AFFIDAVITSUPPORT OF MOTION TO DISQUALIFY JUDGE SMALL

mukiialice64
Motions
March 5, 2024

XXX

XXX.

XXX

XXX

 

Plaintiff in Pro Per

 

 

SUPERIOR COURT OF THE STATE OF XXX

FOR THE COUNTY OF XXX

 
ESTHER TENAO ATAM,

Plaintiff

vs.

XXX FOUNDATION HOSPITALS, ET AL.,

Defendants

 

 Case No.: XXX

UPDATED AFFIDAVIT IN SUPPORT OF MOTION TO DISQUALIFY JUDGE SMALL

 

Date :XXX

Time: XXX

Judge :XXX

Dpt.: 57

Reservation ID: XXX

Complaint filed: XXX

Trial Date: Not set

 

I, ESTHER TENDO ATAM, 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., § 2023.010, 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, Lisa Magorien, was in violation of Rule 3.3 of California’s 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, 20XX. Next, Gary Carlin was substituted on December 21, 20XX with Hershey Brenan, but only filed the substitution forms on February 15, 20XX. 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 § XXX 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, 20XX, which was the hearing for the Motion for Sanctions against Defendant. Consequently, on March 8, 20XX, 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, 20XX.
  3. I had served the Subpoenas on or about December 21, 20XX. I also filed other Deposition Subpoenas on December 28, 20XX.
  4. Notice for the Deposition was also issued on time. The Subpoenas duly indicated the date for the deposition as March 10, 20XX, 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, 20XX.
  6. The Deposition Subpoenas were meant to provide evidence in support of my Motion for Sanctions, whose hearing was scheduled for March 10, 20XX. Besides, Defendant had made applications in response to said motion. For instance, on December 27, 20XX, 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, 20XX, 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.

Judge Small denies me my right to a fair trial, when it seeks to dismiss the case on a procedural technicality

  1. The error in the naming of the Defendant is not attributed to me, but to my former attorneys. I am therefore suffering for a mistake that is not mine.
  2. My efforts to correct the procedural technicality have been challenged and opposed by the Defendant. The Court therefore appears to participate in the ongoing fraud, by permitting Defendant’s unjust challenge to my good faith attempts to have the correct name of the Defendant in the Complaint.

Judge Small failed to note that BRN  illegally revoked my license

  1. The BRN revoked my license while this case was still pending.
  2. It is noteworthy that BRN opened an investigation on me based on false allegations from Sarah Poetter. The BRN thereafter subjected me to an unlawful Section 820 examination. After I failed to acknowledge the legality of their actions, the BRN went ahead to revoke my RN license.
  3. It is notable that the revocation of the license was done while this case was still pending. One of the claims addressed in this case is the falsity of the allegations made against me, which allegations were used by the BRN to revoke my license. This just shows how the BRN violated my right to a fair hearing.

 

Judge Small is failing to protect me from Defendant’s frivolous conduct

  1. Defendant’s counsel, Lisa Magorien, sought to have me put on the vexatious litigants list to prevent me from filing a new lawsuit.
  2. Judge Small is therefore erroneously holding on to the allegation that I am a vexatious litigant.
  3. Lisa Magorien also stated in her declaration on March 2022 that I had filed the case against SCPMG. The Court failed to acknowledge this fact, and went ahead to side with Defendant in their incessant frivolous attempts to prevent me from amending her complaint to reflect the correct party’s name.

Judge Small appears to cover up for Judge Kleifield’s

  1. Judge Stephen Kleifield was biased and failed to protect me from the Defendant.
  2. On March 28, 20XX,, Hershey Brennan filed a Case Management Statement, where he identified the Defendant as SCPMG. Hershey was later relieved as my counsel vide a Court Order issued by Judge Stephen Kliefield, granting his motion to be relieved as counsel.
  3. The foregoing shows that Judge Kleifield was aware that the Defendant was rightly identified as SCPMG. That fact notwithstanding, the Judge went ahead to deny me leave to amend her Complaint, and went ahead to grant Hershey’s motion to be relieved as counsel.
  4. Judge Stephen Kleifield also colluded with Defendant, granted Defendant’s ‘prayers’ and declared me vexatious. The Judge also granted Defendant’s Motion for Summary Judgment and dismissed my judgment in an order delivered on September 19, 20XX,.
  5. I then challenged the Judge’s decision, and sought to have the judge disqualified. Ultimately, as proof that some error had been done, Judge Stephen Kleifield recused himself from the case, and Judge Michael Small took up the case.

 

 

Judge Small fails to acknowledge the fraud that was committed by my former attorneys

  1. I procured the services of attorney Gary Carlin to represent me in the instant case, which was filed on November 10, 20XX.
  2. Attorney Carlin named Kaiser Foundation Hospitals as the corporate Defendant in the case, disregarding my attached W2s and wage statements that named the correct Defendant: Southern California Permanente Medical Group (SCPMG).
  3. I was still confused as to why Gary put KFH in the complaint. I was still under the impression that perhaps he knew better and researched how to properly address the right name for the lawsuit.
  4. Having not been satisfied with Gary Carlin’s representation, I substituted the attorney by filing form MC-050 (Substitution of Attorney-Civil) on or about December 22, 20XX,. Notably, Gary wrote an email to me indicating that his office would send me a substitution of attorney form, which would require two signatures from me. Consequently, Gary sent over the substitution of attorney Form MC-050, which I duly signed.
  5. However, on February 15, 20XX, Gary Carlin filed Form MC-050 “Substitution of Attorney” form. The form had a forged signature. I also noticed that Gary had forged the party’s Retainer Agreement.
  6. The forged Agreement stated that I had hired Gary for “Employment/Labor Law Issues Re Kaiser”. Not only was this not my handwriting, it contradicted what I initially stated as the correct name for the Defendant.
  7. Gary was in violation of Penal Code 470 PC, which is the California statute that defines the crime of forgery. A person commits this offense when he falsifies a signature or fraudulently alters certain documents.
  8. After I terminated the services of Gary Carlin, I procured the services of attorney Brennan M. Hershey through an agreement entered on or about December 21, 20XX,. The Retainer Agreement expressly stated that I hired Hershey to prosecute my action arising out of my employment with SCPMG.
  9. On March 28, 20XX, Hershey filed a Case Management Statement, where he identified the Defendant as SCPMG. Hershey was later relieved as my counsel vide a Court Order issued granting his motion to be relieved as counsel. In the motion, Hershey argued that he withdrew because I had sent threats to the Defendants. Hershey’s averments were not true. The attorney was relived after I expressed her concerns on effective representation.
  10. Long after Gary’s representation had been terminated, Gary still went ahead to file a Case Management Statement for me on September 14, 2022, without my knowledge or consent. I then received a communication from Gary’s office that the Case Management Conference was sent mistakenly. After filing the CMS, Gary went ahead to give Defendant’s Counsel notice of the accidental filing. Gary never gave such a notice to me. This action by Gary further shows their sinister motive to interfere with my case and thwart my access to justice.
  11. The Attorneys were aware of the error in the naming of the Defendant. As stated above, in her communication with Gary, I had attached W2s and wage statements that named the correct Defendant. Also, on December 21, 20XX, Gary Carlin wrote an email to me titled “TAM V. SCPMG”. In the email, Gari further referred to the Defendant expressly as SCPMG.
  12. Further, I confronted Gary Carlin via email on October 28, 20XX, with the fact that Gary had entered the wrong name of the Defendant and that he had forged my handwriting in the Retainer Agreement. Gary responded to my email and stated that the handwriting on the Retainer was most likely his handwriting. This amounts to a plain admission of forgery by Gary.
  13. On September 22, 20XX, Gary filed a declaration regarding mistakes that do not constitute fraud. In the declaration, Gary failed to mention anything about his failure to enter the correct Defendant’s name in the caption. He only excused himself for mistakenly filing my Case Management Conference yet his services were already terminated. It is notable that Gary states that he has been licensed since January 15, 19XX. It is therefore not expected for an attorney of such experience to make such mistakes. Clearly, Gary knew what he was doing.
  14. This Court should note that my only input at that time I was represented by the attorney(s) was to provide wage statements and the name of my employer for which I put down SCPMG and the address.
  15. Attorney Carlin never bothered to correct his significant error of naming the incorrect entity. Gary Carlin further failed to inform me that Defendant’s counsel, Lisa Magorien, had informed him of the error. In fact, I first learned that the incorrect Defendant was named in the complaint, when I opposed Defendant’s motion for summary judgment on or about May 9, 20XX.
  16. While retaining both Gary and Hershey Brennan, I was still under the impression that perhaps they knew better and researched how to properly address the right name for the lawsuit. It is for this reason that I relied on the representations of the attorneys, to my detriment.
  17. I issued subpoenas to Gary Carlin and Hershey Brennan to Prove that they committed the acts of concealment/fraudulent/intentional misrepresentation, in my case, which led to me being placed on the vexatious litigants list. Gary Carlin had an opportunity to include this in his declaration filed September 22, 20XX, but he did not.

The fraud in this case has caused me a lot of resulting damage

  1. I have suffered harassment, frustration, and emotional trauma. After terminating my former attorneys terminating their representation, my Complaint was challenged by Defendant’s counsel, XXX, on the ground of the improperly named Defendant.
  2. Notably, XXX filed a Motion for Summary Judgment on April 21, 20XX alleging inter alia, that I had named the wrong Defendant as party in the Complaint. I only realized that there was an issue with the Defendant’s name when I received the Motion for Summary Judgment form Lisa Magorien. It follows; the attorneys colluded with the Defendant’s counsel and the judge to frustrate me.
  3. The Attorneys’ conducts were not only fraudulent but they also violated their duties as Attorneys by misleading the Court and by committing acts of moral turpitude, dishonesty & corruption. The foregoing marked the genesis of my struggles in Court, which would later end up with my case being disposed and me being termed a vexatious litigant.
  4. The fraud has also made it impossible for the Court to address the defamation made against me by not only the Defendant, but also Defendant’s attorney, Lisa Magorien. Sarah Poetter, who was my supervisor, presented false and defamatory report about me to the BRN. This report would form the basis of BRN’s unlawful investigation of me and the subsequent revocation of my RN license.
  5. Lisa Magorien, on the other hand, presented defamatory and frivolous emails alleging that I had made threats to Defendant’s employees.
  6. My reputation has also been dealt a heavy blow. The fraud prevented me from successfully prosecuting my case in the Court. For that reason, the Defendants could not be held liable for their actions and/or inactions against me. Further, the BRN relied on defamatory averments from Defendant, which eventually led to my RN license being revoked. I cannot therefore earn income as a RN practitioner. All the foregoing, including placing me on the vexatious list, has damaged my reputation.
  7. Another resulting damage on me is that I have been denied my due process rights since the Court wants to dismiss my case on procedural technicalities, without considering the merits thereof.
  8. Defendant’s counsel vehemently opposed every step I took to amend the complaint and include the right Defendant’s name. I was entitled to file my First Amended Complaint as a matter of right. It follows; by this Court dismissing this case, I am left without legal redress for harm that was done against me. The Courts are meant to be the ultimate arbiter of justice, and when the doors of the courts are closed on me, I have nowhere else to seek justice.
  9. Defendant was aware I was about to file a new Complaint and moved the court to make me a vexatious litigant. Defendant’s counsel vehemently sought to maximize on the error in the Complaint, which as I has already explained, is a result of her previous attorney’s fraud. It is notable that I made motions to attempt to seek a correction of the issue, which include my opposition to Defendant’s Motion for Summary Judgment, and my Motion for Leave to File my Amended Complaint. Defendant’s counsel challenged these filings by claiming that they were frivolous and ultimately, she filed an ex parte motion to declare me a vexatious litigant.

 

 

 

I declare under penalty of perjury under the laws of the State of California 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:

XXX

XXX

XXX

XXX

XXX

XXX

XXX

Telephone: XXX

Facsimile: XXX

 

Attorney for SCPMG

 

 

 

 

 

DATED:

_________XXX_

XXX

XXX.

XXX

XX

 

Plaintiff in Pro Per

 

 

 

 

 

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