documents connected with Rambam v Prytulak BC271433, concerning which he offers the following observations.

The Rambam v Prytulak Judgment of 20-Mar-2003

The Court mailing included a copy of the Rambam v Prytulak 20-Mar-2003 one-page judgment in Rambam v Prytulak BC271433, concerning which the following characteristics are revealing:

The Plaintiff Book of Exhibits of 03-Oct-2002

The urgency of Defendant Prytulak's need for a copy of the Plaintiff Book of Exhibits of 03-Oct-2002 has been demonstrated by his requesting it in each of the second through sixth of the letters cited above.  In Defendant Prytulak's unpublished letter dated 10-Apr-2003, he elaborated this need as follows:

The information in this Rambam exhibit book promises to be helpful to my appeal in at least two respects: (1) I can see that Rambam's testimony constituted fraud on the Court, which the exhibit book will assist me in documenting, and (2) I need the information at Tab 6 concerning Rambam's New York case which Rambam's oral testimony leads the instant Court to assume that I already have.


It is with astonishment, therefore, that Defendant discovers in the Court materials delivered 20-May-2003, and more specifically in the Minute Order of 12-May-2003, the claim that the Court returned the Court's copy of this Book of Exhibits to Rambam lawyer Gary Kurtz.  Whether such a return of the Book of Exhibits conforms to legislation is doubtful, two California Code of Civil Procedure sections seeming to apply.  The first, CCP §1952(a), stipulates that an exhibit shall be retained in court custody until "final determination" of a trial, where CCP §1952(c) clarifies that "Final determination includes final determination on appeal," and even then permits an exhibit to be returned only upon a court order, and only upon "oral stipulation in open court" or "written stipulation by the parties" or "for good cause shown."  The return of a Court copy of an exhibit envisioned in this section, then, is clearly one in which all parties are informed of the return, and in any case all parties already have their own copies which are not being returned.  The situation in Rambam v Prytulak, however, is radically different: (1) final determination had not been made, (2) no court order for the return was issued, (3) all parties did not have their own copies of the exhibit, and (4) all parties were not notified that a return of the Court copy of an exhibit was imminent by either oral or written stipulation, and no good cause was shown:

CCP §1952.  (a) The clerk shall retain in his or her custody any exhibit, deposition, or administrative record introduced in the trial of a civil action or proceeding or filed in the action or proceeding until the final determination thereof or the dismissal of the action or proceeding, except that the court may order the exhibit, deposition, or administrative record returned to the respective party or parties at any time upon oral stipulation in open court or by written stipulation by the parties or for good cause shown.


Similarly unpermissive of the instant Court's return of the Rambam Book of Exhibits is CCP §1952.2, which permits such a return only upon the expiration of the appeal period, and not when an appeal is pending, and in any case only upon a written order filed in the action:

CCP §1952.2.  Notwithstanding any other provisions of law, upon a judgment becoming final, at the expiration of the appeal period, unless an appeal is pending, the court, in its discretion, and on its own motion by a written order signed by the judge, filed in the action, and an entry thereof made in the register of actions, may order the clerk to return all of the exhibits, depositions, and administrative records introduced or filed in the trial of a civil action or proceeding to the attorneys for the parties introducing or filing the same.


Defendant was even more astonished at the Court's recommending that he attempt to obtain a copy for himself by applying to Gary Kurtz.

Defendant Prytulak proposes that a more desirable alternative to his approaching Gary Kurtz for a copy of this Book of Exhibits is the Court retrieving the original Court copy from Gary Kurtz, and in turn serving Defendant with a copy of the retrieved original.  Defendant's recommended alternative offers the following advantages:

  1. The hole in the trial record created by Gary Kurtz's carrying off the Court copy of the Book of Exhibits would be filled, and the trial record would take a giant step toward completeness, such that if the Court of Appeal were to request a copy from the Court, it would not be disappointed.

  2. Gary Kurtz is likely to respond promptly to the Court's request for a return of the Court copy of the Book of Exhibits which he wrongly carried off, and is likely to respond slowly, if at all, to Defendant's request.  As Defendant has Court of Appeal deadlines looming before him, time is of the essence.  Gary Kurtz has received copies of all six Defendant letters listed above, and knows full well Defendant's long-standing interest in perusing the Plaintiff Book of Exhibits were any impulse of cooperation lurking within Gary Kurtz's breast, he would have supplied Defendant with a copy long before this.

  3. As the Book of Exhibits promises to document Plaintiff fraud on the Court, the integrity of the Court copy in Plaintiff lawyer Kurtz's hands cannot be presumed.  Rather, it is imperative that the Court examine any Book of Exhibits that Kurtz might return to the Court, and from the Court's memory of having seen this Book of Exhibits before, and from a comparison of the contents of the Book of Exhibits with the trial transcript for 03-Oct-2002, estimate whether the returned Book of Exhibits has been altered.

Defendant's need for a copy of the 03-Oct-2002 Plaintiff Book of Exhibits remains urgent, and the Court's having rendered it inaccessible continues to hamper Defendant's ability to proceed with his appeal.  The instant sixth request for a copy of this Book of Exhibits must awaken the Court to its obligation under its own rules to not interfere with the proceedings of a reviewing court by withholding trial documents:

2003 California Rules of Court
Rule 46.5. Sanctions to compel compliance

After the filing of a notice of appeal, the failure of any court reporter or clerk to perform a duty imposed on him by statute or these rules which delays the filing of the record on appeal is an unlawful interference with the proceedings of the reviewing court and may be treated as such in addition to or in lieu of any other sanction imposed by law for the same breach of duty.

This rule does not limit the reviewing court's power over other persons not enumerated, nor does it limit the nature of acts which may, under appropriate circumstances, constitute unlawful interference with the reviewing court's proceedings.


The Court's Depiction of the Spoliated Materials

The Court's Minute Order dated 25-Mar-2003 depicts Court behavior as cooperative, and Defendant Prytulak apprehension that all his submissions save one (
Motion-to-Quash-D) had been spoliated that is, suppressed or destroyed as mistaken:

The Court is in receipt of a letter from defendant dated 3-14-2003, and addressed to Hon. Carolyn Kuhl, Supervising Judge, in which he expresses his belief that certain documents that he has filed have been destroyed, or are otherwise not in the court file.  Apparently he has reached this conclusion from viewing the court's internet site and finding that they are not listed there.  Documents that are received which are in letter form, or otherwise are not in proper format, are not always entered into the web site; however, that does not mean they are not in the official court file.  The court has reviewed the file and finds that all documents listed in defendant's letter are currently in the court file, with the exception of item 1. Motion to Quash - B and 2. Prytulak Query - B.  Those letters were received and reviewed by the Court, however, they have apparently been misfiled or otherwise lost.  No documents have been destroyed.  The Court invites the defendant to file duplicate copies which will be placed in the court file.  The entire file will be forwarded to the court of appeals as part of the record should a notice of appeal be filed.


However, a mountain of evidence testifies that Defendant Prytulak had been systematically denied customary and obligatory clerical feedback, and that his missing letters, motions, submissions, and money orders were not only absent from the online Case Summary, but had vanished absolutely and irretrievably, a supposition supported in the end by their absence from the listing of documents in the trial record which the Court supplied Defendant as part of its obligation at the onset of the appellate process.

Defendant had throughout the course of proceedings sought information concerning the fate of his materials from yourself, from judges occupying senior administrative positions, from clerical staff, and from the Commission on Judicial Performance but from no direction did he receive assurance that his materials were safe and would be available as part of the trial record upon appeal.  The Court's recent assurance quoted above that Defendant materials are largely intact and available to the Court of Appeal comes too late to be helpful the decision to proceed by way of appendix, and to augment the trial record from his own archive, had been forced upon Defendant long ago.





Lubomyr Prytulak

cc:
Gary Kurtz, Esq • 20335 Ventura Boulevard, Suite 200 • Woodland Hills, CA • USA 91364


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