Esther Tendo Atam
13621 Arcturus Ave.
Gardena, CA 90249
Plaintiff in Pro Per
| SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
|
|
| ESTHER TENAO ATAM,
Plaintiff vs. KAISER FOUNDATION HOSPITALS, ET AL., Defendants
|
Case No.: 21STCV41538
NOTICE OF MOTION TO DISQUALIFY JUDGE SMALL
Date: 05/24/2023 Time: 8:30 a.m. Judge: Hon. Michael Small Dpt.: 57 Reservation ID: 109560954533 Complaint filed: 11/10/2021 Trial Date: Not set |
NOTICE OF MOTION
To ALL Defendants and to ALL Attorneys of Record:
Please TAKE NOTICE that on 05/24/2023, at 8:30 a.m., or soon thereafter, at Department 57 at 111 North Hill Street, Los Angeles, CA 90012, the Plaintiff herein will move the Court to Disqualify the presiding Judge Hon. Michael Small, pursuant to Cal. Code Civ. Proc. § 170.1(A) (6) (iii).
The motion will be based on this Notice of Motion, the Motion itself and the averments therein, on any records and files already filed in this case, and on such evidence as may be presented at the hearing of the motion.
Dated: May ___, 2023
Respectfully submitted,
_____ESTHER ATAM___
Esther Tendo Atam
.
Esther Tendo Atam
13621 Arcturus Ave.
Gardena, CA 90249
Plaintiff in Pro Per
| SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
|
|
| ESTHER TENAO ATAM,
Plaintiff vs. KAISER FOUNDATION HOSPITALS, ET AL., Defendants
|
Case No.: 21STCV41538
MOTION TO DISQUALIFY JUDGE SMALL
Date: 05/24/2023 Time: 8:30 a.m. Judge: Hon. Michael Small Dpt.: 57 Reservation ID: 109560954533 Complaint filed: 11/10/2021 Trial Date: Not set |
MOTION TO DISQUALIFY JUDGE SMALL
NOW COMES, ESTHER TENAO ATAM, Plaintiff, hereby moves this Court to Disqualify the presiding Judge Hon. Michael Small, pursuant to Cal. Code Civ. Proc. § 170.1(A) (6) (iii). In support thereof, Plaintiff states as follows:
- Legal standard
A judge shall be disqualified if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” See Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii). The U.S. Supreme Court has recognized that “the right to an impartial judge [is] among those ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.'” See Chapman v. California, 386 U.S. 18, 23 (1967). “A biased decision maker is constitutionally unacceptable,” Withrow v. Larkin (1975) 421 U.S. 35 [ 43 L.Ed.2d 712, 95 S.Ct. 1456].
“The test for partiality [in section 170.1, subdivision (a)(6)(A)(iii)] is an objective one… Actual bias is not required: ‘Where a reasonable person would entertain doubt whether the… arbitrator was impartial, the appellate courts are not required to speculate whether bias was actual or merely apparent, or whether impartial consideration of the evidence and dispassionate decision of the matter would have led to the same result.’” See In Guseinov v. Burns (2006) 145 Cal.App.4th 944, 960.
The words and conduct of [a judge can] create a doubt that he or she will be able to be impartial on remand.” See In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1327.
- Judge Small illegally related Plaintiff’s case in Department 26 with the case in 57 and made himself the lead judge
On March 17, 2023, Judge Small issued a Minute Order, which related this case to Plaintiff’s related case at Department 26. The Order had the effect of putting off all future hearings off-calendar. Notably, the following pending upcoming hearings were therefore struck off: hearing to show cause, case management conference, status conference, motion to strike affirmative defense, and motion to deem facts admitted. Plaintiff had already made filings with respect to each hearing. Plaintiff’s good faith efforts would therefore go to the drain following the illegal action by Judge Small.
As Judge Small vacated the hearings in Department 26, the only hearing on docket in this Court was a Case Management Hearing, which was scheduled for March 28, 2023. The hearing was initially docketed for April 10, 2023- the same day for which Plaintiff had subpoenaed the psychologist and the other SCPMG Defendants. It follows; with no more pending hearings in this case after March 28, 2023, the case was closed. The said Case Management hearing clearly presented fraudulent RN records produced by Kasier. Judge Small failed to acknowledge this in his Minute Order on March 28, 2023. Then on March 29, 2023, Judge Small again vacated the upcoming hearing for sanctions in Department 26. He replaced that hearing date with the court’s own motion for dismissal. Judge Small also vacated all pending Reservation Ids already reserved by Plaintiff and not even filed with the court. This included Motion for Leave to File First Amended Complaint in Department 26, Motion to Further Compel Discovery, and Motion to Disqualify Elaine Lu.
Judge Small’s action in combining the two cases, and vacating all pending hearings, will impede Plaintiff’s access to justice. The two cases have different parties. Besides, this Court has already denied Plaintiff her right to amend her Complaint to correct the Defendant’s name. Therefore, the Court would not allow Plaintiff leave to amend the Complaint to include the proper Defendants.
It is further absurd that Judge Small intends to dismiss this case on May 9, 2023 based on fraud, then wants Plaintiff to come back to his biased court room August 9, 2023. This is a blatant abuse of Plaintiff’s due process right to a fair trial.
- Judge Small failed to acknowledge that every order carried out since September 19, 2022, is based on falsehood and fraud – done by his predecessor judge Klefield.
Judge Stephen Kleifield was biased. Plaintiff has discussed some of his blameworthy conduct. First, the judge struck off Plaintiff’s First Amended Complaint, without giving any sufficient reasons. The judge disregarded the settled law that the Courts’ discretion in determining whether to grant leave to amend will usually be exercised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. See Klopstock v. Super. Ct., (1941) 17 Cal.2d 13, 19; Atkinson v. Elk. Corp. (2003) 109 Cal.App.4th 739, 760. The Amended Complaint would make necessary adjustments to the Original Complaint, in the interest of justice.
At least, the Court should have granted Plaintiff leave to amend the Complaint to correct the Defendant from KAISER FOUNDATION HOSPITALS to SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP (SCPMG), so that she would pursue legal redress for her injuries.
Next, Judge Kleifield disregarded his previous order that had scheduled the case management hearing. Notably, the judge had already scheduled a case management hearing for September 29, 2022. However, the Judge dismissed the case on September 19, 2022. It is therefore not clear why the court took the scheduled case management hearing off calendar and closed the case on September 19th.
Further, on October 31, 2022, the Judge saw disputed email evidence filed by Lisa Magorien (Defendant’s counsel) on October 28, 2022. The disputed email evidence was declarations from SCPMG employees, acknowledging that Plaintiff had filed a lawsuit against SCPMG. Not only did Judge Kleifield prevent Plaintiff from filing an amended complaint, he told Plaintiff in court that she had to stop pursuing this case and asked Lisa Magorien if she has already filed a motion to get me on the vexatious litigants list. This is clear evidence of oppression, malice and fraud.
The judge also granted the Defendant’s Summary Judgment, yet there were genuine issues of material fact. “`A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c)) (Emphasis added) (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 (Kahn).) A genuine issue of material fact exists if a rational trier of fact, considering the record as a whole, could find for the…genuine issue of material fact. Critzer v. Enos, 187 Cal.App.4th 1242, 115 Cal. Rptr. 3d 203 (Cal. Ct. App. 2010). In granting the Defendant’s Motion for Summary Judgment, the judge failed to consider the fact that Plaintiff’s complaint contained factual assertions on how she was subjected to discrimination and retaliation. Plaintiff went ahead to establish valid causes of action based on the said facts. The complaint therefore raised issues of material fact, which nullifies Defendant’s motion for summary judgment.
Next, the Judge failed to address Defendant’s violation of applicable law regarding the time limit to file an answer. According to Rule 3.110(d), responsive pleadings must be filed within thirty (30) days of the filing of a Complaint, or within a 15-day extension as stipulated by the parties to the case. However, in the Judge’s rulings, orders, and/or judgments, the Judge never noted that the Defendant had filed their answer beyond the statutorily allowed time limit of thirty (30) days. The parties had also not stipulated that the Defendant could file the responsive pleading any time after the thirty days. The judge’s failure to address the Defendant’s blatant disregard of the applicable law shows how the judge is biased, which bias prejudices me.
The Judge also failed to address the Defendant’s frivolous filings. Frivolous” is defined as “totally and completely without merit or for the sole purpose of harassing an opposing party.” See Code Civ. Proc., § 128.5(b)(2). The “bad faith requirement of section 128.5 does not impose a determination of evil motive. The concept of ‘harassment’ includes vexatious tactics which, although literally authorized by statute or rule, go beyond that which is by any standard appropriate under the circumstances.” In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 145-46 (Taeb). Further, an objection is frivolous where it can be said that it indisputably has no merit, such that any reasonable attorney would agree that it is totally and completely without merit. Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 922. In the instant action, Kaiser Foundation Hospital averred that Plaintiff is frivolous and that her filings were vexatious and meritless. On the contrary, Plaintiff filed the suit in pursuit of justice. Further, Kaiser Foundation Hospital was erroneously named as the Defendant upon which she was entitled to correct the error and to work on any other defect in the pleading(s). All of Plaintiff’s filings in the case have been made in an attempt to further her pursuit of justice. The Judge also failed to address the fact that Gary Carlin (my previous attorney) had forged the retainer. Gary Carlin forged Plaintiff’s initials and signature. The original document that Plaintiff had signed was handwritten. However, the retainer presented by Gary was typed. Besides, it contained the right address of Kaiser.
Judge Kleifield also failed to address Gary Carlin’s failure to respond to a subpoena. Under California law, once a party shows good cause for the production of a writing in a legal matter, no person has a right to refuse production of the writing, absent a statutory privilege. Evid. Code, § 911(b). The judge failed to acknowledge that a subpoena for the retainer was sent to Gary Carlin and that he failed to comply with the requests therein. Notably, Plaintiff had subpoenaed Gary Carlin for the retainer. Plaintiff further made several email requests to Gary for the retainer. However, Gary failed to deliver the retainer. When Plaintiff raised the issue with the Judge, he dismissed Plaintiff’s Motion for Fraud and stated that Plaintiff was wasting the Court’s resources and time. The foregoing is proof of the Judge’s blatant disregard of Plaintiff’s rights to a fair trial.
Since taking up the case from Judge Stephen Kleifield, Judge Small has upheld all of Judge Kleifield’s blameworthy conduct, and biased actions.
- Judge Small threatened to fine Plaintiff
On March 10, 2023, Judge Small threatened to fine Plaintiff thousands of dollars if she continued to pursue her case. This threat was a blatant violation of Canon 3B(5), which provides that “[a] judge shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as (a) bias, prejudice, or harassment.” It was also a violation of Canon 3B(7), which provides that “[a] judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the full right to be heard according to law”, and Canon 3B(8), which states that “[a] judge shall manage the courtroom in a manner that provides all litigants the opportunity to have their matters fairly adjudicated in accordance with the law.”
- Judge Small is aware of fraudulent activity in this case
Plaintiff’s case has been marred with fraud from Defendants, since the inception of the case. First, Plaintiff’s previous attorneys engaged in fraud. Under California law, a plaintiff seeking punitive damages must prove “that the defendant has been guilty of oppression, fraud, or malice. See Cal. Civ. Code § 3294; see also Food Pro Internat’l Inc. v. Farmers Ins. Exch., 169 Cal. App. 4th 976, 994 (2008) (stating that, to award punitive damages, a court must find that “the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy”). “The elements of fraud are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud; (4) justifiable reliance; and (5) resulting damage.” Doe v. Gangland Prods., Inc., 730 F.3d 946, 960 (9th Cir. 2013) (citing Lazar v. Super. Ct., 12 Cal.4th 631, 638, 49 Cal.Rptr.2d 377, 909 P.2d 981 (1996).
- False Representation, Concealment, Deceit
A false representation is a misrepresentation of material fact upon which plaintiffs justifiably relied. See Restatement Second of Torts, § 402B, coms. f, g, and j. Plaintiff procured the services of attorney Gary Carlin to represent her in the instant case, which was filed on November 10, 2021. Attorney Carlin named Kaiser Foundation Hospitals as the corporate Defendant in the case, disregarding Plaintiff’s attached W2s and wage statements that named the correct Defendant: Southern California Permanente Medical Group (SCPMG).
Plaintiff was still confused as to why Gary put KFH in the complaint. Plaintiff was still under the impression that perhaps he knew better and researched how to properly address the right name for the lawsuit. Having not been satisfied with Gary Carlin’s representation, Plaintiff substituted the attorney by filing form MC-050 (Substitution of Attorney-Civil) on or about December 22, 2021. Notably, Gary wrote an email to Plaintiff indicating that his office would send Plaintiff a substitution of attorney form, which would require two signatures from Plaintiff. Consequently, Gary sent over the substitution of attorney Form MC-050, which Plaintiff duly signed.
However, on February 15, 2022, Gary Carlin filed Form MC-050 “Substitution of Attorney” form. The form had a forged signature of Plaintiff. Plaintiff also noticed that Gary had forged the party’s Retainer Agreement. Notably, the Retainer Agreement presented by Gary had a forged handwriting of Plaintiff. The forged Agreement stated that Plaintiff had hired Gary for “Employment/Labor Law Issues Re Kaiser”. Not only was this not Plaintiff’s handwriting, it contradicted what Plaintiff initially stated as the correct name for the Defendant. 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.
After Plaintiff terminated the services of Gary Carlin, she procured the services of attorney Brennan M. Hershey through an agreement entered on or about December 21, 2021. The Retainer Agreement expressly stated that Plaintiff hired Hershey to prosecute Plaintiff’s action arising out of Plaintiff’s employment with SCPMG.
On March 28, 2022, Hershey filed a Case Management Statement, where he identified the Defendant as SCPMG. Hershey was later relieved as Plaintiff’s counsel vide a Court Order issued granting his motion to be relieved as counsel. In the motion, Hershey argued that he withdrew because Plaintiff had sent threats to the Defendants. Hershey’s averments were not true. The attorney was relived after Plaintiff expressed her concerns on effective representation.
It is also notable that long after Gary’s representation of Plaintiff had been terminated, Gary still went ahead to file a Case Management Statement for Plaintiff on September 14, 2022, without Plaintiff’s knowledge or consent. Plaintiff 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 Plaintiff. This action by Gary further shows their sinister motive to interfere with Plaintiff’s case and thwart her access to justice.
- Knowledge of Falsity
An affirmative misstatement—saying or writing something that is not true—is the most common form of false representation. But if there is a duty to disclose, silence may also constitute fraud. See Lovejoy v. AT&T Corp., 119 Cal.App.4th 151, 14 Cal. Rptr. 3d 117 (Cal. Ct. App. 2004). A failure to speak is actionable if there is a suppression of facts which one party is under a legal or equitable obligation to communicate to the other, and which the other party is entitled to have communicated to him. Id. “Concealment is a term of art which includes mere nondisclosure when a party has a duty to disclose.” See Reed v. King (1983) 145 Cal.App.3d 261, 265.
The Attorneys were aware of the error in the naming of the Defendant. As stated above, in her communication with Gary, Plaintiff had attached W2s and wage statements that named the correct Defendant. Also, on December 21, 2021, Gary Carlin wrote an email to Plaintiff titled “TAM V. SCPMG”. In the email, Gari further referred to the Defendant expressly as SCPMG. Further, Plaintiff confronted Gary Carlin via email on October 28, 2022, with the fact that Gary had entered the wrong name of the Defendant and that he had forged Plaintiff’s handwriting in the Retainer Agreement. Gary responded to Plaintiff’s email and stated that the handwriting on the Retainer was most likely his handwriting. This amounts to a plain admission of forgery by Gary.
On September 22, 2022, 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 Plaintiff’s Case Management Conference yet his services were already terminated. It is notable that Gary states that he has been licensed since January 15, 1970. It is therefore not expected for an attorney of such experience to make such mistakes. Clearly, Gary knew what he was doing.
This Court should note that Plaintiff’s only input at that time she was represented by the attorney(s) was to provide wage statements and the name of her employer for which she put down SCPMG and the address.
- Intent to Defraud (to Induce Reliance)
The failure to disclose a material fact supports an inference of intent to defraud. See Lovejoy v. AT&T Corp., 119 Cal.App.4th 151, 14 Cal. Rptr. 3d 117 (Cal. Ct. App. 2004), at page 96. Fraudulent intent is, in essence, dishonesty or bad faith. In People v. Nunn [ (1956) 46 Cal.2d 460], the California Supreme Court stated that “[t]he phrase ‘good faith’ in common usage has a well-defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation.” See also Martin Brothers Construction, Inc. v. Thompson Pacific Construction, Inc. (2009) 179 Cal.App.4th 1401, 1411.
Attorney Carlin never bothered to correct his significant error of naming the incorrect entity. Gary Carlin further failed to inform Plaintiff that Defendant’s counsel, Lisa Magorien, had informed him of the error. In fact, Plaintiff first learned that the incorrect Defendant was named in the complaint, when Plaintiff opposed Defendant’s motion for summary judgment on or about May 9, 2022.
- Justifiable Reliance
The leading case on justifiable reliance is Seeger v. Odell (1941) 18 Cal. 2d 409, 414-415 [115 P.2d 977, 136 A.L.R. 1291]. The case sets forth the following rules inter alia, “A fraudulent misrepresentation is one made with the knowledge that it is or may be untrue, and with the intention that the person to whom it is made act in reliance thereon… It must appear, however, not only that the plaintiff acted in reliance on the misrepresentation but that he was justified in his reliance.
While retaining both Gary and Hershey Brennan, Plaintiff 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 Plaintiff relied on the representations of the attorneys, to her detriment.
- Resulting Damage
A “complete causal relationship” between the fraud or deceit and the plaintiff’s damages is required. Causation requires proof that the defendant’s conduct was a “‘substantial factor’ ” in bringing about the harm to the plaintiff.” See Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [39 Cal.Rptr.2d 658].
Plaintiff asserts that she has suffered disastrous damages consequential and incidental to the fraud highlighted above. First, Plaintiff has suffered harassment, frustration, and emotional trauma. After terminating their representation of Plaintiff, Plaintiff’s Complaint would later be challenged by Defendant’s counsel, Lisa Magorien, on the ground of the improperly named Defendant. Notably, Lisa Magorien filed a Motion for Summary Judgment on April 21, 2022 alleging inter alia, that Plaintiff had named the wrong Defendant as party in the Complaint. Plaintiff only realized that there was an issue with the Defendant’s name when she received the Motion for Summary Judgment form Lisa Magorien. It follows; the attorneys colluded with the Defendant’s counsel and the judge to frustrate Plaintiff’s case. 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 Plaintiff’s struggles in Court, which would later end up with Plaintiff’s case being disposed and Plaintiff being termed a vexatious litigant.
The fraud has made it impossible for the Court to address the injustices done against Plaintiff by not only the Defendant, but also Defendant’s attorney, Lisa Magorien. Plaintiff maintains that Sarah Poetter, who was her supervisor, presented false and defamatory report about Plaintiff to the BRN. This report would form the basis of BRN’s unlawful investigation of Plaintiff and the subsequent revocation of her RN license. Lisa Magorien, on the other hand, presented defamatory and frivolous emails alleging that Plaintiff had made threats to Defendant’s employees.
Plaintiff’s reputation has also been dealt a heavy blow. The fraud discussed herein prevented Plaintiff from successfully prosecuting her case in the Court. For that reason, the Defendants could not be held liable for their actions and/or inactions against Plaintiff. Further, the BRN relied on defamatory averments from Defendant, which eventually led to Plaintiff’s RN license being revoked. Plaintiff cannot therefore earn income as a RN practitioner. All the foregoing, including placing Plaintiff on the vexatious list, has damaged Plaintiff’s reputation.
Another resulting damage on Plaintiff is that she has been denied her due process rights since the Court wants to dismiss Plaintiff’s case on procedural technicalities, without considering the merits thereof. Defendant’s counsel vehemently opposed every step Plaintiff took to amend the complaint and include the right Defendant’s name. Plaintiff was entitled to file her First Amended Complaint as a matter of right. “It is well established that ‘California courts’ have a policy of great liberality in allowing amendment at any stage of the proceedings so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.’
As a further depiction of the fraud in this case, Plaintiff has also been declared a vexatious litigant to prevent her from making filings and present her case in pursuit of legal redress. Attorney for Defendant was aware Plaintiff was about to file a new Complaint and moved the court to make Plaintiff a vexatious litigant. Defendant’s counsel vehemently sought to maximize on the error in the Complaint, which as Plaintiff has already explained, is a result of her previous attorney’s fraud. It is notable that Plaintiff made motions to attempt to seek a correction of the issue, which include her opposition to Defendant’s Motion for Summary Judgment, and her Motion for Leave to File her Amended Complaint. Defendant’s counsel challenged these filings by claiming that they were frivolous and ultimately, she filed an ex parte motion to declare Plaintiff a vexatious litigant.
Another incidence of fraud is that Lisa sought to have Plaintiff put on the vexatious litigants list to prevent her from filing a new lawsuit. It follows; the Court is erroneously holding on to the allegation that Plaintiff is a vexatious litigant. Plaintiff has already argued how her conduct was nowhere near vexatious and/or frivolous. None of the facts shows that she meets the threshold set out Cal. Code Civ. Proc. § 391(b). As a matter of fact, in the past seven years, Plaintiff never commenced any actions, that had been determined against her. She had also never delayed any action for at least two years. Next, the complaint was not a re-litigation of any previous matter that Plaintiff had ever brought in court against the Defendants. Plaintiff was suing the Defendants for the first time. Her Complaint and her subsequent attempts to correct the procedural issue are in no way meant to harass the Defendant.
- Judge Small unjustly vacated the 04/27/2023 hearing
The hearing for the motion to dismiss Judge Small was scheduled for 04/27/2023. Accordingly, Plaintiff issued subpoenas to both Gary Carlin and Brennan Hershey to testify on said hearing date. However, on 04/26/2023, Judge Small dismissed Plaintiff’s motion to dismiss an vacated the hearing.
It is Plaintiff’s contention that the Judge vacated said hearing in bad faith. The judge was aware that the said hearing would expose his blameworthy conduct in handling this case. Besides, the judge was aware that pertinent testimonies would be made, which would be adverse to Defendants and would show how Plaintiff’s rights have been violated.
- Judge Small failed to acknowledge the BRN’s faults
On March 28, 2022, Judge Small issued a Minute Order, which denied (with prejudice), Plaintiff’s motion for sanction to BRN despite all the facts filed supporting the fact that the BRN is at fault and openly lied in their opposition.
The BRN is colluding with Kaiser (SCPMG) and the judge, to get this case thrown out immediately, to avoid liability. The BRN’s liability is seen when it relied on a false report from Plaintiff’s former employer, and unjustly and without good cause, subjected Plaintiff to a Section 820 order compelling Plaintiff to a mental examination, and ultimately revoked Plaintiff’s RN license. The Board had already interviewed Plaintiff on or about July 14, 2021.
Consequently, BRN’s order compelling mental examination was executed on July 14, 2022, which is almost two years after the incidence that happened on August 28, 2020. Upon receiving Respondent’s records, the Board found no issue. These records included notes from a qualified psychologist who evaluated Plaintiff over a 9-10 week period, concluding that Plaintiff was safe to perform her RN duties with no mental illnesses precluding her from doing so. The same psychologist’s notes addressed the incident on August 28, 2020, for which Plaintiff had sought therapy in the first place and was reported to the BRN by Kaiser. Loretta Melby, in her capacity as CEO of the organization, then filed an accusation against the Plaintiff. This gross incompetence raises questions about Ms. Melby’s judgment in this matter, making it necessary for further investigation into her actions.
Plaintiff emphasizes that nowhere in her history of nursing was there any record of bad patient care or any medical errors. Further, the delay of the BRN in taking action against Plaintiff speaks to BRN’s intent in seeking to investigate and subject Plaintiff to discipline. It is Plaintiff’s assertion that if, in fact, plaintiff was a danger to the public as alleged the BRN in its Opposition to Plaintiff’s motion and subpoena, this lack of urgency speaks to an absence of concern for the public’s safety.
It is further notable that BRN’s appointed psychiatrist did not remember the correct day or month for the mental assessment and could not even recall his own phone number. This raised serious concerns that the psychiatrist was not competent to conduct the evaluation, prompting alarm from Plaintiff and alerting the Board that their chosen doctor might be in need of help himself. The foregoing was grounds for any reasonable person to object to being evaluated by a confused individual. It is also bad faith for the BRN to execute its illegal orders in the middle of a lawsuit containing similar claims as those made to the BRN. The dismissal of this case without considering the merits thereof shows the BRN’s absurdity to rely on the allegations made against Plaintiff to effect its orders.
Also, based on the false allegations against Plaintiff, Loretta Melby, Executive Officer of the BRN, filed an Accusation against Plaintiff on or about November 14, 2022, alleging that Plaintiff was subject to disciplinary action for failing to comply with the Section 820 Order compelling her to a mental examination. The Board appears to ignore the applicable law, which states that one should therefore be subjected to a mental examination only if such an examination is the least intrusive means of determining a physician’s mental condition. See Kees v. Medical Board, 7 Cal. App. 4th 1801 (Cal. Ct. App. 1992). Courts have also held that a mental and/or physical examination should not be performed where there is no good cause for the examination. See Alexander D. v. State Bd. of Dental Examiners, 231 Cal.App.3d 92, 282 Cal. Rptr. 201 (Cal. Ct. App. 1991). It follows; Plaintiff was therefore not obligated to respond to an illegal Section 820 Order. It follows; the Board had absolutely no evidence that suggests that Plaintiff is a danger to the public. The Board, in exercising its discretion, must have good cause and evidence to substantiate its claim. In the instant case, it is clear that the board is abusing its authority and choosing to ignore any evidence that shows that the accusation against Plaintiff is false.
The BRN’s bad faith is also evident when, on January 6, 2023, Gillian Friedman sent Plaintiff a letter notifying her of the Board’s Decision and Order revoking her RN practicing license. In said decision and order, the Board averred that Plaintiff failed to enter appearance and defend herself from the accusations brought before the Board by Loretta Melby. Consequently, the Board entered the decision against Plaintiff in default, which decision revoked her practicing license. It is notable that the Board had done no investigation into the allegations that were presented to it by Plaintiff’s former employer.
It is in a bid to avoid liability that the BRN sought to join the Defendant(s) in ensuring Plaintiff’s case is thrown out for procedural technicalities. For instance, the BRN held on to evidence that would shed more light on the case. In Plaintiff’s related case at Department 57, the BRN opposed Plaintiff’s Motion for Discovery Sanctions against the BRN. Plaintiff had sent discovery requests to the BRN. However, the BRN failed to respond to the discovery request. Plaintiff therefore filed a Motion for Discovery Sanctions against the BRN. In response thereof, the BRN alleged inter alia, that Plaintiff’s motion for sanctions should be denied because there is no triable action since the Court already granted Defendant’s motion for summary judgment. What the BRN failed to consider is that the hearing date for the motion was set for March 28, 2023, which is evidence that the matter was still triable before the Court. The Court docket also showed other hearings scheduled in the case. The BRN also made other frivolous objections to the motion, in their attempt to avoid disclosing the information requested in the discovery requests.
The foregoing shows how the BRN colludes with the Defendant and the Court, to obstruct Plaintiff’s access to justice.
CONCLUSION
WHEREFORE, Plaintiff ESTHER TENDO ATAM respectfully requests that the Court grants this Motion to Disqualify Judge Michael Small as requested herein.
Dated: __________
___ ___ESTHER ATAM_____
ESTHER TENDO ATAM
CERTIFICATE OF SERVICE
I hereby certify that on _________, copies of the foregoing document have been sent to all parties in the following address:
Lisa M. Magorien, Esq. (SBN: 259877)
LAGASSE BRANCH BELL + KINKEAD LLP
4365 Executive Drive, Suite 950
San Diego, CA 92121
Telephone: (858) 345-5080
Facsimile: (858) 345-5025.
Attorney for Defendant
DATED: 03/17/2023
Respectfully submitted,
___ESTHER ATAM_____
ESTHER TENDO ATAM
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