IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION ______________
ESTHER TENDO ATAM,   (Petitioner) vs. KAISER FOUNDATION HOSPITALS, ET AL.,   (Respondents)		Court of Appeal No. _______________   Trial Court Case No: 21STCV41538 [Related to Case No. 22STCV37929]
Appeal from the Superior Court of California, Los Angeles County Trial Court Judge: Hon. Michael Small
PETITION FOR WRIT OF MANDAMUS
Esther Tendo Atam 13621 Arcturus Ave. Gardena, CA 90249 Natashchan1@yahoo.com                Petitioner, Pro Se	Scott A. Blakeley, (SBN: 251350) LA FOLETTE, JOHNSON, DeHAAS, FESLER & AMES 701 North Brand Blvd., Suite 600 Glendale, CA 91203-877 Telephone: (213) 426-3600 Facsimile: (213) 426-3650.     Attorneys for Respondent(s)

CERTIFICATE OF INTERESTED PERSONS

Interested entities or persons required to be listed under Rule 8.208 are as follows:

1. The California Board of Registered Nursing
2. Loretta Melby
3. Gillian Friedman

 

 

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS. 2

TABLE OF CONTENTS. 3

TABLE OF AUTHORITIES. 6

PETITION FOR WRIT OF MANDAMUS. 10

PRAYER.. 10

VERIFICATION.. 10

MEMORANDUM OF POINTS AND AUTHORITIES. 11

1. INTRODUCTION.. 11
2. THE TRIAL COURT VIOLATED PETITIONER’S DUE PROCESS RIGHTS WHEN IT DENIED THE PETITIONER’S MOTION TO DISMISS JUDGE MICHAEL SMALL 11
3. The Standard of Review.. 11
4. CA Civ Pro Code § 391.3 (a) and (b) (2021) do not apply to Petitioner’s case 12

III.     JUDGE SMALL FAILS TO ACKNOWLEDGE THAT PETITIONER’S PREVIOUS ATTORNEYS ENGAGED IN FRAUD.. 16

1. False Representation, Concealment, Deceit 16
2. Knowledge of Falsity. 18
3. Intent to Defraud (to Induce Reliance) 20
4. Justifiable Reliance. 21
5. Resulting Damage. 21
6. IF JUDGE SMALL IS NOT DISQUALIFIED, PETITIONER’S DUE PROCESS RIGHT TO A FAIR TRIAL ARE AT STAKE. 25
7. Judge Small is disqualified by operation of law.. 26
8. 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. 27
9. The Court failed to acknowledge that Lisa identified SCPMG as the party correctly sued 32
10. Lisa unjustly put Petitioner in the vexatious litigant list 32
11. The BRN moved to revoke Petitioner’s license in the middle of a lawsuit 33
12. Petitioner is being denied her right to a fair trial, when the Court seeks to dismiss the case on a procedural technicality. 34
13. Judge Small threatened to fine Petitioner 34
14. Judge Small fails to acknowledge the BRN’S fraudulent conduct 35
15. The alleged vexatious litigant status will need to be during continued litigation 39
16. Judge Small is biased. 39

CONCLUSION.. 43

CERTIFICATE OF COMPLIANCE. 44

CERTIFICATE OF SERVICE. 45

 

 

 

TABLE OF AUTHORITIES

Cases

Higgins v. Del Faro, (1981) 123 Cal.App.3d 558, 564………………………………… 20

In Guseinov v. Burns (2006) 145 Cal.App.4th 944, 960………………………………. 35

Alexander D. v. State Bd. of Dental Examiners, 231 Cal.App.3d 92, 282 Cal. Rptr. 201 (Cal. Ct. App. 1991)…………………………………………………………………………………. 33

Board of Trustees of Leland Stanford Jr. University v. Superior Court, 149 Cal.App.4^th 1154, 1163………………………………………………………………………………………………. 19

Cf.Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 355 (1961)…………………………. 7

Chapman v. California, 386 U.S. 18, 23 (1967)…………………………………………. 35

Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 922………………… 27

Critzer v. Enos, 187 Cal.App.4th 1242, 115 Cal. Rptr. 3d 203 (Cal. Ct. App. 2010) 25

Doe v. Gangland Prods., Inc., 730 F.3d 946, 960 (9th Cir. 2013)………………….. 12

Douglas v. Superior Court, (1989) 215 Cal.App.3d 155, 158……………………….. 19

Food Pro Internat’l Inc. v. Farmers Ins. Exch., 169 Cal. App. 4th 976, 994 (2008) 12

Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21-22, 31 Cal.Rptr.2d 378………………………………………………………………………………….. 8

Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21-22, 31 Cal.Rptr.2d 378………………………………………………………………………………….. 8

In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 145-46. 26

In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1327……………………….. 36

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019…………………………………………. 21

Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003… 25

Kees v. Medical Board, 7 Cal. App. 4th 1801 (Cal. Ct. App. 1992)………………… 32

Lazar v. Super. Ct., 12 Cal.4th 631, 638, 49 Cal.Rptr.2d 377, 909 P.2d 981 (1996) 12

Lewis v. Superior Court (1988) 198 Cal.App.3d 1101, 1104 [ 244 Cal.Rptr. 328] 23

Lovejoy v. AT&T Corp., 119 Cal.App.4th 151, 14 Cal. Rptr. 3d 117 (Cal. Ct. App. 2004)  14

Martin Brothers Construction, Inc. v. Thompson Pacific Construction, Inc. (2009) 179 Cal.App.4th 1401, 1411……………………………………………………………………… 16

Mathew v. Eldridge, 424 U.S. 319, 332-33 (1976)……………………………………… 21

People v. Nunn [ (1956) 46 Cal.2d 460]…………………………………………………… 16

People v. Perez (2018) 4 Cal.5th 421, 439………………………………………………… 36

Peracchi v. Superior Court, 30 Cal.4th 1248…………………………………………….. 36

Reed v. King (1983) 145 Cal.App.3d 261, 265…………………………………………… 15

Seeger v. Odell (1941) 18 Cal. 2d 409, 414-415 [115 P.2d 977, 136 A.L.R. 1291] 17

Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [39 Cal.Rptr.2d 658]……… 17

Withrow v. Larkin (1975) 421 U.S. 35 [ 43 L.Ed.2d 712, 95 S.Ct. 1456]…………. 35

Statutes

CA Civ Pro Code § 170.3……………………………………………………………………… 22

CA Civ Pro Code § 170.6……………………………………………………………………… 22

CA Civ Pro Code § 391.3 (a)…………………………………………………………………… 8

Cal. Civ. Code § 3294………………………………………………………………………….. 12

Cal. Code Civ. Proc. § 391.3(b)……………………………………………………………… 28

CCP § 170.3 (c) (5)……………………………………………………………………………… 22

CCP § 170.6(a)(1)……………………………………………………………………………….. 36

Civ. Proc. & 391 (b)………………………………………………………………………………. 8

Code Civ. Proc., § 128.5(b)(2)……………………………………………………………….. 26

Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii)…………………………………………….. 35

Evid. Code, § 911(b)……………………………………………………………………………. 27

Penal Code 470 PC……………………………………………………………………………… 13

Other Authorities

Canon 3B(5)………………………………………………………………………………………. 30

Canon 3B(7)………………………………………………………………………………………. 30

Canon 3B(8)………………………………………………………………………………………. 30

Restatement Second of Torts, § 402B, coms. f, g, and j……………………………….. 12

Rules

Cal. Rule 3.110(d)……………………………………………………………………………….. 26

Constitutional Provisions

California Constitution, Article I, Section 7………………………………………………. 21

 

 

PETITION FOR WRIT OF MANDAMUS

Petitioner Esther Atam petitions this Court for a writ of mandate or other appropriate relief, directing the Los Angeles County Superior Court to vacate its 08/09/2023 Minute Order putting Petitioner on the vexatious litigants list. There is nothing on the record to show that Petitioner is a vexatious litigant. Petitioner is a victim of Defendant’s dilatory and covert tactics to prevent Petitioner’s Complaint from being heard on its merits.

PRAYER

WHEREFORE, Petitioner prays that a writ of mandate issue from this Court commanding the Los Angeles County Superior Court to vacate its Order 08/09/2023 Minute Order putting Petitioner on the vexatious litigants list, and to make a new and different order vacating the said Order, and for such other relief as may be just.

VERIFICATION

I am the Petitioner in this case. I have read the foregoing Petition and know its contents. I declare under penalty of perjury that the facts alleged in this Petition are true and correct based on my personal knowledge, except matters alleged on the basis of information and belief, and as to those matters, I believe them to be true.

Executed on this ____ day of August 2023 in Los Angeles County, California.

____________________

ESTHER ATAM

Petitioner, pro se

 

 

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This case concerns the order declaring Petitioner a Vexatious Litigant and placing Petitioner in the vexatious litigants list. On 08/08/2023, the Court held a hearing on Motion for Sanctions and a hearing on Motion for Order Motion for Reconsideration. The Court held that Plaintiff is a vexatious litigant, and put Petitioner in the vexatious litigant statute.

Petitioner challenges the said Trial Court’s decision on the grounds that Petitioner does not meet the threshold in Cal. Code Civ. Proc. § 391(b).

It follows; there are significant legal grounds, extraordinary facts, and circumstances, which justify this court to quash the Trial Court’s decision placing Petitioner in the vexatious litigants list.

 

 

THE TRIAL COURT VIOLATED PETITIONER’S DUE PROCESS RIGHT TO A FAIR TRIAL: PETITIONER HAS NOT MET THE THRESHOLD UNDER CAL. CODE CIV. PROC. § 391(b)

A.   The Standard of Review

When a court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous court to hear the case. See Cf.Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 355 (1961).

Appeal Courts apply an independent, or de novo, standard of review to conclusions of law regarding interpretation of evidence. Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21-22, 31 Cal.Rptr.2d 378. It follows; an appellate court hearing a case de novo may refer to the lower court’s record to determine the facts, but will rule on the evidence and matters of law without deferring to that court’s findings. Id.

B.    Petitioner does not meet the threshold under  Cal. Code Civ. Proc. § 391(b)

Cal. Code Civ. Proc. § 391(b) identifies the factors that may be considered in determining whether a Petitioner is a vexatious litigant, which factors include:

1. Whether the Petitioner, in pro per, has, in the past seven years, has commenced at least five cases that have been determined against the Petitioner, or that have been delayed for at least two years without being brought to trial and/or hearing;
2. Whether the Petitioner re-litigates, in pro per, a matter that was already settled in a previous case;

• Whether the Petitioner repeatedly makes unmeritorious filings in the court; or

1. Whether the Petitioner has previously been declared a frivolous litigant.

“The language of [the vexatious litigant] statute leaves little room for interpretation. The defendant who moves for security must prove the plaintiff is a vexatious litigant.” See Camerado Ins. Agency, Inc. v. Superior Court, 12 Cal.App.4th 838, 842 (Cal. Ct. App. 1993).

In the instant action, Petitioner’s conduct in the prosecution of the case is nowhere near vexatious and/or frivolous. No evidence has been adduced in this case, to prove that Plaintiff is a vexatious litigant.

First, in the past seven years, Petitioner has never commenced any actions, that have been determined against her. She has also never delayed any action for at least two years.

Next, Petitioner’s complaint was not a re-litigation of any previous matter that Petitioner has ever brought in court against the Respondents. Plaintiff filed 22STCV37929 before being declared a vexatious litigant in any other case. The causes of action in the Complaint filed in this action are materially different from the causes of action in Petitioner’s other case.

Third, none of Petitioner’s cases has ever been decided on the merits. None of her cases has ever been concluded to the end. The Respondent’s counsel has been engaging in frivolous objections on procedural issues, which have made shifted the court from the merits of the case.

For instance, on 07/14/2022, Judge Kleifield granted Respondent’s motion for summary judgment based on Respondent’s lies. Cal. Code Civ. Proc. § 437 C (C) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is not triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119).

Further, a motion for summary judgment should be granted if no triable issue exists as to any material fact and the movant is entitled to a judgment as a matter of law. See Code Civ. Proc., § 437c, subd. (c); see also Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003). 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. See Critzer v. Enos, 187 Cal.App.4th 1242, 115 Cal. Rptr. 3d 203 (Cal. Ct. App. 2010).

Judge Kleifield concluded that Kaiser demonstrated by competent evidence that Petitioner was not her employee as matter of law. This was an erroneous conclusion by Judge Kleifield based on the dishonesty of Kaiser, claiming Petitioner was not their employee. Petitioner was in fact employed by Kaiser.

Petitioner asserts that the judge failed to consider the fact that Petitioner’s complaint contained factual assertions on how she was harmed by the Respondents. Petitioner went ahead to establish valid causes of action based on the said facts. The complaint therefore raised issues of material fact. It follows; the Court never gave regard to the merits of the case, causes of action, controversy, and issues of fact or law.

Next, Petitioner has made no frivolous filing. A filing 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. All filings that Petitioner has ever made in the instant case have been purposeful, in pursuit of justice for the Petitioner. At no point has Petitioner ever intended to oppress the Respondents, or to subject them to harassment. Instead, Petitioner has made meritorious filings either in response to the Respondents’ filings, or seeking specific reliefs from the court. Further, since the matter has never been decided on its merits since its inception, no determination has been sufficiently made to satisfy the allegation that Petitioner has no reasonable probability that she will prevail in the case.

Petitioner asserts that Respondent’s move to have Petitioner listed in the vexatious litigants’ statute is not only frivolous but also amounts to a blatant abuse of the court process. Petitioner further contends that it is Lisa Magorien’s covert intention to present Petitioner as a vexatious litigant, to ultimately curtail Petitioner’s right to approach the Courts in pursuit of legal redress. Also, through this strategy, Lisa, Respondent’s attorney, attempts to cloud Respondent’s liability, by ensuring that Petitioner appears as frivolous as possible. As Respondent’s attorney, Lisa Magorien is thoroughly informed of the facts of the case, and is aware of Respondent’s liability for Petitioner’s harm and/or injuries. Therefore, Lisa cunningly intends to use as much as possible, any and all legal stratagem, including having Petitioner declared a vexatious litigant, to attain said unjust motive.

CONCLUSION

Based upon the foregoing arguments, and each of them, it is clear that Justice will not be properly served unless a writ is issued vacating the decision from the Trial Court and issuing such other relief as may be just.

DATED: _________

Respectfully Submitted,

_______________________________

ESTHER ATAM

 

Petitioner, Pro Se

CERTIFICATE OF COMPLIANCE

Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains 1,418 words. In making this certification, I have relied on the word count of the computer program used to prepare the brief. I have also used a 14-point font.

Respectfully Submitted,

 

____________________

ESTHER ATAM

Petitioner, pro se

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

I hereby certify that, on _________, a copy of the foregoing Petition was filed in this court. I further certify that on the said date, a copy of foregoing Petition was mailed by first-class U.S. Mail, postage prepaid, and properly addressed to the Respondents’ addresses.

 

Respectfully Submitted,

 

____________________

ESTHER ATAM

Petitioner, pro se

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