AFFIDAVIT IN SUPPORT OF MOTION

XXX

XXX

XXX

XXX

 

Plaintiff in Pro Per

 

 

SUPERIOR COURT OF THE STATE OF XXX

FOR THE COUNTY OF XXX

 
XXX,

Plaintiff

vs.

KAISER FOUNDATION HOSPITALS, ET AL.,

Defendants

 

 Case No.: XXX

AFFIDAVIT IN SUPPORT OF MOTION TO DISQUALIFY JUDGE SMALL

 

Date: XXX

Time:XXX

Judge: Hon. XXX

Dpt.: 57

Reservation ID: XXX

Complaint filed: XXX

Trial Date: Not set

 

I, XXX, declare that:

  1. I am the Plaintiff in the above-titled matter.
  2. I am an adult of sound mind, hence capable of making this declaration.
  3. I make this Affidavit in support of my Motion to Disqualify Judge Michael Small.

Judge Small erroneously termed my motion frivolous

  1. I filed a Motion for Sanctions on September 12, 20XX.
  2. The Court then set the hearing date for the motion on March 10, 20XX.
  3. Judge Small declared Plaintiff’s Motion for Sanctions as frivolous.
  4. Motions for Sanctions are permitted under Code Civ. Proc., § 20XX.010, for abuse of the discovery process.
  5. All filings that I have ever made in the instant case have been purposeful, in pursuit of justice. At no point have I ever intended to oppress the Defendants, or to subject them to harassment.
  6. Judge Small failed to observe that Defendant’s counsel, XXX, was in violation of Rule 3.3 of XXX Rules of Professional Conduct, which provides for an attorney’s candor towards the courts.
  7. An attorney is expected to disclose facts to the court, which would help in the settlement of the dispute before the Court. Therefore, instead of seeking to dispose the case without considering its merits, it was Lisa’s ethical responsibility to ensure I exercised my right to file my first amended complaint, to reflect the correct Defendant’s name. Lisa only notified the court that my attorneys had put the incorrect Defendant’s name in the complaint.
  8. Lisa also lied that it spanned months where she informed my attorneys of said issue. On the contrary, the Complaint was filed on November 10, 2021. Next, Gary Carlin was substituted on December 21, 20XX with XXX, but only filed the substitution forms on February 15, 2022. Hershey then filed to be relieved as council March 30, 20XX. Consequently, in April, Lisa filed Defendant’s Motion for Summary Judgment, which was granted.

Judge Small failed to acknowledge that my motion was in compliance with applicable law

  1. My Motion for Sanctions was in full compliance with CA Civ. Pro Code § 2023.040 (2019. First, the motion had a Notice of Motion, duly notifying the Defendant and the Court that I intended to file a Motion for Sanctions against Defendant.
  2. Next, I included a Memorandum of Points and Authorities in Support of the motion. I also included a Declaration setting forth the facts supporting why the Defendant should pay sanctions.
  3. Lastly, I provided a Proposed Order, where she specified the amount of Monetary Sanctions that should be awarded against the Defendant.

Judge Small erroneously held that Plaintiff was correctly termed a vexatious litigant

  1. Judge Small stated that I was rightly declared a vexatious litigant.
  2. Contrary to the Judge’s holding, my conduct was nowhere near vexatious and/or frivolous.
  3. First, in the past seven years, I have never commenced any actions, that had been determined against me.
  4. I have also never delayed any action for at least two years.
  5. This complaint is not a re-litigation of any previous matter that I have ever brought in court against the Defendants. I am suing the Defendants for the first time.

Judge Small erroneously stated that the matter was already disposed

  1. Judge Small stated that the case was already dismissed.
  2. The Court scheduled a hearing on my Motion for Sanctions for March 10, 20XX. The court also permitted Defendant to make filings in response to my motions and deposition subpoenas. Defendant therefore filed an Opposition to Plaintiff’s Motion for Sanctions on December 27, 20XX.
  3. Further, in preparation for the hearing date of the Motion for Sanctions, I sent Deposition Subpoenas to third party individuals, to appear and produce information, which was pertinent to support my case.
  4. I duly indicated the date for the deposition as March 10, 2023, which was the hearing for the Motion for Sanctions against Defendant. Consequently, on March 8, 2023, Defendant filed an Objection to Plaintiff’s Deposition Subpoenas.
  5. The Court duly accepted the Deposition Subpoenas and entered the filings in the Court Docket.
  6. The Court Docket already contained a schedule for future hearings, which shows that the case is still on. The Court Docket showed hearings set for March 28, 2023 (hearing for motion for sanctions), August 9, 20XX (hearing for motion for sanctions and hearing on Motion for Order on Motion for Reconsideration).

Judge Small threatened me

  1. On the hearing date on March 10, 20XX, Judge Small threatened to fine me thousands of dollars if I continued to pursue the instant case in his court.
  2. Judge Small said he posted the said Tentative Ruling but I never saw it.

Judge Small failed to sanction Defendant for abuse of the discovery process

  1. Judge Small should have sanctioned Defendant Kaiser Foundation Hospitals for misuse of the Discovery Process.
  2. Defendant failed to respond, and made unmeritorious objections to my Discovery Requests, which prompted me to file the Motion for Discovery Sanctions, whose hearing was on the said March 10, XXX.
  3. I had served the Subpoenas on or about December 21, XXX I also filed other Deposition Subpoenas on December 28, XXX
  4. Notice for the Deposition was also issued on time. The Subpoenas duly indicated the date for the deposition as March 10, XXX, which was the hearing for the Motion for Sanctions against Defendant.
  5. Defendant was fully aware and acquiesced to the having the hearing of the Deposition Subpoena on March 10, XXX.
  6. The Deposition Subpoenas were meant to provide evidence in support of my Motion for Sanctions, whose hearing was scheduled for March 10, XXX. Besides, Defendant had made applications in response to said motion. For instance, on December 27, XXX, Defendant Kaiser Foundation Hospitals filed an Opposition to my Motion for Sanctions. Defendant also filed a Declaration in Support of the Opposition.
  7. Defendant’s conduct therefore shows that they were fully aware that a hearing was scheduled for March 10, XXX, and that the case was still active.
  8. Defendant remained silent regarding the March 10th hearing date, and only waited until about two days to the hearing date when they filed their Objection to the Deposition Subpoena.

 

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

 

Dated: ___________

Respectfully submitted,

 

 

___XXX__

XXX

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

I hereby certify that on [ENTER DATE], a copy of the foregoing document has been sent to the Defendants in the following address:

XXXXX
XXX

XXX

XXX

XXX

Telephone: XXX

Facsimile: XXX

 

Attorney for SCPMG

 

 

 

 

 

DATED:

_________XXX__

XXX

XXX

XXX

XXX

 

Plaintiff in Pro Per

 

 

 

 

 

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