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05-Nov-2002   Prytulak-Reply-D3   Judge James R. Dunn
The following is an online version of an original hard copy that was delivered to the Los Angeles Superior Court at 08:53am on 07-Nov-2002, and signed for by J. Armendariz, as can be verified by clicking on the right-hand FedEx link above.  This online version differs from the original mainly in replacing page numbers in Contents with hyperlink bullets, in hyperlinking words in the text, and in inserting navigation strips of hyperlinks.

As of 24-Mar-2003, Prytulak-Reply-D3 has not been listed under Documents Filed in the Case Summary available on the Los Angeles Superior Court web site (just type in Case Number BC271433), indicating that it is one of ten submissions that James R. Dunn has spoliated � that is, suppressed or destroyed � as documented in the Lubomyr Prytulak letter to Gary Klausner titled Twenty Worst Judges: Estimating the Lower Limit in the section dedicated to James R. Dunn.  Such spoliation takes place without anyone taking responsibility for conducting it, without authority being cited to justify it, without any feedback to Lubomyr Prytulak as to the reason for it, and certainly without any opportunity offered to modify the submission so as to ensure its survival.

One has not far to search for a motive for the spoliation of Prytulak-Rely-D3, as it takes a giant step toward demonstrating that James R. Dunn has been without jurisdiction ab initio, that all his proceedings have been nullities, and thus that these proceedings have not been judicial proceedings at all but rather usurpations of authority coram non judice � before a person not a judge.  Perhaps Prytulak-Reply-D3 gives greatest offense by presenting evidence of James R. Dunn bias against Defendant Lubomyr Prytulak, such that James R. Dunn may have spoliated Prytulak-Reply-D3 in part because it complained of, and documented, James R. Dunn spoliation.  This is a vicious circle that must be broken either by Lubomyr Prytulak bowing before James R. Dunn's power to spoliate, or by James R. Dunn bowing before the power of the law.
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In propria persona:
Lubomyr Prytulak
[Address]
[Telephone]
[Email]




SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES





Steven RAMBAM
Plaintiff

vs

Lubomyr PRYTULAK
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Case No.   BC 271433

DEFENDANT PRYTULAK ANSWER
TO PLAINTIFF RAMBAM OBJECTIONS
FILED 01-OCT-2002 AND 15-OCT-2002

[Not a general appearance CCP �418.10]



Defendant Lubomyr Prytulak makes answer to two Plaintiff Steven Rambam objections to the Prytulak Motion-to-Quash-D that was filed 26-Sep-2002.  The instant Prytulak answer primarily rebuts Rambam arguments that the Court is prohibited from evaluating its own jurisdiction at the upcoming hearing of 25-Nov-2002, and incidentally replies to Rambam comments concerning the appropriateness of Court Clerks dispensing "legal advice," and the appropriateness of Lubomyr Prytulak's "ex parte communications."



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CONTENTS

  1. Introduction   • 

  2. The Primacy of Jurisdiction   •
    1. Jurisdiction can be challenged at any time, and at any stage of proceedings, and in any manner   •
      1. Challenge to jurisdiction is allowed informality   •
      2. Absent defendant must anticipate all eventualities   •
      3. Length is proportional to recalcitrance   •
    2. The Court has the power and duty to evaluate jurisdiction on its own motion, through inherent power, ex officio, sua sponte, ex mero motu   •
      1. Absence of qualifiers is deliberate   •
      2. Personal jurisdiction sometimes explicitly encompassed   •
      3. Personal jurisdiction is never explicitly excluded   •
      4. Jurisdictional generalizations apply equally to subject matter jurisdiction and to personal jurisdiction that is challenged   •
    3. Jurisdiction cannot be presumed   •
    4. Deadlines and time limits do not apply   •

  3. When Should Jurisdiction be Evaluated?   •
    1. Evaluation of jurisdiction must be preliminary, threshold, in limine   •
    2. Several States require that the basis of personal jurisdiction be alleged at the outset � in plaintiff's claim   •
    3. Without jurisdiction established, default entry is impermissible   •

  4. Simultaneous Motions to Quash Service and Vacate Default   •
    1. Both Kurtz and Court agree that vacating default must precede quashing service   •
      1. The Minute Order of 15-Aug-2002   •
      2. Condition for filing set by Katina on 25-Sep-2002   •
      3. The LASC web site Case Summary of 05-Nov-2002   •
      4. Gary Kurtz can't foresee jurisdiction being considered any time soon   • 
    2. Legal reasoning which sweeps aside both context and qualification   •
    3. The precedents of Wyoming and California   •
    4. What says the California Code of Civil Procedure (CCP)?   •
    5. Precedent is on the side of allowing simultaneous consideration of quashing service and vacating default   •
    6. Simultaneous consideration avoids the pitfall of attorning to jurisdiction   •

  5. Should Court Clerks Give Legal Advice?   •
    1. Prytulak requests no more than equal treatment   •
    2. What does the Code of Civil Procedure say?   •
    3. What is to be found in case reports?   •
    4. What does Katina say?   • 
    5. Lubomyr Prytulak discovers the existence of feedback forms   •

  6. Gary Kurtz Objection to Lubomyr Prytulak "Ex Parte" Communications   •
    1. Plaintiff does receive notice   •
    2. Plaintiff is welcome to reply in the same forum   •
    3. Defendant merely exercises his right of free speech outside the Court   • 
    4. Unconventional routes to bypass unusual obstructions   • 
Identification of Documents   •

Proof of Service   •

Table of Authorities   •

Declaration   •




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  1. INTRODUCTION

    The instant reply answers two Plaintiff submissions (whose labelling is explained in the section Identification of Documents further below):

    Rambam-Objection-D1, dated 30-Sep-2002, filed 01-Oct-2002, and titled OBJECTION TO DOCUMENT SERVED BY DEFENDANT PRYTULAK

    Rambam-Objection-D2, dated 10-Oct-2002, filed 15-Oct-2002, and titled OBJECTION TO IMPROPER EX-PARTE CONTACT

    In his two objections, Plaintiff lawyer Gary Kurtz continues to argue that the upcoming hearing of 25-Nov-2002 must concern itself solely with the question of setting aside default entry, and that the Court's evaluation of its own jurisdiction will only be possible in the case that default entry is set aside, and that the question of jurisdiction could only be raised in some later hearing whose date remains to be determined.

    Defendant Lubomyr Prytulak, noting that the Court has refused to evaluate its own jurisdiction for seven months now, and which will have turned to eight months by the upcoming hearing, seizes the present opportunity to thoroughly and comprehensively expose the above Plaintiff objections as misconceptions held with excessive tenacity and insufficient deference to both statute and precedence.  Lubomyr Prytulak below adduces voluminous and unanimous precedent in support of the contrasting proposition that failure of jurisdiction has the effect of both vacating default and quashing service of summons, such that his Motion-to-Quash-D should be considered as a motion to quash whose incidental effect will be to vacate default, and not misconstrued as a motion to set aside default whose arguments addressing jurisdiction may be ignored as coming prematurely.

    Persuading the Court that it must at last consider jurisdiction in the upcoming hearing of 25-Nov-2002 is the only purpose of the instant submission.  Prytulak's further discussion of the topics of Clerical "legal advice" and Prytulak "ex parte communications" is insufficient to trigger a recategorization of his appearance from special to general because such discussion does not address the merits of the Plaintiff complaint, because such discussion solicits no remedy from the Court, and because such discussion addresses what are details of the Prytulak campaign to persuade the Court to broach the question of its own jurisdiction.


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  1. THE PRIMACY OF JURISDICTION

    1. Jurisdiction can be challenged at any time, and at any stage of proceedings, and in any manner

      What the accumulation of opinion below demonstrates is that every previous Prytulak motion to quash, including       Motion-to-Quash-B (the earliest of three motions to quash submitted in Case BC271433), even though that earliest motion went unfiled, and even though it failed to meet requirements for filing, should have been sufficient to persuade the Court to evaluate its own jurisdiction:

      Whenever the absence of jurisdiction of a proceeding is brought to the notice of a court, cognizance of the fact must be taken and the matter determined before it can move a further step in the case.
      •  Marcil v. A. H. Merriman & Sons, Inc., 163 A 411 at 412 (Connecticut 1932)

      What is of critical importance is that the absence of jurisdiction addressed above need not be "brought to the notice of a court" exclusively through the formal filing of a motion to quash or any equivalent formal application � but rather, additionally, it can be brought to the notice of the court "on plea," or through "suggestion," or through "informal" submissions, or (covering all eventualities) "in no matter what form" and such that "it makes no difference how the question comes to its attention."  This principle, which we have just seen enunciated in Marcil in 1932, can be heard below echoing through American courts in every jurisdiction from the beginnings of modern justice until today, and expressed in more explicit and unmistakable language than above (bold emphasis added throughout draws attention to the legitimacy of using informal communication to invite the Court to consider its own jurisdiction):

      "Common sense indeed teaches that a question so vital as that of jurisdiction should be decided preliminarily to all others.  Accordingly all treatises on pleading direct that pleas to the jurisdiction are to be filed first.  Such, manifestly, is the natural order of pleading, for if any other plea be filed, the jurisdiction of the court is admitted.  If the want of jurisdiction appears on the record, no plea need be interposed.  The court, when the fact is brought to its notice, by motion or otherwise, in any stage of the case, will take proper action, and strike the case from the docket.  If the want of jurisdiction does not appear on the record, and the parties appear and go to trial on the merits, it is matter of discretion with the court, whether, on suggestion of facts going to show a want of jurisdiction, the trial on the merits shall or shall not be suspended, and the evidence shall or shall not be heard."  The court then went on to say:  "If the information does not come early, it must not be rejected if it comes late.  Whenever and however it comes, it should be received as the suggestion of an amicus curiae, and the proper legal action promptly taken."
      •  Palmer v Reeves, 182 A 138 at 141 (Connecticut 1935) quoting Olmstead's Appeal, 43 Conn 110 at 112 (Connecticut)

      It is necessary for the jurisdictional facts to appear in the record; but the language in which such recitals are made need not be such as a skillful lawyer would use.
      •  Pettibone v Wells, 179 So 336 at 339 (Mississippi 1938)

      The papers filed in the case and upon which the issues were made up, while somewhat informal perhaps, seem to have been amply sufficient to have apprised the court and all parties concerned exactly what should be decided, and we have had no difficulty in ascertaining the points for review in this court.  All the district courts of this State, even in civil actions, frequently try and dispose of issues satisfactorily on papers far more informal than those at bar.  The records in cases examined here abundantly establish that to be a fact.  Besides it is axiomatic that every court has judicial power to hear and determine the question of its own jurisdiction of the parties and subject matter in a cause and it is necessarily required to do so when it undertakes its disposition.
      •  Fox Park Timber Co. v Baker, 84 P2d 736 at 742 (Wyoming 1938)

      If a court finds at any stage of the proceedings, that it is without jurisdiction, it is its duty to take proper notice of the defect, and stay, quash or dismiss the suit.  "This is necessary, to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment.  * * *  So, ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceeding."  Branch v. Houston, 44 N.C. 85.
      •  In re Davis' Custody, 103 SE2d 503 at 506-507 (North Carolina 1958).  Citations omitted.
      The Branch v Houston "ex necessitate" statement above can be found widely quoted, as in:
      •  Henderson County v Smyth, 5 SE2d 136 at 138 (North Carolina 1939)
      •  Burgess v Gibbs, 137 SE2d 806 at 808 (North Carolina 1964)
      •  Morgan v Hays, 426 P2d 647 at 650 (Arizona 1967)

      Lack of jurisdiction, however, may be raised at any time and not necessarily through the formality of a motion to erase, for the question, once raised, must be disposed of no matter in what form it is presented.
      •  Carten v. Carten, 219 A2d 711 at 715 (Connecticut 1966).
      Other Connecticut decisions rely on almost identical wording:
      •  Watson v Howard, 86 A2d 67 at 68 (Connecticut 1952)
      •  Browning v. Steers, 295 A2d 544 at 545 (Connecticut 1972)
      •  Castro v Viera, 541 A2d 1216 at 1220-1221 (Connecticut 1988)

      Every court has inherent power to determine whether it has jurisdiction over the subject matter of the proceedings before it.  It makes no difference how the question comes to its attention.  Once raised, the question must be disposed of, no matter in what manner of form or stage presented.  The court on its own motion will examine grounds of its jurisdiction before proceeding further.
      •  Carmichael v Iowa State Highway Com., 156 NW2d 332 at 340 (Iowa 1968)

      Every court has judicial power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction.  The court necessarily decides that it has jurisdiction by proceeding in the cause.
            When at any time or in any manner it is represented to the court that it has not jurisdiction, the court should examine the grounds of its jurisdiction before proceeding further, the question of jurisdiction being always open for determination.
      •  21 CJS Courts § 88 (1990)

      If any doubt remains that jurisdiction may be evaluated at any time � most emphatically including while Defendant is in default � then that doubt must be laid to rest by the following explicit statement, which can be encapsulated in four words � Jurisdiction failure vacates default:

      In 1 Black on Judgments, the author, discussing the opening and vacating of judgments by default, at section 94, says:
      "A judgment taken against a defendant by default will be opened or set aside on his motion, in the court wherein it was entered, for a failure of jurisdiction, or for certain classes of errors and irregularities."
      •  Brame v Nolen, 124 SE 299 at 301 (Virginia 1924).  Bold emphasis added.

      And if it is the case that jurisdiction can be challenged in any manner, even in the absence of a formal motion, even by mere "suggestion," then it follows that Gary Kurtz's Rambam-Objection-D2 (page 2, section "1") protest that Motion-to-Quash-D suffers from formatting deficiencies is misplaced.  Defendant does strive mightily to provide all requisite information, and if he fails to do so, will instantly furnish any missing information upon request; but as he lives in Canada, and is not subject to California jurisdiction, and as American justice expresses readiness to welcome his submissions concerning lack of jurisdiction as suggestions to which American courts are motivated to respond, then perhaps it is unreasonable to demand that he master formatting minutiae before being permitted to offer those suggestions.

      Rambam lawyer Gary Kurtz also complains in his Rambam-Objections C and D1 of the length of Prytulak Motions-to-Quash C and D, to which complaint three answers can be made:

      1. Challenge to jurisdiction is allowed informality.  As Lubomyr Prytulak submissions have as their sole purpose the raising of the issue of jurisdiction, they are allowed informality, as has been supported by ample precedent above.
      2. Absent defendant must anticipate all eventualities.  As Lubomyr Prytulak will not be present in court to defend his written submissions orally, he needs to ensure that his writing anticipates, and comprehensively answers, all conceivable points that Plaintiff � who will be present or represented � might raise orally.  Generally, to refuse to waive length restrictions on written submissions from non-resident defendants unable to attend court would be to confer an unfair advantage on any plaintiff who selected his forum for the very reason that it was inconvenient for the defendant.
      3. Length is proportional to recalcitrance.  The length of the two Prytulak motions is proportional to the reluctance of the Court to consider the issue of its own jurisdiction, a principle which covers also the instant submission whose length is proportional to what on the hearing of 25-Nov-2002 will be the Court's eight-month resistance to considering its own jurisdiction.

      Overpowering legal precedent, then, supports the view that because Prytulak Motions-to-Quash A and B unambiguously and persuasively challenged jurisdiction, neither their informality nor their having been refused filing as formal motions should have prevented them from prompting the court to verify its own jurisdiction in the two Rambam v Prytulak Cases 02E00326 and BC271433.  Particularly, the instant Court had the option of following the precedent set in the earlier Rambam v Prytulak Case 02E00326 in which Motion-to-Quash-A was acknowledged as "06/17/2002 CORRESPONDENCE RECEIVED" (see Exhibit 1), which according to the extensive precedent documented above should have been sufficient to prod that earlier court into evaluating its own jurisdiction, and which might have succeeded in doing so had not that case been dismissed.  In contrast, as can be verified in Exhibit 2, Motion-to-Quash-B submitted in the instant Case BC271433 appears to have been altogether excluded from the trial record, both as a formal motion filed, or as an informal submission to the Court.  Lubomyr Prytulak, therefore, asks the instant Court to extend, however belatedly, the same recognition of "CORRESPONDENCE RECEIVED" to his Motion-to-Quash-B for the reason that it should have been sufficient to prod the instant court into evaluating its own jurisdiction, and thus needs to be included in the trial record in the eventuality that an appellate court might wish to appreciate the extent of Lubomyr Prytulak's efforts to convince the Court that it needed to evaluate its own jurisdiction.

    2. The Court has the power and duty to evaluate jurisdiction on its own motion, through inherent power, ex officio, sua sponte, ex mero motu

      Although the authorities above were gathered to support the legitimacy of using informal submission to attract the court's attention to the question of jurisdiction, these authorities at the same time could occasionally be found stating that even informal submission was inessential, the court having the power and the duty to evaluate jurisdiction on its own motion, or in other words:

      • through inherent power (the right of doing a thing without receiving that right from another) or

      • ex officio (without any other warrant than that resulting from the holding of office) or

      • sua sponte (of its own will or motion, voluntarily, without prompting or suggestion) or

      • ex mero motu (of its own mere motion, of its own accord, without prompting or request).

      Such must have been the meaning of the Palmer v Reeves statement above that "if the want of jurisdiction appears on the record, no plea need be interposed" � meaning that when the record points to failure of jurisdiction, the court will act on its own motion without requiring Defendant to interpose his motion to instigate action.  The principle does not lack for backers, as is evidenced by the following statements sorted chronologically and stretching from 1884 to 1995, with bold emphasis added throughout to words that exhort courts to seize the initiative:

      [T]he rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act.  On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes.  This question the court is bound to ask and answer for itself, even when not otherwise suggested and without respect to the relation of the parties to it.  [...]  The true question is, not what either of the parties may be allowed to do, but whether this court will affirm or reverse a judgment of the Circuit Court on the merits, when it appears on the record, by a plea to a jurisdiction, that it is a case to which the judicial power of the United States does not extend.  The course of the court is, when no motion is made by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even when it does not appear, affirmatively, that it does exist.  It acts upon the principle that the judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted.  I consider, therefore, that when there was a plea to the jurisdiction of the Circuit Court in a case brought here by a writ of error, the first duty of this court is, sua sponte, if not moved to it by either party, to examine the sufficiency of that plea and thus to take care that neither the Circuit Court nor this court shall use the judicial power of the United States in a case to which the Constitution and laws of the United States have not extended that power."
      •  Mansfield, Coldwater & Lake Michigan Railroad Co. v Swan, 28 L Ed 462 at 464 (1884).  Citations omitted.

      "It must always be ex officio the duty of every court to disclaim a jurisdiction which it is not entitled to exercise.  To do otherwise would be to usurp a power not confided by the law."
      •  Hanger v Commonwealth, 60 SE 67 at 68 (Virginia 1908)

      It is the duty of the court in all cases to examine of its own motion its jurisdiction to entertain a cause, even though not raised or argued.
      •  Bar Ass'n of City of Boston v. Casey, 116 NE 541 at 543 (Massachusetts 1917).

      [I]t is the duty of the court to consider whether it has jurisdiction at whatever stage the objection may be presented, or of its own motion if not raised by a party.
      •  Shannon v Shepard Mfg. Co., 119 NE 768 at 770 (Massachusetts 1918)

      Wherever a defect in the proceedings fatal to its jurisdiction is brought to the attention of the court, it must be considered; and the court does not wait for the parties to object, but acts of its own motion.
      •  Town of Barton v Town of Sutton, 106 A 583 at 584 (Vermont 1919)

      A question of jurisdiction may be raised at any stage of the case, and such may be considered by the court sua sponte.
      •  Dahlin v Missouri Commission for the Blind, 262 SW 420 at 421 (Missouri 1924)

      The rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act.  On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes.  This question the court is bound to ask and answer for itself, even when not otherwise suggested and without respect to the relation of the parties to it."
      •  Hamilton v Browder, 54 P2d 1025 at 1027 (Oklahoma 1936)

      It is elementary that it is the duty of a court to refuse to entertain jurisdiction of a cause when it becomes apparent that it does not have jurisdiction.  There was no error in the action of the trial court in dismissing the cause of action of the appellant on the court's own motion.
      •  Fenstermacher v Indianapolis Times Pub. Co., 1 NE2d 655 at 657 (Indiana 1936).  Citations omitted.

      We observe first that when any court is asked to exercise a power, its first duty is to determine whether that power has been conferred upon it, and this duty rests upon it whether its power is challenged or not.
      •  Ryan v Kroger Grocery & Baking Co., 11 NE2d 204 at 206 (Ohio 1937)

      "Courts are bound to take notice of the limits of their authority, and accordingly a court may of its own motion, even though the question is not raised by the pleadings or is not suggested by counsel, recognize the want of jurisdiction, and it is its duty to act accordingly by staying proceedings, dismissing the action, or otherwise noticing the defect, at any stage of the proceedings."
      •  Hutchins v Hutchins, 4 A2d 679 at 679 (Maine 1939).  Citations omitted.

      It has long been the established law in this state that in adjudicating questions of jurisdiction, courts are not bound by the allegations of the plaintiff's petition.  The rule is that, in the trial of a case, if at any time during its progress it becomes apparent that the court has no authority under the law to adjudicate the issues presented, it becomes the duty of the court to dismiss it.  Under our system of jurisprudence the rule could not be otherwise because the judgment rendered by a court in a controversy over which the court does not have jurisdiction is a nullity.
      •  Galley v Hedrick, 127 SW2d 978 at 980-981 (Texas 1939)

      That it is the duty of this court to inquire into its own jurisdiction, as well as the jurisdiction of the court from which the appeal is taken, whether presented by the parties or not, is too thoroughly settled to require any extensive discussion or citation of authorities.
      •  Harber v McKeown, 157 P2d 753 at 754 (Oklahoma 1945)

      The question of jurisdiction should be inquired into by the court at the earliest inception on its own initiative to ascertain whether or not it has jurisdiction.
      •  Sheridan County Electric Co-Op., Inc. v Anhalt, 257 P2d 889 at 889-890 (Montana 1953)

      It is a well established principle of law that a court lacks power to hear or determine a case concerning subject matters over which it has no jurisdiction.  Furthermore a court has the power to examine and determine on its own motion whether it has jurisdiction of a matter presented to it.
      •  Appeal of Matheisel, 224 A2d 832 at 832 (New Hampshire 1966).  Citations omitted.

      It is inherently within the power and duty of the Court of general jurisdiction to determine its jurisdiction.
      •  Niles v Marine Colloids, Inc., 249 A2d 277 at 279 (Maine 1969)

      When jurisdiction is not properly invoked, the trial court is without authority to render a judgment.  The jurisdiction of the court may be raised at any time by motion or by the court.
      •  Troutman v Mitchem, 472 NE2d 69 at 71, (Ohio 1984).  Citations omitted.

      While the court may raise issues on its own motions, it is limited to issues of jurisdiction.
      •  Frontier Ditch Co. v Chief Engineer of Div. of Water Resources, 704 P2d 12 at 17 (Kansas 1985)

      The court has a duty to sua sponte inquire into and determine whether it has jurisdiction.
      •  In Interest of D.L.D., 701 SW2d 152 at 156 (Missouri 1985)

      A court is bound to take notice of the limits of its jurisdiction even though the question is not raised.
      •  Paulson v Secretary of State, 398 NW2d 477 at 480 (Michigan 1987)

      A court must notice, even sua sponte, the matter of its own jurisdiction, for jurisdiction is fundamental in nature and may not be ignored.
      •  K & S Interests, Inc. v Texas American Bank/Dallas, 749 SW2d 887 at 890 (Texas 1988)

      A court has the power and duty to examine and determine whether it has jurisdiction of a matter presented to it, its determination being subject, of course, to appellate review.  This question should be considered by the court before it looks at other matters involved in the case, such as whether the parties are entitled to a jury trial.  It may, and must, do this on its own motion, without waiting for the question of its jurisdiction to be raised by any of the parties involved in the proceeding.
      •  20 Am Jur 2d § 60 (1995)

      In the instant case, the Court could have been prompted to a sua sponte evaluation of its in personam jurisdiction upon noticing that Plaintiff Steven Rambam is domiciled in Brooklyn, New York, USA, while Defendant Lubomyr Prytulak is domiciled in Vancouver, British Columbia, Canada.

      And the Court could have been prompted to a sua sponte evaluation of its own jurisdiction by the approach of the day of default entry � if some jurisdictions require by statute that personal jurisdiction be apparent on the record, then although a California judge might not be bound by such precedent, he might nevertheless be prompted by it, such precedent as:

      Where the record fails affirmatively to show jurisdiction of the person of the defendant, a judgment by default, on direct appeal, is fundamentally erroneous.
      •  Peterson & Tvrdik v Mueller-Huber Grain Co., 58 SW2d 890 at 892 (Texas 1933)

      The Court could as well have been prompted to a sua sponte evaluation of its own jurisdiction upon noticing that the California Court of Appeal had already � in Jewish Defense Organization v Superior Court � told Los Angeles Judge Charles W McCoy that he was wrong to have assumed personal jurisdiction over Mordechai Levy, where Mordechai Levy had stronger ties to California than Lubomyr Prytulak has.  This is a widely-cited case, and of the highest relevance, and of the greatest potency in prompting the Court to sua sponte action, for the reasons that at trial it enjoyed the same forum (the Los Angeles Superior Court), featured the same plaintiff (Steven Rambam), represented by the same lawyer (Gary Kurtz), complaining of similar publications (JDO materials on the Internet), and with Rambam-Kurtz suffering defeat on appeal because of the same blindness to lack of personal jurisdiction that they have been unable to shake off to this day.  Because of the high relevance of JDO v Superior Court, and because Lubomyr Prytulak submitted the case bound together with his       Motion-to-Quash-B, it alone could have prompted the Court to evaluate its own jurisdiction, and finally because the Court may not today have a copy of that Motion-to-Quash-B that comes with a copy of JDO v Superior Court, JDO is attached to the instant submission as Exhibit 3.

      It may prevent misunderstanding to add that the sweeping generalizations concerning jurisdiction such as the many quoted above arise most often from cases concerning not personal jurisdiction, but subject matter jurisdiction.  However, they can be taken to encompass personal jurisdiction as well for several reasons:

      1. Absence of qualifiers is deliberate.  Courts typically writing the generalization without qualifiers should be understood as intending the generalizations to cover both subject matter jurisdiction and personal jurisdiction.
      2. Personal jurisdiction sometimes explicitly encompassed.  Some of the generalizations do explicitly cover personal jurisdiction, as for example in two quotations already cited above � Fox Park Timber Co. v Baker, 84 P2d 736 at 742 (Wyoming 1938) and 21 CJS Courts § 88 (1990) � or in three of the four cases cited immediately below:

        But in all the cases it has been distinctly made a condition of immunity of judicial officers from damage for wrong and injury done by his decision or act that such decision be rendered or act done within his jurisdiction of the subject matter or of the person affected.  As said in Cooley, Torts, 416: "Every judicial officer, whether the grade be high or low, must take care, before acting, to inform himself whether the circumstances justify his exercise of the judicial function.  A judge is not such at all times, and for all purposes.  When he acts, he must be clothed with jurisdiction, and, acting without this, he is but the individual assuming an authority he does not possess."
        •  Glazar v. Hubbard, 42 SW 1114 at 1115 (Kentucky 1897).
        The Cooley statement above is quoted with approval in
        •  Blincoe v Head, 44 SW 374 at 375 (Kentucky 1898),
        though without the introductory acknowledgement that it applies to both subject matter jurisdiction and personal jurisdiction.

        A judgment, order or decree entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, is void, and may be attacked at any time or in any court, either directly or collaterally.
        •  Barnard v Michael, 63 NE2d 858 at 861-862 (Illinois 1945).  Bold emphasis added.
        The exact same statement is quoted with approval thirty-one years later in
        •  City of Chicago v Fair Employment Practices Commission, 357 NE2d 1154 at 1155 (Illinois 1976)

      3. Personal jurisdiction is never explicitly excluded.  Such unqualified generalizations are never followed by any caution that they should be withheld from personal jurisdiction.
      4. Jurisdictional generalizations apply equally to subject matter jurisdiction and to personal jurisdiction that is challenged.  Personal jurisdiction differs from subject matter jurisdiction mainly in that Defendant can create personal jurisdiction where it did not exist, as by submitting to it, but cannot by his actions create subject matter jurisdiction where it does not exist.  However, in a case in which personal jurisdiction is absent on the face of the record, and more especially in the case where personal jurisdiction is energetically challenged, then jurisdictional generalizations apply equally to both subject matter and personal jurisdiction.

      It might also help to clarify an implication of the frequent statement by appellate courts as to the necessity of their in limine determining not only their own jurisdiction, but also the jurisdiction of the lower courts whose decisions they review, as in the Harber v McKeown statement already cited above "that it is the duty of this court to inquire into its own jurisdiction, as well as the jurisdiction of the court from which the appeal is taken, whether presented by the parties or not, is too thoroughly settled to require any extensive discussion or citation of authorities."  It is an impossibility that what appellate courts convey by such statements is that they intend to examine the jurisdiction of lower courts rigorously after having extended to these same lower courts permission to examine their own jurisdiction perfunctorily, or not at all.  Surely appellate courts are motivated to reduce the volume of reversals upon appeal by requiring lower courts to determine preliminarily what the appellate courts intend to review secondarily.  If appellate courts do habitually verify the jurisdiction of lower courts before considering the merits of the appeal brought before them, then this must automatically confer the obligation upon the lower courts to verify their own jurisdiction before considering the merits of the case brought before them.

      In view of the widespread calls to sua sponte action, then, neither the early and brief Defendant       Motion-to-Quash-B, nor the more detailed and currently missing Motion-to-Quash-C, nor the finally-filed Motion-to-Quash-D, should have been needed to trigger the Court's evaluation of its own jurisdiction.  Even in the absence of all such Defendant-generated prompts, the Court had both inherent power and ample precedent to on its own motion demand that Plaintiff Rambam produce evidence which might persuade the Court to take jurisdiction over the citizen, and resident, of a foreign land.

    3. Jurisdiction cannot be presumed

      Court presumptions, as concerning jurisdiction, may be invoked only on matters concerning which the record is silent:

            But the presumptions which the law implies in support of the judgments of superior courts of general jurisdiction, only arise with respect to jurisdictional facts concerning which the record is silent.  Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed.  They have no place for consideration when the evidence is disclosed or the averment is made.  When, therefore, the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.  [...]
            Whenever, therefore, it appears from the inspection of the record of a Court of general jurisdiction that a defendant against whom a personal judgment or decree is rendered was, at the time of the alleged service, without the territorial limits of the Court, and thus beyond the reach of its process, and that he never appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing the jurisdiction is cast upon the party who invokes the benefit or protection of the judgment or decree.  This is so obvious a principle, and its observance is so essential to the protection of parties without the territorial jurisdiction of a court, that we should not have felt disposed to dwell upon it at any length, had it not been impugned and denied by the circuit court.
      •  Mr. Justice Field in Galpin v Page, 21 L Ed 959 at 963 (1873).  Also quoted with approval in
      •  Laughlin v Hughes, 89 P2d 568 at 573 (Oregon 1939).  The same is expressed also in
      •  Hill v Daley, 328 NE2d 142 at 145 (Illinois 1975).

      By way of demonstrating that thinking on this subject has little changed over the century that elapsed since the 1873 statement above, one readily finds a similar 1905 statement being quoted in 1979:

      "Where a court of general jurisdiction proceeds to adjudicate a cause there is a presumption of jurisdiction; but this presumption applies only when the record is silent upon the question, and if there is an affirmative showing in the record that there was no jurisdiction the judgment or decree will be void."
      •  Forrest v Fey, 75 NE 789 at 791 (1905) as quoted in Evans v Advance Schools, Inc., 388 NE2d 1003 at 1005 (Illinois 1979)

      The presumption credited to a court of general jurisdiction is an appellate court's presumption that (absent contrary evidence) the trial court did properly verify its own jurisdiction.  This presumption of jurisdiction, however, is not one that the trial court itself is entitled to make in lieu of verifying its own jurisdiction.  What particularly no court is entitled to do is to presume its own jurisdiction in the face of a record affirming the opposite.  If a judge in a court of general jurisdiction can look forward to not being asked to produce the evidence on which he assumed jurisdiction, this does not mean that he may assume jurisdiction when he himself has never seen the evidence.  In short, that in the absence of contrary evidence, a court of general jurisdiction will be presumed to have had jurisdiction is very far from saying that the court may itself presume to have jurisdiction in the presence of contrary evidence.
    4. Deadlines and time limits do not apply

      The affirmation that jurisdiction can be challenged at any time has already been encountered in several of the opinions quoted above, and could be reinforced with fresh assurances, as for example the assurance found in Sullivan v Bach below:

      Both jurisdiction of the person and jurisdiction of the subject matter must concur or the judgment will be void in any case in which the court has assumed to act, and it is therefore fundamental that subject matter or personal jurisdiction can be raised at any time either directly or collaterally.
      •  Sullivan v Bach, 427 NE2d 645 at 650 (Illinois 1981)

      But it would be preposterous to interpret jurisdiction being challengeable at any time, as meaning at any hour of the day, or on any day of the week, or in any month of the year.  All that at any time can possibly mean is without hindrance by time constraints normally imposed by other events in the proceedings, from which it follows that deadlines and time limits do not apply to challenges of jurisdiction.  The same recognition arrives from understanding that if lack of jurisdiction renders orders or judgments nullities, then any time constraints that such nullities may seem to impose are without effect and can be disregarded:

      Every judgment of a court rendered without jurisdiction is a nullity � not merely viodable but void � and may be disregarded.  It is subject to attack by any person at any time in any court and in any proceeding in which it is brought in question.
      •  People v Miller, 171 NE 672 at 675 (Illinois 1930).

      It is a rule well established that a void judgment or order may be vacated at any time and the doctrines of laches and estoppel do not apply.
      •  Thayer v Lillage of Downers Grove, 16 NE2d 717 at 719 (Illinois 1938).

      That the sweeping away of time constraints follows from a lack of jurisdiction is stated more explicitly in Ward v Sampson:

      Two exceptions to the rule that a judgment cannot be assailed after the expiration of the time for appeal or suing out of a writ of error are, first, where the court was without jurisdiction to render the judgment entered and, second, where the judgment was obtained by fraud.  [...]  Again, a void judgment or order may be vacated at any time and the doctrines of laches and estoppel do not apply.
      •  Ward v Sampson, 70 NE2d 324 at 327 (Illinois 1946).


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  1. WHEN SHOULD JURISDICTION BE EVALUATED?

    1. Evaluation of jurisdiction must be preliminary, threshold, in limine

      Also broached above has been the question of the optimal timing of the evaluating of jurisdiction � as for example when we read above that "Common sense indeed teaches that a question so vital as that of jurisdiction should be decided preliminarily to all others.  Accordingly all treatises on pleading direct that pleas to the jurisdiction are to be filed first."  Palmer v Reeves, 182 A 138 at 141 (Connecticut 1935).  In defiance of what "all treatises on pleading direct," Rambam lawyer Gary Kurtz � apparently with the acquiescence of the Court � insists on putting jurisdiction last, which clashes with unanimous court opinion stretching from at least 1915 through 1985:

      Where the right of a court to take jurisdiction of a given case is dependent on a given fact, the determination of that fact, like any other question of fact, is referred in the first instance to the trial court.  It is a fact which that court must determine in limine in every case.
      •  State v Kauffman, 149 P 656 at 657 (Washington 1915).
      Also quoted with approval in
      •  Pfirman v Probate Court of Shoshone County, 64 P2d 849 at 851 (Idaho 1937)

      Neither party has questioned our jurisdiction, but the first question to be decided by any court in any case is whether or not it has jurisdiction in point of fact.  It is as essential to the orderly administration of justice that we should decline to proceed in any case where jurisdiction is absent, as that we should unhesitatingly adjudicate when jurisdiction appears.
      •  Bealmer v. Harford Fire Ins. Co., 220 SW 954 at 956 (Missouri 1920)

      It is a matter of first consideration of any court to determine its own jurisdiction of a case, and, if lack of jurisdiction appears, as a matter of law, the court should dismiss the case without passing upon any other issue presented, whether of law or fact.
      •  Lone Star Finance Corporation v Davis, 77 SW2d 711 at 714 (Texas 1934)

      We observe first that when any court is asked to exercise a power, its first duty is to determine whether that power has been conferred upon it, and this duty rests upon it whether its power is challenged or not.
      •  Ryan v Kroger Grocery & Baking Co., 11 NE2d 204 at 206 (Ohio 1937)

      The decision of the question of whether the court has jurisdiction is a preliminary one to the determination of the merits of the cause, and is for the court to decide.
      •  Bridges v Wyandotte Worsted Co., 132 SE2d 18 at 22 (South Carolina 1963)

      The trial court must try the jurisdictional issue before addressing issues on the merits.
      Henderson v Milex Products, Inc., 370 NW2d 291 at 292 (Wisconsin 1985)

      In every case, a threshold inquiry must be made to determine whether a court has proper jurisdiction over the claim before it.
      •  Levinson v American Accident Reinsurance Group, 503 A2d 632 at 634 (Delaware 1985)

      The established and uncontroverted need to give jurisdiction first place in the sequencing of questions clashes with Plaintiff's seven-month-long today, and eight-month-long by the hearing of 25-Nov-2002, ignoring of the jurisdiction question with the ultimate result (at best) of it being pushed to the rear of the queue, and (at worst) of it never being considered at all.

      A practical reason in the instant case for evaluating jurisdiction in limine, if practical reason be needed, is that jurisdiction needs to be established at the time of complaint, 04-Apr-2002; if jurisdiction begins to be contemplated approaching eight months later, at the upcoming hearing of 25-Nov-2002, then the Court will be put to the trouble of distinguishing facts that were in existence on 04-Apr-2002 from facts that appeared, either spontaneously or through manufacture, afterward:

      The jurisdiction of the lower court depends upon the state of things existing at the time the suit was brought.
      •  Minneapolis & St. Louis Railroad Co. v Peoria & Pekin Union Railway Co., 270 US 580 at 586 (U.S. 1926)

    2. Several States require that the basis of personal jurisdiction be alleged at the outset � in plaintiff's claim

      Although complaint requirements in other jurisdictions are not binding on California, their example may be worth emulating when they contribute toward detecting and discouraging frivolous and vexatious litigation such as the instant Rambam v Prytulak.  In question is the requirement in several jurisdictions that facts conferring jurisdiction over a non-resident defendant must be alleged in the complaint:

      Moreover, to perfect service pursuant to the long-arm statutes, the complaint must allege the jurisdictional requirements prescribed by the statutes.  [...]  Failure to adequately allege the basis for invoking long-arm jurisdiction over a non-resident defendant voids any service of process.
      •  City Contract Bus Service, Inc. v Woody, 515 So2d 1354 at 1356 (Florida 1987)

      Courts can be found imposing the same requirement in several jurisdictions and over the span of many years:

      Arkansas:
      • Howard v County Court of Craighead County, 644 SW2d 256 at 257 (1983)
      Colorado:
      • Texair Flyers v District Court, 506 P2d 367 at 369 (1973)
      Florida:
      • Electro Engineering Products Co., Inc. v Lewis, 352 So2d 862 at 864 (1977)
      • Wynn v Aetna Life Insurance Co., 400 So2d 144 at 145 (1981)
      • International Harvester Co. v Mann, 460 So2d 580 at 582 (1984)
      • Mouzon v Mouzon, 458 So2d 381 at 381 (1984)
      • Kimbrough v Rowe, 479 So2d 867 at 868 (1985)
      Illinois:  
      • Johnston v United Presbyterian Church, Inc., 431 NE2d 1275 (1981)
      • Bobka v Cook County Hospital, 453 NE2d 828 at 829-830 (1983)
      • People v Parsons Co., 461 NE2d 658 at 663 (1984)
      • Olinski v Duce, 508 NE2d 398 at 400 (1987)
      • Heller Financial, Inc. v Conagra, Inc., 520 NE2d 922 at 924 (1988)
      Minnesota:  
      • Wuertz v Garvey, 178 NW2d 630 at 631 (1970)
      • Hardrives, Inc v City of LaCrosse, Wisconsin, 240 NW2d 814 at 816 (1976)
      • Mid-West Medical, Inc. v Kremmling Medical-Surgical Associates,, 352 NW2d 59 at 60 (1984)
      Missouri:  
      • Crabtree v Aetna Life Ins. Co., 111 SW2d 103 at 109 (1937)
      Texas:  
      • McKanna v Edgar, 388 SW2d 927 at 930 (1965)
      • Whitney v L & L Realty Corporation, 500 SW2d 94 at 95 (1973)
      • Gathers v Walpace Co., Inc., 544 SW2d 169 at 170 (1976)
      • Menchaca v Chrysler Life Ins. Co., 604 SW2d 287 at 289 (1980)

      In contrast to the above standard requiring plaintiff to kick off by alleging the facts which might extend jurisdiction over a non-resident defendant, Rambam lawyer Gary Kurtz filed his complaint 04-Apr-2002 devoid of any such alleged facts, and on p. 2 of his       Rambam-Objection-D2 dated 10-Oct-2002 (lagging behind the complaint by exactly 27 weeks) continues to disappoint by still failing to produce these alleged facts, but only boasts of being able to do so: "Plaintiff could, if necessary, respond to the jurisdictional arguments.  Plaintiff could, if necessary, outline his substantial ties to California.  Further, plaintiff could present arguments regarding defendant's claimed lack of contacts.  Plaintiff has refrained from those arguments because they are not presently relevant."

      The discrepancy between � on the one hand � some jurisdictions voiding complaints which fail to allege facts that might extend jurisdiction over a non-resident defendant and � on the other hand � Rambam-Kurtz showing a disinclination to allege (let alone prove) such facts presently more than seven months after filing their complaint, leaves this non-resident defendant mystified at the workings of American justice.

    3. Without jurisdiction established, default entry is impermissible

      Defendant       Motion-to-Quash-B was delivered to the Court on 29-May-2002, and the Court entered default against the defendant 31 days later, on 24-Jun-2002.  However, this explicit challenge to jurisdiction should have blocked default entry, for the simple reason that even a failure of the record to affirmatively demonstrate jurisdiction should have been sufficient to block default entry:

      The statutory proceedings noted, and to which the law exacts a close adherence, are all steps necessary to be successively taken in order to show the court's jurisdiction over the defendant, and in cases of judgment by default such jurisdiction must affirmatively appear.
      •  Friend v Thomas, 187 SW 986 at 987-988 (Texas 1916)

      Where the record fails affirmatively to show jurisdiction of the person of the defendant, a judgment by default, on direct appeal, is fundamentally erroneous.
      •  Peterson & Tvrdik v Mueller-Huber Grain Co., 58 SW2d 890 at 892 (Texas 1933).
      Also cited with approval in
      •  Reynolds v Volunteer State Life Ins. Co., 80 SW2d 1087 at 1093 (Texas 1935)

      And, it is a forteriori impermissible for a Court to enter default where an explicit challenge to jurisdiction has been made:

      [W]e hold that a special appearance and motion to quash the service of summons is an answer within the meaning of C.S. � 6832, that during the pendancy of such motion the defendant is not in default, and that the trial court abused its discretion in this case in refusing to set aside the default and judgment upon appellant's motion.
      •  Central Deep Creek Orchard Co. v Taft, 202 P 1062 at 1065 (Idaho 1921).
      Also favorably quoted in
      •  In re Smith, 225 P 495 at 496 (Idaho 1924)

      A "judgment by default" is one taken against a defendant who has been duly summoned or cited in an action and has failed to appear.  The distinguishing feature of a default judgment is that it follows from the omission of a defendant to appear.  The rule is firmly established that when an answer or other pleading of a defendant has raised an issue of law or fact, a judgment by default cannot be entered against him.  [...]  If the motion to dismiss raised a question of law, then appellant was entitled to have such issue disposed of before a default judgment could be entered against it.  This special appearance stayed the time for filing a pleading that tendered an issue as prescribed by C. S. § 4102, until such a time as this motion had been disposed of, and default could not be taken while the issue it tendered had not been disposed of.
      •  In re Smith, 225 P 495 at 496 (Idaho 1924)

      While ordinarily presumptions are made in support of a judgment (including presumptions of due service of citation when the judgment so recites), no such presumptions are made in a direct attack upon a default judgment.  We think the same rule would apply to inferences of jurisdictional facts in a direct attack.  As noted above, jurisdiction in this type of case must affirmatively appear on the face of the record.  The provisions of Article 2031b are clear, and plaintiff has the burden of making sufficient allegations to bring the defendant within its provisions.
      •  McKanna v Edgar, 388 SW2d 927 at 929-930 (Texas 1965).  Citations omitted.

      So muddled is Rambam lawyer Gary Kurtz in his understanding of jurisdiction, then, that where precedent demands that he establish jurisdiction long before requesting default, he turns the tables by defending the Court's having entered default, and proposes the Court now consider vacating that default, both prior to taking its very first look at jurisdiction.


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  1. SIMULTANEOUS MOTIONS TO QUASH SERVICE AND VACATE DEFAULT

    1. Both Kurtz and Court agree that vacating default must precede quashing service

      Rambam lawyer Gary Kurtz, and the Court as well, subscribe to the proposition that a defendant in default is not permitted to challenge jurisdiction by a motion to quash until he first sets aside default.

      1. The Minute Order of 15-Aug-2002

        The Court Minute Order of 15-Aug-2002 indicated that Court thinking was that Prytulak's proper course was to attempt to set aside default, and no more than that.  Challenging jurisdiction by means of a motion to quash is not suggested as an alternative, or as something that could be accomplished simultaneously, this in spite of the fact that the Court was aware that the only Prytulak submission to date had been his         Motion-to-Quash-B:

        Unless the default is set aside after a duly noticed motion which complies with all legal requirements, this case will proceed to the trial setting hearing and default prove-up hearing as described above.
        •  Los Angeles Superior Court "Minute Order" of 15-Aug-2002, p. 3.

      2. Condition for filing set by Katina on 25-Sep-2002

        In two 25-Sep-2002 telephone conversations with Court Representative Katina (at 213-974-5173), Lubomyr Prytulak was given to understand that the only motion that the Court would permit him to file was a motion to set aside default.  Prytulak viewed this as the Court's offer to file a Prytulak submission that was conditional upon his taking his challenge to jurisdiction off the table, which his reading of the law contraindicated.  In order to get his motion filed, Prytulak accommodated the Court to the limited extent of giving "vacating default" top billing in the title of his         Motion-to-Quash-D with "quashing service" relegated to second position, but with the body of the motion continuing to give quashing service the leading role, with vacating default following as a logical consequence � best viewed as vacating default by means of quashing service in preference to the Court's insistence on attempting to set aside default for non-jurisdictional reasons, and in case of success perhaps raising jurisdiction at some later time.

      3. The LASC web site Case Summary of 05-Nov-2002

        As of 05-Nov-2002, the Los Angeles Superior Court web site continues to describe the upcoming hearing as merely one to set aside default:

        Future Hearings
        11/25/2002         at 08:35 am in department 26 at 111 North Hill Street, Los Angeles Motion Set Aside Default/Judgment
        •  Los Angeles Superior Court web site Case Summary for Case BC271433 at www.lasuperiorcourt.org/civilCaseSummary/index.asp?CaseType=Civil

      4. Gary Kurtz can't foresee jurisdiction being considered any time soon

        In three successive submissions to the Court, Rambam lawyer Gary Kurtz never wavers from his position that Lubomyr Prytulak is blocked from asking the Court to evaluate jurisdiction, but rather has before him the sole option of attempting to set aside default for non-jurisdictional reasons:

        The only motion this Court may hear is a motion to set aside default, not a jurisdictional motion.  [...]  [D]efendant has forfeited his right to bring a motion to quash.  [...]  A motion to quash would not be timely.  [...]  Accordingly, defendant is not at liberty to file a motion to quash.
        •  Gary Kurtz, Rambam-Objection-C, 03-Sep-2002, pp. 2-3.

        At that point, defendant had forfeited his right to bring a motion to quash.  See Devlin v. Kearney Mesa AMC/Jeep/Renault, Inc., 155 Cal.App.3d 381, 385, 202 Cal.Rptr. 204 (1984).  Moreover, a motion to quash would not have been timely.
        •  Gary Kurtz, Rambam-Objection-D1 on 30-Sep-2002 (p. 4).  Italicization of "See" is in the original, as is the misspelling of "Kearny" as "Kearney."

              Plaintiff particularly objects to the constant recitation of jurisdictional arguments.  Defendant has filed a motion to set aside the default based entirely on his jurisdictional arguments.  Plaintiff will respond, at an appropriate time.
              Plaintiff could, if necessary, respond to the jurisdictional arguments.  Plaintiff could, if necessary, outline his substantial ties to California.  Further, plaintiff could present arguments regarding defendant's claimed lack of contacts.  Plaintiff has refrained from those arguments because they are not presently relevant.  Jurisdictional arguments are not appropriately made in letter form.  Moreover, jurisdictional arguments are not ripe while a default is in place.  They may be raised within the time to plead and before the entry of a default, or they may be raised if the default is set aside and if leave is granted.
        •  Gary Kurtz, Rambam-Objection-D2, 10-Oct-2002, p. 2.  Bold emphasis was in the original; paragraph numbering omitted.

      The above accumulation of evidence suggests that the Court holds fast to its resolution to avoid evaluating its own jurisdiction, even to the point of dedicating the upcoming hearing of 25-Nov-2002 solely to the question of setting aside default on grounds other than lack of jurisdiction.
    2. Legal reasoning which sweeps aside both context and qualification

      Rambam lawyer Gary Kurtz objects in his       Rambam-Objection-C that "by failing to answer the complaint, defendant [Prytulak] forfeited his right to bring a motion to quash" (p. 2), citing the authority of Devlin v Kearny Mesa, which he quotes as follows:

      The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.
      •  Devlin v Kearny Mesa AMC/Jeep/Renault, Inc., 202 Cal Rptr 204 at 206-207 (California 1984)

      However, prefixing the above sentence with its context permits the intention of Devlin v Kearny Mesa to emerge:

      Our first decision rightly assumed Kearny Mesa, having defaulted, knew it could not participate in a judgment hearing on punitive damages.  The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.
      •  Devlin v Kearny Mesa AMC/Jeep/Renault, Inc., 202 Cal Rptr 204 at 206-207 (California 1984).  Bold emphasis added.

      What the above restoration of stripped-away context reveals is that the "further affirmative steps" that the defaulted Kearny Mesa is blocked from taking are steps which participate in "a judgment hearing on punitive damages."  The application of Devlin to the instant Rambam v Prytulak would be that if Defendant Prytulak attempted to participate in the ongoing default-judgment hearings, then he would be lawfully blocked.  However, Defendant has no wish to participate in the ongoing default-judgment hearings from which the authority of Devlin excludes him, but rather Defendant is desirous of giving these hearings the widest possible berth, as he is aware that the California Court of Appeal would, if asked, refuse to recognize the jurisdiction of the Superior Court over Defendant Prytulak, and would, if asked, view the ongoing Superior Court proceedings as nullities.

      As Devlin gives no indication of contemplating an out-of-state defendant challenging jurisdiction, it should not be generalized to such a defendant.  Rambam lawyer Gary Kurtz's reliance on Devlin, then, consists of citing a single sentence out of context, and of ignoring the fact situation which occasioned the Fourth District Court of Appeal to write that sentence, and consists of attributing to that sentence an application that the Court never intended.

      Nothing more overwhelmingly demonstrates the superficiality of Gary Kurtz research than the discovery that Devlin appeals from a trial involving joined motions of quashing service and vacating default (it being irrelevant that the appellate court happens to affirm the denial of those motions):

      We rejected Kearny Mesa's procedural arguments and affirmed the orders denying its motions to quash service of process and to set aside its default and default judgment.
      •  Devlin v Kearny Mesa AMC/Jeep/Renault, Inc., 202 Cal Rptr 204 at 205-206 (California 1984).  Bold emphasis added.

      Thus, the very authority � Devlin v Kearny Mesa � which Rambam lawyer Gary Kurtz adduces to oppose the legitimacy of joining the motions of vacating default and quashing service in fact offers a precedent of exactly this being done with the approval of both the trial and appellate courts.  Defendant Prytulak takes this opportunity to object to Gary Kurtz's mode of arguing law, wherein he fixates on a snippet from a decision without reading the underlying case to determine the fact situation to which that generalization is meant to apply, and without reading the qualifications in which it is embedded and which restrict its meaning.  The result of such casual reading is a series of Gary Kurtz citations which at best are irrelevant, and at worst � as in Devlin � support a position opposite to the one he defends.  Furthermore, Gary Kurtz has already been apprised of the irrelevance of Devlin v Kearny Mesa in Prytulak-Reply-C (Exhibit 5), which apprisal he has chosen to ignore in his subsequent Rambam-Objection-D1:

      At that point, defendant had forfeited his right to bring a motion to quash.  See Devlin v. Kearney Mesa AMC/Jeep/Renault, Inc., 155 Cal.App.3d 381, 385, 202 Cal.Rptr. 204 (1984).
      •  Gary Kurtz, Rambam-Objection-D1 of 30-Sep-2002 (p. 4).  Italicization of "See" is in the original, as is the misspelling of "Kearny" as "Kearney."

      The Gary Kurtz modus operandi of making a sentence out of context mean what he wants it to mean, and then ignoring a challenge to his misinterpretation, compound the labor of all involved, most notably that of Lubomyr Prytulak who could otherwise have been spared the trouble of writing the instant Part 4: Simultaneous Motions to Quash Service and Vacate Default, and as well the labor of the Court which could otherwise have been spared the trouble of reading it.

    3. The precedents of Wyoming and California

      Devlin v Kearny Mesa is not an isolated opinion, but rather stands in the middle of a tradition that can be traced back to at least 1912, as exemplified in Wyoming and California streams, the Wyoming stream containing at least the following three decisions:

      • Spitzer v Spitzer, 777 P2d 587 at 592 (Wyoming 1989)
      • Vanasse v Ramsay, 847 P2d 993 at 996-997 (Wyoming 1993)
      • Multiple Resort Ownership Plan, Inc. v Design-Build-Manage, Inc., 45 P2d 647 at 651 (Wyoming 2002)

      The first decision in the Wyoming stream is representative of all three, and where bold emphasis draws attention to the strong generalization which � if context and qualification were to be overlooked � invites overextension:

      The distinction between an entry of default and a default judgment must here be recognized.  Entry of default is normally a clerical act which may be performed by the clerk of court, and it does not constitute a judgment.  The entry of default generally forecloses the party found to be in default from making any further defense or assertion with respect to liability or an asserted claim.  Although the entry of default generally establishes the fact of liability according to the complaint, it does not establish either the amount or the degree of relief.
            The default judgment, on the other hand, in addition to the fact of liability, defines the amount of liability or the nature of the relief.  This is generally done separately from the entry of default.
      •  Spitzer v Spitzer, 777 P2d 587 at 592 (Wyoming 1989).  Citations omitted, bold emphasis added.

      The California stream, in turn, in the midst of which floats Devlin, repeats its own set of even stronger generalizations and which similarly invite overextension:

      • Title Insurance & Trust Co. v King Land & Improvement Co., 120 P 1066 at 1067 (California 1912)
      • Christerson v French, 182 P 27 at 28 (California 1919)
      • Brooks v Nelson, 272 P 610 at 611 (California 1928)
      • Taintor v Superior Court, 213 P2d 42 at 44-45 (California 1949)
      • Heathman v Vant, 342 P2d 104 at 109 (California 1959)
      • Devlin v Kearny Mesa AMC/Jeep/Renault, Inc., 202 Cal Rptr 204 at 206-207 (California 1984)
      • People v One 1986 Toyota Pickup, 37 Cal Rptr 2d 29 at 32 (California 1995)
      • In re Marriage of Askmo, 102 Cal Rptr 2d 662 at 665 (California 2000)

      From the earliest of the above California decisions, it is possible to infer that the colorful and widely-repeated expressions that the defendant in default is "out of court" and "is not entitled to take any steps," and so on, originate from an encyclopedia that must have been in circulation around the turn of the century.  Also clarified below is the situation which leads to frequent comment � inviting further confusion � to the effect that even if default judgment were to be set aside, the court would have to immediately enter a new default judgment again anyway, making default judgment seem like an ineradicable weed which by taking root gains immortality, which impression, however, the following quote, along with its gloss, dispels:

      If it [default entry] were not a proceeding, or order, the party could not obtain relief from it at all under that section.  It is not a judgment [one might fallaciously argue], and the section authorizes relief only from a judgment, order, or proceeding.  The argument[, however,] is really self-destructive.  If the default [entry] cannot be set aside, because it is not a proceeding or order, of what avail would it be to set aside the [ensuing default] judgment?  The default [entry] would stand undisturbed.
            A default [entry] cuts off the defendant from making any further opposition or objection to the relief which plaintiff's complaint shows he is entitled to demand.  A defendant against whom a default is entered "is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action."  6 Ency. of Pl. & Pr. 126.  He cannot thereafter, nor until such default is set aside in a proper proceeding, file pleadings, or move for a new trial, or demand notice of subsequent proceedings.  Id., 127.  "A default confesses all the material facts in the complaint."  Rowe v. Table M. W. Co., 10 Cal. 441.  Consequently, if the [default] judgment were vacated [but not the default entry], it would be the duty of the court immediately to render another [default judgment] of like effect, and the defaulting defendants would not be heard for the purpose of interposing any denial [of the allegations plaintiff makes within his complaint] or affirmative defense [against the allegations plaintiff makes within his complaint].
      •  Title Insurance & Trust Co. v King Land & Improvement Co., 120 P 1066 at 1067 (California 1912).  Red insertions prevent the misinterpretation that the quotation above may be particularly prone to.

      However, despite strong prohibitions to defaulting-defendant participation such as those above, a closer reading of both Wyoming and California streams reveals that as the defaulting defendant enjoys the capacity to set aside default, then he is not "out of court" or prohibited from "taking any further steps" in any absolute sense.  Rather, as this one glaring exception to absolute prohibition can be found, the spell of universal generality is broken, and the possibility that other defendant actions are able to break through the wall of prohibition must be contemplated.  In fact, in none of the authorities cited above (or below) is a challenge to jurisdiction held out as one of the actions that can be denied the defaulting defendant.  For that matter, the difficulty can be swept aside entirely by rephrasing the question at hand as not whether a challenge to jurisdiction can be entertained prior to vacating default, but rather as whether one of the acceptable ways of vacating default is to demonstrate a failure of jurisdiction � to which question, voluminous precedent documented below answers in the affirmative.
    4. What says the California Code of Civil Procedure (CCP)?

      In his       Rambam-Objection-D1, part 3 on p. 2, Gary Kurtz represents Prytulak Motion-to-Quash-D as relying on Code of Civil Procedure (CCP) § 473(b), which is not the case, as such reliance would be founded on Defendant mistake, Defendant inadvertence, Defendant surprise, or Defendant excusable neglect.  Similarly inapplicable are the Plaintiff-cited Elms v Elms 164 P2d 936 (California 1946) and Fidelity Federal Savings & Loan v Long, 345 P2d 568 (California 1959) � these both also concern themselves with offering Defendant defects as excuse for untimeliness.

      In his Motion-to-Quash-D, however, Defendant featured not Defendant defects but rather Plaintiff defects � primarily the devastating Plaintiff neglect of failing to reclassify his earlier Rambam v Prytulak Case 02E00326 into the later BC271433, the confusion-sowing Plaintiff error of allowing almost identical cases to proceed simultaneously for an interval approaching three months, and the inexcusable Plaintiff oversight of failing to file the required Notice of Related Cases.  Thus, Rambam lawyer Gary Kurtz is wrong to state that "The common theme of defendant's arguments is a failure to recognize his own fault and an attempt to blame the world for his inattention" (Rambam-Objection-D1, p. 3).  Rather, Gary Kurtz would have hit closer to the truth if he had stated that "The common theme of Defendant's arguments is to recognize Plaintiff's fault, and to hold Plaintiff responsible for Plaintiff inattention."  In plainer language, what Defendant does in fact document is not Defendant shortcoming but rather Plaintiff fraud upon the Defendant and upon the Court:

      Showing that plaintiff or his attorney before judgment said or did something which put defendant off guard or prevented him from defending, and that defendant had prima facie valid defense, is sufficient to warrant relief from default judgment for "fraud practiced by the successful party."  [...]  In deducing it from the statutory delimitation of the right to reopen a case, the word "fraud" is not confined to its vicious import of a wicked motive or deliberate deceit, or an affirmative evil act purposefully conceived, but is deemed sufficiently expansive to embrace merely leading astray, throwing off guard, or lulling to security and inaction, be the intention or motive good or bad, with a resultant advantage to the one and an apparent injustice to the other.  So the law is declared to be that if before a judgment was rendered a party plaintiff or his attorney said or did anything that put his adversary off guard, or prevented him from defending the action, and he shows that he had a prima facie valid defense, he is entitled to relief from the judgment.  This is on the idea that such conduct operated as a fraud upon his rights.  There has been a firm adhesion to this precept.
      •  Johnson v Gernert Bros. Lumber Co., 75 SW2d 357-358 (Kentucky 1934).  Citations omitted; bold emphasis added.

      The bold emphasis above demonstrates that the fraud of throwing off guard is sufficient to set aside default.  In this connection, Ward v Sampson already cited higher above in support of the proposition that default judgment can be voided at any time when default was entered by a court without jurisdiction, can be re-read for an appreciation of its parallel ramification � that default judgment can also be voided at any time when the default entry was obtained by fraud:

      Two exceptions to the rule that a judgment cannot be assailed after the expiration of the time for appeal or suing out of a writ of error are, first, where the court was without jurisdiction to render the judgment entered and, second, where the judgment was obtained by fraud.  [...]  Again, a void judgment or order may be vacated at any time and the doctrines of laches and estoppel do not apply.
      •  Ward v Sampson, 70 NE2d 324 at 327 (Illinois 1946)

      Furthermore, although the above instances of Plaintiff fraud could have been cited in Motions-to-Quash C and D to justify vacating default, Defendant did not do so, but rather cited them only to justify extending time to submit motion to quash � hard for any awake reader to miss, as all such material is confined to the section titled EXTENSION OF THE DEFENDANT'S TIME TO QUASH.  Quashing service was always central in the Prytulak motion, and vacating default always played the subordinate role of logically-inescapable consequence of quashing.  Efficiency alone dictates that the short path of quashing service (with default being vacated as a logical consequence) is to be preferred to the long path of setting aside default without reliance on jurisdictional arguments, looking forward all the while to the opportunity to raise the issue of jurisdiction upon some later occasion.

      If justification needs to be found within the CCP, as Rambam lawyer Gary Kurtz appears to think that it does, then it would not be in the irrelevant CCP § 473(b) that he recommends, but rather in CCP § 473(d), of which the more pertinent portion is emphasized in bold:

      CCP § 473(d)  The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

      CCP § 473(d) is indeed what is wanted � allowing as it does that when absence of personal jurisdiction necessarily renders default entry void ab initio, all that remains is for the court to announce this necessity.  According to CCP § 473(d), then, vacating default need not be considered as a separate question, but will follow instantaneously and inescapably upon the quashing of service.

      CCP § 473(d) refers to "upon its own motion" toward the beginning of its long sentence, and refers to "set aside any void order" toward the end, leaving open the question of whether the former is intended to apply to the latter.  CCP § 473(d) would be both disambiguated and brought into harmony with the consensus of legal thinking that has been documented above if "upon its own motion" was understood to apply to "set aside any void order" as follows:

      Disambiguated CCP § 473(d)  The court may, upon motion of any party, or upon its own motion, correct clerical mistakes or set aside any void judgment or order.

      Indeed the alternative � that courts somehow lack inherent power to set aside void orders or judgments � is inconsistent with legal precedent that is as persuasive as it is pervasive.

    5. Precedent is on the side of allowing simultaneous consideration of quashing service and vacating default

      The opinions cited below either explicitly assert the permissibility of a simultaneous consideration of quashing service and vacating default, or else demonstrate that the case under consideration did involve such simultaneous consideration without attracting disapproval.  In some instances, default being automatically vacated by the finding of lack of jurisdiction is either explicitly stated, or can be inferred.  Sorting is chronological, and all bold emphasis has been added:

      In 1 Black on Judgments, the author, discussing the opening and vacating of judgments by default, at section 94, says:
      "A judgment taken against a defendant by default will be opened or set aside on his motion, in the court wherein it was entered, for a failure of jurisdiction, or for certain classes of errors and irregularities."
      •  Brame v Nolen, 124 SE 299 at 301 (Virginia 1924)

      Our decision requires that the default judgments be set aside on the ground that the record fails to show that the district court acquired personal jurisdiction of the defendants.
      •  Whitney v L & L Realty Corporation, 500 SW2d 94 at 97 (Texas 1973)

      We rejected Kearny Mesa's procedural arguments and affirmed the orders denying its motions to quash service of process and to set aside its default and default judgment.
      •  Devlin v Kearny Mesa AMC/Jeep/Renault, Inc., 202 Cal Rptr 204 at 205-206 (California 1984)

      [T]he mere fact that the party has defaulted below does not defeat his right to appeal.  He may, on direct appeal from the default judgment, attack it for want of jurisdiction in the court, or for failure of the complaint to state a claim, or for procedural irregularity in the course of the proceedings below.
      •  Spitzer v Spitzer, 777 P2d 587 at 590 (Wyoming 1989).  Italics removed from the original.

      We first address whether respondent could properly bring its petition to vacate the default judgment on jurisdictional grounds.  [...]  [A] void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally.  A court has inherent authority to expunge void acts from its records.  A judgment or order is void where it is entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular order or judgment, or where the order is procured by fraud.  Where, as here, the petition sought to attack the [default] judgment on jurisdictional grounds, we find that respondent's petition was properly brought before the trial court.
      •  Evans v Corporate Services 565 NE2d 724 at 727-728 (Illinois 1990).  Citations omitted.

      [A]ppellant filed a single pleading containing a motion to quash service of process and a motion to vacate final [default] judgment.   [...]  We need not address appellant's argument on her motion to vacate the default judgment.
      •  Montero v DuVal Federal Savings and Loan Association, 581 So2d 938 at 939-940 (Florida 1991)
      Why does the court decline to address the motion to vacate default? � Probably because there is no separate issue to address, default already having been automatically vacated by the successful quashing of service.

      On February 26, 1997, Floveyor specially appeared and filed a motion to set aside the default judgment and a motion to quash Shick's service of summons and the cross-complaint.
      •  Floveyor International Ltd. v Superior Court 69 Cal Rptr 2d 457 at 459 (California 1997)

      "[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.  Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.  Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.
      •  Ellard v Conway, 114 Cal Rptr 2d 399 at 401 (California 2001).  Citations omitted.

      That the above opinions make reference to default judgment, whereas the instant Rambam v Prytulak is in a state of default entry only, makes no difference.  Thus, in California Code of Civil Procedure the following sections treat default entry and default judgment identically:

      CCP § 473(b)(1) with (2); §473(c)(1);  §473(c)(2);  §473.5;  §474;  §585.5(b);  §585.5(c);  §1005(a)(10).

      Rambam lawyer Gary Kurtz fails to cite any CCP rule which discriminates between default entry and default judgment, and certainly any CCP rule which permits jurisdictional challenge following default judgment but forbids it following default entry.  Especially to be noted above is the frequency with which default entry is treated identically to default judgment in Title 6, Chapter 8, covering CCP § 469-475, dealing with VARIANCE � MISTAKES IN PLEADINGS AND AMENDMENTS, which covers, among other things, "granting relief from" or "vacating" default entry or default judgment, and which never specifies a "granting relief from" or "vacating" that applies to one but not the other � thereby inviting the conclusion that failure of jurisdiction vacates default entry when it exists alone, and vacates both default entry and default judgment when they exist together.  The reasons that most opinions refer to default judgment may be (1) that the interval between default entry and default judgment typically affords less time to challenge jurisdiction than does the interval following default judgment, and (2) the interval following default entry is earlier, and so catches the defendant in a state of lesser awareness and preparedness.

      Before the Court, then, is a choice of two interpretations:

      • the implausible interpretation that jurisprudence accords the default-entry-to-default-judgment interval (containing nothing worthier of exceptional protection than an ex parte damage-assessment) a unique and unprecedented and unheralded protection from challenge to jurisdiction, in denial of the ubiquitous affirmation that jurisdiction is challengeable at any time and in any stage of the proceedings, and in defiance of the waste of requiring completion of proceedings which while running their course may have acquired prima facie lack of jurisdiction together with a growing recognition that they were coram non judice, and on the other hand

      • the plausible interpretation that undisciplined readers of the law have been so taken by the color and energy of language echoed since at least 1912 to the effect that a defaulting defendant "is out of court and is not entitled to take any further steps," that they conscript such language to their service even though it does not stretch to encompass the facts of their case.

      It is submitted that because the latter interpretation is the only one feasible, the Court should acknowledge that jurisdiction is as challengeable within the post-entry but pre-judgment interval as at any other time.
    6. Simultaneous consideration avoids the pitfall of attorning to jurisdiction

      Indeed, asking that default be vacated while simultaneously challenging jurisdiction is not only permissible, and not only proper, and not only efficient, but as well affords protection against the perception that a motion to vacate default by itself attorns to jurisdiction:

      "Common sense indeed teaches that a question so vital as that of jurisdiction should be decided preliminarily to all others.  Accordingly all treatises on pleading direct that pleas to the jurisdiction are to be filed first.  Such, manifestly, is the natural order of pleading, for if any other plea be filed, the jurisdiction of the court is admitted.
      •  Palmer v Reeves, 182 A 138 at 141 (Connecticut 1935) quoting Olmstead's Appeal, 43 Conn 110 at 112 (Connecticut).  Bold emphasis added.

      The District Court of Appeal, Dell, J., held that defendant did not waive her right to contest service of process by joining her motion to quash service of process with motion to vacate default judgment.
      •  Montero v Duval Federal Savings and Loan Association, 581 So2d 938 at 938 (Florida 1991).  Bold emphasis added.

      In Montero v Duval Fed. Sav. & Loan Ass'n, 581 So.2d 938, 939 (Fla. 4th DCA 1991), we held that a defendant did not submit himself to the jurisdiction of the court where he had filed a motion to quash service of process along with a motion to set aside a default.
      •  Ginsberg v Lamour, 711 So2d 182 at 183 (Florida 1998).  Bold emphasis added.

      Florida courts have repeatedly held that filing a motion to vacate a default does not waive jurisdictional defenses where such defenses are raised simultaneously with the motion.
      •  National Safety Associates, Inc. v Allstate Insurance Company (Florida 2001) at www.2dca.org/opinion/October%2005,%202001/2d01-374.pdf

      Of course the three opinions immediately above can be added to the compilation of precedents which sanction the bringing of simultaneous motions to quash service and vacate default.

    Thus, courts throughout the land can be found not first vacating default on non-jurisdictional grounds while deferring jurisdictional questions to a later time, but rather finding lack of jurisdiction first, and then � with commendable conservation of energy � merely remarking that default has been vacated as a logical consequence.  For this reason, Lubomyr Prytulak submits that his Motion-to-Quash-D properly joins a motion to quash service with a motion to vacate default, and that it would be proper to consider these joined motions together in the upcoming hearing of 25-Nov-2002.


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  1. SHOULD COURT CLERKS GIVE LEGAL ADVICE?

    Rambam lawyer, Gary Kurtz, depicts Lubomyr Prytulak as complaining of his failure to elicit legal advice from Court Clerks:

    Defendant complains that the Court clerks failed to instruct him on how to properly file a motion.  [...]  In addition, the Court clerk acted properly by refusing to give legal advice.
    •  Rambam-Objection-D1, p. 4.

    1. Prytulak requests no more than equal treatment

      However, a more accurate depiction would be that Lubomyr Prytulak only asked for equal treatment � which is to say, the same degree of feedback that he could see Gary Kurtz receiving when he failed to properly fill out a Proof of Service form.  Lubomyr Prytulak documented this instance of assistance that Court Clerks extended to Gary Kurtz in his Prytulak-Reply-C (part 4).  As the Court appears to have lost or destroyed its copy of Prytulak-Reply-C (along with the accompanying US$23 money order), it has been attached here as       Exhibit 5, and can be consulted to confirm that Gary Kurtz himself was both in need of, and able to obtain from Court Clerks, what he derogates as "legal advice" when he sees Lubomyr Prytulak aspiring to get some.

      Let it be called "legal advice" or "clerical feedback" or "procedural assistance" or whatever � the Prytulak position is the undemanding one of asking for no more of it than he witnesses others receiving, and also what all are entitled to either by statute or by precedent, as documented below.

    2. What does the Code of Civil Procedure say?

      CCP §411.20 repeatedly states that in the event of non-payment of fee, the Court shall notify the litigant and allow him 20 days to make good the payment.  Although CCP §411.20 four times makes reference to non-payment that is caused by a submitted check being returned by the bank unpaid, this might be interpreted as the most common cause of non-payment, and as standing for other causes, such as the Court discovering that a check has been submitted unsigned, or incorrectly dated with the previous year, or made out to the wrong recipient or for the wrong amount, or perhaps simply omitted either through ignorance or oversight.  What the CCP never does say is that any submission arriving without payment should be destroyed without notification or explanation to the sender.

      However, with respect to two Motions-to-Quash A, B, Defendant was not notified of the need to supply a filing fee, and so of course not allowed 20 days to make good his payment.
    3. What is to be found in case reports?

      The Los Angeles Superior Court "minute order" of 15-Aug-2002 offers as one justification of the Court's failing to file       Motion-to-Quash-B the non-payment of a filing fee, and cites as authority, Hu v Silgan Containers:

      The "Motion" was not accompanied by a filing fee [required per Government Code §§26830, 68090.7, 72055 ff.].  The payment of filing fees is both mandatory and jurisdictional.  See Hu v. Silgan Containers (1999) 70 CA4th 1261.  Thus, the Court was without jurisdiction to consider the motion.
      •  Los Angeles Superior Court "Minute Order" of 15-Aug-2002, p. 2.

      Reading Hu v Silgan Containers, however, unearths the following background:

      The Court of Appeal, Raye, J., held that trial court lacked jurisdiction to reinstate complaint once plaintiff failed to pay filing fee within 20 days after notice was mailed informing her that her check had been returned for insufficient funds.  [...]  On May 28, 1997, the superior court clerk notified Hu by certified mail the bank had returned her check for insufficient funds.  The letter informed Hu that she was required to pay the fee and late charges within 20 days of the receipt of the letter.
      •  Hu v Silgan Containers, 83 Cal Rptr 2d, 333 at 333-334 (California 1999)

      In contrast to Hu v Silgan Containers, however, the Court did not give Lubomyr Prytulak 20 days notice, or any notice, by certified mail or otherwise, to pay any filing fee, for which reason Hu vs Silgan Containers fails to apply to Motion-to-Quash-B, though it does succeed in raising the question of whether other reported cases reveal that fee-deficient motions are more typically processed by reminding the erring litigant of his obligation to supply payment, or instead by destroying his motion without providing feedback.

      In one other, out of a total of four California cases at hand, the fact of clerical notification is explicit:

      That official, noting that no fee had been forwarded with the notice [...] immediately mailed to counsel for appellant his invoice acknowledging receipt of the notice and requesting the filing fee.
      •  Kientz v Harris, 257 P2d 41 at 42 (California 1953)

      In the remaining two California cases at hand, clerical notification is not explicitly alluded to, though litigants make good their payment within a mere three, and seven, days respectively, suggesting that clerical prompting may have played a role:

      On that day the appellants sent their notice of motion to the clerk, but the clerk did not file the same, because the fee therefor was not paid; and three days afterwards, at the request of the appellants, who then paid the fee, the clerk indorsed it as filed February 23d.
      •  Davis v Hurgren, 57 P 684 at 685 (California 1899)

      Notice of Motion of the wife for a new trial was filed and served by mail on April 22, 1955, but the filing fee was not paid until April 29.
      •  Foley v Foley, 304 P2d 719 at 719 (California 1956)

      Of the four above California cases, then, two explicitly portray the Clerk notifying a remiss litigant of the need to pay a filing fee, and in two others, such notification seems plausible, though it is not explicitly alluded to.  In none of the four cases, however, does the Court Clerk destroy the submitted document without informing the litigant that he had done so or why, as happened to Lubomyr Prytulak in the case of       Motion-to-Quash-B.  (The fate of Motion-to-Quash-C is irrelevant at the moment, as this discussion focusses on initial non-payment of a filing fee, whereas the Court suppressed or destroyed Motion-to-Quash-C along with its filing fee.)

    4. What does Katina say?

      In Defendant Prytulak's 25-Sep-2002 telephone conversations with Court representative Katina (at 213-974-5173), Defendant asked what was the Court's usual response to a motion submitted by mail that was unaccompanied by payment of a filing fee.  She replied that the usual response was to return the motion to the sender.  Defendant did not ask, but thinks he can assume, that the return would be accompanied by some feedback, however brief, as to the reason for the return.

      However, Defendant's Motions-to-Quash B and C were not returned, whether with feedback or without.
    5. Lubomyr Prytulak discovers the existence of feedback forms

      In the course of Lubomyr Prytulak's efforts to get the Court to send him a one-page photocopy, as documented in       Exhibit 6, he received the two feedback forms attached hereto as Exhibit 7.  Each form presents not only numerous categories of defects that can be checked off, but also ends in an "OTHER" section in which feedback can be written.  If returning such feedback forms constitutes law clerks giving legal advice, then these forms give the impression that law clerks do normally give legal advice.  However, it appears that they do not distribute their legal advice equitably.

      That is, Lubomyr Prytulak's three Motions-to-Quash A-C were respectively dated 03-Apr-2002, 27-May-2002, and 29-Aug-2002, and none were filed as motions to quash, and all failed to induce the Court to pursue the question of jurisdiction on its own motion.  No explanation of Court passivity was ever offered, and neither were the documents or any feedback forms returned.  The first feedback forms that Lubomyr Prytulak ever saw were the two mentioned above that were received on 15-Oct-2002 in connection with Prytulak efforts to purchase a one-page photocopy.  As it might be safe to infer from the existence of such feedback forms that litigants do receive them, Lubomyr Prytulak notes the contrast of his never having received any in connection with any of his unfiled submissions (but only in connection with his acquisition of a single photocopy page), and so for this additional reason takes exception to Rambam lawyer, Gary Kurtz, derogating his efforts to acquire equal treatment as a solicitation of legal advice which the clerks correctly refuse to give.

    From the many and varied considerations outlined above, it is clear that Court Clerks do in fact systematically provide feedback to assist litigants, and their withholding such assistance from Lubomyr Prytulak contributes to the accumulation of evidence giving credence to a reasonable apprehension of Court bias, as expressed by the Court thwarting his attempts to challenge jurisdiction.  What can be seen coming from the direction of the Plaintiff in Rambam v Prytulak is a style of litigation that Judge Hickey of the United States Court of Appeals Tenth Circuit describes with disapproval:

    Federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.  [...]  The ends of justice are not served when forfeiture of just claims because of technical rules is allowed.  [...]  "Thus, the Travelers Insurance Company 'hid in the bushes' so to speak and finally struck the plaintiff from ambush."
    •  Travellers Indemnity Co. v United States, 382 F2d 103 at 104, 106 (1967)



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  1. GARY KURTZ OBJECTION TO LUBOMYR PRYTULAK "EX PARTE" COMMUNICATIONS

    In Rambam-Objection-D2 (p. 1, section 1), Gary Kurtz complains as follows:

    Defendant's letters are an improper ex-parte contact, which deprive plaintiff of a proper forum for objection, response, and hearing.

    To which Defendant Prytulak offers the following reply:

    1. Plaintiff does receive notice

      As Rambam lawyer, Gary Kurtz, is sent copies of all letters which may concern his client, and as these letters are in any case published on the Internet, then it is questionable whether the letters can be considered to be ex parte contact.
    2. Plaintiff is welcome to reply in the same forum

      Gary Kurtz has the same access to alternative forums that Lubomyr Prytulak has, and is fully able to respond within these forums.  Lubomyr Prytulak, in contrast, has in large part been denied access to the Los Angeles Superior Court, and for that reason supplements his efforts by voicing his grievance in alternative forums.
    3. Defendant merely exercises his right of free speech outside the Court

      Although Judge James R. Dunn is sent copies of the letters, they are addressed to others, they complain of a loss of Prytulak documents and filing-fee payments that occur at an undetermined point in the chain of document handling, and that thus may be best remedied by senior Court administrators.  If Rambam lawyer Gary Kurtz can suggest a better response to the loss of Defendant documents and payments, Lubomyr Prytulak will appreciate being informed of what this might be.
    4. Unconventional routes to bypass unusual obstructions

      Lubomyr Prytulak acknowledges that finding himself confronted with a court which for seven months now has repulsed all invitations to evaluate its own jurisdiction, and which has suppressed or destroyed Prytulak documents and payments (not to mention a single Rambam document damaging to Rambam's case), Prytulak begins to ask whether he can hope to circumvent his unusual obstructions unless he follows unconventional paths.  Prytulak's thinking leads him to seemingly conservative conclusions that shielding injustice from public scrutiny is not in his interests, and that confining his efforts to addressing a court that claps its hands over its ears whenever he begins to speak is for him an exercise in frustration, and that he would be mistaken to refrain from exercising the last resort of the oppressed � public outcry.

DATED:   05 November 2002 By:


Lubomyr Prytulak
Defendant
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IDENTIFICATION OF DOCUMENTS


To facilitate unambiguous reference, it is necessary to refer to four Prytulak motions to quash (all but the last unfiled), submitted over two Los Angeles Superior Court Rambam v Prytulak cases, which motions have been suffixed below with the letters A to D.  According to the proposed nomenclature, then, the filed 25-Sep-2002 motion will be referred to as Motion-to-Quash-D.  All dates are in the year 2002.


DOCUMENT
NAME		 CASE DATE JUDGE
 FILING
FEE		 COURT
ACTION
Rambam-Complaint-A 02E00326 Date 04-Jan
Filed 09-Jan
 Barry A. Taylor Unknown Filed 09-Jan
Motion-to-Quash-A 02E00326 Date & mail 03-Apr
Filed 08-Apr
 Barry A. Taylor None sent Filed as "correspondence
received" 08-Apr
Rambam-Complaint-B BC271433 Date 03-Apr
Filed 04-Apr		 James R. Dunn Unknown Filed 04-Apr
Motion-to-Quash-B BC271433 Date 27-May
Deliv FedEx 29-May		 James R. Dunn None sent Unfiled, though alluded
to in "Minute Order"
Prytulak-Query-B BC271433 Date 14-Jun
Deliv FedEx 17-Jun		 James R. Dunn None sent Unfiled
Motion-to-Quash-C BC271433 Date 29-Aug
Deliv FedEx 30-Aug		 James R. Dunn US$193 Missing
Rambam-Objection-C BC271433 Date & mail 03-Sep
Receive 09-Sep		 James R. Dunn Unknown Unfiled, possibly
missing
Prytulak-Reply-C BC271433 Date 13-Sep
Deliv FedEx 17-Sep		 James R. Dunn US$23 Missing
Motion-to-Quash-D BC271433 Date & Fax 25-Sep
Deliv FedEx 26-Sep		 James R. Dunn US$239 Filed 26-Sep
Rambam-Objection-D1 BC271433 Date & mail 30-Sep
Receive 04-Oct		 James R. Dunn Unknown Filed 01-Oct
Rambam-Objection-D2 BC271433 Date 10-Oct, mail 14
Receive 17-Oct

 James R. Dunn Unknown Filed 15-Oct




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PROOF OF SERVICE

of the document titled

DEFENDANT PRYTULAK ANSWER
TO PLAINTIFF RAMBAM OBJECTIONS
FILED 01-OCT-2002 AND 15-OCT-2002

Rambam vs Prytulak
BC271433
Los Angeles Superior Court
05 November 2002


A copy of the FedEx International Air Waybill is tendered as conclusive and indisputable proof of service of the above document.

This Waybill is a demonstration that FedEx corporation confirms that

  1. a shipment has been deposited with FedEx,

  2. the date of deposit of that shipment is 05-Nov-2002,

  3. the sender's name and address is
    Lubomyr Prytulak
    [Address]

  4. the recipient's name and address is
    Gary Kurtz, Esq.
    20335 Ventura Boulevard, Suite 200
    Woodland Hills, California
    USA       91436

  5. and the tracking number is   8343 9178 8721

Furthermore, entering the above tracking number at the FedEx web site at

http://www.fedex.com/us/

provides the following further confirmatory information:

  1. the exact time that the shipment passed through each stage of its journey from its place of origin to its destination,

  2. the time to the nearest minute of arrival of the shipment at its destination,

  3. the printed name of the person signing for receipt of the shipment,

  4. the signature of the person signing for receipt of the shipment.

As the above method of delivery affords tighter verification than is available by "mail," CCP �1013a describing "proof of service by mail" is considered inapplicable, and CCP �1016.6 (d) is offered as justification for the instant Proof of Service:

CCP �1016.6 (d)  The copy of the notice or other paper served by Express Mail or another means of delivery providing for overnight delivery pursuant to this chapter shall bear a notation of the date and place of deposit or be accompanied by an unsigned copy of the affidavit or certificate of deposit.

Also supportive of the instant Proof of Service is California Civil Code Maxim of Jurisprudence 3528: "The law respects form less than substance."


I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date:  05 November 2002

Name:  Lubomyr Prytulak


Signature:







Top Contents Introduction Jurisdiction When Simultaneous Clerks ExParte Documents Service Authorities Declaration Bottom   Exh: 1 2 3 4 5 6 7

TABLE OF AUTHORITIES
State Cases
Appeal of Matheisel, 224 A2d 832 at 832 (New Hampshire 1966)
Bar Ass'n of City of Boston v. Casey, 116 NE 541 at 543 (Massachusetts 1917)
Barnard v Michael, 63 NE2d 858 at 861-862 (Illinois 1945)
Bealmer v. Harford Fire Ins. Co., 220 SW 954 at 956 (Missouri 1920)
Bobka v Cook County Hospital, 453 NE2d 828 at 829-830 (Illinois 1983)
Brame v Nolen, 124 SE 299 at 301 (Virginia 1924)
Bridges v Wyandotte Worsted Co., 132 SE2d 18 at 22 (South Carolina 1963)
Brooks v Nelson, 272 P 610 at 611 (California 1928)
Browning v. Steers, 295 A2d 544 at 545 (Connecticut 1972)
Burgess v Gibbs, 137 SE2d 806 at 808 (North Carolina 1964)
Carmichael v Iowa State Highway Com., 156 NW2d 332 at 340 (Iowa 1968)
Carten v. Carten, 219 A2d 711 at 715 (Connecticut 1966)
Castro v Viera, 541 A2d 1216 at 1220-1221 (Connecticut 1988)
Central Deep Creek Orchard Co. v Taft, 202 P 1062 at 1065 (Idaho 1921)
Christerson v French, 182 P 27 at 28 (California 1919)
City Contract Bus Service, Inc. v Woody, 515 So2d 1354 at 1356 (Florida 1987)
City of Chicago v Fair Employment Practices Commission, 357 NE2d 1154 at 1155 (Illinois 1976)
Crabtree v Aetna Life Ins. Co., 111 SW2d 103 at 109 (Missouri 1937)
Dahlin v Missouri Commission for the Blind, 262 SW 420 at 421 (Missouri 1924)
Davis v Hurgren, 57 P 684 at 685 (California 1899)
Devlin v Kearny Mesa AMC/Jeep/Renault, Inc., 202 Cal Rptr 204 (California 1984)
Electro Engineering Products Co., Inc. v Lewis, 352 So2d 862 at 864 (Florida 1977)
Ellard v Conway, 114 Cal Rptr 2d 399 at 401 (California 2001)
Elms v Elms 164 P2d 936 (California 1946)
Evans v Corporate Services 565 NE2d 724 at 727-728 (Illinois 1990)
Fenstermacher v Indianapolis Times Pub. Co., 1 NE2d 655 at 657 (Indiana 1936)
Fidelity Federal Savings & Loan v Long, 345 P2d 568 (California 1959)
Floveyor International Ltd. v Superior Court 69 Cal Rptr 2d 457 at 459 (California 1997)
Foley v Foley, 304 P2d 719 at 719 (California 1956)
Fox Park Timber Co. v Baker, 84 P2d 736 at 742 (Wyoming 1938)
Friend v Thomas, 187 SW 986 at 987-988 (Texas 1916)
Frontier Ditch Co. v Chief Engineer of Div. of Water Resources, 704 P2d 12 at 17 (Kansas 1985)
Galley v Hedrick, 127 SW2d 978 at 980-981 (Texas 1939)
Gathers v Walpace Co., Inc., 544 SW2d 169 at 170 (Texas 1976)
Ginsberg v Lamour, 711 So2d 182 at 183 (Florida 1998)
Hamilton v Browder, 54 P2d 1025 at 1027 (Oklahoma 1936)
Hanger v Commonwealth, 60 SE 67 at 68 (Virginia 1908)
Harber v McKeown, 157 P2d 753 at 754 (Oklahoma 1945)
Hardrives, Inc v City of LaCrosse, Wisconsin, 240 NW2d 814 at 816 (Minnesota 1976)
Heathman v Vant, 342 P2d 104 at 109 (California 1959)
Heller Financial, Inc. v Conagra, Inc., 520 NE2d 922 at 924 (Illinois 1988)
Henderson County v Smyth, 5 SE2d 136 at 138 (North Carolina 1939)
Hill v Daley, 328 NE2d 142 at 145 (Illinois 1975)
Howard v County Court of Craighead County, 644 SW2d 256 at 257 (Arkansas 1983)
Hu v Silgan Containers, 83 Cal Rptr 2d, 333 at 333-334 (California 1999)
Hutchins v Hutchins, 4 A2d 679 at 679 (Maine 1939)
In Interest of D.L.D., 701 SW2d 152 at 156 (Missouri 1985)
In re Davis' Custody, 103 SE2d 503 at 506-507 (North Carolina 1958)
In re Marriage of Askmo, 102 Cal Rptr 2d 662 (California 2000)
In re Smith, 225 P 495 at 496 (Idaho 1924)
International Harvester Co. v Mann, 460 So2d 580 at 582 (Florida 1984)
Jewish Defense Organization, Inc. v Superior Court, 85 Cal Rptr 2d 611 (California 1999)
Johnson v Gernert Bros. Lumber Co., 75 SW2d 357-358 (Kentucky 1934)
Johnston v United Presbyterian Church, Inc., 431 NE2d 1275 (Illinois 1981)
Kientz v Harris, 257 P2d 41 at 42 (California 1953)
Kimbrough v Rowe, 479 So2d 867 at 868 (Florida 1985)
Laughlin v Hughes, 89 P2d 568 at 573 (Oregon 1939)
Levinson v American Accident Reinsurance Group, 503 A2d 632 at 634 (Delaware 1985)
Lone Star Finance Corporation v Davis, 77 SW2d 711 at 714 (Texas 1934)
Marcil v. A. H. Merriman & Sons, Inc., 163 A 411 at 412 (Connecticut 1932)
McKanna v Edgar, 388 SW2d 927 at 929-930 (Texas 1965)
Menchaca v Chrysler Life Ins. Co., 604 SW2d 287 at 289 (Texas 1980)
Mid-West Medical, Inc. v Kremmling Medical-Surgical Associates,, 352 NW2d 59 at 60 (Minnesota 1984)
Montero v Duval Federal Savings and Loan Association, 581 So2d 938 at 938 (Florida 1991)
Morgan v Hays, 426 P2d 647 at 650 (Arizona 1967)
Mouzon v Mouzon, 458 So2d 381 at 381 (Florida 1984)
Multiple Resort Ownership Plan, Inc. v Design-Build-Manage, Inc., 45 P2d 647 at 651 (Wyoming 2002)
Niles v Marine Colloids, Inc., 249 A2d 277 at 279 (Maine 1969)
Oak Park Nat. Bank v Peoples Gas Light and Coke Co. 197 NE2d 73 at 77 (Illinois 1964)
Olinski v Duce, 508 NE2d 398 at 400 (Illinois 1987)
Olmstead's Appeal, 43 Conn 110 at 112 (Connecticut)
Palmer v Reeves, 182 A 138 at 141 (Connecticut 1935)
Paulson v Secretary of State, 398 NW2d 477 at 480 (Michigan 1987)
People v Miller, 171 NE 672 at 675 (Illinois 1930)
People v One 1986 Toyota Pickup, 37 Cal Rptr 2d 29 at 32 (California 1995)
People v Parsons Co., 461 NE2d 658 at 663 (Illinois 1984)
Peterson & Tvrdik v Mueller-Huber Grain Co., 58 SW2d 890 at 892 (Texas 1933)
Pettibone v Wells, 179 So 336 at 339 (Mississippi 1938)
Pfirman v Probate Court of Shoshone County, 64 P2d 849 at 851 (Idaho 1937)
Reynolds v Volunteer State Life Ins. Co., 80 SW2d 1087 at 1093 (Texas 1935)
Ryan v Kroger Grocery & Baking Co., 11 NE2d 204 at 206 (Ohio 1937)
Shannon v Shepard Mfg. Co., 119 NE 768 at 770 (Massachusetts 1918)
Sheridan County Electric Co-Op., Inc. v Anhalt, 257 P2d 889 at 889-890 (Montana 1953)
Spitzer v Spitzer, 777 P2d 587 at 590, 592 (Wyoming 1989)
State v Serkau, 20 A2d 725 at 727 (Connecticut 1941)
Sullivan v Bach, 427 NE2d 645 at 650 (Illinois 1981)
Taintor v Superior Court, 213 P2d 42 at 44-45 (California 1949)
Texair Flyers v District Court, 506 P2d 367 at 369 (Colorado 1973)
Thayer v Lillage of Downers Grove, 16 NE2d 717 at 719 (Illinois 1938)
Town of Barton v Town of Sutton, 106 A 583 at 584 (Vermont 1919)
Troutman v Mitchem, 472 NE2d 69 at 71, (Ohio 1984)
Vanasse v Ramsay, 847 P2d 993 at 996-997 (Wyoming 1993)
Ward v Sampson, 70 NE2d 324 at 327 (Illinois 1946)
Watson v Howard, 86 A2d 67 at 68 (Connecticut 1952)
Whitney v L & L Realty Corporation, 500 SW2d 94 at 95, 97 (Texas 1973)
Wuertz v Garvey, 178 NW2d 630 at 631 (Minnesota 1970)
Wynn v Aetna Life Insurance Co., 400 So2d 144 at 145 (Florida 1981)

Federal Cases
Galpin v Page, 21 L Ed 959 at 963 (1873)
Mansfield, Coldwater & Lake Michigan Railroad Co. v Swan, 28 L Ed 462 at 464 (1884)
Minneapolis & St. Louis Railroad Co. v Peoria & Pekin Union Railway Co., 270 US 580 at 586 (US 1926)
Travellers Indemnity Co. v United States, 382 F2d 103 at 104, 106 (1967)

Encyclopedias
20 Am Jur 2d § 60 (1995)
21 CJS Courts § 88 (1990)

Internet
National Safety Associates, Inc. v Allstate Insurance Company (Florida 2001) at www.2dca.org/opinion/October%2005,%202001/2d01-374.pdf

Statutes
California CCP � 411.20, 418.10, 473(b), 473(b)(1) with (2), 473(c)(1), 473(c)(2), 473(d), 473.5, 474, 585.5(b), 585.5(c), 1005(a)(10)



Top Contents Introduction Jurisdiction When Simultaneous Clerks ExParte Documents Service Authorities Declaration Bottom   Exh: 1 2 3 4 5 6 7

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and address):          TELEPHONE NO.:

         Defendant without attorney is:
         Lubomyr Prytulak                               [Telephone]
         [Address]

 FOR COURT USE ONLY
NAME OF COURT:

         Los Angeles Superior Court
         111 North Hill Street
         Los Angeles, California          USA      90012

     PLAINTIFF/PETITIONER:   Steven Rambam
   DEFENDANT/RESPONDENT:   Lubomyr Prytulak
DECLARATION CASE NUMBER
BC271433

I, Lubomyr Prytulak, the defendant named in Case No. BC271433, declare the following:
  1. Exhibit 1  is the Case Summary for Rambam v Prytulak Case 02E00326, Judge Barry A. Taylor, downloaded from the Los Angeles Superior Court web site on 31-Jul-2002.  (1 page)
  2. Exhibit 2  is the Case Summary for Rambam v Prytulak Case BC271433, Judge James R. Dunn, downloaded from the Los Angeles Superior Court web site on 05-Nov-2002.  (3 pages)
  3. Exhibit 3  is Jewish Defense Organization, Inc. v Superior Court, 85 Cal Rptr 2d 611 (California 1999) downloaded from, and currently available at, http://caselaw.lp.findlaw.com/data2/californiastatecases/b129319.pdf  (17 pages)
  4. Exhibit 4  is Rambam-Objection-C, dated and postmarked 03-Sep-2002, received by Lubomyr Prytulak on 09-Sep-2002, but not listed under Documents Filed on the Los Angeles Superior Court web site Case Summary for Case BC271433.  Rambam-Objection-C is the Plaintiff reply to Prytulak Motion-to-Quash-C, which appears to have been suppressed or destroyed by persons unknown while in the hands of the Court, along with its payment of US$193 filing fee.  (3 pages)
  5. Exhibit 5  is Prytulak-Reply-C, dated 13-Sep-2002, which makes reply to Rambam-Objection-C, delivered to the Court and served upon Rambam lawyer Gary Kurtz 17-Sep-2002, but not listed under Documents Filed on the Los Angeles Superior Court web site Case Summary for Case BC271433.  Both submission and payment of filing fee of US$23 are thought to have been suppressed or destroyed by persons unknown while in the hands of the Court.  (11 pages)
  6. Exhibit 6  is the 30-Sep-2002 open letter to LASC Deputy Clerk, Steven Winston, titled "The saga of the 57-cent photocopy."  (8 pages)
  7. Exhibit 7  consists of two feedback forms mailed by LASC clerks, and received by Lubomyr Prytulak on 15-Oct-2002, in connection with his attempts to obtain a photocopy of a one-page Order to Show Cause from Rambam v Prytulak Case 02E00326.  (3 pages)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date: 05 November 2002

Lubomyr PRYTULAK                
Respondent/Defendant


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