Esther Tenao Atam
13621 Arcturus Ave.
Gardena, CA 90249
Natashchan1@yahoo.com
Plaintiff in Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
ESTHER TENAO ATAM,
Plaintiff
vs.
SOUTHERN CALIFORNIA
PERMANENTE MEDICAL GROUP
(SCPMG), a California corporation; and
DOES 1 through 100, inclusive,
Defendants
Case No.: 21STCV41538
NOTICE OF MOTION TO VACATE
JUDGMENT
NOTICE OF MOTION
To ALL Kaiser Foundation Hospital s and to ALL Attorneys of Record:
Please TAKE NOTICE that on [ENTER DATE], at [ENTER TIME] or soon thereafter,
the Plaintiff herein will move this Court pursuant to CA Civ. Pro Code § 663 et seq, for an Order
vacating the Judgment entered by this Court on September 19, 2022 on the ground of incorrect or
erroneous legal and factual basis.
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MOTION TO VACATE JUDGMENT
The motion will be based on this Notice of Motion, the Memorandum in Support, and on
the records and file herein, and on such evidence as may be presented at the hearing of the
motion.
MOTION FOR DISCOVERY SANCTIONS
NOW COMES, ESTHER TENAO ATAM, Plaintiff, proceeding Pro Se, pursuant to CA
Civ. Pro Code § 663 et seq, hereby moves this Court for an Order vacating this Court’s judgment
entered on September 19, 2022.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
BACKGROUND
On November 10, 2021, Plaintiff filed a Complaint against Kaiser Foundation Hospital
alleging inter alia, discrimination, retaliation, intentional infliction of emotional distress,
unlawful termination, and defamation.
On December 22, 2021, Kaiser Foundation Hospital filed an answer to Plaintiff’s
Complaint. In the said answer, the Kaiser Foundation Hospital alleged inter alia, that Plaintiff’s
Complaint failed to state a claim upon which relief can be granted; Plaintiff’s claims are barred
by statute of limitations; some of Plaintiff’s claims are barred by waiver and unclean hands; the
Plaintiff’s case is barred by laches; Kaiser Foundation Hospital is entitled to an off set in the
event liability is established; Plaintiff failed to mitigate damages; attorney’s fees are not
recoverable; Plaintiff’s employment was an at-will employment; there was a legitimate business
purpose for Kaiser Foundation Hospital ’s actions; and Kaiser Foundation Hospital failed to
exhaust administrative remedies.
On April 21, 2022, Kaiser Foundation Hospital filed a Separate Statement of Undisputed
Material Facts in Support of Kaiser Foundation Hospital’s motion for Summary Judgment, or in
the alternative, summary adjudication of Plaintiff’s Complaint. In the said filing, the Kaiser
Foundation Hospital alleged the following undisputed facts: Southern California Permanente
Medical Group (SCPMG) hired Plaintiff as a RN; SCPMG was the only entity that hired Plaintiff
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MOTION TO VACATE JUDGMENT
within January 20, 2020 and March 18, 2021; SCPMG controlled Plaintiff’s work; and SCPMG
paid Plaintiff throughout the employment.
On May 9, 2022, Plaintiff filed an Opposition to the Kaiser Foundation Hospital’s
Motion for Summary Judgment. Plaintiff further submitted evidence in support thereof.
Accordingly, on July 14, 2022, the Court held a hearing on Kaiser Foundation Hospital’s
Motion for Summary Judgment. The Court instructed Plaintiff to file the First Amended
Complaint on or before September 29, 2022.
Plaintiff therefore duly embarked on preparing her First Amended Complaint, which she
filed on July 27, 2022.
On or about September 2, 2022, Kaiser Foundation Hospital filed an Objection to
Plaintiff’s First Amended Complaint.
On or about September 15, 2022, Plaintiff filed an opposition to Kaiser Foundation
Hospital’s Objection to Plaintiffs First Amended Complaint.
On or about September 19, 2022, this Court issued the Judgment granting Kaiser
Foundation Hospital’s Motion for Summary Judgment and thereby dismissing Plaintiff’s
Complaint.
ARGUMENT
i. Plaintiff was entitled to file a Second Amended Complaint
According to CA Civ. Pro Code § 663(1), a judgment can be vacated if there was an
incorrect or erroneous legal basis for the decision, which was not consistent with or not
supported by the law and facts.
During the Motion for Summary Judgment hearing on July 14, 2022, the Court instructed
Plaintiff to file an Amended Complaint before September 29, 2022. On July 27, 2022, Plaintiff
duly filed the First Amended Complaint as instructed by the Court. Kaiser Foundation Hospital
opposed the Complaint on the ground that it was improperly filed. Consequently, Plaintiff filed a
response thereof on September 15 th , and immediately embarked to draft the Second Amended
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MOTION TO VACATE JUDGMENT
Complaint to reflect the issues raised by Kaiser Foundation Hospital. Before Plaintiff could file
the Motion for Leave to File the Second Amended Complaint and the Second Amended
Complaint thereof, the Court issued its decision granting Kaiser Foundation Hospital’s Summary
Judgment Motion, thus dismissing Plaintiff’s case.
Plaintiff faults this Court for issuing an Order dismissing the Plaintiff’s Complaint,
before September 29, 2022, which deadline Plaintiff had to file the Amended Complaint. Within
this period, Plaintiff still had the room to file the Second Amended Complaint. Therefore, the
Court’s judgment denied Plaintiff’s right to file her Second Amended Complaint.
ii. Failure to vacate this Court’s Judgment demonstrates this Court’s disregard
of Plaintiff’s due process rights
The right to a fair hearing is one of ‘the rudiments of fair play’ assured to every litigant
by the 14th Amendment as a minimal requirement. Endler v. Schutzbank (1968) 68 Cal.2d 162,
169 [65 Cal.Rptr. 297, 436 P.2d 297]. Fair hearing is violated when there is "an unacceptable
probability of actual bias on the part of those who have actual decision making power over their
claims." Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 483.
Plaintiff was entitled to file a Second Amended Complaint before issuing its decision
granting Kaiser Foundation Hospital’s Motion for Summary Judgment, and dismissing Plaintiff’s
Complaint. Plaintiff avers that failure to grant Plaintiff the right to file a Second Amended
Complaint violated Plaintiff’s right to be heard. Accordingly, this Court’s denial of this Motion
would further hamper Plaintiff’s dupe process right to be heard.
Plaintiff also notes that the Court, without reason, avoided having the case management
hearing scheduled for September 29, 2022. The Court’s decision issued on September 19, 2022
effectively meant that the scheduled case management hearing would not happen. Plaintiff raises
an issue with the foregoing since it shows how this Honorable Court falls back against its
previous pronouncements.
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MOTION TO VACATE JUDGMENT
CONCLUSION
Based on the foregoing facts, arguments, and points of law, Plaintiff prays the Court is
grant this motion and issues an Order:
1. Vacating the Judgment entered on September 19, 2022;
2. Denying Kaiser Foundation Hospital’s Motion for Summary Judgment;
3. Granting Plaintiff leave to file a Second Amended Complaint;
4. Granting any other such other and further relief that this court deems just and proper.
DATED: ______________
Respectfully submitted,
____________________________
Esther Tenao Atam
Plaintiff in Pro Per
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MOTION TO VACATE JUDGMENT
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], a copy of the foregoing document has been
sent to the following parties in the following address(es):
DATED:
____________________________
Esther Tenao Atam
13621 Arcturus Ave.
Gardena, CA 90249
Natashchan1@yahoo.com
Plaintiff in Pro Per
Lisa M. Magorien, Esq. (SBN: 259877)
Tel: (858) 345-5080
Morgan A. Chase, Esq. (SBN: 333573)
Lagasse Branch Bell + Kinkead LLP
4365 Executive Drive, Suite 950
San Diego, CA 9212
Attorneys for Kaiser Foundation Hospital
ROB BONTA (AG)
GILLIAN E. FRIEDMAN (Deputy AG)
300 South Spring Street, Suite 1702
Los Angeles, CA 90013-1230
Public: (213) 269-6000
Telephone: (213) 269-6294
Facsimile: (916) 731-2126
Email: Gillian.Friedman@doj.ca.gov
Appearing for the Board of Registered Nursing
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