| IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE |
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| ESTHER TENDO ATAM,
(Petitioner) vs. SOUTHERN CALIFORNIAPERMANENTE MEDICAL GROUP (SCPMG), A CALIFORNIA CORPORATION, ET AL.,
(Respondents) |
Court of Appeal No. _______________
Trial Court Case No: 22STCV37929 [Related to Case No. 21STCV41538]
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Appeal from the Superior Court of California, Los Angeles County Trial Court Judge: Hon. Michael Small |
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| PETITION FOR WRIT OF MANDAMUS | ||
| Esther Tendo Atam
13621 Arcturus Ave. Gardena, CA 90249
Petitioner, Pro Se
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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)
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TABLE OF CONTENTS
PETITION FOR WRIT OF MANDAMUS. 5
MEMORANDUM OF POINTS AND AUTHORITIES. 6
- INTRODUCTION.. 7
- THE TRIAL COURT VIOLATED PETITIONER’S DUE PROCESS RIGHTS WHEN IT DENIED THE PETITIONER’S MOTION TO DISMISS JUDGE MICHAEL SMALL 7
- The Standard of Review.. 7
- Judge Small is biased. 8
TABLE OF AUTHORITIES
Cases
. Higgins v. Del Faro, (1981) 123 Cal.App.3d 558, 564……………………………… 19
.’” See In Guseinov v. Burns (2006) 145 Cal.App.4th 944, 960……………………….. 7
Alexander D. v. State Bd. of Dental Examiners, 231 Cal.App.3d 92, 282 Cal. Rptr. 201 (Cal. Ct. App. 1991)…………………………………………………………………………………. 30
Board of Trustees of Leland Stanford Jr. University v. Superior Court, 149 Cal.App.4th 1154, 1163………………………………………………………………………………………………. 19
Cf.Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 355 (1961)…………………………. 6
Cf.Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 355 (1961)…………………………. 6
Chapman v. California, 386 U.S. 18, 23 (1967)…………………………………………… 7
Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 922………………… 24
Critzer v. Enos, 187 Cal.App.4th 1242, 115 Cal. Rptr. 3d 203 (Cal. Ct. App. 2010) 23
Doe v. Gangland Prods., Inc., 730 F.3d 946, 960 (9th Cir. 2013)………………….. 11
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) 11
Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21-22, 31 Cal.Rptr.2d 378………………………………………………………………………………….. 6
Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21-22, 31 Cal.Rptr.2d 378………………………………………………………………………………….. 6
In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124, 145-46. 24
In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1327…………………………. 7
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019…………………………………………… 8
Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003… 23
Kees v. Medical Board, 7 Cal. App. 4th 1801 (Cal. Ct. App. 1992)………………… 30
Lazar v. Super. Ct., 12 Cal.4th 631, 638, 49 Cal.Rptr.2d 377, 909 P.2d 981 (1996) 11
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)……………………………………….. 8
People v. Nunn [ (1956) 46 Cal.2d 460]…………………………………………………… 15
People v. Perez (2018) 4 Cal.5th 421, 439………………………………………………….. 7
Peracchi v. Superior Court, 30 Cal.4th 1248………………………………………………. 7
Reed v. King (1983) 145 Cal.App.3d 261, 265…………………………………………… 14
Seeger v. Odell (1941) 18 Cal. 2d 409, 414-415 [115 P.2d 977, 136 A.L.R. 1291] 16
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]…………… 7
Statutes
Cal. Civ. Code § 3294………………………………………………………………………….. 11
Cal. Code Civ. Proc. § 391(b)………………………………………………………………… 26
CCP § 170.3 (c) (5)……………………………………………………………………………… 21
CCP § 170.6(a)(1)…………………………………………………………………………………. 7
Code Civ. Proc., § 128.5(b)(2)……………………………………………………………….. 24
Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii)………………………………………………. 6
Evid. Code, § 911(b)……………………………………………………………………………. 25
Penal Code 470 PC……………………………………………………………………………… 13
Other Authorities
Canon 3B(5)………………………………………………………………………………………. 27
Canon 3B(7)………………………………………………………………………………………. 28
Canon 3B(8)………………………………………………………………………………………. 28
Restatement Second of Torts, § 402B, coms. f, g, and j……………………………….. 12
Rules
Cal. Rule 3.110(d)……………………………………………………………………………….. 23
Constitutional Provisions
California Constitution, Article I, Section 7………………………………………………… 8
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 Order granting Respondents’ request for dismissal of Petitioner’s complaint; and to enter a different order granting said motion. Judge Small is biased and has acquiesced to the rampant fraud in this case, which facts are sufficient reason to vacate the Order.
PRAYER
WHEREFORE, Petitioner prays that a writ of mandate issue from this Court commanding the Los Angeles County Superior Court to vacate its Order granting Respondents’ request for dismissal of Petitioner’s complaint, 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. The facts alleged in the Petition are within my own knowledge and I know these facts to be true. I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed on this 12 day of May 2023 at Los Angeles County, California.
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
This case concerns the order granting Respondents’ request for dismissal of Petitioner’s complaint. This Court issued a Minute Order on May 9, 2023, which Order granted the Respondents’ Request for Dismissal of Petitioner’s Complaint. Defendant also filed a Notice of ruling on or about May 11, 2023.
Petitioner challenges the said Trial Court’s decision on the grounds that Judge Small is biased and has acquiesced to the rampant fraud in this case.
It follows; there are significant legal grounds, extraordinary facts, and circumstances, which justify this court to quash the Trial Court’s decision granting Respondent’s request for dismissal.
II. THE TRIAL COURT VIOLATED PETITIONER’S DUE PROCESS RIGHTS WHEN IT DENIED THE PETITIONER’S MOTION TO DISMISS JUDGE MICHAEL SMALL
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. Judge Small is biased
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.
CCP § 170.6(a)(1) also provides that a judge shall not try a case if it is established that the judge is prejudiced against a party or attorney. The said section 170.6 requires a different judge to be assigned in lieu of the originally assigned one. See People v. Perez (2018) 4 Cal.5th 421, 439; accord, Peracchi v. Superior Court, 30 Cal.4th 1248 (“Section 170.6 permits a party in civil and criminal actions to move to disqualify an assigned trial judge on the basis of a simple allegation by the party or his or her attorney that the judge is prejudiced against the party.”).
The California Constitution, Article I, Section 7, provides: “A person may not be deprived of life, liberty, or property without due process of law…” (emphasis added). “Due Process of Law,” is defined as a procedural safeguard to ensure that life, liberty, or property is not taken without a fair process or procedure. “Procedural due process imposes constraints on governmental decisions which deprive individuals of “liberty” or “property” interests within the meaning of the Due Process Clause…” Mathew v. Eldridge, 424 U.S. 319, 332-33 (1976). (Emphasis added)
A judgment entered in violation of due process is a void judgment and should be dismissed and/or reversed. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019.
i. Judge Small illegally related Petitioner’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 Petitioner’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. Petitioner had already made filings with respect to each hearing. Petitioner’s good faith efforts would therefore go to the drain following the illegal action by Judge Small.
ii. Judge Small allowed the abuse of the discovery process, to Petitioner’s detriment
Kaiser failed to respond to Petitioner’s Request for Admission that was due January 9, 2023. Further, Judge Elaine Lu stayed discovery during the hearing held on February 16, 2023. It is Petitioner’s contention that staying the discovery process is unfair to Petitioner since the information requested in the discovery would provide pertinent facts and/or evidence, which would establish Petitioner’s claims against the Respondents. Also, failure of Judge Lu to find Respondents in abuse of the discovery process shows how Judge Lu is biased.
On March 17, 2023, Judge Small vacated all hearings in the case, including the May 9th hearing to dismiss Petitioner’s complaint, and said action automatically voided the court order issued on February 16th, 2023, to stay discovery until after the hearing on the Motion to Dismiss on May 9th. The motion to dismiss Petitioner’s complaint was then placed off docket with no reset date, from March 17th 2023 to March 28th, 2023.
May 9th then became available and Petitioner reserved May 9th for a hearing on sanctions. Accordingly, Petitioner filed a motion for sanctions in department 26, which was accepted by the court and was docketed for May 9th, 2023. She then sent out second Requests for Admission on March 28, 2023. The request for admissions was delivered March 31, 2023. Therefore, a response was due by May 1, 2023.
Next, Petitioner mailed out interrogatories to Respondents on March 28, 2023. The interrogatories were delivered March 31, 2023. A response is therefore due by May 1, 2023. Petitioner also reissued subpoenas to Respondents to the hearing for sanctions on docket for May 9th, 2023. Finally, Petitioner resent a second request for RN records to Kaiser National HR services for on March 28, 2023. A response was due by March 31, 2023. It is notable that Kaiser has a 72-hour response policy, which it failed to adhere to. Kaiser has not produced the requested RN records.
iii. Judge Small is colluding with Judge Elaine Lu
As Petitioner has already stated above, on March 17, 2023, Judge Small vacated all scheduled pending hearings in this case, which was being presided by Judge Elaine Lu. The only hearing on docket 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 Petitioner had subpoenaed the Petitioner’s Psychologist, Gillian Friedman, attorney for the BRN, and other SCPMG Respondents. It follows; with no more pending hearings in this case after March 28, 2023, the case was closed.
Further, Judge Elaine Lu colludes with Judge Michael Small, to further curtail Petitioner’s rights. For instance, the Case Management Statement filed in Departments 26 and 57 in anticipation of the Case Management hearing on March 28, 2023, clearly presented the fraudulent RN records produced by Kaiser pursuant Labor code 1198.5. 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 Petitioner 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.
iv. Judge Small fails to acknowledge that Petitioner’s previous attorneys engaged in fraud
Under California law, a Petitioner seeking punitive damages must prove “that the Respondent 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 Respondent’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).
a. False Representation, Concealment, Deceit
A false representation is a misrepresentation of material fact upon which Petitioners justifiably relied. See Restatement Second of Torts, § 402B, coms. f, g, and j.
Petitioner 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 Respondent in the case, disregarding Petitioner’s attached W2s and wage statements that named the correct Respondent: Southern California Permanente Medical Group (SCPMG).
Petitioner was still confused as to why Gary put KFH in the complaint. Petitioner 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, Petitioner substituted the attorney by filing form MC-050 (Substitution of Attorney-Civil) on or about December 21, 2021. Notably, Gary wrote an email to Petitioner indicating that his office would send Petitioner a substitution of attorney form, which would require two signatures from Petitioner. Consequently, Gary sent over the substitution of attorney Form MC-050, which Petitioner duly signed.
However, on February 15, 2022, Gary Carlin filed Form MC-050 “Substitution of Attorney” form. The form had a forged signature of Petitioner. Petitioner also noticed that Gary had forged the party’s Retainer Agreement. Notably, the Retainer Agreement presented by Gary had a forged handwriting of Petitioner. The forged Agreement stated that Petitioner had hired Gary for “Employment/Labor Law Issues Re Kaiser”. Not only was this not Petitioner’s handwriting, it contradicted what Petitioner initially stated as the correct name for the Respondent. 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 Petitioner 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 Petitioner hired Hershey to prosecute Petitioner’s action arising out of Petitioner’s employment with SCPMG.
On March 28, 2022, Hershey filed a Case Management Statement, where he identified the Respondent as SCPMG. Hershey was later relieved as Petitioner’s counsel vide a Court Order issued granting his motion to be relieved as counsel. In the motion, Hershey argued that he withdrew because Petitioner had sent threats to the Respondents. Hershey’s averments were not true. The attorney was relived after Petitioner expressed her concerns on effective representation.
It is also notable that long after Gary’s representation of Petitioner had been terminated, Gary still went ahead to file a Case Management Statement for Petitioner on September 14, 2022, without Petitioner’s knowledge or consent. Petitioner 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 Respondent’s Counsel notice of the accidental filing. Gary never gave such a notice to Petitioner. This action by Gary further shows their sinister motive to interfere with Petitioner’s case and thwart her access to justice.
b. 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 Respondent. As stated above, in her communication with Gary, Petitioner had attached W2s and wage statements that named the correct Respondent. Also, on December 21, 2021, Gary Carlin wrote an email to Petitioner titled “TAM V. SCPMG”. In the email, Gari further referred to the Respondent expressly as SCPMG.
Further, Petitioner confronted Gary Carlin via email on October 28, 2022, with the fact that Gary had entered the wrong name of the Respondent and that he had forged Petitioner’s handwriting in the Retainer Agreement. Gary responded to Petitioner’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 Respondent’s name in the caption. He only excused himself for mistakenly filing Petitioner’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 Petitioner’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.
c. 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 Petitioner that Respondent’s counsel, Lisa Magorien, had informed him of the error. In fact, Petitioner first learned that the incorrect Respondent was named in the complaint, when Petitioner opposed Respondent’s motion for summary judgment on or about May 9, 2022.
d. 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 Petitioner acted in reliance on the misrepresentation but that he was justified in his reliance.
While retaining both Gary and Hershey Brennan, Petitioner 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 Petitioner relied on the representations of the attorneys, to her detriment.
e. Resulting Damage
A “complete causal relationship” between the fraud or deceit and the Petitioner’s damages is required. Causation requires proof that the Respondent’s conduct was a “‘substantial factor’” in bringing about the harm to the Petitioner.” See Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [39 Cal.Rptr.2d 658].
Petitioner asserts that she has suffered disastrous damages consequential and incidental to the fraud highlighted above. First, Petitioner has suffered harassment, frustration, and emotional trauma. After terminating their representation of Petitioner, Petitioner’s Complaint would later be challenged by Respondent’s counsel, Lisa Magorien, on the ground of the improperly named Respondent. Notably, Lisa Magorien filed a Motion for Summary Judgment on April 21, 2022 alleging inter alia, that Petitioner had named the wrong Respondent as party in the Complaint. Petitioner only realized that there was an issue with the Respondent’s name when she received the Motion for Summary Judgment form Lisa Magorien. It follows; the attorneys colluded with the Respondent’s counsel and the judge to frustrate Petitioner’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 Petitioner’s struggles in Court, which would later end up with Petitioner’s case being disposed and Petitioner being termed a vexatious litigant.
The fraud has made it impossible for the Court to address the defamation made against Petitioner by not only the Respondent, but also Respondent’s attorney, Lisa Magorien. Petitioner maintains that Sarah Poetter, who was her supervisor, presented false and defamatory report about Petitioner to the BRN. This report would form the basis of BRN’s unlawful investigation of Petitioner and the subsequent revocation of her RN license. Lisa Magorien, on the other hand, presented defamatory and frivolous emails alleging that Petitioner had made threats to Respondent’s employees.
Petitioner’s reputation has also been dealt a heavy blow. The fraud discussed herein prevented Petitioner from successfully prosecuting her case in the Court. For that reason, the Respondents could not be held liable for their actions and/or inactions against Petitioner. Further, the BRN relied on defamatory averments from Respondent, which eventually led to Petitioner’s RN license being revoked. Petitioner cannot therefore earn income as a RN practitioner. All the foregoing, including placing Petitioner on the vexatious list, has damaged Petitioner’s reputation.
Another resulting damage on Petitioner is that she has been denied her due process rights since the Court wants to dismiss Petitioner’s case on procedural technicalities, without considering the merits thereof. Respondent’s counsel vehemently opposed every step Petitioner took to amend the complaint and include the right Respondent’s name. Petitioner 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.4th 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, Petitioner 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 Petitioner, she has nowhere else to seek justice.
Petitioner has also been declared a vexatious litigant to prevent her from making filings and present her case in pursuit of legal redress. Attorney for Respondent was aware Petitioner was about to file a new Complaint and moved the court to make Petitioner a vexatious litigant. Respondent’s counsel vehemently sought to maximize on the error in the Complaint, which as Petitioner has already explained, is a result of her previous attorney’s fraud. It is notable that Petitioner made motions to attempt to seek a correction of the issue, which include her opposition to Respondent’s Motion for Summary Judgment, and her Motion for Leave to File her Amended Complaint. Respondent’s counsel challenged these filings by claiming that they were frivolous and ultimately, she filed an ex parte motion to declare Petitioner a vexatious litigant.
v. If Judge Small is not disqualified, Petitioner’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).
On or about 05/03/2023, Petitioner filed a verified statement objecting to Judge Small hearing the motion to dismiss on 05/09/2023. After service of the verified statement on 05/03/2023, Judge Small had 10 days to file a verified answer. If he refuses to concede his disqualification, and chooses another judge to hear the arguments the arguments for 05/09/2023, both parties have to agree on the chosen judge to hear arguments on question of disqualification. If both parties cannot agree on the chosen judge, within 5 days, the clerk will notify the executive office of the judicial council of the need for a selection. See CCP § 170.3 (c) (5).
vi. 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 Steven Kleifield was biased. Petitioner has discussed some of his blameworthy conduct. First, the judge struck off Petitioner’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 Petitioner leave to amend the Complaint to correct the Respondent 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 (Respondent’s counsel) on October 28, 2022. The disputed email evidence was declarations from SCPMG employees, acknowledging that Petitioner had filed a lawsuit against SCPMG. Not only did Judge Kleifield prevent Petitioner from filing an amended complaint, he told Petitioner 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 Respondent’s Summary Judgment, yet there were genuine issues of material fact. “`A Respondent’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the Respondent 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) 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 Respondent’s Motion for Summary Judgment, the judge failed to consider the fact that Petitioner’s complaint contained factual assertions on how she was subjected to discrimination retaliation and defarmation. Petitioner went ahead to establish valid causes of action based on the said facts. The complaint therefore raised issues of material fact, which nullifies Respondent’s motion for summary judgment.
Next, the Judge failed to address Respondent’s violation of applicable law regarding the time limit to file an answer. According to Cal. 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 Respondent had filed their answer beyond the statutorily allowed time limit of thirty (30) days. The parties had also not stipulated that the Respondent could file the responsive pleading any time after the thirty days. The judge’s failure to address the Respondent’s blatant disregard of the applicable law shows how the judge is biased, which bias prejudices Petitioner.
The Judge also failed to address the Respondent’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. 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 Petitioner is frivolous and that her filings were vexatious and meritless. On the contrary, Petitioner filed the suit in pursuit of justice. Further, Kaiser Foundation Hospital was erroneously named as the Respondent upon which she was entitled to correct the error and to work on any other defect in the pleading(s). All of Petitioner’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 Petitioner’s initials and signature. The original document that Petitioner 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, Petitioner had subpoenaed Gary Carlin for the retainer. Petitioner further made several email requests to Gary for the retainer. However, Gary failed to deliver the retainer. When Petitioner raised the issue with the Judge, he dismissed Petitioner’s Motion for Fraud and stated that Petitioner was wasting the Court’s resources and time. The foregoing is proof of the Judge’s blatant disregard of Petitioner’s rights to a fair trial.
Since taking up the case from Judge Steven Kleifield, Judge Small has upheld all of Judge Kleifield’s blameworthy conduct, and biased actions.
vii. 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 Petitioner had filed the case against SCPMG. The Court failed to acknowledge this fact, and went ahead to side with Respondent in their incessant frivolous attempts to prevent Petitioner from amending her complaint to reflect the correct party’s name.
a. Lisa unjustly put Petitioner in the vexatious litigant list
Lisa sought to have Petitioner 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 Petitioner is a vexatious litigant. Petitioner 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, Petitioner 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 Petitioner had ever brought in court against the Respondents. Petitioner was suing the Respondents for the first time. Her Complaint and her subsequent attempts to correct the procedural issue are in no way meant to harass the Respondent.
b. The BRN moved to revoke Petitioner’s license in the middle of a lawsuit
The BRN revoked Petitioner’s license while this case was still pending. It is noteworthy that BRN opened an investigation on Petitioner based on false allegations from Kaiser. The BRN thereafter subjected Petitioner to an unlawful Section 820 examination. After Petitioner failed to acknowledge the legality of their actions, the BRN went ahead to revoke Petitioner’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 Petitioner, which allegations were used by the BRN to revoke Petitioner’s license. This just shows how the BRN violated Petitioner’s right to a fair hearing.
c. Petitioner is being denied her right to a fair trial, when the Court seeks to dismiss the case on a procedural technicality.
As Petitioner has already pointed out, the error in the naming of the Respondent is not attributed to Petitioner, but to her former attorneys. Petitioner is therefore suffering for a mistake that is not hers. As further evidence of the court’s curtailment of Petitioner’s due process right to a fair trial, Petitioner’s efforts to correct the procedural technicality have been challenged and opposed by the Respondent. The Court also appears to participate in the ongoing fraud, by permitting Respondent’s unjust challenge to Petitioner’s good faith attempts to have the correct name of the Respondent in the Complaint.
viii. Judge Small threatened to fine Petitioner
On March 10, 2023, Judge Small threatened to fine Petitioner thousands of dollars if she continued to pursue her case. Consequently, Judge Small ordered Petitioner to furnish a $10,000 security by 06/15/2023 in an order to show cause.
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.”
ix. Judge Small fails to acknowledge the BRN’s fraudulent conduct
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 Petitioner’s former employer, and unjustly and without good cause, subjected Petitioner to a Section 820 order compelling Petitioner to a mental examination, and ultimately revoked Petitioner’s RN license. The Board had already interviewed Petitioner 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 Petitioner over a 9-10 week period, concluding that Petitioner was safe to perform her RN duties with no mental illnesses precluding her from doing so. The same psychologist’s notes addressed the traumatic incident that occurred on August 28, 2020, while at work at Kaiser, for which Petitioner 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 Petitioner. This gross incompetence raises questions about Ms. Melby’s judgment in this matter, making it necessary for further investigation into her actions.
Petitioner emphasizes that nowhere in her history of nursing was there any record of negligent patient care or any medical errors. Further, the delay of the BRN in taking action against Petitioner speaks to BRN’s intent in seeking to investigate and subject Petitioner to discipline. It is Petitioner’s assertion that if, in fact, Petitioner was a danger to the public as alleged the BRN in its Opposition to Petitioner’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 Petitioner 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 Petitioner to effect its orders.
Also, based on the false allegations against Petitioner, Loretta Melby, Executive Officer of the BRN, filed an Accusation against Petitioner on or about November 14, 2022, alleging that Petitioner 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; Petitioner was therefore not obligated to respond to an illegal Section 820 Order. It follows; the Board had absolutely no evidence that suggests that Petitioner 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 Petitioner is false.
The BRN’s bad faith is also evident when, on January 6, 2023, Gillian Friedman sent Petitioner 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 Petitioner failed to enter appearance and defend herself from the accusations brought before the Board by Loretta Melby. Consequently, the Board entered the decision against Petitioner 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 Petitioner’s former employer.
It is in a bid to avoid liability that the BRN sought to join the Respondent(s) in ensuring Petitioner’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 Petitioner’s related case at Department 57, the BRN opposed Petitioner’s Motion for Discovery Sanctions against the BRN. Petitioner had sent discovery requests to the BRN. However, the BRN failed to respond to the discovery request. Petitioner therefore filed a Motion for Discovery Sanctions against the BRN. In response thereof, the BRN alleged inter alia, that Petitioner’s motion for sanctions should be denied because there is no triable action since the Court already granted Respondent’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 Respondent and the Court, to obstruct Petitioner’s access to justice.
x. The alleged vexatious litigant status will need to be addressed for continued litigation
The Minute order issued on 04/11/2023 by Hon. Michelle Williams Court clearly states that Petitioner’s status as a vexatious litigant will have to be addressed for continued litigation. Judge Small, on the other hand, states that Petitioner was rightly declared a vexatious litigant.
The foregoing shows how Judge Small is determined to join Respondent in curtailing Petitioner’s right, by illegally declaring Petitioner a vexatious litigant without any basis or good cause.
Accordingly, the Judge’s actions and any other future actions should be stopped because he is subject to disqualification for his bias in this case.
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/or granting a new and different order granting the motion to disqualify Judge Small, and for such other relieve as may be just.
DATED: 05/12/2023
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 7,464 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 05/16/2023, a copy of the foregoing Brief was filed in this court. I further certify that on the said date, a copy of foregoing Appeal Brief 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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