Esther Tendo 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. KAISER FOUNDATION HOSPITALS, ET AL., Defendants	Case No.: 21STCV41538 OPPOSITION TO DISMISS

 

COMES NOW, Plaintiff, ESTHER TENDO ATAM, pro se, and files this Opposition to

Dismiss. Plaintiff asserts that this Court’s dismissal of her case would violate her due process right to a fair trial. Plaintiff’s opposition is grounded on the fact that Plaintiff was subjected to fraud, which impeded her access to justice.

1. 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).

1. 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) (Exhibit A- Gary names Defendant as KFH then titles email TAM v. 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 (Exhibit B- Gary Files Attorney Substitution). 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 (Exhibit C- Forged Retainer). 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 (Exhibit D- Hershey Brennan’s retainer).

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 (Exhibit E- Order dismissing Attorney Brennan). 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 (Exhibit F- Gary Files CMS on behalf of Plaintiff). 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 (Exhibit G- Notice of 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.

1. 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 (Exhibit A- Gary names Defendant as KFH then titles email TAM v. 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 (Exhibit H- Response to Forged Retainer). 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 (Exhibit I- Gary’s Declaration). 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.

1. 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.

1. 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.

1. 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 defamation made 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.’  Indeed, “it is a rare case in which a “court will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case.”  Board of Trustees of Leland Stanford Jr. University v. Superior Court, 149 Cal.App.4^th 1154, 1163 citing Douglas v. Superior Court, (1989) 215 Cal.App.3d 155, 158 [internal citations omitted]. Thus absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendments of pleadings will prevail.  Higgins v. Del Faro, (1981) 123 Cal.App.3d 558, 564).  It follows; by this Court dismissing this case, Plaintiff would be left without legal redress for harm that was done against her. The Courts are meant to be the ultimate arbiter of justice, and when the doors of the courts are closed on Plaintiff, she has nowhere else to seek justice.

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.

 

1. Plaintiff’s due process right to a fair trial are at stake

The right to a fair trial applies in both civil and criminal cases. As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings: the right to be heard by a competent, independent and impartial tribunal. 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).

1. Judge Kleifiled failed to protect Plaintiff from Defendants’ frivolous conduct

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 by Judge Stephen Kliefield, granting his motion to be relieved as counsel.

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 Plaintiff leave to amend her Complaint, and went ahead to grant Hershey’s motion to be relieved as counsel.

Judge Stephen Kleifield colluded with Defendant, granted Defendant’s ‘prayers’ and declared Plaintiff vexatious. The Judge also granted Defendant’s Motion for Summary Judgment and dismissed Plaintiff’s judgment in an order delivered on September 19, 2022 (Exhibit J- Judgment of Dismissal). A notice of Entry of Judgment was thereafter entered on September 21, 2022 (Exhibit K- Notice of Entry of Judgment).

It should be noted that Plaintiff 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.

1. The Court fails to acknowledge that Lisa identified SCPMG as the party correctly sued

Interestingly, Lisa Magorien herself stated in her declaration on March 2022 that Plaintiff 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 Plaintiff from amending her complaint to reflect the correct party’s name.

1. Lisa unjustly put Plaintiff in the vexatious litigant list

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.

1. The BRN moved to revoke Plaintiff’s license in the middle of a lawsuit

The BRN revoked Plaintiff’s license while this case was still pending. It is noteworthy that BRN opened an investigation on Plaintiff based on false allegations from Sarah Poetter. The BRN thereafter subjected Plaintiff to an unlawful Section 820 examination. After Plaintiff failed to acknowledge the legality of their actions, the BRN went ahead to revoke Plaintiff’s RN license. 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 Plaintiff, which allegations were used by the BRN to revoke Plaintiff’s license. This just shows how the BRN violated Plaintiff’s right to a fair hearing.

1. Plaintiff is being denied her right to a fair trial, when the Court seeks to dismiss the case on a procedural technicality.

As Plaintiff has already pointed out, the error in the naming of the Defendant is not attributed to Plaintiff, but to her former attorneys. Plaintiff is therefore suffering for a mistake that is not hers. As further evidence of this court’s curtailment of Plaintiff’s due process right to a fair trial, Plaintiff’s efforts to correct the procedural technicality have been challenged and opposed by the Defendant. The Court also appears to participate in the ongoing fraud, by permitting Defendant’s unjust challenge to Plaintiff’s good faith attempts to have the correct name of the Defendant in the Complaint.

CONCLUSION

Based on the foregoing, Plaintiff requests that this Court, in the interest of justice, protects Plaintiff’s rights and avoid dismissing the case. Plaintiff further requests the Court to proceed and hear the matter based on its merits. Lastly, Plaintiff prays for any further Order this Court deems just.

Dated: _____________

Respectfully submitted,

 

_______ESTHER ATAM_____

ESTHER TENDO ATAM

 

 

 

At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )